While many politicians have committed to raising wages or combating wage theft and other workplace abuses, on this Labor Day we are living through a time in American jurisprudence that appears hell-bent on degrading the tools that workers rely on to enforce these commitments.
I am not just talking about the Janus ruling by the U.S. Supreme Court, which will weaken public-sector labor unions by forcing them to serve non-members for free.
Another controversial recent decision was the Epic Systems case, which effectively bars non-unionized workers from collective action and forces them to settle disputes through a mandatory arbitration process that’s controlled by the boss.
The Supreme Court deepened the power imbalance that exists between employer and employee, as if threats of retaliation don’t already prevent many workers from enforcing their rights.
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This is especially pertinent to the construction industry, which is America’s fourth largest economic sector and supports about 6.6 million jobs.
In California, one in five construction workers is a victim of some form of wage theft. Generally, this means they were paid off the books, less than promised or not at all. This is about more than workers. Wage theft costs California taxpayers $8.5 billion every year and puts honest businesses at a competitive disadvantage.
Absent a union contract(which only cover about 20 percent of construction workers), a cheated worker’s best hope is some type of collective action or robust government enforcement. The Epic Systems ruling basically took the first option off the table.
To combat abuses such as wage theft, labor laws must be enforced. But only a fraction of victimized workers ever file claims and most wage theft judgments are never collected. The often lengthy and complicated process leads many workers to simply give up fighting a system they see as rigged.
States and municipalities can either accept this reality, or commit themselves to reclaiming the enforcement tools that courts have taken away from workers.
There is some cause for hope.
Last year, California enacted a new law that makes general contractors liable for wage violations by subcontractors on private construction jobs. A new Berkeley ordinance requires building owners and contractors to certify compliance with state wage and hour laws before receiving a certificate of occupancy. A growing number of cities in the South Bay have passed measures that give them authority to revoke the business licenses of employers who don’t pay wage theft judgments. And local prosecutors are increasingly mounting criminal prosecutions against employers who abuse their workers.
While laudable, these efforts are just a start. If federal courts are going to weaken unions and make labor compliance voluntary, it will be up to states and localities to pick up the slack on enforcement.
Ultimately, the Supreme Court’s recent anti-labor activism requires new thinking about laws and compliance tools. We must demand that elected officials invest in the manpower,oversight and policy innovations that are needed to protect what’s left of our paychecks.