How the Nation’s Top Labor Cop Can Use Data to Drive Enforcement and Protect American Workers
SOURCE: AP/Paul Sakuma
Knowledge is power when it comes to protecting the safety and rights of America’s workers. It’s impossible to enforce laws if you don’t know they are being broken. And even if you know laws are being violated, enforcement is difficult and very inefficient if you don’t have good data showing the biggest problems and worst lawbreakers.
The Department of Labor has had too little of this kind of knowledge for too long. Partly as a result of this blindness, enforcement has been lax and workers have suffered as wage theft and other workplace violations have become rampant. A 2009 study by three leading labor and employment research groups found that more than one in four low-wage workers were paid less than the legally required minimum in the previous workweek. The Obama administration can adequately enforce workplace laws only by dramatically improving DOL’s data collection and analysis capabilities.
Good data practices aren’t sufficient to ensure adequate enforcement of workplace laws by themselves, but data reforms are an essential component of a sound enforcement strategy. DOL will never have enough inspectors to scrutinize every workplace to ensure the laws are being followed, even in flush budget years. Good collection, analysis, and distribution of data about workplace violations can help DOL leverage limited enforcement resources. And good data practices today help ensure the law will be enforced in the future—providing evidence that makes it harder for opponents of worker protections to avoid enforcing the law when they are in power.
Obama’s DOL is beginning to reform its data collection and analysis practices—taking the power of data far more seriously than the previous administration—and the likelihood of real data reform looks especially good since Patricia Smith started as DOL’s new solicitor this week. As the nation’s top enforcer of workplace laws, Smith has a lot on her plate after waiting for Senate confirmation for almost a year. But the emphasis that Smith placed on data driven enforcement while serving as the New York State Commissioner of Labor suggests that she can help transform DOL into a true data leader.
From bad to worse
The Department of Labor’s lack of knowledge about workers getting cheated is by no means due completely to the Bush administration, but their failures (some deliberate) helped let things get particularly bad:
Lack of data on American workers’ safety and well-being limits prevention and enforcement. DOL eliminated an equal employment survey during Bush’s tenure that tracked data on advancement and compensation by race and gender, and eliminated requirements that employers clearly identify in company injury logs when job-related injuries are caused by “ergonomic hazards” such as repetitive motion, lifting, and awkward positions. Both data sets were strong tools for researchers and could be used to target DOL’s prevention and enforcement strategies.
Poor data collection practices denied justice for victims of wage theft and child labor abuses. An undercover investigation by the Government Accountability Office initiated during the final months of the Bush administration revealed that poor data collection practices denied justice for victims of wage theft and child labor abuses. Half of the GAO’s fictitious complaints of violations were not entered into the Wage and Hour Division database, and in one case, the agency neither investigated nor entered in the database a complaint alleging that underage children were operating hazardous machinery and working during school hours. Poor recordkeeping practices inhibit the completion of investigations and make WHD appear better at resolving cases than it actually is when the enforcement database is used to evaluate investigation success rates.
Slow implementation of new technological advances has put miners’ lives in danger. The Bush administration long ignored technological advances that would better protect workers by continuously monitoring and giving them real-time information about coal mine dust levels, which cause fatal black lung disease. This technology had existed for years, but the Bush administration did not release proposed regulations authorizing the use of a new air-quality-monitoring device until three days before the end of his term. And even these regulations would permit mine operators to continue using outdated technology to monitor air quality in lieu of the new techniques.
Failure to update misclassification error reports allows employers to perpetuate serious patterns of abuse. A common way that unscrupulous employers break the law and pay workers and government less than they are owed in wages and taxes is by “misclassifying” employees as independent contractors. Yet comprehensive nationwide government studies of the incidence of misclassification have not been updated since the 1980s, though that data indicated serious patterns of abuse and most observers and smaller scale studies indicate a continued and widespread problem.
Injury and illness underreporting leaves important information missing from OSHA data. Underreporting of worker injuries and illnesses by employers continued to be relatively widespread under the Bush administration. The GAO found, for example, that many occupational health practitioners feel pressure from employers to downplay injuries and illnesses and have observed workers afraid to report injuries and illnesses. Many diagnosed job-related injuries or illnesses do not turn up on the company’s OSHA-mandated injury records as a result.
Obama’s efforts to improve data collection
The Obama administration is taking steps to remedy the sorry state of affairs and is beginning to harness the power of data to enforce Americans’ rights on the job, giving credence to Department of Labor Secretary Hilda Solis’s claim that “there is a new sheriff in town.” One year into her administration, the department has begun the hard work of restarting stalled data programs, cleaning up sloppy collection practices, and thinking fresh about what data can do.
Under Secretary Solis’ leadership, for example, DOL has drafted regulations to restart tracking ergonomic injuries and is working to improve WHD recordkeeping techniques. The president’s recently released 2011 budget also includes $25 million for DOL to work with the IRS to track and enforce worker misclassification, estimating that this effort can increase tax receipts by $7 billion over 10 years.
And as part of the Obama administration’s Open Government Initiative, OSHA recently posted searchable, site-specific injury-rate data on its website, which it collects from approximately 80,000 employers annually in only the highest-risk industries.
The administration deserves praise for recognizing the importance of these kinds of data practices—not only at DOL, but also government-wide with its Open Government Initiative and other similar efforts.
Citizens, good government, worker advocates, and responsible business owners will need to stand up for good workplace data because, sadly, these kinds of reforms draw significant opposition. The U.S. Chamber of Commerce is already organizing to prevent the collection and disclosure of ergonomic injury data, and conservatives in the past have fought tooth and nail to oppose measures aimed at increasing the transparency and accountability of government enforcement programs.
A data driven enforcement agenda
There is far more that the administration can do with data beyond its important first steps to improve enforcement activities. DOL, working with Congress when necessary, should use data to drive an enforcement agenda across the department’s enforcement agencies and can do so by:
- Collecting more accurate, comprehensive, and timely data, and using it to target enforcement to problem areas
- Making data publicly available to amplify accountability
- Requiring the private sector to take greater responsibility for data collection and analysis
By implementing rigorous procedures, DOL can improve enforcement of worker protections now and preserve high-quality enforcement programs in the future even if the next administration does not place the same emphasis on workers’ rights.
Collect more accurate, comprehensive, and timely data, and use it to target enforcement to problem areas
DOL can improve compliance with worker protection laws by improving data collection processes, using enforcement data to identify and target the worst offenders, and facilitating data sharing across the department. It can also ensure that all enforcement agencies reach high standards and facilitate continuous improvement by monitoring data practices across the agencies and sharing best practices.
DOL is currently fixing many broken data collection processes and improving data accuracy. For example, WHD administrators are working to upgrade basic recordkeeping practices after a GAO study documented how workers’ complaints on unpaid wages and child labor go unrecorded and uninvestigated.
But DOL must do more than fix what is broken.
Once it improves data collection, DOL can harness this information to accurately target the worst lawbreakers with strategic enforcement initiatives.
The Bush administration underused targeting research at WHD and as a result relied too heavily on complaint-driven investigations. Infrequent updates to targeting research at OSHA meant that high-hazard industries weren’t targeted and audits to ensure the accuracy of employer-reported data frequently overlooked information that should have been collected from workers. Overreliance on complaint-driven investigations and outdated targeting places an unfair burden on workers. Workplaces with the worst violations are often locations where workers are least empowered and the least likely to report problems—for example, youth or immigrant workers.
President Obama’s DOL has introduced new targeting initiatives—for example, OSHA’s new National Emphasis Program targets firms within high-injury-rate industries with self-reported accident rates so low they are suspected to be underreporting. But DOL can do more. The WHD, in particular, must explore new ways to use data to strategically target lawbreakers.
The department can also use data to target and “reduce the number of repeat violators of minimum wage, overtime, and workplace safety laws”—a high-priority goal Secretary Solis recently identified in testimony before the House of Representatives Education and Labor Committee. When DOL finds one workplace violation at a firm, there may be other kinds of violations at that site. But there is currently no easy way for investigators in one of DOL’s enforcement agencies to research or target firms based on whether they have committed other types of workplace violations. Enforcement databases are siloed and data sharing is rare.
The department’s long-term goal should be to create a single enforcement database. But it can facilitate data sharing in the near term through the adoption of accurate identification numbers for every employer. Such a system will allow investigators to efficiently track past violations across divisions. These identification numbers should also allow the department to accurately track parent companies and other complicated employment relationships. For example, a firm may be owned, operated, and branded by different companies.
Data sharing is a first step in breaking down the silos between enforcement agencies, but DOL should also ensure that all enforcement agencies are continuously improving their data collection practices and use limited resources wisely. The secretary’s policy office, or another department-wide body, can drive such an agenda by disseminating best practices in data collection among the agencies, analyzing enforcement data, and even exploring opportunities to combine data collection and enforcement reporting requirements across agencies. And the Office of the Solicitor—as the leader of department-wide enforcement strategies—can help demand such quality data practices. This kind of high-level, cross-department attention is needed to transform DOL data collection and analysis.
Make data publicly available to amplify accountability
Access to enforcement data is an important step toward increasing public accountability. The public can often shine light on practices that are unacceptable and get them changed. And the public’s ability to do so can sometimes limit abuses in the first place.
Company-specific data on violations and comprehensive annual enforcement data from agencies are both valuable public reporting measures. Cumulative enforcement and injury rate statistics—focused on DOL enforcement efforts across an entire enforcement agency—should give the public accurate information on whether DOL is focusing efforts on specific industries, increasing enforcement actions, and improving overall compliance. Reporting on specific companies should allow the public, advocacy groups, and particularly victims to track enforcement results, exert pressure on specific scofflaw employers, and hold DOL accountable when complaints are not adequately investigated. Yet there is little consistency in DOL’s online reporting, and there is no single site on the web for the public to access all this information.
WHD must begin posting company-specific data on enforcement actions online. In addition to its current data collection and disclosure efforts for the riskiest industries, OSHA should begin requiring all large companies to report injury and illness rates and make this data publicly available online. This would allow the public—including a company’s own workers and shareholders—to monitor whether employers are accurately reporting these data to DOL. And DOL can help these workers and shareholders understand the effectiveness of OSHA’s entire framework for establishing and enforcing essential job safety and health rules by linking this injury-rate data to DOL’s own enforcement activities.
DOL can also strengthen accessibility by creating a centralized website containing workplace enforcement data from all the department’s enforcement agencies. The department should work toward the creation of a site similar to USASpending.gov—a user-friendly, comprehensive source for information on all recipients of federal government contracts and grants.
This database highlights the importance of public oversight: It was modeled after a similar website created by OMB Watch, a good government advocacy group. The first site—FedSpending.org—consolidated and cleaned up data from government sources and put it into an easy to understand format after years of frustration over not being able to obtain information about federal contracts and grants.
Advocacy organizations, journalists, and even “policy wonk hobbyists” are increasingly using new online technologies to supplement government information strategies, make the information more usable for others, and drive government reforms. In another example, researchers at Syracuse University have created TracFed, a website that pulls together public information about federal government’s criminal, civil, and administrative enforcement actions.
Require the private sector to take greater responsibility for data collection and analysis
Private sector involvement is critical to improved data collection. Limited funding and enforcement staff means that DOL will never be able to scrutinize every workplace to ensure that they are following the laws. By encouraging businesses to take greater responsibility for collecting and analyzing workplace violations, DOL can better track workplace injuries, get a more sophisticated understanding of companies’ complex employment relationships, and hold firms responsible for correcting hazards and violations across their entire workforce.
New reporting requirements should include disincentives to stop employer misconduct and underreporting—as evidenced by the recent GAO report on the serious problem with underreporting of workplace injuries.
As discussed above, OSHA has taken an important first step with draft regulations that would reinstate Clinton-era requirements that companies identify job-related injuries from ergonomic hazards in their injury and illness logs. This will make it possible for the workers, companies, OSHA, and the public to get a more accurate and useful count of injury rates related to ergonomic hazards, and introduce voluntary programs to prevent such injuries. The U.S. Chamber of Commerce is organizing against this measure even though the regulation will not add significantly to employers’ recordkeeping burden—firms would simply “check a box” in injury logs to designate ergonomic injuries.
There are also other ways that DOL can strengthen private sector recordkeeping and reporting as a means of improving industry-wide compliance. DOL’s enforcement agencies lack a complete picture of companies’ ownership structures and can miss patterns of abuse. DOL must therefore do a better job of tracking compliance across complex employment structures. It can do so by requiring all large companies to report on workplace employment and compliance information across their entire workforce, and requiring general contractors or owners at construction sites and other complex locations where multiple employers are present to report such worksite information for the entire site. This may require DOL to work with Congress to clarify the authority for such reporting rules. But it would allow DOL to identify employment, compliance, and injury and illness trends that may not otherwise be apparent.
DOL already requires companies to submit annual, corporate-wide information on worker demographics to the Equal Employment Opportunity Commission, as well as mine ownership, safety, and injury data to the Mine Safety and Health Administration. There is no reason given the capabilities of current technology that DOL should limit its data collection to only these sectors and issues.
DOL should also require large, multi-site employers cited for serious wage theft violations or worker safety and health violations at one location to take measures to ensure that these sorts of violations are not occurring at other sites. DOL can do so by requiring cited firms to report the existence of similar violations at all other locations, take corrective action, and report on these actions as well as management systems put in place to prevent future violations. If the department finds subsequent violations at any of the employer’s sites, the firm would receive increasingly stronger penalties. These proactive reporting requirements would supplement enhanced inspection programs for the most egregious violators and also improve overall compliance levels for lesser violations, which are not always subject to follow-up inspection.
Data collection, quality and use are not the sexiest topics, but discounting their importance jeopardizes American workers’ rights and safety. An agenda that focuses on collecting more accurate data and using the data to target enforcement to problem areas, making data publicly available, and encouraging the private sector to take greater responsibility is smart and progressive government.
President Obama’s DOL is just getting started when it comes to harnessing the full power of enforcement data. DOL will never have enough inspectors to scrutinize every workplace to ensure laws are being followed. But by using data to drive DOL enforcement priorities, the Obama administration can help reduce workplace illness and injuries, ensure workers are paid fair wages, and create a culture of accountability now and in the future.
For more information, see the American Worker Project.
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