In a recent fact sheet outlining highlights from its first year under new leadership, the U.S. Department of Labor (DOL) declared that it was “Back in the Enforcement Business.” DOL went on to describe some of the new initiatives it has undertaken to protect American workers, including hiring more staff to enforce occupational safety regulations, taking steps to ensure that workers are properly classified as employees rather than independent contractors, and launching a special effort to counter black lung disease.
After eight years of the Bush administration's relaxed approach toward labor law enforcement, this assertive use of regulatory authority by the Obama administration has reignited a longstanding American debate about the appropriate role of government in workplace affairs. This debate gained additional urgency following the April 2010 explosions that resulted in the deaths of twenty-nine coal miners in West Virginia and eleven oil-rig workers in the Gulf of Mexico. These disturbing incidents prompted intensive reviews of the nation's regulatory apparatus and raised anew the question of how best to ensure the safety and security of American workers.
In this context, the history of the Oregon Bureau of Labor and Industries (BOLI) offers some valuable insights into the evolution of state intervention in the workplace and recent changes in the employment relationship that have undercut long-established protections for workers. BOLI's rich history not only reflects broader social trends but also illuminates distinctive elements of Oregon's political culture that have shaped its approach to protecting workers and regulating employer behavior.
Established in 1903 and initially known as the Oregon Bureau of Labor, BOLI was a quintessential product of the Progressive Era—a time similar to our own, when questions about undue corporate influence over economic and political affairs captured public attention. In response to the rise of industrial capitalism and the fierce class conflict that had raged across the United States during the late-nineteenth and early-twentieth centuries, a consensus had formed among politicians, civic leaders, intellectuals, and unions about a broad set of reforms that would regulate corporate behavior, limit industrial strife, and improve the lives of workers. Muckraking journalists and social crusaders further fueled demand for reform with exposés of corporate and political corruption and portrayals of the harsh conditions faced by workers in the nation's mills, mines, and factories. These exploitations included the widespread use of child labor, excessively long work hours, and unregulated exposure to dangerous machinery and other workplace hazards. The Progressive belief that government should act as a referee to protect the interests of workers and consumers gained additional momentum when citizens, most notably in the western United States, sought to assert popular will through aggressive use of the initiative and referendum process. As a result, government began to regulate business conduct more closely, and expanded notions of workers' rights entered public awareness.
Many states, including Oregon, established agencies to oversee the conduct of labor relations and industrial affairs. The Oregon Legislature approved formation of the Bureau of Labor on February 24, 1903, with bipartisan support. Proponents hoped that the new agency charged with enforcing “all laws enacted for the protection of the working classes” would help Oregon avoid the bitter labor conflicts that had marked the previous decade, including an epic strike by steel workers in Homestead, Pennsylvania (1892), and national walkouts by Pullman Sleeping Car employees (1894) and anthracite coal miners (1902). Reflecting the Progressive belief that class conflict undermined efficiency and productivity, advocates declared that the Bureau of Labor would “save a large amount of wealth that is wasted in discord between capital and labor.” In order to maintain the social consensus and equilibrium prized by most Oregonians, policy makers also regarded protective legislation for workers as an essential deterrent to civil unrest. Oregon was the first state in the nation to enact an enforceable minimum wage law (1913) and to create a Board of Conciliation and Arbitration (1919) to mediate labor-management relations. The belief that government should regulate employer behavior and protect workers helped to define a modernizing political culture committed to nurturing social stability as a prerequisite for sustained economic growth and shared prosperity. Guided by these assumptions, the Bureau of Labor began to develop a regulatory apparatus to monitor employer behavior and ensure fair treatment for Oregon's workers.
For much of its history, BOLI has been led by capable, high-profile commissioners who have served lengthy terms in office and aggressively pursued the agency's mission of protecting working Oregonians. In conceptualizing the new agency's approach, O. P. Hoff, the bureau's first commissioner, favored conciliation over confrontation in his dealings with employers. However, his views quickly changed. Upon learning of an accident in which a $0.25 expenditure could have prevented a saw from slipping and slicing open a worker's abdomen, Hoff expressed anger over the employer's negligence. After his initial inspections revealed dangerous or unsafe conditions in 653 of the 673 workplaces he visited, Hoff pressed the legislature to grant him expanded enforcement powers. In 1907, the legislature approved his request that employers be fined for failure to remedy hazardous conditions and held liable for damages in the event of willful violations.
The bureau's expanded powers and improved staffing yielded almost immediate results: Hoff reported a 30 percent reduction in accidents in 1908. Three years later, however, he found that more than five thousand accidents had still occurred in Oregon workplaces and concluded that “factory laws cannot be too rigidly enforced.” This commitment to vigilant monitoring and vigorous enforcement became a hallmark of the bureau's approach, which has remained consistent throughout its history. Over time and often instigated by BOLI, the legislature has assigned the agency added responsibilities and granted it new enforcement powers to ensure that working Oregonians would be treated fairly and have recourse when they believed employers were violating their rights.
One of the most fundamental aspects of the employment relationship is the prompt and fair payment of wages, which has been an enduring concern for BOLI. Charles Gram, Hoff's successor as labor commissioner, succinctly explained the rationale behind the bureau's aggressive approach toward dealing with wage claims filed by workers: “When a man sells his labor power and that is his only resource and [he] is then unable to realize on it, a wretched state of affairs is at once created.” Moreover, Gram asserted, failure to pay owed wages robbed workers of the self-respect associated with productive labor, reduced consumer dollars spent in communities, sowed seeds of distrust, and threatened to “encourage and breed dangerous radicalism.” Underscoring the commitment of Oregon's political leaders to reduce class conflict, create positive relations between labor and management, and promote the social trust needed for economic progress, the bureau has sought wages on behalf of a variety of workers, especially those who have lacked union representation or other institutional means to counter the power and unscrupulous practices of their employers.
One of BOLI's early efforts to secure back wages came during Hoff's vigorous campaign in the early 1900s against “crimping,” a collusive arrangement between ship captains and boarding house owners that induced sailors to desert ship and allowed the conspirators to pocket their unpaid wages. Later, Mary Wendy Roberts, who served as BOLI commissioner from 1979 to 1994, debarred farm labor contractors for failure to provide workers with written contracts and also gained compensation for farm workers who had not been paid the minimum wage. During a 1986 wage claim case against a small plywood company, Roberts underscored the bureau's historic determination to ensure that workers were paid for their labor: “The wages of these thirty workers may seem insignificant to some, but we are dealing with the fundamental rights of workers to be compensated for their labor.... We must not leave these workers without an advocate.”
This commitment to securing unpaid wages has continued to the present day. In a May 2010 ruling that ordered a fitness company to post a payroll bond after numerous failures to pay its workers on time, Oregon's current labor commissioner, Brad Avakian, offered an additional rationale for the bureau's staunch commitment to enforcing timely wage payments: “hardworking employers who comply with every legal requirement, no matter how bad the economy, shouldn't have to compete with a business that treats deadlines like guidelines.” Along with assuring wage payment for workers, Avakian argued, BOLI also had a responsibility to create a level playing field for employers and prevent unscrupulous businesses from gaining an unfair advantage.
The bureau has also administered Oregon's Wage Security Fund, created in 1985 in response to a spate of mill closures in the timber industry. With the enactment of this legislation, Oregon became the first state in the nation to set aside funds to compensate workers whose employers went out of business and lacked assets to pay final wages. Since its inception, the fund has distributed more than $17 million to some 16,000 workers. Reflecting Oregonians' belief that workers should receive some protection from the vagaries of the business cycle, the Wage Security Fund under BOLI's administration has become an integral part of the state's social safety net. Its enactment underscored the resilience of the Progressive tradition in Oregon and ran counter to the larger social trend of deregulation and limited government championed by the Reagan administration and its ideological supporters.
In keeping with Oregon's historical commitment to worker protection as an essential government responsibility, BOLI commissioners have a long tradition of using the office as a bully pulpit to call attention to social problems and insist that moral conscience play a prominent role in shaping public policy. Commenting on the status of Oregon's teachers, Hoff asked, “Is there not something wrong in our economic affairs that permits those who are training the minds of the children of this commonwealth to be so poorly paid?” At the onset of the Great Depression, Gram bluntly assigned responsibility for the nation's economic collapse and offered his own vision of what values and standards should guide a social response: “Independent self-sustenance must be advanced as the first and best definition of success and regardless of considerations of business or profit, must be made available to our outcast citizens who have been induced to abandon that standard by the tactics of modern industry.” The titles of reports issued by the bureau in the years following World War II—“And Migrant Problems Demand Attention,” “The Silent Poor,” “They Carry the Burden Alone,” and “Human Beings: Not Faceless Statistics”—called attention to the challenges faced by vulnerable populations such as farm workers, female heads of households, and workers displaced by the decline of manufacturing and extractive industries.
Beyond fulfilling their statutory responsibility to enforce anti-discrimination laws, BOLI commissioners have also forcefully spoken out against all forms of discrimination. In yet another example of Oregon's expansive use of government authority to protect workers, in 1949 it became the sixth state in the nation to enact a Fair Employment Practices Act, outlawing discrimination in employment. Since then, BOLI commissioners have consistently affirmed the agency's commitment to countering all forms of discriminatory treatment, responding to local and national pressures from social movements and reflecting a consensual political culture's efforts to uphold principles of justice and equality essential to preserving social harmony.
For example, after penalizing a tavern owner in 1987 for denying entrance to an African-American patron, Roberts asserted her intention “to send a message to folks that Oregon is not a Mecca to people who practice these [kinds of] discriminatory acts.” In 1995, BOLI commissioner Jack Roberts (no relation) was the only statewide elected official in Oregon to testify in favor of making sexual orientation a protected category under state civil rights law. His successor, Dan Gardner, testified in Bend on behalf of a proposed city ordinance protecting transgendered persons. These instances are just a few examples of BOLI commissioners attempting to awaken the moral conscience of Oregonians to a broader sense of social responsibility and to extend into new arenas the state's historic role as a protector of workers.
This tradition of arousing the public's moral conscience continues today as changes in the structure of work and the employment relationship over the last three decades have made many workers, especially those in low-wage occupations, vulnerable to abuse. The shift away from full-time employment to part-time, temporary, and other “semi-formal” work arrangements; the rise of new forms of subcontracting; and the misclassification of workers as independent contractors are among the practices that have led to what scholars and activists describe as “wage theft.” Immigrant workers, especially those who are unauthorized, report a host of abuses. As Portland State University economist Mary King found in a survey of eighty Mexican immigrants living in Oregon, “nearly one-third had not been paid overtime when they were eligible for it, 14 percent had experienced not being paid at all for work they performed, [and] 14 percent had been paid at a rate below the minimum wage.” BOLI's history suggests that in order to counter the reemergence of these practices, vigilant regulation will be required, along with worker organization, media scrutiny, employer education, and public outcry for change.
Two observations by Gram, BOLI's longest-serving commissioner, highlight Oregon's historical approach to protecting workers and illuminate current challenges to making this approach fully operative. “It is our experience,” he explained, “that all the regulations possible will not make one go straight without continual watching if he is not so inclined.” Continual watching, however, also required resources, leading Gram to conclude: “[Our labor] laws have become but promissory notes, impressive to be sure, of the good will of the people of Oregon, but of no avail until translated into reality by proper financial support necessary to a complete administration.”
In recent decades, BOLI and similar agencies at the state and federal level have lacked sufficient resources to pursue fully the continual watching integral to their regulatory mission. A key battleground at the beginning of this new century will be whether or not both financial and ideological support for continual watching is forthcoming so that BOLI can, in the words of Gram's predecessor, W. E. Kimsey, make its promissory notes “negotiable” and fulfill its duty to protect working Oregonians.
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