The left-leaning Economic Policy Institute calls on prosecutors and state lawmakers to seek criminal punishment of employers for workplace and labor-law violations that are currently addressed through less serious legal sanctions. There are good reasons to be wary of this advice.
EPI’s new report persistently lumps together different kinds of workplace infractions. At one end of the spectrum are offenses that have long been illegal, such as forced labor or theft of premiums intended for unemployment or injury funds. Everyone agrees that a crooked construction boss who skips town without paying his crew’s wages has committed a crime. There is little controversy over the law coming down hard on offenses like these.
High on EPI’s new prosecutorial agenda, however, are legal infractions at the other end of the spectrum. These include so-called employee misclassification, in which workers are designated as independent contractors or supervisors when a court, state labor agency or similar authority thinks they shouldn’t be. Another EPI priority is the sidestepping of prevailing-wage laws, which set public contractors’ wages well above market value. Also on the list are miscalculations by restaurant managers about when and how the law allows them to engage in tip pooling and conduct that an employee considers retaliation for a workplace complaint.
Among the problems with criminalizing many of these behaviors is that standards for lawful conduct can be impossibly vague, complex, changing or opaque. Managers may have no way of knowing whether they’re violating the law, and infractions may be victimless or even occur at the request of the purportedly victimized party—as with independent contractors or, in the case of California labor law, letting an employee work through lunch so he can leave early.
Consider the main federal statute in the wage-and-hour field, the Fair Labor Standards Act (FLSA). It became law in 1938, but federal courts are still being asked to resolve disputes over whether service advisers at car dealerships are subject to overtime requirements, under what circumstances a union can waive the right to be paid on the clock for donning and doffing protective gear and exactly when the FLSA clock should start running when a flight attendant arrives at the airport. States like California have their own separate and more demanding labor codes, which have been the subject of high-stakes class actions inviting courts to declare unlawful everything from the timing of meal breaks to the way apps like Uber and Lyft do business.