Advocating the Day Laborer Fairness and Protection Act

Chun

Elizabeth Chun

Writing 39C

Professor Rose Jones

March 19, 2004

Advocating the Day Laborer Fairness and Protection Act

As the American economy continues its eleven-year boom, employers proceed to replace standard employees with day laborers and contingent workers. However, recent studies indicate that employers have been exploiting this increasing source of cheap labor, by failing to provide standard working benefits and sufficient living wages. Barbara Ehrenreich, a well known author and journalist, discusses in her book, Nickel and Dimed, this exploitation of contingent workers and describes from personal experience, “I don’t know how my coworkers survive on their wages or what they make of our hellish condition” (Ehrenreich 89). Throughout her book, Ehrenreich demonstrates how her fellow employees are forced to endure work-related injuries and poor health, while barely surviving on the below minimum wage that they make. Today, research shows that despite legal minimum wages and hour protections afforded to standard and nonstandard workers by the government, employers continue to abuse their hired labor by deducting fees and denying proper working benefits that include breaks, compensation, time off, and health insurance. As a result, the growing number of contingent workers across the country are forced to tolerate violations of their civil rights, employment and labor rights, and health and safety rights (Gutierrez 1). On July 24, 2003, Congressman Luis Gutierrez introduced the ‘Day Labor Fairness and Protection Act,’ which not only recognizes the seriousness of these issues, but functions as the first federal law to address the specific workplace needs of contingent workers by seeking to protect and expand the wage and hour rights of laborers, guaranteeing first amendment rights, ensuring safe and healthy working conditions, in addition to defining key terms relating to day laborers. Therefore, the ‘Day Labor Fairness and Protection Act’ is clearly the best proposal in pending – primarily because it increases minimum wage to a legal and fair amount and enforces working rights and benefits, while ensuring safe and appropriate working environments for all contingent employees.

Historically, employers have relied on day laborers – defined by the ‘Day Laborer Fairness and Protection Act’ as “individual[s] who [are] engaged in or waiting to be engaged in day labor,” or anyone who is involved with “labor or employment that is occasional or irregular for which an individual is employed for not longer than the time period required to complete the assignment for which the individual was hired and in which wage payments are made directly to the day laborer or indirectly by the day labor service agency…” to perform manual labor and domestic services (Gutierrez 2). However, the utilization of contingent workforces has expanded and employers now rely on workers for a wide variety of demeaning tasks. As a result, the number of day laborers has increased and nearly tripled in the last few decades. Recent studies show that such workers now comprise approximately thirty percent of America’s entire workforce. According to reports from the National Alliance for Fair Employment, “three out of five members of the general public (61%) have either been in a contingent position themselves or have known someone who, in the last ten years, had to work as a part-time, temporary, or contract employee, while preferring a standard job” (1). Furthermore, twenty-two percent of all Americans have involuntarily taken contingent jobs, while an additional thirteen percent have household members who have had previous experience as day laborers (NAFFE 1). Despite the significant number of contingent employees, anecdotal evidence shows that the majority suffer from pervasive wage and hour violations and lack standard working benefits and protections (Yasui 1). In fact, according to the National Employment Law Project, the working conditions of day laborers and temporary workers are currently characterized by “low wages, frequent non-payment or illegal deductions from wages, and hazardous health and safety violations” (NELP 1). In Los Angeles, Chicago, and Long Island alone, almost fifty percent of day laborers reported non-payment of wages by employers (NELP 1). The short term employment relationship and fear of retaliation make recovery of wages quite difficult for these workers (NELP 1). Moreover, congress findings indicate that occupational injury and fatality rates are disproportionately higher than those in other industries. This is because workers are often subject to hazardous conditions without protective benefits such as health insurance and/or safety training or equipment. However, desperate contingent workers “often risk life and limb without ever reporting work hazards” in fear of occupational retaliation (Gutierrez 2). Consequently, employers have been able to exploit day laborers for the last few decades with minimal interception from regulating authorities.

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The ‘Day Laborer Fairness and Protection Act’ addresses the reality of these overlooked issues and proposes to help with the typical problems that day laborers face. Congressman Luis Gutierrez argues, “No worker in any industry, or at any company, should have their basic rights violated or their respect diminished.” The stated purpose of this Act “is to ensure that individuals working as day laborers, or temporary workers, are afforded full protection of and access to employment and labor laws that ensure workplace dignity and to reduce unfair competitive advantage for firm that abuse day laborers” (Gutierrez 2). The Act broadly proposes to cover all employees that perform “day labor” as defined within the bill. Furthermore, the proposal requires that all employers of day laborers and contingent workers comply with the stated guidelines. Employers that violate or disregard the Act’s requirements may face severe penalties and fines by the Secretary and Department of Labor. The ‘Day Laborer Fairness and Protection Act’ sets forth strict requirements that prohibit rampant practice of workplace abuse for day laborers throughout the country. More specifically, these requirements prohibit deductions for overpayments or cashing wage payment checks; restrictions on worker acceptance of permanent positions; employer retaliation against day laborers through discharge or by threat (Congressional Legislation). The proposal additionally amends the National Labor Relations Act, making it an unfair labor practice for employers to offer and grant:

1) permanent replacement employee status or other employment preferences to individuals for performing bargaining unit work for the employer during a labor dispute; or 2) any employment preference based on an individual's being employed, or having indicated a willingness to be employed, during a labor dispute, over any employee who was there at dispute commencement, has exercised rights through the labor organization involved in the dispute, and is working for the employer, or has unconditionally offered to return to such work. (Congressional Legislation)

Such amendments discourage employers from manipulating or discriminating against contingent workers in hopes of acquiring cheap manual labor. As of now, the ‘Day Laborer Fairness and Protection Act’ is the only proposed legislation that addresses such matters of concern – in particular: pervasive violations of minimum wage and hour protections, inadequate working benefits, and hazardous working environments.
Minimum wage has been a topic of concern for the entire nation for many years. According to the U.S. Department of Labor, the current minimum wage for standard employees is $5.15. However, the majority of day laborers are denied this financial standard and often suffer from various forms of wage abuse from their employers. The National Employment Law Project informs that “day labor employers often delay payments of promised wages until the completion of a job. Upon completion, day laborers are commonly left with less than promised compensation or a void check” (Yasui 1). Other forms of wage abuse that day labor employers commit include “excessive or illegal deductions from workers’ pay” (Yasui 1). The North American Alliance for Fair Employment reports that “when standard and nonstandard workers with similar personal characteristics are compared, most nonstandard workers suffer a substantial pay penalty. Regular part-time female workers are paid twenty percent less and male workers are twenty-seven percent less than regular full-time workers with similar [job] characteristics” (NAFFE 3). As figure 1 demonstrates, the average wage received by non standard contingent workers is dramatically lower than the average wages received by standard employees.

In response, the ‘Day Laborer Fairness and Protection Act’ calls for “wages in parity with full time permanent employees performing similar work,” in that day laborers must be paid at a rate no less than that of a full time permanent employee performing substantially equivalent work (Yasui 2). This not only increases wages for contingent workers, but decreases the amount of competition for employment between standard and nonstandard employees. Furthermore, the Act mandates rates for weekly and daily overtime, which ensures a minimum daily rate of pay for contingent workers, which creates a sense of financial stability for day laborers (NELP 1). Although statistics show that one in four temporary workers fall below the federal poverty line, the implementation of this Act will allow such low-income workers to make a sufficient amount to support themselves and their families.

Day laborers and contingent workers affected by wage and hour violations have also been subject to “egregious workplace exploitation,” in that employers fail to provide workers with adequate working benefits/compensations such as breaks, time off, and rarely offer affordable health coverage (Yasui 1). Instead, studies indicate that contingent employees are less likely to receive health or pension benefits from their employers (NAFFE 3). In fact, statistics show that only twelve percent of all contingent workers receive health insurance coverage through their employers compared with fifty-three percent of all employees, while only thirteen percent of day laborers receive pension coverage as opposed to forty-seven percent of standard employees (NAFFE 3). Health coverage from day labor agencies has become nonexistent or too expensive for individual plans (NAFFE 4). In Boston, Massachusetts, Tom Sullivan, who has worked as a contingent employee for the last ten years, claims that “temp health insurance is just for show” (NAFFE 4). He explains how his managers promised him permanent employment; however their promises were obviously immaterial. On one job, Sullivan qualified for his agency plan, yet when he needed minor surgery, he received two weeks off without pay. When he returned, he discovered that he had lost his job and health coverage. The ‘Day Laborer Fairness and Protection Act’ addresses similar issues by stating that “if a day laborer is injured while working, unless workers’ compensation benefits are available to the day laborer, the day labor service agency and day labor employer are responsible for the health care costs associated with the injury and for all damages flowing from the injury” (Yasui 6). The Act enforces that workers be subject to adequate health coverage and that all employers must provide workers’ compensation coverage regardless of immigration status for work related injuries. The Act additionally requires that employers provide fifteen minute breaks for each four hour period of uninterrupted work and thirty minute paid meal breaks for every shift longer than six hours (Yasui 4). Thus, the ‘Day Laborer Fairness and Protection Act’ allows contingent workers fair access to benefits that all employees should have, limiting common workplace abuse for contingent workers.

Finally, the ‘Day Laborer Fairness and Protection Act’ also functions to ensure a safe and healthy working environment for all employees. According to the General Accounting Office, the day labor workforce is particularly vulnerable to workplace abuses and is subject to dangerous tasks that are often shunned by workers with other employment options (Gutierrez 2). Contingent workers are disproportionately affected by violations of occupational health and safety as they are less likely to receive necessary safety equipment and training to protect them while performing work under hazardous conditions (Yasui 1). According to the National Employment Law Project, forty-six percent of all day laborers worry about their health and safety on the job (NELP 1). As a result, the Act states that a day labor service agency or any employer must inform a worker of possible exposure to hazardous chemicals, unsafe working conditions and work that requires the use of safety and protective equipment (Yasui 6). In general, employers must ensure that “working environments are safe and healthful for day laborers and that employment shall be free of recognized hazards that are likely to cause death or serious physical harm to day laborers” (Gutierrez 5).

The ‘Day Laborer Fairness and Protection Act,’ which was introduced on July 24, 2003, is currently pending in Congress. The bill was most recently referred to the Subcommittee on Workforce Protections and has yet to receive any amendments. This indicates that the proposal is essentially promising and worthy to be passed as an enforced piece of legislation. The U.S. General Accounting Office however, claims that there are several problems that stand to negatively impact the enforcement of the bill (Worker Protection). These problems include the apparent fact that day laborers are undercounted and that the general contingent workforce fails to make accurate reports of workplace abuse, which increases the difficulty of government investigations. However, the General Accounting Office admits that these issues are of minor concern and can be addressed simply by altering steps in enforcing the policy and by educating day laborers to determine enforcement priorities (Worker Protection).

In conclusion, day laborers and contingent workers are a significant contribution to the economy and provide seeking employers with a flexible workforce; however they are consistently victims of workplace exploitation. As a result, Gutierrez, who recognizes that “there has been little done to regulate and protect these workers,” has introduced the ‘Day Laborer Fairness and Protection Act’ in order to address the abuse inflicted upon them, specifically minimum wage violations, inadequate working benefits/compensation, and unsafe working environments.

References Cited

“Advocating for the working poor and the unemployed.” July 2003. National Employment Law Project. 12 Mar. 2004 < http://www.nelp.org/docUploads/day%20labor%20question%20 and%20answer%2Epdf>.

“Congressional Legislation Details: To Protect Day Laborers from Unfair Labor Practices.” 2004. U.S.A. Today. 20 Mar. 2004 <http://capwiz.com/usatoday/issues/bills/?billnum =H.R.2870&congress=108&size=full>.

Ehrenreich, Barbara. Nickel and Dimed. New York: Henry Holt and Company. 2001.

Gutierrez, Luis. “Day Labor Fairness and Protection Act.” 2003. Committee on Education and the Workforce in the House of Representatives. 11 Mar. 2004 <http://thomas.loc.gov/cgi-bin/query/C?c108:./temp/~c108oi9QhH>.

Gutierrez, Luis. “Day Laborer Fairness and Protection Act Remarks.” 24 Jul. 2003. U.S. House of Representatives, Washington D.C. 16 Mar. 2004 <http://luisgutierrez.house.gov/ issues2.cfm?id=6620>.

“HR Benchmarks: Contemporary Issues in Employment and Workplace Policy.” 1 May 2003. Employment Policy Foundation. 16 Mar. 2004 <http://www.epf.org/research/newsletters/ 2003/hb20030501.pdf>.

“Guide to Strategic Planning for Legislation on Contingent Work.” Sept. 2002. North American Alliance for Fair Employment. 16 Mar. 2004 <http://www.fairjobs.org/fairjobs/con tingent/cwffe.php/>.

National Alliance for Fair Employment. “Contingent Workers Fight for Fairness.” Sept. 2002. FairJobs.org. 17 Mar. 2004 < http://www.fairjobs.org/fairjobs/contingent/cwffe_ execsum.php>.

“Comparison of Nonstandard and Standard Employee Average Wage Range.” Aug. 2000. Quality of Labor Survey, Fairfield Wayne-Co. Area Development Commission. 22 Mar. 2004 <http://www.fairfield-il.com/workforc.htm>

“Worker Protection: Labor’s Efforts to Enforce Protections for Day Laborers Could Benefit from Better Data and Guidance.” Sept. 2002. U.S. General Accounting Office. 19 Mar. 2004 <http://www.uic.edu/cuppa/uicued/tempwork/RESEARCH/LitReviews/GAO %20Day%20Labor.pdf>

Yasui, Luna. Summary of the Day Labor Fairness and Protection Act. July 2003. National Employment Law Project. 14 Mar. 2004 <>.