To successfully improve conditions for workers, legislation on workers’ boards should contain a number of core features. These elements are described in more detail below.
Purpose and mandate of a workers’ board
The primary task of a workers’ board is to improve conditions for workers throughout an occupation, sector, or industry. In order to maximize efficacy, a board’s mandate should extend to improving wages, benefits, and workplace standards, and their purpose should be unambiguous. A clear purpose statement works to provide important direction to the board as well as to any administrative officials or courts that might ultimately review the board actions.
The nearly century-old laws that created the New York state and California wage boards provide examples of strong purpose statements. They clearly describe the harms that come from low wages and boldly state that it is the policy of the state to eliminate these harmful environments.16 For example, New York law states:
There are persons employed in some occupations in the state of New York at wages insufficient to provide adequate maintenance for themselves and their families. Such employment impairs the health, efficiency, and well-being of the persons so employed, constitutes unfair competition against other employers and their employees, threatens the stability of industry, reduces the purchasing power of employees, and requires, in many instances, that wages be supplemented by the payment of public moneys for relief or other public and private assistance. Employment of persons at these insufficient rates of pay threatens the health and well-being of the people of this state and injures the overall economy. Accordingly, it is the declared policy of the state of New York that such conditions be eliminated as rapidly as practicable without substantially curtailing opportunities for employment or earning power. To this end minimum wage standards shall be established and maintained.
N.Y. Lab. Law §650.
Still, these long-standing purpose statements could be improved, as they use language that is dated and, in some cases, too limited. For example, New York’s law focuses on wages while neglecting benefits and many working conditions. A Washington state proposal contains updated language. It emphasizes the harm that the fraying of the social contract caused and directs the boards to provide a safety net to all workers covered by the board’s authority.17 New statutes could build on this approach, acknowledging current challenges facing workers and directing boards to improve not only wages but also a broader suite of standards.
Decision guidelines: Statutes should also provide specific direction to boards regarding the standards to be achieved for workers.18
The federal Domestic Workers Bill of Rights Act instructs boards to issue recommendations that
promote the health, safety, and well-being of domestic workers; and … achieve a living wage for domestic workers.
Domestic Workers Bill of Rights Act, S.2112 (2019), §201(a)(1).
Proposed legislation in Washington provides perhaps the most aspirational standard by calling for
wages and benefits necessary to provide for the full participation in society.
Wash. Senate Bill 5690 (2019), §37(1)(a).
The statutes should also empower boards to set wage scales that provide higher pay commensurate with greater skills, experience, and location.19 Critically, boards should be empowered to set minimums based on standards that prevail for workers with similar skills in similar industries so that the industrywide standards reflect standards achieved in collective bargaining as well as other goals.20 The statute should also make clear that prevailing wages should not create a ceiling on recommendations. Thus, in occupations and areas where the prevailing wage is high, board recommendations could recognize that standard as the floor; in areas where the prevailing wage is low because collective bargaining is limited or nonexistent, workers’ boards should push beyond what prevails.
For boards to function effectively, their members must fairly represent the relevant workers and businesses; that is, boards should not simply reflect the desires of the current executive. The selection process should encourage workers as well as businesses to join together in representative organizations. There are different ways to design a selection process to achieve these goals. One possibility is to enable a government official—typically the secretary or commissioner of the relevant labor agency—to appoint members based on certain criteria that ensure representativeness. This can best be achieved by requiring the government to select candidates that have demonstrated they represent a sufficient number of workers in the industry.21 Another option is to provide for the election of representatives. For example, the recent Maine home care ballot initiative would have created a system for all home care workers to vote for their representatives.22
Where multiple organizations meet the representativeness threshold, the statute should specify either that the most representative organization should be selected or that several representatives should be selected proportionate to their representativeness. In cases where there are not yet any organizations that can demonstrate they represent a sufficient number of workers in the industry, nominations can be constrained to the organizations most likely to represent the interests of the workers and businesses.23
The statute should also make clear how board membership is to be divided. Board membership is usually split three ways among representatives of workers, employers, and the public or the government. At times, however, it might make more sense to provide for direct negotiations between workers and employers by creating evenly split boards that incorporate an arbitration process in the event of a stalemate, subject to state or local governmental review.24
The Washington state proposal includes the following exemplary board selection language for independent contractors and their hiring firms, referred to as “contributing agents” in the legislation:
(2)(a) Worker positions must be distributed among validated worker representatives25 in accordance with the number of workers the organization represents. Validated worker representatives must appoint individuals for each of the seats they are allotted.
(b) Contributing agent positions must be distributed among validated contributing agent representatives in accordance with the number of intermediary employees the organization represents. Validated contributing agent representatives must appoint individuals for each of the seats they are allotted.
(c) If there are more validated organizations than seats, only the most representative organizations are to be seated on the board.
(d) The director of the department must appoint the department representatives.
Wash. Senate Bill 5690 (2019), §36.26
This language could be adapted for more general use.
Where legislation authorizes workers’ boards for multiple occupations or industries, each board would have separate membership. Boards called to make recommendations about the restaurant industry would, for example, include representatives of restaurant workers and employers, while boards about transportation or delivery would include workers and firm representatives from those industries. For boards that deal with a single sector, such as child care or home care, where consumers may be particularly motivated and organized to promote high standards, it may be beneficial to place consumer representatives on the board with workers and firms. Oregon’s proposed long-term care wage board act provides a useful model of this type of board selection process.
(2)(a) The commissioner shall solicit recommendations of qualified individuals from any source including a labor organization, provided that the labor organization maintains a membership of at least 100 members. The commissioner shall select members from the recommendations as follows:
(A) Three members who represent long term care employees;
(B) Three members who are employers who hire long term care employees; and
(C) Three members who represent the interests of individuals who receive long term care services.
(b) If the commissioner does not receive a sufficient number of recommendations, the commissioner may appoint any remaining positions on the board, in any combination, from among the following:
(A) An employer who employs long term care employees;
(B) A labor organization that represents the interests of long term care employees; and
(C) A representative of a long term care facility or other facility that is responsible for individuals receiving long term care services.
Or. House Bill 2490 (2019), §1.
The statute should also specify the size or size range of the boards. The choice of the number of representatives on the board reflects a compromise between providing sufficiently broad representation while maintaining a small enough group for ease of operation. Cities and states have found a variety of workable configurations. For example, the boards in New York have three members, or up to nine,27 and California has five,28 while Seattle began with nine and is increasing to 13.29
In any event, all board decisions would ultimately be endorsed by the government in order to go into effect. A designated executive branch official would review the recommendations to ensure they comply with the statutory mandate.30
Ultimately, the method of selecting board members is important for ensuring the fairness and efficacy of the boards. Selection strategies are also important insofar as they can help build power for worker organizations as they provide an incentive for groups to organize workers and a reason for workers to join.
Board authority and responsibilities
Boards need the authority to gather relevant information through hearings and investigations as well as the ability to issue recommendations that cover a range of workplace issues. These elements enable boards to make effective and well-informed recommendations for minimum wage rates, benefits, and workplace standards.
Investigations and hearings
Boards should have the authority to conduct fact-finding and outreach activities.31 These activities include ordering depositions, subpoenaing testimony, administering oaths, holding public hearings, consulting employers and employees, and conducting surveys. They also include producing reports and conducting public outreach about the programs, similar to what is outlined in New York state labor law:
The wage board shall have power to conduct public hearings. The board may also consult with employers and employees, and their respective representatives, in the occupation or occupations involved, and with such other persons, including the commissioner, as it shall determine. The board shall also have power to administer oaths and to require by subpoena the attendance and testimony of witnesses, and the production of all books, records, and other evidence relative to any matters under inquiry. Such subpoenas shall be signed and issued by the chairman of the board, or any other public member, and shall be served and have the same effect as if issued out of the supreme court. The board shall have power to cause depositions of witnesses residing within or without the state to be taken in the manner prescribed for like depositions in civil actions in the supreme court. The board shall not be bound by common law or statutory rules of procedure or evidence.
N.Y. Lab. Law §655(3).
To improve upon the New York model, legislation could also require boards to hold a minimum number of hearings and mandate that workers and other affected constituencies be notified about the hearings. Engaging workers in the hearings provides an important opportunity for the board to receive information and also creates opportunities for workers to come together.32 California law provides important notification requirements.33 The proposed federal Domestic Workers Bill of Rights Act provides a model for general hearing requirements:
(A) IN GENERAL.—The Board may hold such hearings, meet and act at such times and places, take such testimony, and receive such evidence as the Board considers advisable to carry out this section.
(B) REQUIRED PUBLIC HEARINGS.—The Board shall, prior to issuing any recommendation under this section, hold public hearings to enable domestic workers across the United States to have access to the Board. Any such public hearing shall—
(i) be held at such a time, in such a location, and in such a facility that ensures accessibility for domestic workers;
(ii) include interpretation services in the languages most commonly spoken by domestic workers in the geographic region of the hearing;
(iii) be held in each of the regions served by the regional offices of the Wage and Hour Division of the Department of Labor; and
(iv) include worker organizations in helping to populate the hearings.
Domestic Workers Bill of Rights Act, S.2112 (2019), §201(f)(1).
Scope of recommendation authority
Boards should have clear responsibilities for evaluating and making recommendations on a wide range of worker issues, including wages, benefits, and working conditions.
Oregon’s proposed board provides a good model of broad authority not limited to wage rates. Its board would specifically examine challenges to recruiting and retaining long-term care employees. Similar language could be used to address working conditions for a variety of workers:
(10) The board shall:
(a) Evaluate and make findings regarding factors that may contribute to a shortage of a skilled long term care workforce including, but not limited to:
(A) Compensation rates; and
(B) Lack of health care benefits or other paid benefits including, but not limited to, paid family leave, sick leave or retirement benefits; and
(b) Make recommendations regarding:
(A) Strategies that define uniform standards for training and education for long term care employees;
(B) Proposed increases to the hourly minimum wage paid to long term care employees; and
(C) Improvements to working conditions, including work schedules and workplace standards relating to safety.
(11) In addition to the duties prescribed to the board under subsection (10) of this section, the board shall annually review the compensation rates paid to long term care employees in this state. The board shall prepare and approve by a majority vote a recommended compensation schedule for long term care employees.
Or. House Bill 2490 (2019), §1.
The federal and Seattle Domestic Workers Bill of Rights as well as the Washington state independent contract board also provide useful models for the scope of recommendation authority.34
The history of workers’ boards shows that some are much more active and do a better job promoting the interests of workers, while others can lay moribund for decades. To achieve the intended goal of improving standards for workers, boards should be structured with a bias for action. Boards should also operate based on democratic procedural rules. Finally, legislation should provide protections for workers if the board fails to act.
Permanent, staffed institution making regular decisions
The board should be established as a permanent institution so that it is always available to act35 and should be required to issue new determinations every few years so that decisions keep up with the times.
For example, the federal Domestic Workers Bill of Rights Act would require:
Not later than 1 year after the date of enactment of this Act, and every 3 years thereafter, the Board shall issue recommendations to the Secretary.
Domestic Workers Bill of Rights Act, S.2112 (2019), §201(e)(1)(a).
A threshold number of workers or employers should be able to call the board to act in case there are significant issues in the industry that need to be resolved before the next regularly scheduled decision.
For example, under Washington state’s proposal:36
Once any eligible worker representative provides a showing of interest by presenting evidence that they represent the lesser of two hundred fifty covered intermediary employees or one-half percent of the industry, the department must indicate that the organization is validated, and a workers’ board must be established in the industry.
Wash. Senate Bill 5690 (2019), §34(2).
Boards should provide compensation for members and/or reimburse members for expenses incurred during board activities.37 Boards should also have the ability to use state labor agencies for administrative, logistical, and research support38 and have at least one full-time staff member39 to help with operations. Authorizing statutes should provide clear funding mechanisms for these board activities. Boards should receive funding through the agency that oversees them. This general funding can be supplemented by funds from penalties and fees. For example, a portion of penalties collected during enforcement can go toward board activities, as Oregon has proposed,40 or employers could be required to contribute a small fee, similar to what Washington state has proposed to support board enforcement activities.41
Board legislation should specify a quorum, voting requirements, and the boundaries of action. Two-thirds of members should constitute a quorum. For most recommendations, a majority vote should be sufficient to win approval.42 However, for any recommendation that would reduce worker compensation or standards from previous board recommendations, a higher hurdle should be met, with reductions requiring agreement from a majority of each of the worker, employer, and government representatives or even unanimous consent. This ensures that all parties agree that reductions are necessary. The law should also make clear that boards can never go below statutory minimums, although they can exceed them. As discussed further below, the Washington state proposal contains model language for these requirements.
Policymakers should set up procedures for what to do if the board fails to reach a conclusion or submit its report in a timely manner. These procedures should include requirements that prior board decisions automatically increase with inflation. This ensures that workers do not lose ground as the result of inaction but still have an incentive to encourage the board to act so they can potentially receive larger increases.
Washington state’s proposed legislation provides a model for promoting action as well as ensuring that workers are protected in the event of either action or inaction:
Sec. 37 (2) Every three years, the workers’ board must issue determinations on aspects of the industry that affect workers’ well-being.
Sec. 37 (3) The standards established by the workers’ board may meet or exceed, but may not fall below, standards established in statute, including minimum wages established in chapter 49.46 RCW, and established in this chapter, including minimum rates, benefit contributions, or the proportion of benefit contributions allowable for administrative purposes. (4) If an established workers’ board fails to make determinations under this section within any four-year period, the department must institute increases in the minimum rates and benefit contributions for the industry in accordance with inflation as determined by the department.
Sec. 38 (3) Determinations by the workers’ board must be set through majority vote. However, a majority of validated worker representatives, validated contributing agent representatives, and state representatives is required for determinations that decrease rates or worker protections.
Wash. Senate Bill 5690 (2019) §37(2), §§37(3-4), and §38(3).
Implementation of board recommendations
Board recommendations should quickly lead to implementing action, subject to appropriate government oversight.43 Ultimately, the governmental body that reviews and approves board decisions should not be able to ignore board recommendations and instead should be compelled to deal with them in a process that favors adopting the board recommendations as long as they are consistent with statute. For example, under the original federal Fair Labor Standards Act, the U.S. Department of Labor was bound to adopt wage board recommendations as long as they were above the minimum and in accordance with statutory standards.44 Certain state board recommendations follow a similar blueprint.45 In California, for example, board recommendations that receive two-thirds support are automatically incorporated into proposed regulations, which are then subject to public comment and become law unless the government finds “no substantial evidence to support such recommendations,” while majority decisions can become law through a similar regulatory process.46 Mandating that the government provide a reason for not approving board recommendations makes it more difficult for the government to reject board recommendations for purely political reasons and creates a bias toward action.47
Statutes should also require the review and adoption of board recommendations within a certain time period. For example, the proposed Domestic Workers Bill of Rights as well as New Jersey and New York law require the government to accept or reject board recommendations within a certain number of days of receipt.48
Under New York labor law:
[T]he commissioner shall by order accept or reject the board’s report and recommendations within forty-five days after filing with the secretary of the department. The commissioner may by such order modify the regulations recommended by the board. Such order of the commissioner shall become effective thirty days after publication, in the manner prescribed in this section, of a notice of such order. The commissioner may, within forty-five days, confer with the wage board, which may make such changes in its report or recommendation as it may deem fit. The commissioner also may, within such forty-five days, remand the matter to the board for such further proceeding as he may direct.
N.Y. Lab. Law §656.
To ensure compliance with board standards, strong enforcement mechanisms are required. Wage theft is already a significant problem and could get much worse if boards increase standards without providing for additional enforcement tools.49 Enforcement strategies are also important because they can help empower workers, leading to greater compliance over time.
Effective enforcement starts with adequately empowered and funded government inspectors who can investigate potential violations, issue findings of fact, pursue civil penalties, and order corrective action. Furthermore, to ensure compliance with standards, the law should provide for sufficient monetary penalties50 and a private right of action for workers to access courts and recover unpaid wages and overtime compensation, along with interest and costs.51 It should also require employers and hiring entities to provide workers with notice of their rights.52
The most successful labor enforcement models recognize the critical role worker organizations play in ensuring compliance. Vulnerable workers are frequently afraid to talk to government officials, but worker organizations are more likely to have workers’ trust as well as information about what is happening in the worksite.53 Thus, the best enforcement models empower worker organizations to act as co-enforcers. They also provide funding for worker and community groups to conduct education and enforcement activities; enable these organizations to benefit from enforcement lawsuits; and provide these organizations with access to information and workplaces to facilitate enforcement and worker education.
Washington’s proposed Universal Worker Protections Act provides a model for co-enforcement and also directs employers to help fund compliance efforts:
(3) In addition to any remedies provided by the department to an eligible beneficiary for a contributing agent’s noncompliance, an eligible beneficiary may bring a private cause of action against a contributing agent for the contributing agent’s failure to comply with the contribution requirements under this chapter.
(4) The department must adopt rules to implement and administer performance of workers’ boards within this chapter, including:
(a) Allowing represented workers to report violations of portable benefit contribution requirements or compliance with board determinations to the department. The department must investigate these complaints with the same diligence as any other employment or labor law violation;
(b) Providing validated worker representatives with standing to file complaints on the behalf of represented workers; and
(c) Establishing monetary penalties for a contributing agent found to be in violation of the standards established by the board. The department must set the amount of monetary penalties at no less than three times the amount owed in wages or benefit contributions. If the penalty results directly from a complaint by a benefit provider or validated worker representative, the collected award must be split between the department and the complainant.
Wash. Senate Bill 5690 (2019), §44.
(1) The department must contract with eligible worker representatives to implement outreach and education to eligible beneficiaries and covered intermediary employees.
(2) Organizations conducting outreach and education must educate eligible beneficiaries and covered intermediary employees about their legal rights, and help eligible beneficiaries and intermediary employees file reports of violations of laws and standards, including portable benefit contribution requirements and standards established by the workers’ board.
(3) Contributing agents must provide organizations conducting outreach and education access to workers through all reasonable means including, but not limited to, worksites, user data, and payment data.
Wash. Senate Bill 5690 (2019), §45.
Scope of coverage
A key choice facing localities that want to develop workers’ boards is to decide what categories of workers to cover. The most ambitious approach is to cover all workers in the state no matter what industry they work in or whether they are an employee or independent contractor. State policy should also ensure that all workers are properly classified.54 Such broad coverage would ensure that all workers can benefit from the workers’ board decisions and would prevent standards from being undercut by firms that categorize workers as outside the scope of the board.
Broad coverage requires granting the government entity overseeing the board with the authority to determine sectors and occupations. Several states follow this approach, covering almost every industry and occupation in the state, although they only cover employees.55 Some more narrowly targeted boards—such as Seattle’s domestic worker ordinance—cover both independent contractors and employees.56 Drawing from each of these approaches, a model policy would cover all industries and would mandate coverage for both employees and independent contractors. When including both, the law could state that independent contractors receive a premium to compensate for the additional costs they bear such as for workers’ compensation and employer-side Social Security taxes and equalize the savings that firms receive by categorizing workers as independent contractors.57
In cases where authorizing legislation covers all workers, policymakers may want to prioritize board action in certain industries and occupations.58 One option would be to require that boards meet within the first year after enactment for occupations and industries where the median wage is significantly less than the regional median wage and within the first three years for other occupations and industries.
On occasion, there may be reasons to create a wage board for specific sectors or occupations such as for domestic workers,59 agricultural workers,60 independent contractors,61 or subsets of these groups that have been left out of traditional labor and employment law. Indeed, laws that cover only workers excluded from the National Labor Relations Act could, in most cases, provide for additional labor rights that would otherwise be preempted by federal labor law.62 For example, a state could establish a system to provide domestic workers or agricultural workers with union and collective bargaining rights, along with the right to participate in worker boards.63 Policymakers could also follow the lead of the Washington state independent contractor proposal, which would create a portable benefits fund run by workers.64
Worker participation and power building
In order for boards to fulfill their mission, they also need to encourage worker participation and organization. Only with robust worker engagement and organization can fair deliberations and evenly matched negotiations occur. Without increased worker power, boards may not act in the public’s best interest and instead may favor the interests of more powerful employers. Increased worker participation and organization can also lead to benefits beyond better board decisions, including greater voter turnout and public policies that are more representative of the interests of low- and middle-income Americans.65 Worker engagement in board activity might also lead to more direct forms of bargaining because boards would generate a tradition of workers and employers negotiating.66
The goal of empowering workers should run throughout board processes. That is, worker empowerment should be promoted through numerous board elements, including the process of selecting representatives, the design of public hearings and notifications, the creation of worker-led benefits’ funds, and the creation of co-enforcement, as described previously. The law should also ensure that workers have strong rights to participate in board processes and that they are protected against retaliation. Finally, the law should encourage organizations to reach out to workers and engage them in board activities.67 (Note that workers’ board legislation can also strengthen workers’ bargaining position with elements outside of board processes, such as though provisions that ensure workers are properly classified as employees,68 and by requiring that workers receive written contracts that are free of mandatory arbitration, nondisclosure clauses, and noncompete clauses, as the federal domestic worker legislation proposes.69)
Right to participate and release time
Workers’ board legislation should prohibit employers from retaliating against workers who participate in or express support for board activities and should provide strong penalties and enforcement mechanisms for violations of anti-retaliation rules.70
Seattle’s Ordinance provides a model for protecting workers’ rights:
A) No hiring entity or any other person shall interfere with, restrain, deny, or attempt to deny the exercise of any right protected under this Chapter 14.23.
B) No hiring entity or any other person shall take any adverse action against any person because the person has exercised in good faith the rights protected under this Chapter 14.23. Such rights include but are not limited to the right to make inquiries about the rights protected under this Chapter 14.23; the right to inform others about their rights under this Chapter 14.23; the right to inform the person’s hiring entity, union or similar organization, and/or the person’s legal counsel or any other person about an alleged violation of this Chapter 14.23; the right to file an oral or written complaint with the Agency or bring a civil action for an alleged violation of this Chapter 14.23; the right to cooperate with the Agency in its investigations of this Chapter 14.23; the right to testify in a proceeding under or related to this Chapter 14.23; the right to refuse to participate in an activity that would result in a violation of city, state or federal law; and the right to oppose any policy, practice or act that is unlawful under this Chapter 14.23.
C) No hiring entity or any other person shall communicate to a person exercising rights protected under this Section 14.23.070, directly or indirectly, the willingness to inform a government employee or contracted organization that the person is not lawfully in the United States, or to report, or to make an implied or express assertion of a willingness to report, suspected citizenship or immigration status of a domestic worker or a family member of the domestic worker to a federal, state, or local agency because the domestic worker has exercised a right under this Chapter 14.23.
D) It shall be considered a rebuttable presumption of retaliation if the hiring entity or any other person takes an adverse action against a person within 90 calendar days of the person’s exercise of rights protected in this Section 14.23.070. However, in the case of seasonal employment that ended before the close of the 90 calendar day period, the presumption also applies if the employer fails to rehire a former domestic worker at the next opportunity for work in the same position. The hiring entity may rebut the presumption with clear and convincing evidence that the adverse action was taken for a permissible purpose.
E) Proof of retaliation under this Section 14.23.070 shall be sufficient upon a showing that the hiring entity or any other person has taken an adverse action against a person and the person’s exercise of rights protected in Section 14.23.070 was a motivating factor in the adverse action, unless the hiring entity can prove that the action would have been taken in the absence of such protected activity.
Seattle Mun. Code §§14.23.070 (A-E).
Legislation should also require that employers grant workers reasonable leave—ideally, paid leave—to participate in board activities. Oregon’s proposal includes leave as well as workers’ rights protections.71
Opportunities for worker outreach and engagement
The mere existence of rights is not sufficient to promote worker engagement. Rights do not necessarily translate into increased worker participation and power, especially because there is an inherent collective action problem in workers’ boards, where workers can benefit from the efforts of others. Accordingly, boards need to take proactive steps to encourage and incentivize workers to organize and participate. There are several ways to do so, as outlined below.
First, legislation should bring workers and their organizations into the delivery of any board benefits.72 For example, if board recommendations include workforce training, that training should be required to be provided by a labor management partnership.73 Engaging worker organizations in benefit provision is a proven strategy to improve the delivery of government benefits as well as to increase organizational membership.74
Second, legislation should ensure that worker organizations are able to access workers to engage them in board activity. For example, proposals in Washington state75 and Maine76 would provide authorized worker organizations with worker contact information.77 Care needs to be taken to ensure that this sensitive information only goes to organizations that workers control democratically.78
Third, legislation should enable workers to contribute to worker-controlled organizations of their choice through paycheck deduction and transfers. Such donations will help organizations be effective participants in the board processes. A New York City law provides a useful model.79