DC Labor Laws on the Books, But Weak or No Enforcement

“The law is on the books. Enforce it.” I heard my then-boss, U.S. Civil Rights Commission Chairman Arthur Flemming, say this over and over again when the Reagan administration was insisting that Congress had to change major federal civil rights laws if it wanted them enforced as they’d always been.

Even with the best will in the world, however, an agency can’t ensure laws achieve what they’re supposed to if it doesn’t have enough money for staff. This seems to be in the case in the District of Columbia, judging from several Fair Budget Coalition recommendations.

FBC is again recommending additional funds to “implement and enforce” the District’s existing worker protection laws — a total of $3 million for the upcoming fiscal year.

Somewhat over half would pay for more staff and administrative law judges to enforce compliance with the District’s minimum wage increase and expanded paid sick leave laws, plus some others intended to prevent wage theft, e.g., denying earned overtime pay.

But a modest $292,000 would support steps that must be taken before enforcement can kick in. As things stand now, two laws — the Protecting Pregnant Workers Fairness Act and the Unemployed Workers Anti-Discrimination Act — are basically still just words in electronic files.

The former requires employers to provide reasonable accommodations for workers whose ability to perform their assigned tasks is limited by pregnancy, childbirth, related medical conditions or breastfeeding. No more denying pregnant workers enough bathroom breaks, demanding that they continue lifting heavy packages when their doctors have cautioned against that, etc.

The latter seeks to prevent jobless workers from remaining jobless just because that’s what they are.

The pregnant workers’ legislation is quite new. The timeframe for our Congressional overlords to disapprove it, which they didn’t, expired long about last Thanksgiving Day. But the prohibition against refusing to hire — or consider hiring — someone because s/he’s unemployed cleared the Congressional review period at the end of May 2012.

Yet the Office of Human Rights, which has responsibility for enforcing it, hasn’t proposed rules — let alone published final rules — to spell out what employers can and can’t do and how workers can seek remedies when they believe employers have done what they shouldn’t.

Its website doesn’t even acknowledge the law. Yet only OHR can enforce it because it denies workers the right to seek remedies through lawsuits.

Not the agency’s fault that it’s done nothing. The law conditioned implementation on “the inclusion of its fiscal effect in an approved budget and financial plan.” The Chief Financial Officer determined that the budget couldn’t cover it. That, however, was three years ago. So there’s been plenty of time to fill the gap.

This isn’t the first time the DC Council has passed progressive legislation and then neglected to make sure it was achieving its intent.

Back in 2010, the District’s auditor found that the Department of Employment Services hadn’t monitored publicly-financed projects to ensure that contractors filled at least 51% of new jobs created with District residents, as the First Source Act requires. Left to their own devices, most didn’t.

More to the point perhaps, DOES hadn’t issued final rules for the District’s Living Wage Act, which the Council passed in 2006. Nor did it get around to proposing rules for the amended law until after the auditor reported such findings as she’d been able to make — a time lag of at least a year, maybe more.

The Fenty administration told the auditor that it hadn’t moved forward because a provision in the original living wage law conditioned implementation and enforcement on annual appropriations. No appropriations forthcoming. So it’s likely that some unknown number of D.C. workers were underpaid.

Perhaps still are. The final rules provide for no enforcement unless workers or their representatives file formal complaints of violations. The burden is apparently on them, not DOES to monitor, investigate, document and so forth.

We everyday District residents read of laws the Council has passed to increase employment of our fellow residents, boost their wages and protect them from egregiously unfair treatment.

So it’s distressing that we have to learn from FBC — and ultimately from the Employment Justice Center, which proposed the labor law recommendations — that the responsible agencies aren’t fully and effectively enforcing the laws on the books.

Well, we know now. And so do the Mayor and DC Councilmembers. We have fine advocates here in the District, but I still wish we had Flemming pounding the table now.

 

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