April 3, 2020
How State Attorneys General are Protecting Workers During the Coronavirus Pandemic
Director, NYU Wagner Labor Initiative, NYU Robert F. Wagner Graduate School of Public Service; Former Labor Bureau Chief, New York State Attorney General’s Office
(This post was originally published by the Economic Policy Institute)
Attorneys general (AGs) in some states are:
- Protecting nonessential workers from the risks of contracting COVID-19 by enforcing or leading implementation of stay-at-home orders.
- Ensuring that workers who are misclassified as independent contractors can access the unemployment insurance and paid leave they are entitled to.
- Protecting employees from losing unpaid wages.
- Protecting workers seeking safe working conditions.
- Providing clear and accessible public information about workers’ rights and legal protections.
Much of the coverage of state attorneys general work during the coronavirus crisis has focused on consumer protection, but many state AGs—even those without dedicated workers’ rights units—are helping protect workers facing unprecedented challenges.
These efforts come in the midst of a general increase over the past several years in state attorney general activity to enforce labor laws and advocate for workers.
Five years ago, only three state AG offices had dedicated workers’ rights units: California, Massachusetts, and New York. Since then, six other AGs have created workers’ rights units: the AGs of the District of Columbia, Illinois, Michigan, Minnesota, New Jersey, and Pennsylvania. Other state AG offices, even without dedicated bureaus or divisions, have also become more involved in worker issues in recent years. With or without dedicated worker rights units, state AGs have a range of powers that enable them to advance workplace protections.
Workers’ needs during the coronavirus crisis are urgent and stark. Some workers who are not essential are being required to work despite state or local stay-home orders. Other workers who are unquestionably essential are working without adequate protection.
A record number of workers have lost their jobs; among them are workers who have been misclassified as independent contractors and will struggle to get unemployment insurance they’re entitled to. And workers may require enforcement in order to access any legally required paid sick or family leave. On top of these challenges, there is a serious dearth of readily accessible public information about workers’ rights and legal protections, particularly in light of the rapidly changing legal landscape.
Following are examples of how state attorneys general are responding to these challenges.
- Implementing and enforcing stay-at-home orders. Several attorneys general are helping protect workers by implementing and enforcing stay-at-home, quarantine, shelter-in-place, and other similar public health‒related executive orders. For example, Michigan Attorney General Dana Nessel has been particularly active in this area. Her office created a “Know Your Employment Rights” section on its website clarifying which workers are exempt from the state’s stay-at-home order and posted an online video on the subject. Her office also provided guidance to law enforcement (“Suggested Practices for Police and Prosecutors”) in relation to the orders, with a section addressing common issues encountered that include two scenarios of employers that do not fit the guidelines of businesses allowed to stay open under the order. Most recently, her office sent the national retailer JoAnn Fabrics a cease and desist letter based on the office’s conclusion that JoAnn Fabrics retail stores do not constitute an essential business under the state’s stay-at-home order. Her office also sent a cease and desist letter to the home improvement store Menards, based on its business practices that might endanger both customers’ and workers’ health, including marketing and sales designed to increase customer traffic.
New Jersey Attorney General Gurbir Grewal publicly urged the state’s residents and businesses to comply with the governor’s stay-at-home order and publicized recent enforcement actions statewide of alleged violations of the stay-at-home order. He also issued a public warning that businesses or individuals that violate the state’s retail restrictions or stay-at-home order would face consequences: “If you’re a retail store or an entertainment center and you stay open, or if you’re a bar and you keep serving patrons in your establishment, consider this as your final warning.” New York Attorney General Letitia James issued a press release urging employees to file complaints with her office against employers ignoring New York’s executive orders, and circulating contact information for the office.
- Protecting misclassified gig workers. The plight of workers in the so-called gig economy has become increasingly visible in light of the coronavirus; these workers are typically misclassified as independent contractors instead of being treated as direct employees of a business. Because workplace laws, like paid sick leave and unemployment insurance (UI), cover employees and not independent contractors, misclassification often renders these protections difficult or impossible for gig workers to access. Misclassification also means that companies are failing to pay required unemployment insurance taxes which help maintain the solvency of the system. While the recently enacted federal CARES Act created a new Pandemic Unemployment Assistance (PUA) program that will allow some temporary income via the unemployment system for genuine independent contractors, pursuing misclassification is still important because (1) PUA is temporary (expiring December 31, 2020) while regular unemployment insurance is longstanding; (2) PUA is paid by the federal government, thereby allowing misclassifying gig companies to shift their responsibility (UI taxes) to the American people; and (3) virtually all other workplace laws protect employees only.
Massachusetts Attorney General Maura Healey recently filed amicus briefs in support of an emergency motion by Uber and Lyft drivers seeking a determination that they are employees and thus covered by paid sick leave laws during the pandemic, in order to protect themselves and the public. New York Attorney General Letitia James shared news that her office won a case in the state’s highest court regarding access to unemployment insurance benefits for a Postmates worker, previously misclassified as an independent contractor, and other Postmates workers similarly situated.
- Advocating for protections for essential workers. A coalition of 16 attorneys general, led by Wisconsin Attorney General Josh Kaul, sent a letter urging President Trump to fully utilize the Defense Production Act to prioritize production of personal protective equipment (PPE), such as masks, needed by health care workers and first responders across the country, as well as respirators and needed medical equipment.
- Protecting workers’ wages. Minnesota Attorney General Keith Ellison is pursuing the owner of multiple restaurants for allegedly withholding wages and tips owed to workers recently laid off because of the COVID-19 crisis. His office also provided guidance to other workers whose wages may have similarly been withheld. A group of 18 attorneys general urged the Trump Administration and the U.S. Department of Labor to suspend implementation of a new rule making it harder to find up-chain companies (like franchisers) liable for complying with wage and hour laws as joint employers. As a statement from New York AG Letitia James explains, the new rule would make it harder for hourly workers to collect back wages.
- Advocating for paid leave for at-risk workers. A group of 15 attorneys general, led by Massachusetts Attorney General Maura Healey, called on Amazon and Whole Foods to immediately improve paid leave for employees during the emergency. Although the recently-enacted Families First Coronavirus Response Act guaranteed paid leave for some workplaces, it does not apply to employers with 500 or more employees.
- Providing clear and accessible public information. Some state attorney general offices have played an important public education role by providing information on their websites about employee rights and employer obligations. Arizona Attorney General Mark Brnovich issued a press release informing workers of their rights under the state’s paid sick leave law. District of Columbia Attorney General Karl Racine’s office held a tele-town hall about workers' rights. Massachusetts Attorney General Maura Healey posted COVID-19-related guidance for employers and workers, including information about unemployment insurance, paid sick leave, wage payment, and other issues, available in multiple languages. Vermont Attorney General T.J. Donovan issued workplace guidance on COVID-19-related concerns, to help workers and employers navigate a range of issues that arise.
- Protecting workers seeking safe working conditions. New Jersey Attorney General Gurbir Grewal and the state’s securities regulator announced an emergency action allowing New Jersey financial services professionals (who presumably usually work in New York City) to work from home (thereby enabling social distancing) by exempting them from otherwise-applicable state registration and filing requirements. And New York Attorney General Letitia James stated that her office “is considering all legal options” in response to the termination of an Amazon worker who organized a walkout to protest the company’s failure to ensure employee safety in a warehouse where workers had tested positive for COVID-19.
- Protecting laid-off workers from scams. Pennsylvania Attorney General Josh Shapiro issued a press release warning of scams preying on the newly unemployed: fake unemployment websites created with the purpose of stealing personal information or harvesting the data to sell to others.
The above actions are surely only the beginning. In coming weeks, state attorneys general are likely to use their extensive legal authority and considerable soft powers in many additional ways to protect their states’ workers at this unprecedented moment.