Jurisprudence

Newly Elected Democratic Governors and Legislatures Should Enact These Labor Initiatives Right Away

Gretchen Whitmer over a blue wave of water
Michigan Gov.-elect Gretchen Whitmer.
Photo illustration by Slate. Photos by wacomka/Getty Images Plus and Bill Pugliano / Stringer/Getty Images.

The past two years have been brutal for the rights of working people. The Trump Labor Department has rolled back multiple Obama-era protections, like an overtime rule that would have given a pay boost to millions of people and an Obama executive order requiring government contractors to disclose past labor violations. The Supreme Court hasn’t been helpful, either: Last term’s Epic Systems decision allowed employers to prevent their workers from bringing class-action lawsuits, and the Janus decision made it harder for public employees to come together in strong unions. Eye-popping tax breaks haven’t reached workers’ pockets, and rampant discrimination of all kinds has been inflamed and encouraged by national rhetoric.

In the midst of this harrowing landscape, the midterms results provide a glimmer of hope. While the new Democratic House majority contains a number of larger-than-life working-class heroes, it will not find cooperative partners on labor issues in the Republican-controlled Senate or the Trump White House.

Right now, the real opportunity for enacting an affirmative agenda for workers’ rights lies at the state level. Democrats gained majorities in seven state legislative chambers, flipped seven gubernatorial seats, and gained six new trifectas, where both legislative houses and the governor are Democratic. These state-level victories represent a key opportunity for restoring greater fairness in the workplace.

While each state is obviously dealing with its own set of laws, there are five general areas in which all progressive states should take action to protect and expand workers’ rights. Some of them require legislative movement, while others could be done by a governor and executive team.

First, states should raise and enforce basic labor standards. This can be done by increasing the minimum wage, expanding overtime protection, or passing paid family or paid sick leave laws. Many states have already walked this path: 11 states and the District of Columbia have passed paid sick leave laws, and 18 states had higher minimum wages take effect in 2018. Meanwhile, states like Pennsylvania and Washington are currently in the process of revising their overtime rules to cover more people. These standard-raising measures are wildly popular with the public and with voters; a survey last month found that 84 percent of voters support a comprehensive national paid family and medical leave policy, and ballot measures on raising the minimum wage were overwhelmingly approved in a pair of deep-red states, Arkansas and Missouri. States that have already taken the above measures can go further, incorporating new labor standards about fair scheduling or eliminating the lower minimum wage sometimes applicable to tipped workers.

And of course, creating new standards is meaningless for many vulnerable workers unless the laws are effectively enforced—a Politico investigation earlier this year found scarce and insufficient resources devoted to minimum wage enforcement in many states.

Second, states should pass laws to stop companies from evading their obligations to employees by contracting and subcontracting work that used to be done by full-time staff. Former Obama labor official David Weil has called this growing phenomenon the “fissured workplace.” Some jurisdictions, like California and the District of Columbia, have taken on this problem by creating joint liability for higher-level companies that have the power to ensure lawful working conditions. Under a new California law, for example, the Labor Commissioner’s Office recently found a Cheesecake Factory jointly liable for more than $4 million in wage-theft violations by a janitorial subcontractor. States like Massachusetts, New Jersey, and California have adopted a simpler and more effective rule, called the ABC test, for determining when a worker is an employee and not an independent contractor. (Under this test, the default assumption is that a worker is an employee, unless the hiring entity can demonstrate that the worker performs her tasks autonomously, performs work outside the company’s usual business, and is generally engaged in an independent trade that is not the same as that of the company.)

Third, states should expand workers’ ability to organize, collectively bargain, and have a voice on the job. States should expand or return collective-bargaining rights to public employees wherever possible, including to workers who are not technically employed by the state like government-subsidized home-based child care workers. And in the wake of the Supreme Court’s Janus decision allowing public sector employees to free-ride off of their unions, state authorities should enact measures like recent laws in New Jersey and New York that give unions greater opportunity to meet and connect with current and new employees in the workplace.

Fourth, states should use their contracting and licensing powers to pressure companies to obey labor laws. One model could be the Obama-era Fair Pay and Safe Workplaces Executive Order, revoked by President Trump, requiring businesses to disclose labor-law violations when applying for large federal contracts. Whether by legislation or executive order, states could adopt similar requirements or even go further and refuse to contract with or issue licenses to companies with truly egregious, bottom-feeder labor records.

Finally, states should push back against the closure of courthouse doors to working people because of forced arbitration. A recent report by the Economic Policy Institute found that more than half of workers are covered by arbitration clauses, which require them to submit to a secretive process that’s skewed toward employers and hides wrongdoing from the public view. The Supreme Court hasn’t made it easy for states to ensure workers’ access to courts, and federal law strongly favors arbitration. But states can still take some steps to bring the generally secretive nature of arbitration into the light: by requiring disclosure of arbitration policies by government contractors or generally favoring, in contracting decisions, companies that don’t require arbitration, as Washington has done. States can also mandate meaningful and accessible disclosure of employment terms and conditions (including arbitration clauses) upon hire and enable whistleblower lawsuits in order to ensure adequate public enforcement of core workplace rights when workers can’t bring court cases themselves.

States unquestionably have the ability, without federal approval, to make a real difference in working people’s lives. What better way to show what real vision looks like than by taking concrete action to help build a future of shared prosperity and justice for America’s workers?