Worker Protection:

Labor's Efforts to Enforce Protections for Day Laborers Could Benefit from Better Data and Guidance

GAO-02-925: Published: Sep 26, 2002. Publicly Released: Sep 26, 2002.

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Day 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.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: Labor's Wage and Hour Division (WHD) has drafted and placed into organizational review and clearance an addition to its Field Operations Handbook to clarify the potential application of the domestic service provisions of the FLSA to the employment of day laborers. Similarly, WHD training will be supplemented to include the clarification.

    Recommendation: 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, the Secretary of Labor should instruct WHD to clarify when day laborers may be covered under the domestic service provision of FLSA.

    Agency Affected: Department of Labor

  2. Status: Closed - Implemented

    Comments: In April 2003, Labor's Occupational Safety and Health Administration (OSHA) implemented a new procedure to collect information on Hispanic and immigrant fatalities, potential language barriers, and day laborer status. OSHA revised the form it uses to document certain OSHA investigations to collect data on day laborers and temporary staffing agencies for all investigated fatalities so that it can track the status of immigrant workers and day laborers. The information has been compiled in an agency database and has been analyzed.

    Recommendation: To further WHD's and OSHA's efforts to obtain better information concerning the presence of and potential for violations involving day laborers, the Secretary of Labor should 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.

    Agency Affected: Department of Labor

  3. Status: Closed - Implemented

    Comments: Labor's Wage and Hour Division (WHD) considered the results and analysis of these efforts during its FY 2004 planning process. They determined that temporary help agencies are among a defined list of low-wage industries incorporated into WHD's FY 2005 performance plan that are appropriate for local and regional initiatives to increase compliance. Labor also directed its Hispanic Task Force to explore the best way to collect data on potential violations experienced by day laborers. The agency consulted with its state plan partners to determine best practices for this data collection. In addition, the Task Force established a system to gather and share information on local initiatives and best practices developed by Occupational Safety and Health Administration (OSHA) offices. The system--an internal clearinghouse of programs and information developed by each region--is now on OSHA's Intranet so that OSHA staff can stay informed and share resources.

    Recommendation: To further WHD's and OSHA's efforts to obtain better information concerning the presence of and potential for violations involving day laborers, the Secretary of Labor should 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.

    Agency Affected: Department of Labor

  4. Status: Closed - Implemented

    Comments: Labor has implemented several efforts to address this recommendation. Labor's Wage and Hour Division (WHD) developed and distributed a plain language pocket guide for day laborers on wage and hour laws in the workplace. It has been disseminated to all WHD District Offices for distribution to day laborers, and to community and faith-based organizations working with day laborers. Labor's Occupational Safety and Health Administration created a Hispanic Task Force to provide, among other things, outreach to immigrant workers and day laborers. The Task Force plans national efforts and reports on local efforts. Hispanic coordinators in each region have been appointed to coordinate activities for Hispanic workers. In addition, OSHA's intranet now includes regional activities so that staff can share resources. OSHA works with a variety of local organizations to address issues related to day laborers. For example, the Atlanta West Area Office worked with a local day laborer organization to provide safety training and employee rights training to day laborers. Staff in New York Region II visit sites where day laborers gather to provide information on their rights. OSHA's strategic management plan, released in May 2003, emphasizes hard-to-reach workers, such as day laborers. The plan requires local OSHA offices to design programs to address the needs of immigrant workers. Additional national initiatives include: sponsoring a Hispanic Summit in 2004; participating in "Justice and Equality in the Workplace," in which OSHA will (1) educate Latinos on worker rights and responsibilities and provide an opportunity for non-English speakers to report violations; (2) provide Mexican Consulates with materials; and (3) collaborate with the National Institute for Occupational Safety and Health to determine the best training methods to reach Hispanic and immigrant workers and day laborers.

    Recommendation: To further WHD's and OSHA's efforts to obtain better information concerning the presence of and potential for violations involving day laborers, the Secretary of Labor should 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.

    Agency Affected: Department of Labor

  5. Status: Closed - Not Implemented

    Comments: OSHA believes there are significant areas of overlap with other agency legal and statutory requirements and, therefore, no need to specify additional regulations concerning temporary staffing agency responsibilities. As a result, the agency directed its resources to increasing compliance assistance, outreach, education, and training to these workers to improve safety and health at worksites.

    Recommendation: 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, the Secretary of Labor should 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 Affected: Department of Labor

 

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