INTERVIEW
Regional Labor Review (Spring/Summer 2019)
Enforcing New York City’s New Worker Rights Laws: A Conversation with DCWP Commissioner Lorelei Salas by Oren Levin-Waldman and Gregory DeFreitas
In January 2019, New York City Mayor Bill DeBlasio announced that the Department of Consumer Affairs was being renamed the Department of Consumer and Worker Protection. The name change appears intended to breathe new life into a large and influential department. In recent years, the City has been passing a spate of labor laws, including: a living wage, a city-wide minimum wage, retail work scheduling standards, and paid parental leave. In addition to the enforcement of these new laws, DCWP also sets contracting and pay frequency standards for the city’s swelling volume of freelancers. DCWP has also been mounting an advertising campaign throughout the sprawling transit system to apprise employers and workers of its new name and enforcement mandate. Although the revamped department has a bold mission, questions still remain about its capacity to publicize and effectively enforce all these new laws, with its current limited staff and budget. This new enlarged department has, since May 2016, been led by Commissioner Lorelei Salas, an experienced labor lawyer and veteran of enforcing New York labor laws in the State Attorney General’s Office. She has held multiple senior leadership positions managing labor law enforcement at the NYS Department of Labor. And she was formerly Legal Services Director at Catholic Migration Services. She was also nominated by President Obama to be Wage and Hours Administrator in the U.S. Department of Labor. On May 20th, at DCWP headquarters in Lower Manhattan, we met with Commissioner Salas on the third anniversary of her appointment to discuss the department, its enlarged mission, and the challenges it faces.
Q: This January, Mayor de Blasio announced that the name of your agency was being changed to the Department of Consumer and Worker Protection (DCWP). You already have a massive mandate on consumer protection. So how, with all the City’s new labor laws -- the Fair Workweek Law, the Freelance Isn’t Free Law and others -- how are you managing this? LS: I have a background in wage and hour enforcement. I used to work for the New York State government, first as an Assistant Attorney General in the Labor Bureau of the AG's office, and then in the New York State Department of Labor, supervising enforcement of the labor laws across the state. So, to me, what really appealed about this particular position was that, at the same time that I was asked to join the Department of Consumer Affairs, the administration was making a decision as to where to place the Office of Labor Policy and Standards (OLPS). And the agency itself had already been enforcing the Paid Sick Leave Law. At the time, it was just paid sick leave and safe leave was added later. It became effective back in April 2014, and the enforcement of that law became part of this agency. But we had a very small team of people who did that work. So when, in 2016, the City Council passed the law creating the Office of Labor Policy and Standards, it basically built on the paid sick leave enforcement. To me it was a very exciting opportunity to come into an agency that was going to really start building up this work and really expanding it, knowing that the City Council and administration were both very, very interested in creative ideas to improve workers' rights in New York City. I would say that we've been super-busy. As you just mentioned, there have been quite a few laws that have come into the books, and they are laws that are designed to address issues that are pressing now in the workforce, in our economy now. It's a very interesting time to be doing this work with laws that are just getting designed and written to think about issues that workers are facing today, because a lot of the laws that we have on the books, as you know, have been around for decades. This is an opportunity, really to think about what we're setting in place now. It needs to be serving needs of workers for the next few decades, right? It's a huge responsibility to make sure that we think about the role
of government in enforcing these laws in a very smart way. I'm sure you also have heard about the budget constraints and we’re thinking about how to really be smart with the resources that we have.
Commissioner Lorelei Salas
So I'm really actually pleased about the collaboration that we've had with both the City Council and the administration when they are thinking about new laws to really bring us on board early on and get our feedback as an agency that will be enforcing the provisions of the law. Q: What is the budget now? Have they expanded it this year to deal with these things? LS: No, it's about the same. It's about $40 million. Q: But that's for Consumer Affairs and -LS: Yes, for the entire agency. Q: And about how much goes to OLPS, would you say? LS: It's about $3 million that goes just for OLPS staff. Q: How big is the staff? LS: We have about 45 lines in OLPS right now. We probably have about 41 or 42 people in place, and we have three or four vacancies that we're recruiting for. Q: How many of them are investigators?
LS: About 15 investigators. Then another maybe ten lawyers, between line attorneys and supervisors. And then we have a couple support staff who do intake and just general administration. So yes, about $3 million. Q: Obviously every agency faces budget constraints. And you're very experienced. But in a city of eight and a half million people, what would it take ideally -- not to investigate every employer -- but what would you want the City Council to seriously consider in terms of a budget and staff? LS: I would say that the number of investigators that we have are probably okay for now to investigate the laws that we have in place today. But as our portfolio continues to increase, we need to keep expanding those resources. And then there are the needs that people don't think about necessarily that are not about investigators, but about how, when you think about the full cycle of a case, right, investigations, you need investigators, then you need lawyers in case the case doesn't get resolved and you need to go to the tribunal. But after that, there's still work that needs to be done, with having a strong collections team and to also continue to have money to do the kind of public awareness campaign that you've seen in the subways. We had a little bit of money this year, but we didn't have it every time a new law comes into place. And so it's harder to really get the message out there that people have these new rights, and that they can come to us to file a complaint if they don't see that realized in the workplace. There are the needs that go along, the investigations or the enforcement staff that people don't think about naturally, but in terms of increasing staff around collections, every time that you get a new law in place, having some money dedicated to outreach. Similarly, when you have a division like that that has 45 people or so in an agency that is small already - for New York City agency sizes, we're pretty small. We're 450 employees. But if you look at some of the agencies around the city, obviously, they have thousands of workers. But for us, a new division puts strains all over the agency: in our communications team, in our human resources team. So just funding the division and the work is not enough when these people are going to need
support from the rest of the agency. My point is that there are expenses or costs that are not necessarily visible when you think about enforcement, but are necessary to fully support the work. So I would say that, thinking about the announcement from Mayor de Blasio to really expand, he announced a couple of things this year. In addition to the name change of the agency, he announced the proposal to work on paid personal time, which is a new law that would guarantee that workers have access to personal time to use as vacation or to take time off to go to their kids' performances, whatever it is that they need. Q: Who pays for that? The employers? LS: Yes, the requirement is on employers. He also announced expanding on the work that we do around the Freelancers Isn't Free Law. And also we're developing an alternative dispute resolution pilot program for handling cases of domestic workers. So all of those initiatives are going to require additional staffing. And we're working together right now with the Office of Management and Budget to figure out what the needs are and how will we support the work going forward. Q: Have you met with the Mayor this year, since the name change? LS: Yes. I mean, especially with respect to thinking about the paid personal time legislation, there have been several conversations with the Mayor, and then with the policy team at City Hall. Q: So you've met with him a few times this year, or is it more sort of over the phone with staff and the like? LS: I would say I had one or two in-person meetings with the Mayor when we first talked about this idea and how we would roll it out. Q: This year, you mean? LS: Yes, this year. But then we've had weekly meetings with the team of people at City Hall who are working on making sure that the paid personal time legislation actually gets introduced. Q: Are those City Council people or the Mayor's people? LS: The Mayor's people, at City Hall.
Q: How many freelancers do you have in the city, just roughly, as a percentage of the workforce? LS: That's an interesting question, because there is not clear data that's just New York City-based, on the universe of freelancers. We have a conservative estimate of about 500,000, but that data is probably a couple of years old. The Freelancers Union would tell you there's more, closer to a million freelancers in New York City. The data that we use is what gets filed with the NYC Department of Finance for people who are filing a 1099. But not all freelancers are people who are part time employed in freelance work, will file a 1099. So obviously, the numbers that we have are very, very conservative. They don't include people who just may not file, even though they're working freelance. Q: Given the number of freelancers and that it's going to grow, is there any talk of the City offering a public option for people to buy into health insurance. LS: The administration is already offering universal health care for all in NYC. The thinking about benefits for gig economy workers is definitely something of a priority for the administration. I would say that we've started with the taxi industry, and so this is not really my agency, but the Taxi and Limousine Commission or TLC. Already there's legislation that requires TLC to set up a benefits fund for taxi drivers, starting with a study to determine most important needs for drivers. I have to say that, for me, the Freelance Isn't Free Law is a really good example of a law that was designed really well, because it has put the right incentives into the law that are already changing the dynamic and the balance of power between freelancers and hiring companies. Our role is limited in enforcing this law. A freelancer files a complaint with us that they didn't get paid under their contract, and we look at a few things. The law now says contracts have to be in writing. If they are not in writing, the hiring company can have fines assessed against them. They have to pay on time, and if the contract is silent on when the payment is due, then the law says the default is 30 days.
And so what happens is freelancers call us and say, "I didn't get paid." And our first step is to send a letter to the hiring company saying, "What do you have to say? We have a complaint that you haven't met the contract terms." At that point, the company can dispute the claim. They can say, "Well, the freelancer didn't complete the terms in the contract." And then the case really has to go to small claims court or to state court. I mean, we don't -- we're not a tribunal in that sense. We don't handle that dispute for the freelancers.
Q: Where do the Office of Administrative Tribunal and Hearing (OATH) judges come in? LS: Well, they do come in for most of our cases, but not for freelancers, because that's really a contractual relationship between a freelancer and the hiring company. But what happens is that, frankly, a lot of the companies, the ones that get a call from the government, from us, if they owe the money, they pay. Because we tell them: "Look, the law says that you have to pay double damages. You will have to pay attorney's fees. If you don't pay now, and you're just delaying the payment it's going to cost you more."
So, about 60% of the freelancers who call us, they get paid within 90 days of calling and filing a complaint with us, again, because I think the incentives are there to really change the balance of power. Q: So they get a letter from a lawyer with your letterhead saying, "This is the law. Pay up." LS: Yes Q: And about 60% just automatically said -LS: Yes, and then if the company ignores us, the law says that there's a presumption, and we can give a letter to the freelancer that the hiring company never responded. Under the law there's a presumption that they are not in compliance with the law, and they can take that to court. Now, I haven't seen it tested yet. I don't know if the judges are actually giving deference to the presumption or not. But by now, we have paid over a million dollars in wages recovered for freelancers, and we’ve been two years enforcing the law. But the typical underpayment for freelancers is between $2,000 to $3,000. So it's good. These individuals have gotten paid without having to hire a lawyer, which was the whole point. It is too costly to hire a lawyer to recover $2,000. It doesn't make sense. I think it's a well-designed law with the right incentives and the right role for us as an enforcement agency. Q: Did the Freelancers Union consult with you about that, give you their wish list or something? LS: They definitely were the force behind the law. They were advocating for this, having people come testify at our hearings and talk to us about their challenges. And it was pretty devastating, because it's the kind of issue that, you know, I'm used to seeing in lowwage industries. Wage theft, underpayment of wages, nonpayment of wages. But to see that freelancers are facing this -- we had a public hearing almost at the beginning of my time here, where we had workers from different industries come and testify. And quite a few freelancers showed up, and they testified that they had to live off their credit cards because they were owed for three or four jobs, and it was really hard for them to just get paid. We had adjunct professors come and testify that they were not getting paid.
Q: Yeah, I can believe it. LS: So it's an issue. And the Freelancers Union was very strong in lobbying the City Council also to make sure that the sponsor really moved the bill. I would say there was a lot of back-and-forth to really get to what we have now on the books. Q: You mentioned wage theft. Now, do you guys have to enforce the living wage, or is that another agency? LS: You know, it's a very complicated relationship between the Comptroller's Office and us, because the law basically requires the Comptroller's Office to do an investigation of living wage compliance, and only if they find that there are violations or issues, and they're not resolved, that they can refer the case to us for enforcement. I think in my time, we've had one case referred by them. So the enforcement is not really squarely within us. It's really the Comptroller's Office. They take the first look at whatever complaints they get. Q: So they have their own staff of investigators and lawyers? LS: Yes, they do. Q: Where did the Fair Workweek Law come from? SEIU and RWDSU? Q: I would say 32BJ, and then Fast Food Justice, this nonprofit organization that has been fighting for fast food workers on a number of things, like the Fight for $15, increasing the minimum wage. They also organized to have the Governor set up the public hearings around the fast food wage order, and also worked hard to get all of us to pay attention to the issues that fast food workers have in terms of scheduling. So definitely they played a big part on that. But for us as an agency, it was one of the laws that we thought could really have a huge impact. I talked about how the Office of Labor Policy and Standards, which was placed here about three years ago. For a long time, we've had both the consumer protection arm, and we've had an Office of Financial Empowerment, which is an office that is dedicated to looking at the financial health of New Yorkers. So we have a number of programs there.
The reason why I mention this is because we did some work to try to really integrate OLPS within the entire agency, and to find what is the common thing that -- the common thread among the different divisions. What is it that really makes us one agency? And we decided that it was talking about the daily economic lives of New Yorkers, because we're talking about your daily wages or pay or the right to sick leave. But also, if you need a license to operate in the city, most likely you're going to have to come to us. We manage most of the business licenses in New York City. So you need that for your business. And our Office of Financial Empowerment, that does a lot of programs with respect to providing free services to New Yorkers, with free tax prep and financial coaching to name a couple. And so one of the big issues for us is, if we're thinking about daily economic lives of New Yorkers, one of the big challenges is the income instability or unpredictability of income. There is a lot of research at the national level that shows that people don't have $400 in savings. And how can we address income instability? One way obviously is to have predictable schedules. How are you going to plan your life or your budget for next month if you don't know how many hours you're working? So it fits squarely within what we think is one of the most urgent needs of New Yorkers, to have more stability in their lives, in their incomes. For the fast food industry -- the Fair Workweek Law -- we’ve just been enforcing the law since November last year. So it's been about a year now that the law has been in place. And we have probably the most complaints in the fast food industry, not as much in retail. Q: Does fast food include things like Starbucks, or is it more the usual chains that you think of? LS: Starbucks is included. We use the same definition that is in the New York State fast food wage order. Q: So all of retail is included in the scheduling part, though not in the part that they have to offer shifts to current workers? LS: Right. Yes, the retail law is a bit different. The notice requirements are also shorter. It's 72 hours, and not two weeks, like it is for the fast food industry.
There were obviously lots of negotiations, between the City Council, the administration and some of the unions and the workers' groups, and also the business community about what the law should include or not include. The only requirement right now, to offer shifts to permanent employees before you go out and hire someone else, is in the fast food industry. And it is the goal. In reality, that's one of the things that people need the most -- to be able to get to full-time employment if they want to.
Q: That law could be useful for lots of other workers negotiating with employers. "Look, fast food workers get these protections. Why don't you give them to us?" In terms of a labor standard, it can really have genuine impacts. But again, it's a huge mandate. I mean, do you have any ballpark, how many retail establishments are in New York? LS: I don't know off the top of my head, but I could see if we can get them for you. We have a small team of research analysts here. They are the ones looking at data. We were recently looking at that because of the paid personal time legislation. So we're just looking at different industries, how many workers. How many parttime workers, or how many workers in total, workers who don't have vacation?
Q: Can you say a few words about how you decide who to investigate? I saw in your annual report the breakdown between directed investigations and complaint-based investigations. So how do you decide what you're going to have your staff do there? LS: Right now, at least for the Paid Safe and Sick Leave Law, we are the only body that can actually investigate those cases. There's no private right of action in the Paid Safe and Sick Leave Law. So we have to take those complaints and investigate them, because there's no one else who can do that. We take every complaint, and if we have jurisdiction, we investigate it. We try to make room for proactive investigations, because we think that this is really the way to have the most impact in our work is to proactively look at industries in which we know there's information showing high rates of violations of the labor law. Not always the Paid Safe and Sick Leave Law, but maybe wage and hour. If an employer is not complying with wage and hour laws, they are likely not complying with Paid Safe and Sick Leave or other laws that apply in the workplace. So, we do that analysis. I can tell you that we've done one special initiative recently where we looked at the home care agencies, the home care industry, because we have both a mandate to look at the paid care industry, which includes both domestic workers and home care, home health aides and cleaners. We have a mandate to look at that industry because the City also created a paid care division so that we could be thinking about how to improve the standards, the work standards for both home care workers and domestic workers. So that's in the law, within the Office of Labor Policy and Standards. Q: Oh, and did they provide a budget for that? LS: We have a couple of people who are fully designated in the division. But then what we do is we draw from the rest of the division. So, to give you an example, we have the paid care advocate, who is the person who's like leading the working group. We work together with domestic workers' groups and with employer groups and policymakers to really think about, "Okay, what are the recommendations that this group should make to improve the lives of these workers?"
But at the same time, if their recommendation is that we need to enforce the law, the laws that we have on the books, we use the rest of the enforcement staff, obviously, to do that work. Our proactive investigation covered 40 home care agencies across New York City, and we looked at violations of not just the Paid Safe and Sick Leave Law, but we also identified wage and hour violations, and violations of the NYS wage parity law. And when we find those violations, we then work closely with the New York State Department of Labor, the Attorney General's Office, and we refer other cases to the Department of Health and the Office of Medicaid Inspector General. So we try to use our law and really think about other things, other problems that workers are facing in that industry, and how can we be a pressure point to get other agencies to really look at these issues. Q: So you're in constant contact, then, on cases like this, with all these different agencies, like DOL? LS: Yes, yes. And so that's one way to really prioritize the work. For us, again, it was -- it's both in the statute that we need to be looking at this industry, but home care agencies are also one of the industries for which we get the highest number of complaints from workers that are not getting paid sick leave, you know, their rights under that law. So that's one industry where we'll be going into full speed. We are still working on the initiative. Quite a few of those cases did not really get resolved yet, because we're talking about large groups of workers. Our investigations covered 30,000 workers in the industry. So we are litigating some of those cases at OATH, which is our tribunal. Q: What do you mean, "our tribunal?" Only your agency's? LS: New York City's tribunal. In a lot of the cases that enforcement agencies handle and investigate, we issue our final orders. But employers then have a chance to appeal that order, and they have to take it to OATH. Q: And what if OATH rules against the employer? Do they have any other right of appeal? LS: Yes. They could file an Article 78 petition. Q: You mentioned earlier that you have a staff of 450. LS: In the agency, yes.
Q: Okay. And so only 41 of those are just OLPS, then? LS: Yes. Q: One-tenth, less than one-tenth of the department’s staff! Do you have investigators doing consumer investigations, financial investigations? LS: Yes. Q: If you have an overload of cases in OLPS, do you ask folks to use their skills there? LS: What we've done, to really come up with 45 lines, we've drawn from lines in other divisions to fill those since our budget did not increase. So we've used other vacancies within the agency to start filling positions at OLPS. But the subject matter is just very different from the consumer protection work and the licensing work. We have another team of lawyers that does the consumer work and the licensing work. we've been doing this for years, we are licensing close to 80,000 businesses. And so a lot of the litigation that comes out of that comes out from us addresses noncompliance with licensing laws and regulations and we might initiate proceedings to revoke a business’ license. So, there is limited room for me to pull people from there and move them to this other division. Our licenses cover more than 55 categories of businesses. It includes anything from ticket sellers -- the people who sell tickets to attractions in the streets -- to car washes, to laundries, to tobacco retail dealers. Q: So mostly small business? LS: A lot of small businesses, yes. But our consumer protection laws cover all New York City businesses. So we're enforcing both the licensing laws and the consumer protection laws. And that's been our work for 50 years. There's a volume of investigations that we do in that work, and you can't really -- there's no more I can pull from there to move over to OLPS. Q: It says in your report that developing policies is one of the hopes of the agency. I mean, when you think about your mandates here, it's just a year now for some of this, but are things already coming up that you'd
think, "Gee, this would sure improve if the City Council would think about this, put together a bill on this, it would really improve our work?" LS: Yes. Q: Aside from expanding your staff and budget, I mean. LS: I think one of the biggest issues that workers still face in New York City and New York State is underpayment of wages. So you have these new laws that say that now employers have to pay $15 an hour minimum wage, but that's not the reality unless employers really feel that there's enforcement happening. You need to really invest in enforcement in a way that makes sense. Both to send a message out there to employers and workers that these laws are real, but also because the businesses that are already complying with the laws are going to be disadvantaged by those that don't comply with the laws. And so definitely putting enough resources in enforcement makes sense. And so, because wage and hour laws are the biggest problem for workers -- if I'm not getting paid my wages, the last thing I think about is my sick day. I'm thinking more about, "I didn't get my full week wages." I think for us, it would be interesting to see what kind of role New York City can play in ensuring workers get paid their wages. Now, we are not the state and federal government, so we cannot enforce the minimum wage and overtime laws. But this is why we're thinking about the alternative dispute resolution program for domestic workers, because, you know, the state doesn't have enough resources to devote to enforcing the laws, the labor laws that are in place in New York State, and we see a lot of gaps. And there are some industries, like the domestic worker industry, where enforcement is especially difficult. We're talking about a relationship between employers and workers where sometimes you cross the line between being an employee and being almost part of the family, so the relationship is much more difficult to regulate. And we thought about this mediation program because we think that we can offer an alternative. Especially for employment relationships where the worker is still employed, and they realize they're not getting
paid minimum wage -- and maybe the employer doesn't even know that they're supposed to be paying $15 an hour -- offering them the opportunity to come together and to try to resolve that issue and at least fix it going forward. It's an alternative to the enforcement that the NYS Department of Labor is supposed to be doing on a daily basis, which is, make sure that employers are paying at least minimum wage and overtime.
Q: But what is there to negotiate? I mean, they're breaking the law. So why does ADR come into play? LS: If you ask any of the advocates who are working in this space, who work with domestic workers, they'll tell you that the only workers that actually file a complaint or litigate their cases are those that have already left their employer. That while they're still employed, it's really difficult to do that. And then the complaints get filed at the NYS Department of Labor. And look, full disclosure, I used to be there when the domestic workers' bill of rights came into place. It's not easy to enforce the law. You can't -you don't have the authority to go door to door and say -- knock on the door and say, "I want to investigate this
workplace, and I want to see how many domestic workers you have, and I want to see your payroll and time cards," which we do with other industries, or I used to do there with other industries. You could go door to door. So the enforcement is not easy, and when people come to file complaints, it's usually when they've left the employer, and there's less of -- the employers have less of an incentive to really fix the problem. The worker is no longer there and cases can take a long time. If you ask the advocates in the industry, they'll tell you enforcement is not really working. Let's offer an option. Let's figure out, could this improve workers' rights if workers are able to come to the table with a current employer and think about the things that they want going forward? Yes, there's a violation of the law, but we can't enforce it, because we're New York City. We're not New York State. Q: So, as somebody who came from the state agency that could enforce the law, what do you see as the principal limitation going to a local agency like this, where you have limitations on what you can do, because you don't have the full authority of the state, and you also have the problem that employers can simply pick up and leave if they -LS: Absolutely, absolutely. But I think that, because we play that role, that we don't have the stick of enforcement, we can have the mediations that are confidential, employers can can come in, and they -- if they don't agree, they can leave. They don't have to resolve it with us. But right now, the enforcement that is happening is not sufficient. Whatever is happening already is not sufficient. And I'm all about thinking about what is the next thing we can try. You know, we're not doing this alone, because I don't believe in us doing things without having the voice of the workers in the mix. We talked to NDWA, National Domestic Workers Alliance in New York City. They're actually across the street from us. And we said, "What do you think about this as an alternative?" It's not as great as enforcement, but we don't have the stick. And they said For people who are currently employed, and they want that relationship with their employer to continue, they're never going to file a complaint. But they might be interested in this mediation option.
And so We're going to try it. We're going to see if it works. And I think that that's part of our role. I think we have an opportunity to fill a gap, because unfortunately, compliance is not the norm in that industry. Q: So these are directed investigations, because nobody's complaining, right? So you just pick a home care, and you go to the major like 40 or whatever agencies, and do you just say flat out, "We assume you're violating the law. Let's do ADR?" LS: There are two separate things. The home care agencies, we have the paid sick leave enforcement tool. So those were really investigations. Those were not mediations. We investigated them. It is one of the industries where we have the highest number of complaints of the Paid Safe and Sick Leave Law. So we have investigated 40. But we wanted to do an industry-wide look, and we chose them depending on size. We wanted to capture at least -- a third of the industry, which is about 30,000 workers. But that's fully within our investigatory powers. What we couldn’t do was wage and hour enforcement, but again, we referred them to agencies that are able to look at that problem. This mediation program hasn't started yet, but this would be working very closely with domestic workers organizers who will identify themselves situations in which domestic workers come to them and say, "Yes, I know I'm not getting paid minimum wage, but I don't want to file a complaint, because I really like my boss, and I want to stay here." And they will offer, "Well, DCWP has this option. Do you think your employer would be interested in that?" We can make an invitation and see if they come forward.
Q: And it's totally confidential, so the worker is never identified to the employer? You just say, "We have heard‌" LS: Well, we're still designing this model, but in this case, because it's mediation, both parties have to know. the understanding is that the worker herself or himself decides the mediation is an option with that particular employer. Q: If they're too scared to complain to the state DOL, wouldn't they be scared to complain to any administrative agency, if they're going to be identified? LS: But it's a different thing to say, "Employer, you know, I've been learning about my rights. I'd be interested in sitting down with you, and the city has this free mediation program." Again, we can't do anything about those violations, if they occurred. We can't do anything about them if it's about wages, minimum wage, overtime, because we don't have the authority to do anything there. And if it's confidential, then we wouldn't be able to disclose it to other parties. We may find that employers still don't want to come forward with their workers and mediate their issues. I don't know, because we haven't tried it yet.
Q: When are you going to start trying it? LS: We are hoping early fall. That's what we're hoping for. Q: Who's the Director of OLPS? LS: Until just a few weeks ago, Liz Vladeck was the Director of the Office of Labor Policy and Standards. She's now working with City Hall, and I'm in the middle of actually recruiting, doing interviews to fill that position. So for now, the Acting Director is my First Deputy, who also comes from having worked at the State Department of Labor, and prior to that the Attorney General's office. Her name is Sandra Abeles. And she basically had almost the same job I had at the NYS DOL after I left. Q: Are you going to do another annual report this year, do you think, in the fall or whatever? LS: Yes, we're doing another one that will published early next year and will cover calendar year 2019. Q: This is pretty pioneering work you're doing here. It’s only happening so far in a handful of cities like Philadelphia and San Francisco. It must be very challenging. LS: Yes, it's interesting. It's really interesting. I mean, still we have challenges. Like any new office, even though we had a small group doing the paid safe sick leave enforcement, once you start adding all these new laws, you really have to build out the office. And people don't think about that. They think the law is in place, and you can start running and enforcing it right away. But you have to hire people, right? We had to expand. hiring people, training them on the new laws, because these are new laws. Then building a case management, all the things that people don't think about, like where are you going to save your cases? How are you going to get reports if you don't have a system that addresses that? And we have a very old system that does some of the licensing work, but it's not designed for lawyers to keep track of their cases, investigators, right? So there is that. There's the challenge of having to do a lot of outreach on the ground, because we didn't always have enough money to do like a full citywide campaign. And then thinking about, in this new world where people
are more and more worried about coming forward and filing a complaint with a government agency, how do we then deal with the most vulnerable workers? How do we make sure we're covering those industries where there are the higher rates of violations. And part of that response is doing proactive investigations. And we do that across all the work in the agency, not just in OLPS, but we do it in consumer protection and other areas, being proactive, not waiting for complaints. In OLPS, we have a retaliation unit. Basically, we start an investigation, and we hear a complaint of retaliation, we immediately start a second-track retaliation investigation. We want to react quickly. Immediately contact the employer, and really stop that retaliation on its tracks, because that's the worst thing, for workers to spread the word that they filed a complaint with us, and they got fired, and then no one comes, right? So we take that very seriously. We have to deal with a lot of workers and employers who speak other languages and are not fluent in English. So having all our materials translated and making sure we have language capacity on staff to really answer those questions, all of that takes a lot of time and resources. And then there's the challenge that everyone has, all enforcement agencies, for as far as I can tell, on collections, right? Actually once you've made your findings, and maybe the employer didn't settle already and agree to pay, then you have to go through the whole litigation, and then at the end of it, the employer still doesn't want to pay. How do you collect, right? How do you collect the money that the employers owe? Sometimes, depending on how long it's taken, employers may sell the business or get rid of their assets, and that's an issue that all enforcement agencies face, right? I've faced that at the NYS Department of Labor. We face it with our consumer cases. So making sure collections operation is strong is something we also need to think about. Q: And that has to be in-house, or is there a City agency that will do that for you?
LS: We have a very limited collections unit here. A lot of the cases actually end up going to the Law Department that then contracts out with a collections law firm. But, you know, by the time it gets there, more time has come by, and it just makes it harder to collect. Q: The City Law Department? LS: Yes, Corporation Counsel, Law Department. Q: So if you have the staff and the time, you guys do it in-house, because that's much faster? LS: We do a lot of the initial collections attempts. And then if we can't collect, then we send it to the Law Department. At the state level, there are legal services organizations and coalitions that are working on passing legislation that would allow for a lien to be placed on the business earlier in the case so that-- even if they want to get rid of the assets or change a corporation's name, they can't do it until the case is really resolved, and they make employees whole. Now, that will probably not address our issue here in New York City, but at least there's an effort, a recognition at the state level that you need to do something to make sure that collections are emphasized. Q: And that's in the labor area at the state level? LS: Yes, yes. Q: It already exists, or it's a proposal? LS: It's a proposal. Q: Would you want to have that power here? LS: Yes. Well, I mean, ideally, we want employers to resolve the issues, right? There are some who just don't know what the law is. There are some who, once they get caught once, they want to fix it. They don't want to be in trouble again. And there are others who really don't want to. They just want to ignore the law. And that's where you need the strongest tools, really, when employers really do not want to comply with the law. Q: Anything else that you'd want to get out there in terms of such challenges?
LS: I would say that we are, as a locality that is constantly coming up with creative solutions in the law to address issues in the workplace, we're subject to plenty of preemption challenges. For almost every law that has gotten into the books, we've gotten sued by the industry -- the restaurant industry, the hospitality industry. So there's those challenges -- so far we've been very successful at fighting them off. And then at the federal level, there are some attempts to also take away localities' ability to enforce workplace laws. We're always on the lookout for that. It's one thing if the federal government wants to implement or get a paid sick leave law that is uniform that covers all workers across the country. That's one thing. But to just say, "We don't want the localities to do it," is a problem for us. Because we think that we've been successful as a city in keeping jobs and making sure that people have these basic rights in place. And when the small business community was up in arms, saying, "This is going to destroy us. We're going to go out of business," it hasn't happened. It's been five years already of enforcing this [Paid Safe and Sick Leave] law and it hasn't happened. Five days of sick leave a year is really not a lot. People don't abuse it, because you only have five days. Therefore, you're not going to be taking them all off to go to the beach when you might get sick, or your child might get sick, in two months. We don't see that; we don't have complaints of abuse of the law. So for us, it's really important that we fight off attempts at the federal level to take away our ability to enforce laws like these. ____________________ Oren Levin-Waldman is professor of public policy in the School for Public Affairs and Administration at Metropolitan College of New York and a Research Scholar at the Global Institute for Sustainable Prosperity. His most recent book is Restoring the Middle Class Through Wage Policy: Arguments for a Minimum Wage (Palgrave). Gregory DeFreitas is Professor of Economics at Hofstra University and Director, Center for the Study of Labor and Democracy.
REGIONAL LABOR REVIEW, vol. 21, no.2 (Spring/Summer 2019). Š 2019 Center for the Study of Labor and Democracy, Hofstra University
NYC Workplace Laws Enforced by OLPS Paid Safe and Sick Leave The Earned Safe and Sick Time Act requires certain employers to give their employees safe and sick leave. Employees who work 80+ hours a year at any size business or nonprofit in NYC can earn up to 40 hours of safe and sick leave each year. Employees can use leave for themselves or to help anyone they consider family for care and treatment, or to seek help or take other safety measures for any act or threat of domestic violence, unwanted sexual contact, stalking, or human trafficking. Retaliation is illegal.
Fair Workweek and Fast Food Deductions Law requires fast food employers to give employees good faith estimates of when and how many hours they will work, predictable work schedules, and the opportunity to work newly available shifts before hiring new workers. Retail employers in NYC must also give employees predictable work schedules. The Fast Food Deductions Law requires these employers to honor employee requests to deduct voluntary payments from their paychecks to send to qualified nonprofits. The law does not allow contributions to labor organizations. Retaliation is illegal.
Freelance Isn’t Free Law establishes and enhances protections for freelance workers, including the right to a written contract and timely and full payment. Penalties for violations of these rights include statutory damages, double damages, injunctive relief, and attorneys’ fees and costs. Retaliation is illegal.
Paid Care Division Local Law 98 set up a Paid Care Division in 2016 to focus on the needs of paid care workers, such as domestic workers and home care aides (often women and immigrants) and todevelop education and other resources. The Division develops policies and programs for paid care workers; conducts public outreach and information campaigns for paid care workers, employers, and care recipients; conducts and promotes research on the paid care industry; and coordinates with stakeholders to provide programming and training.
Grocery Worker Retention Law requires new grocery store owners to retain employees of the previous owner for a 90-day transitional period following a change in control of the grocery store.
Living and Prevailing Wage Law requires certain employers that receive at least $1 million of financial assistance from the City or a City economic development entity to pay no less than the living wage to their employees at the project site. For details see: www.comptroller.nyc.gov/nyc-wage-standards .
Temporary Schedule Change Law requires employers to grant a temporary change to hours, times, or locations of work to accommodate a worker’s “personal event.” Employees have the right to two (2) temporary schedule changes per year—up to one (1) business day per request, or two (2) business days for one request. Retaliation is illegal.
---------------------------------------------------------------------------------------------------------------------TO REPORT VIOLATIONS OF THE ABOVE LAWS, call the NYC complaint line: 311. Source: 2nd Annual Report on State of NYC Workers’ Rights (OLPS, 2019): App. B: nyc.gov/dca.