An Overview to Creating a Research Base for Government Enforcement of Workers’ Rights

Co-authored By:

Jenny Montoya Tansey — Policy Director at Public Rights Project

Terri Gerstein — Director of the State and Local Enforcement Project at the Harvard Law School Labor and Worklife Program

Over the last 10 years, states and cities have been the site of considerable policy wins for workers. Twenty-six states, 48 cities, and the District of Columbia have passed new minimum wage laws or minimum wage increases since 2014. Fifteen states and 22 cities have enacted laws guaranteeing paid sick days, including policies specifically designed to help prevent COVID-19 outbreaks during the pandemic. A record 36 states and over 150 cities and counties have enacted “ban the box” laws to reduce barriers to employment for people with criminal records.

These policy wins are often accompanied by the creation of, or increase in resources for, enforcement agencies. And many agencies have been creative and aggressive about taking action to protect workers’ rights. At the same time, however, there is limited research regarding what enforcement approaches actually lead to increased employer compliance, either with these new laws or existing worker protection laws on pay, discrimination, workplace safety, or other matters.

More targeted research would help enforcement agencies ensure that workplace laws, both new and long-established, meaningfully benefit the workers they were intended to help, especially the most vulnerable. Research could inform enforcement agencies about the best ways to leverage their limited resources to have the greatest impact and more effectively address widespread violations of the most basic worker protection laws.

For advocates who are putting a lot of focus on the creation of new laws, ask yourself this question: With so many organizing and political resources marshalled to put pro-worker policies in place, how do we make sure that changes in the law actually change industry behavior and translate to concrete benefits for people?

To address these questions, the Public Rights Project and the State and Local Enforcement Project at the Harvard Labor and Worklife Program brought together researchers, advocates, and government enforcers from across the United States in November 2020, with follow-up meetings in December and January, to discuss research questions on workers’ rights enforcement through a virtual convening. Along with 62 researchers and government partners, we held a conversation around new and existing research on workers’ rights enforcement. Our goals were to:

• identify relevant research questions and potential projects
• deepen existing relationships
• connect potential collaborators, including researchers and government agency officials
• develop follow-up plans for future research projects
• build a stronger research foundation to tackle these issues

In preparation for the convening, we conducted a review of existing literature on government enforcement’s impact on industry compliance. Although the review does not contain all relevant research, we identified 96 studies about government enforcement, including workers’ rights enforcement and enforcement of other law areas, like environmental protection, food safety, or predatory lending. Examining the literature as a whole, we grouped the studies into themes: studies that addressed target identification, measurement of impact of various enforcement tools, enforcement mechanisms in laws, and co-enforcement. A few gaps in the literature stood out to us: of those 96 studies, just three touched on local government enforcement, and only eight examined the impact of non-governmental litigation, mostly in the employment discrimination context. No studies in our literature review looked at the impact of government litigation. Above all, only a handful of studies contained clear findings about government enforcement’s impact on industry compliance, which we view as the ultimate goal of enforcement work.

During the Initial Convening

At the convening, researchers, advocates, and government enforcers broke out into groups to discuss the following topics:

• Target selection: How can research help government agencies make more strategic, data-informed decisions about enforcement targets?
• Comparative corporate enforcement: What lessons can we learn from research on enforcement against corporations in other contexts, including environmental protection, consumer protection, and housing?
• Tool choice: What can research tell us about the relative strengths and weaknesses and potential impacts of administrative, criminal, civil, or private enforcement in terms of shifting industry behavior?
• Policy frameworks: How can research inform the enforcement mechanisms built into new policies?
• Communications and outreach: How do employers and workers find out what the law is, and when it changes? How do employers make decisions about compliance, and what influences those decisions? How do workers make decisions about how to respond to problems at work? How can enforcement work be responsive to research about the experiences of employers and workers?
• Beyond Enforcement: What can research tell us about what other changes, in addition to more effective enforcement (for example, building worker power) are needed to close the gap on employer compliance? How do we think about those other components in relationship to enforcement?

At the end of the initial convening, we asked participants to report out and assess what they saw as the most compelling research opportunities, key barriers, and next steps. The full report out is here. The two areas identified as most pressing for future research were:

• Research on the best ways to reach workers, especially in industries or communities with few worker complaints, but which we believe have high rates of workers rights violations based on other measures
• Assessing the impact and effectiveness of various enforcement approaches, including criminal prosecution; civil lawsuits; administrative enforcement; transparency and public disclosure (including adverse media coverage); consequences for government contracting, licenses, permits, etc.; and “carrot” types of positive reinforcement

We then organized follow-up meetings to explore those two research topics in greater detail, plus a third meeting to provide open space to talk through other research questions.

Follow Up Meeting on Worker Outreach Research

At the worker outreach follow-up meeting, participants brainstormed which outreach channels and messages they would prioritize testing, to better understand how government and its community partners should conduct outreach to hear from the workers who are experiencing the most violations. The group agreed that defining the goal of outreach will be necessary for evaluating the effectiveness of channels and messages. For example, if the goal of outreach is to increase the number of worker complaints from a historically low complaint/high violation industry, the metric of success might be the increase in complaints received from those workers. However, if the goal of outreach is building worker power in those industries, that metric would not fully capture whether the effort had been successful.

The top channels that the group identified as priorities for efficacy-related research were:

• Community meetings
• Online/virtual outreach channels piloted by necessity during the pandemic include phone calls, texting workers, Facebook, and online event invites
• Free legal clinics
• Government agency complaint apps
• Using a community health worker model in immigrant worker communities as a conduit for outreach

The top questions that the group identified as of interest for messaging research and testing were:

• What is the impact of messages informing workers of their rights and offering the opportunity to complain via text?
• Which messaging approach is more impactful: “File a complaint” or “Help us understand what workers in your industry are going through.”
• What messenger is best for conveying the message to workers: government, community-based organization, worker center, union, elected official, media, etc.?

We also spent some time identifying the key barriers that prevent workers from complaining. Ideally, effective outreach strategies would be paired with policy, legal, and process work to reduce those barriers. The barriers that we identified included:

• Fear of retaliation
• Language barriers
• When workers get to the point of considering complaining, they need a quick solution, and believe (perhaps rightly) that the government can’t give them a solution on the time frame they need

Follow Up Meeting on Enforcement Approaches, or Tool Choice

At our meeting on tool choice, we explored ideas for research on the impact of different enforcement tools and approaches. The questions participants identified as most pressing included:

• In terms of both general and specific deterrence, is it most effective to go after the big name in a problem industry, or a smaller player?
• Does criminal prosecution have a greater or different impact on labor violations than civil enforcement?
• How effective is worker-led enforcement, such as peer navigator programs that help workers get screened, file claims, and see the cases through to fruition? Do such programs effectively reach more workers, and are they more likely to complete their cases than without it?
• What are the different impacts of slow escalation (first a letter, then further action) versus making a more aggressive move at the outset?
• The deterrent effect of completed court cases vs. formal findings vs. settlements

To understand the impact of different enforcement methods on industry compliance, it is necessary to have data showing how prevalent violations are. Complaint or other enforcement numbers are an imperfect measure of compliance because they only show the violations workers have spoken up about, not the total violations that workers are experiencing. The availability of data that can help us understand industry compliance varies by the type of harm. Participants discussed existing data that could help evaluate enforcement tools and data that perhaps doesn’t exist yet, but that could or should exist.

Existing data:

• Employer tax information (both regular taxes and unemployment insurance) provides a great deal of information about pay practices (even though it’s often an understatement). However, it’s hard for researchers to get access to this information because of confidentiality.
• Enforcement data from agencies
• Wage surveys
• Complaints to wage and hour enforcers
• DOL enforcement data
• Enforcement case data sets; for example, the MA AG’s office Fair Labor Division posts all complaints received
• The OSHA data used in Duke Professor Matthew Johnson’s paper, “Regulation by Shaming”

Data that could or should exist:

• Broad employer data (number of employees, gross receipts, overhead, taxes, etc.) obtained by conditioning business licenses/renewals on providing this information.
• Large-scale worker surveys in different industries
• Aggregated state-level government agency enforcement records — in a single place with consistent coding
• State court case filings and outcome data
• More reliable federal court case filing and outcome data

Common Threads

Some themes that repeatedly emerged include the following:

1. What are effective ways of reaching workers and how can this be measured?

• How can agencies use social media (including testing different media and messages) effectively for various goals? Facebook, Craigslist, etc.
• How effective is the use of texting programs to reach workers?

2. Target selection: how to be strategic in selecting employers to pursue civilly or criminally?

• Are there differences between small and large businesses in regard to compliance?
• How does reputational risk come into play?
• How to use data to identify high violation industries / likely violating employers?

3. Effectiveness of worker protection legislation:

• Why is some legislation effective?
• What measures actually reduce employer retaliation, fear of which is major impediment to complaints?

4. How to get information about worker experiences?

• One academic noted that state enforcement agencies can conduct their own worker surveys, with workers signing up online to take surveys. This method seems not to have been widely used to date.

5. How to measure effectiveness of different approaches, including compliance assistance, worker education, civil enforcement, criminal prosecution, quick touch (letters to violators), and a reward model (carrot instead of stick: report cards, tax incentives, preference in contracting).

• How to design experiments?
• Are different approaches more effective with different types of employers? (small versus large, new versus long standing, etc.) With different laws? (are they more likely to comply with paid sick leave versus wage and hour?)
• What’s the right allocation of funding between enforcement and other approaches?

What’s Next?

Public Rights Project and the State and Local Enforcement Project at the Harvard Labor and Worklife Program hope to help continue these conversations in 2021 with the goal of catalyzing research projects on some of the priority topics identified in this set of meetings. Some initial next steps include identifying researchers interested in studying these topics (academics or students, as well as researchers from think tanks or advocacy groups) and identifying state or local labor enforcement agencies, lawyers, or advocacy groups who would consider collaborating with researchers on potential projects.

If you are interested in getting involved, please feel free to get in touch with us on Twitter @Public_Rights or fill out this form on our website.

Support for this work was provided in part by the Robert Wood Johnson Foundation. The views expressed here do not necessarily reflect the views of the Foundation. You can learn more at https://www.rwjf.org/.