Last week’s election of progressive new legislators and governors in multiple states creates an important opportunity for protecting workers’ rights. During the Trump era, states and cities have become the last line of defense for workers. Liberal state policymakers around the country have fought for higher minimum wages, expanded overtime coverage, paid sick and family leave, and more robust protections for victims of harassment and discrimination.
But these protections are just words on a page unless they’re enforced. And unfortunately, the Supreme Court last term did everything it could to undermine enforcement of state and local worker protections. In its Epic Systems decision, the Court held that employers can force workers to give up the right to bring a class action. The decision makes it much harder for most workers to seek redress for workplace wrongs, because group lawsuits help workers overcome their fear of suing the boss and create economies of scale so that lawyers can afford to take on these cases.
There already is wreckage in the decision’s wake. In August, a federal court cut over 2,800 Chipotle workers from a lawsuit about unpaid off-the-clock work. Also kicked out of court were a Dollar Store manager in Virginia and exterminators in California suing for overtime pay; Michigan auto industry employees suing over race discrimination; baked goods distributors in Texas asserting they’ve been wrongly classified as independent contractors instead of employees … and on and on. The future impact of Epic Systems will be greater, and hard to detect. Even before Epic Systems, many cases were never filed because of forced arbitration—perhaps hundreds of thousands per year, according to a recent study. Now, this number is sure to increase.
Government has two ways of making sure its laws are enforced: through investigations and enforcement actions brought by government agencies or through private lawsuits brought by the people harmed. Because states and cities don’t have nearly as many enforcement resources as they ought to in order to monitor compliance with wage-and-hour and discrimination laws, they’ve relied heavily on private lawsuits to give worker protection laws meaning in real people’s lives. Epic has taken that away.
The best solution would be for Congress to pass and the president to sign an amendment of federal law, to prevent employers from requiring their workers to enter into arbitration and class waivers. That clearly isn’t happening any time soon, so progressive states (and cities) need to start thinking creatively about enforcement.
One obvious solution is to increase funding for understaffed labor and human rights agencies, but given limited budgets, the scale of these problems, and the importance of private lawsuits in driving compliance, this move alone, while critical and necessary, is likely to be insufficient.
Accordingly, one effective approach now being considered involves drawing upon the model of a centuries-old law allowing people to bring special whistleblower lawsuits (archaically named qui tam actions) on the government’s behalf.
The best-known example of this type of law is the False Claims Act. Signed by President Lincoln during the Civil War because suppliers were defrauding the Union Army, this law allows certain whistleblowers to bring lawsuits on behalf of the government. The government controls the litigation and receives most of the proceeds, with the whistleblower receiving a portion. Many states also have their own False Claims Acts. These laws recover many millions of taxpayer dollars annually. California’s Private Attorneys General Act also operates in a somewhat similar manner.
These laws represent elegant and effective ways to expand the government’s resources and serve important public goals, creating create additional resources for enforcement at minimal cost to taxpayers.
In the wake of Epic Systems, laws like the False Claims Act provide a model that could be modified to help ensure sufficient public enforcement of worker protection laws. How would this work? A whistleblower who knows of a workplace violation would bring a case to the relevant government agency. The agency could then reject the claims as invalid, pursue the claims directly, or allow the whistleblower to bring the case on behalf of the government. One advantage of this type of case is that in addition to penalties or other monetary redress, the court could order the employer to comply with the law and even require monitoring as well, which typically is not relief that can be obtained through a private lawsuit. This type of new whistleblower law would allow the government to accomplish comprehensive, workplace-wide remedying of patterns and practices of violations, either through its own direct enforcement or through whistleblower lawsuits brought on the government’s behalf.
Of course, a new law of this kind should be crafted carefully, given the state’s interest in ensuring that public enforcement authority is exercised responsibly and in appropriate situations, such as when there is a pattern or practice of serious violations. But this kind of balancing is routinely managed in False Claims Act litigation.
One advantage of this approach is that, unlike many other state efforts to address forced arbitration, it would not be preempted by federal law. A new whistleblower law of this type would involve not private litigants suing on their own behalf, but rather a state’s action to enforce its worker protection laws. Indeed, California’s Private Attorneys General Act has been upheld in federal and state courts for this very reason.
In New York, a bill known as the EMPIRE Act, supported by such advocacy organizations as Make the Road New York and the Center for Popular Democracy, has been proposed roughly along the lines of this model. Legislators and advocates in other states, among them Vermont, Oregon, and Washington, are considering similar proposals.
If states and cities are serious about the progressive worker protections they’ve enacted or are considering, they need to make sure these laws are more than words on paper. This means finding a way to ensure robust enforcement, even in the face of a hostile Trump administration and Supreme Court. As they take office, new progressive legislators have a long list of wrongs to right, and protecting the most basic rights of working people should be a top item on that list.