At a recent conference, someone brought up the importance of defending “the state” against right-wing ideologues. Outrage ensued—so much, in fact, that the afternoon session had to be canceled. That presenter never got the chance to explain that she was not talking about the carceral state, the police, or the military-industrial complex. She was talking about the need to resist the ongoing commodification of government services and the sweeping elimination of regulation—in other words, the right’s agenda. Think tanks planning for a second Trump administration have big plans to dismantle the federal bureaucracy and limit the power of federal agencies to interpret the intent of the laws they are charged with implementing.
There is a reason the right is laying these plans. Over the past three and a half years, the Biden administration has demonstrated just how powerful the actions of the administrative state can be in the service of labor power and antimonopoly regulation. This is precisely what the conference presenter had in mind: the work of transforming the state we have into the state we want—challenging, not defending, the status quo. She probably would have dug herself in even deeper with the audience had she used the word “enforcement,” but that’s what she was thinking of: the power of the administrative state to implement and enforce labor laws, particularly the innovative worker protection laws like high minimum wage standards and paid sick and safe time that have been enacted by state and local governments.
That presenter was one of us. Simply put, policies must be enforced to be effective. But it is not a given that enforcement is done in a way that can support new labor laws’ broad political goals of ending worker exploitation and permanently raising standards in poorly paid and dangerous industries. Even deep-blue cities can have conservative implementation and enforcement practices that hamstring the progressive intent of policies.
As part of our work at the Workplace Justice Lab at Rutgers University, we partner with state and local labor enforcement agencies to provide them with resources and support to strengthen how they do enforcement. We focus in particular on helping them implement what are known as strategic enforcement practices, which move away from a reactive, solely complaint-based approach and instead target high-violation sectors using limited enforcement resources carefully and creatively to systematically change employer behavior. We also develop partnerships with worker organizations, who spend years supporting and building trust with workers whose fear of employer retaliation keeps them silent. In our experience, such engagement is essential to reach these vulnerable workers, who often doubt that the government agencies meant to protect their rights will help them, no matter how egregiously those rights have been violated.
From this work, we have learned that staff in labor standards enforcement offices are often excited to adopt new practices to improve their work. But we have also found that few see their mission as realizing the full, transformative promise of progressive laws. They often see their job as following the rules to investigate when a worker complains about their rights being violated, rather than thinking about their job as a mechanism for improving well-being and combating work-related inequity.
Because new federal labor and employment reforms have been blocked for decades, organizers and policy entrepreneurs have pivoted to policy campaigns at the state and local level. Fortunately, they’ve been very successful. In the last dozen years, the number of cities and counties with minimum wage laws requiring employers to pay all workers above the federal level increased almost twelvefold, from five municipalities to fifty-nine. Twenty-one cities and counties now have paid sick leave laws. Over 150 cities and counties have laws requiring employers to at least consider the applications of those with criminal records. Nine cities and one state (Oregon) have fair scheduling laws, which require large retail employers (and, in some cities, fast food or food service establishments) to provide workers with advanced notice of work schedules, and to pay them if they cancel a shift at short notice. Seattle, Philadelphia, and Washington, D.C. have legislation protecting domestic workers specifically.
With the exception of the minimum wage laws, all these ordinances provide novel standards and protection to workers. They require employers to extend the protections typically provided voluntarily to middle-class workers to low-wage workers, many of whom are Black or foreign-born women, who are unlikely to receive such rights without an external mandate. They are profoundly feminist in their orientation, accounting for the realities of who does work across formal employment and the home and family. Paid sick leave and fair scheduling laws, for example, keep women and other workers with caretaking responsibilities from having to choose between caring for their families and their formal employment.
Crucially, twenty-six municipalities with these new protections also have a government body tasked specifically with enforcing them. Some of these new local agencies also engage in co-enforcement, partnering with worker centers, unions, community organizations, and legal nonprofits, providing education and training, identifying violations, and supporting investigations. This combination—innovative local labor standards policies paired with innovative enforcement—may be our best hope of providing guardrails for today’s overwhelmingly nonunion, private sector, low-wage workers. It could also establish a model for negotiating over, and then enforcing, minimum sectoral wage standards at the local level.
Of course, doing so will require actually carrying out the organizing to build power sufficient to compel these negotiations—and doing it with, rather than on behalf of, workers. There is already some movement toward local sector-specific minimum employment standards, and local enforcement agencies have the potential to function as the institutional foundation within which new models of organization, representation, and bargaining could be incubated. But agencies’ practices are not always aligned with new policies’ normative goals.
This is because enforcement does not happen on a tabula rasa. Just as agencies have existing laws and regulations, they also have an embedded mindset of bureaucratic neutrality: the idea that government officials should act as nothing more than impartial arbiters. The roots of this mindset are deep. In his landmark 1887 essay, “The Study of Administration,” Woodrow Wilson argued that “administration lies outside the proper sphere of politics. Administrative questions are not political questions.”
The urban progressive movement that emerged in the late 1880s embraced Wilson’s arguments that science, expertise, and management would solve the problems of city life. Its advocates called for professionalizing government through greater regulation, modernizing tax assessment, and building out civil service systems. They were eager to dismantle the power of urban political machines built on working-class power, and so pushed for reducing the number of elective positions and creating new agencies to be run by professionals in their fields. By the late 1890s, reformers had developed a theory of governance built on four pillars: low taxes and strict budgetary control, strict separation between day-to-day administration and politics, administrative expertise, and efficiency. In Grant McConnell’s memorable description: “In the high tide of Progressivism confidence in impersonal expertise took on an almost millennial tone.”
Camilla Stivers characterized the Progressive movement during this period as having two faces: one that was focused on municipal management and administration, and the other on social justice. The latter face—comprised in part of urban women’s clubs and trade union leagues, federations of labor, and the growing Settlement House movement—blamed businesses and the wealthy for worker exploitation and the plight of the poor. And while municipal management and social justice goals initially operated in tandem, over time, they drifted apart from each other. As a result, the existing approach to reform, which prioritized eliminating unfair economic competition, promoting worker voice, improving conditions, and raising wages as a way to make lives better, was devalued in a public administration that privileged procedures and rules over ends.
The effects of this legacy have been profound. With some ebbs and flows along the way, the disconnect between policy goals and implementation has carried through to the present day. Today’s bureaucrats assume that they are there to follow rules and procedures, and, to that end, that they should be “neutral” on political matters and abstain from substantive goals—and this limits the effectiveness of their work. Even when local labor standards administrators adopt more effective enforcement practices, they largely do not see their work as a means to achieving the larger goal of raising the standard of living for poor and working-class city dwellers. Of course, adopting more effective practices, like many municipalities have done in recent years, is enormous progress. But that’s only part of the equation. If progressives want to shift societal expectations around how businesses should treat their employees, they will need a broader vision of justice underlying their strategies.
To get there, state and local progressives need more than a set of good practices of governance; they need a new mission for governance as well. Without one, administrative staff will fall back on what agencies have always done, hitching backward enforcement regimes to forward-looking policies and thus carrying on the long history of separating policies’ intention from their real-world implementation.
What would this governance mission look like? Our experiences and observations have led us to an approach we call transformative governance. It requires the integration of three foundational tenets.
First, transformative governance considers policy and the enforcement of that policy as one comprehensive entity, not as separated from each other. As Barry Karl characterized the New Deal mindset (in contrast to the Progressive Era mindset), civil service provided protection from the “mindless victimization produced by partisan politics,” but it was not a mechanism for preventing bureaucrats from accomplishing policy outcomes. Instead, in this approach bureaucrats can embrace their role as implementers of a political vision.
Second, transformative governance understands that addressing the structural basis of existing power imbalances in employer-employee relationships is central to the work of government, and can be done while carrying out fair investigations that are decided on their merits. As Julie Su, Acting U.S. Secretary of Labor, argued during her tenure as California Labor Commissioner: “We are not neutral. . . . The fair outcome may very well be decisions that all go one way in favor of workers whose rights are violated.”
Third, transformative governance reimagines the goal of administration as realizing the well-being and equity vision of laws. Every labor investigator in the state of California acknowledges this challenge. Emblazoned on each one’s business card are these words: “The mission of the California Labor Commissioner’s Office is to ensure a just day’s pay in every workplace in the State and to promote economic justice through robust enforcement of labor law.”
Transformative governance takes a holistic approach to realizing substantive outcomes: equity, dignity, and the protection of those among us who are most vulnerable. It is not about bureaucrats bending to the whims of those in power or attempts to subvert principles of democracy and the rule of law. It requires constant updating as firm and industry structures and strategies morph with respect to employment relations and their impact on workers, especially the women, immigrants, indigenous, and Black and brown workers who experience a higher level of employer violations than others. It requires that regulators base their strategies on addressing the underlying causes of substandard working conditions. In short, this form of governance responds to the embeddedness, as scholar and politician Karl Polanyi would put it, of market and society. It also understands the importance of relationships—both within government and with civil society groups—as a key aspect of recognizing and navigating complexity within administration.
At the Workplace Justice Lab, we meet many labor administrators and investigators who entered the field because of their commitment to economic justice. Many are hungry for a governing practice and a mission. When newly elected governors and mayors place people into important administrative leadership positions and staff roles in labor departments, we seek them out and provide support around implementing strategic enforcement practices. At the same time, we challenge them to embrace a systemic orientation toward rooting out labor violations—one that understands labor standards enforcement as a mechanism to redress underlying structural problems in the labor market with the unapologetic goal of permanently raising standards across low-wage, high-violation industries. Most importantly, we support them with the tools they need to manage in the service of this vision. Without them, agencies are likely to default to the way that enforcement has always been done.
Transformative governance is an approach that can be applied to many areas of state and local regulation: public health and health care, economic development, and environmental protection, to name but a few. There is plenty of work to do to make this mission a reality, but that is why we must support, and cheer, the local administrative state.
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