Over the last several sessions of the legislature, advocates for low wage workers have had extraordinary success in expanding the legal rights of workers, having passed paid sick leave, fair scheduling, a substantial increase in the minimum wage, paid family and medical leave and stronger discrimination protections. These successes are remarkable, and a credit to legislative and grass roots champions alike. We are leaders in the country in establishing workers’ rights.
It has, however, been far more challenging to create effective remedies to enforce these, and other, longer established, workers’ rights. Partly, this is because the business lobbies have vehemently opposed creating effective private rights of action to put enforcement in the hands of workers, themselves. Too often, the legislature has acceded to this pressure. But even where workers have a right to take employers who violate rights to court, they face enormous difficulty in doing so. We haven’t nearly enough lawyers who are willing and able to take on these cases, and employers are often choosing to organize themselves in ways that make actual collection of damages very difficult. This, in turn, makes it even harder to get a lawyer to take one’s case.
When unable to bring their own enforcement actions, workers must rely on help from public enforcement agencies that are woefully underfunded. For example, if BOLI’s enforcement resources were doubled, this would only put the agency at about the firepower it enjoyed in the 1993-95 biennium, the earliest year for which data is available. (Even BOLI’s 1993-95 staffing level was not the high water mark for the state’s wage enforcement capacity: Over a decade of budget cuts had already pummeled the agency. In 1981, 30 employees were cut from the bureau, and in the 1991-93 biennium, lawmakers let go 20 percent of the agency’s remaining staff.) In the years since, BOLI has been charged with enforcing important new laws mandating licensing labor contractors in construction and janitorial industries, pay equity, sick leave and fair scheduling, with no corresponding increase in enforcement resources. This has forced BOLI to limit the kinds of claims it is able to process. See www.ocpp.org/2019/03/28/boli-capacity-fight-wage-theft-eroded/.
Further, at the federal level the rapidly expanding use of forced arbitration and class action bans also is interfering with the ability of workers to receive the benefits of legal rights enshrined in the law. An employer need only stick fine print in its employment application that submits any disputes to forced arbitration, and forbids participation in a class or collective action. Workers often do not even see these provisions, or, because they desperately need work, ignore them. In recent years the United States Supreme Court has virtually closed the courthouse doors to workers’ claims that are subject to such provisions. A recent national study found that 24 million private-sector non-union workers in the United States earning less than $13 per hour were subject to forced arbitration in 2019. Forced arbitration allowed employers to steal $12.6 billion in wages from private-sector non-union workers earning less than $13 an hour who are subject to forced arbitration. See www.nelp.org/publication/forced-arbitration-cost-workers-in-low-paid-jobs-12-6-billion-in-stolen-wages-in-2019/.
Low wage workers find themselves at a crisis point in terms of being able to enforce rights enacted to protect them. In the end, “rights” without remedies are a cruel hoax; they are not real rights at all. At NWJP, we focus on achieving what we’ve begun to call “lived” justice. Lived justice happens when workers actually experience a remedy for the unfairness they encounter in the workplace. In the place of hollow, theoretical, rights, lived justice contemplates the availability of real, tangible, accessible and effective remedies to enforce those rights.
The mechanics of how to overcome obstacles to workers finding a remedy aren’t as flashy as carving out whole new protections, and can get a little wonky. But if workers are to truly benefit from the rights they have, or new rights we can create—if they are to live that justice—we all must give more attention to ensuring that adequate remedies are available to them.