New York Attorney General's Labor Day Report (2014-2016)

In 2014, the New York Attorney General's Labor Bureau began publishing an annual report on successful efforts to protect New York's working men and women. The reports highlight the breadth and scope of the Labor Bureau's enforcement efforts and its commitment to ensure a safe and equitable workplace for all New Yorkers.

Misclassification

Defining the working relationship between “employees” and “independent contractors” is one of the most troublesome and important issues facing businesses today. Classifying workers as independent contractors allows companies to avoid paying minimum wage, overtime, Social Security and Medicare taxes, unemployment insurance taxes, workers’ compensation premiums, and circumvent federal antidiscrimination laws. Consequently, misclassification denies workers of rightful protections and privileges under state and federal law. Meanwhile, avoiding the payment of certain taxes and wages gives employers a competitive advantage and thus, an economic incentive to misclassify.  Such forces could lead to what has been coined in the wage-and-hour context as a “regulatory race to the bottom.” Lastly, misclassification also causes federal, state and local governments to suffer revenue losses as employers circumvent their tax obligations. 

In an attempt to combat this scourge, states have employed multidisciplinary and multifaceted approaches, including the formation of state task forces, federal-state cooperation and litigation. Here are some examples:

Federal Action

The U.S. Department of Labor’s Misclassification Initiative, launched under Vice President Biden’s Middle Class Task Force, seeks to combat this pervasive issue on a national level and restore crucial employee rights to those denied them. In September 2011, former Secretary of Labor Hilda L. Solis announced a major step forward with the signing of a Memorandum of Understanding (MOU) between the Department and the Internal Revenue Service (IRS). Under this agreement, the agencies will work together and share information to reduce the incidence of misclassification of employees, to help reduce the tax gap, and to improve compliance with federal labor laws.

Additionally, labor commissioners and other agency leaders representing thirty-five states (as of Nov. 2016) have signed MOUs with the Department’s Wage and Hour Division, and in some cases, with its Employee Benefits Security Administration (EBSA), Occupational Safety and Health Administration (OSHA), Office of Federal Contract Compliance Programs (OFCCP), and the Office of the Solicitor. Under the Obama Administration, the U.S. Labor Department actively pursued MOUs with additional states as well.

These MOUs will enable the U.S. Labor Department to share information and to coordinate enforcement efforts with participating states in order to level the playing field for law-abiding employers and to ensure that employees receive the protections to which they are entitled under federal and state law. Employers that misclassify their employees may not be paying the proper overtime compensation, FICA and Unemployment Insurances taxes, or workers' compensation premiums.

Enforcement of State Wage and Hour Laws: A Survey of State Regulators

In 2011, the National State Attorneys General Program at Columbia Law School published a first of its kind report on the enforcement of state wage and hour laws. According to the Executive Summary, authors Jake Meyer and Robert Greenleaf "developed a comprehensive survey on wage and hour enforcement, distributed it to state agencies responsible for such enforcement, and analyzed the responses. Thirty-seven states and the District of Columbia completed at least some portion of the survey. The results are shared here for the purpose of creating an objective depiction of state activity in wage and hour enforcement that we hope will serve as an inspiration and jumping-off point for further research, by the states and others. A major goal of the project was to determine not only the methods and extent of enforcement, but also states’ procedures and abilities to track and share data about their enforcement efforts."

Making Labor Law in Cities and States - Benjamin Sachs

ABSTRACT: The preemption regime grounded in the National Labor Relations Act (NLRA) is understood to preclude state and local innovation in the field of labor law. Yet preemption doctrine has not put an end to state and local labor lawmaking. While preemption has eliminated traditional forms of labor law in cities and states, it has not prevented state and local reconstruction of the NLRA’s rules through what this Article terms “tripartite lawmaking.” The dynamic of tripartite lawmaking occurs when government actions in areas of law unrelated to labor — but of significant interest to employers — are exchanged for private agreements through which unions and employers reorder the rules of union organizing and bargaining. These tripartite political exchanges produce organizing and bargaining rules that are markedly different from the ones the federal statute provides but that are nonetheless fully enforceable as a matter of federal law.

Professor Benjamin I. Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations.

 

 

 

 

The Role of State Attorneys General in the Enforcement of Labor Laws - Jennifer Brand

Published in 2007 by Jennifer Brand, the article presents a detailed plan for state attorneys general to enhance enforcement of state wage and hour laws. Ms. Brand currently serves as the Associate Solicitor of Fair Labor Standards at the U.S. Department of Labor.  She previously served as Labor Bureau Chief for the New York Attorney General's Office. Ms. Brand wrote this article as a Research Scholar for the National State Attorneys General Program at Columbia Law School, on sabbatical from the New York Attorney General's office.  

Pinched by Plastic: The Impact of Payroll Cards on Low-Wage Workers

A 2014 report by the New York Attorney General's Labor Bureau on the use of payroll cards in traditionally low-wage industries.  The report found that although cards provide numerous benefits to both employees and employers, serious problems exist for low-wage workers, employees with limited English proficiency (LEP) and individuals lacking internet access. Problems include information gaps on how to obtain wages, and mounting fees for basic use of the card. The report also found that a growing number of employers require workers to use payroll cards.  

 

National Employment Law Project Fact Sheet on Misclassification

This indispensable fact sheet highlights the ravages of misclassification, both at the federal and state level, by highlighting recent studies conducted by the Congressional Research Service, U.S. Government Accountability Office and state labor task force reports.  Despite the ominous numbers regarding the damage exacted on employees and losses to government coffers, the fact sheet concludes that studies most likely underestimate the accurate scope of the problem because most statistics are derived from state unemployment insurance tax audits, which "rarely identify employers who fail to report any worker payments to state authorities or workers paid completely off-the-books – the 'underground economy' – where misclassification is generally understood to be even more prevalent."

On-Call Scheduling

According to the U.S. Government Accountability Office, there are approximately 2 million workers "on-call" - a practice in which workers, particularly in the retail industry, are requested to call into their place of employment to see if they will be needed for the day's shift. In some cases, employees are asked to remain "on-call" for a particular day and may be summoned to their place of employment to respond to spikes in work-flow. The model has created greater worker instability and unpredictability. For instance, workers who are not required to report to work on a given day are not paid. Those who are asked to come in must often do so in the face of family considerations, such as child care.  

New York Attorney General Eric Schneiderman conducted an investigation into the retail industries use of on-call scheduling and the likelihood that this pervasive practice violates state laws. Under New York Labor Law, for example, call-in pay provisions require that “[a]n employee who by request or permission of the employer reports for work on any day shall be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage.” 12 NYCRR 142-2.3.

In response to letters sent by the Attorneys General, major retailers such as Abercrombie and Fitch, J.Crew and Pier 1 and others agreed to end the practice and amend their scheduling protocols.  

In 2016, seven other states and the District of the Columbia joined New York in issuing joint letters to other major retail chains over their use of on-call scheduling.