Will Oregon get serious about labor law enforcement?

By Don McIntosh

Without enforcement, there comes a point when laws are just scraps of paper.

In Oregon, responsibility for investigating violations of minimum wage, overtime, and a dozen other vitally important labor laws falls to as few as 12 compliance specialists at the Wage and Hour Division of the Oregon Bureau of Labor and Industries (BOLI).

It’s the same for workers’ civil rights, like the right not to be discriminated against on the grounds of race or gender, and the right not to be fired for filing a workers’ comp claim—about 13 investigators in BOLI’s Civil Rights Division. That’s about one wage and hour investigator—and one civil rights investigator—for every 150,000 workers.

Those investigators, and the BOLI support staff and attorneys who work with them, are busier than ever. BOLI is also responsible for the state’s apprentice programs and for educating employers about labor laws. But its total workforce has been stuck at about 100 since 2003, and that was a big drop-off from staffing levels in the mid-’90s. BOLI’s staff has shrunk by a third since 1995, even as Oregon’s population has grown by more than a million, and legislators have passed new laws for BOLI to enforce.

“When Duke and I came in, we were actually shocked at the lack of staff for the amount of work that needs to be done,” Labor Commissioner Val Hoyle told the Labor Press by phone. Elected labor commissioner in 2018, Hoyle named former Oregon AFL-CIO political director Duke Shepard as her deputy. They spent the first two years of her four-year term wringing all the efficiency and improvements they could out of the existing operation. BOLI’s worksite posters and web site were rewritten so they could be understood by working people, not just law school graduates. Materials and forms were made translatable. Instead of just waiting for complaints to be filed, a Proactive Investigations and Enforcement unit was assigned to target industries where there’d been lots of wage violations. Hoyle even instituted voluntary monthly management furlough days, and saved enough from the reduction in management salaries to fund an additional front-line position.

Now, Hoyle says they’ve reached a point where the budget math doesn’t work out … if BOLI wants to meet the public expectation that labor laws will be enforced.

Crushing caseloads, feeble enforcement

“The absence of further investment … will render many established legal rights as little more than aspirational value statements codified in statute,” the agency says in its official budget request document. “Rights declared without adequate enforcement results in delayed and denied justice.”

In the next two-year budget cycle, BOLI is asking for a modest increase, enough to increase staff from its current 105 full-time equivalent positions to 130.5. That would still leave the agency 30 fewer staff than it had 25 years ago, but perhaps Hoyle, a former House Majority Leader who served seven years in the Legislature, knows not to ask for too much at once.

On the civil rights side, Hoyle is asking for five more investigators—to reduce caseload and allow staff to spend more time on each case. Right now, most BOLI civil rights investigators handle more than 50 cases at a time, Hoyle says, and it’s not uncommon to have 75 cases or more.

“By any measure these caseloads are unacceptable,” Hoyle said. If lawmakers approve her budget request, civil rights caseload would drop below 45. She’s also asking for four investigators to investigate civil rights discrimination in housing; currently there are none.

Caseloads are a problem in wage and hour enforcement too, with the result that cases can take a long time to resolve. With violations of the law that requires payment of the prevailing wage on public construction projects, BOLI’s official goal is to complete two thirds of investigations within 90 days. That goal has been met only once in five years.

In 2018, less than half of prevailing wage investigations were completed within 90 days. That’s a problem, because when construction projects end, workers move on, and it can be harder to get justice for the victims of wage theft. Last year, 126 prevailing wage investigations led to $1.1 million in back wages for construction workers.

All told, BOLI’s Wage and Hour division investigates nearly 1,400 unpaid wage claims a year, and collects close to $2 million a year in back wages. The division’s workload may be growing now because of a common-sense change Hoyle made: This summer the agency made it possible to file a wage complaint online, and Hoyle says wage and hour claims have doubled since then.

Hoyle wants six more full-time positions in the Wage and Hour division, in order to target wage violations in Oregon’s cannabis industry. Between grow operations and retail, too many cannabis workers are paid improperly in cash, in product, and in violation of the law. She also wants to hire a Russian-speaking investigator in prevailing wage enforcement. And she wants to add a staff person to recruit more women and minorities to state apprenticeship programs.

Will lawmakers deliver? BOLI submitted its budget request in late summer. The next step is for the governor’s office to agree or disagree; the governor is expected to submit her proposed two-year budget by the end of this month. But that’s just a recommendation; state legislators are the decision-makers when it comes to budgeting.

The Legislature’s Joint Ways and Means Committee will next work on the budget from February to June 2021. When they meet, Hoyle will make the case for remedying decades of underfunding in labor law enforcement.

“The workers that I have in my agency are incredibly committed, and have done a lot with nothing for a long time,” Hoyle said. “They deserve to have the resources to do the job.”