How Much Do Companies Spend on Union-Busters? / by Celine McNicholas and Bob Funk

_{^{Amazon workers protest on April 1, 2022, as they vote for the unionization of the Amazon Staten Island warehouse in New York | Andrea Renault / AFP via Getty Images}}

The Department of Labor has improved reporting requirements and enforcement—but more is needed

_{Reposted from the Economic Policy Institute}

Companies spend hundreds of millions of dollars each year hiring professional union-busters to campaign against and defeat union organizing drives. However, only a fraction of this spending is publicly reported because of loopholes and other weaknesses in the law and its enforcement.

A new report by the Inspector General at the U.S. Department of Labor (DOL) found that the Office of Labor Management Standards (OLMS)—which oversees and enforces the union-buster (persuader) reporting requirements—“did not effectively enforce persuader activity requirements to protect workers’ rights to unionize.” While the report rightfully explains that more work must be done, there are many reasons the current OLMS should be commended for taking meaningful steps toward meeting its responsibility, and the report should be viewed as a roadmap for the agency moving forward.

OLMS is a tiny agency of fewer than 200 employees charged with enforcing the many provisions of the Labor Management Reporting and Disclosure Act (LMRDA), which include persuader reporting, union financial reporting, ensuring fair union elections, certifying compliance with labor standards as a condition of federal transit funding, and more. However, since its inception, OLMS has overwhelmingly prioritized enforcing the LMRDA’s union compliance provisions while failing to apply the same level of scrutiny required under the law to employers and union-busters. The Inspector General (IG) report makes clear that OLMS must begin allocating its resources more equitably to fulfill its obligation to protect the right of workers to engage in collective bargaining, mutual aid, and union representation.

The IG report points out that a large percentage of persuader reports filed by employers and union-busters are filed delinquent and/or deficient, and the IG recommends that OLMS improve its systems for tracking and obtaining timely, complete reports. These recommendations are spot-on and should be fairly simple to institute. It’s important to note that OLMS in the past two years has received more than double the number of consultant reports compared with prior years due to an increased focus on compliance efforts (314 in 2021, 747 in 2022). And in perhaps an unprecedented action, OLMS has sued two corporations—Starbucks and Amazon—to enforce subpoenas seeking information to determine whether the companies failed to file required reports. OLMS leadership is clearly attempting to fulfill its obligations under the law.

The report also faults OLMS for not adequately publicizing its persuader “tip line” or having adequate procedures for intake and follow-up on tips. Certainly, greater outreach and awareness about the tip line is essential as would be stronger systems for responding to tips. However, it’s important to point out that the tip line is a new innovation under OLMS’s current leadership that should be applauded, expanded, and improved. The tip line is a positive example of the efforts by OLMS in the past few years to increase awareness of and compliance with persuader reporting requirements.

Most fundamentally, as the report acknowledges, OLMS’s ability to obtain timely persuader reports from employers and union-busters is limited by the law and by the resources available to enforce the persuader reporting requirements. OLMS cannot require reports for “advice”—a loophole that the Obama administration tried to close and was thwarted by the courts. OLMS does not have authority to fine companies for failing to file reports or filing incomplete reports—it would take congressional action to authorize civil penalties for non-compliance.

The IG is right to say that more should be done. OLMS should continue and double down on its efforts to get timely, complete reports from union-busters. OLMS can and should do more to ensure stakeholders—employers, union-busters, unions, organizers, and more—know about the union-buster reporting requirements. OLMS should also expand its rule requiring employers to indicate whether they are recipients of federal contract dollars to include grants and loans, and it should regularly publicize the companies that are recipients of federal funds and are engaging in union-busting. These steps and others would help improve compliance with the union-buster reporting requirements.

_{Celine McNicholas is the director of policy and government affairs/general counsel at the Economic Policy Institute.}

_{Bob Funk is the founder and director of LaborLab, a national watchdog that works to protect and promote the right of workers to collectively bargain.}

Pushing back on veto, farmworker advocates say Mills’ proposal scaled back labor rights / by Evan Popp

_{^{David McNew/Getty Images}}

Maine Department of Labor has reported challenges enforcing existing wage and hour violations

_{Reposted from Maine Morning Star}

Supporters of a bill vetoed by Gov. Janet Mills that would have established a minimum wage for farmworkers say changes the governor wanted would have significantly scaled back existing labor rights and reduced farmworkers’ ability to recoup unpaid wages.

Legislators will vote on whether or not to override that veto on Friday.

Proponents of the bill were deeply frustrated after the governor’s veto late last month, saying it was “absolutely ridiculous” for Mills to reject a measure she herself proposed. However, Mills said while she supports a minimum wage for agricultural workers, changes made to her bill by the Legislature left her with no choice but to oppose the measure.

The governor’s veto hinged on the question of whether farmworkers should be able to directly sue their employer if they believe there is a violation of labor law (also known as a private right of action).

Mike Guare, an attorney in the farmworker unit of Pine Tree Legal Assistance, said all workers currently have a right of private action in Maine to enforce unpaid wages, citing a statute that says either the employee themselves or the Maine Department of Labor (DOL) can bring forward a legal complaint over unpaid wages or health benefits.

A commission set up by the governor to provide recommendations for Mills’ farmworker bill — established after she vetoed another farmworker minimum wage measure last year — did not touch on the issue of a private right of action in its report in February.

But when the governor released the text of her bill in March, it stipulated that only the DOL had authority to bring an action against an employer that violated the proposed farmworker minimum wage statute.

Guare said while there is some uncertainty over how exactly the law would have been interpreted, his reading of Mills’ bill is that farmworkers wouldn’t have had a private right of action if they were being paid the minimum wage of $14.15 an hour but would have retained a private right of action if they were making more than $14.15, but only for unpaid wages in excess of the minimum wage. So Guare said if the legislation had become law and a farmworker was making $15.15 an hour, they could only file a private lawsuit for the extra dollar in unpaid wages above the minimum wage.

But since most farmworkers make relatively close to the minimum wage, Guare said Mills’ bill would have curtailed farmworkers’ right to bring a private action against their employer for the bulk of their possible unpaid wages.

Claims that proposal would spur excessive suits by farmworkers

Workshopping the bill text, Democrats on the Legislature’s Labor and Housing Committee removed Mills’ restrictions on farmworkers’ private right of action.

The committee’s version of the bill ultimately passed both the Maine Senate and House of Representatives before Mills vetoed it. In her veto message, the governor argued that enforcement by the DOL would be sufficient and said she was concerned that allowing a private right of action for farmworkers would “result in litigation that would simply sap farmers of financial resources and cause them to fail.”

In a statement, the Maine Potato Board — which rescinded its support for the bill once it contained a private right of action — also said that clause could have harmful impacts on farms.

“The concerning part of this for the ag industry is when employers are found in court to be not liable, they are still responsible for their own legal representation,” assistant executive director Jeannie Tapley said. “Our concern lies primarily with employers having no recourse to get their legal fees paid for in the case they are not found liable.”

Tapley also argued that allowing a private right of action would result in “undue litigation” against farms.

However, Guare said farmworkers — many of whom are migrant laborers — typically only seek legal recourse as a last resort to address particularly poor labor conditions.

Rep. Amy Roeder (D-Bangor), House chair of the Labor and Housing Committee, added that for farmworkers coming from other countries who might not have a lot of connections within Maine and may not speak English as a first language, accessing the legal system is likely to be challenging.

“So the governor’s view of the state turning into this litigation-happy atmosphere where ag workers are bringing spurious lawsuits, it’s some weird dystopian fantasy that has no basis in reality or fact,” Roeder said.

Roeder said Democrats on the Labor and Housing Committee didn’t want to take a right away from agricultural employees in order for them to gain access to minimum wage protections.

Further, she pointed out that the bill Mills put forward already represented a significant compromise. The governor’s proposal didn’t include reforms that advocates have long pushed for such as overtime pay for farmworkers, union rights, or allowing unpaid 30-minute rest breaks every six hours.

“The fact that we couldn’t even get the governor to sign her own bare bones, least-we-could-do bill just shows you how little the governor cares for agricultural workers in our state,” Roeder said.

Mills’ office did not respond to a request for comment for this story.

Questions about Dept. of Labor enforcement capacity

Arthur Phillips, a policy analyst with the Maine Center for Economic Policy who was part of the stakeholder commission that worked on recommendations for the bill, agreed with Roeder’s argument that advocates already gave up a lot in their attempt to get minimum wage protections for farmworkers.

“That was a deeply compromised bill,” he said of Mills’ proposal.

Phillips pointed out that another issue with Mills’ insistence that only the DOL should be responsible for the farmworker minimum wage statute is that the department — by its own admission — has struggled with its capacity to enforce labor laws.

In a report released in February, the DOL wrote that Maine employers faced average penalties of just 39 cents per wage and hour violation last year and could expect an investigation from the department once every 323 years.

The fact that the DOL has just one wage and hour inspector for every 69,177 employees combined with the low average penalty assessed per violation means the department’s “deterrent effect has been non-existent in past years,” the agency wrote.

The DOL did not respond to a request for comment about whether it believes it would have had the capacity to enforce the farmworker minimum wage statute.

Phillips emphasized that the department is doing the best it can given its capacity. But even though several bills were approved this session to improve the agency’s ability to enforce labor laws, he said it’s still important that farmworkers maintain access to the courts so they have another avenue of recourse.

“It is clear to me that DOL does not have the capacity that it should have to enforce the laws that we have on the books as it is,” Phillips said.

_{Editor’s note: Maine Morning Star reporter AnnMarie Hilton contributed reporting to this story.}

_{Evan Popp studied journalism at Ithaca College. He joins Maine Morning Star following three years at Maine Beacon writing about statewide politics. Before that, he worked for the Santa Fe New Mexican newspaper and interned at the Progressive magazine, ThinkProgress and the Reporters Committee for Freedom of the Press.}

New laws aim to boost Department of Labor amid concerns over lack of enforcement / by Evan Popp

_{^{Jetta Productions/Getty Images}}

Several labor bills remain in limbo after the Legislature adjourned without finalizing funding and other actions

_{Reposted from Maine Morning Star}

After the Maine Department of Labor sounded the alarm that it lacks the ability to deter employers from breaking wage and hour laws, the Legislature approved several new reforms to empower the agency to better protect workers.

“With the tools currently at my disposal, I cannot effectively do that,” Moyer-Lee said, adding that while most employers follow the law, some do not.

“We cannot address the matter of noncompliance without a deterrent effect: it must be costly to break the law,” he continued.

The new rules seek to “make the civil money penalties more effective by increasing the deterrent effect associated with violations,” the DOL wrote. “This is done by making initial penalties higher and making the criteria for penalty reductions more stringent.”

In the same vein of better enforcing labor laws, the DOL also supported another measure, LD 372, to create a more streamlined process for recovering stolen wages.

Sponsored by Sen. Mike Tipping (D-Penobscot), the bill allows the Bureau of Labor Standards within the DOL to order an employer to pay unpaid wages, along with damages equal to twice the amount of those wages and a reasonable rate of interest.

The measure also requires the Attorney General’s Office to institute a civil action to recover any unpaid wages, damages or interest and allows the DOL to receive the owed compensation, damages or interest on behalf of a worker to then pay to the employee.

Tipping said earlier this year that the purpose of the bill is to allow the state to directly recover what workers are owed. Currently, he said the DOL has to engage in a court action for such repayment to take place, forcing the state to spend unnecessary amounts of money to enforce wage law. Tipping also noted that wage theft continues to be a pressing issue around the country, with some estimates finding that workers could be losing upwards of $50 billion a year because of such actions.

Mills signed the measure into law on Monday.

During the legislative process, the bill received support from Democrats while Republicans opposed it. One member of the GOP, Rep. Joshua Morris of Turner, proposed an amendment that would have reduced the amount of damages the Bureau of Labor Standards could order and would have allowed that penalty to be levied only if the violation is found to be “willful.” The Maine House voted down that amendment.

While those measures passed, some other labor reforms were either rejected or are in legislative limbo.

On Tuesday, Mills vetoed several bills designed to expand rights for farmworkers. One of those bills would have required that farmworkers be paid at least the minimum wage while the other would have given them the right to discuss wages and engage in other concerted activity.

Mills vetoed the minimum wage bill largely because lawmakers added in a provision that would have allowed farmworkers to bring their own private lawsuit against their employer if the statute were violated. The governor insisted that the DOL should be in charge of enforcing the law, despite the department’s concerns about its current overall enforcement ability.

Several other workers’ rights bills passed initial votes in the Legislature but may not be ultimately enacted. That’s because those proposals — which include bills requiring pay for reporting to work, permitting workers to request flexible work schedules, mandating the disclosure of pay ranges in job advertisements, protecting workers from employer surveillance, and preventing employers from holding workers liable for repaying training costs — were sent to the Appropriations and Financial Affairs Committee for funding consideration.

Although the committee determined that the DOL could absorb the costs of the proposals, the Senate ultimately tabled the measures, leaving them as unfinished business. If no additional action is taken, the bills will not become law.

Another proposal caught up in the funding process is a measure sponsored by Tipping that would expand the number of workers in Maine who receive overtime pay. The bill would adjust the amount an employee has to make yearly to be exempt from overtime pay to $55,068 or the annual rate stipulated by the federal Fair Labor Standards Act, whichever is higher.

The measure is similar to a nationwide rule finalized by the Biden administration on Tuesday, although Tipping’s proposal would update the overtime exemption threshold more frequently than the federal rule.

Another bill before the Appropriations and Financial Affairs Committee would raise Maine’s minimum wage to $15 an hour. The minimum wage is currently $14.15 an hour. It is not yet clear if or when the committee will reconvene to fund this and other bills with remaining appropriations.