In 1873, when Mark Twain and Charles Dudley Warner published their book, The Gilded Age, they satirized the greed, political corruption, and skewed distribution of wealth that pervaded the United States at the time. As during Twain's time, most of the wealth generated in this country in recent decades has gone only to the very wealthiest among us. For Americans who work for a minimum wage, there has not been a raise for decades, even though inflation has worn away their buying power. Recently, we have seen a national movement to raise the minimum wage, but it is not the only issue that the nation must face if it is to address the plight of workers in this economy.
Recently the Wage and Hour Division of the Department of Labor (DOL) announced that it is cracking down on employers who seek to avoid their legal obligations to their "employees" by classifying them as "independent contractors." Some of the nation's largest businesses have been using this dodge to evade minimum wage and overtime requirements and to avoid paying Social Security contributions and workers' compensation for on-the-job injuries -- all by misclassifying employees' status as contractors.
Good for DOL. Sadly, however, it is missing another opportunity to protect workers by extending to them the legal protections they are due under existing laws. As a Center for Progressive Reform White Paper on the topic made clear, more and more workers employed as "contingent" workers are injured on the job -- warehouse laborers hired through staffing agencies and hotel housekeepers supplied by temp firms for example. Like the Wage and Hour Division, OSHA needs to ramp up its efforts to make sure that companies do not take advantage of these workers. It can address these injuries using education initiatives, by promulgating ergonomic rules, and by enhanced enforcement efforts. OSHA should also coordinate with the new Wage and Hour Division initiative because it overlaps with OSHA's responsibilities.
Companies insist contingent workers give them the flexibility to vary their workforces as demand for their services or products fluctuate. In other words, they contend that the marketplace ought to determine the conditions under which work takes place. This was the same position taken by large companies in Twain's Gilded Age in which millions of workers lived in poverty and thousands were killed or injured in workplace accidents. This position has been roundly rejected by the passage of labor laws to regulate the conditions of work, including the creation of OSHA.
In our book, Achieving Democracy, my fellow law professor Joseph Tomain and I discuss how Americans use the law to express our collective judgments about fairness and equity in marketplaces. Mark Twain recognized this in the Gilded Age when he wrote, "No country can be well governed unless its citizens as a body keep religiously before their minds that they are the guardians of the law ..." While large companies may not share this view, it is up to the rest of us to ensure that fairness and equity remain fundamental American values. No one should have to risk life and limb in order to provide for themselves and their families.