Earlier this month, Brooklyn District Attorney Eric Gonzalez announced the conviction of a construction company owner for criminally negligent homicide in relation to a 2018 workplace fatality: A 47-year-old worker was crushed to death when an excavation wall collapsed. The employer had refused to stop construction, even after workers and adjacent property owners warned that the site was unsafe.
Cases like this one are relatively new and, until very recently, infrequent. Our country has long defunded one kind of police—labor enforcers—with devastating consequences for working people. The recent conviction in Brooklyn, though, represents a nascent movement among prosecutors to crack down on workplace exploitation.
There’s been a steady uptick of prosecutors interested in these issues, from Texas to Iowa to Tennessee. Manhattan District Attorney Alvin Bragg last month announced a new worker protection unit (it indicted twin brothers for wage theft a week later). San Diego District Attorney Summer Stephan (a Republican until 2019) started a Workplace Justice Unit, later winning a nonpartisan award for it.
Prosecutors have brought cases against employers for workplace abuses that run the gamut. Cases our own team brought in the New York attorney general’s office, before the current wave of prosecutor action in this area, show the range and scope of workplace misconduct that needs to be addressed. We pursued home health agencies that didn’t pay workers for weeks or months; a Papa John’s franchisee who falsified records to avoid overtime after getting caught by the federal labor department; and a JFK Airport contractor that gave workers perfect-looking paychecks but demanded kickbacks each week. We brought child labor charges involving a 17-year-old whose arm was severed working at a restaurant, and a 14-year-old who was killed on a farm. (Both had been assigned to operate hazardous machinery prohibited for children their age.)
Violations of workers’ rights are rampant. A 2017 study found that minimum wage violations in the 10 most populous states cost 2.4 million workers $8 billion annually, while an earlier study estimated the total cost of wage theft at around $50 billion per year. That far exceeds the $15.3 billion stolen in property crimes (car theft, burglary, theft) in 2017. Nearly 100 workers are killed each week, with even more experiencing work-related amputations and hospitalizations. Employers evade unemployment insurance taxes and workers’ compensation laws by misclassifying workers as independent contractors instead of employees, or by simply omitting workers from tax and insurance forms. And we’ve all been shocked by recent revelations about widespread child labor in dangerous and illegal worksites, from meatpacking plants to auto manufacturers.
Meanwhile, the agencies needed to protect workers’ rights and rein in corporate lawbreaking have been woefully underfunded for years. While President Joe Biden’s proposed 2024 budget includes a big hike for enforcement, it remains to be seen how that proposal will fare in Congress. Until then, here’s the situation: The U.S. Department of Labor’s Wage and Hour Division in 1948 had 1,000 investigators to protect a workforce of 22.6 million; last year there were only 725 investigators to protect a workforce seven times that large (over 160 million). In 2020, it would have taken the Occupational Safety and Health Administration 165 years to inspect each workplace under its jurisdiction just once. OSHA’s 2021 budget amounted to $4.37 to protect each worker.
Compare these numbers with the size of any midsize city’s police department. Colorado Springs has 800 sworn officers. There are far more police officers and staff just for Tampa alone than federal Wage and Hour investigators in the entire country. Whatever one thinks about funding, defunding, or right-sizing the police, it’s indisputable that our workplace enforcement resources are miniscule in light of what we spend on other kinds of policing.
Amid our current paucity of resources for workplace regulators, the involvement of prosecutors in pursuing employer crimes is likely to have a powerful deterrent impact. Whether a sketchy employer follows the law depends in large part on two factors: How likely are they to get caught? And if they get caught, how bad will it be? Criminal prosecution sharply heightens the consequences of detection: Being criminally charged causes reputational harm far greater than that of a civil lawsuit. (No matter how outrageous their violations, most employers don’t think of themselves as criminals.) Prosecution also increases employers’ perception of their chances of being caught: District attorneys publicize their cases, which drives deterrence by making enforcement more visible and salient.
Although some district attorneys may feel that work-related matters belong in civil court, prosecutions related to workplace conduct routinely occur, generally when an employer is harmed. If an employee embezzles from their company, no one questions whether that’s criminal. Similarly, there are routinely prosecutions for unemployment or workers’ compensation claimant fraud. It seems only fair to deploy the criminal justice system against employers when workers are the ones harmed.
Of course, we badly need criminal justice reform in our country; our incarceration rates are way out of whack with the rest of the world’s. Reformers may question the wisdom of expanding the criminal justice system into any new area. Certainly, prosecutors should use their discretion wisely. There are inadvertent mistakes in workplaces, and some violations that don’t merit this approach. But many worker-exploitation cases involve crimes by the powerful against the powerless. Addressing violent crime and the scourge of guns are top priorities for prosecutors nationwide, but to the extent that they are bringing nonviolent economic crime cases, which is a better use of their time: Pursuing wage thieves or someone who’s shoplifted diapers for their kids?
Imagine a world in which workers aren’t cheated by their employers, no construction worker dies in a dangerous trench, and kids aren’t working in factories. A world in which all employers pay their fair share for critical safety net programs like unemployment insurance, and honest companies aren’t stuck competing with bottom-feeders that break every law. We’re a long way from this world. Prosecution alone won’t get us there, but district attorneys can play a big part in making sure the world we do have has fewer lawless employers.
