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

March 23, 2015

“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.



DC Living Wage Act Not Live Yet

August 19, 2010

Back in July, the DC Council’s Economic Development and Housing and Workforce Development Committees held a joint hearing on how — or perhaps I should say whether — the District is enforcing two laws intended to make more good-paying jobs available to D.C. residents.

Just getting around to the outcomes, but the issues are still relevant.

One of the laws, the First Source Act, requires most contractors on projects funded in whole or in part with at least $100,000 in District funds to hire D.C. residents for at least 51% of all new jobs created by the project.

The other, the Living Wage Act, requires most, but not all companies that provide services to the District under contracts worth at least $100,000 and those with subcontracts worth $15,000 or more to pay employees working on the contracts a “living wage.” This requirement also applies to businesses that receive at least $100,000 in D.C. government assistance, e.g., a loan, grant or tax increment financing.

The law defines a “living wage” as $11.75 per hour and directs the Department of Employment Services to make annual adjustments in the rate, based on increases in the Consumer Price Index. The just-published 2010 rate is $12.50 — same as the unpublished rate for 2009.

The occasion for the hearing was an auditor’s report on compliance with these laws in real estate development projects formerly managed by two quasi-public independent corporations.

Bottom line was that DOES hadn’t been effectively monitoring compliance with the First Source Act and that the District had neither implemented nor enforced the Living Wage Act. As a result, the District and its residents lost at least $14.4 million. This apparently does not include the unknown amount lost in illegally low wages.

The auditor testified that she couldn’t do a complete job because the Fenty administration tried to stonewall her investigation. Same thing happened to the Councilmembers at the hearing. No one from the administration showed up, invitations notwithstanding.

However, the Attorney General’s office reportedly sent a letter asserting that “living wage regulations were indeed being enforced.” The quote her is from Housing Complex blogger Lydia DePillis. If verbatim, it’s something of a mystery because the District published proposed rules to implement the act eight days after the year.

The notice states that proposed rules were previously published in mid-March 2007. The new proposal, it implies, was necessitated by a 2009 amendment to the act. Nothing said about why a final rule wasn’t issued during the intervening year and a half.

However, the auditor’s report says that the City Administrator’s office asked DOES and the Office of Contracting and Procurement to hold off on implementing the living wage requirement until a fiscal impact study was completed. Didn’t know that District administrations were authorized to postpone enforcement of laws the Council had enacted.

In any event, we’ve got proposed rules now.

I flip to the enforcement section. All I see relevant to the living wage requirement is a paragraph saying that complaints “shall be made in accordance with, and subject to” the relevant provisions of the act.

So I go back to earlier sections. I find that businesses covered by the act are required to maintain, for three years, payroll records for employees who should be getting a living wage. They’re also required to provide the head of the contracting or assistance agency or other District “entity” with a list of these employees, if requested. Nothing about reviews of the records or any other process to ensure compliance.

So it seems that the burden of enforcement falls to workers who don’t get paid enough — and local nonprofits with the time and resources not only get them the wages they’re owed, but to ensure they understand their rights and, so far as possible, feel secure in asserting them. Active monitoring will apparently also be left to nonprofits.

Now, maybe the problem is just the bare-bones approach to regulation writing. Maybe DOES and OCP will establish genuine monitoring, worker education and complaint support processes.

But I hope the Economic Development and Housing and Workforce Development Committees stay on the case. The Living Wage Act isn’t the answer to the high rate of poverty in D.C. But it could make a difference. And those wages, after all, are our taxpayer dollars.