Worker Protection
Labor's Efforts to Enforce Protections for Day Laborers Could Benefit from Better Data and Guidance Gao ID: GAO-02-925 September 26, 2002Day laborers generally are individuals who work and get paid on a daily or short-term basis. To find work, they often congregate on street corners and wait for employers to drive by and offer them work. Day laborers may also be employed by temporary staffing agencies that assign them work on a daily basis with client employers. Day laborers have an informal relationship with the labor market, often working for different employers each day, being paid in cash, and lacking key benefits, such as health or unemployment insurance. However, day laborers may be eligible for wage and safety protections provided by the Fair Labor Standards Act (FLSA) and the Occupational Safety and Health (OSH) Act. The U.S. Department of Labor administers both acts. Its Wage and Hour Division (WHD) is responsible for ensuring that all covered workers receive at least the federal minimum hourly wage and overtime pay. The Occupational Safety and Health Administration (OSHA) is required to ensure that employers provide safe and healthy workplaces to help their workers avoid injury or death. Coverage under both laws does not depend on a worker's immigration status. Although limited, information on the nature and size of the day laborer workforce suggests that these workers may be prone to workplace abuses and are probably undercounted. Available information shows that day laborers are generally young Hispanic men with little education and significant language barriers, with some also being undocumented. The only nationally representative data on the day laborer population comes from Labor's Bureau of Labor Statistics, but these data may undercount day laborers. The unique characteristics of day laborers and their work affect Labor's ability to enforce the protections afforded them by federal law. First, neither WHD nor OSHA can get complete information about potential violations involving day laborers, making it difficult to target resources. Second, WHD's and OSHA's investigative procedures make it difficult to detect violations of worker protection laws involving day laborers, who often have nonstandard work arrangements. Finally, WHD officials are uncertain about the extent of coverage for day laborers in some cases, and the responsibilities of temporary staffing agencies under the OSH Act are unclear. Refer to GAO-02-1130 for a Spanish language version of this report.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-02-925, Worker Protection: Labor's Efforts to Enforce Protections for Day Laborers Could Benefit from Better Data and Guidance
This is the accessible text file for GAO report number GAO-02-925
entitled 'Worker Protection: Labor's Efforts to Enforce Protections for
Day Laborers Could Benefit from Better Data and Guidance' which was
released on September 26, 2002.
This text file was formatted by the U.S. General Accounting Office
(GAO) to be accessible to users with visual impairments, as part of a
longer term project to improve GAO products‘ accessibility. Every
attempt has been made to maintain the structural and data integrity of
the original printed product. Accessibility features, such as text
descriptions of tables, consecutively numbered footnotes placed at the
end of the file, and the text of agency comment letters, are provided
but may not exactly duplicate the presentation or format of the printed
version. The portable document format (PDF) file is an exact electronic
replica of the printed version. We welcome your feedback. Please E-mail
your comments regarding the contents or accessibility features of this
document to Webmaster@gao.gov.
Report to the Honorable
Luis V. Gutierrez
House of Representatives:
United States General Accounting Office:
GAO:
September 2002:
Worker protection:
Labor‘s Efforts to Enforce Protections for Day Laborers Could Benefit
from Better Data and Guidance:
Protections for Day laborers:
GAO-02-925:
Contents:
Letter:
Results in Brief:
Background:
Available Data Suggest that Day Laborer Population Is Vulnerable and
May Be Undercounted:
Labor‘s Efforts to Enforce Protections for Day Laborers Are Hampered by
Limited Data, Traditional Procedures, and Difficulty in Determining
Coverage:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Identification and Selection of Agencies Serving
Day Laborers:
Identifying Agencies Serving Day Laborers:
Selecting Agencies Serving Day Laborers:
Appendix II: Services Provided to Day Laborers by Selected
Nonprofit Agencies:
Description of Nonprofit Agencies Visited:
Appendix III: Selected Features of FLSA and Requirements
in Four States:
Appendix IV: Comments from the Employment Standards Administration:
GAO Comments:
Appendix V: Comments from the Occupational Safety
and Health Administration:
GAO Comments:
Appendix VI: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Staff Acknowledgments:
Tables:
Table 1: Agencies Participating in Structured Interviews:
Table 2: Description of Agencies GAO Visited and the Services They
Provide:
Figures:
Figure 1: Day Laborers Waiting for Employment:
Figure 2: Day Laborers at an Employer‘s Truck:
Figure 3: Shelter Construction at an Organized Day Labor Site:
Figure 4: Day Laborers Signing up for Work:
Figure 5: An Organized Day Labor Site:
Abbreviations:
BLS: Bureau of Labor Statistics:
CHIRLA: Coalition for Humane Immigration Rights of Los Angeles:
CPS: Current Population Survey:
DLSA: Day Labor Services Act:
FLSA: Fair Labor Standards Act of 1938:
OSHA: Occupational Safety and Health Administration:
OSH Act: Occupational Safety and Health Act of 1970:
WHD: Wage and Hour Division:
Letter:
September 26, 2002:
The Honorable Luis V. Gutierrez
House of Representatives:
Dear Mr. Gutierrez:
’Day laborers“ is a term that generally refers to individuals who work
and get paid on a daily or short-term basis. To find work, day laborers
often congregate on street corners and wait for employers to drive by
and offer them work. The term also includes those who may be employed
by temporary staffing agencies that assign them work on a daily basis
with client employers. Day laborers have an informal relationship with
the labor market, often working for different employers each day, being
paid in cash, and lacking key benefits, such as health or unemployment
insurance. However, day laborers, like many other workers in this
country, may be eligible for wage and safety protections provided under
two key federal laws: the Fair Labor Standards Act (FLSA) and the
Occupational Safety and Health Act (OSH Act). The U.S. Department of
Labor (Labor) administers both acts: the former through its Employment
Standards Administration‘s Wage and Hour Division (WHD), the latter
through its Occupational Safety and Health Administration (OSHA). WHD
is responsible for ensuring that all covered workers receive at least
the federal minimum hourly wage and overtime pay. OSHA is required to
ensure that employers provide safe and healthy workplaces for their
workers to avoid injury or death. Coverage under both laws does not
depend on a worker‘s immigration status.
Because of day laborers‘ informal relationship with the labor market,
congressional representatives, researchers, and advocacy groups have
raised concerns that day laborers may be used for the most hazardous
work but not paid appropriate wages or provided safe working
conditions. However, little is actually known about who these day
laborers are, what their working conditions are, or the extent to which
protections afforded under federal wage and safety and health laws are
enforced. As a result, you asked us to determine what is known about
the nature and size of the day laborer workforce and identify the key
factors that affect Labor‘s ability to enforce the protections afforded
day laborers under FLSA and the OSH Act.
To determine what is known about the size and nature of the day laborer
workforce, we reviewed available data on day laborers, such as
information from Labor‘s Bureau of Labor Statistics (BLS) on day
laborers and available studies, and interviewed representatives of key
national associations representing day laborers and employers who use
them. We also conducted structured interviews with 25 nonprofit, local
government, or temporary staffing agencies that work with or employ day
laborers (see app. I for more details on how we selected these
agencies). To identify the key factors that affect Labor‘s ability to
enforce the protections afforded day laborers under FLSA and the OSH
Act, we reviewed provisions of FLSA and the OSH Act, implementing
regulations and guidance; obtained and reviewed enforcement procedures;
and analyzed enforcement statistics from WHD and OSHA. For both
objectives, we interviewed federal WHD and OSHA officials in
Washington, D.C., as well as state labor officials in four states--
California, Illinois, New York, and Virginia.[Footnote 1] During our
state visits, we visited nonprofit and local government agencies that
work with day laborers and interviewed day laborers at each site we
visited. We also compared provisions of the wage laws and requirements
of these states with FLSA (see app. III for this comparison). We
performed our work between December 2001 and August 2002 in accordance
with generally accepted government auditing standards.
Results in Brief:
Although limited, existing information on the nature and size of the
day laborer workforce suggests that these workers may be prone to
workplace abuses and are probably undercounted. Available information
shows that day laborers are generally young Hispanic men with limited
educational skills and significant language barriers, with some portion
also being undocumented. Research has shown that these characteristics
are typical of workers willing to accept lower wages or work in
substandard conditions. The only nationally representative data on the
day laborer population comes from Labor‘s BLS, but these data may
undercount day laborers. For example, the methodology BLS uses to
collect this information may affect BLS‘s ability to reach respondents
not having telephones or fixed addresses--conditions that may apply to
day laborers. In 2001, BLS identified about 260,000 day laborers who
wait on street corners for employment, yet one study of day laborers in
California identified about 20,000 day laborers in one metropolitan
area alone.
A number of factors that are directly relevant to the unique
characteristics of day laborers and their work affect Labor‘s ability
to enforce the protections afforded them under FLSA and the OSH Act.
First, because neither WHD nor OSHA can get complete information about
potential violations involving day laborers, it is hard to focus
resources on them. For example, day laborers are generally reluctant or
unaware of their right to complain to authorities about not being paid
promised wages or working in unsafe conditions. Similarly, available
information that Labor uses to target its investigations, such as data
on injuries and fatalities, may not accurately reflect the extent to
which day laborers are injured or killed. As a result, neither WHD nor
OSHA may be reaching those industries or workplaces where day laborers
work. Although both agencies have made efforts to educate workers or
obtain better data, these efforts may not be sufficient. Second, WHD‘s
and OSHA‘s investigative procedures make it difficult to detect
violations of worker protection laws involving day laborers who often
have nonstandard work arrangements. As a result, the procedures may
cause both agencies to miss violations. Finally, WHD officials are
uncertain about the extent of coverage for day laborers in some cases,
and the responsibilities of temporary staffing agencies under the OSH
Act are unclear. This may lead to inconsistencies in the protections
provided to day laborers. For example, even though FLSA can cover
employees working for homeowners in a domestic service capacity, some
local WHD officials we interviewed did not believe this provision
applied to day laborers. Also, because the responsibilities of
temporary staffing agencies under the OSH Act to ensure the safety of
workers they assign to client employers are not clearly delineated,
OSHA officials had different approaches to holding temporary staffing
agencies accountable for the safety of these workers.
We are making recommendations to the Secretary of Labor to improve
Labor‘s efforts to protect day laborers, including obtaining better
information to help focus resources on day laborers and clarifying
requirements under FLSA and the OSH Act. Labor generally agreed with
those recommendations that it commented on.
Background:
Day labor is a phenomenon that is not new to the United States; it has
traditionally served as an informal device for bringing together
employers who need workers and individuals willing to work. Both in
times of economic prosperity or downturn, employers see many advantages
to using day laborers--there are generally few commitments the employer
must make to the day laborer, and the employer has the flexibility of
using the day laborer only when work is available. Additionally, there
are numerous reasons why individuals would work as day laborers--for
some, it is an opportunity to earn income when temporarily laid off;
for others, it is a first job in the United States; for yet others, it
is the only employment option available given substance abuse or other
social difficulties. In other cases, this informal relationship offers
an opportunity for employers to avoid paying employment taxes and
offers workers a chance to earn undetected income.
There are generally two types of day laborers. The first type of day
laborer is one that gathers on street corners, waiting for employers to
drive by and offer them daily employment. (See figs. 1 and 2.):
Figure 1: Day Laborers Waiting for Employment:
[See PDF for image]
Source: Latin American Workers‘ Project, New York.
[End of figure]
Figure 2: Day Laborers at an Employer‘s Truck:
[See PDF for image]
Source: Latin American Workers‘ Project, New York.
[End of figure]
Across the country, there are likely thousands of street corners or
informal meeting places where day laborers wait for work. In these
locations, it is up to the day laborer and the employer to negotiate a
wage and various conditions of work. In many locations, however,
nonprofit or local government agencies have made efforts to gather day
laborers at a single site and establish procedures for obtaining work,
negotiating wages, and ensuring that wage and safety requirements are
met (see figs. 3 to 5). Appendix II describes how several of these
agencies operate.
Figure 3: Shelter Construction at an Organized Day Labor Site:
[See PDF for image]
Source: Latin American Workers‘ Project, New York.
[End of figure]
Figure 4: Day Laborers Signing up for Work:
[See PDF for image]
Source: Latin American Workers‘ Project, New York.
[End of figure]
Figure 5: An Organized Day Labor Site:
[See PDF for image]
Source: GAO.
[End of figure]
The second type of day laborer is one that is employed by for-profit
temporary staffing agencies that assign them to work at client
employers on a daily basis. To receive these assignments, day laborers
must physically report to the temporary staffing agency office. In many
cases, these workers are also paid on a daily basis by payroll check--
in fact, one agency‘s motto is ’Work today; get paid today.“ Generally,
the temporary staffing agencies that employ day laborers are not those
that are known for providing professional or administrative white or
pink-collar workers to client employers.
No national data on day laborers existed until 1995, when BLS surveyed
various types of ’contingent“ workers.[Footnote 2] This survey was
conducted as a supplement to BLS‘s monthly Current Population Survey
(CPS).[Footnote 3] BLS has conducted the supplemental survey four
times: 1995, 1997, 1999, and 2001. Several researchers have also
conducted studies on particular groups of day laborers in select
locations across the country, including Los Angeles and Chicago. These
studies attempted to obtain information not only about day laborers‘
demographics and work characteristics, but also about the extent to
which day laborers may be experiencing violations of existing laws.
Day laborers, like many other workers in the United States, may be
covered by the two federal laws that govern basic wage and workplace
safety protections: FLSA and the OSH Act. To be covered, the worker
must be ’an employee“ as defined by the law, among other requirements.
The protections afforded by these laws do not extend to independent
contractors. FLSA requires that employers pay the federal hourly
minimum wage and overtime to covered workers, while the OSH Act
requires employers to provide a workplace free of recognized hazards in
order to avoid worker injury, illness, or death. To comply with the
law, employers may have to provide safety training and personal
protective equipment, among other practices.
FLSA originally covered only those employees engaged in interstate
commerce or in the production of goods for commerce.[Footnote 4]
Coverage was later extended to include all employees of a business
’enterprise“ that met certain criteria.[Footnote 5] Specifically, under
the current law, all employees of an employer (such as those working
for a temporary staffing agency) would be covered if it had some
employees engaged in interstate commerce or in the production of goods
for commerce and annual gross sales or business volume of at least
$500,000. If annual gross sales were below $500,000, only those
employees actually engaged in activities involving interstate commerce
would be covered. Such activities might include taking orders over the
telephone from customers in another state or transporting equipment to
another state. Coverage under the OSH Act is broader. All employees of
a particular employer are covered if the employer is engaged in a
business affecting commerce. Coverage under the OSH Act does not depend
on the specific activities of the employee or the volume of the
employer‘s business.
FLSA specifically covers individuals working as employees in a domestic
service capacity for homeowners, performing tasks that would ordinarily
be performed by the homeowner.[Footnote 6] Examples of such tasks
include gardening, housecleaning, or chauffeuring. On the other hand,
while the OSH Act is silent on its coverage of domestic service
workers, an OSHA regulation specifically excludes homeowners who employ
workers in a domestic service capacity.[Footnote 7] Coverage under both
laws does not depend on a worker‘s immigration status.
To carry out their responsibilities, WHD and OSHA perform a number of
activities. They generally conduct workplace investigations that result
from a worker complaint or initiate them based on other information.
Recently, both agencies have increased their emphasis on compliance
assistance, that is, providing information to employers, workers, and
others of their rights under the laws. These efforts require WHD and
OSHA to work with state enforcement agencies. State laws play an
important role in supplementing FLSA‘s protections because states may
enact more stringent provisions in their laws than in federal law. This
means that a state law could cover employers and individuals not
covered under FLSA. If an employer is covered under FLSA and a state
law, the more stringent provision of either law will generally apply.
Under the OSH Act, OSHA has delegated enforcement responsibility to
state labor agencies in 23 states.[Footnote 8] These states have the
option of implementing more stringent requirements than the federal
program, and in many cases, they have done so. For example, California
requires employers to have an injury and illness prevention program--
something not required by OSHA.
Available Data Suggest that Day Laborer Population Is Vulnerable and
May Be Undercounted:
Available information indicates that the day laborer workforce is prone
to workplace abuses and is probably undercounted. The characteristics
of day laborers that we and others identified, such as limited English
proficiency, are generally recognized by Labor and others as those that
make workers vulnerable to workplace abuses. Moreover, our work and
other recent research indicate that the size of the day laborer
population may be greater than nationally available data suggest.
Data on Day Laborer Characteristics Show a Population at Risk:
While individual sources may be limited in scope, taken together, they
provide a general picture of the day laborer population as young
Hispanic men with limited educational skills and significant language
barriers. Our interviews with nonprofit and local government agencies
working with day laborers indicated that the majority of day laborers
were Hispanic men, with some portion being foreign born.[Footnote 9] A
study performed by a researcher in California generally corroborated
this, finding that nearly one-third of the day laborer population
studied had been in this country for less than
1 year.[Footnote 10] We also found that, even though the majority of
the day laborers were between 18 and 30 years old, they generally had
less than a high school education; the study in California found that,
in some cases, day laborers had only about 7 years of
education.[Footnote 11] We also found that these workers often lacked
basic proficiency in speaking or writing English, with some of them not
even proficient in their own language. Finally, although we were unable
to quantify the percentage, we found that some portion of the day labor
population was undocumented.[Footnote 12] In some cases, day laborers
working for temporary staffing agencies were slightly more ethnically
diverse, with higher levels of education and skills.[Footnote 13]
Research has shown that these characteristics make workers vulnerable
to various types of workplace dangers and abuses, a fact that Labor
also acknowledges.[Footnote 14] First, immigrants to the United States,
especially newer ones, are more willing to accept lower wages and
substandard work that offers few benefits or protections, which makes
them attractive to unscrupulous employers who may exploit them as a
cheap source of labor. For example, often immigrants take the more
informal, contingent work in this country, and we found in a previous
GAO report that workers in contingent work arrangements had lower
family incomes than those in traditional work arrangements and many
have incomes below the federal poverty threshold.[Footnote 15] Second,
lower education and skill levels often mean that workers are willing to
take jobs that pose a greater health risk. In that respect, we found
that most of the day laborers worked in unskilled occupations, such as
laborer or landscaper, in more hazardous industries, such as
construction; day laborers working through temporary staffing agencies
were also employed in manual labor occupations in manufacturing and
warehousing. Lower educational levels also mean that workers may not be
aware of the labor protections available to them, their rights as
employees under the law, or the dangers associated with hazardous
conditions. Third, limited proficiency in speaking or reading English
makes it more difficult for workers to understand the relative risk of
their employment or communicate such dangers to employers, a point
stressed by representatives of several nonprofit and local government
agencies we interviewed that worked with day laborers. Finally, being
undocumented means that workers may not want to be found, so they will
endure a higher level of abuse to remain undetected.
Size of the Day Laborer Population May Be Greater than Available Data
Indicate:
The only nationally representative source of data on day laborers is
BLS‘s CPS Contingent Work Supplement. For a variety of reasons, these
data may underestimate the actual number of day laborers seeking work
in the United States. Data from the survey show that in 2001, there
were about 260,000 individuals working as day laborers.[Footnote 16]
BLS also reported that about 1.2 million workers found work through
temporary staffing agencies in 2001, but the survey does not attempt to
determine what percent of those individuals, if any, were day laborers.
Other studies of day laborers are not national in scope, but may
indicate the presence of relatively large numbers of day laborers. For
example, one study of day laborers in Southern California estimated the
population to be as high as 20,000 in one metropolitan area.[Footnote
17] Based on our interviews with nonprofit and local government
agencies that serve day laborers on street corners, we identified about
2,600 day laborers who seek work daily from 28 street corners
identified by these agencies. Regarding day laborers working through
temporary staffing agencies, staff at one agency serving day laborers
estimated that about 30,000 day laborers were sent out each day by
temporary staffing agencies in Chicago alone. Moreover, one national
temporary staffing agency we interviewed reported that it employed
almost 700,000 individuals as day laborers in 2001.
When one considers the methods used by BLS to collect data on day
laborers, the findings of these additional studies may be even more
convincing as to the potential undercounting of day laborers. We have
reported that BLS‘s methodology is inadequate for measuring certain
hard-to-reach segments of the population and, as a result, may
undercount them.[Footnote 18] For example, BLS‘s survey relies on
address lists that are dependent on stable or established residences.
Day laborers may move frequently to find work or live with relatives.
In addition, BLS does most of the interviewing by telephone, and day
laborers may not have access to a telephone, or speak English.[Footnote
19] Finally, individuals who are wary of government may avoid
participating in surveys. None of the day laborers we interviewed at
the four sites we visited recalled ever being surveyed by the
government.[Footnote 20]
Labor‘s Efforts to Enforce Protections for Day Laborers Are Hampered by
Limited Data, Traditional Procedures, and Difficulty in Determining
Coverage:
A number of factors affect Labor‘s ability to enforce the protections
afforded day laborers under FLSA and the OSH Act.[Footnote 21] The
limited information available on day laborers makes it difficult for
WHD and OSHA to focus resources on them. In addition, traditional
investigative procedures used by WHD and OSHA may hurt their ability to
detect violations affecting employees in nonstandard work arrangements,
such as day laborers. Finally, applying FLSA and the OSH Act to day
laborers is challenging because it requires sufficient information and
resources to determine coverage. In addition, in some cases, WHD
officials are uncertain about the extent of coverage for day laborers
under FLSA, and the responsibilities of temporary staffing agencies
under the OSH Act are unclear, which may lead to situations where day
laborers are not protected.
Limited Information about Day Laborers Makes it Difficult to Focus
Resources on Them:
WHD and OSHA generally rely on two types of information to conduct
investigations to identify potential violations. They (1) rely on
complaints from individuals who believe they may have suffered a
violation and
(2) analyze data on wages or workplace conditions to specifically
target problematic industries or worksites. In both cases, this
information fails to identify the presence of day laborers or potential
violations affecting them.
Both WHD and OSHA initiate much of their enforcement activity in
response to complaints filed by individual workers. In fiscal year
2001, about 70 percent of WHD‘s investigations under FLSA were
complaint-driven; for some industries, such as the construction or
temporary staffing industry, the majority of the investigations it
conducted were due to complaints. OSHA is required by law to respond to
all valid complaints about serious hazards from employees,[Footnote 22]
although it relies less heavily on complaints than WHD, historically
initiating about 20 percent of its investigations based on
complaints.[Footnote 23] However, WHD and OSHA officials reported that
they received few or no complaints from day laborers. Day laborers may
not complain for a variety of reasons. For some day laborers, language
barriers may prevent them from being aware of or taking advantage of
their right to complain to authorities. In addition, the day laborers
may fear loss of employment, either through employer retribution,
deportation, or the time necessary to file and resolve a
complaint.[Footnote 24] Representatives of nonprofit agencies serving
day laborers told us of cases where, even when they have filed
complaints, they have received little action from WHD or it has taken
too long for WHD to complete a case.[Footnote 25]
Nonetheless, available information indicates day laborers face numerous
potential violations. Many of these potential violations involve
nonpayment of wages, including overtime. For example, the majority of
nonprofit and local government agencies working with day laborers we
interviewed reported that day laborers complained at least once a week
about nonpayment of wages. These agencies reported that they recovered
over $750,000 in owed wages that day laborers did not receive from
employers in 2001. Other researchers corroborated our findings,
reporting that over half of the day laborers in their studies were not
paid the wages due to them.[Footnote 26] Violations may also involve
the safety and health of day laborers. For example, the majority of the
nonprofit and local government agencies working with day laborers that
we interviewed said that few, if any, day laborers receive personal
protective equipment or safety training. Other researchers corroborated
our findings, with one reporting that
75 percent of day laborers in the study did not receive protective
equipment when performing hazardous work.[Footnote 27] Many researchers
and agencies dealing with day laborers agreed that day laborers
underreport their concerns about workplace safety and health because
they believe no corrective action will be taken and are willing to risk
their safety as long as they are paid.
Labor has made various efforts to address the fact that day laborers
are less likely to complain. These efforts include educating workers
and improving access to the complaint process. For example, in Chicago,
OSHA and WHD have been working with nonprofit and faith-based
organizations to educate workers about their rights and help them
identify potential violations. As a result, OSHA received complaints
that resulted in 35 cases with violations that it may not have
otherwise detected. In its comments on a draft of this report, WHD said
that it has been increasing its appearances on Spanish-speaking radio
and television in an effort to inform workers about their rights. OSHA,
in its comments, also provided additional information on its efforts to
provide assistance with safety and health training for day laborers.
According to nonprofit agencies we interviewed that work with day
laborers, information and assistance provided to day laborers led to
improved working conditions and a decline in the need to file
complaints. We did not find similar levels of outreach in all locations
we visited, and not all outreach efforts have included temporary
staffing agencies or a broad range of organizations that work with day
laborers.
Regarding access to the complaint process, OSHA has translated its
complaint form and other publications into Spanish, created a
1-800 telephone number accessible to Spanish speakers, and developed a
Spanish language web site. OSHA has also compiled a list of Spanish
speakers in the agency and has formed an Hispanic Task Force that is,
among other things, developing recommendations for implementing a
national strategy to address the problems of Hispanic and immigrant
worker populations. WHD is in the process of translating compliance
assistance materials into Spanish and has about one-quarter of its
staff that speak Spanish. WHD‘s national office told us that it has
developed a ’Wage Hours Recordkeeper“ in English and Spanish to provide
temporary and transient workers--such as day laborers--the information
needed to determine if they are paid properly. While both agencies are
making progress in their activities, these efforts may not reach the
full range of day laborers, since they generally lack access to the
Internet, may speak languages other than Spanish, or may be illiterate.
The second way that WHD and OSHA identify potential violations is by
analyzing available data on workplace demographics, conditions, and
past investigations to target problematic industries or worksites.
Generally, WHD targets industries with the lowest wages or the most
vulnerable workers. For example, WHD uses BLS data on worker
demographics, yet as we noted earlier, BLS data may undercount workers
with characteristics similar to those of day laborers. WHD also uses
wage information to identify low-paying occupations or industries, yet
our research showed that day laborers obtaining employment from street
corners work an average of 2 to 3 days a week and are generally paid in
cash at the end of the day. As a result, it is not clear whether these
kinds of wage payments would be reflected in data collected from
employers on wages paid to workers. On the basis of this type of
information, WHD identified industries other than construction or the
temporary staffing industry for their national targets. Yet, most of
the agencies we surveyed reported that a majority of day laborers work
in the construction industry.[Footnote 28] Finally, the database on
past investigations that WHD uses to target industries does not
identify whether violations involve day laborers. For example, WHD‘s
data show that, in 2001, temporary staffing agencies had a higher
likelihood of monetary violations than employers in any other
industries investigated, but the database does not identify whether any
of these workers are day laborers.
OSHA targets the most hazardous industries and worksites for
investigation, using injury and illness data collected and reported by
employers and its database on past investigations. However, this
information does not show where day laborers work or the full extent of
their injury experience because when employers record an injury, they
are not required to note whether the worker was a day laborer.
Furthermore, because client employers--not temporary staffing
agencies--must record injuries and fatalities of temporary staffing
agency day laborers, the data OSHA uses cannot identify the extent to
which day laborers working for temporary staffing agencies are injured
or killed. Finally, when OSHA targets particular worksites for
investigation, the information it uses may not reflect smaller
worksites, where many day laborers work and which experts believe are
the most hazardous sites in the industry. For example, OSHA targets
construction at the national level, but the data it uses to target
worksites in the industry does not generally include construction
projects valued at less than $50,000 and that are residential. OSHA‘s
local offices have flexibility to exclude additional construction
worksites from targeted inspection; we found some local offices
excluded projects valued at up to $2,000,000. In addition, because OSHA
counts inspections by the number of contractors at a worksite, there is
an incentive to target larger construction worksites, which may be
likely to have more contractors.
Recently, both WHD and OSHA made efforts to collect additional data
that better identified potential violations involving day laborers
working for temporary staffing agencies. A regional WHD office
collected data from a randomly selected number of temporary staffing
agencies to determine whether these agencies were in compliance with
FLSA. In 1997, local OSHA offices in Ohio obtained workers‘
compensation data to better identify injury rates for day laborers
working at temporary staffing agencies.[Footnote 29] These improved
data helped the agencies determine wage and safety problems that may
have otherwise gone undetected. For example, WHD found that almost one-
third of temporary staffing agencies were not in compliance with FLSA,
while OSHA found that temporary staffing agencies had some of the
highest numbers of workers‘ compensation claims with total costs
exceeding $8.4 million.[Footnote 30] In both cases, the offices worked
with the temporary staffing agencies to reduce wage and hour abuses and
ensure a safer workplace. For example, OSHA‘s Ohio office began the
Choice program to work with temporary staffing agencies, providing
compliance assistance to smaller agencies and requiring on-site
investigations of all injuries involving temporary workers, such as day
laborers. Recent results show that 60 percent of the participating
temporary staffing agencies reduced their overall workers‘ compensation
costs and over half reduced the number of workdays lost to injuries and
illnesses. While these initiatives may help WHD and OSHA better
identify where day laborers work and the violations they face, the
agencies have not yet fully assessed the results of these efforts to
consider their application agencywide.
At the national level, OSHA is undertaking another effort to collect
additional data that will provide a better understanding of the extent
to which day laborers are involved in workplace fatalities. In 2002,
OSHA implemented a temporary procedure that required OSHA
investigators, for all fatality and catastrophe investigations, to
determine if the worker was foreign-born, Hispanic, or had language
barriers. If that were the case, the OSHA investigator would then
determine if the worker was a day laborer. OSHA has not yet begun to
evaluate this information, but the information should prove useful to
gain a better understanding of day laborers‘ fatality experience.
However, this process is still in the pilot stage and OSHA will not
identify fatalities and catastrophic accidents of day laborers that are
not foreign born, Hispanic, or do not have language barriers. Moreover,
OSHA does not ask if the day laborer was provided through a temporary
staffing agency.
Labor‘s Investigative Procedures Make it Difficult to Detect Violations
Affecting Employees in Nonstandard Work Arrangements:
Although both WHD and OSHA conduct thousands of investigations each
year to detect employer noncompliance and remedy potential violations,
their investigative procedures may not be able to detect violations
affecting employees in nonstandard work arrangements, such as day
laborers. As part of their investigations, WHD and OSHA are visiting
fewer worksites, and WHD generally gives advance notice when it visits
worksites. As a result, both agencies may miss potential violations
involving day laborers.
WHD and OSHA conduct thousands of investigations each year without
visiting worksites. For example, in 2001, WHD conducted as many as
55 percent of its investigations by fax or telephone. Although OSHA
does not keep similar statistics, since 1995, it has been encouraging
its investigators to handle complaint investigations informally by
telephone. By not going on-site, investigators lose the opportunity to
observe the worksite or interview employees. Also, in some instances,
the investigations focus on a single worker, a single minor violation,
or a particular timeframe. All of these are activities that reduce
WHD‘s and OSHA‘s ability to uncover potential violations affecting day
laborers. In addition, FLSA provides Labor with no authority to assess
penalties for failing to keep accurate payroll records.[Footnote 31]
Without the threat of a financial penalty from WHD and because
employers may hire day laborers to purposely avoid costs, such as
overtime and taxes, wage records may not reflect actual payments made
to workers, such as day laborers. Without visiting the workplace, WHD
cannot compare employers‘ wage records with individuals actually
working at the site to make sure that the payroll records accurately
reflect all the workers and the payments made. WHD data show that WHD
is five times more likely to find violations of recordkeeping
requirements when it visits the workplace or collects additional
information.
When WHD does visit worksites, the procedures it uses may reduce the
likelihood of uncovering potential violations related to day laborers.
According to WHD guidance, investigators have the discretion to give
employers advance notice of an impending investigation, but it would be
inappropriate to provide such notice when there is reason to believe
that the employer‘s behavior will change as a result of advance notice.
The local WHD offices we visited provided advance notice for the
majority of their investigations. Given that employers hire day
laborers sporadically, employers may choose not to hire day laborers on
the day of the investigation or alter records for the investigation,
limiting WHD‘s opportunity to find day laborers.
Labor Faces Challenges When Applying Provisions of FLSA and the OSH Act
to Day Laborers:
Applying FLSA and the OSH Act to day laborers is challenging for a
number of reasons. In some cases, WHD lacks the necessary information
on potential violations or the resources to determine coverage under
FLSA. In other cases, the extent to which these laws cover day laborers
is uncertain. Even when these laws cover day laborers, they may not
account for the nonstandard work arrangements of day laborers, which
could jeopardize their economic or physical well-being.
Some Provisions of FLSA and the OSH Act Are Difficult to Apply:
Applying FLSA and the OSH Act to day laborers is difficult because
coverage may depend upon the type of employer or the specific work a
day laborer performs. Under FLSA, day laborers employed by enterprises
with an annual business volume of more than $500,000 and some employees
engaged in interstate commerce are covered; this could include day
laborers working for large temporary staffing agencies. However, it is
not always clear how coverage would apply to day laborers employed by
enterprises making less than $500,000 per year because only those
workers determined to be engaged in interstate commerce or in the
production of goods for commerce are covered. According to WHD
officials, in some cases, WHD officials are unable to obtain the
information needed to determine this coverage. For example, we found
that many day laborers work for small construction subcontractors
performing manual labor, such as installing drywall. According to WHD
officials, a determination would have to be made that the building the
day laborer worked on was to be used for interstate commercial activity
in order for the day laborer to be covered. However, this kind of
information is not always available. In other cases, information on the
employer location and hours worked is not readily available. Proving
such coverage can be difficult and resource-intensive. Because WHD‘s
resources are limited, it must determine the potential impact of
investigating smaller employers that may have violations affecting a
small number of individuals versus larger employers that may have
greater numbers of individuals and more violations.
In other cases, coverage may depend on how local offices determine
whether an employee is engaged in the production of goods for commerce.
For example, a worker may be covered if engaged in an activity that is
’closely related or directly essential“ to the production of goods for
interstate commerce. In applying this provision, WHD officials
explained that a day laborer serving as a security guard for a building
that houses companies involved in the production of goods would be
covered because that activity is closely related or directly essential
to these interstate activities. Yet, a day laborer mowing the lawn at
the same building would not be covered because that function would not
be considered closely related or directly essential to these interstate
activities. The distinction is not always obvious and Labor has
recognized this in its regulations. According to Labor, coverage cannot
always be determined with precision and may require authoritative
decisions of the courts for a final determination.[Footnote 32]
Regarding domestic service work, FLSA provides that employees doing
household chores are covered if they meet certain requirements. Not all
WHD officials appeared to recognize the application of this provision
to day laborers. WHD officials at headquarters said that day laborers
picked up from street corners would be covered by this provision of
FLSA, while officials in the WHD district offices we visited had
differing views. For example, one office interpreted this provision to
cover only long-term domestic employees. As a result, day laborers
performing domestic service work may be protected under this provision
in some areas but not in others.
Because of the difficulty in asserting coverage for individuals working
for small employers, WHD often refers such potential violations to
state enforcement agencies.[Footnote 33] In some cases, state laws may
provide greater protection than FLSA. For example, all four states we
visited protect the wages workers were promised, which can exceed the
federal minimum wage. (App. III compares selected wage provisions under
FLSA and the laws and requirements of the four states we visited.)
However, we found that, in practice, advantages associated with relying
on state enforcement agencies may not be realized. First, not all
states‘ laws cover small employers, for example, neither Virginia‘s nor
Illinois‘ law covers employers with four or fewer workers. As a result,
day laborers working for very small employers may be unlikely to get
protection under FLSA or the state law. Second, most of the state
officials we interviewed said that their investigations were
’complaint-driven.“ Officials in Illinois and New York, for instance,
reported spending all of their time responding to complaints. This,
combined with their limited resources, makes it unclear that they could
pursue all referrals from WHD. Third, officials in some states we
visited told us that their investigators rarely pursued enforcement
actions that required on-site investigations, relying primarily on
telephone or fax investigations. As a result, like WHD, state agencies
may also miss violations. This reliance on state enforcement agencies
may be even more problematic for day laborers not covered by FLSA in
those states with less stringent protections, such as no minimum wage
or overtime provisions.
While day laborers employed by temporary staffing agencies are covered
by the OSH Act, the exact responsibilities of temporary staffing
agencies and that of their clients is not always clear. According to
OSHA, temporary staffing agencies are responsible for general safety
training and the provision of general personal protective equipment.
Yet, there is no clear, centralized guidance from OSHA on the legal
responsibilities of temporary staffing agencies or their clients to
properly ensure the safety of the day laborers they employ. Neither the
OSH Act nor the implementing regulations elaborate on these
responsibilities. Furthermore, OSHA has provided interpretations of the
requirements in response to inquiries, but temporary staffing agencies
are not required to follow them. Determining whether the temporary
staffing agency or client employer is responsible for providing
training and can be cited for failing to ensure the safety of their
workers is a complex area that may be confusing, which may leave day
laborers without sufficient safety and health protections at the
worksite. For example, a local OSHA office cited both the temporary
staffing agency and client employer after temporary workers suffered
injuries at the client employer‘s worksite for failing to provide
sufficient training and concluded that each employer believed the other
employer was responsible for training the workers. On the other hand,
some OSHA officials said that they would be less likely to cite
temporary staffing agencies. If temporary staffing agencies are not
appropriately cited, day laborers working for these agencies may be
subject to inadequate safety and health protections. A centralized
source of information clarifying the role of temporary staffing
agencies and client employers could allow OSHA to more uniformly apply
the law and make it easier for both temporary staffing agencies and
client employers to understand their responsibilities.
Certain Practices under Existing Laws May Adversely Affect Day
Laborers:
Even when WHD and OSHA are able to enforce protections under FLSA and
the OSH Act, certain practices allowed by these laws may adversely
affect day laborers‘ economic and physical well-being. The unique
characteristics and nonstandard work arrangements of day laborers make
them more susceptible to these practices than workers in traditional
work arrangements. These practices relate to wage deductions,
transportation safety, and compensation for time waiting to be
employed. Addressing these issues is difficult because any resolution
would involve complicated tradeoffs between the potential benefits to
day laborers and the potential costs to employers.
Under FLSA, an employer can take a variety of deductions from
wages.[Footnote 34] Employers can deduct charges for items such as
meals, lodging, transportation, or cashing of payroll checks as long as
the item is for the employee‘s benefit and acceptance is voluntary and
uncoerced. Employers can deduct these items even if they bring wages
below the federal hourly minimum wage.[Footnote 35] Employers can also
deduct charges for other items, such as tools or uniforms, as long as
those items do not take the employee‘s wages below the federal hourly
minimum wage.[Footnote 36] Representatives of temporary staffing
agencies told us that they generally pay minimum wage or whatever the
local market will bear and generally take the standard deduction for
taxes as well as other items, such as transportation, from day
laborers‘ pay. Agencies we interviewed that work with day laborers
reported that most day laborers relied on employers for some of these
items.[Footnote 37] As a result, the hourly wage received by day
laborers can often be much less than the originally established wage.
Nonprofit and local government agencies working with day laborers told
us that some day laborers receive $2 an hour as a result of several
deductions. These practices do not generally affect traditional workers
because they do not rely on employers for services such as
transportation, check cashing, or meals.
Another practice that may have greater repercussions for day laborers
than for traditional workers concerns physical safety when commuting to
and from the worksite. Over the past 2 years, there have been several
reports of day laborers being killed or injured while being driven to a
worksite by an employer. In 2001, for example, a temporary worker was
killed as she was being transported by the temporary staffing agency to
a job assignment. OSHA did not investigate the case because it was
outside its jurisdiction. In general, individuals commuting to and from
work are not considered to be working, so their transportation safety
is not covered under the OSH Act. However, the commuting pattern for
day laborers is different than the pattern for workers in traditional
work arrangements. Most workers in traditional work arrangements rely
on their own car, a carpool, or public transportation to get from home
to the workplace. Day laborers, on the other hand, travel from their
homes to a nearby location, such as a street corner or a temporary
staffing agency, to obtain work. Because day laborers often do not have
access to a car or work in locations inaccessible by public
transportation, they depend on the employer to get them from the street
corner or temporary staffing agency to the worksite. Federal law covers
transportation for migrant and seasonal agriculture workers to and from
the job site if they are transported by their employer.[Footnote 38]
Additionally, because employers are not required by OSHA to record an
injury that occurs during transport, OSHA cannot determine how often
this occurs. Assuming that day laborers are less likely to receive
workers‘ compensation or have health insurance, any medical costs
associated with the injury would be incurred by the community at large.
Compensation for waiting time is another issue that may affect day
laborers differently than workers in traditional work arrangements.
Most workers in traditional work arrangements have a steady employer
and regular work location and go directly from home to the worksite.
Day laborers, on the other hand, must wait at particular locations to
obtain employment--even if they are employed by temporary staffing
agencies. We found that, in many cases, day laborers wait 3 to 4 hours
before being assigned a work assignment, spend between 1 to 3 hours in
travel time to and from the worksite, and generally work at least 8
hours on the job. This could add up to a 12-to 15-hour day. According
to WHD officials, waiting on a street corner for a job offer or at a
temporary staffing agency for an assignment to a client is not counted
as wait time. In addition, even after a worker is provided a work
assignment, WHD generally would not consider the time it takes to get
to the site to be compensable work time under FLSA.[Footnote 39]
Conclusions:
Both WHD and OSHA acknowledge that those individuals working as day
laborers are some of this nation‘s most vulnerable workers. Moreover,
both struggle with the problem that the characteristics that make day
laborers most susceptible to workplace abuses also make it difficult
for Labor and others, especially in light of limited resources, to find
and protect them. It is also difficult to protect a group of workers
that may not want to be found. These difficulties may lead to workers
who are not receiving the protections they are entitled to under law,
as well as larger problems associated with an underground economy,
illegal immigration, and unreported income. Both WHD and OSHA have made
a commitment to protect these workers and others like them, but they
are hampered by incomplete data and difficulty in applying some of the
legal protections available to these workers.
Both agencies‘ efforts to protect day laborers could be enhanced by
having better information about where day laborers work and what
violations they may face. While current efforts to provide education
and outreach and collect additional data on day laborers have promise,
such efforts can be expanded. For example, efforts by OSHA and WHD may
benefit from greater involvement with temporary staffing agencies or a
larger network of agencies representing day laborers to ensure that day
laborers are aware of their rights. Also, WHD and OSHA could benefit by
exploring the results of their local efforts to collect additional data
on day laborers working for temporary staffing agencies. By not doing
so, WHD and OSHA lose the opportunity to identify better ways to obtain
valuable information about where day laborers work and the potential
violations they face. Moreover, unless OSHA refines and permanently
implements its data collection procedure for fatality investigations,
it may not get a complete picture of the number or characteristics of
day laborers killed on the job.
Finally, WHD officials did not uniformly understand how to apply FLSA‘s
domestic service provision to day laborers. Because of this apparent
lack of understanding, day laborers providing identical services for
homeowners may be treated differently depending on the knowledge level
of WHD officials. Furthermore, with respect to OSHA, in the absence of
regulations or a centralized source of information that specifies the
responsibilities of temporary staffing agencies for the health and
safety of their workers, OSHA‘s local offices may risk inconsistent
application of the OSH Act and joint employers may fail to provide
sufficient safety protections.
Recommendations for Executive Action:
To further WHD‘s and OSHA‘s efforts to obtain better information
concerning the presence of and potential for violations involving day
laborers, we recommend that the Secretary of Labor:
* direct WHD and OSHA, as a part of their education and outreach
efforts, to enhance the procedures they use to reach day laborers, such
as expanding their contact with temporary staffing agencies or other
agencies that work with day laborers;
* direct WHD and OSHA to review the results of local efforts to obtain
additional data on the presence and violation experience of day
laborers working for temporary staffing agencies for possible
replication in other locations or agencywide; and:
* direct OSHA to finalize its current effort to collect data on
fatalities and catastrophes and refine it by asking first whether
someone is a day laborer, including whether the individual worked for a
temporary staffing agency.
To ensure that Labor‘s local offices have consistent policies and an
understanding of how and when to enforce protections afforded under
FLSA and the OSH Act, we recommend that the Secretary of Labor:
* instruct WHD to clarify when day laborers may be covered under the
domestic service provision of FLSA; and:
* instruct OSHA to consider the development of regulations to specify
temporary staffing agency responsibility for safety and health under
the OSH Act, or at a minimum, centralize existing information on
temporary staffing agencies‘ responsibilities.
Agency Comments and Our Evaluation:
WHD and OSHA provided us with written comments on a draft of this
report, which are reproduced in appendixes IV and V, respectively. WHD
agreed with all of the recommendations that applied to it. OSHA agreed
with our recommendation regarding enhancing the education and outreach
procedures it uses to reach day laborers and did not object to the
others. The agencies also provided technical comments, as did BLS and
Labor‘s Office of Solicitor, which we incorporated in the report where
appropriate.
Both WHD and OSHA emphasized their commitment to protecting day
laborers under FLSA and the OSH Act. WHD said that it is strongly
committed to providing effective compliance assistance to those workers
covered by FLSA. OSHA said that employers of day laborers have the same
obligations as any other employer. Nonetheless, OSHA acknowledges that
particular outreach and enforcement efforts may be necessary to address
the particular circumstances of day laborers.
Both agencies provided additional information on their outreach
efforts. For example, WHD is developing a plain language fact sheet, in
English and Spanish initially, covering the application of wage and
hour laws to the employment of temporary workers such as day laborers.
OSHA has formed an alliance with the Hispanic Contractors of America to
expand outreach and communication on safety and health awareness and
best practices for Spanish-speaking employers and employees in the
construction industry.
WHD and OSHA commented on our assessment of particular procedures
affecting their ability to detect violations involving day laborers.
Both agencies said that off-site investigations, such as telephone and
fax contacts with employers, are the most timely and effective method
of securing last paychecks for workers. They noted that these
investigations can be used as an indicator that an on-site
investigation of the employer might be warranted. We agree that this
method may be efficient and have value for workers who are likely to
complain about working conditions; however, we continue to believe that
this method may not be the most effective for day laborers, who
generally may be reluctant to complain. OSHA also said that its
construction targeting, which generally reaches larger sites, does not
preclude OSHA from inspecting sites where day laborers can be found
because small contractors regularly subcontract work at large
construction sites and at many projects valued over $50,000. However,
several experts told us that larger construction contractors with
higher-value projects tend to use unionized subcontractors who rarely
hire nonunion workers, such as the day laborers we encountered.
We are sending copies of this report to appropriate congressional
committees, the Secretary of Labor, and the Assistant Secretaries of
Labor for Employment Standards and Occupational Safety and Health. We
will also make copies available to others upon request. In addition,
the report will be available at no charge on GAO‘s Web site at http://
www.gao.gov.
Please contact me or Lori Rectanus on (202) 512-7215 if you or your
staff have any questions about this report. Other contacts and staff
acknowledgments are listed in appendix VI.
Sincerely yours,
Robert E. Robertson
Director, Education, Workforce, and
Income Security Issues:
Signed by Robert E. Robertson:
[End of section]
Appendix I: Identification and Selection of Agencies Serving Day
Laborers:
To determine what is known about the size and nature of the day laborer
workforce in the United States, we initially examined demographic data
on day laborers from the Bureau of Labor Statistics‘ Current Population
Survey Contingent Work Supplement. Although this information is
collected directly from individuals working as day laborers, it lacked
detailed data about the characteristics of day laborers and their work
that were necessary to address this objective, such as the number of
hours or days worked, means of transportation used to get to job sites,
and frequency and method of payment for work completed. Moreover, data
available from other studies and reports focused on day laborers in
certain geographic locations. As a result, we collected supplemental
information through structured interviews from agencies that work with
day laborers.
We identified two types of agencies that assist day laborers. One type
consists of nonprofit and local government agencies that work with day
laborers seeking employment on street corners. The second type includes
temporary staffing agencies that employ day laborers.
Identifying Agencies Serving Day Laborers:
Given the lack of a national directory of agencies that work with day
laborers, to identify as many agencies as possible, we interviewed
experts; visited local agencies in the Washington, D.C., metropolitan
area; and reviewed research studies and reports identified by experts,
a literature review, and the Internet. We sought to obtain the broadest
ethnic and geographic representation possible. We found that the
majority of the agencies on our list were Hispanic-based groups, which
may have some effect on our findings regarding the ethnicity of day
laborers. We observed and were told of day laborers of other ethnic
backgrounds, such as Asians in New York, and Polish and other eastern
European groups in Chicago, but few, if any of the organizations on our
list focused solely on serving these groups. We ultimately identified
84 agencies representing 14 states; the overwhelming majority of the
agencies (61) were located in California, with Texas having the next
highest number (4).
To identify temporary staffing agencies, we started with a list of 11
firms identified by the American Federation of Labor-Congress of
Industrial Organizations (AFL-CIO) as the primary employers of blue-
collar workers in the United States. The American Staffing Association,
an organization that represents temporary staffing agencies, confirmed
that these were the major employers of skilled and/or unskilled blue-
collar workers.
Selecting Agencies Serving Day Laborers:
To identify nonprofit and local government agencies for our structured
interviews, we chose one agency from each of the 14 states represented
on the list of 84 and added 4 agencies each from California, Illinois,
New York, and Virginia to interview during our site visits. We also
added 1 agency each from California and Texas because they represented
the largest number of agencies on our list. In total, we selected 20
nonprofit and local government agencies and all 11 temporary staffing
agencies we initially identified.
Delivery of Structured Interviews:
From February to June 2002, we contacted the 31 nonprofit, local
government or temporary staffing agencies (20 nonprofit or local
government and 11 temporary staffing agencies). We asked these agencies
about (1) the characteristics of the day laborer workforce, such as
race, age, and education; (2) types of work day laborers typically
perform;
(3) working conditions that day laborers face in the areas of wages,
safety, and health; and (4) litigation concerning federal wage, safety
and health provisions that involved day laborers. We did not
independently verify the information provided by the agencies.
Three of the 20 nonprofit and local government agencies we interviewed
worked with day laborers employed by temporary staffing agencies. We
included their results with the 11 temporary staffing agencies--for a
total of 14. Three temporary staffing agencies declined to participate
and
3 others did not employ day laborers as we defined them, leaving a
final total of 8. As a result, the information in this report
represents 17 nonprofit and local government agencies and 8 temporary
staffing agencies in which 3 street agencies were re-categorized as
temporary staffing agencies.
(See table 3.):
Table 1: Agencies Participating in Structured Interviews:
Nonprofit and local government agencies:
Agency name: Coalition for Humane Immigrant Rights of Los Angeles;
Location: California.
Agency name: San Diego County Jobs for Progress; Location: California.
Agency name: San Francisco Day Laborer Program; Location: California.
Agency name: American Friends Service Committee; Location: Colorado.
Agency name: Roswell Intercultural Alliance; Location: Georgia.
Agency name: Latin Union of Chicago; Location: Illinois.
Agency name: CASA of Maryland; Location: Maryland.
Agency name: Wind of the Spirit Immigrant Resource Center; Location:
New Jersey.
Agency name: Latin American Workers Project; Location: New York.
Agency name: Workplace Project; Location: New York.
Agency name: Association of Latino Workers of North Carolina; Location:
North Carolina.
Agency name: VOZ: Workers‘ Rights Education Project; Location: Oregon.
Agency name: Denton Humanitarian Association; Location: Texas.
Agency name: Oscar Romero Workers‘ Center; Location: Texas.
Agency name: Culmore Family Resource Center; Location: Virginia.
Agency name: Shirlington Employment and Education Center; Location:
Virginia.
Agency name: CASA Latina; Location: Washington.
Temporary staffing agencies:
Agency name: Adecco; Location: [A].
Agency name: Chicago Coalition for the Homeless[B]; Location: Illinois.
Agency name: Day Laborers‘ Organizing Committee[B]; Location: Ohio.
Agency name: Labor Connection; Location: [A].
Agency name: Labor Finders International; Location: [A].
Agency name: Labor Ready; Location: [A].
Agency name: Primavera Works[B]; Location: Arizona.
Agency name: Tandem Staffing Solutions; Location: [A].
[A] These temporary staffing agencies have offices in locations
nationwide or in certain regions of the United States.
[B] The responses we received from these agencies related to day
laborers working for temporary staffing agencies.
Source: GAO.
[End of table]
[End of section]
Appendix II Services Provided to Day Laborers by Selected Nonprofit
Agencies:
As part of our efforts to identify what was known about the nature and
size of the day laborer workforce, we conducted on-site visits with one
nonprofit agency that works with day laborers in each of the four
states we visited. During these visits, we obtained information on the
characteristics of the day laborer workforce, as well as how these
agencies broker employment for day laborers and work to improve day
laborers‘ working conditions.
Description of Nonprofit Agencies Visited:
The four nonprofit agencies we visited seek to improve the welfare of a
population broader than day laborers, to include low-income workers,
the homeless, and local citizens. All of the agencies provide
information to workers to educate them about their rights in the
workplace. They also help day laborers obtain employment and provide
them with a range of social services, from teaching English and
offering classes on childcare to providing medical screenings. At one
of the locations of the Coalition for Humane Immigration Rights of Los
Angeles (CHIRLA), day laborers can receive English classes from a local
welfare agency representative while they wait to be assigned to a job.
In some cases, these services are offered to workers who stay at the
site after it closes. (See table 2 for a description of these agencies
and the services they provide to day laborers.) In addition, the
agencies provide legal support by referring workers for legal
assistance or litigating cases themselves on behalf of workers.
Table 2: Description of Agencies GAO Visited and the Services They
Provide:
Agency/location: Shirlington Employment and Education Center,
Arlington, Va.; Purpose: Provides employment and training
services to individuals in the community.; Services provided to day
laborers: * Provides services, such as classes in English and
computers.; * Brokers employment..
Agency/location: Coalition for Humane Immigration Rights
of Los Angeles, Los Angeles, Calif.; Purpose: Organizes workers and
provides social services to improve the overall welfare
of low-income workers.; Services provided to day laborers: * Provides
services, such as English and literacy classes.; * Litigates cases.; *
Brokers employment..
Agency/location: Chicago Coalition for the Homeless, Chicago, Ill.;
Purpose: Seeks to empower homeless individuals.; Services provided to
day laborers: * Organizes day laborers to address grievances..
Agency/location: Latin American Workers‘ Project, New York, N.Y.;
Purpose: Provides outreach and education to workers to help them
organize.; Services provided to day laborers: * Offers English
classes.; * Litigates cases.; * Brokers employment..
Source: Shirlington Employment and Education Center, Coalition for
Humane Immigration Rights of Los Angeles, Chicago Coalition for the
Homeless, and Latin American Workers‘ Project.
[End of table]
Several of these agencies began to serve day laborers because local
communities were increasingly displeased at seeing day laborers
congregating on street corners or at convenience or home warehouse
stores.[Footnote 40] Local citizens reported that they feared for their
safety or they feared that congregating could affect local commerce.
Advocates for day laborers feared for the safety and welfare of day
laborers--either they were being injured as a result of running into
traffic to respond to employers‘ solicitations for work or they were
complaining about not receiving promised wages or adequate working
conditions. Local groups--including social welfare agencies, worker
advocates, local government, and police--often worked together to
develop and fund solutions to connect day laborers and employers.
Toward that end, three of the four organizations worked with local
groups to build or identify locations that could be used to broker
employment between day laborers and employers. (Chicago‘s Coalition for
the Homeless does not broker employment.) The Shirlington Center has a
building where day laborers wait for work. The Latin American Workers‘
Project operates two sites in New York: one in the basement of a church
and the other on a parking lot along the banks of the Atlantic Ocean. A
tent was recently donated to the latter site to provide shelter. CHIRLA
operates three sites around the Los Angeles area that are also located
in parking lots.[Footnote 41] The agencies publicize these new
locations to employers and encourage them to use these sites to find
workers. In one location, police will ticket employers or day laborers
who use street corners. However, some day laborers refuse to use these
sites, believing that their employment opportunities are better at
unorganized sites. It is hard to reach all day laborers and unorganized
sites continue to exist. For example, New York officials identified 26
unorganized sites around New York City, while CHIRLA representatives
identified about 150 unorganized sites in Los Angeles County.
The agencies established procedures at these job sites to facilitate
the brokering of employment. These procedures were often developed with
the input of day laborers and typically require that they provide basic
information, such as their name, address, and telephone number and
abide by certain rules. For example, day laborers at one agency must do
some community work to ’pay off“ the services provided by the agency.
At two agencies, employers who participate must also provide
information, including their name, address, telephone number, and
license plate number. One agency, however, does not request such
information, fearing that those requirements may scare away employers.
When the day laborers arrive at the site around 6 a.m., they sign in,
listing their name, skills, and level of English proficiency. When
employers arrive seeking a worker for a particular job, a
representative of the agency will select a worker‘s name from the list
or pick a name through a lottery system. Employers may request certain
workers, for example, one that has a certain skill or speaks English.
The agencies let the day laborers negotiate wages with employers.
However, one agency established a certain minimum wage that employers
must pay. At several sites, the day laborers have informally agreed
among themselves on a minimum hourly wage and will not go below it.
Resolving Potential Violations Involving Day Laborers:
All the agencies help day laborers remedy workplace problems involving
wages or safety and health. To resolve the problem, they first contact
the employer directly. In some cases, it works well; but in other
cases, some day laborers do not have information about the employer,
such as a telephone number or address, making it difficult to pursue.
To address this problem, CHIRLA and the Latin American Workers‘ Project
have begun to provide books and cards to the day laborers where they
can track the hours they work, the locations where they have worked (to
help assert individual coverage under FLSA), and other information that
will help identify the employer.
If the problem is not resolved by dealing directly with the employer,
the agencies may conduct a community action to push the employer to
resolve the issue. For example, one agency organized a protest in front
of the employer‘s premises. Other strategies include picketing the
employer‘s work or home and seeking media attention. The agencies also
help workers file complaints with state or federal agencies, or in
small claims court. However, the agencies reported that most workers
are reluctant to do so.
If the problem persists, the agencies may litigate cases on behalf of
day laborers (to recover unpaid wages or obtain workers‘ compensation
for a work-related injury, for instance), provide legal advice, or
refer cases to local or state legal agencies for litigation. All four
agencies partner with private law firms or local, state, or federal
agencies that can also litigate cases. The Latin American Workers‘
Project, for example, refers cases to the Puerto Rican Legal Defense
Fund or the New York State Attorney General.
As a result of these efforts, these four agencies reported that,
collectively, they retrieved over $280,000 in wages owed to workers in
2001. In addition, two agencies reported a significant reduction in the
number of complaints regarding wages, safety, and health.
[End of section]
Appendix III: Selected Features of FLSA and Requirements in Four
States:
This table compares selected features of FLSA with state wage laws,
regulations, and administrative orders in the 4 states we visited. It
highlights only those provisions that are most applicable to day
laborers. State requirements play an important role in supplementing
FLSA‘s protections because states may enact more stringent provisions.
This means that a state could cover employers and individuals not
covered under FLSA. If an employer is covered under FLSA and a state
requirement, the more stringent provision will generally apply. We
supplemented this table with information provided by state officials.
Provisions: General coverage; FLSA: All individuals employed by; *
employers earning $500,000+ annually in sales, and employees engaged in
interstate commerce, or in the production of goods for commerce;; *
employers earning less than $500,000 and individual is engaged in
interstate commerce, or in the production of goods for commerce, or
closely related and directly essential to interstate commerce; or; *
homeowners performing domestic services, such as house cleaning or
gardening for 8+ hours a week or earning at least $1,300 in 2002.;
California: Individuals employed by an employer, including homeowner,
with certain exceptions.; Illinois: Individuals employed by an
employer, with certain exceptions.; New York: Individuals employed by
an employer, including homeowners, with certain exceptions.; Virginia:
Individuals employed by an employer, with certain exceptions..
Provisions: Exclusions most relevant to day laborers; FLSA: Individuals
working for companies earning less than $500,000 and employees are not
engaged in interstate commerce.; California: None; Illinois: Workers; *
employed by employers with fewer than four employees or; * employed by
a homeowner performing domestic service in a private home.; New York:
None; Virginia: Workers; * employed by employers with fewer than four
employees;; * employed by a homeowner performing domestic service in a
private home; or; * covered by FLSA..
Provisions: Wages; FLSA: Minimum wage: $5.15/hour.; California:
Established rate of pay but no lower than $6.75/hour.; Illinois:
Established rate of pay but no lower than $5.15/hour.; New York:
Established rate of
pay but no lower
than $5.15/hour.; Virginia: Established rate of pay but no lower than
$5.15/hour..
Provisions: Overtime; FLSA: For over 40 hours in any workweek, workers
earn 1-½ times the regular rate of pay.; California: Same as federal
law. Daily overtime: workers earn 1-½ times the regular rate of pay for
every hour worked over 8 hours in 1 day and double the regular rate
every hour worked after 12 hours in 1 day.; Illinois: Same as federal
law.; New York: Same as federal law.; Virginia: None.
Provisions: Deductions most relevant to day laborers; FLSA: Can deduct
items considered to be an employee benefit, even if it brings workers
below the minimum wage, such as meals, lodging; must be at the actual
cost. Can deduct for check cashing or transportation if the services
are
voluntary and considered to be an employee benefit.Can deduct items
considered to be for an employer‘s benefit, such as transportation and
uniforms, but deductions cannot bring wages below the minimum.;
California:
Employees must provide written authorization for deductions. Can deduct
items
that take workers below the minimum wage, such as meals, but the law
sets
a cap. Cannot deduct for personal protective equipment.; Employers must
provide itemized statement of deductions at time of payment.; Illinois:
Can deduct the reasonable cost of meals and lodging, if it is for the
employee‘s benefit, even if it brings workers below the minimum wage.
Can deduct for transportation, but not if it brings wages below the
minimum. Can deduct the reasonable cost of uniforms and equipment with
employee‘s written consent, but not if it brings wages below the
minimum.; ; Employers must provide itemized statement of deductions at
time of payment.; New York: Can deduct charges for items considered an
employee benefit, such as meals and lodging, even if it brings worker
below the minimum wage; the state sets caps for these items.[A];
Allowances for uniforms are added to not deducted from wages.
Cannot deduct charges for transportation or personal protective
equipment.; Employers must provide itemized statement of deductions at
time of payment.; Virginia: No deductions allowed without written and
signed employee authorization.; Requires written statement of
deductions
upon request.
Provisions: Recordkeeping; FLSA: Employers must keep payroll records.
Only courts may assess a penalty for failure to keep payroll records.;
California: Employers, including homeowners, must keep payroll
records.; ; Penalty of $500 for failure to keep payroll records.;
Illinois: Employers must keep payroll records. State enforcement
agency currently not authorized to assess penalties for failure to
keep records.[B]; New York: Employers, including homeowners, must
keep payroll records.; Penalty for failure to keep payroll records
is up to $1,000 for a first violation, $1,000-$2,000 for a second
violation, and $2,000-$3,000 for a third violation.; Virginia: None.
Provisions: Other; FLSA: [Empty]; California: [Empty]; Illinois: The
Day Labor Services Act (DLSA) provides additional protections to day
laborers employed by temporary staffing agencies.[C] Check cashing fees
are prohibited, transportation fees are capped at 3% of daily wages,
and other deductions, such as meals, uniforms, and equipment, must be
at the actual cost or market value. DLSA also recommends that temporary
staffing agencies hire people who speak languages that are generally
used near day labor service agencies.; New York: [Empty]; Virginia:
[Empty].
[A] New York State law uses the term ’allowances“ to denote
charges for items such as meals and lodging. For this table, however,
we refer to these allowances as ’deductions.“ :
[B] According to state Labor officials, new legislation authorizing the
state agency to assess penalties will take effect in 2003.
[C] Although the act only covers ’day labor service agencies,“ for this
table, we are referring to them as temporary.
Source: GAO comparison of the Fair Labor Standards Act of 1938, with
the pertinent state laws, requlations, and administrative orders of
California, Illinois, New York and Virginia.
[End of table]
[End of section]
Appendix IV: Comments from the Employment Standards Administration:
Note: GAO comments supplementing those in the report text appear at the
end of this appendix.
U.S. Department of Labor:
Assistant Secretary for Employment Standards Washington. D C. 20210:
SEP 10 2002:
Mr. Robert E. Robertson Director:
Education, Workforce, and Income Security Issues United States General
Accounting Office 441 G Street, N.W., Room 5930 Washington, D.C. 20548:
Dear Mr. Robertson:
Thank you for the opportunity to comment on the draft report prepared
by the General Accounting Office (GAO) entitled, Worker Protection:
Labor‘s Efforts to Enforce Protections for Day Laborers Could Benefit
from Better Data and Guidance, GAO-02-925. The comments that follow
focus on references in the report to the Employment Standards
Administration‘s Wage and Hour Division (WHD). Please note, however,
the enclosed letter from the Occupational Safety and Health
Administration (OSHA) which addresses those sections of the report that
specifically refer to OSHA. We have also forwarded under separate cover
technical corrections from the Office of the Solicitor and from the
Bureau of Labor Statistics.
The draft cites (pg. 16) a variety of reasons that cause day laborers‘
reluctance to complain of potential violations. The same reasons cause
worker reluctance to cooperate with the conduct of WHD investigations,
often to the extent of refusing to provide information critical to
establishing violations of worker protection laws.
The draft incorrectly indicates (pg. 17) that the WHD ’lacks a core of
Spanish-speaking staff in its offices.“ In fact, approximately one
quarter of WHD staff nationwide is Spanish-speaking. As a result of a
concentrated hiring effort over the last decade, this ratio is much
higher in those areas of the country with high concentrations of
Spanish-speaking workers; for example, approximately 40 percent of the
WHD Western Region staff are Spanish-speaking.
The draft indicates (pg. 20) that telephone and fax contacts with
employers sometimes focused on single workers/violations/timeframes,
and reduced the ability to uncover potential violations affecting day
laborers. These contacts, called conciliations, are the most timely,
effective method of securing last pay checks for workers, including day
laborers. A pattern of conciliations, however, is seen as an indicator
that a full on-site investigation of the employer might be warranted.
(See also OSHA‘s concern with this segment of the report.):
The draft‘s indication (pg.20) that ’there is no penalty for failing to
keep accurate payroll records under the Department of Labor‘s FLSA
regulations“ is misleading. A more accurate statement is: ’the FLSA
provides the Department of Labor with no authority to assess penalties
for failing to keep accurate payroll records.“:
The draft indicates (pg. 21) that advance notice of a WHD visit, as is
done in the majority of investigations, allows employers to refrain
from hiring day laborers on the day of the investigation, thus limiting
the WHD‘s opportunity to find day laborers. In those circumstances
where the employment of day laborers is a potential compliance issue,
the WHD would typically exercise its discretion and conduct an
unannounced investigation.
The draft‘s indication (pg. 25) that ’federal law covers transportation
for agriculture workers to and from the job site if they are
transported by their employer“ is also misleading. A more accurate
statement would read: ’Federal law covers transportation for migrant
and seasonal agricultural workers...“.
The draft makes three recommendations to the Secretary of Labor
specific to the WHD. Our response follows, after a restatement of each
of the recommendations.
1. Direct WHD and OSHA, as part of their education and outreach
efforts, to enhance the procedures they use to reach day laborers, such
as expanding their contact with temporary staffing agencies or other
agencies that work with day laborers.
Response: The WHD is strongly committed to providing effective
compliance assistance to the regulated community. As part of its
growing outreach effort to employers and employees and their
representatives, the WHD will develop and disseminate a plain language
fact sheet, in English and Spanish initially, covering the application
of wage and hour laws to the employment of temporary workers such as
day laborers. The WHD will provide this fact sheet to temporary
staffing agencies and other agencies that work with day laborers, along
with an invitation to work with the WHD to insure compliance with wage
hour laws.
The WHD is using a variety of media to reach immigrant workers, who
constitute many of those in day labor jobs. In addition to public
service announcements, the agency has been increasing its use of
Spanish-speaking radio and television programs to explain workers‘
rights. The agency is also reaching out to the Spanish press. The WHD
seeks opportunities to participate in community programs such as Cinco
de Mayo and to address ’English as a Second Language“ classes. The WHD
is also working to translate fact sheets and other materials into
Spanish. Most of the agency‘s workers‘ rights posters and many of the
more significant compliance assistance materials have already been
translated. The agency works with community and faith-based
organizations that function as intermediaries between the WHD and
workers who may need assistance. The WHD has developed a ’Wage Hours
Recordkeeper“ in English and Spanish to provide temporary and transient
workers - such as day laborers - the information needed to determine if
they are paid properly. This booklet, evidently similar to that
developed by the Latin American Worker‘s project cited on page 34 of
the draft report, helps workers track the hours they work. The WHD
provides this booklet to WHD offices across the country for
distribution
to workers through community and faith-based organizations.
2. Direct WHD and OSHA to review the results of local efforts to obtain
additional data on the presence and violation experience of day
laborers working for temporary staffing agencies for possible
replication in other offices or agency wide.
Response: The WHD will collect and review these results and consider
them for possible replication.
3. Instruct the WHD to clarify when day laborers may be covered under
the domestic service provision of FLSA.
Response: The WHD will add clarifying instruction on the potential
application of domestic service provisions of the FLSA to the
employment of day laborers to its Field Operations Handbook. Similarly,
WHD training will be supplemented to include this clarification.
Again, thank you for the opportunity to comment on this report. If you
have any questions, please contact Griffin Crump at 693-0308.
Sincerely,
Victoria A. Lipnic:
Signed by Victoria A. Lipnic:
Enclosure:
GAO Comments:
1. We clarified the paragraph that discusses WHD‘s Spanish-speaking
staff to indicate that WHD has about one-quarter of its staff that
speak Spanish.
2. See discussion in Agency Comments section of report.
3. We modified the report‘s language as suggested.
[End of section]
Appendix V: Comments from the Occupational Safety and Health
Administration:
Note: GAO comments supplementing those in the report text appear at the
end of this appendix.
U.S. Department of Labor:
Assistant Secretary for Occupational Safety and Health Washington, D.C.
20210:
Mr. Robert E. Robertson Director:
Education, Workforce, and Income Security Issues United States General
Accounting Office:
441 G Street NW, Room 5930 Washington, DC 20548:
Dear Mr. Robertson:
We have reviewed the draft report prepared by the General Accounting
Office (GAO) entitled ’Worker Protection: Labor‘s Efforts to Enforce
Protections for Day Laborers Could Benefit from Better Data and
Guidance.“ Based upon our review of the report, there are several
issues of significant concern to the Occupational Safety and Health
Administration (OSHA) about the GAO report.
First and foremost, we want to emphasize that employers of day laborers
have the same obligations as any other employer. The OSH Act gives
employers the ultimate responsibility to provide all their workers a
safe and healthful workplace, free from occupational hazards,
regardless of ethnicity, citizenship or employment status. Standards
are intentionally written specific to a workplace hazard and do not
focus on specific population groups. Employers must comply with
regulations promulgated by OSHA, and implement the regulations in such
a way as to protect all workers under their control from the hazards to
which they may be exposed. Immigrant,
Hispanic/ Latino and/or Day Laborers are all protected by agency
standards in the same manner as any other worker population.
Nonetheless we acknowledge that particular outreach and enforcement
efforts may be necessary in order to address the circumstances of many
day laborer workers.
In that regard, OSHA has undertaken significant efforts to develop
programs for Hispanic immigrant workers and day laborers. Many of
OSHA‘s area offices have programs to reach day laborers. The programs
are designed to meet the needs of the local population. In August 2001,
the Agency responded to Secretary of Labor Elaine Chao‘s concerns about
protecting Hispanic workers by forming the Hispanic Task Force. This
task force is pulling the local programs together, conducting a gaps
analysis and developing suggestions and recommendations for
implementing a national integrated strategy to address the problems of
Hispanic and immigrant worker populations, including day laborers. We
believe the GAO report should recognize OSHA‘s significant, non-data
related initiatives.
The majority of day laborers fall into the category of Hispanic and
immigrant workers, the subject of our task force initiative. According
to page 12 of your report, one-third of day laborers have been in this
country for less than one year. In addition, according to the same page
of the report ’the majority of day laborers were Hispanic men.“ OSHA‘s
Hispanic Task Force has already suggested and OSHA has initiated a
number of program efforts that address several of your recommendations.
For example, when looking at the barriers that language may pose to
Hispanic/Latino workers and employers, the Agency has:
*translated numerous materials into Spanish,
*established a nationwide Spanish capability 1-800 complaint/ concern
telephone line,
*introduced a new web page for Spanish-speaking employers and workers,
*initiated new efforts in working with Spanish employers, Hispanic
Chamber of Commerce groups, and Mexican Consulates,
*formed an alliance with the Hispanic Contractors of America to expand
outreach and communication on safety and health awareness and best
practices for Spanish-speaking employers and employees in the
construction industry.
*increased its cooperation with NIOSH to determine (and then overcome)
the barriers Special Populations at Risk may encounter, and to learn
the best methods to train Hispanic/ Latino and immigrant workers in
preventing workplace injuries and illnesses, and *enhanced its data
collection methods.
We plan to continue to share special project and program information
nationwide, work with community and faith-based groups, and form
special business alliances and partnerships to address the problem of
increased fatal injuries to Hispanic/Latino and immigrant workers,
including day laborers. In fact we will be participating in the
National Safety Congress‘ Hispanic Forum in October presenting
information about OSHA to a significant number of Hispanic community
groups.
OSHA‘s participation in the Roswell Intercultural Alliance (RIA) in
Georgia is another example of the work we are doing with day laborers.
RIA has been actively assisting day laborers for the last seven years
by providing a place for the laborers to come to find work. However,
the center wasn‘ t attracting as many employers as they had hoped. RIA
turned to OSHA for help. OSHA began a partnership with RIA to
coordinate
safety and health training programs. OSHA is working with Georgia
Tech University, safety directors of a few construction companies
and a local chapter of the Association of Builders and Contractors
(national trade association representing about 23,000 contractors,
subcontractors, material suppliers and related firms from across the
country and from all specialties in the construction industry), to
provide the day laborers at the RIA Center with 6 hours of safety
training. After receiving training the participants are issued a
certificate from Georgia Tech. This special training program has
attracted employers and day laborers as well. The employers are
interested in hiring day laborers that understand safety concepts
and how to protect themselves. The workers find that they can get
better jobs, many of which turn into permanent employment by having
a certificate in safety training. In fact, 22 of the 60 laborers
trained to date have obtained full time permanent employment due to
their safety certificates. OSHA is also working with a center in
Duluth, Georgia and the city of Fort Worth, Texas to develop similar
programs. Each of our ten regions has similar outreach programs for
day laborers, Hispanic and/or immigrant workers. The national focus
brought to these programs is strengthening them. The GAO report
should emphasize this point.
Finally, we have several more specific concerns with the report.
On page 19, your report states that OSHA targets construction sites
valued at $50,000 or more and day laborers generally work for small
employers. However it should be noted that small contractors regularly
subcontract work at large construction sites and certainly at many of
the construction sites valued over $50,000. This criterion does not
preclude OSHA from inspecting sites where many day laborers will be
found.
Also, on page 20, your report indicates OSHA has implemented a
temporary procedure that required OSHA investigators, for all fatality
and catastrophe investigations, to determine if the worker was foreign-
born, Hispanic or had language barriers and then, if that were the case
to determine if the worker is a day laborer. This description fails to
mention that the new OSHA procedure is defined as ’temporary“ only
because it is a pilot project. The temporary procedure for fatality/
catastrophe investigations, including changes to the OSHA Form 170, has
been introduced into OSHA‘s regional and area offices and will remain
in place until the permanent procedure is incorporated into the
agency‘s overall redesign of the Integrated Management Information
System (IMIS). The agency changed the Form 170 in May to include
several questions about ethnicity and language capabilities, such as
country of origin, and whether language barriers may have caused or
contributed to the workplace accident. OSHA compliance officers are now
using this new procedure to report current fatality/ catastrophic event
investigations and are also completing the form for fatalities/
catastrophes
that have occurred since October 2001; thus giving the agency data for
all of Fiscal Year (FY) 2002.
Additionally, your report indicates OSHA is visiting fewer worksites.
To the contrary, OSHA‘s enforcement efforts are not declining. OSHA
inspections have steadily increased from 24,024 in FY 1996 to 36,400 in
FY 2002. In FY 2003, OSHA expects to increase its current level of
inspections in high hazard workplaces from 36,400 to 37,700.
The GAO report (page 20) also implies OSHA‘s phone/ fax system for
handling complaints from workers may not be effective since it prevents
inspectors from actually visiting worksites. To the contrary, since it
was implemented in 1996, the new system has been praised by workers and
employers alike since the system provides immediate feedback to
employees who complain to the agency about corrective action taken. If
the complainant is still not satisfied with the action taken by an
employer, an onsite investigation is scheduled. Without this system,
employees would have to wait for several days to a week for a complaint
inspection to be scheduled, while the hazard remained uncorrected.
Given the transient nature of day laborer working conditions, OSHA
believes the phone/ fax system is superior to the more traditional
on-site approach of handling worker complaints.
Thank you for providing us with an opportunity to comment on your draft
report. If you have questions, please contact Frank Frodyma on (202)
693-1914.
Sincerely,
John L. Henshaw:
Signed by John L. Henshaw:
GAO Comments:
1. See discussion in Agency Comments section of report.
2. We do not disagree with the number of investigations that OSHA‘s
cites in its comments. The data OSHA cites in support of increasing
number of investigations include those conducted by telephone and fax.
As a result, these numbers do not necessarily indicate increases in
worksite visits.
[End of section]
Appendix VI: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Lori Rectanus, (202) 512-9847
Monika Gomez, (202) 512-9062:
Staff Acknowledgments:
Ronni Schwartz made significant contributions to this report, in all
aspects of the work throughout the review. In addition, Lisa Lim and
Torey Silloway assisted in gathering and analyzing information
collected on our site visits; H. Brandon Haller helped develop our data
collection instrument and our overall design and methodology; Julian
Klazkin provided legal support; and Patrick DiBattista assisted in
report and message development.
[End of section]
FOOTNOTES
[1] We selected these states based on a variety of state-specific
factors, including perceived high numbers of day laborers; use of day
laborers at nationally important locations, such as the World Trade
Center and the Pentagon sites; and local efforts to enforce existing
laws.
[2] The term ’contingent“ has been used for many years to describe a
variety of nonstandard work arrangements. It describes the impermanent
nature of certain work arrangements, such as those (1) providing a
relatively low level of job security, (2) with more variable or less
predictable hours, and (3) that reflect a change in the traditional
rights of workers and the benefits offered to them.
[3] The CPS surveys approximately 50,000 households each month. This
information is the primary source of nationally representative data
used to develop national employment and unemployment rates.
[4] See P.L. No. 75-718 §§ 6, 7 (1938).
[5] See P.L. No. 87-30 §§ 5(b), 6(a) (1961).
[6] Workers performing domestic service qualify for the minimum wage if
they work a total of more than 8 hours a week for one or more employers
or receive cash wages from one employer totaling at least $1,300 in
2002. See 29 U.S.C. § 206(f); 66 Fed. Reg. 54047
(Oct. 25, 2001).
[7] 29 C.F.R. § 1975.6.
[8] The OSH Act allows states to operate their own safety and health
programs as long as they are determined by OSHA to be at least as
effective as the federal OSHA program. Two of the state programs cover
only state and local government employees.
[9] We also identified some day laborers who were black, eastern
European, or female. Although available BLS data show most day laborers
are white (88 percent), this is because ethnicity is asked separately
from race. Thus, Hispanics will indicate first whether they are of
white or black race, then separately indicate their ethnicity as
Hispanics. Data from the survey show that Hispanics make up nearly 40
percent of the entire day laborer population.
[10] Abel Valenzuela, Jr., Working on the Margins: Immigrant Day Labor
Characteristics and Prospects for Employment, Working Paper No. 2,
Center for Comparative Immigration Studies, University of California-
San Diego, May 2000.
[11] We did find a small percentage of day laborers who had more than a
high school diploma, usually obtained in their home country.
[12] Individuals working for temporary staffing agencies may be more
likely to be documented and authorized to work since they generally
have to provide documentation of their legal work status to their
employer. However, we were told of instances where temporary staffing
agencies did not ask for documentation or where day laborers provided
fraudulent documentation.
[13] Several temporary staffing agencies were unable to provide
specific information on race, age, and educational levels because they
do not collect this type of information.
[14] This report does not fully address the characteristics or
vulnerability of day laborers who are not served by any group, as that
information is difficult to obtain. For example, we heard of Chinese
day laborers in New York working for storefront or ’fly-by-night“
temporary staffing agencies. These workers are likely to be as
vulnerable as those day laborers working with the agencies we
contacted.
[15] See U.S. General Accounting Office, Contingent Workers: Incomes
and Benefits Lag Behind Those of Rest of Workforce, GAO/HEHS-00-76,
(Washington, D.C.: June 30, 2000). The Department of Health and Human
Service‘s 2002 Poverty Guidelines identifies the poverty threshold for
a family of three as $15,020.
[16] BLS does not publish information on day laborers separately, but
while the number of other types of contingent workers has remained
relatively stable since 1995, the number of day laborers has increased
by 135 percent. In 2001, day laborers accounted for about
2 percent of the contingent workforce.
[17] See footnote 10.
[18] U.S. General Accounting Office, Child Labor in Agriculture:
Changes Needed to Better Protect Health and Educational Opportunities,
GAO/HEHS-98-193, (Washington, D.C.: Aug. 21, 1998).
[19] BLS said that it can conduct the survey in person if necessary and
does have the ability to conduct the survey in Spanish; however, some
day laborers may not have a fixed address or may speak a language other
than Spanish.
[20] Moreover, the characteristics of this workforce reflected in BLS‘s
data raise questions about the extent to which BLS reaches day laborers
employed by temporary staffing agencies. For example, BLS‘s 2001 data
show that individuals working for temporary staffing agencies are
predominately white and employed in clerical and administrative
occupations, which does not reflect the characteristics of day laborers
working for temporary staffing agencies.
[21] We determined that the day laborers who were the subject of our
review generally do not appear to meet the legal criteria to be
considered independent contractors under the OSH Act or FLSA. We
determined this through our structured interview questions regarding
the ownership of tools and transportation and the supervision of
employees.
[22] OSHA also responds to all fatalities, catastrophes, and cases of
imminent danger.
[23] In some states, the percentage of compliant-driven inspections is
higher than the national average.
[24] In one of our previous reports, Labor officials reported that
there is a misperception among the foreign-born working community,
actively promoted by those who do not want employees to cooperate with
Labor, that cooperating with Labor will automatically result in an
Immigration and Naturalization Service investigation. See U.S. General
Accounting Office, Illegal Aliens: Significant Obstacles to Reducing
Unauthorized Alien Employment Exists, GAO/GGD-99-33, (Washington,
D.C.: Apr. 2, 1999).
[25] We reviewed a sample of complaint-based investigations in the
temporary staffing industry for both OSHA and WHD and confirmed that
none of the complaints came from day laborers.
[26] See, for example, Dan Kerr and Chris Dole, Challenging
Exploitation and Abuse: A Study of the Day Labor Industry in Cleveland,
Prepared for the Cleveland City Council, Ohio, Sept. 2, 2001.
[27] See footnote 10.
[28] At the local level, WHD offices have the authority to target
construction. In 2001, about 3 percent of WHD‘s investigations in
construction were targeted.
[29] Although the client employer records an injury, the temporary
staffing agency pays workers‘ compensation for the injured worker.
[30] High rates of workers‘ compensation payments indicate either a
large number of injuries or potentially fewer injuries that incurred
significant costs--an indicator of a potentially hazardous work
environment.
[31] A court can assess a penalty if an employer is convicted of
willfully violating recordkeeping requirements. 29 U.S.C. §§ 215(a)(5),
216(a).
[32] 29 C.F.R. § 776.17.
[33] WHD might also inform the individuals of their private right of
action to file suit in state or federal court.
[34] See 29 U.S.C. § 203(m); 29 C.F.R. pt. 531.
[35] These items can be deducted only if they are customarily provided
and priced at a reasonable cost or fair value. 29 C.F.R. §§ 531.30-
.33,.36-.37. Check cashing fees or other such deductions are illegal in
some states.
[36] See 29 C.F.R. § 531.36(b).
[37] One temporary staffing agency we interviewed dispenses pay using a
cash machine that charges a fee ranging from $1 to $1.99. A pending
class action suit in three states alleges this practice is illegal.
[38] 29 U.S.C. § 1841.
[39] Labor‘s Office of the Solicitor commented that, depending on the
particular facts, some waiting time may be compensable, such as when
the waiting time occurs between the first and last tasks performed
during a workday.
[40] Representatives from all of these agencies said that many local
communities continue to make efforts to pass anti-loitering ordinances
in an effort to prevent day laborers from gathering at street corners.
In at least three states--Virginia, California, and Illinois--those
ordinances or efforts have been struck down by the courts.
[41] CHIRLA provides mediation and other services for six unorganized
corners.
GAO‘s Mission:
The General Accounting Office, the investigative arm of Congress,
exists to support Congress in meeting its constitutional
responsibilities and to help improve the performance and accountability
of the federal government for the American people. GAO examines the use
of public funds; evaluates federal programs and policies; and provides
analyses, recommendations, and other assistance to help Congress make
informed oversight, policy, and funding decisions. GAO‘s commitment to
good government is reflected in its core values of accountability,
integrity, and reliability.
Obtaining Copies of GAO Reports and Testimony:
The fastest and easiest way to obtain copies of GAO documents at no
cost is through the Internet. GAO‘s Web site ( www.gao.gov ) contains
abstracts and full-text files of current reports and testimony and an
expanding archive of older products. The Web site features a search
engine to help you locate documents using key words and phrases. You
can print these documents in their entirety, including charts and other
graphics.
Each day, GAO issues a list of newly released reports, testimony, and
correspondence. GAO posts this list, known as ’Today‘s Reports,“ on its
Web site daily. The list contains links to the full-text document
files. To have GAO e-mail this list to you every afternoon, go to
www.gao.gov and select ’Subscribe to daily E-mail alert for newly
released products“ under the GAO Reports heading.
Order by Mail or Phone:
The first copy of each printed report is free. Additional copies are $2
each. A check or money order should be made out to the Superintendent
of Documents. GAO also accepts VISA and Mastercard. Orders for 100 or
more copies mailed to a single address are discounted 25 percent.
Orders should be sent to:
U.S. General Accounting Office
441 G Street NW,
Room LM Washington,
D.C. 20548:
To order by Phone:
Voice: (202) 512-6000:
TDD: (202) 512-2537:
Fax: (202) 512-6061:
To Report Fraud, Waste, and Abuse in Federal Programs:
Contact:
Web site: www.gao.gov/fraudnet/fraudnet.htm E-mail: fraudnet@gao.gov
Automated answering system: (800) 424-5454 or (202) 512-7470:
Public Affairs:
Jeff Nelligan, managing director, NelliganJ@gao.gov (202) 512-4800 U.S.
General Accounting Office, 441 G Street NW, Room 7149 Washington, D.C.
20548:
