September 4, 2022
The Role of State Attorneys General in Protecting Workers’ Rights
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 is the sixth piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. You can find additional resources, news, and information about the State Attorney General Project here.
State Attorneys General (AGs) are playing an increasingly visible and important role in relation to workers’ rights. Although historically AGs have not been deeply involved in labor matters, since 2015, AG action in this area has mushroomed: ten states have dedicated labor units of various kinds, several jurisdictions have passed legislation granting state AGs expanded jurisdiction allowing them to address labor violations, and many AGs have brought cases to enforce workers’ basic rights.
As the midterms approach, with AG elections occurring in 30 states plus the District of Columbia, it is important to understand not only what AGs do in general, but also what they are doing and can do to protect our country’s workers.
Role of AGs
AGs are the top legal officers in their states. Offices vary considerably in terms of resources and jurisdiction, but some common elements are generally present. They represent state agencies in court and in appeals. AGs play a public advocacy role, enforcing the law in various ways to protect the people of their states, most commonly in areas like consumer and civil rights. Many AG offices also have criminal jurisdiction: a few are the sole criminal prosecutors in their states, like Delaware and Rhode Island, while most have jurisdiction in specific circumstances, such as in particular types of cases or upon request by a district attorney. AGs also issue opinion letters that provide authoritative guidance. AGs have also increasingly become involved in federal matters, suing the federal government (or weighing in to support it) and submitting comments regarding proposed rules. AGs also often propose or support legislation in their states, working together with state legislators. Finally, AGs are highly visible leaders, and they exercise soft power in various ways: authoring op-eds, issuing reports, and more.
AG Involvement in Workers’ Rights Matters
State AGs have pursued employers for wage theft, misclassifying workers as independent contractors instead of as employees, endangering workers, and otherwise violating core workplace protections. AGs have filed civil lawsuits, brought criminal prosecutions, and achieved settlements that collectively recovered tens of millions of dollars for working people. They’ve freed many thousands of workers from non-compete and no-poach agreements, stopped companies from stealing workers’ tips, and achieved other forms of injunctive relief. And they’ve sued to stop federal rollbacks of workers’ rights. Here are some highlights of AG action in the year since Labor Day 2021 (this list is not exhaustive):
Fighting misclassification of workers as independent contractors instead of as employees: The Illinois AG on Friday sued a construction company for violations of the state’s minimum wage, prevailing wage, and employee classification laws. The DC AG filed several misclassification lawsuits, including a drywall construction contractor (ultimately settled for over $1 million), an electrical contractor, a company (Arise Virtual Solutions) that provides customer service to top corporations like Disney and Airbnb; and Jan-Pro, a national janitorial contractor.
Criminal prosecution: The Virginia AGs office obtained a guilty plea to felony embezzlement charges of a drywall contractor who misclassified workers constructing the state's General Assembly building as independent contractors instead of as employees. The Maryland AG obtained a guilty plea from a labor broker in the office's first criminal labor case; a contractor building a state university forced workers to kick back money to him each week. Washington's AG obtained guilty felony theft pleas from business owners who didn't pay wage to 24 employees of their house cleaning business.
Rhode Island's AG obtained a guilty plea in a case involving a janitorial contractor who failed to pay workers and evaded workers' compensation laws in order to win a public contract on community college campuses. Rhode Island's AG has been active in bringing criminal prosecutions related to wage theft; for example, an employer was charged with $93K of wage theft in a prevailing wages case involving construction on a school. The Rhode Island AG also let the effort to pass a bill strengthening penalties for wage theft testifying in a legislative hearing about the proposal.
In addition, AGs have brought prosecutions related to labor trafficking, including in California (related to operators of adult residential and child care companies) and Pennsylvania (minors working on a car detailing business).
Fighting anti-competitive practices in labor markets: New York’s AG obtained a settlement with two leading title insurance companies to stop using illegal no poach agreements; the settlement also recovered $1.25 million. The Illinois AG reached a settlement with Sodexo in which the company agreed to stop using no-hire clauses. The office also pursued staffing companies for wage suppression and anti-poaching policies.
Washington’s AG has engaged in a multi-year effort to stop illegal use of no-poach agreements by franchise chains; a recently-released independent academic study found a significant impact (advertised wages increased by more than 3.3%) specifically as a result of the AG’s initiative.
Paid sick leave: The New York AG’s office brought a case involving New York City home health aides who’d been denied paid sick leave and overtime pay; this joint case with the New York City Department of Consumer and Worker Protection recovered up to $18 million for 12,000 workers. In another case involving a Long Island laundry, the office recovered $400,000 for workers and getting several reinstated after unlawful terminations. The Massachusetts AG recovered $281,000 from an insulation company for paid sick leave and overtime violations. The DC AG’s office has received American Rescue Plan Act (ARPA) funding to support its paid sick leave enforcement.
Workplace safety at Amazon warehouses: Several state AGs have pursued Amazon for unsafe working conditions. The New York AG’s office has been engaged in litigation against Amazon based on COVID workplace safety; the case has had some ups and downs and is ongoing. The California AG reached a stipulated judgment with Amazon; the AG had filed a complaint alleging that the company failed to notify warehouse workers and local health agencies of COVID-19 case numbers, as required by state law. And Washington’s AG is representing the state Department of Labor and Industries in a case related to ergonomic violations of the state workplace law, resulting in high injuries at Amazon warehouses.
Fighting discrimination and protecting immigrant workers: Many AG offices have focused on protecting immigrant workers. In a landmark case, the Washington AG Office obtained a unanimous federal jury verdict determining that GEO Group, a for-profit prison company, violated state minimum wage laws by paying immigrant detainees as little as $1/day. The company owes workers more than $23 million in back wages and other restitution. The Illinois AG’s Office has pursued temp agencies for race discrimination, and New York’s AG reached a settlement $500K involving sexual harassment of workers in a New York City bar.
Pandemic related cases (other than workplace safety/paid sick leave): The New York AG recovered $2.7 million for hotel workers laid off without sufficient notice under the state’s Worker Adjustment and Retaining Act, and recovered over $2.9 million for hundreds of Marriott workers denied severance pay promised when they were laid off early in the pandemic. The D.C. AG’s office announced the filing of a lawsuit against a company operating supported living facilities for denying health care workers’ wages owed early in the pandemic.
Ensuring labor compliance in emerging industries: The Illinois AG’s office settled a joint employment case with multiple subcontractors who underpaid workers building the production line for Rivian, an electric vehicle company. And Washington’s AG, along with the state labor department, brought an overtime lawsuit against a cannabis retailer. DC’s AG recovered $2.54 million in a settlement with the platform grocery delivery company Instacart, based on its retention of tips customers intended for delivery workers; the case follows a settlement for $2.5 million with DoorDash for similar violations in 2020.
Federal advocacy: Multistate coalitions of state AGs submitted a comment supporting the proposed rescission of a labor department rule that created an overly broad expansion of a religious exemption from anti-discrimination laws for federal contractors, as well as a comment supporting a proposed rule to allow fiduciaries of private-sector employee retirement plans, such as 401(k) plans, to consider environmental, social, and governance (ESG) factors when making investment decisions. A coalition of states filed a brief before the National Labor Relations Board (NLRB) urging adoption of stronger protections against misclassification. Several states filed comments in relation to two Occupational Safety and Health Administration (OSHA) proposed rules: in favor of a heat standard requiring employers to implement preventive measures to curb heat-related risks, and supporting a proposed rule to strengthen reporting of workplace injuries and illness.
Expansion of AG authority to include workers’ rights matters: Many AGs can and have used their common law powers or broad statutory authority to bring cases protecting workers’ rights. In recent years, legislation in some jurisdictions has additionally granted AGs explicit jurisdiction to address labor matters. In 2022, bills in Colorado and Delaware expanded state AG authority in this area. Similar laws facilitating AG involvement in labor matters have previously passed in Connecticut, the District of Columbia, Illinois, and Minnesota.
Issuing Labor Day and other reports: Several state AG offices, including California, D.C., Illinois, and Pennsylvania, have already issued their Annual Labor Day Reports for 2022; those reports provide a broad overview of their office’s recent labor work. In prior years, Massachusetts, New York, and Washington have also issued Annual Labor Day reports; reports may be forthcoming for 2022. The Massachusetts AG office also issued a report about its work in the construction industry, and Minnesota’s AG issued a report following a Task Force on the Economic Security of Women, offering a number of policy proposals.
Not all AG action has been in favor of workers’ rights: In addition to the pro-worker action described above, some AGs have sought to thwart positive developments that would improve people’s working conditions. For example, state AGs in a number of states, led by Arizona and Texas, have filed lawsuits to stop a federal rule increasing pay (to $15/hour) for employees of federal contractors. These cases and others that are similar demonstrate why voters concerned about workers’ rights should pay close attention to state AG races in November.
Why aren’t all AGs involved in enforcing workplace laws? This is a very good question! Enforcing workplace laws can be a part of every AG’s docket, just like enforcing consumer protection laws. While some AGs may be ideologically more oriented toward business, it’s helpful to honest companies when labor laws are enforced; otherwise, law-abiding employers struggle to compete with those who save money by violating the law. Other AGs may hesitate simply because their office hasn’t traditionally done this work, but the time is ripe to reconsider: workplace violations are rampant, and the explosion of forced arbitration blocks ever more workers from access to courts, making public enforcement urgent. Some AGs may worry about stepping on toes of state labor departments, but these agencies may come to welcome the backup; also, in many areas (civil rights, environmental protection, etc.), AGs’ enforcement role overlaps with state agency jurisdiction. Finally, AG offices, like all government agencies, face resource and sometimes jurisdictional constraints, but as outlined in the resources linked below, several AGs have found ways to overcome these, or to help workers even within existing limitations.
Some state AGs have begun to play an increasingly visible and important role in protecting workers’ rights. On Labor Day 2022, it is worth celebrating this growing trend, while also noting the tremendous untapped potential that remains for more AGs to take up these issues in a pro-worker and constructive manner.
For those who want more detailed information about the role of state AGs in protecting workers, various useful resources are available, including law review articles, think tank reports, and even a webinar:
Law review articles:
- Brand, Jennifer. The Role of State Attorneys General in the Enforcement of Labor Laws, National State Attorneys General Program at Columbia Law School (Feb. 2007).
- Flanagan, Jane R. Alt-Enforcers : The Emergence Of State Attorneys General As Workplace Rights Enforcers, 95 -Kent L. Rev.103 (2020).
- Romer Friedman, Peter. Eliot Spitzer Meets Mother Jones: How State Attorneys General Can Enforce State. Wage and Hour Laws, 39 COLUM. J.L. & SOC. PROBS. 495 (2006)
- Gerstein, Terri. State and Local Workers’ Rights Innovations: New Players, New Laws, New Methods of Enforcement, 65 St. Louis U. L.J. 45 (2021).
Think tank reports:
- Gerstein, Terri. How district attorneys and state attorneys general are fighting workplace abuses, Economic Policy Institute and Harvard Labor and Worklife Program, May 17, 2021.
- Gerstein, Terri. Workers’ rights protection and enforcement by state attorneys general, Economic Policy Institute and Harvard Labor and Worklife Program, August 27, 2020.
- Gerstein, Terri and von Wilpert, Marni. State attorneys general can play key roles in protecting workers’ rights, Economic Policy Institute, May 7, 2018.
Terri Gerstein is the director of the State and Local Enforcement Project at the Harvard Labor and Worklife Program, and is a Senior Fellow at the Economic Policy Institute. Previously, she was the Labor Bureau Chief in the New York State Attorney General's Office. She is also an advisor to the ACS State AG Project.