The Individual or the System: Subnational Labor Standards Enforcement in the US

• In Event: Making Workers’ Rights Real: Labor Policy, Power, and Politics

Abstract

After years of skepticism about subnational policy change, those seeking to affect labor policy change have dramatically shifted their attention and energy to states and localities across the U.S. Changes at the local and state level have succeeded in raising state and local minimum wages, expanding paid sick leave, penalizing wage theft, promoting fair chance employment for ex-offenders and beginning to rein in business’ deployment of erratic scheduling practices. However, as important as the shift in labor policy at the subnational level is—as with any kind of policy change—the potential for these changes to fulfill their purpose to improve conditions and bolster workers’ rights is contingent on a crucial, but often overlooked, mechanism: enforcement.

This study presents findings from original data collection with over 50 state and local labor standards enforcement officials and argues that labor standards enforcement in the U.S. is best characterized as an approach to labor market regulation that varies between two poles: (1) individualized; and (2) systemic. An individualized regulatory approach conceives of each individual case—or worker complaint—as an isolated and idiosyncratic incident. In this view, each worker complaint is handled as a separate transaction that takes place solely between the worker and the enforcement official and yields no other regulatory actions beyond opening and closing the particular case at hand. Regulation exists to address each isolated individual’s unique experience rather than to reshape the systemic power imbalance between workers and employers that is at the root of labor law violations. Such an approach contrasts sharply with systemic regulation. Systemic regulation locates the power asymmetry between workers and employers as a central cause of labor law violations (Piore and Schrank 2018, Vosko et al, 2019). A systemic approach to regulation interrogates each case—or worker complaint—as a possible symptom that springs from an underlying cause. Each case, in this view, is not simply an individual complaint, but also represents a potential signal of a broader pattern of labor market power differentials. Strategic enforcement—a form of labor market regulation articulated, developed, and implemented at the federal level by David Weil (2011, 2014, 2018)—hews most closely to a systemic approach to regulation.

Our findings shed light on a largely overlooked aspect of subnational labor policy changes and suggest that labor market regulation policy changes alone are not sufficient to address widespread labor law violations and deteriorating working conditions in the U.S. labor market. As we document, cities and states throughout the U.S. are ill-equipped to effectively enforce the expansive labor policies that are passing in their jurisdictions. This is due to statutory limitations on enforcement, underfunded enforcement regimes, and the individualized regulatory attitudes of officials tasked with enforcing labor laws in cities and states throughout the U.S. As we demonstrate through interviews and surveys with enforcement officials, there is significant resistance to systemic workplace regulation—the approaches seen in strategic enforcement at the federal level—while individualized notions of regulation—such as processes, practices, and attitudes that reinforce complaint-based approaches to enforcement—are widespread.

Authors

• Janice R Fine, Rutgers University-New Brunswick

• Gregory Lyon, Georgetown University