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The Economic and Labour Relations Review Vol. 22 No. 2, pp. 33–54
* Professor of Economics, Everett W. Lord Distinguished Faculty Scholar,
Boston University School of Management; Co-Director, Transparency Policy Project,
Harvard Kennedy School of Government
Enforcing Labour Standards
in Fissured Workplaces:
The US Experience
David Weil *
Abstract
e employment relationship in a growing number of industries with large con-
centrations of low wage workers has become ‘ssured’, where the lead rms that
collectively determine the product market conditions in which wages and condi-
tions are set have become separated from the actual employment of the workers
who provide goods or services. Instead, the direct employers of low wage workers
operate in far more competitive markets that create conditions for non-compliance.
We examine this evolution in employment and its implications for public policy
in the US, discuss the factors driving ssured employment and sketch its main
features and outcomes. We then look at the traditional methods used for labour
standards enforcement in the US and discuss why they are poorly suited to address
ssured workplaces. Finally, we survey how public policies might better address the
realities of the modern workplace, including eorts in this regard by the Obama
administration.
JEL Codes: J31; J38; J81; J88; K31
Keywords
Compliance; enforcement; ssured employment; labour standards; regulation.
1. Introduction
In recent decades, there has been a transformation of employment relationships
within those sectors employing low wage workers in the United States of America
(USA). e direct, two-party relationship assumed in federal and state legislation
and embodied in traditional approaches to enforcement no longer describes the
employment situation on the ground. Consider the following vignette.
A maid works in a well known, internationally-branded hotel. However,
the property where she works is owned by a Real Estate Investment Trust — a
legally established investment entity — who is her employer of record. Her work
is supervised on a daily basis, her performance is evaluated, and the job’s hours
and payroll are managed by sta of a national, third-party hotel management
company. At the same time, her daily work routines regarding cleaning, room
34 The Economic and Labour Relations Review
set-up, and other work routines are set by standards established and monitored
by the hotel chain whose name the property bears. Where does ‘employment’
reside in this situation?
is vignette is not limited to the hospitality industry. As major companies
have invested in building well-known products as cornerstones of their busi-
ness strategy, they have also shed their role as the direct employer of the people
responsible for providing those products and services. In many cases, the jobs
have been shied to employers who pay low wages, seldom provide benets, and
frequently subject their workforce to conditions that violate wage and overtime,
health and safety, and other workplace protection standards. ese conditions
are not an inevitable result of the nature of those jobs, but a result of how those
sectors are organised.
Enforcement of labour standards in the millions of workplaces covered by
US laws has always been challenging. e agencies charged with labour inspec-
tions have limited budgets and stretched stang levels relative to their statutory
responsibilities. But this is not the crux of the challenge. Adding additional inves-
tigators is a necessary, but not sucient, requirement to address the regulatory
task. e fundamental changes in employment relationships require a revised
approach to enforcement, one that is built on an understanding of how major
sectors of the economy employing large numbers of vulnerable workers operate
and then using those insights to guide enforcement strategy. Just as the forces
driving compliance with labour standards have changed, so must the strategies
that agencies employ to improve conditions.
e employment relationship in a growing number of industries — particu-
larly those with large concentrations of low wage workers — has become ‘ssured’,
where the lead rms that collectively determine the product market conditions
in which wages and conditions are set have become separated from the actual
employment of the workers who provide goods or services. Instead, the direct
employers of low wage workers operate in far more competitive markets that
create conditions for non-compliance. We examine this evolution in employment
and its implications for public policy in the US. We start by discussing the factors
driving ssured employment and sketching its main features and outcomes. We
then look at the traditional methods use for labour standards enforcement in the
US and discuss why they are poorly suited to address ssured workplaces. Finally,
we survey how public policies might better address the realities of the modern
workplace, including eorts in this regard by the Obama administration.1
2. The Fissured Workplace
Industry Concentration of Vulnerable Workers
It has been well documented that jobs with low wages tend to also have other
undesirable characteristics: few benets, high turnover, higher safety and health
risks, and limited opportunities for using voice, rather than exit, in dealing with
workplace problems. Not surprisingly, these jobs also tend to have some of the
highest rates of violations of basic labour standards as well as other workplace pro-
tections and rights (e.g. Carré et al. 2000; Bernhardt et al. 2008; Shulman 2003).
Enforcing Labour Standards in Fissured Workplaces: The US Experience 35
Bernhardt et al. (2009), in a landmark survey of low wage work in three
major US cities, documented high rates of violations with labour standards in a
number of low wage industries. Overall, 26 per cent of workers in their sample
were paid less than the required minimum wage; 76 per cent of the workers who
worked more than 40 hours in the previous week had not been paid the legally
required overtime rate; 70 per cent of workers who were asked to come in early
or stay aer their shi were not paid for that work and were subjected to retali-
ation by their employers for complaining in some way about work conditions.
Figure 1 presents estimates of the high rates of violation of standards regarding
o-the-clock work, overtime pay, and minimum wage requirements in many of
the industries discussed above.
Figure 1: Labour standards violation rates (per cent in violation) in selected
ssured industries
25.7%
22.3%
12.7%
18.2%
23.5%
12.4%
83.4%
62.6%
70.5%
67.7%
65.0%
73.6%
62.7%
70.0%
72.2%
74.2%
75.2%
87.5%
0.0% 20.0% 40.0% 60.0% 80.0% 100.0%
Retail and drug store
Security, bldg., grounds
Residential construction
Restaurant and hotels
Grocery stores
Home health care
Off the Clock
Overtime
Minimum wage
Source: Bernhardt et al. 2009
Not only do jobs in retail, food services, accommodation (hotel and motel), and
agriculture have high rates of labour standards violations, they also account for
a disproportionate share of low wage work relative to the number of people they
employ in the economy as a whole.2 us, while retail workers constituted 10.2
per cent of the total workforce, they made up more than 20 per cent of all low-
wage workers in the USA. Similarly, food and drinking services accounted for
6 per cent of employment but 12.5 per cent of all low-wage workers. Workers in
both accommodation (hotel and motel) and agriculture sectors accounted for
twice the proportion of low-wage workers that they represented in the economy
as a whole. Overall, these industries make up about 20 per cent of total US em-
ployment, but close to 40 per cent of the country’s low wage workers.
In contrast, construction contributed to about 5 per cent of all employment
in 2006, and about the same percentage (4.7 per cent) of the low-wage workers.
Workers in health care segments also accounted for about the same share of
low-wage workers as they did in the economy as a whole, while a slightly higher
share of low-wage workers (11.4 per cent) were found in manufacturing than
in the economy as a whole (9.4 per cent).
36 The Economic and Labour Relations Review
Industries with high levels of labour standards noncompliance and large
concentrations of low-wage workers are also a growing part of the US labour
market. Close to 30 million workers are employed in the retail and leisure and
hospitality industries in the US, the sectors employing the largest concentrations
of low-wage workers. ese sectors combined were projected to grow by almost
1.8 million workers between 2008 and 2018. Food services and drinking (the
major component of the leisure and hospitality sector) was projected to grow by
about 740,000 jobs over the same period (Woods 2009: 53, Table 4).
e factors responsible for the concentration of low wages and persistent
violation of labour standards arise from a variety of economic and social fac-
tors that have been widely discussed (Bernhardt et al. 2008). ese include
increasing levels of global competition; a large inux of immigrant (sometimes
undocumented) workers; changes in the organisation of work and in the struc-
tures of industries; and long-term declines in unionisation as well as workplace
enforcement by federal and state governments.
Although all of the above factors play signicant — albeit varying — roles, a
critical factor derives from the market dynamics and business strategies of the
sectors where those workers are concentrated. Lead rms in these industries
relate to other, subsidiary businesses in those markets in a distinctive way and
in so doing have altered the basic employment relationship.
Origins of Employment Fissuring
During much of the twentieth Century, the critical employment relationship was
between large businesses and workers in major sectors of the economy. Large
employers — General Motors, US Steel, and Alcoa — dominated major sectors
of the manufacturing economy. Emerging industries also spawned giant compa-
nies: Kodak, IBM, and Xerox grew to be giants in their product markets and in
the labour markets where they drew their workforces. While the service sector
operated at a more local level, the national players that did emerge — Hilton and
Marriott in hotels, Macy’s and Sears in retail — similarly employed thousands
(Brown, Hamilton and Medo 1990).
Increasingly, however, the foci of employment shied away from being be-
tween major businesses and the workforce that made or delivered their products.
Large businesses with national and international reputations that operate at the
‘top’ of their industries continue to dominate the private sector landscape and
play critical roles in shaping competition in their markets. However, they no
longer directly employ legions of workers. Instead, like rocks split by elements,
employment has been ssured away from these market leaders and transferred
to a complicated network of smaller business units. Lower-level businesses typi-
cally operate in more competitive markets than those of the rms that shied
employment to them (Weil 2010).
Fissuring of this kind has been accomplished via the growing use of a wide
variety of organisational methods: subcontracting, franchising, third-party man-
agement, changing workers from employees to self-employed businesses, and
related contractual forms that alter who is the employer of record or make the
worker-employer tie tenuous and far less transparent (Carré et al. 2000; Stone
Enforcing Labour Standards in Fissured Workplaces: The US Experience 37
2004; Ruckelshaus 2007; Zatz 2008). Lower-level businesses operate in typically
more competitive markets, going head to head with other rms that also are
seeking to provide services or goods to the lead rm or are in the network of
one of the lead rm’s top-level competitors.3 More intense competition creates
pressure to lower costs, particularly the most sizeable cost and the one most
easily controlled: labour.
Multiple motivations underlie ssuring. In some cases, it reects a desire
to shi labour costs and liabilities to smaller business entities or to third-party
labour intermediaries, such as temporary employment agencies or labour brokers.
Employers have incentives to do so for obvious reasons. As has been documented
in numerous studies, shiing employment to other parties allows an employer
to avoid mandatory social payments (such as unemployment and workers com-
pensation insurance, or payroll taxes) or shed liability for workplace injuries by
deliberately misclassifying workers as independent contractors. Misclassication
of this sort is a major problem, particularly in industries like construction and
janitorial services (Carré and Wilson 2004; General Accounting Oce 2009).
However, ssuring does not always arise from such direct and pernicious
motivations. Some ssuring reects technological developments that allow busi-
nesses to focus more productively on core competencies while shedding activities
not central to the rm’s operation. With the falling cost of coordination arising
from information and communication technologies, productive reconguring of
the boundaries of companies and entire industries naturally occurs and creates
opportunities for new strategies.
Building Blocks
Employment ssuring represents the intersection of three business strategies, one
focused on revenues, one on costs, and the nal one providing the ‘glue’ to make
the overall strategy operate eectively. First, in terms of revenues, companies in
a wide variety of sectors have learned the competitive advantage arising from
creating distinctive brands and identities for products and services. A success-
ful brand creates a more loyal customer base more willing to pay premiums for
products and services. Branding strategies require rms to create quality and
performance standards to assure that the qualities underlying the brand are
consistently achieved.
e intention to reduce costs — the second element of ssuring — shis out
the production of services or goods to other business enterprises. is has the
impact of allowing lead companies to lower their costs since externalising activi-
ties to other rms operating in more competitive markets eliminates the need
to pay higher wages and benets that large enterprises typically provide. It also
obviates the need to establish consistency in human resource policies since they
no longer reside inside the rm. is aspect of ssuring also pushes liability for
adherence to a range of workplace statutes (and other public policies) outward
to other businesses.
Clearly, there is a tension between the two strategies: by shiing the provi-
sion of services to other businesses, companies that have created brands may
jeopardise them if quality standards are not adhered to closely. e third element
38 The Economic and Labour Relations Review
of ssured organisations is, therefore, the use of organisational structures and
practices that allow the lead rms to promulgate, monitor, and enforce brand
standards that the enterprises at lower levels must follow. ese requirements also
operate through organisational formats like franchising and licensing designed to
create mechanisms to align the interests of lead and lower-level organisations.
The Revenue Side of Fissuring: Building Brands and Pricing Premiums
Enhancing revenue streams through product dierentiation and the creation
of market niches represents one side of ssuring strategies. In many of the
industries where ssuring is common — hotel/motel, food services, retailing,
and consumer products — major companies have sought to enhance the value
of their products and services to enhance revenue streams. In part, this reects
the pressures on publicly and privately-held businesses to increase protability
to satisfy investors’ target rates of returns.
Reputation-focused business strategy attempts to create a distinctive bond
with consumers around products and services (Keller 2008). Successful branding
allows a company to dierentiate its products in the minds of consumers who,
over time, become willing to pay a higher premium for them. Branding acts on
the revenue side of protability: the more successful the brand, the more that the
business can charge a premium and expand and retain its customer base.
Take the fast food industry. Companies like Burger King, Subway and Mc-
Donald’s spend millions of dollars each year creating a well-known brand for
their products. is strategy ts an industry where perceptions of the quality,
consistency, and variety of the product are critical to competitive performance.
By establishing a brand, a fast food company can dierentiate its product and
create a loyal customer base willing to buy the product, and in some cases pay
a premium for it, on an ongoing basis (Kaufmann and Lafontaine 1994). In the
fast food industry, return business is partly based on the customer’s belief that
the experience will be the same in any outlet of the company visited. e invest-
ment in brand name and protection of its image is therefore a central part of
the competitive strategy of national chains and an integral part of the way that
it makes operational decisions.
The Cost Side of Fissuring: Solving the Webbs’ Dilemma
e most autocratic and unfettered employer spontaneously adopts
Standard Rates for classes of workmen, just as the large shopkeeper
xes his prices, not according to the haggling capacity of particular
customers, but by a denite percentage on cost. (Sidney and Beatrice
Webb 1897: 281)
ere is a more subtle and fundamental reason underlying employment ssur-
ing, oen missed by analysts who see it only in terms of attempts to avoid legal
obligations or proponents who defend it as a positive reection of the modern,
exible business organisation. As the social scientists Beatrice and Sidney Webb
pointed out at the turn of the last century, large employers that dominated the
economy and labour market of the last century required unied personnel
Enforcing Labour Standards in Fissured Workplaces: The US Experience 39
and pay policies for a variety of reasons: to take advantage of administrative
eciencies; to create consistency in corporate policies; and to reduce exposure
to violations of laws.
In addition, unied employment policies — particularly compensation poli-
cies — reduced frictions among workers: workers operating under one roof did
communicate and might quickly discover that the person sitting in the next
cubicle was being paid more for doing the same job. Paying individuals who did
similar jobs dierent wages could have deleterious consequences on productivity,
increase turnover, or even inspire a union organising drive.
ere is a large empirical literature that shows that wages within rms vary
far less than one would expect given the existence of considerable dierences in
productivity among workers (see Manning 2003, ch. 5 for a summary). Firms
move towards a single wage policy for workers of similarly observable skill/abil-
ity because of the negative consequences arising from having multiple rates for
workers who otherwise seem similar. Seniority-based pay is one imperfect way to
vary wages based on dierences in average productivity that strike most as ‘fair’.
But ‘wage discrimination’ (à la price discrimination) is rare with large rms.
Imagine instead if a large employer found a way to pay each worker a wage
exactly equal to his or her value of production (that is, match the worker’s wage
to his or her marginal productivity). One way to do this without the internal
organisational problems discussed above is to restructure its basic contract with
workers so that the additional productivity of each worker hired is matched to
his/her wage rate, and that the wage rate paid to one party has no impact on
that paid to anyone else already employed (or potentially hired if production
is expanded). In so doing, the employer captures the dierence between the
individual marginal productivity and what would be the prevailing single wage
rate if it set one. Such a mechanism would benet the employer over the case
where it set a single wage rate for workers with similar job titles but variation
in productivity, or in cases where an employer’s wage policy impacts on the
market as a whole.
A related argument for shiing work outward is related to the (dis)incentive
eects of having large dierences in wage rates in internal labour markets. Even
if workers have diering skill levels and job assignments, equity norms in rms
may lead large employers to pay lower skill workers higher wages because of the
presence of higher paid workers whose compensation becomes a referent wage
within the internal labour market. Shiing those lower skilled jobs outward
can solve this problem. See Abraham and Taylor (1996) for a model and results
showing that the likelihood of outsourcing low skilled work is higher in rms
with high sklled occupations than in rms with only low-skilled occupations.
Stark and Hyll (2011) provide a related discussion.
What happens, instead, if the large employer shis the task of employing its
workforce to multiple smaller parties who, in turn, compete with one another to
obtain that large rm’s business? Each small rm would oer its workers wages
to perform work for the lead rm. As a result the lead rm would receive a price
for the contractors’ services or production rather than being required directly
to set and pay wages to individual workers who actually undertake the work. As
40 The Economic and Labour Relations Review
such, the larger employer creates competition for work among dierent purvey-
ors, and pays them based on its assessment of their contribution. Less ecient
producers could be paid less than more ecient producers. In this way, the lead
organisation faces a schedule of prices for services rather than wages for labour,
leaving the task of compensation to the individual providers of the service or
product. In eect, the big player devolves its employment activity to a network of
smaller providers. In so doing, it creates a mechanism — a competitive market for
services that in the past was handled internally through direct employment — in
the form of a network of service providers (subcontractors).
By shiing employment to smaller organisations operating in competitive
markets, the lead rm creates a mechanism whereby workers will only receive
a wage close to the additional value they create. At the same time, this avoids
the problem of having workers with very dierent wages operating under one
roof. e lead rm captures the dierence between the individual additional
productivity of each worker and what would be the prevailing single wage rate
if it set one. As a result, two workers on the same project may eectively end up
being paid very dierent wages, closer to something reecting their individual
marginal productivity than would be the case if they were in the direct employ
of the ‘parent’ organisation.
The Glue: Brand Standards
A brand is a recipe for a particular product or service image in the mind of
consumers,that, if successful, results in customer loyalty and a willingness to pay
a premium for it. Creating a distinctive brand requires signicant investment in
the image (involving product development, consumer research and, of course
advertising). But it also requires developing and promulgating standards for
all units of the company to follow to ensure that the product meets consumer
expectations once established. If delivery of the product is ssured o to other
entities (franchisees, licensees, third party managers or others), the need to
promulgate and assure adherence to standards is all the more critical.
In service-based industries like food and accommodation, standards describe
how the product is made, presented, packaged, served or presented and adver-
tised. Standards also proscribe the design, look, upkeep, and maintenance of the
outlet or property where the product or service is provided. ey also establish
the role of the lead rm in assuring maintenance of those procedures.
e importance of standards to branding can be seen in the agreements
that franchisees sign when they become part of a national chain. For example,
the franchise agreement with Taco Bell states, ‘You must operate your facilities
according to methods, standards, and procedures (the “System”) that Taco Bell
provides in minute detail’ (Taco Bell 2009). Similarly, Pizza Hut’s agreement lays
out the distinctive operational decisions that underlie the brand:
A broad spectrum of the general public patronizes [Pizza Hut] Restau-
rants as a source of high-quality pizza and related products and services.
A unique system characterizes Restaurants that consists of special recipes,
seasonings, and menu items; distinctive design, décor, color scheme, and
Enforcing Labour Standards in Fissured Workplaces: The US Experience 41
furnishings; standards, specications, and procedures for operations;
procedures for quality control; training and assistance programs; and
advertising and promotional programs … (Pizza Hut 2009)
Not surprisingly, the methods, procedures, and guidelines regarding the creation
of a good or provision of a service are the ‘crown jewels’ of a branded business.
e book of standards associated with fast food or hotel/motel brands are highly
condential documents that are only provided to franchisees aer they have
been approved. Monitoring mechanisms, contract terms, and high-powered
incentives (including, in the worst case, loss of the franchise) are associated with
adherence to those standards (Blair and Lafontaine 2005).
Implications
Fissured employment, drawing on the three pillars of branding, shiing out the
provision of work to other organisations, and promulgation and enforcement
of standards plays out in a variety of ways. e factors pushing for devolution
take dierent forms given the role that lead companies play in their particular
industry structure.
Table 1: Fissured employment in selected industries
Industry Lead rm/organisation Lower level entity
Eating and drinking Brands (franchisors) Franchisees/outlets
Hotel and motel Brands (franchisors)
Brand operators
Independent operators
Hotel/motel properties
Residential construction Major homebuilders Contractors/subcontractors
Janitorial services Building service providers/
Franchisors
Contractors/franchisees
Moving companies/logistics
providers
Branded national moving
companies
Subcontracted local movers; interstate
trucking companies; warehouses
Agricultural products —
multiple sectors
Food retailers
Major food processors
Farms; Farm labour contractors
Retail food stores (prepared
foods)
Major food retailers Franchised prepared food providers
Home health care services Major purchasers of home
health care services
Health care intermediaries; home
health care providers
Employment decisions in the industries in Table 1 have been devolved from
major employers to a complex network of smaller employers. Hence, the small
contractor trying to win residential carpentry or masonry work in a small geo-
graphic area competes against a multitude of other small contractors, which
creates intense pressure for it to lower costs, particularly the cost that is most
controllable and that dominates its income statement: labour. On the other hand,
the parties that set many of the conditions of competition — fast food chains
or major hotel brands — operate in environments that aord them a variety of
options with which to pursue protability.
42 The Economic and Labour Relations Review
3. The Limits of Traditional Enforcement in a Fissured
Landscape
e primary federal law governing labour standards in the US is the Fair Labor
Standards Act (FLSA) of 1938. e FLSA sets a minimum wage for covered work-
ers, currently set at $7.25 per hour; overtime pay at a rate not less than one and
one-half time the regular rate of pay aer 40 hours of work in a workweek; and
sets standards regarding the employment of younger workers.4 e standards
and associated regulations of the FLSA are enforced by investigators of the Wage
and Hour Division (WHD).
Like most workplace agencies, the WHD receives very limited resources
relative to the size and scope of US workplaces covered by the FLSA. Budgets
for enforcement by WHD have been limited for more than a decade. Annual
spending for enforcement by WHD (in real, 1982–84 $US) went from $72 mil-
lion in 1988 (at the end of the Reagan administration) up to $95 million in 2000
(at the end of the Clinton administration) and back down to $82 million in 2008
(at the close of the George W. Bush administration).5 Over the same time period,
the number of workplaces grew 11 per cent, from 6.94 million establishments
in 1998 to 7.71 million in 2007. e number of paid employees rose similarly,
by 11.5 per cent, from 108.1 million to 120.6 million (U.S. Department of Com-
merce 2008).
Long-term budget restrictions have constrained the resources made available
to agencies for enforcement. e number of investigators fell 22 per cent from
942 in 1998 to 731 by 2008. WHD investigations declined substantially from
49,521 investigations in 1998, the closing years of the Clinton administration,
to 23,848 in 2008 at the end of the Bush administration.
e reduction in investigations compared to the overall growth in establish-
ments meant that the ratio of investigations to establishment declined by about
53 per cent over this period. Not all establishments are covered by the FLSA so
this comparison is approximate. However, since it is likely the rate of increase
in covered establishments grew at about the same rate as overall establishment
growth, the estimated change in the rate seems a reasonable estimate of the de-
cline. As a result, the estimated annual probability of investigation at a workplace
in industries with high levels of ssuring is .0027 — that is about 0.3 per cent.6
Even well-known employers faced little chance of seeing an investigator: the
annual likelihood that one of the top 20 fast food restaurants (e.g., McDonald’s,
Burger King, Subway) received an investigation in recent years is about 0.008
(Ji and Weil 2011). Employers can therefore operate under an expectation that
government investigators are simply not a matter of rst order concern.
Even if an employer faced an investigation, the consequences for being found
in non-compliance were minimal for most US employers over the last decade.
Employers who repeatedly or wilfully violate the minimum wage and overtime
requirements of the Act may be subjected to civil monetary penalties (CMPs) of
up to $1,100 for each violation. As a practical matter, this means in most cases
Enforcing Labour Standards in Fissured Workplaces: The US Experience 43
that a prior investigation must have occurred before a CMP can be imposed.
Since the majority of employers investigated by WHD are rst-time oenders,
the number of investigations that assessed CMPs as a percentage of all inves-
tigations is extremely low. Less than 2 per cent of all investigations 1998–2008
assessed CMPs. What is more, CMPs were oen not assessed even in the case
of reinvestigations that found repeat violations. Indeed, among reinvestigations
where repeat FLSA violations were detected, CMPs were assessed in only about 43
per cent of cases (Weil 2010). During the period 1998–2008, even in cases where
CMPs were assessed, the amounts that employers agreed to pay were frequently
substantially reduced from the amount initially set. For all cases concluded by the
WHD that had CMPs assessed, the CMPs ultimately determined to be collected
by the WHD were only 61 per cent of the total amount originally assessed, from
an average of $13,899 to an average of $9,218 (Weil 2010).
Deterrence theory predicts that the likelihood of an investigation together
with the cost of penalties for violations aect an employer’s assessment of the
‘benets and costs’ of complying with a law (Ashenfelter and Smith 1979). e
higher the expected penalty relative to the benets of not complying, the more
likely a rational employer will be to comply with the law. e above enforcement
estimates suggest that deterrence incentives have been low and declining over
the last decade, given the tiny and diminishing probability of investigations and
the small monetary penalties associated with violations.
Historically, the WHD measured its impact — and was evaluated by the US
Congress and other oversight bodies — by the amount of back wages it recovered
for workers. For the years 2003 to 2008, the average back wages recovered for
workers per investigation were $15,823.
7
However, this average includes only
those investigations in which monetary violations were found. If one includes
all investigations concluded in this time period, average back wages found due
were $8,838 per investigation. e large dierence is explained by the relatively
high percentage of investigations where no monetary violations of the FLSA
were cited. Between 2003 and 2008, about one-quarter (24.6 per cent) of all
investigations found no such violations.
Making sure that workers who have been underpaid — or not paid at all —
receive the compensation they are entitled is, of course, important. But dening
recovery of back wages as the principal measure of agency success is problematic.
An apt analogy would be to occupational health and safety. Although workers’
compensation policies provide benets to workers who have been hurt at the
workplace and whose earnings have been impacted, the ultimate objective of
health and safety policy is to prevent injuries and fatalities in the workplace,
not simply to ensure that those injured are compensated (as important as that
objective is). Enforcement that only resolves past noncompliance but does not
alter behaviour puts investigators on a hamster wheel: running very fast and
working very hard, but not advancing the larger aim of protecting and enhancing
the welfare of the workforce. e next section suggests an enforcement strategy
more appropriate for protecting employees in today’s ssured workplaces.
44 The Economic and Labour Relations Review
4. Enforcement Strategy for Fissured Workplaces
e modern employment relationship bears little resemblance to that assumed
in core US workplace laws. Improving conditions in the workplaces where the
most vulnerable people in the economy work requires navigating the complicated,
ssured environment laid out in this essay. Some aspects of the ssured world
have desirable aspects. For example, consumers benet from companies that
try to market goods and services that conform to their tastes. As well, there are
productivity gains from many aspects of rms focusing on core competencies.
On the other hand, the association of ssuring with poor employment condi-
tions represents a matter of public policy concern that cannot be remedied by
traditional enforcement (particularly as government will never be sucient).
Nor will it be addressed by empty appeals to the corporate social responsibility
of lead rms. e incentive system of ssured employment creates a landscape
that is sloped towards downward pressure on labour costs and non-compliance
with basic statutes. Governing a workplace characterised by ssured employ-
ment requires a dierent approach to thinking about the structure of workplace
laws and how they are administered. is is a major topic of its own which I
address elsewhere (Weil 2008, 2009, 2010). Several major categories of remedies,
however, can be identied here.
Reimagining Enforcement
Traditional enforcement strategies assume that enforcement eorts should focus
at the level where workplace violations are occurring (Weil 2008). Yet the forces
driving noncompliance in many industries arise from the organisations located at
higher levels of industry structures. Strategic enforcement should therefore focus
on higher-level, seemingly more removed business entities that aect the compli-
ance behaviour ‘on the ground’ where vulnerable workers are actually found.
Enforcement in a ssured industry requires creating a ‘map’ of business
relationships indicating the dierent players that drive employer behaviour.
e map, in turn, indicates which organisations ultimately must be considered
in developing investigation plans. An eating and drinking initiative should, for
example, include not only investigations of outlets with violations, but also of
other units owned by the particular franchisee. It would also include a systematic
analysis of all other investigations of the franchisor (brand) in question to detect
the presence of multiple instances of violations at other franchisees. Finally, it
could entail contacting the brand itself regarding the results of these investiga-
tions if it was clear that signicant violations extended beyond the boundaries
of any one franchisee or owner group.
Specic outreach could be geared to major brands depending on their prior
records of compliance. Major brands in those industries with good employ-
ment reputations and a positive record of system-wide compliance could be
approached to work with the WHD to be a leader in the industry and help
ensure compliance with workplace policies across their systems of franchisees (or
similar subordinate businesses). is would require generating clear, replicable
criteria about positive employment practices. ese could include transparency
Enforcing Labour Standards in Fissured Workplaces: The US Experience 45
in human resource policies, wage and benet policies that exceed industry aver-
ages, and objective evidence of worker satisfaction such as turnover levels below
industry averages. A cooperative agreement could include a commitment by the
brand to cascade information through its company-owned properties and outlets,
and to its franchisees, as well as a commitment to review employment practices
with franchisees when other franchise standards are being reviewed — with the
intention that such eorts could be a model for other progressive brands.
e ip-side would be to target several major brands that had a documented
history of systemic violations among its franchisees. ese brands could be
identied through evaluation of past investigation records. For example, in the
fast food sector, Ji and Weil (2011) nd signicantly higher back wage violations
among particular brands, even aer statistically holding constant other factors
that might also explain noncompliance. In particular, compared to typical outlets
of McDonald’s (which had the best overall compliance record among the top 20
branded companies studied), Subway, Domino’s Pizza, and Popeyes Chicken all
had back wages per investigation that were more than $8000 higher.
Once identied, workplace agencies could undertake broad and coordinated
investigations in multiple parts of the country and across multiple franchisees,
in order to establish the level of system-wide violations, and pursue statutory
penalties for those violations. In some industries, they could draw on the ‘hot
goods’ provisions of the FLSA that allows the WHD to embargo goods engaged
in interstate commerce where there have been violations of standards at some
stage of production process. is has proven a powerful tool where used to alter
supply chain behaviour (Leonard 2000; Weil 2005).
Equally important to a ‘top-focused’ strategy is developing dierent mecha-
nisms to improve systemic compliance in ssured employment structures. As part
of its process of resolving violations, the WHD could negotiate a comprehensive
agreement with the lead rm covering all outlets/properties. Such an agreement
would entail outreach, education, and monitoring. ese types of monitoring
arrangements, built on a combination of public enforcement pressure and private
monitoring systems, have proven eective methods of improving compliance
with minimum wage and overtime standards (Weil and Mallo 2007).
Fissured employment also requires changes in enforcement practices so that
they better support an objective of changing employer behaviour rather than
focus on recovery of back wages. Because of the inherently limited resources
available to stimulate behavioural change, enforcement activity must be thought
of in the context of their deterrent eects on lead rms and the network of
employers who work with them. It would include the selection of investigation
targets, coordination of investigation activities across employers in a ssured
industry, use of penalties, publicity surrounding activities, and the choice of
legal strategies including settlement agreements. is is not easy. Traditional
enforcement — focused on short-term recovery of lost wages and on a particular
rm (or more oen individual establishment) — entails a very dierent set of
policies and activities than a behaviour-focused approach that seeks more sys-
temic change in the operations of rms and industries. Changing enforcement
strategy therefore requires reforming the structure of enforcement.
46 The Economic and Labour Relations Review
Harnessing Transparency to Forge a New Balance
An alternative (or complementary) strategy is to use transparency — and hence
also public accountability — to act on one of the key components underlying
ssuring: brand reputation. Business strategies based on reputation and the
maintenance of quality standards have become pervasive. ey make good busi-
ness sense; by creating strong consumer allegiances or by assuring tight quality
standards (or the combination of the two), businesses can expand market share
and create margins through higher pricing . is is a legitimate aim that is oen
benecial to the consumer.
However, these business strategies lead, in a growing number of cases, to
great sensitivity to any form of threat to image or disruption of carefully craed
standards. reats to these systems — private, public, or otherwise — lead to busi-
nesses putting in place private systems to pre-empt the loss of reputation among
consumers or, more ominously, more onerous public interventions. Whether
one looks at Nike’s response to accusations that its shoes are being made in
sweatshops or at Wal-Mart’s responses to any number of labour, environmental,
or consumer campaigns, lead businesses are sensitive to reputational attacks.
Targeted transparency — the disclosure of standardised information about
organisations regarding their performance to serve a regulatory purpose — has
become widespread (Fung, Graham, and Weil 2007). Disclosure of informa-
tion regarding workplace practices in ssured industries could use the power
of transparency to create incentives for the creation of alternative methods to
address problems arising in ssured industries.
An interesting example of a public policy revealing variations in the per-
formance of a franchisee is the impact of transparency on restaurant hygiene in
Los Angeles County. Jin and Leslie (2009) show that, prior to the imposition of
mandated restaurant disclosure, franchisees within a brand had worse hygiene
performance than company-owned outlets in the same brand. Ji and Weil (2011)
show similar kinds of dierences in FLSA compliance between franchisees and
company-owned outlets of the top 20 fast food brands in the eating and drinking
industry. In 1998, LA Country required restaurants to publicly post grades, based
on restaurant hygiene inspections, on their front window. Along with improving
overall compliance with hygiene practices and a reduction in restaurant-related
hospitalisations, this public disclosure system led to a narrowing and ultimately
elimination of these discrepancies between franchisee and company-owned
behaviour within brands.
Reputation can therefore be a powerful source of regulatory pressure — even
without recourse to direct legal eorts to make lead rms liable. Since investiga-
tion records collected by the government are matters of public record, agencies
already make such information available. e information from WHD inves-
tigations, for example, could be mapped to indicate the relationships of the
workplaces that were inspected to the lead companies that had an overarching
role in their activities. Reports could be provided both to the lead entity as well
as disclosed on an ongoing basis via the Web. e report might also benchmark
one brand against other major brands in the same industry, based on similar
Enforcing Labour Standards in Fissured Workplaces: The US Experience 47
investigations over the same time period. e results could be linked to other,
similar reports on a publicly available web-page regarding the sector-based
initiatives. Although the disclosed information may lead some consumers with
particular interest in working conditions to avoid companies with poor records,
this need not be the only channel through which disclosure operates. If viola-
tions are perceived as indicators — or reasons — for compromised food or service
quality, disclosure creates incentives for lead rms to change practices in order
to protect the brand. is includes preemptive responses, which are frequently
the result of mandatory disclosure policies (Fung, Graham and Weil 2007).
Such an eort — particularly if coupled with well targeted enforcement eorts
where clear lines of responsibility were illuminated — could engender lead rms
to rethink relationships with subordinate companies, from simply providing more
information and training to them on responsibilities at one end of the spectrum
to creating monitoring systems or perhaps even pulling certain operations back
within the lead rm on the other. In the longer term, the use of transparency and
strategic enforcement could change the dynamics of how parent organisations
relate to lower-level organisations, leading these businesses to take a greater role
(and perhaps pay a higher price to subordinates) in assuring adherence to both
brand standards and compliance with workplace responsibilities.
Longer Term Policy Responses: Rethinking Employer Responsibility
A ssured employment relationship requires rst and foremost serious reconsid-
eration of how we think about responsibility for workplace conditions. ere is a
large body of legal precedent, rulemaking, and academic debate on the question
of joint employment and its interpretation under existing laws (see Ruckelshaus
2008; Rogers 2011; Stone 2004; Zatz 2009). A reexamination of denitions of
these questions — particularly under the Fair L abor Standards Act which includes
a broad denition of ‘employ’ — is warranted.
e FLSA provides a broad denition of the word ‘employ’. Goldstein et al.
(1999) argue that the Act’s denition, that ‘employ includes: “to suer or permit
to work” ’, not only covers direct employer-employee relationships (i.e., the
master-servant relationship described in the Common Law), but is a broader
denition that ‘ … required only that the business owner have the reasonable
ability to know that the work was being performed and the power to prevent it.
us, work performed as a necessary step in the production of a product was
almost always suered or permitted by the business owner’ (Goldstein et al.1999:
984). is broader denition of employer responsibility has been used in the
past as the basis for creative policies in agriculture and garment.8
But the spread of ssured employment goes beyond past debates about joint
employment in part because it reects market and organisational developments
that were unforeseen by the craers of many federal and state workplace laws. A
clear example of this is the common law doctrine of vicarious liability. Vicarious
liability refers to liability imposed upon one party because of the actions of an-
other (Arlen and MacLeod 2005). Vicarious liability aects the degree to which,
in a principal-agent relationship, the principal attempts to inuence behaviour
by asserting more direct control on the agents’ activities.
48 The Economic and Labour Relations Review
is leads to some very complicated and sometimes contradictory incentives.
As Arlen and MacLeod (2005: 4) note,
… far from encouraging organizations to assert control, vicarious li-
ability oen discourages organizations from controlling their agents,
even when it would be ecient for them to do so. Vicarious liability
discourages the ecient exercise of control because organizations which
exert control over agents are likely to be deemed ‘masters’ and thus face
liability for their agents’ torts.
Reluctance to monitor behaviour of contracted entities can lead to profound
workplace problems. For example, in a study regarding the petrochemical in-
dustry, Rebitzer (1995) found that a series of major petrochemical explosions
and worker fatalities were linked to the use of independent contractors. Major
petrochemical companies used these contractors to undertake dangerous ‘turn-
around’ operations (which allow a plant to switch from one type of end product to
another). In order to reduce their exposure to liability claims, the petrochemical
companies distanced themselves from training and supervision of contractors
despite the potentially devastating impact of improperly performed work.
Several recent articles call for addressing the broader question of liability in
changing incentives that underlie outsourcing of work. Rogers (2010), building
on the hot goods provision of the FLSA and state legislation that emulates it,
puts forward a proposal based on a broad expansion of a duty-based test that
would expand employer responsibility to end-user rms who fail to exercise
due care in assuring that suppliers have complied with labour standards. Glynn
(2011) goes a step even further, arguing that the nature of ‘disaggregated’ employ-
ment requires abandoning ne grained arguments over immediate or extended
employer liability. He argues (2011: 105), instead, that ‘ … commercial actors
would be held strictly liable for wage and hour violations in the production of
any goods and services they purchase, sell, or distribute, whether directly or
through intermediaries’.
Given the current political climate in Washington, sweeping changes in li-
ability or even more modest changes to denitions of joint employment seem
unlikely for the foreseeable future. In the longer term, however, addressing the
question of whether companies legally can have it both ways seems fundamental
to changing the calculus underlying ssured employment.
Obama Administration Eorts in the First Two Years
In its rst two years in oce, the Obama administration has pursued strategies
in the US Department of Labor and the WHD in particular to address many of
the challenges discussed in this article. It signaled its intention to do so through
a number of initiatives, four of which bear particular emphasis.
First, it dramatically increased the number of investigators at the Wage and
Hour Division by 250 on a base of 730 and increased agency resources for en-
forcement from $82 million at the end of the Bush administration to $91 million
in the rst year of the Obama administration. Subsequent budget proposals
called for additional increases in agency resources.
Enforcing Labour Standards in Fissured Workplaces: The US Experience 49
Second, as part of its long-standing planning process along with the larger
strategic planning process for the Department, it explicitly targeted industries
with large concentrations of vulnerable workers, including many of the indus-
tries discussed in this article. e justication for this focus is based, in part, on
the propensity of those industries, given their organisation to be tilted towards
non-compliance (US Department of Labor 2010a). e 2012 budget proposal
includes appropriations for additional investigators to work with state govern-
ments to address misclassication of employees as independent contractors, a
particularly pernicious form of ssuring (US Department of Labor 2010a).
ird, the WHD has emphasised a variety of enforcement policies aimed
at enhancing deterrence. is includes an eort to increase use of the penalty
authority granted by the FLSA. ere has also been an eort to use related poli-
cies such as liquidated damages that raise the expected costs of non-compliance.
e FLSA provides that employers can be liable for liquidated damages in an
amount equal to the back wages. Unlike civil money penalties, liquidated dam-
ages are paid directly to the aected employees. As well, the WHD has been
reviewing the use of criminal sanctions for egregious violations of the law. e
FLSA provides for criminal prosecution for wilful violations. A conviction can
result in a ne of not more than $10,000, imprisonment for up to six months, or
both. Imprisonment is only upon a second conviction, however. Finally, there has
been coordinating of investigations across WHD oces for targeted initiatives in
specic industries (US Department of Labor, Wage and Hour Division 2011).
Finally, as a part of its broader ‘open government’ initiative, the Obama ad-
ministration has actively encouraged all regulatory agencies to post more of their
data regarding ongoing investigations on the Web and to make the information
user friendly (Oce of Management and Budget 2010). e Department of Labor
has been one of the most active departments in providing such information on its
Web site and in allowing users to link information across regulatory agencies.9
It is too early to gauge the impact of these policies on patterns of compliance
in ssured industries. However, another feature of these initiatives is their explicit
evaluation in targeted industries through the use of benchmark evaluations of
compliance and subsequent surveys to gauge the impact of various interventions
(US Department of Labor 2010b).
Changing entrenched regulatory routines is dicult in the best of circum-
stances (Bardach and Kagan 1982). e very contested political environment
facing the Obama administration makes movement towards more aggressive
enforcement policies all the more dicult. Nonetheless, the initiatives provide
promising steps in terms of changing the orientation of enforcement from a short
term focus on back wage recovery to a longer term emphasis on changing the
underlying incentives for compliance in targeted industries.
5. Conclusion
e literature on outsourcing and related forms of restructuring focuses almost
exclusively on the cost side of the equation, viewing outsourcing as a strategy
that seeks to minimise labour costs by moving activities formerly undertaken
inside the boundaries of an organisation to labour markets located outside of
50 The Economic and Labour Relations Review
the organisation. Fissured employment arises from a coordinated strategy that
businesses have increasingly chosen to take. is is rooted in both the revenue
and cost sides of their income statements. In particular, these strategies use
branding and other avenues for securing allegiance by customers to a company’s
products or services in order to generate, for themselves, more inelastic demand
and hence price premiums. e lead company then focuses only on activities
related to core functions, while allocating to other entities the production of
products or provision of services. Lead rms thereby become the coordinators
of other organisations rather than the vertically integrated company that most
employment laws assume.
e coherent strategy underlying ssured employment makes it clearer why
it is oen dicult to alter the decisions made by companies in this regard. Since
ssured employment is a reection of larger integrated strategies, enforcement
that responds to the eects of them as if they were only an expression of labour
cost avoidance will be unsuccessful. Unwinding the labour cost strategy might
be dicult without aecting the revenue side strategy.
On the other hand, by understanding that ssured employment rests on a
desire to balance the benets of branding with the benets of shiing employ-
ment responsibility, a whole range of policy options reveal themselves. Interven-
tions that can aect the tipping point of lead rm decisions may have the best
chance to impact the underlying drivers of compliance behaviour and change
them in signicant and lasting ways.
Notes
is article draws on a series of studies examining how industry structures 1.
aect the way employers behave and, in particular, their likelihood to comply
with the important provisions of the Fair Labor Standards Act (FLSA). Re-
search contained in this article arose from the collective work of a Boston
University research team over a number of years. I am particularly grateful
to Amanda Pyles, Rae Glass, Min Woong Ji, Anne Klieve, Tucker DeVoe, and
Claire Gerson. e central ndings of this larger research eort are sum-
marised in Weil (2010). e conclusions and recommendations discussed in
this article reect the views of the author and are not meant to be an ocial
or unocial statement of the policies of the US Department of Labor or its
Wage and Hour Division.
ese estimates are based on comparisons of Osterman’s (2008) estimates 2.
of the distribution of low-wage workers with the distribution of total em-
ployment in 2006. Osterman denes low wage work based on the relation
of earnings to the federal poverty level and uses the Current Population
Survey (CPS), Outgoing Rotation Group, to make his estimates. e CPS
is based on a household survey conducted by the Bureau of the Census for
DOL’s Bureau of Labor Statistics. See Weil (2009) for a complete discussion
of these comparisons.
For example in 2009, Burger King reported an operating margin that was 3.
19.6 per cent of total revenue, whereas the operating margin of Carrols
Corporation, its main franchisee, was 4.2 per cent (United States SEC Form
Enforcing Labour Standards in Fissured Workplaces: The US Experience 51
10-K: Burger King Holdings, Inc. FY 2009 and Carrols Corporation. FY 2009,
available http://www.sec.gov [accessed February 2010].
Pub.L. 75-718, ch. 676, 52 Stat. 1060, June 25, 1938, 29 U.S.C. ch.8. e Wage
4.
and Hour Division also enforces a number of other laws pertinent to labour
standards for agricultural workers, workers employed by private contractors
to the government, and wages on federally funded construction projects. We
focus only on the FLSA here.
Numbers from 5. Budget of the U.S. Government, various years, for reported
spending for enforcement by the Wage and Hour Division of the Employ-
ment Standards Administration (ESA).
is is an annual estimate based on investigations conducted over the period
6.
2006–2008 by the Wage and Hour Division, and the number of establish-
ments in those industries for 2006 as reported by the U.S. Bureau of the
Census in its publication County Business Patterns. e detailed estimates
are available from the author.
e estimates focus exclusively on compliance with the minimum wage and 7.
overtime provisions of the FLSA. It does not include child labour violations
or ndings under other laws enforced by WHD such as the Migrant Sea-
sonal Protection Act that sets standards for farm workers. Accordingly the
estimates cover investigations that have reported FLSA ndings (including
FLSA ndings of ‘no violations.’). e cases included in the analysis are those
registered from scal year 2003 to 2008 and concluded by end of scal year
2009. ey do not include cases that are resolved over the telephone between
the employer and sta of the WHD (‘conciliations’) which almost always
involve a single worker.
For the denition of employ, see the 8. Fair Labor Standards Act of 1938, Pub.
L. No. 718, § 3(d), (e), (g), 52 Star. 1060, 1060 (1938).
See, for example, the web-site created for the major workplace regulatory
9.
agencies of the US Department of Labor: http://ogesdw.dol.gov/.
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About the Author
D av i d We i l
»
is Professor of Economics and Everett W. Lord Distinguished
Faculty Scholar at the Boston University School of Management and Co-
Director of the Transparency Policy Project at the Harvard Kennedy School
of Government. He is an expert on regulation and governance of the work-
place and an advisor to government on these issues. He can be contacted at
davweil@bu.edu.