Jurisprudence

Why a Vote for State Attorney General Is One of the Most Important Ballots to Cast on Tuesday

A Jimmy John's logo hangs outside one of their shops in Washington, D.C., on June 9, 2016
A Jimmy John’s logo hangs outside one of their shops in Washington, D.C., on June 9, 2016
Mladen Antonov/AFP/Getty Images

There are a million reasons to vote on Tuesday, and many of us are intensely focused on the high-profile races for the Senate, the House, and the governors’ mansions. But there’s a lot happening farther down the ballot that will prove incredibly important. One set of races that will potentially have an immediate and direct impact on millions of Americans: races for state attorney general.

If you have a job, or someone you love has a job, this is one more reason to show up and vote.
Progressive state attorneys general are increasingly standing up for people’s rights at work. With contests for these posts in more than 30 states, the results of these elections will determine where there are law enforcement offices that will actually step into the breach created by a Trump administration that has been actively antagonistic to worker’s rights. Just on Thursday, for instance, Trump’s top economic adviser channeled that annoying libertarian kid in 10th-grade history and argued that the federal minimum wage is terrible. The Republican tax cuts, meanwhile, have generally put nickels or nothing in workers’ pockets. The Trump Labor Department’s approach to workers’ rights enforcement can best be described as flaccid: Their most original idea to date is an amnesty program that allows wage violators to avoid damages and penalties.

State AGs, meanwhile, are stepping into the fray, standing up for workers again and again.
A report I co-authored last spring for the Economic Policy Institute highlights some of the actions taken by the handful of state AGs who have emerged as leaders on workers’ rights. The list of their bold strokes is long and has only grown since the report came out: Illinois Attorney General Lisa Madigan sued Jimmy John’s sandwich shops over its outrageous noncompete agreements; Massachusetts Attorney General Maura Healey imposed record-level child labor penalties against one of Burger King’s largest franchisees; D.C. Attorney General Karl Racine filed a lawsuit against a national construction contractor for misclassifying workers. Washington Attorney General Bob Ferguson has obtained settlements with 15 fast food and restaurant companies to stop using no-poach agreements, which prevent workers from moving among locations in the same chain. Then, just a couple of weeks ago, he announced a $525,000 settlement for female farmworkers who have faced sexual harassment.

Some offices have also brought criminal charges in egregious cases. For example, New York’s team (my former office) has obtained more than 40 convictions of employers in a multitude of industries, ranging from government contractors that demanded kickbacks from workers, to a Papa John’s franchisee that created fake records to avoid paying overtime, to a construction company that misclassified employees as independent contractors, to an upstate farm owner whose child labor violations likely played a role in the death of a 14-year-old on the job.

State AGs have also been helping beat back the Trump administration’s attacks on working people, fighting a proposal to let bosses keep workers’ tips; pressing for an overtime threshold that would cover more people; opposing a proposed rollback of workplace injury reporting rules; and suing the federal Labor Department for refusing to disclose information about its new wage thief amnesty program. They’ve also stood up for workers at the Supreme Court by filing amicus briefs in key cases on labor issues.

The aftermath of two such cases, Janus and Epic Systems, further demonstrates why state AGs matter. Because employers can force workers to waive their class-action rights as result of Epic Systems, government enforcement—by officials like state AGs—may currently be our best bet if we want to address wage theft or discrimination not just one person at a time, but throughout an entire workplace. As for Janus, more than a dozen state AGs issued advisories within their states, providing state and municipal agencies with clarity and legal guidance about the meaning of the court’s decision, which by a 5–4 ruling overturned decades of precedent to allow free riding in public sector unions. These advisories helped mitigate the potential harm of the decision, by making clear that it only affected non-union members, and not members themselves.

In the past three years, several offices—including the District of Columbia, Illinois, and Pennsylvania—have created new divisions devoted specifically to protecting workers’ rights. The New Jersey AG’s office, meanwhile, is currently in the process of setting up a new labor and civil rights unit. If more progressive AGs are elected on Tuesday, that number is likely to grow.

What can new progressive state AGs do to help workers once they’re elected? They can explicitly devote staff time to workplace rights, ideally creating a dedicated unit which will focus on protecting workers. State AG offices have widely varying jurisdiction and resources, but they can all take action of some kind. They might investigate minimum wage and overtime violations, take part in criminal prosecutions of extreme or repeat violators, launch antitrust probes against colluding businesses that create a non-competitive labor market, or file lawsuits against companies that misclassify their workers as independent contractors instead of employees. State AGs also have the ability to take on new and emerging workplace issues, like noncompete agreements that cover an increasing number of low- and mid-level workers, unfairly preventing them from moving on to better jobs. And there will surely be plenty to do in opposing the Trump administration’s aggressive rollbacks of workers’ rights.

While progressive attorneys general have been standing up for workers, what have their less progressive counterparts been up to? This week, Florida Attorney General Pam Bondi filed a brief in the state Supreme Court seeking to prevent Miami Beach from proceeding with a local minimum wage increase. She’s on the same page as Arkansas Attorney General Leslie Rutledge, who was issued an ultimatum by her state’s Supreme Court after she tried to block a proposed a ballot initiative to increase the minimum wage. Meanwhile, in Texas, Ken Paxton intervened to join a lawsuit opposing Austin’s paid sick leave law. In 2016, 21 states, led by Paxton and by Nevada Attorney General Adam Laxalt, filed suit, ultimately blocking an Obama-era rule that would have extended overtime protections and directly benefited an estimated 12.5 million people. (Some of the AGs who brought that lawsuit are currently running for governor or the U.S. Senate in their states.)

Ultimately, state AGs are rightly billed as “the people’s lawyers.” A big question of the 2018 election will come down to this: Who do you want your lawyer working to protect? You, or your employer?