New 50-State Analysis: Most States Leave Workers Who Report Employer Misconduct Unprotected

Vast Majority of States Leave Workers Who Challenge Wage Theft Unprotected from Retaliation, Chilling Individual and Group Efforts to Expose Violations and Improve Working Conditions

New York, NY—Social justice movements, such as the Fight for $15, #MeToo, and striking Uber drivers, rely on workers to come forward to assert their rights—but workers who dare challenge an employer’s policies or misconduct know that they will almost certainly face retaliation. Even highly-paid Google workers have been forced to protest retaliation following a mass walkout criticizing Google’s handling of sexual harassment. A new NELP survey of laws in all 50 states and the District of Columbia shows, however, that state laws overwhelmingly fail to provide workers with essential retaliation protections.

In Exposing Wage Theft Without Fear: States Must Protect Workers from Retaliation, NELP offers a first-of-its-kind analysis focusing on how state laws protect—or fail to protect—workers when they challenge wage theft by lodging complaints with employers or government agencies, filing lawsuits, or engaging in public actions, for example.

“It is more important than ever to ensure that state laws offer workers strong retaliation protections. The future of workplace conditions and workers’ ability to organize depends on having strong retaliation protections in each and every state,” said Laura Huizar, senior staff attorney with the National Employment Law Project and author of the new report. This is especially true in the wake of the National Labor Relations Board (NLRB) general counsel’s position, articulated in a case recently, that workers who file lawsuits or complaints with government agencies will no longer be entitled to the National Labor Relations Act’s retaliation protections, under the theory that state laws already address retaliation.

Patricia Smith, senior counsel at NELP, former U.S. solicitor of labor, and former New York State labor commissioner, stated: “A worker protection law that does not guarantee strong protection from retaliation will fail to accomplish its objectives. Government agencies and courts at the state and federal levels that have responsibility for enforcing workplace laws ultimately rely on workers coming forward to tell their stories. We cannot expect workers to risk everything without meaningful retaliation protections that can also deter employers from retaliating in the first place.”

The new report’s key findings include the following:

  • Workers in the U.S. generally bear the burden of enforcing their own labor protections—it is up to them to come forward to report violations.
  • Retaliation takes many shapes and can be difficult to pinpoint or prove. Employers, for example, may fire a worker, demote a worker, reduce a worker’s hours, threaten to report a worker or a worker’s family member to immigration authorities, and much more.
  • Retaliation and the fear of retaliation are pervasive for workers across industries and demographics, although low-wage workers, immigrant workers, and women workers are particularly vulnerable.
  • When workers experience retaliation for trying to protect their rights, the costs can quickly escalate financially and emotionally. A worker may experience lost pay, for example, which can quickly lead to missed payments, lower credit scores, eviction, repossession of a car or other property, suspension of a license, inability to pay child support or taxes, attorney’s fees and costs, stress, trauma, and more.
  • NELP evaluated state retaliation protections in the wage theft context to assess which ones offer the most essential protections: (1) a right to monetary damages; (2) a right for workers who prevail in their case to recover attorney’s fees and costs; (3) a right to bring a retaliation complaint to a government agency and also directly to court; and (4) a right for the government to impose a fine.
  • Only six states—Arizona, California, Florida, New York, Oregon, and the District of Columbia—have laws that offer essential retaliation protections for workers challenging wage theft.
  • Six states—Alabama, Georgia, Mississippi, South Carolina, Texas, and Wyoming—do not have any laws on the books to protect workers who challenge wage theft from retaliation.
  • Seven states—Alaska, Kansas, Maryland, New Mexico, Oklahoma, Pennsylvania, and West Virginia—have laws that only create criminal penalties for employers who retaliate against workers when workers challenge wage theft, leaving workers at the mercy of law enforcement agencies that may or may not take up their case.
  • While NELP’s analysis of state laws focuses on laws in the minimum wage context, the stark absence of strong protections nationwide in that space very likely reflects similar gaps when it comes to other workplace protections, such as employment discrimination and harassment, health and safety, and paid sick leave.

Exposing Wage Theft Without Fear: States Must Protect Workers from Retaliation



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