The Left’s Decriminalization Push Stops Short of Labor Law

Many on the Left appear to believe that their fight to end criminal penalties for marijuana is a step forward for workers’ rights. The Left, after all, has traditionally been a champion of labor unions and the rights of workers. Yet that does not mean that progressives are always on the side of workers.

The California state legislature passed a reform that is supposed to make employers more accountable for labor laws violations. In theory, this reform is intended to provide strong protections against wage theft and other illegal labor practices (i.e., sexual harassment, discrimination, and retaliation). However, as the Center for Economic and Policy Research points out, the reform would not apply to the largest companies in the state, and it would disproportionately impact labor practices of workers in smaller firms. Those firms often have fewer resources to defend themselves against bad-faith employers.

Photo: Getty Images/iStockphoto The left-wing Economic Policy Institute is calling on prosecutors and lawmakers to punish employers for labor law violations that are currently punishable by lesser legal penalties. There are good reasons to take this advice with a grain of salt. A new IPS report continues to lump together different types of workplace violations. At one end of the spectrum are crimes that have long been illegal, such as forced labor or theft of premiums from unemployment or accident funds. Everyone agrees that the corrupt construction worker who left town without paying his crew’s wages committed a crime. The law, which severely punishes these crimes, is not particularly controversial. At the top of the new EPI agenda, however, are violations of the law at the other end of the spectrum. This includes what is known as misclassification, where employees are considered independent contractors or supervisors when a court, state labor board or similar body believes they are not. Another priority for EPI is to circumvent existing wage laws that set government contractors’ wages well above market value. The list also includes restaurant managers’ misconceptions about when and how they may legally participate in tip pooling arrangements, and conduct that an employee considers retaliatory for a workplace complaint. One of the problems associated with criminalizing many such behaviors is the fact that the standards for legal conduct should not be vague, complicated, changing, or opaque. Managers may not know if they are breaking the law, and violations may be innocent or even at the request of the allegedly aggrieved party – as in the case of independent contractors, or in the case of California’s labor laws, when an employee is allowed to continue working during lunch so he or she can leave earlier. Take the main federal wage and hour law, the Fair Labor Standards Act (FLSA). The law was enacted in 1938, but federal courts have yet to resolve disputes over whether service advisors at automobile dealerships are covered by the overtime rule, under what circumstances a union may waive the right to time off to put on and take off protective gear, and when exactly the FLSA clock should start ticking when a flight attendant arrives at the airport. States like California have their own separate and more demanding labor laws, which have been the subject of class action lawsuits that have forced courts to examine everything from meal break times to how apps like Uber and Lyft to do business. Imagine adding to this chaos the threat of lawsuits. Imagine the impact this would have on an ordinary business. The vagueness of the FLSA is the rule, not the exception, in employment law. It is well known that allegations of retaliation are very easy to file, so much so that some plaintiffs’ lawyers include these allegations in most of their cases. The rights of employers and company directors are of secondary importance, even inconvenient, to EPIs. The mens rea principle, which literally means guilty mind and is a widely accepted legal requirement for establishing criminal intent, emerges in the EPI report as a regrettable obstacle to obtaining the desired sentences. It is very difficult to prosecute senior executives for mistakes made on the field. There should be no evidence that senior management knew of or approved the actions. The EPI quotes a law professor as recommending the passage of a law providing for criminal penalties for senior officials who make such incidents inevitable. And the report praises a second law professor who praises the criminalization of employer conduct because it carries a credible threat of imprisonment. The spirit of these proposals stands in stark contrast to the current trend in law schools to rethink the prison state. The report argues that the workplace is not just a space for civil action, as employees can be held liable for crimes such as embezzlement. It’s true that principles like freedom of contract should go both ways, but the report says nothing about laws in places like Pennsylvania and California that explicitly exempt unions and those involved in labor disputes from harassment, intimidation, street harassment, trespassing, and a host of other offenses. Leaders may fear that the IMA’s recommendations will become a new weapon in the hands of unions and organizers, as well as class action lawyers: Pay our demands or we will hold you accountable. The IMA report in no way denies this possibility, but repeatedly urges prosecutors, attorneys general and other law enforcement officials to establish close ties with unions and local organizers and to contact wage and labor lawyers representing plaintiffs in class actions. Indicting managers for common, unregulated, and sometimes even laudable personnel practices (e.g., flexible work hours) is not the way to run a legal system or an economy. Mr. Olson is a senior fellow at the Robert A. Levy Center for Constitutional Studies at the Cato Institute. Main Street: In these excerpts from the Library of Congress interview with Clarence Thomas, the Supreme Court justice talks about his status as a victim, the confirmation process and why he writes so many opinions. Images : AP/Getty Images Compiled: Mark Kelly Copyright ©2020 Dow Jones & Company, Inc. All rights reserved. 87990cbe856818d5eddac44c7b1cdeb8 Appeared in print at 2. June 2021.

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