Collaborative Enforcement

Abstract

Labor standards enforcement in the low-wage workplace has long suffered from a lack of capacity, expertise and remedies that blunt the impact of public and private enforcers alike. The question of how to address these pathologies in state and local workplace regulation has gained new urgency with the virtual explosion of regional labor lawmaking and the deregulatory impulses of the new federal administration.

This Article identifies collaboration between state and local agencies and private, public interest organizations (“PIOs”) as one pathway to address these enforcement gaps, by amplifying the deterrent effect of public and private enforcement and 1by improving legal remedies. This Article offers this form of public-private regulatory experimentation, which it calls “collaborative enforcement,” as a conceptual framework that can (a) effectively and efficiently address enforcement gaps by integrating a range of enforcement tools that public and private enforcers cannot access independently; (b) subject public agency enforcement priorities to political accountability; and (c) facilitate sophisticated types of tripartite regulation championed by earlier scholarship.

Private delegations in collaborative enforcement, however, can create a risk of PIO abuse of the delegation and of public agency cooptation of PIOs, which will require measures to protect public agency and PIO independence. National Labor Relations Act preemption and state nondelegation doctrine do not threaten the core requirements of collaborative enforcement, but do constrain the scope of its delegations and legislative aims. The techniques described in this Article may be applied to other areas of civil enforcement in which underdeterrence is a result of similar enforcement pathologies.

Keywords: Employment Law, Labor Law, Public Enforcement, Private Enforcement, State and Local Government, Administrative Law

JEL Classification: J53, J83, J46, J48, K31, K42, L31, L32, L33