If a worker steals from their employer, they can be fired or even face criminal charges. If an employer steals their workers’ wages, they … usually get to keep the money with no penalties. Wage theft is outrageously common, and it’s rarely treated as a serious civil violation, let alone a criminal one, despite taking money from people who desperately need it to get by. Minimum wage violations, for instance, are one common form of wage theft, and wage theft doesn’t hit all workers equally. According to the National Employment Law Project, “Black workers experience wage theft at three times the rate of white workers. Foreign-born workers experience wage theft at twice the rate of their U.S.-born counterparts. And women experience wage theft at a rate of 30 percent, compared to 20 percent for male workers.”
NELP has an answer: retaliation funds. Retaliation funds should be set up by a labor enforcement agency, and workers could draw on them if, after they filed a wage theft complaint with the labor enforcement agency, their pay was reduced or they were fired. At that point, they’d get a one-time payment, and “If the enforcement agency eventually finds that the employer unlawfully retaliated, the employer should replenish the fund with a payment equal to three times the amount the worker received.” That would protect workers from retaliation, which would reduce their fears about reporting wage theft to begin with, and it would act as a disincentive to employers tempted to steal from their workers. Is there a blue state that will consider trying this out?
This blog originally appeared at Daily Kos on May 22, 2021. Reprinted with permission.
About the author: Laura Clawson has been a Daily Kos contributing editor since December 2006 and a full-time staff since 2011, currently acting as assistant managing editor.
The increased media coverage of the plight of the more than 2 million farmworkers who pick and help produce our food—and whom the Trump administration has deemed to be “essential” workers for the U.S. economy and infrastructure during the coronavirus pandemic—has highlighted the difficult and often dangerous conditions farmworkers face on the job, as well as their central importance to U.S. food supply chains. For example, photographs and videos of farmworkers picking crops under the smoke- and fire-filled skies of California have been widely shared across the internet, and some data suggest that the number of farmworkers who have tested positive for COVID-19 is rivaled only by meat-processing workers. In addition, around half of farmworkers are unauthorized immigrants and 10% are temporary migrant workers with “nonimmigrant” H-2A visas; those farmworkers have limited labor rights in practice and are vulnerable to wage theft and other abuses due to their immigration status.
Despite the key role they play and the challenges they face, farmworkers are some of the lowest-paid workers in the entire U.S. labor market. The United States Department of Agriculture (USDA) recently announced that it would not collect the data on farmworker earnings that are used to determine minimum wages for H-2A workers, which could further reduce farmworker earnings.
This raises the question: How much would it cost to give farmworkers a significant raise in pay, even if it was paid for entirely by consumers? The answer is, not that much. About the price of a couple of 12-packs of beer, a large pizza, or a nice bottle of wine.
The latest data on consumer expenditures from the Bureau of Labor Statistics (BLS) provides useful information about consumer spending on fresh fruits and vegetables, which, in conjunction with other data, allow us to calculate roughly how much it would cost to raise wages for farmworkers. (For a detailed analysis of these data, see this blog post at Rural Migration News.) But to calculate this, first we have to see how much a typical household spends on fruits and vegetables every year and the share that goes to farm owners and their farmworker employees.
The BLS data show that expenditures by households (referred to in the data as “consumer units”) in 2019 was $320 on fresh fruits and $295 on fresh vegetables, amounting to $615 a year or $11.80 per week. In addition, households spent an additional $110 on processed fruits and $145 on processed vegetables. Interestingly enough, on average, households spent almost as much on alcoholic beverages ($580) as they did on fresh fruits and vegetables ($615).
Data from the U.S. Department of Agriculture’s Economic Research Service show that, on average, farmers receive less than 20% of every retail dollar spent on food, but a slightly higher share of what consumers spend for fresh fruits and vegetables. Figure A shows this share over time for fresh fruits and vegetables: Between 2000 and 2015, farmers received an average 30% of the average retail price of fresh fruits and 26% of the average retail price of fresh vegetables (2015 is the most recent year for which data are available). This means that average consumer expenditures on these items include $173 a year for farmers (0.30 x 320 = $96 + 0.26 x 295 = $77).
Farmers received an average 30% of the retail price of fresh fruit and 26% for fresh vegetables between 2000 and 2015
Farm share of fruit and vegetable retail sales, 2000–2015
According to studies published by the University of California, Davis, farm labor costs are about a third of farm revenue for fresh fruits and vegetables, meaning that farmworker wages and benefits for fresh fruits and vegetables cost the average household $57 per year (0.33 x $173 = $57). (However, in reality, farm labor costs are less than $57 per year per household because over half of the fresh fruits and one-third of fresh vegetables purchased in the United States are imported.)
To illustrate, that means that farm owners and farmworkers together receive only about one-third of retail spending on fruits and vegetables even though most, and in some cases all, of the work it takes to prepare fresh fruits and vegetables for retail sale takes place on farms (the exact share of the price farmers receive varies slightly by crop). For example, strawberries are picked directly into the containers in which they are sold, and iceberg lettuce is wrapped in the field. Consumers who pay $3 for a pound of strawberries are paying about $1 to the farmer, who pays one-third of that amount to farmworkers, 33 cents. For one pound of iceberg lettuce, which costs about $1.20 on average, farmers receive 40 cents and farmworkers get 13 of those 40 cents.
So, what would it cost to raise the wages of farmworkers? One of the few big wage increases for farmworkers occurred after the Bracero guestworker program ended in 1964. Under the rules of the program, Mexican Braceros were guaranteed a minimum wage of $1.40 an hour at a time when U.S. farmworkers were not covered by the minimum wage. Some farmworkers who picked table grapes were paid $1.40 an hour while working alongside Braceros in 1964, and then were offered $1.25 in 1965, prompting a strike. César Chávez became the leader of the strike and won a 40% wage increase in the first United Farm Workers table grape contract in 1966, raising grape workers’ wages to $1.75 an hour.
What would happen if there were a similar 40% wage increase today and the entire wage increase were passed on to consumers? The average hourly earnings of U.S. field and livestock workers were $14 an hour in 2019; a 40% increase would raise their wages to $19.60 an hour.
For a typical household or consumer unit, a 40% increase in farm labor costs translates into a 4% increase in the retail price of fresh fruits and vegetables (0.30 farm share of retail prices x 0.33 farm labor share of farm revenue = 10%; if farm labor costs rise 40%, retail spending rises 4%). If average farmworker earnings rose by 40%, and the increase were passed on entirely to consumers, average spending on fresh fruits and vegetables for a typical household would rise by $25 per year (4% of $615 = $24.60).
Many farm labor analysts consider a typical year of work for seasonal farmworkers to be about 1,000 hours. A 40% wage increase for seasonal farmworkers would raise their average earnings from $14,000 for 1,000 hours of work to $19,600. Many farmworkers have children at home, so for them, going from earning $14,000 to $19,600 per year would mean going from earning about half of the federal poverty line for a family of four ($25,750 in 2019) to earning about three-fourths of the poverty line. For a farmworker employed year-round for 2,000 hours, earnings would increase from $28,000 per year to $39,200, allowing them to earn far above the poverty line.
Raising wages for farmworkers by 40% could improve the quality of life for farmworkers without significantly increasing household spending on fruits and vegetables. If there were productivity improvements as farmers responded to higher labor costs, households could pay even less than the additional $25 per year for fresh fruits and vegetables.
If average farmworker earnings were doubled (rose by 100%) through increased spending on fresh fruits and vegetables, a typical household would see costs rise by $61.50 per year (10% of $615). That extra $61.50 per year would increase the wages of seasonal farmworkers to $28,000 for 1,000 hours of work, taking them above the poverty line for a family of four.
About the Author: Daniel Costa is an attorney who first joined the Economic Policy Institute in 2010 and was EPI’s director of immigration law and policy research from 2013 to early 2018; he returned to this role in 2019 after serving as the California Attorney General’s senior advisor on immigration and labor.
The Trump Labor Department is taking action to protect massive corporations from their low-wage workers seeking justice in court, because the Trump Labor Department, currently headed by Eugene Scalia, is all about putting a boot on the neck of workers. The department is finalizing a rule making it more difficult for workers at franchise businesses or contractors—like fast food workers or warehouse workers technically employed by staffing agencies—to sue the companies they actually work for for wage theft and other such violations.
The Labor Department is tightening up the joint employer standard that the Obama administration had made more worker friendly. Under Obama, companies would have counted as joint employers if they substantially set the terms of employment even if they only exerted indirect control over any individual worker. So McDonald’s, which exerts incredibly tight control over every detail of its franchisee-owned restaurants and has even told some franchisees they were paying workers too much, would count as a joint employer of McDonald’s workers. Under Trump, McDonald’s is off the hook unless it directly hires and fires workers, directly supervises the workers and sets their schedules, directly sets their pay, and manages their employment records.
But that’s the point—McDonald’s and other big companies that want to keep wages and working conditions at rock bottom while maintaining plausible deniability have gotten really good at getting franchisees and contractors to do their dirty work. They claim—and the Trump administration will back them up on this—that it’s not McDonald’s or Walmart engaging in wage theft and forcing workers into unsafe working conditions, even as the wage theft and working conditions are found across dozens of franchisees and contractors with McDonald’s or Walmart as the common factor. The common employer, in fact, exerting significant control over the places where its business is conducted.
This is a plan to let major companies abuse and exploit their workers without any legal risk for the labor law violations involved. Or, in Republican-speak via Scalia, “This final rule furthers President Trump’s successful, governmentwide effort to address regulations that hinder the American economy and to promote economic growth.” Economic growth for multi-billion-dollar companies at the expense of low-wage workers, that is.
This article was originally published at Daily Kos on January 15, 2020. Reprinted with permission.
About the Author: Laura Clawson is a Daily Kos contributor at Daily Kos editor since December 2006. Full-time staff since 2011, currently assistant managing editor.
Amazon’s labor practices, from its warehouses to its corporate offices, are terrible—and of course its delivery workers don’t have it any better. Many of Amazon’s packages are delivered by third-party courier companies and drivers face a range of abuses, from wage theft to being pressured into risky behaviors to deliver packages on time, Business Insider reports based on interviews with 31 current or former drivers at 14 of the companies:
Four drivers across three companies said their employers misrepresented the job by promising health benefits without following through. One worker said that when he started his job, his employer promised that he would get health benefits within 90 days of employment. He said he was fired within days of qualifying.
Eight workers across four companies said drivers were denied overtime pay, despite working well over 40 hours a week. Thirteen workers across five companies complained about wages missing from paychecks.
Workers reported being pressured to be on the job on their days off, to work through injury, to ignore stop signs if they were running late, and being fired for challenging illegal practices.
Amazon, of course, says these are contractors and Amazon is trying to work with them to do the right thing, and so on and so forth. But plausible deniability is a key reason companies like Amazon do so much outsourcing of work, and the deniability is that much less plausible coming from a company with Amazon’s labor record in other areas of its business.
Generally speaking, if a giant corporation really really cares about something, its contractors get the message … and if it doesn’t care so much, well, this is what you get. There is one way Amazon can push back against coverage like this: by improving its practices and those of its contractors.
This blog was originally published at Daily Kos Labor on September 15, 2018. Reprinted with permission.
About the Author: Laura Clawson is labor editor at Daily Kos.
Wage theft, sometimes known as time theft against employees, has been in the news a lot lately. That’s due to a study by the Economic Policy Institute (EPI) and another by Elizabeth Tippett of the University of Oregon, featured on NPR’s Planet Money podcast.
Recently, TSheets, a time tracking software company, ran a survey of their own. Their survey found just under 10 percent of employers admit to taking time off employee timesheets every day. Over 60 percent of those take off 30 minutes per day or more. Applied to the broader, hourly workforce across the U.S., TSheets estimates workers are losing out on $22 billion in earnings each year. Here are three known factors contributing to those billions lost.
Wage theft contributor 1: Unpaid breaks
The government has some stipulations in place when it comes to breaks for meals, namely “The employee must be fully relieved from duty for the purposes of eating regular meals.”
The trouble is, some employees, particularly those in the healthcare or education sector, aren’t often able to walk away from their work completely. They end up working straight through their lunch, even while clocked out. For them, it’s tough to take time off when part of their performance, and potentially their compensation, is based on their responsiveness.
The best solution — both from an employee perspective and from employers who want to avoid an expensive FLSA lawsuit — is to figure out how to accommodate employee breaks, so individuals are free to take advantage of that time of rest. At the very least, employers should be talking to employees and getting their input on how to improve the situation.
Wage theft contributor 2: Timesheet rounding
Timesheet rounding is a setting in time tracking software that rounds an employee’s time when they clock in or out to the nearest minute, five minutes, or 15 minutes. It’s common for an admin to set up rounding to the nearest minute, as payroll solutions like QuickBooks aren’t set up to process seconds.
But whether a company rounds to the nearest minute or the nearest 15 minutes isn’t the problem. It’s the direction in which the rounding occurs. Say an employer has set timesheet rounding to go up to the nearest five minutes when an employee clocks in, but down to the nearest five minutes when an employee clocks out. When the employee comes in at 8:31, the timesheet shows 8:35. When they clock out at 5:04, the timesheet shows 5:00. That employee has missed out on 8 minutes of paid time.
This problem becomes all the more challenging when the time tracker is set to round to the nearest 15 minutes. On this matter, the U.S. Department of Labor states employers cannot always round down. “Employee time from one to seven minutes may be rounded down, and thus not counted as hours worked, but employee time from eight to 14 minutes must be rounded up and counted as a quarter hour of work time. See Regulations 29 CFR 785.48(b).”
Wage theft contributor 3: Unpaid overtime
Did you know it’s illegal to withhold wages, even when those wages include overtime an employee has worked without consent or prior approval from a manager? The Department of Labor makes it very clear that “work not requested, but suffered or permitted is work time.” That means it doesn’t matter if the employee worked when they weren’t supposed to — they must be paid for the time they put in.
Many employers are also unaware that some travel time is considered eligible for overtime pay. For instance, while the time spent commuting from work to home or vice versa shouldn’t be counted, the commute from home to a job in the case of an emergency could be. Travel made on behalf of work, in some instances, also has the potential to be counted as overtime.
Wage theft conclusions
Wage theft is a complicated issue, and it’s one that employees and the lawyers, HR personnel, and union reps who represent them should be educated on. If you suspect an employer is taking wages from employees, it’s a good idea to contact your state’s labor agency to learn more about wage theft claims in your state.
Next, employees should try to find out if their employer rounds timesheets (and in which direction), in addition to documenting all hours they’re supposed to be paid and comparing those times to the ones listed on their paystubs. If the numbers don’t line up, it might be time for a conversation.
Everyone deserves to be paid for the time they put in. When employers intentionally or unintentionally violate that right, it isn’t just morally reprehensible — it’s against the law.
About the Author: Danielle Higley is a copywriter for TSheets by QuickBooks, a time tracking and scheduling solution. She has a BA in English literature and has spent her career writing and editing marketing materials for small businesses. Last year, she started an editorial consulting company.
When is the moment in time for a freelance writer that a late payment becomes wage theft, and what do you do about it?
For A.J. Springer, who recently moved to the District of Columbia, the line was April 27, 2017, when he went public in a Chicago Tribune news story about the $1,755 owed him at the time for pieces he wrote for the magazines Ebony and Jet.
It’s hard to step forward as a freelance writer, and publicly demand payment. “A lot of people were uneasy or afraid to speak out. There are no protections for freelancers, and a lot of people are afraid of losing future work,” Springer said.
The Establishment first broke the nonpayment story, which spurred Larry Goldbetter, president of the National Writers Union (NWU)/UAW Local 1981, to start emailing and calling writers to say his union could help.
The NWU has a long history of fighting for freelance writers, filing suit against media companies in the 1990s to win back pay for those whose works had been sold and resold to databases. (Some writers actually received checks in the mail, out of the blue. As a freelance writer at the time in Boulder, Colorado, I was one of them.)
When Goldbetter reached Springer, he immediately joined the NWU, and so did other unpaid Ebonyand Jetfreelance writers.
Goldbetter says the list has been growing week by week since the campaign to get Ebony and Jet to pay hit the mainstream.
Six writers had come forward in early May. After Labor Day, the NWU filed a lawsuit against Ebony Media Operations and its parent company, Clear View Group, for allegedly violating the contracts of 37 freelance writers, editors and others who are collectively owed more than $70,000. The case was filed in Cook County, Illinois.
“Oftentimes, freelancers are at the mercy of the publications they write for,” Goldbetter said. “They often lack union protections other workers have and many are afraid of being blackballed for speaking up about nonpayment.”
Earlier in August, the National Association of Black Journalists presented Ebony with its Thumbs Down award, and unpaid Ebony writers attended the conference for free.
The decision to go public has paid off, at least in part, for Springer. He received about $1,100. He’s one of the writers suing the magazines.
Early in his journalism career, when Springer was still a high school student in Las Vegas, he learned of the power of the press. He interviewed the new school superintendent, who used a racial epithet. When the story broke, the superintendent was fired.
Now, with a master’s degree and more than a decade of paid writing and radio work behind him, Springer is thoughtful about a different kind of power—the kind you build together, through communication.
“When this issue came up, I was in a position to speak loudly and boldly,” he said. And so he did. “I knew if I lost any potential work, I’d be OK. It was important to organize and to speak out.”
As Texas prepares to rebuild after Hurricane Harvey devastated much of the state, and Florida starts picking up the pieces from the destruction wreaked by Hurricane Irma, emergency workers may face exploitation for the sake of greater profits and speedier project completion.
Past abuses after similar natural disasters have left laborers without all of their wages and with serious illnesses that could have been prevented with proper supervision and training, labor experts say. A large portion of these workers are undocumented and likely afraid to alert authorities when their rights are violated. On top of that, the Trump administration’s approach to labor protections doesn’t inspire confidence, according to workers’ safety experts who spoke to ThinkProgress.
Forty percent of Houston construction workers do not have health insurance, retirement, life insurance, sick leave, and paid time off, according to a 2017 report from the Austin-based Workers Defense Project, an organization that advocates for better health, safety, and labor standards. The report was the result of interviews with over 1,400 construction workers. On average, a construction worker dies once every three days in Texas because of unsafe working conditions.
Texas is also the only state in the country that doesn’t require any form of workers compensation coverage, said Bo Delp, Director of the Better Builder Program at Workers Defense Project.
“After disasters like Katrina, there is a lot of construction going on — rebuilding, repairs, and remodels, and a lot of exploitation as well. Texas is a uniquely bad state for construction workers in terms of conditions,” Delp said. “That is compounded with a disaster like Harvey, when we know, in other contexts, that this has led to exploitation on an unprecedented scale.”
“After disasters like Katrina, there is a lot of construction going on — rebuilding, repairs, and remodels, and a lot of exploitation as well.”
Studies after Hurricane Katrina found that wage theft and unhealthy working conditions were rampant and that undocumented workers were particularly vulnerable. A 2006 study from the New Orleans Workers Center for Racial Justice found that 61 percent of surveyed workers had experienced workplace abuses such as wage theft and health and safety violations. A similar 2009 studyby the University of California, Berkeley found that there were concerning differences in conditions for undocumented versus documented workers. Thirty-seven percent of undocumented workers said they were told they might be exposed to mold and asbestos, while 67 percent of documented workers reported they had been informed. Only 20 percent of undocumented workers said they were paid time and a half when they worked overtime.
Delp said that there are “good honest contractors” in the state, but he is concerned about “fly-by-night” contractors who will eschew safety measures to get things done cheaply and quickly.
Sasha Legette of the Houston Business Liaison works alongside community partners and policymakers, including the mayor’s office, to ensure better wage and safety conditions for workers. So far, she said that she has been impressed with Mayor Sylvester Turner’s response to the disaster. But she hopes the state doesn’t rush it in a way that could harm workers.
“We know that the water and flooding has created a very toxic environment and what we don’t want to see happen is that workers or that the city is so eager to rebuild that the safety of those who are going to do that work is not taken under consideration,” Legette said.
“They can identify hazards and prevent the need for OSHA to have to enforce after the fact,” Goldstein-Gelb said.
Sharon Block, executive director of Harvard University’s Labor and Worklife Program and former principal deputy assistant secretary for policy at the U.S. Department of Labor, said she is concerned about the administration’s potential response to the recent disasters.
Often, OSHA will begin with “compliance assistance mode,” which means they will help employers comply with rules, and then will eventually move to enforcement mode. But the Bush administration never moved into enforcement mode after Katrina, and she worries that the Trump administration could do the same.
Block is also worried about whether there are enough resources at the agency. In addition to the proposed cuts and business-friendly approach of the administration, there is no OSHA chief.
“They don’t have real leadership in the agency,” Block said. “So having watched Sandy and the Gulf oil spill, these sort of unexpected disaster responses, even for an agency like OSHA, it’s really complicated and it’s really resource intensive.”
“Based on their level of staffing and resources and everything else about their approach on worker protection issues, I’d be worried about how workers post-Harvey and post-Irma are going to be effective.”
“There is a lot at risk,” Block added. “Based on their level of staffing and resources and everything else about their approach on worker protection issues, I’d be worried about how workers post-Harvey and post-Irma are going to be effective.”
There are some potential downsides to not having an OSHA chief at a time like this, such as getting assistance from FEMA to do work on the ground to address workers’ health and safety needs, said Barab.
“A lot of the activity around these national disasters involves agencies working together,” Barab said. “It requires agencies having frank and candid conversations, [such as] getting FEMA to be more accommodating to the health needs of workers. It always helps to have a higher level person doing that.”
In order to get OSHA staff to hurricane-affected areas in Texas or Florida, OSHA would have to transfer some compliance and enforcement staff there temporarily. But this is expensive and the agency has been chronically underfunded. To reimburse the expenses of doing this, FEMA can provide supplemental assistance, Barab explained, but the state must request this and, on top of that, the state has to contribute 25 percent of the funding.
“To pony up about 25 percent of cost — we haven’t seen a lot of states willing do that. I am not optimistic about Texas and I don’t see them wanting to spend money to get more OSHA enforcement there,” Barab said. “FEMA has the ability to waive that requirement, but they generally don’t, and didn’t, in fact, after [Hurricane] Sandy.”
One of the other challenges facing OSHA will be outreach to undocumented workers who may be concerned about reporting safety and wage violations. Barab said the government needs to send a message that the U.S. Immigration and Customs Enforcement (ICE) agency will not be involved if workers want to report violations. But because many workers will feel uncomfortable going to a government official in any situation, OSHA needs to maintain relationships with local nonprofits.
“We already had pre-existing relationships with nonprofits that were continuing to train immigrants and day workers during [Hurricane] Sandy,” Barab said. “In terms of being able to reach out to OSHA, the nonprofits had a relationship with these workers and other groups had relationship with OSHA.”
Marianela Acuña Arreaza, executive director of Fe y Justicia Worker Center in Houston, an organization that helps low-wage workers learn about their rights and organizes workers, said the group has been through post-disaster health and safety trainings and has a healthy relationship with the local OSHA office. The center is educating workers on what kind of respirators to use if they’re working in a structure that has mold, for example, while also keeping an eye on any worker safety and wage violations. The center has also benefited as subgrantee from the Susan Harwood program for the last five years.
“Undocumented workers specifically fear retaliation in terms of losing a job or an employer calling ICE on them, and that happens a lot. It is definitely a barrier for people to come forward,” Acuña Arreaza said. “Even other immigrants who have other statuses — some of the fears are similar because they are still worried about losing their job or having their employer retaliate.”
“We try to repeat that and and say, ‘No, you have rights.’ And people start getting it after we repeat it enough.”
By having a staff of mostly immigrants, she said the organization has created an environment where undocumented workers would feel comfortable, never asking workers about immigration status, and working with other nonprofits and local churches to encourage people to come in.
“We try to repeat that and and say, ‘No, you have rights.’ And people start getting it after we repeat it enough,” Acuña Arreaza said. “But there is a huge disconnect that comes from documentation but also comes from not being able to speak English or fully speak English, other cultural barriers, and racism. Lacking papers does not help, but there is this layered separation from justice in the system of worker rights.”
This article was originally published at ThinkProgress on September 11, 2017. Reprinted with permission.
About the Author: Casey Quinlan is a policy reporter at ThinkProgress. She covers economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.
This morning Attorney General Jeff Sessions announced that the Trump administration will “wind down,” and in six months, end Deferred Action for Childhood Arrivals (DACA), a Department of Homeland Security initiative put in place in 2012 that temporarily deferred the deportation of approximately 800,000 young immigrants who were brought to the United States as children. DACA has been an unqualified success and has benefited not only the DACA recipients themselves, but also the country and the economy.
The young immigrants who met the requirements and passed the necessary background checks for DACA were promised by the federal government that they would not be removed from the United States for two years at a time, as long as they kept applying to renew, kept a clean criminal record, and were either enrolled in school or graduated, or serving in the military or honorably discharged. Because of these requirements, we know that nearly all of the recipients are deeply integrated into their local American communities and labor markets.
Along with protection from removal, DACA recipients are entitled to receive an employment authorization document (EAD), allowing them to be employed in the United States legally, along with certain other benefits. More than 100 legal experts and 20 state attorneys general have recently argued that DACA is a lawful use of the executive branch’s prosecutorial discretion, and as I have written before, the granting of an EAD to deferred action recipients is clearly authorized by statute. Together this means that eliminating DACA is entirely a political decision and not a legal one. The impact of this political decision is significant: 800,000 young immigrants—many of whom have never known another country except when they were small children—will become instantly deportable and lose the ability to work legally and contribute to the United States, and will be effectively left without labor rights and employment law protections in the workplace.
To call this decision tragic is an understatement. Not only is it inhumane—after President Trump promised to treat DACA recipients with “heart”—but the evidence is clear that DACA has positively benefited the U.S. labor market. The vast majority of DACA recipients are employed, 87 percent, and on average DACA recipients saw their wages increase by 42 percent after receiving an EAD. Those gains—and the higher tax revenue to the federal and state and local governments that have accompanied it and benefited public coffers—are now in jeopardy.
President Trump has also repeatedly voiced his desire to help improve working conditions for American workers, but by ending DACA he is harming the U.S. citizens and lawful permanent residents who are employed alongside DACA recipients. Once DACA recipients lose their work authorization, they will effectively be unable to complain when they are paid below the minimum wage, aren’t paid for overtime hours, or when their employer subjects them to unsafe conditions at the workplace. All immigrant workers who are unauthorized are often too afraid to speak out when employers take advantage of them, because they know their bosses can threaten them with deportation and use their immigration status to retaliate against them. The impact of this is not theoretical: research has shown that unauthorized immigrants suffer much higher rates of wage theft than U.S. citizens. The reasonable fear unauthorized workers feel keeps them docile and quiet, which in turn diminishes the bargaining power of Americans who work alongside unauthorized workers. Ending DACA and forcing these young workers out of the formal, regulated labor market, thus making them easily exploitable, will not help American workers, it will do the opposite.
Ending DACA will destroy the educational and employment prospects of 800,000 young immigrants who did nothing wrong, while at the same time hurting the wages and labor standards of American workers. If President Trump were serious about improving labor standards for working people, he would reconsider and reverse his decision.
This blog originally appeared at In These Times on September 5, 2017. Reprinted with permission.
About the Author: Daniel Costa has been director of immigration law and policy research since 2013, having joined EPI in 2010 as an immigration policy analyst. An attorney, his current areas of research include a wide range of labor migration issues, including the management of temporary foreign worker programs, both high- and less-skilled migration, immigrant workers’ rights, and forced migration, including refugee and asylum issues and the global migration crisis.
A transgender woman is suing McDonald’s and the owner of the franchised restaurant she worked for after allegedly experiencing sexual harassment and discrimination.
La’Ray Reed said a coworker asked if she were a “boy or girl,” “top or bottom,” or what her “role” was “in the bedroom.” She said she was groped and spied on while using the public toilet.
But for Reed to hold McDonald’s responsible for her alleged mistreatment, her lawyers have to prove that McDonald’s should be held responsible as a joint employer—not just the owners of the franchised restaurant. There is a question of whether the Labor Department’s recent decision to rescind the standard for determining who is a joint employer will hinder her ability to seek justice. The Obama administration’s standard went beyond simply looking at who sets wages and hires people, and considered a worker’s “economic dependency” on the business.
McDonald’s has resisted this legal responsibility for many years, and says it does not have control over things like pay and working conditions at franchised restaurants. In 2016, McDonald’s settled a wage-theft class action through a $3.75 million payment that allowed it to dodge responsibility. McDonald’s released a statement that said it “reconfirms that it is not the employer of or responsible for employees of its independent franchisees.”
Industry groups have been pushing against efforts to call businesses like McDonald’s joint employers for many years now. In 2015, Matt Haller, a lobbyist at the International Franchise Association called a 2015 National Labor Relations Board ruling on whether a recycling company could be called a joint employer, “a knife-to-the throat issue for the franchise model.” He told the Washington Post, “You’d be hard pressed to find a business that shouldn’t be concerned about the impact of this joint employer standard.” Haller said IFA was “pleased” at the department’s decision to rescind guidance this month.
But there is certainly hope for La’Ray Reed, and other workers like her who are experiencing discrimination or issues such as wage theft at work. Since the joint employer guidance does not have the full force of law, it is not as important to these cases as existing tests for determining if an employer relationship exists. Under the economic realities test, applied under Title VII of the Civil Rights Act of 1964 and the Fair Labor Standards Act, among other laws, a relationship exists if someone is economically dependent on that business. Paul Secunda, professor of law at Marquette University, who teaches on employment discrimination law, said this test will play a much bigger role in determining whether an employee can hold McDonald’s responsible for discrimination.
“Just the Trump administration withdrawing this guidance does not mean in any way that these claims are doomed to failure or are otherwise are not plausible,” Secunda said. “Because what matters the most with employment law is focusing on employment discrimination under Title VII and what other state laws apply there.”
‘This control standard is the standard that has been in place since the 1950s and ‘60s, and so it doesn’t make sense to have different standards under different laws. It only makes sense to hold liable those who control what happens in the workplace,” Secunda added.
Representatives of Fight for $15, a group of fast food workers, teachers, and adjunct professors advocating for better pay backed by the Service Employees International Union, said McDonald’s has failed to enforce its own policies.
“The growing number of allegations suggests a failure by McDonald’s to enforce the zero-tolerance policy against sexual harassment outlined in its Operations and Training and Policies for Franchisees manuals,” the labor group told BuzzFeed.
“There are terms and conditions that are set by the national parent McDonald’s,” Secunda said. “It has a policy on sexual harassment and equal opportunity that all its franchisees have to meet: that it will not tolerate sexual harassment whether based on transgender status or otherwise in the workplace. [The argument is] that McDonald’s parent company exercises meaningful control—that is being free from sexual harassment and demeaning conduct in the workplace.”
None of this means that any parent corporation is responsible for any franchisees’ lability, Secunda said, since every case must be decided on its facts, but where employers do exercise meaningful control over employees, there should be a possibility that they will be held responsible.
The decision to rescind this joint-employer guidance will by no means kill any possibility of holding a corporation, such as McDonald’s, responsible, and a judge would be more likely to consider the rule of law first, Secunda said, but the joint employer guidance would still be a helpful resource for the defendant to have in its arsenal.
“If I were a conservative jurist who wanted it to come out on the corporate conservative side of the world, I see that they could use this. ‘You know they’re the expert agency, so they can’t be wrong,’” Secunda said. “But I just think that would be disingenuous, because the agency has obviously changed its position based on the politics on the administration. And this should be an answer that has nothing to do with politics. It should be based on rule of law.”
This blog was originally published at ThinkProgress on June 22, 2017. Reprinted with permission.
About the Author: Casey Quinlan is a journalist covering education, investments, politics, crime, and LGBT issues.
Here’s a kind of theft almost no one goes to prison for. When an employer doesn’t pay workers the money they’ve earned, it has the same effect as if they got paid and then walked out on the street and had their pockets picked. But somehow wage theft—not paying workers the minimum wage for the hours they’ve worked, stealing tips, not paying overtime, and other ways of not paying workers what they’ve earned—doesn’t get treated as the crime it truly is. It has a huge impact, though, as a new study from the Economic Policy Institute shows. The EPI looked at just one form of wage theft: paying below minimum wage. Just that one type of violation steals billions of dollars out of workers’ paychecks:
In the 10 most populous states in the country, each year 2.4 million workers covered by state or federal minimum wage laws report being paid less than the applicable minimum wage in their state—approximately 17 percent of the eligible low-wage workforce.
The total underpayment of wages to these workers amounts to over $8 billion annually. If the findings for these states are representative for the rest of the country, they suggest that the total wages stolen from workers due to minimum wage violations exceeds $15 billion each year.
Workers suffering minimum wage violations are underpaid an average of $64 per week, nearly one-quarter of their weekly earnings. This means that a victim who works year-round is losing, on average, $3,300 per year and receiving only $10,500 in annual wages. […]
In the 10 most populous states, workers are most likely to be paid less than the minimum wage in Florida (7.3 percent), Ohio (5.5 percent), and New York (5.0 percent). However, the severity of underpayment is the worst in Pennsylvania and Texas, where the average victim of a minimum wage violation is cheated out of over 30 percent of earned pay.
Young workers, women, immigrants, and people of color are disproportionately affected because they’re overrepresented in low-wage jobs to begin with. This wage theft is keeping people in poverty—the poverty rate among workers paid less than the minimum wage in this study was 21 percent, and would have dropped to 15 percent if they’d been paid minimum wage. If their bosses had followed the law, in other words.
The wage thieves rarely face penalties for stealing, and when they do:
Employers found to have illegally underpaid an employee are usually required only to pay back a portion of the stolen wages—not even the full amount owed, much less a penalty for violating the law.
The law basically gives employers permission to steal from workers, in other words. And it sure won’t be getting better under Donald Trump.
This blog originally appeared at DailyKos.com on May 12, 2017. Reprinted with permission.
About the Author: Laura Clawson has been a Daily Kos contributing editor since December 2006 and labor editor since 2011.
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