Frustrations at Congress over Working Families Flexibility Act

By Michell K. McIntyre, Director of NCL’s Special Project on Wage Theft

Yesterday was another frustrating day in Congress. Not only did the Senate cave with the gun vote, but a troubling bill advanced through the House of Representatives Education and Workforce Committee and will soon land on the House floor for a full vote. This measure passed unanimously along party lines in Committee and will presumably do the same in the full House.

The so-called “Working Families Flexibility Act” (H.R. 1406) is a wolf in sheep’s clothing. It is NOT family friendly nor does it offer workers REAL flexibility in the workplace. The bill looks to change the Fair Labor Standards Act’s (FLSA) overtime section by allowing private sector employers to “offer” employer-controlled compensatory (“comp”) time in place of paid overtime.

Last week, during the bill’s introduction, a parade of majority witnesses were singing the virtues of H.R. 1406, but under questioning it was revealed that those witnesses did not understand what the bill really said – it does not give employees the right nor protection to use their earned comp time when they want; rather it leaves the decision up to employers. It does not allow employees to easily take off to watch their children’s games or recitals nor does it allow them to stay home with a sick child.

What the “Working Families Flexibility Act” offers are empty promises of flexibility at work while doing an end run on the Fair Labor Standards Act.  H.R. 1406 does not assure that the decision to substitute comp time for cash overtime payments will be voluntary. While the bill nominally makes it unlawful for an employer to coerce or intimidate an employee into accepting comp time, it does nothing to prevent an employer from discriminating – in hiring or in the award of overtime –against those employees who choose overtime compensation. Nor does it provide penalties that would deter employers from coercing employees into accepting comp time – a much cheaper alternative for employers than paying overtime wages, which can be one and half or twice the hourly wage.

This bill is an invitation to engage in wage theft. The reality is that employers have a lot more power in the workplace than employees and all too many workers are victimized by “wage theft” because of unscrupulous employers and because the Department of Labor does not have the resources to investigate many of the violations of the wage and hour laws. This bill gives employers another vehicle to exploit their employees.

The FLSA established the 40-hour workweek to limit exploitation of workers and overly long work days and work weeks. . These were hard won victories with NCL in the forefront of these battles. The landmark 1908 case of Muller vs. Oregon establishing the legality of limiting the work-week to 60 hours is a case in point.

The FLSA also encourages employers to hire more staff when workloads increase. Sadly, this odious bill would encourage employers to set the clock back by allowing them to receive the benefits of overtime work at no additional cost. Employers could pay workers nothing at all for overtime when the work is performed, and schedule comp time only at their convenience and not the employee’s convenience.

Employees deserve fair wages, safe working conditions, and more flexible schedules to meet both workplace and family needs. There are far better bills to support. They include the Healthy Families Act (H.R. 1286), Paycheck Fairness Act (H.R. 377), Fair Minimum Wage Act (H.R. 1010), and paid family and medical leave insurance so that all employees will be afforded more equitable, flexible and predictable working conditions. For more information on H.R. 1406 please look at the National Consumers League’s letter to House members and visit the Democratic Ed & Workforce Web site.

NCL PRESS RELEASE: Withdrawal of Proposed Occupational Child Safety Rules for Agriculture Will Endanger Children Working on Farms

For immediate release: April 27, 2012
Contact: Reid Maki, (202) 207-2820, reidm@nclnet.org

Those of us concerned with the safety and welfare of children and teens working in agriculture are deeply disappointed by the Department of Labor’s decision to pull back on its effort to protect kids on farms.  “The all-out campaign of misinformation and distortion about the Department of Labor’s long overdue and important proposal to protect children working on farms will have an impact for years to come,” said Sally Greenberg, NCL’s executive director and a co-chair of the Child Labor Coalition, 28 organizations committed to protecting children from exploitative or dangerous work. 

“Agriculture is by far the most dangerous industry that large numbers of teens are allowed to work in,” said Greenberg. “Nearly 100 kids are killed performing hazardous farm work each year. Many of those kids work for wages. The Department of Labor’s sensible recommendations–based on years of research indicating the jobs in which teen injuries and deaths occur–sought to protect them. Unfortunately, the proposed rules fell victim to misinformation and exaggeration from groups like the National Farm Bureau and others that should know better.”

The reality is that agricultural work for teens is extremely dangerous: 

• Between 1995 and 2002, an estimated 907 youths died on American farms, well over 100 per year. (National Institute of Occupational Safety and Health)  

• Last year, 12 of the 16 children under age 16 who suffered fatal occupational injuries worked in crop production. (Bureau of Labor Statistics)

• Between 1992 and 2000, more than four in 10 work-related fatalities of young workers occurred on farms. 

• Half of the fatalities in agriculture involved youth under age 15.

• Just this past August, Oklahoma teens Tyler Zander and Bryce Gannon, both 17, each lost a leg in a grain auger accident. This accident would have been prevented by the proposed rules.

• For agricultural workers 15 to 17, the risk of fatal injury is four times the risk for young workers in other workplaces, according to DOL’s Bureau of Labor Statistics

In the U.S., children who work on their parent’s farms are exempt from child labor laws. They can perform any task at any age. Other exemptions allow children to work for wages on other farms at the age of 12—and sometimes even younger. DOL’s proposed rules would have restricted youth from working in only the most dangerous tasks, allowing them to perform a wide array of farm jobs. Teens working in 4H or other educational and training programs were exempted under the regulations as well.

“The Department of Labor made every effort to be reasonable and flexible in proposing these safety regulations,” said Reid Maki, NCL’s Director of Social Responsibility and Fair Labor Standards and the coordinator of the Child Labor Coalition. “The rules continued to exempt kids working on their family farms and DOL indicated that the final rules would be expanded to exempt kids working the farms of relatives.”

More than 150 groups supported the proposed child safety rules. A list of those organizations can be found at www.stopchildlabor.org.

“We waited four decades for these badly needed safety updates and now they have been blocked by an overheated and exaggerated campaign of misinformation that trivialized critically-needed safety protections,” added Maki. “We estimate that 50-100 children could lose their lives without the added protections these rules provided.”

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About the National Consumers League

The National Consumers League, founded in 1899, is America’s pioneer consumer organization. Our mission is to protect and promote social and economic justice for consumers and workers in the United States and abroad. For more information, visit www.nclnet.org.

We’ve come a long way, baby. Sort of

By Michell K. McIntyre, Director of NCL’s Special Project on Wage Theft

Today marks the day when the typical woman’s earnings catch up to those of her male counterpart’s from 2011. This year is also the 49th anniversary of the Equal Pay Act, signed into law by President John F. Kennedy in 1963 when women were averaging 56 cents for every dollar men made.

As the saying goes, ‘we’ve come a long way, baby,’ but we have a ways to go. Back in the 1960s, women had few career choices – nurse, teacher, or secretary. As illustrated in Mad Men, women who chose different career paths or tried to reach for more, such as Peggy Olson, were often ridiculed and made painfully aware of how little they were paid or respected in comparison to their male counterparts.

Today, American women are paid 77 cents for every dollar men are paid. This creates a $10,784 yearly wage gap and the numbers for minority women are worse. African-American women are paid only 62 cents and Hispanic women only 54 cents for every dollar paid to a white, non-Hispanic man. These wage gaps result in a loss of $19,575 for African-American women and $23,873 for Hispanic women every year. According to the Department of Labor, the wage gap between men and women translates to a loss of about $380,000 over a woman’s career.

The wage gap is not only a matter of injustice but is a matter of economic stability. According to the National Women’s Law Center, an additional $10,784 per year is enough to:

• Pay the median cost of rent and utilities for a year with over $1,000 to spare or the median mortgage payment and utilities for over ten months
• Feed a household of four for a year and five months with more than $300 to spare
• Pay a year and a half of childcare cost for a four-year-old with over $100 to spare
• Pay for two and a half years of family health insurance premiums in an employer-sponsored health insurance program with over $1,400 to spare

 

According to a Government Accountability Office study, the wage gap persists even when accounting for personal choices, such as work patterns and education. As reported by the National Partnership of Women and Families, working mothers pay a “penalty” for having children while fathers get a bonus. Nationally, women with children are paid 2.5 percent less than women without children, while men with children experience a boost of 2.1 percent over men without children. Education doesn’t seem to even the playing field. According to the National Partnership for Women and Families, women with professional degrees are paid just 67 cents for every dollar paid to men with professional degrees – women with doctoral degrees are paid less than men with master’s degrees and women with master’s degrees are paid less than men with bachelor’s degrees.

Not all hope is lost, in 2009 President Obama signed the Lily Ledbetter Fair Pay Act, the first piece of legislation passed in the new administration. The legislation expanded workers’ rights to sue in a discrimination kind of case, and relaxed the statute of limitations, and restarting the six-month clock every time the worker receives a paycheck. But we need more to protect women and families. The Paycheck Fairness Act was reintroduced in 2011 in the House of Representatives by Congresswoman Rosa DeLauro with 177 co-sponsors (H.R. 1519) and reintroduced in the Senate by Senator Barbara Mikulski with 34 co-sponsors (S.797).

The Paycheck Fairness Act would:

• Prohibit employers from retaliating against workers who discuss salaries with colleagues
• Put gender-based discrimination on equal footing with other forms of wage discrimination – such as race or national origin – and allow women to take legal action for damages
• Require employers to prove that pay differences exist for legitimate job related reasons
• Create a negotiations skills training program for women and girls
• Provide businesses (especially small ones) assistance with equal pay practices
• Enhance the Department of Labor’s and the Equal Employment Opportunity Commission’s ability to investigate and enforce pay discrimination laws

Unfortunately, both bills are sitting in committees and haven’t seen much play over the last few months especially with the campaign season ramping up. Its’ time to urge our lawmakers to due right by America’s women and families and pass the Paycheck Fairness Act.

For more information please visit the National Women’s Law Center, the National Partnership for Women & Families, the Department of Labor and the Equal Employment Opportunity Commission.

DOL considering giving 2 million home care workers basic labor protections

By Michell K. McIntyre, Director of NCL’s Special Project on Wage Theft

It’s amazing. It’s amazing that — during last week’s House Education and Workforce Committee hearing on the proposed Department of Labor’s rules narrowing the definition of “companionship” that would give more than 2 million home care workers basic labor protections — a witness had the audacity to claim that he was opposing the rules as a way to protect his workers. The congressional hearing centered around the home care industry and the workers who perform the invaluable job of taking care of our fast-growing elderly and disabled populations.

The home care industry has enjoyed the loophole in labor law that was originally carved out to exclude occasional babysitters and “elder sitters” (companions) from minimum wage and overtime laws. This loophole allowed them to skirt the basic protections of the Fair Labor Standards Act. These employers do not have to pay their employees minimum wage nor overtime – allowing an employer to legally pay their workers $2 an hour with no legal recourse for the employee. Due to this loophole the home care industry has enjoyed record profits, for example in 2009 the industry made $84.1 billion in profits, and is one of the largest and fastest-growing sectors in today’s economy. Yet the industry has cried ‘foul’ and ‘poor house’ when faced with the possibility of having to pay their workers the basic rights and protections of minimum wage and overtime.

Almost all home care workers are female, and the vast majority are minorities. These women are often the sole breadwinner for their families and are struggling at poverty level wages. In order to survive, a large percentage of home care workers have to depend on social safety-net programs such as food stamps and Medicaid. With the home care workforce projected to grow by nearly 50 percent again by 2018 and be the major source of growth and jobs in the U.S. economy by adding 1.3 million jobs by 2020, something needs to be done to cover these workers under the most basic labor protections.

Yet this witness claimed that having to pay his employees minimum wage and overtime, would adversely affect the workers’ pay. If an employee is already working 50-hour-weeks with no minimum wage and overtime, how would earning an increased wage plus time and a half overtime hurt them? Even at the median wage of $9.34 an hour, with no overtime, a worker would only make $19,427 a year – far below a basic self-sufficiency income for a single adult, let alone someone supporting a family.

Ted Kennedy once said, “No one who works for a living should live in poverty.” It’s time to value the incredible work home care workers do and respect them enough to cover them under the very basic protections of the Fair Labor Standards Act and give them the right to get paid the minimum wage and overtime.

New year, new (minimum wage) rules

By Michell K. McIntyre, NCL’s Special Project on Wage Theft

Thanks to some state legislatures, the start of the New Year means new rules for some workers. Eight states helped their workers with an increase in their state minimum hourly wage. Washington continues to lead the nation with the highest state minimum wage and is the only state with a minimum wage higher than $9. As of January 1, 2012, its minimum wage is $9.04 per hour. Seven other states also increased their minimum wages at the first of the year: Arizona, Colorado, Florida, Montana, Ohio, Oregon, and Vermont.

State	Increase	New Hourly Minimum Wage
Arizona	$0.30	$7.65
Colorado	$0.28	$7.64
Florida	$0.36	$7.67
Montana	$0.30	$7.65
Ohio	$0.30	$7.70
Oregon	$0.30	$8.80
Vermont	$0.31	$8.46
Washington	$0.37	$9.04

As of the first of the year, San Francisco leads nationwide minimum hourly wages – federal, state, county, and city; and is the first in the nation to top $10 an hour. The minimum hourly wage increased by 32 cents from $9.92 to $10.24 per hour.

With the start of the New Year, California’s new Wage Theft Prevention Act and Employee Classification Act went into effect. The main points of the new Wage Theft Prevention Act:

• requires employers to provide workers, at the time they’re hired, a written disclosure of their basic terms of employment (the pay rate, the pay day, and the name and address of the legal employer)
• strengthens misdemeanor criminal penalties for employers who willfully fail to pay wages due in 90 days after final judgment
• allows a worker to recover attorney’s fees to enforce a court judgment for unpaid wages.

Some of the main points of the new Employee Classification Act include:

• making it unlawful for any persons or employer to engage in willful employee misclassification (classifying an employee as an ‘independent contractor’ rather than an ‘employee’)
• making it unlawful to charge any fees or make any deductions in a worker’s paycheck for expenses (space rental, services, repairs, good or materials, etc.) where such deductions would have been unlawful had the worker been classified as an employee
• increasing penalties that can be assessed against any employer for willful employee misclassification
• requiring employers who have been found to have committed employee misclassification to display a notice to its employees and the general public on their Web site and/or each location where it occurred.

This New Year, please take the time to examine your paystub and double-check that you’re being paid the correct amount. Remember, the Department of Labor has tools to help you track your pay, overtime and vacation time – an app for your smartphone and a printable work hours calendar in English and Spanish.

Oh, what a difference a new administration can make!

By Michell K. McIntyre, Director of NCL’s Special Project on Wage Theft

With every new presidential administration comes a change in leadership, priorities, and budgets at various federal agencies.  For the Obama administration, significant changes were made to the Department of Labor (DOL) and protecting America’s workers from wage theft became a top priority. With former Congresswoman Hilda Solis at the helm, DOL has expanded its efforts to protect workers and the middle class from unethical and illegal labor practices.

The Wage and Hour Division of DOL has seen dramatic changes with the new administration – including the hiring of 300 new investigators to help ease the load of backed up cases the understaffed agency was swimming in. The new staff will significantly enhance the agency’s ability to enforce compliance laws while maintaining the current labor laws that have come under attack from big business, industry and those in Congress who seek to limit the Department’s enforcement reach.

DOL announced recently that they have collected more than $1 million for 295 New Jersey gas station workers for back wages on the non-compliance of the minimum wage, overtime and recording keeping provisions of the Fair Labor Standards Act (FLSA).  More generally, after two years of major organizational and operational changes, the Wage & Hour Division has collected $224,844,870 in back wages for American workers in the fiscal year of 2011 (Sept. 1, 2010-Oct. 31, 2011) – the largest amount collected in a single fiscal year in the division’s history.  The Wage & Hour Division registered 27,112 complaints and obtained back pay for 275,472 workers who were victims of wage theft. These accomplishments speak for themselves and demonstrate that the division has become a stronger, more effective law enforcement agency and protector of America’s workers.

The nearly $225 million in back wages represent the hard earned pay that workers were cheated out of through wage theft, including: unpaid overtime, below minimum wage pay rates, being misclassified as an independent contractor instead of an employee, and not being paid for the time it takes to don and doff a uniform or protective gear. DOL’s crackdown on wage theft not only protects workers, but also helps cash strapped states and local governments who have been cheated out of income taxes and levels the playing field for ethical businesses who have been losing out to dishonest competitors who cheat their employees.

DOL is off to a great pace to combat the ever-growing problem of wage theft. American workers should start to feel safer voicing complaints, standing up for their rights at work, and demanding to get paid fairly. With the 300 new investigators fresh off a two-year training program, DOL will hopefully be able to surpass their historic results and protect more of America’s workforce.

DOL’s newest weapon in fight against child labor

By Elizabeth Gardner, NCL public policy intern

In an effort to combat child labor, the U.S. Department of Labor recently updated its list of products made with forced or indentured child labor in foreign countries. Federal contractors are prohibited under U.S. law from using these products.

Under Executive Order 13126 federal contractors are required to make a good faith effort to verify that no child labor was used in the products filling government contracts. It’s a good measure, and the list turns out to be a bit of a Who’s Who among nations with the worst forms of child labor.

Making the most appearances on this list of notoriety is Burma (a.k.a. Myanmar). (It almost completely monopolized the list in its first iteration back in 2001.) The nation’s bamboo, beans, bricks, rice, rubber, sugarcane, and teak (a type of wood) all made the Department of Labor product watch list.

India, closely followed by Nepal and China, isn’t doing that much better though. India’s bricks, cottonseed, embroidered textiles, garments, and stones made the list. Nepal was on the list for many of the same products. And China, whose toys and electronics have repeatedly been linked to child labor, must also be watched.

It’s looking at other parts of the list, though, that makes you just scratch your head—because of some of the products that are on the list and some of the countries that are off it. For example, Russia is on the list for having child labor in pornography. Hm… Why exactly is pornography on this list for federal contractors?

And then Ghana, one of the focal points of efforts to remove child labor from the cocoa industry, doesn’t appear on the list for cocoa. Should we be heartened by its absence? Assume that significant strides have been made to eradicate the worst forms of child labor in cocoa harvesting? That seems to be the case for Indian carpets being dropped from the list. Encouragingly, the Department of Labor noted that independent monitoring of carpet looms in India and pending research were sufficient to keep Indian carpets clear—at least for the time being.

All this being said—with Russia on and India and Ghana off—this list only provides a partial picture of the problem of child labor around the world. It’s good that federal contractors are being asked to monitor their supplies, even if they’re only required to “have made a good faith effort to determine whether forced or indentured child labor was used to produce the items listed.” For you and me, though, this list’s worth is primarily as a resource—a quick overview of countries and products. And when we need specific info, the Department of Labor’s bibliography for the list is an even better resource. If you need data on any of the products or countries—check it out.

GAO Finds Major Lapses at the Wage and Hour Division

By Reid Maki, Director of the Child Labor Coalition

The tip call came into the U.S. Department of Labor (DOL) Wage and Hour Division (WHD) hotline: children were illegally working during school hours in a meatpacking plant in Modesto, CA, and they were operating dangerous equipment like meat grinders and circular saws. The caller was forced to leave a message because the hotline operators did not answer. What happened next? What did the people tasked with protecting child workers from dangerous and illegal activities? Nothing. For four months after the message was left, no action was taken. No one even responded to the call. And the call was not even logged into the Department of Labor case system. It just fell through the cracks. And apparently it wasn’t an isolated case.

The call was fictitious—a test being conducted by the Government Accountability Office, a government agency that frequently evaluates federal programs, and the Modesto case was fabricated to see how Wage and Hour would respond. The GAO presented its findings on Wednesday, March 25 at a hearing before the House Education and Labor Committee that raises a lot of concerns about the effectiveness of the DOL between July 2008 and March 2009 when the research was conducted. Last September, Sally Greenberg of the National Consumers League testified before Education and Labor’s Subcommitee on Workforce Protections, and asked for increased WHD enforcement, including a doubling of the number of WHD investigators.

Of the 10 fictitious calls GAO made to test WHD responses to possible workplace violations (mostly involving lost wages), WHD successfully investigated only one of the cases! Five of the cases were not even recorded into the WHD database of cases. In one case, the WHD investigator lied about a company’s profitability and claimed he was unable to investigate the case. In two of the cases, WHD recorded the cases as successfully resolved because the worker had been paid lost wages when no money had been actually paid. In one case, a caller left seven messages asking for help and none were returned. Some calls went straight to messages saying the office was closed when it was supposed to be open. In several cases, WHD investigators attempted to dissuade complaint filers by telling them that they faced an 8-10 month backlog or that they may be fired by their employer for filing a complaint.

Among the problems GAO found in the investigation:

• The pre-recorded message at one WHD regional office hotline had a 23-second gap of silence before it went to voicemail. Customers with complaints thought they were disconnected and often hung up.
• In WHD’s southeast division, which recorded 57 percent of the conciliations during fiscal year 2007, there was a policy of not recording unsuccessful conciliations in the WHD Database.
• Staff in one field office said that they were required to drop a case if there were three unanswered phone calls made to an employer under investigation.
• In 150 test calls, more than half went directly to voicemail with no phone calls ever returned.

GAO investigators also analyzed WHD records in 115 conciliated cases and 115 non-conciliated cases between October 1, 2006 and September 31, 2007 and found numerous flaws. Gregory Kutz, managing director of forensic audits and special investigations, told committee members that the system did not work for 19 percent of the complainants in the non-conciliated cases they looked at. In other words, one in five people who deserved help didn’t get it.

“This investigation clearly shows that the Department of Labor has left thousands of actual victims of wage theft who sought federal government assistance with nowhere to turn,” concluded investigators in their written report.

The one bright spot: GAO found that cases that were correctly entered into the system and acted upon were often resolved satisfactorily—even among nonconciliated cases, they found that 81.2 percent had been investigated and resolved appropriately.

The GAO felt that most WHD investigators were dedicated to their work and they did help recover an estimated $200 million in back wages. The GAO suggests that training and better tools—computers, databases, and software—might help eliminate some of the case failures. More investigators might help they said. The intake system certainly needs to be overhauled and all valid complaints must be entered into the WHD’s database, they maintained. They also suggested looking at expanding the current two-year stature of limitations on wage theft.

We’d like to point out that these alleged abuses occurred during the last administration and with a new WHD under Secretary of Labor Hilda Solis, who has a reputation as a friend of workers, we are hopeful that the system will be corrected. She has already called for hiring 250 new investigators. The GAO report suggests however that much work needs to be done.

Back to School, Back to Work?

In Washington, DC, where the National Consumers League is headquartered, today is the first day of school for hundreds of thousands of kids. The DC Metro area is certainly not unique; students across the country will be filing back into school buildings across the country this week and next, following Labor Day weekend. Earlier this summer, we warned young people about the dangers of taking on summer work that falls into our Five Worst Jobs for Teens categories (landscaping, traveling sales crews, agriculture, and more). Just because summer’s coming to an end doesn’t mean that the hazards of dangerous work are no longer a threat.

According to the U.S. Department of Labor, under the Fair Labor Standards Act (FLSA), 14- and 15-year-olds may work outside school hours in various non-manufacturing, non-mining, non-hazardous jobs under certain conditions.

Permissible work hours for 14- and 15-year-olds are:

• 3 hours on a school day;
• 18 hours in a school week;
• 8 hours on a non-school day;
• 40 hours in a non-school week; and
• between 7 a.m. and 7 p.m., except from June 1 through Labor Day, when nighttime work hours are extended to 9 p.m.

Child labor laws vary from state from state. Please check with your state department of labor as well. The Department of Labor provides a list of contact information, according to where you live. To learn more about what jobs are too dangerous for underage workers, check out our Five Worst Jobs list. And to learn how to protect yourself on the job, check out our Six Tips for Working Youth. Parents, learn what to watch out for if your teen is working or looking for a job this academic year — or any time.