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entitled 'Worker Protection: Labor's Efforts to Enforce Protections for 
Day Laborers Could Benefit from Better Data and Guidance' which was 
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Report to the Honorable 

Luis V. Gutierrez

House of Representatives:



United States General Accounting Office:



GAO:



September 2002:



Worker protection:



Labor’s Efforts to Enforce Protections for Day Laborers Could Benefit 

from Better Data and Guidance:



Protections for Day laborers:



GAO-02-925:



Contents:



Letter:



Results in Brief:



Background:



Available Data Suggest that Day Laborer Population Is Vulnerable and 

May Be Undercounted:



Labor’s Efforts to Enforce Protections for Day Laborers Are Hampered by 

Limited Data, Traditional Procedures, and Difficulty in Determining 

Coverage:



Conclusions:



Recommendations for Executive Action:



Agency Comments and Our Evaluation:



Appendix I: Identification and Selection of Agencies Serving 

Day Laborers:



Identifying Agencies Serving Day Laborers:



Selecting Agencies Serving Day Laborers:



Appendix II: Services Provided to Day Laborers by Selected 

Nonprofit Agencies:



Description of Nonprofit Agencies Visited:



Appendix III: Selected Features of FLSA and Requirements 

in Four States:



Appendix IV: Comments from the Employment Standards Administration:



GAO Comments:



Appendix V: Comments from the Occupational Safety 

and Health Administration:



GAO Comments:



Appendix VI: GAO Contacts and Staff Acknowledgments:



GAO Contacts:



Staff Acknowledgments:



Tables:



Table 1: Agencies Participating in Structured Interviews:



Table 2: Description of Agencies GAO Visited and the Services They 

Provide:



Figures:



Figure 1: Day Laborers Waiting for Employment:



Figure 2: Day Laborers at an Employer’s Truck:



Figure 3: Shelter Construction at an Organized Day Labor Site:



Figure 4: Day Laborers Signing up for Work:



Figure 5: An Organized Day Labor Site:



Abbreviations:



BLS: Bureau of Labor Statistics:



CHIRLA: Coalition for Humane Immigration Rights of Los Angeles:



CPS: Current Population Survey:



DLSA: Day Labor Services Act:



FLSA: Fair Labor Standards Act of 1938:



OSHA: Occupational Safety and Health Administration:



OSH Act: Occupational Safety and Health Act of 1970:



WHD: Wage and Hour Division:



Letter:



September 26, 2002:



The Honorable Luis V. Gutierrez

House of Representatives:



Dear Mr. Gutierrez:



“Day laborers” is a term that generally refers to individuals who work 

and get paid on a daily or short-term basis. To find work, day laborers 

often congregate on street corners and wait for employers to drive by 

and offer them work. The term also includes those who may be employed 

by temporary staffing agencies that assign them work on a daily basis 

with client employers. Day laborers have an informal relationship with 

the labor market, often working for different employers each day, being 

paid in cash, and lacking key benefits, such as health or unemployment 

insurance. However, day laborers, like many other workers in this 

country, may be eligible for wage and safety protections provided under 

two key federal laws: the Fair Labor Standards Act (FLSA) and the 

Occupational Safety and Health Act (OSH Act). The U.S. Department of 

Labor (Labor) administers both acts: the former through its Employment 

Standards Administration’s Wage and Hour Division (WHD), the latter 

through its Occupational Safety and Health Administration (OSHA). WHD 

is responsible for ensuring that all covered workers receive at least 

the federal minimum hourly wage and overtime pay. OSHA is required to 

ensure that employers provide safe and healthy workplaces for their 

workers to avoid injury or death. Coverage under both laws does not 

depend on a worker’s immigration status.



Because of day laborers’ informal relationship with the labor market, 

congressional representatives, researchers, and advocacy groups have 

raised concerns that day laborers may be used for the most hazardous 

work but not paid appropriate wages or provided safe working 

conditions. However, little is actually known about who these day 

laborers are, what their working conditions are, or the extent to which 

protections afforded under federal wage and safety and health laws are 

enforced. As a result, you asked us to determine what is known about 

the nature and size of the day laborer workforce and identify the key 

factors that affect Labor’s ability to enforce the protections afforded 

day laborers under FLSA and the OSH Act.



To determine what is known about the size and nature of the day laborer 

workforce, we reviewed available data on day laborers, such as 

information from Labor’s Bureau of Labor Statistics (BLS) on day 

laborers and available studies, and interviewed representatives of key 

national associations representing day laborers and employers who use 

them. We also conducted structured interviews with 25 nonprofit, local 

government, or temporary staffing agencies that work with or employ day 

laborers (see app. I for more details on how we selected these 

agencies). To identify the key factors that affect Labor’s ability to 

enforce the protections afforded day laborers under FLSA and the OSH 

Act, we reviewed provisions of FLSA and the OSH Act, implementing 

regulations and guidance; obtained and reviewed enforcement procedures; 

and analyzed enforcement statistics from WHD and OSHA. For both 

objectives, we interviewed federal WHD and OSHA officials in 

Washington, D.C., as well as state labor officials in four states--

California, Illinois, New York, and Virginia.[Footnote 1] During our 

state visits, we visited nonprofit and local government agencies that 

work with day laborers and interviewed day laborers at each site we 

visited. We also compared provisions of the wage laws and requirements 

of these states with FLSA (see app. III for this comparison). We 

performed our work between December 2001 and August 2002 in accordance 

with generally accepted government auditing standards.



Results in Brief:



Although limited, existing information on the nature and size of the 

day laborer workforce suggests that these workers may be prone to 

workplace abuses and are probably undercounted. Available information 

shows that day laborers are generally young Hispanic men with limited 

educational skills and significant language barriers, with some portion 

also being undocumented. Research has shown that these characteristics 

are typical of workers willing to accept lower wages or work in 

substandard conditions. The only nationally representative data on the 

day laborer population comes from Labor’s BLS, but these data may 

undercount day laborers. For example, the methodology BLS uses to 

collect this information may affect BLS’s ability to reach respondents 

not having telephones or fixed addresses--conditions that may apply to 

day laborers. In 2001, BLS identified about 260,000 day laborers who 

wait on street corners for employment, yet one study of day laborers in 

California identified about 20,000 day laborers in one metropolitan 

area alone.



A number of factors that are directly relevant to the unique 

characteristics of day laborers and their work affect Labor’s ability 

to enforce the protections afforded them under FLSA and the OSH Act. 

First, because neither WHD nor OSHA can get complete information about 

potential violations involving day laborers, it is hard to focus 

resources on them. For example, day laborers are generally reluctant or 

unaware of their right to complain to authorities about not being paid 

promised wages or working in unsafe conditions. Similarly, available 

information that Labor uses to target its investigations, such as data 

on injuries and fatalities, may not accurately reflect the extent to 

which day laborers are injured or killed. As a result, neither WHD nor 

OSHA may be reaching those industries or workplaces where day laborers 

work. Although both agencies have made efforts to educate workers or 

obtain better data, these efforts may not be sufficient. Second, WHD’s 

and OSHA’s investigative procedures make it difficult to detect 

violations of worker protection laws involving day laborers who often 

have nonstandard work arrangements. As a result, the procedures may 

cause both agencies to miss violations. Finally, WHD officials are 

uncertain about the extent of coverage for day laborers in some cases, 

and the responsibilities of temporary staffing agencies under the OSH 

Act are unclear. This may lead to inconsistencies in the protections 

provided to day laborers. For example, even though FLSA can cover 

employees working for homeowners in a domestic service capacity, some 

local WHD officials we interviewed did not believe this provision 

applied to day laborers. Also, because the responsibilities of 

temporary staffing agencies under the OSH Act to ensure the safety of 

workers they assign to client employers are not clearly delineated, 

OSHA officials had different approaches to holding temporary staffing 

agencies accountable for the safety of these workers.



We are making recommendations to the Secretary of Labor to improve 

Labor’s efforts to protect day laborers, including obtaining better 

information to help focus resources on day laborers and clarifying 

requirements under FLSA and the OSH Act. Labor generally agreed with 

those recommendations that it commented on.



Background:



Day labor is a phenomenon that is not new to the United States; it has 

traditionally served as an informal device for bringing together 

employers who need workers and individuals willing to work. Both in 

times of economic prosperity or downturn, employers see many advantages 

to using day laborers--there are generally few commitments the employer 

must make to the day laborer, and the employer has the flexibility of 

using the day laborer only when work is available. Additionally, there 

are numerous reasons why individuals would work as day laborers--for 

some, it is an opportunity to earn income when temporarily laid off; 

for others, it is a first job in the United States; for yet others, it 

is the only employment option available given substance abuse or other 

social difficulties. In other cases, this informal relationship offers 

an opportunity for employers to avoid paying employment taxes and 

offers workers a chance to earn undetected income.



There are generally two types of day laborers. The first type of day 

laborer is one that gathers on street corners, waiting for employers to 

drive by and offer them daily employment. (See figs. 1 and 2.):



Figure 1: Day Laborers Waiting for Employment:



[See PDF for image]



Source: Latin American Workers’ Project, New York.



[End of figure]



Figure 2: Day Laborers at an Employer’s Truck:



[See PDF for image]



Source: Latin American Workers’ Project, New York.



[End of figure]



Across the country, there are likely thousands of street corners or 

informal meeting places where day laborers wait for work. In these 

locations, it is up to the day laborer and the employer to negotiate a 

wage and various conditions of work. In many locations, however, 

nonprofit or local government agencies have made efforts to gather day 

laborers at a single site and establish procedures for obtaining work, 

negotiating wages, and ensuring that wage and safety requirements are 

met (see figs. 3 to 5). Appendix II describes how several of these 

agencies operate.



Figure 3: Shelter Construction at an Organized Day Labor Site:



[See PDF for image]



Source: Latin American Workers’ Project, New York.



[End of figure]



Figure 4: Day Laborers Signing up for Work:



[See PDF for image]



Source: Latin American Workers’ Project, New York.



[End of figure]



Figure 5: An Organized Day Labor Site:



[See PDF for image]



Source: GAO.



[End of figure]



The second type of day laborer is one that is employed by for-profit 

temporary staffing agencies that assign them to work at client 

employers on a daily basis. To receive these assignments, day laborers 

must physically report to the temporary staffing agency office. In many 

cases, these workers are also paid on a daily basis by payroll check--

in fact, one agency’s motto is “Work today; get paid today.” Generally, 

the temporary staffing agencies that employ day laborers are not those 

that are known for providing professional or administrative white or 

pink-collar workers to client employers.



No national data on day laborers existed until 1995, when BLS surveyed 

various types of “contingent” workers.[Footnote 2] This survey was 

conducted as a supplement to BLS’s monthly Current Population Survey 

(CPS).[Footnote 3] BLS has conducted the supplemental survey four 

times: 1995, 1997, 1999, and 2001. Several researchers have also 

conducted studies on particular groups of day laborers in select 

locations across the country, including Los Angeles and Chicago. These 

studies attempted to obtain information not only about day laborers’ 

demographics and work characteristics, but also about the extent to 

which day laborers may be experiencing violations of existing laws.



Day laborers, like many other workers in the United States, may be 

covered by the two federal laws that govern basic wage and workplace 

safety protections: FLSA and the OSH Act. To be covered, the worker 

must be “an employee” as defined by the law, among other requirements. 

The protections afforded by these laws do not extend to independent 

contractors. FLSA requires that employers pay the federal hourly 

minimum wage and overtime to covered workers, while the OSH Act 

requires employers to provide a workplace free of recognized hazards in 

order to avoid worker injury, illness, or death. To comply with the 

law, employers may have to provide safety training and personal 

protective equipment, among other practices.



FLSA originally covered only those employees engaged in interstate 

commerce or in the production of goods for commerce.[Footnote 4] 

Coverage was later extended to include all employees of a business 

“enterprise” that met certain criteria.[Footnote 5] Specifically, under 

the current law, all employees of an employer (such as those working 

for a temporary staffing agency) would be covered if it had some 

employees engaged in interstate commerce or in the production of goods 

for commerce and annual gross sales or business volume of at least 

$500,000. If annual gross sales were below $500,000, only those 

employees actually engaged in activities involving interstate commerce 

would be covered. Such activities might include taking orders over the 

telephone from customers in another state or transporting equipment to 

another state. Coverage under the OSH Act is broader. All employees of 

a particular employer are covered if the employer is engaged in a 

business affecting commerce. Coverage under the OSH Act does not depend 

on the specific activities of the employee or the volume of the 

employer’s business.



FLSA specifically covers individuals working as employees in a domestic 

service capacity for homeowners, performing tasks that would ordinarily 

be performed by the homeowner.[Footnote 6] Examples of such tasks 

include gardening, housecleaning, or chauffeuring. On the other hand, 

while the OSH Act is silent on its coverage of domestic service 

workers, an OSHA regulation specifically excludes homeowners who employ 

workers in a domestic service capacity.[Footnote 7] Coverage under both 

laws does not depend on a worker’s immigration status.



To carry out their responsibilities, WHD and OSHA perform a number of 

activities. They generally conduct workplace investigations that result 

from a worker complaint or initiate them based on other information. 

Recently, both agencies have increased their emphasis on compliance 

assistance, that is, providing information to employers, workers, and 

others of their rights under the laws. These efforts require WHD and 

OSHA to work with state enforcement agencies. State laws play an 

important role in supplementing FLSA’s protections because states may 

enact more stringent provisions in their laws than in federal law. This 

means that a state law could cover employers and individuals not 

covered under FLSA. If an employer is covered under FLSA and a state 

law, the more stringent provision of either law will generally apply. 

Under the OSH Act, OSHA has delegated enforcement responsibility to 

state labor agencies in 23 states.[Footnote 8] These states have the 

option of implementing more stringent requirements than the federal 

program, and in many cases, they have done so. For example, California 

requires employers to have an injury and illness prevention program--

something not required by OSHA.



Available Data Suggest that Day Laborer Population Is Vulnerable and 

May Be Undercounted:



Available information indicates that the day laborer workforce is prone 

to workplace abuses and is probably undercounted. The characteristics 

of day laborers that we and others identified, such as limited English 

proficiency, are generally recognized by Labor and others as those that 

make workers vulnerable to workplace abuses. Moreover, our work and 

other recent research indicate that the size of the day laborer 

population may be greater than nationally available data suggest.



Data on Day Laborer Characteristics Show a Population at Risk:



While individual sources may be limited in scope, taken together, they 

provide a general picture of the day laborer population as young 

Hispanic men with limited educational skills and significant language 

barriers. Our interviews with nonprofit and local government agencies 

working with day laborers indicated that the majority of day laborers 

were Hispanic men, with some portion being foreign born.[Footnote 9] A 

study performed by a researcher in California generally corroborated 

this, finding that nearly one-third of the day laborer population 

studied had been in this country for less than 

1 year.[Footnote 10] We also found that, even though the majority of 

the day laborers were between 18 and 30 years old, they generally had 

less than a high school education; the study in California found that, 

in some cases, day laborers had only about 7 years of 

education.[Footnote 11] We also found that these workers often lacked 

basic proficiency in speaking or writing English, with some of them not 

even proficient in their own language. Finally, although we were unable 

to quantify the percentage, we found that some portion of the day labor 

population was undocumented.[Footnote 12] In some cases, day laborers 

working for temporary staffing agencies were slightly more ethnically 

diverse, with higher levels of education and skills.[Footnote 13]



Research has shown that these characteristics make workers vulnerable 

to various types of workplace dangers and abuses, a fact that Labor 

also acknowledges.[Footnote 14] First, immigrants to the United States, 

especially newer ones, are more willing to accept lower wages and 

substandard work that offers few benefits or protections, which makes 

them attractive to unscrupulous employers who may exploit them as a 

cheap source of labor. For example, often immigrants take the more 

informal, contingent work in this country, and we found in a previous 

GAO report that workers in contingent work arrangements had lower 

family incomes than those in traditional work arrangements and many 

have incomes below the federal poverty threshold.[Footnote 15] Second, 

lower education and skill levels often mean that workers are willing to 

take jobs that pose a greater health risk. In that respect, we found 

that most of the day laborers worked in unskilled occupations, such as 

laborer or landscaper, in more hazardous industries, such as 

construction; day laborers working through temporary staffing agencies 

were also employed in manual labor occupations in manufacturing and 

warehousing. Lower educational levels also mean that workers may not be 

aware of the labor protections available to them, their rights as 

employees under the law, or the dangers associated with hazardous 

conditions. Third, limited proficiency in speaking or reading English 

makes it more difficult for workers to understand the relative risk of 

their employment or communicate such dangers to employers, a point 

stressed by representatives of several nonprofit and local government 

agencies we interviewed that worked with day laborers. Finally, being 

undocumented means that workers may not want to be found, so they will 

endure a higher level of abuse to remain undetected.



Size of the Day Laborer Population May Be Greater than Available Data 

Indicate:



The only nationally representative source of data on day laborers is 

BLS’s CPS Contingent Work Supplement. For a variety of reasons, these 

data may underestimate the actual number of day laborers seeking work 

in the United States. Data from the survey show that in 2001, there 

were about 260,000 individuals working as day laborers.[Footnote 16] 

BLS also reported that about 1.2 million workers found work through 

temporary staffing agencies in 2001, but the survey does not attempt to 

determine what percent of those individuals, if any, were day laborers. 

Other studies of day laborers are not national in scope, but may 

indicate the presence of relatively large numbers of day laborers. For 

example, one study of day laborers in Southern California estimated the 

population to be as high as 20,000 in one metropolitan area.[Footnote 

17] Based on our interviews with nonprofit and local government 

agencies that serve day laborers on street corners, we identified about 

2,600 day laborers who seek work daily from 28 street corners 

identified by these agencies. Regarding day laborers working through 

temporary staffing agencies, staff at one agency serving day laborers 

estimated that about 30,000 day laborers were sent out each day by 

temporary staffing agencies in Chicago alone. Moreover, one national 

temporary staffing agency we interviewed reported that it employed 

almost 700,000 individuals as day laborers in 2001.



When one considers the methods used by BLS to collect data on day 

laborers, the findings of these additional studies may be even more 

convincing as to the potential undercounting of day laborers. We have 

reported that BLS’s methodology is inadequate for measuring certain 

hard-to-reach segments of the population and, as a result, may 

undercount them.[Footnote 18] For example, BLS’s survey relies on 

address lists that are dependent on stable or established residences. 

Day laborers may move frequently to find work or live with relatives. 

In addition, BLS does most of the interviewing by telephone, and day 

laborers may not have access to a telephone, or speak English.[Footnote 

19] Finally, individuals who are wary of government may avoid 

participating in surveys. None of the day laborers we interviewed at 

the four sites we visited recalled ever being surveyed by the 

government.[Footnote 20]



Labor’s Efforts to Enforce Protections for Day Laborers Are Hampered by 

Limited Data, Traditional Procedures, and Difficulty in Determining 

Coverage:



A number of factors affect Labor’s ability to enforce the protections 

afforded day laborers under FLSA and the OSH Act.[Footnote 21] The 

limited information available on day laborers makes it difficult for 

WHD and OSHA to focus resources on them. In addition, traditional 

investigative procedures used by WHD and OSHA may hurt their ability to 

detect violations affecting employees in nonstandard work arrangements, 

such as day laborers. Finally, applying FLSA and the OSH Act to day 

laborers is challenging because it requires sufficient information and 

resources to determine coverage. In addition, in some cases, WHD 

officials are uncertain about the extent of coverage for day laborers 

under FLSA, and the responsibilities of temporary staffing agencies 

under the OSH Act are unclear, which may lead to situations where day 

laborers are not protected.



Limited Information about Day Laborers Makes it Difficult to Focus 

Resources on Them:



WHD and OSHA generally rely on two types of information to conduct 

investigations to identify potential violations. They (1) rely on 

complaints from individuals who believe they may have suffered a 

violation and 

(2) analyze data on wages or workplace conditions to specifically 

target problematic industries or worksites. In both cases, this 

information fails to identify the presence of day laborers or potential 

violations affecting them.



Both WHD and OSHA initiate much of their enforcement activity in 

response to complaints filed by individual workers. In fiscal year 

2001, about 70 percent of WHD’s investigations under FLSA were 

complaint-driven; for some industries, such as the construction or 

temporary staffing industry, the majority of the investigations it 

conducted were due to complaints. OSHA is required by law to respond to 

all valid complaints about serious hazards from employees,[Footnote 22] 

although it relies less heavily on complaints than WHD, historically 

initiating about 20 percent of its investigations based on 

complaints.[Footnote 23] However, WHD and OSHA officials reported that 

they received few or no complaints from day laborers. Day laborers may 

not complain for a variety of reasons. For some day laborers, language 

barriers may prevent them from being aware of or taking advantage of 

their right to complain to authorities. In addition, the day laborers 

may fear loss of employment, either through employer retribution, 

deportation, or the time necessary to file and resolve a 

complaint.[Footnote 24] Representatives of nonprofit agencies serving 

day laborers told us of cases where, even when they have filed 

complaints, they have received little action from WHD or it has taken 

too long for WHD to complete a case.[Footnote 25]



Nonetheless, available information indicates day laborers face numerous 

potential violations. Many of these potential violations involve 

nonpayment of wages, including overtime. For example, the majority of 

nonprofit and local government agencies working with day laborers we 

interviewed reported that day laborers complained at least once a week 

about nonpayment of wages. These agencies reported that they recovered 

over $750,000 in owed wages that day laborers did not receive from 

employers in 2001. Other researchers corroborated our findings, 

reporting that over half of the day laborers in their studies were not 

paid the wages due to them.[Footnote 26] Violations may also involve 

the safety and health of day laborers. For example, the majority of the 

nonprofit and local government agencies working with day laborers that 

we interviewed said that few, if any, day laborers receive personal 

protective equipment or safety training. Other researchers corroborated 

our findings, with one reporting that 

75 percent of day laborers in the study did not receive protective 

equipment when performing hazardous work.[Footnote 27] Many researchers 

and agencies dealing with day laborers agreed that day laborers 

underreport their concerns about workplace safety and health because 

they believe no corrective action will be taken and are willing to risk 

their safety as long as they are paid.



Labor has made various efforts to address the fact that day laborers 

are less likely to complain. These efforts include educating workers 

and improving access to the complaint process. For example, in Chicago, 

OSHA and WHD have been working with nonprofit and faith-based 

organizations to educate workers about their rights and help them 

identify potential violations. As a result, OSHA received complaints 

that resulted in 35 cases with violations that it may not have 

otherwise detected. In its comments on a draft of this report, WHD said 

that it has been increasing its appearances on Spanish-speaking radio 

and television in an effort to inform workers about their rights. OSHA, 

in its comments, also provided additional information on its efforts to 

provide assistance with safety and health training for day laborers. 

According to nonprofit agencies we interviewed that work with day 

laborers, information and assistance provided to day laborers led to 

improved working conditions and a decline in the need to file 

complaints. We did not find similar levels of outreach in all locations 

we visited, and not all outreach efforts have included temporary 

staffing agencies or a broad range of organizations that work with day 

laborers.



Regarding access to the complaint process, OSHA has translated its 

complaint form and other publications into Spanish, created a 

1-800 telephone number accessible to Spanish speakers, and developed a 

Spanish language web site. OSHA has also compiled a list of Spanish 

speakers in the agency and has formed an Hispanic Task Force that is, 

among other things, developing recommendations for implementing a 

national strategy to address the problems of Hispanic and immigrant 

worker populations. WHD is in the process of translating compliance 

assistance materials into Spanish and has about one-quarter of its 

staff that speak Spanish. WHD’s national office told us that it has 

developed a “Wage Hours Recordkeeper” in English and Spanish to provide 

temporary and transient workers--such as day laborers--the information 

needed to determine if they are paid properly. While both agencies are 

making progress in their activities, these efforts may not reach the 

full range of day laborers, since they generally lack access to the 

Internet, may speak languages other than Spanish, or may be illiterate.



The second way that WHD and OSHA identify potential violations is by 

analyzing available data on workplace demographics, conditions, and 

past investigations to target problematic industries or worksites. 

Generally, WHD targets industries with the lowest wages or the most 

vulnerable workers. For example, WHD uses BLS data on worker 

demographics, yet as we noted earlier, BLS data may undercount workers 

with characteristics similar to those of day laborers. WHD also uses 

wage information to identify low-paying occupations or industries, yet 

our research showed that day laborers obtaining employment from street 

corners work an average of 2 to 3 days a week and are generally paid in 

cash at the end of the day. As a result, it is not clear whether these 

kinds of wage payments would be reflected in data collected from 

employers on wages paid to workers. On the basis of this type of 

information, WHD identified industries other than construction or the 

temporary staffing industry for their national targets. Yet, most of 

the agencies we surveyed reported that a majority of day laborers work 

in the construction industry.[Footnote 28] Finally, the database on 

past investigations that WHD uses to target industries does not 

identify whether violations involve day laborers. For example, WHD’s 

data show that, in 2001, temporary staffing agencies had a higher 

likelihood of monetary violations than employers in any other 

industries investigated, but the database does not identify whether any 

of these workers are day laborers.



OSHA targets the most hazardous industries and worksites for 

investigation, using injury and illness data collected and reported by 

employers and its database on past investigations. However, this 

information does not show where day laborers work or the full extent of 

their injury experience because when employers record an injury, they 

are not required to note whether the worker was a day laborer. 

Furthermore, because client employers--not temporary staffing 

agencies--must record injuries and fatalities of temporary staffing 

agency day laborers, the data OSHA uses cannot identify the extent to 

which day laborers working for temporary staffing agencies are injured 

or killed. Finally, when OSHA targets particular worksites for 

investigation, the information it uses may not reflect smaller 

worksites, where many day laborers work and which experts believe are 

the most hazardous sites in the industry. For example, OSHA targets 

construction at the national level, but the data it uses to target 

worksites in the industry does not generally include construction 

projects valued at less than $50,000 and that are residential. OSHA’s 

local offices have flexibility to exclude additional construction 

worksites from targeted inspection; we found some local offices 

excluded projects valued at up to $2,000,000. In addition, because OSHA 

counts inspections by the number of contractors at a worksite, there is 

an incentive to target larger construction worksites, which may be 

likely to have more contractors.



Recently, both WHD and OSHA made efforts to collect additional data 

that better identified potential violations involving day laborers 

working for temporary staffing agencies. A regional WHD office 

collected data from a randomly selected number of temporary staffing 

agencies to determine whether these agencies were in compliance with 

FLSA. In 1997, local OSHA offices in Ohio obtained workers’ 

compensation data to better identify injury rates for day laborers 

working at temporary staffing agencies.[Footnote 29] These improved 

data helped the agencies determine wage and safety problems that may 

have otherwise gone undetected. For example, WHD found that almost one-

third of temporary staffing agencies were not in compliance with FLSA, 

while OSHA found that temporary staffing agencies had some of the 

highest numbers of workers’ compensation claims with total costs 

exceeding $8.4 million.[Footnote 30] In both cases, the offices worked 

with the temporary staffing agencies to reduce wage and hour abuses and 

ensure a safer workplace. For example, OSHA’s Ohio office began the 

Choice program to work with temporary staffing agencies, providing 

compliance assistance to smaller agencies and requiring on-site 

investigations of all injuries involving temporary workers, such as day 

laborers. Recent results show that 60 percent of the participating 

temporary staffing agencies reduced their overall workers’ compensation 

costs and over half reduced the number of workdays lost to injuries and 

illnesses. While these initiatives may help WHD and OSHA better 

identify where day laborers work and the violations they face, the 

agencies have not yet fully assessed the results of these efforts to 

consider their application agencywide.



At the national level, OSHA is undertaking another effort to collect 

additional data that will provide a better understanding of the extent 

to which day laborers are involved in workplace fatalities. In 2002, 

OSHA implemented a temporary procedure that required OSHA 

investigators, for all fatality and catastrophe investigations, to 

determine if the worker was foreign-born, Hispanic, or had language 

barriers. If that were the case, the OSHA investigator would then 

determine if the worker was a day laborer. OSHA has not yet begun to 

evaluate this information, but the information should prove useful to 

gain a better understanding of day laborers’ fatality experience. 

However, this process is still in the pilot stage and OSHA will not 

identify fatalities and catastrophic accidents of day laborers that are 

not foreign born, Hispanic, or do not have language barriers. Moreover, 

OSHA does not ask if the day laborer was provided through a temporary 

staffing agency.



Labor’s Investigative Procedures Make it Difficult to Detect Violations 

Affecting Employees in Nonstandard Work Arrangements:



Although both WHD and OSHA conduct thousands of investigations each 

year to detect employer noncompliance and remedy potential violations, 

their investigative procedures may not be able to detect violations 

affecting employees in nonstandard work arrangements, such as day 

laborers. As part of their investigations, WHD and OSHA are visiting 

fewer worksites, and WHD generally gives advance notice when it visits 

worksites. As a result, both agencies may miss potential violations 

involving day laborers.



WHD and OSHA conduct thousands of investigations each year without 

visiting worksites. For example, in 2001, WHD conducted as many as 

55 percent of its investigations by fax or telephone. Although OSHA 

does not keep similar statistics, since 1995, it has been encouraging 

its investigators to handle complaint investigations informally by 

telephone. By not going on-site, investigators lose the opportunity to 

observe the worksite or interview employees. Also, in some instances, 

the investigations focus on a single worker, a single minor violation, 

or a particular timeframe. All of these are activities that reduce 

WHD’s and OSHA’s ability to uncover potential violations affecting day 

laborers. In addition, FLSA provides Labor with no authority to assess 

penalties for failing to keep accurate payroll records.[Footnote 31] 

Without the threat of a financial penalty from WHD and because 

employers may hire day laborers to purposely avoid costs, such as 

overtime and taxes, wage records may not reflect actual payments made 

to workers, such as day laborers. Without visiting the workplace, WHD 

cannot compare employers’ wage records with individuals actually 

working at the site to make sure that the payroll records accurately 

reflect all the workers and the payments made. WHD data show that WHD 

is five times more likely to find violations of recordkeeping 

requirements when it visits the workplace or collects additional 

information.



When WHD does visit worksites, the procedures it uses may reduce the 

likelihood of uncovering potential violations related to day laborers. 

According to WHD guidance, investigators have the discretion to give 

employers advance notice of an impending investigation, but it would be 

inappropriate to provide such notice when there is reason to believe 

that the employer’s behavior will change as a result of advance notice. 

The local WHD offices we visited provided advance notice for the 

majority of their investigations. Given that employers hire day 

laborers sporadically, employers may choose not to hire day laborers on 

the day of the investigation or alter records for the investigation, 

limiting WHD’s opportunity to find day laborers.



Labor Faces Challenges When Applying Provisions of FLSA and the OSH Act 

to Day Laborers:



Applying FLSA and the OSH Act to day laborers is challenging for a 

number of reasons. In some cases, WHD lacks the necessary information 

on potential violations or the resources to determine coverage under 

FLSA. In other cases, the extent to which these laws cover day laborers 

is uncertain. Even when these laws cover day laborers, they may not 

account for the nonstandard work arrangements of day laborers, which 

could jeopardize their economic or physical well-being.



Some Provisions of FLSA and the OSH Act Are Difficult to Apply:



Applying FLSA and the OSH Act to day laborers is difficult because 

coverage may depend upon the type of employer or the specific work a 

day laborer performs. Under FLSA, day laborers employed by enterprises 

with an annual business volume of more than $500,000 and some employees 

engaged in interstate commerce are covered; this could include day 

laborers working for large temporary staffing agencies. However, it is 

not always clear how coverage would apply to day laborers employed by 

enterprises making less than $500,000 per year because only those 

workers determined to be engaged in interstate commerce or in the 

production of goods for commerce are covered. According to WHD 

officials, in some cases, WHD officials are unable to obtain the 

information needed to determine this coverage. For example, we found 

that many day laborers work for small construction subcontractors 

performing manual labor, such as installing drywall. According to WHD 

officials, a determination would have to be made that the building the 

day laborer worked on was to be used for interstate commercial activity 

in order for the day laborer to be covered. However, this kind of 

information is not always available. In other cases, information on the 

employer location and hours worked is not readily available. Proving 

such coverage can be difficult and resource-intensive. Because WHD’s 

resources are limited, it must determine the potential impact of 

investigating smaller employers that may have violations affecting a 

small number of individuals versus larger employers that may have 

greater numbers of individuals and more violations.



In other cases, coverage may depend on how local offices determine 

whether an employee is engaged in the production of goods for commerce. 

For example, a worker may be covered if engaged in an activity that is 

“closely related or directly essential” to the production of goods for 

interstate commerce. In applying this provision, WHD officials 

explained that a day laborer serving as a security guard for a building 

that houses companies involved in the production of goods would be 

covered because that activity is closely related or directly essential 

to these interstate activities. Yet, a day laborer mowing the lawn at 

the same building would not be covered because that function would not 

be considered closely related or directly essential to these interstate 

activities. The distinction is not always obvious and Labor has 

recognized this in its regulations. According to Labor, coverage cannot 

always be determined with precision and may require authoritative 

decisions of the courts for a final determination.[Footnote 32]



Regarding domestic service work, FLSA provides that employees doing 

household chores are covered if they meet certain requirements. Not all 

WHD officials appeared to recognize the application of this provision 

to day laborers. WHD officials at headquarters said that day laborers 

picked up from street corners would be covered by this provision of 

FLSA, while officials in the WHD district offices we visited had 

differing views. For example, one office interpreted this provision to 

cover only long-term domestic employees. As a result, day laborers 

performing domestic service work may be protected under this provision 

in some areas but not in others.



Because of the difficulty in asserting coverage for individuals working 

for small employers, WHD often refers such potential violations to 

state enforcement agencies.[Footnote 33] In some cases, state laws may 

provide greater protection than FLSA. For example, all four states we 

visited protect the wages workers were promised, which can exceed the 

federal minimum wage. (App. III compares selected wage provisions under 

FLSA and the laws and requirements of the four states we visited.) 

However, we found that, in practice, advantages associated with relying 

on state enforcement agencies may not be realized. First, not all 

states’ laws cover small employers, for example, neither Virginia’s nor 

Illinois’ law covers employers with four or fewer workers. As a result, 

day laborers working for very small employers may be unlikely to get 

protection under FLSA or the state law. Second, most of the state 

officials we interviewed said that their investigations were 

“complaint-driven.” Officials in Illinois and New York, for instance, 

reported spending all of their time responding to complaints. This, 

combined with their limited resources, makes it unclear that they could 

pursue all referrals from WHD. Third, officials in some states we 

visited told us that their investigators rarely pursued enforcement 

actions that required on-site investigations, relying primarily on 

telephone or fax investigations. As a result, like WHD, state agencies 

may also miss violations. This reliance on state enforcement agencies 

may be even more problematic for day laborers not covered by FLSA in 

those states with less stringent protections, such as no minimum wage 

or overtime provisions.



While day laborers employed by temporary staffing agencies are covered 

by the OSH Act, the exact responsibilities of temporary staffing 

agencies and that of their clients is not always clear. According to 

OSHA, temporary staffing agencies are responsible for general safety 

training and the provision of general personal protective equipment. 

Yet, there is no clear, centralized guidance from OSHA on the legal 

responsibilities of temporary staffing agencies or their clients to 

properly ensure the safety of the day laborers they employ. Neither the 

OSH Act nor the implementing regulations elaborate on these 

responsibilities. Furthermore, OSHA has provided interpretations of the 

requirements in response to inquiries, but temporary staffing agencies 

are not required to follow them. Determining whether the temporary 

staffing agency or client employer is responsible for providing 

training and can be cited for failing to ensure the safety of their 

workers is a complex area that may be confusing, which may leave day 

laborers without sufficient safety and health protections at the 

worksite. For example, a local OSHA office cited both the temporary 

staffing agency and client employer after temporary workers suffered 

injuries at the client employer’s worksite for failing to provide 

sufficient training and concluded that each employer believed the other 

employer was responsible for training the workers. On the other hand, 

some OSHA officials said that they would be less likely to cite 

temporary staffing agencies. If temporary staffing agencies are not 

appropriately cited, day laborers working for these agencies may be 

subject to inadequate safety and health protections. A centralized 

source of information clarifying the role of temporary staffing 

agencies and client employers could allow OSHA to more uniformly apply 

the law and make it easier for both temporary staffing agencies and 

client employers to understand their responsibilities.



Certain Practices under Existing Laws May Adversely Affect Day 

Laborers:



Even when WHD and OSHA are able to enforce protections under FLSA and 

the OSH Act, certain practices allowed by these laws may adversely 

affect day laborers’ economic and physical well-being. The unique 

characteristics and nonstandard work arrangements of day laborers make 

them more susceptible to these practices than workers in traditional 

work arrangements. These practices relate to wage deductions, 

transportation safety, and compensation for time waiting to be 

employed. Addressing these issues is difficult because any resolution 

would involve complicated tradeoffs between the potential benefits to 

day laborers and the potential costs to employers.



Under FLSA, an employer can take a variety of deductions from 

wages.[Footnote 34] Employers can deduct charges for items such as 

meals, lodging, transportation, or cashing of payroll checks as long as 

the item is for the employee’s benefit and acceptance is voluntary and 

uncoerced. Employers can deduct these items even if they bring wages 

below the federal hourly minimum wage.[Footnote 35] Employers can also 

deduct charges for other items, such as tools or uniforms, as long as 

those items do not take the employee’s wages below the federal hourly 

minimum wage.[Footnote 36] Representatives of temporary staffing 

agencies told us that they generally pay minimum wage or whatever the 

local market will bear and generally take the standard deduction for 

taxes as well as other items, such as transportation, from day 

laborers’ pay. Agencies we interviewed that work with day laborers 

reported that most day laborers relied on employers for some of these 

items.[Footnote 37] As a result, the hourly wage received by day 

laborers can often be much less than the originally established wage. 

Nonprofit and local government agencies working with day laborers told 

us that some day laborers receive $2 an hour as a result of several 

deductions. These practices do not generally affect traditional workers 

because they do not rely on employers for services such as 

transportation, check cashing, or meals.



Another practice that may have greater repercussions for day laborers 

than for traditional workers concerns physical safety when commuting to 

and from the worksite. Over the past 2 years, there have been several 

reports of day laborers being killed or injured while being driven to a 

worksite by an employer. In 2001, for example, a temporary worker was 

killed as she was being transported by the temporary staffing agency to 

a job assignment. OSHA did not investigate the case because it was 

outside its jurisdiction. In general, individuals commuting to and from 

work are not considered to be working, so their transportation safety 

is not covered under the OSH Act. However, the commuting pattern for 

day laborers is different than the pattern for workers in traditional 

work arrangements. Most workers in traditional work arrangements rely 

on their own car, a carpool, or public transportation to get from home 

to the workplace. Day laborers, on the other hand, travel from their 

homes to a nearby location, such as a street corner or a temporary 

staffing agency, to obtain work. Because day laborers often do not have 

access to a car or work in locations inaccessible by public 

transportation, they depend on the employer to get them from the street 

corner or temporary staffing agency to the worksite. Federal law covers 

transportation for migrant and seasonal agriculture workers to and from 

the job site if they are transported by their employer.[Footnote 38] 

Additionally, because employers are not required by OSHA to record an 

injury that occurs during transport, OSHA cannot determine how often 

this occurs. Assuming that day laborers are less likely to receive 

workers’ compensation or have health insurance, any medical costs 

associated with the injury would be incurred by the community at large.



Compensation for waiting time is another issue that may affect day 

laborers differently than workers in traditional work arrangements. 

Most workers in traditional work arrangements have a steady employer 

and regular work location and go directly from home to the worksite. 

Day laborers, on the other hand, must wait at particular locations to 

obtain employment--even if they are employed by temporary staffing 

agencies. We found that, in many cases, day laborers wait 3 to 4 hours 

before being assigned a work assignment, spend between 1 to 3 hours in 

travel time to and from the worksite, and generally work at least 8 

hours on the job. This could add up to a 12-to 15-hour day. According 

to WHD officials, waiting on a street corner for a job offer or at a 

temporary staffing agency for an assignment to a client is not counted 

as wait time. In addition, even after a worker is provided a work 

assignment, WHD generally would not consider the time it takes to get 

to the site to be compensable work time under FLSA.[Footnote 39]



Conclusions:



Both WHD and OSHA acknowledge that those individuals working as day 

laborers are some of this nation’s most vulnerable workers. Moreover, 

both struggle with the problem that the characteristics that make day 

laborers most susceptible to workplace abuses also make it difficult 

for Labor and others, especially in light of limited resources, to find 

and protect them. It is also difficult to protect a group of workers 

that may not want to be found. These difficulties may lead to workers 

who are not receiving the protections they are entitled to under law, 

as well as larger problems associated with an underground economy, 

illegal immigration, and unreported income. Both WHD and OSHA have made 

a commitment to protect these workers and others like them, but they 

are hampered by incomplete data and difficulty in applying some of the 

legal protections available to these workers.



Both agencies’ efforts to protect day laborers could be enhanced by 

having better information about where day laborers work and what 

violations they may face. While current efforts to provide education 

and outreach and collect additional data on day laborers have promise, 

such efforts can be expanded. For example, efforts by OSHA and WHD may 

benefit from greater involvement with temporary staffing agencies or a 

larger network of agencies representing day laborers to ensure that day 

laborers are aware of their rights. Also, WHD and OSHA could benefit by 

exploring the results of their local efforts to collect additional data 

on day laborers working for temporary staffing agencies. By not doing 

so, WHD and OSHA lose the opportunity to identify better ways to obtain 

valuable information about where day laborers work and the potential 

violations they face. Moreover, unless OSHA refines and permanently 

implements its data collection procedure for fatality investigations, 

it may not get a complete picture of the number or characteristics of 

day laborers killed on the job.



Finally, WHD officials did not uniformly understand how to apply FLSA’s 

domestic service provision to day laborers. Because of this apparent 

lack of understanding, day laborers providing identical services for 

homeowners may be treated differently depending on the knowledge level 

of WHD officials. Furthermore, with respect to OSHA, in the absence of 

regulations or a centralized source of information that specifies the 

responsibilities of temporary staffing agencies for the health and 

safety of their workers, OSHA’s local offices may risk inconsistent 

application of the OSH Act and joint employers may fail to provide 

sufficient safety protections.



Recommendations for Executive Action:



To further WHD’s and OSHA’s efforts to obtain better information 

concerning the presence of and potential for violations involving day 

laborers, we recommend that the Secretary of Labor:



* direct WHD and OSHA, as a part of their education and outreach 

efforts, to enhance the procedures they use to reach day laborers, such 

as expanding their contact with temporary staffing agencies or other 

agencies that work with day laborers;



* direct WHD and OSHA to review the results of local efforts to obtain 

additional data on the presence and violation experience of day 

laborers working for temporary staffing agencies for possible 

replication in other locations or agencywide; and:



* direct OSHA to finalize its current effort to collect data on 

fatalities and catastrophes and refine it by asking first whether 

someone is a day laborer, including whether the individual worked for a 

temporary staffing agency.



To ensure that Labor’s local offices have consistent policies and an 

understanding of how and when to enforce protections afforded under 

FLSA and the OSH Act, we recommend that the Secretary of Labor:



* instruct WHD to clarify when day laborers may be covered under the 

domestic service provision of FLSA; and:



* instruct OSHA to consider the development of regulations to specify 

temporary staffing agency responsibility for safety and health under 

the OSH Act, or at a minimum, centralize existing information on 

temporary staffing agencies’ responsibilities.



Agency Comments and Our Evaluation:



WHD and OSHA provided us with written comments on a draft of this 

report, which are reproduced in appendixes IV and V, respectively. WHD 

agreed with all of the recommendations that applied to it. OSHA agreed 

with our recommendation regarding enhancing the education and outreach 

procedures it uses to reach day laborers and did not object to the 

others. The agencies also provided technical comments, as did BLS and 

Labor’s Office of Solicitor, which we incorporated in the report where 

appropriate.



Both WHD and OSHA emphasized their commitment to protecting day 

laborers under FLSA and the OSH Act. WHD said that it is strongly 

committed to providing effective compliance assistance to those workers 

covered by FLSA. OSHA said that employers of day laborers have the same 

obligations as any other employer. Nonetheless, OSHA acknowledges that 

particular outreach and enforcement efforts may be necessary to address 

the particular circumstances of day laborers.



Both agencies provided additional information on their outreach 

efforts. For example, WHD is developing a plain language fact sheet, in 

English and Spanish initially, covering the application of wage and 

hour laws to the employment of temporary workers such as day laborers. 

OSHA has formed an alliance with the Hispanic Contractors of America to 

expand outreach and communication on safety and health awareness and 

best practices for Spanish-speaking employers and employees in the 

construction industry.



WHD and OSHA commented on our assessment of particular procedures 

affecting their ability to detect violations involving day laborers. 

Both agencies said that off-site investigations, such as telephone and 

fax contacts with employers, are the most timely and effective method 

of securing last paychecks for workers. They noted that these 

investigations can be used as an indicator that an on-site 

investigation of the employer might be warranted. We agree that this 

method may be efficient and have value for workers who are likely to 

complain about working conditions; however, we continue to believe that 

this method may not be the most effective for day laborers, who 

generally may be reluctant to complain. OSHA also said that its 

construction targeting, which generally reaches larger sites, does not 

preclude OSHA from inspecting sites where day laborers can be found 

because small contractors regularly subcontract work at large 

construction sites and at many projects valued over $50,000. However, 

several experts told us that larger construction contractors with 

higher-value projects tend to use unionized subcontractors who rarely 

hire nonunion workers, such as the day laborers we encountered.



We are sending copies of this report to appropriate congressional 

committees, the Secretary of Labor, and the Assistant Secretaries of 

Labor for Employment Standards and Occupational Safety and Health. We 

will also make copies available to others upon request. In addition, 

the report will be available at no charge on GAO’s Web site at http://

www.gao.gov.



Please contact me or Lori Rectanus on (202) 512-7215 if you or your 

staff have any questions about this report. Other contacts and staff 

acknowledgments are listed in appendix VI.



Sincerely yours,



Robert E. Robertson

Director, Education, Workforce, and

 Income Security Issues:



Signed by Robert E. Robertson:



[End of section]



Appendix I: Identification and Selection of Agencies Serving Day 

Laborers:



To determine what is known about the size and nature of the day laborer 

workforce in the United States, we initially examined demographic data 

on day laborers from the Bureau of Labor Statistics’ Current Population 

Survey Contingent Work Supplement. Although this information is 

collected directly from individuals working as day laborers, it lacked 

detailed data about the characteristics of day laborers and their work 

that were necessary to address this objective, such as the number of 

hours or days worked, means of transportation used to get to job sites, 

and frequency and method of payment for work completed. Moreover, data 

available from other studies and reports focused on day laborers in 

certain geographic locations. As a result, we collected supplemental 

information through structured interviews from agencies that work with 

day laborers.



We identified two types of agencies that assist day laborers. One type 

consists of nonprofit and local government agencies that work with day 

laborers seeking employment on street corners. The second type includes 

temporary staffing agencies that employ day laborers.



Identifying Agencies Serving Day Laborers:



Given the lack of a national directory of agencies that work with day 

laborers, to identify as many agencies as possible, we interviewed 

experts; visited local agencies in the Washington, D.C., metropolitan 

area; and reviewed research studies and reports identified by experts, 

a literature review, and the Internet. We sought to obtain the broadest 

ethnic and geographic representation possible. We found that the 

majority of the agencies on our list were Hispanic-based groups, which 

may have some effect on our findings regarding the ethnicity of day 

laborers. We observed and were told of day laborers of other ethnic 

backgrounds, such as Asians in New York, and Polish and other eastern 

European groups in Chicago, but few, if any of the organizations on our 

list focused solely on serving these groups. We ultimately identified 

84 agencies representing 14 states; the overwhelming majority of the 

agencies (61) were located in California, with Texas having the next 

highest number (4).



To identify temporary staffing agencies, we started with a list of 11 

firms identified by the American Federation of Labor-Congress of 

Industrial Organizations (AFL-CIO) as the primary employers of blue-

collar workers in the United States. The American Staffing Association, 

an organization that represents temporary staffing agencies, confirmed 

that these were the major employers of skilled and/or unskilled blue-

collar workers.



Selecting Agencies Serving Day Laborers:



To identify nonprofit and local government agencies for our structured 

interviews, we chose one agency from each of the 14 states represented 

on the list of 84 and added 4 agencies each from California, Illinois, 

New York, and Virginia to interview during our site visits. We also 

added 1 agency each from California and Texas because they represented 

the largest number of agencies on our list. In total, we selected 20 

nonprofit and local government agencies and all 11 temporary staffing 

agencies we initially identified.



Delivery of Structured Interviews:



From February to June 2002, we contacted the 31 nonprofit, local 

government or temporary staffing agencies (20 nonprofit or local 

government and 11 temporary staffing agencies). We asked these agencies 

about (1) the characteristics of the day laborer workforce, such as 

race, age, and education; (2) types of work day laborers typically 

perform; 

(3) working conditions that day laborers face in the areas of wages, 

safety, and health; and (4) litigation concerning federal wage, safety 

and health provisions that involved day laborers. We did not 

independently verify the information provided by the agencies.



Three of the 20 nonprofit and local government agencies we interviewed 

worked with day laborers employed by temporary staffing agencies. We 

included their results with the 11 temporary staffing agencies--for a 

total of 14. Three temporary staffing agencies declined to participate 

and 

3 others did not employ day laborers as we defined them, leaving a 

final total of 8. As a result, the information in this report 

represents 17 nonprofit and local government agencies and 8 temporary 

staffing agencies in which 3 street agencies were re-categorized as 

temporary staffing agencies. 

(See table 3.):



Table 1: Agencies Participating in Structured Interviews:



Nonprofit and local government agencies: 



Agency name: Coalition for Humane Immigrant Rights of Los Angeles; 

Location: California.



Agency name: San Diego County Jobs for Progress; Location: California.



Agency name: San Francisco Day Laborer Program; Location: California.



Agency name: American Friends Service Committee; Location: Colorado.



Agency name: Roswell Intercultural Alliance; Location: Georgia.



Agency name: Latin Union of Chicago; Location: Illinois.



Agency name: CASA of Maryland; Location: Maryland.



Agency name: Wind of the Spirit Immigrant Resource Center; Location: 

New Jersey.



Agency name: Latin American Workers Project; Location: New York.



Agency name: Workplace Project; Location: New York.



Agency name: Association of Latino Workers of North Carolina; Location: 

North Carolina.



Agency name: VOZ: Workers’ Rights Education Project; Location: Oregon.



Agency name: Denton Humanitarian Association; Location: Texas.



Agency name: Oscar Romero Workers’ Center; Location: Texas.



Agency name: Culmore Family Resource Center; Location: Virginia.



Agency name: Shirlington Employment and Education Center; Location: 

Virginia.



Agency name: CASA Latina; Location: Washington.



Temporary staffing agencies:



Agency name: Adecco; Location: [A].



Agency name: Chicago Coalition for the Homeless[B]; Location: Illinois.



Agency name: Day Laborers’ Organizing Committee[B]; Location: Ohio.



Agency name: Labor Connection; Location: [A].



Agency name: Labor Finders International; Location: [A].



Agency name: Labor Ready; Location: [A].



Agency name: Primavera Works[B]; Location: Arizona.



Agency name: Tandem Staffing Solutions; Location: [A].



[A] These temporary staffing agencies have offices in locations 

nationwide or in certain regions of the United States.



[B] The responses we received from these agencies related to day 

laborers working for temporary staffing agencies.



Source: GAO.



[End of table]



[End of section]



Appendix II Services Provided to Day Laborers by Selected Nonprofit 

Agencies:



As part of our efforts to identify what was known about the nature and 

size of the day laborer workforce, we conducted on-site visits with one 

nonprofit agency that works with day laborers in each of the four 

states we visited. During these visits, we obtained information on the 

characteristics of the day laborer workforce, as well as how these 

agencies broker employment for day laborers and work to improve day 

laborers’ working conditions.



Description of Nonprofit Agencies Visited:



The four nonprofit agencies we visited seek to improve the welfare of a 

population broader than day laborers, to include low-income workers, 

the homeless, and local citizens. All of the agencies provide 

information to workers to educate them about their rights in the 

workplace. They also help day laborers obtain employment and provide 

them with a range of social services, from teaching English and 

offering classes on childcare to providing medical screenings. At one 

of the locations of the Coalition for Humane Immigration Rights of Los 

Angeles (CHIRLA), day laborers can receive English classes from a local 

welfare agency representative while they wait to be assigned to a job. 

In some cases, these services are offered to workers who stay at the 

site after it closes. (See table 2 for a description of these agencies 

and the services they provide to day laborers.) In addition, the 

agencies provide legal support by referring workers for legal 

assistance or litigating cases themselves on behalf of workers.



Table 2: Description of Agencies GAO Visited and the Services They 

Provide:



Agency/location: Shirlington Employment and Education Center, 

Arlington, Va.; Purpose: Provides employment and training

 services to individuals in the community.; Services provided to day 

laborers: * Provides services, such as classes in English and 

computers.; * Brokers employment..



Agency/location: Coalition for Humane Immigration Rights

 of Los Angeles, Los Angeles, Calif.; Purpose: Organizes workers and 

provides social services to improve the overall welfare

of low-income workers.; Services provided to day laborers: * Provides 

services, such as English and literacy classes.; * Litigates cases.; * 

Brokers employment..



Agency/location: Chicago Coalition for the Homeless, Chicago, Ill.; 

Purpose: Seeks to empower homeless individuals.; Services provided to 

day laborers: * Organizes day laborers to address grievances..



Agency/location: Latin American Workers’ Project, New York, N.Y.; 

Purpose: Provides outreach and education to workers to help them 

organize.; Services provided to day laborers: * Offers English 

classes.; * Litigates cases.; * Brokers employment..



Source: Shirlington Employment and Education Center, Coalition for 

Humane Immigration Rights of Los Angeles, Chicago Coalition for the 

Homeless, and Latin American Workers’ Project.



[End of table]



Several of these agencies began to serve day laborers because local 

communities were increasingly displeased at seeing day laborers 

congregating on street corners or at convenience or home warehouse 

stores.[Footnote 40] Local citizens reported that they feared for their 

safety or they feared that congregating could affect local commerce. 

Advocates for day laborers feared for the safety and welfare of day 

laborers--either they were being injured as a result of running into 

traffic to respond to employers’ solicitations for work or they were 

complaining about not receiving promised wages or adequate working 

conditions. Local groups--including social welfare agencies, worker 

advocates, local government, and police--often worked together to 

develop and fund solutions to connect day laborers and employers.



Toward that end, three of the four organizations worked with local 

groups to build or identify locations that could be used to broker 

employment between day laborers and employers. (Chicago’s Coalition for 

the Homeless does not broker employment.) The Shirlington Center has a 

building where day laborers wait for work. The Latin American Workers’ 

Project operates two sites in New York: one in the basement of a church 

and the other on a parking lot along the banks of the Atlantic Ocean. A 

tent was recently donated to the latter site to provide shelter. CHIRLA 

operates three sites around the Los Angeles area that are also located 

in parking lots.[Footnote 41] The agencies publicize these new 

locations to employers and encourage them to use these sites to find 

workers. In one location, police will ticket employers or day laborers 

who use street corners. However, some day laborers refuse to use these 

sites, believing that their employment opportunities are better at 

unorganized sites. It is hard to reach all day laborers and unorganized 

sites continue to exist. For example, New York officials identified 26 

unorganized sites around New York City, while CHIRLA representatives 

identified about 150 unorganized sites in Los Angeles County.



The agencies established procedures at these job sites to facilitate 

the brokering of employment. These procedures were often developed with 

the input of day laborers and typically require that they provide basic 

information, such as their name, address, and telephone number and 

abide by certain rules. For example, day laborers at one agency must do 

some community work to “pay off” the services provided by the agency. 

At two agencies, employers who participate must also provide 

information, including their name, address, telephone number, and 

license plate number. One agency, however, does not request such 

information, fearing that those requirements may scare away employers.



When the day laborers arrive at the site around 6 a.m., they sign in, 

listing their name, skills, and level of English proficiency. When 

employers arrive seeking a worker for a particular job, a 

representative of the agency will select a worker’s name from the list 

or pick a name through a lottery system. Employers may request certain 

workers, for example, one that has a certain skill or speaks English. 

The agencies let the day laborers negotiate wages with employers. 

However, one agency established a certain minimum wage that employers 

must pay. At several sites, the day laborers have informally agreed 

among themselves on a minimum hourly wage and will not go below it.



Resolving Potential Violations Involving Day Laborers:



All the agencies help day laborers remedy workplace problems involving 

wages or safety and health. To resolve the problem, they first contact 

the employer directly. In some cases, it works well; but in other 

cases, some day laborers do not have information about the employer, 

such as a telephone number or address, making it difficult to pursue. 

To address this problem, CHIRLA and the Latin American Workers’ Project 

have begun to provide books and cards to the day laborers where they 

can track the hours they work, the locations where they have worked (to 

help assert individual coverage under FLSA), and other information that 

will help identify the employer.



If the problem is not resolved by dealing directly with the employer, 

the agencies may conduct a community action to push the employer to 

resolve the issue. For example, one agency organized a protest in front 

of the employer’s premises. Other strategies include picketing the 

employer’s work or home and seeking media attention. The agencies also 

help workers file complaints with state or federal agencies, or in 

small claims court. However, the agencies reported that most workers 

are reluctant to do so.



If the problem persists, the agencies may litigate cases on behalf of 

day laborers (to recover unpaid wages or obtain workers’ compensation 

for a work-related injury, for instance), provide legal advice, or 

refer cases to local or state legal agencies for litigation. All four 

agencies partner with private law firms or local, state, or federal 

agencies that can also litigate cases. The Latin American Workers’ 

Project, for example, refers cases to the Puerto Rican Legal Defense 

Fund or the New York State Attorney General.



As a result of these efforts, these four agencies reported that, 

collectively, they retrieved over $280,000 in wages owed to workers in 

2001. In addition, two agencies reported a significant reduction in the 

number of complaints regarding wages, safety, and health.



[End of section]



Appendix III: Selected Features of FLSA and Requirements in Four 
States:



This table compares selected features of FLSA with state wage laws, 

regulations, and administrative orders in the 4 states we visited. It 

highlights only those provisions that are most applicable to day 

laborers. State requirements play an important role in supplementing 

FLSA’s protections because states may enact more stringent provisions. 

This means that a state could cover employers and individuals not 

covered under FLSA. If an employer is covered under FLSA and a state 

requirement, the more stringent provision will generally apply. We 

supplemented this table with information provided by state officials.



Provisions: General coverage; FLSA: All individuals employed by; * 

employers earning $500,000+ annually in sales, and employees engaged in 

interstate commerce, or in the production of goods for commerce;; * 

employers earning less than $500,000 and individual is engaged in 

interstate commerce, or in the production of goods for commerce, or 

closely related and directly essential to interstate commerce; or; * 

homeowners performing domestic services, such as house cleaning or 

gardening for 8+ hours a week or earning at least $1,300 in 2002.; 

California: Individuals employed by an employer, including homeowner, 

with certain exceptions.; Illinois: Individuals employed by an 

employer, with certain exceptions.; New York: Individuals employed by 

an employer, including homeowners, with certain exceptions.; Virginia: 

Individuals employed by an employer, with certain exceptions..



Provisions: Exclusions most relevant to day laborers; FLSA: Individuals 

working for companies earning less than $500,000 and employees are not 

engaged in interstate commerce.; California: None; Illinois: Workers; * 

employed by employers with fewer than four employees or; * employed by 

a homeowner performing domestic service in a private home.; New York: 

None; Virginia: Workers; * employed by employers with fewer than four 

employees;; * employed by a homeowner performing domestic service in a 

private home; or; * covered by FLSA..



Provisions: Wages; FLSA: Minimum wage: $5.15/hour.; California: 

Established rate of pay but no lower than $6.75/hour.; Illinois: 

Established rate of pay but no lower than $5.15/hour.; New York: 

Established rate of

pay but no lower

than $5.15/hour.; Virginia: Established rate of pay but no lower than 

$5.15/hour..



Provisions: Overtime; FLSA: For over 40 hours in any workweek, workers 

earn 1-½ times the regular rate of pay.; California: Same as federal 

law. Daily overtime: workers earn 1-½ times the regular rate of pay for 

every hour worked over 8 hours in 1 day and double the regular rate 

every hour worked after 12 hours in 1 day.; Illinois: Same as federal 

law.; New York: Same as federal law.; Virginia: None.



Provisions: Deductions most relevant to day laborers; FLSA: Can deduct 

items considered to be an employee benefit, even if it brings workers 

below the minimum wage, such as meals, lodging; must be at the actual 

cost. Can deduct for check cashing or transportation if the services 
are 

voluntary and considered to be an employee benefit.Can deduct items 

considered to be for an employer’s benefit, such as transportation and 

uniforms, but deductions cannot bring wages below the minimum.; 
California: 

Employees must provide written authorization for deductions. Can deduct 
items 

that take workers below the minimum wage, such as meals, but the law 
sets 

a cap. Cannot deduct for personal protective equipment.; Employers must 

provide itemized statement of deductions at time of payment.; Illinois: 

Can deduct the reasonable cost of meals and lodging, if it is for the 

employee’s benefit, even if it brings workers below the minimum wage.

Can deduct for transportation, but not if it brings wages below the 

minimum. Can deduct the reasonable cost of uniforms and equipment with 

employee’s written consent, but not if it brings wages below the 

minimum.; ; Employers must provide itemized statement of deductions at 

time of payment.; New York: Can deduct charges for items considered an 

employee benefit, such as meals and lodging, even if it brings worker 

below the minimum wage; the state sets caps for these items.[A]; 

Allowances for uniforms are added to not deducted from wages.

Cannot deduct charges for transportation or personal protective 

equipment.; Employers must provide itemized statement of deductions at 

time of payment.; Virginia: No deductions allowed without written and 

signed employee authorization.; Requires written statement of 
deductions 

upon request.



Provisions: Recordkeeping; FLSA: Employers must keep payroll records.

Only courts may assess a penalty for failure to keep payroll records.; 

California: Employers, including homeowners, must keep payroll 

records.; ; Penalty of $500 for failure to keep payroll records.; 

Illinois: Employers must keep payroll records. State enforcement 

agency currently not authorized to assess penalties for failure to 

keep records.[B]; New York: Employers, including homeowners, must 

keep payroll records.; Penalty for failure to keep payroll records 

is up to $1,000 for a first violation, $1,000-$2,000 for a second 

violation, and $2,000-$3,000 for a third violation.; Virginia: None.



Provisions: Other; FLSA: [Empty]; California: [Empty]; Illinois: The 

Day Labor Services Act (DLSA) provides additional protections to day 

laborers employed by temporary staffing agencies.[C] Check cashing fees 

are prohibited, transportation fees are capped at 3% of daily wages, 

and other deductions, such as meals, uniforms, and equipment, must be 

at the actual cost or market value. DLSA also recommends that temporary 

staffing agencies hire people who speak languages that are generally 

used near day labor service agencies.; New York: [Empty]; Virginia: 

[Empty]. 



[A] New York State law uses the term “allowances” to denote 

charges for items such as meals and lodging. For this table, however, 

we refer to these allowances as “deductions.” :



[B] According to state Labor officials, new legislation authorizing the 

state agency to assess penalties will take effect in 2003.



[C] Although the act only covers “day labor service agencies,” for this 

table, we are referring to them as temporary.



Source: GAO comparison of the Fair Labor Standards Act of 1938, with 

the pertinent state laws, requlations, and administrative orders of 

California, Illinois, New York and Virginia.



[End of table]



[End of section]



Appendix IV: Comments from the Employment Standards Administration:



Note: GAO comments supplementing those in the report text appear at the 

end of this appendix.



U.S. Department of Labor:



Assistant Secretary for Employment Standards Washington. D C. 20210:



SEP 10 2002:



Mr. Robert E. Robertson Director:



Education, Workforce, and Income Security Issues United States General 

Accounting Office 441 G Street, N.W., Room 5930 Washington, D.C. 20548:



Dear Mr. Robertson:



Thank you for the opportunity to comment on the draft report prepared 

by the General Accounting Office (GAO) entitled, Worker Protection: 

Labor’s Efforts to Enforce Protections for Day Laborers Could Benefit 

from Better Data and Guidance, GAO-02-925. The comments that follow 

focus on references in the report to the Employment Standards 

Administration’s Wage and Hour Division (WHD). Please note, however, 

the enclosed letter from the Occupational Safety and Health 

Administration (OSHA) which addresses those sections of the report that 

specifically refer to OSHA. We have also forwarded under separate cover 

technical corrections from the Office of the Solicitor and from the 

Bureau of Labor Statistics.



The draft cites (pg. 16) a variety of reasons that cause day laborers’ 

reluctance to complain of potential violations. The same reasons cause 

worker reluctance to cooperate with the conduct of WHD investigations, 

often to the extent of refusing to provide information critical to 

establishing violations of worker protection laws.



The draft incorrectly indicates (pg. 17) that the WHD “lacks a core of 

Spanish-speaking staff in its offices.” In fact, approximately one 

quarter of WHD staff nationwide is Spanish-speaking. As a result of a 

concentrated hiring effort over the last decade, this ratio is much 

higher in those areas of the country with high concentrations of 

Spanish-speaking workers; for example, approximately 40 percent of the 

WHD Western Region staff are Spanish-speaking.



The draft indicates (pg. 20) that telephone and fax contacts with 

employers sometimes focused on single workers/violations/timeframes, 

and reduced the ability to uncover potential violations affecting day 

laborers. These contacts, called conciliations, are the most timely, 

effective method of securing last pay checks for workers, including day 

laborers. A pattern of conciliations, however, is seen as an indicator 

that a full on-site investigation of the employer might be warranted. 

(See also OSHA’s concern with this segment of the report.):



The draft’s indication (pg.20) that “there is no penalty for failing to 

keep accurate payroll records under the Department of Labor’s FLSA 

regulations” is misleading. A more accurate statement is: “the FLSA 

provides the Department of Labor with no authority to assess penalties 

for failing to keep accurate payroll records.”:



The draft indicates (pg. 21) that advance notice of a WHD visit, as is 

done in the majority of investigations, allows employers to refrain 

from hiring day laborers on the day of the investigation, thus limiting 

the WHD’s opportunity to find day laborers. In those circumstances 

where the employment of day laborers is a potential compliance issue, 

the WHD would typically exercise its discretion and conduct an 

unannounced investigation.



The draft’s indication (pg. 25) that “federal law covers transportation 

for agriculture workers to and from the job site if they are 

transported by their employer” is also misleading. A more accurate 

statement would read: “Federal law covers transportation for migrant 

and seasonal agricultural workers...”.



The draft makes three recommendations to the Secretary of Labor 

specific to the WHD. Our response follows, after a restatement of each 

of the recommendations.



1. Direct WHD and OSHA, as part of their education and outreach 

efforts, to enhance the procedures they use to reach day laborers, such 

as expanding their contact with temporary staffing agencies or other 

agencies that work with day laborers.



Response: The WHD is strongly committed to providing effective 

compliance assistance to the regulated community. As part of its 

growing outreach effort to employers and employees and their 

representatives, the WHD will develop and disseminate a plain language 

fact sheet, in English and Spanish initially, covering the application 

of wage and hour laws to the employment of temporary workers such as 

day laborers. The WHD will provide this fact sheet to temporary 

staffing agencies and other agencies that work with day laborers, along 

with an invitation to work with the WHD to insure compliance with wage 

hour laws.



The WHD is using a variety of media to reach immigrant workers, who 

constitute many of those in day labor jobs. In addition to public 

service announcements, the agency has been increasing its use of 

Spanish-speaking radio and television programs to explain workers’ 

rights. The agency is also reaching out to the Spanish press. The WHD 

seeks opportunities to participate in community programs such as Cinco 

de Mayo and to address “English as a Second Language” classes. The WHD 

is also working to translate fact sheets and other materials into 

Spanish. Most of the agency’s workers’ rights posters and many of the 

more significant compliance assistance materials have already been 

translated. The agency works with community and faith-based 

organizations that function as intermediaries between the WHD and 

workers who may need assistance. The WHD has developed a “Wage Hours 

Recordkeeper” in English and Spanish to provide temporary and transient 

workers - such as day laborers - the information needed to determine if 

they are paid properly. This booklet, evidently similar to that 

developed by the Latin American Worker’s project cited on page 34 of 

the draft report, helps workers track the hours they work. The WHD 

provides this booklet to WHD offices across the country for 
distribution 

to workers through community and faith-based organizations.



2. Direct WHD and OSHA to review the results of local efforts to obtain 

additional data on the presence and violation experience of day 

laborers working for temporary staffing agencies for possible 

replication in other offices or agency wide.



Response: The WHD will collect and review these results and consider 

them for possible replication.



3. Instruct the WHD to clarify when day laborers may be covered under 

the domestic service provision of FLSA.



Response: The WHD will add clarifying instruction on the potential 

application of domestic service provisions of the FLSA to the 

employment of day laborers to its Field Operations Handbook. Similarly, 

WHD training will be supplemented to include this clarification.



Again, thank you for the opportunity to comment on this report. If you 

have any questions, please contact Griffin Crump at 693-0308.



Sincerely,



Victoria A. Lipnic:

 

Signed by Victoria A. Lipnic:



Enclosure:



GAO Comments:



1.	 We clarified the paragraph that discusses WHD’s Spanish-speaking 

 staff to indicate that WHD has about one-quarter of its staff that 

 speak Spanish.



2.	 See discussion in Agency Comments section of report.



3.	 We modified the report’s language as suggested.



[End of section]



Appendix V: Comments from the Occupational Safety and Health 

Administration:



Note: GAO comments supplementing those in the report text appear at the 

end of this appendix.



U.S. Department of Labor:



Assistant Secretary for Occupational Safety and Health Washington, D.C. 

20210:



Mr. Robert E. Robertson Director:



Education, Workforce, and Income Security Issues United States General 

Accounting Office:



441 G Street NW, Room 5930 Washington, DC 20548:



Dear Mr. Robertson:



We have reviewed the draft report prepared by the General Accounting 

Office (GAO) entitled “Worker Protection: Labor’s Efforts to Enforce 

Protections for Day Laborers Could Benefit from Better Data and 

Guidance.” Based upon our review of the report, there are several 

issues of significant concern to the Occupational Safety and Health 

Administration (OSHA) about the GAO report.



First and foremost, we want to emphasize that employers of day laborers 

have the same obligations as any other employer. The OSH Act gives 

employers the ultimate responsibility to provide all their workers a 

safe and healthful workplace, free from occupational hazards, 

regardless of ethnicity, citizenship or employment status. Standards 

are intentionally written specific to a workplace hazard and do not 

focus on specific population groups. Employers must comply with 

regulations promulgated by OSHA, and implement the regulations in such 

a way as to protect all workers under their control from the hazards to 

which they may be exposed. Immigrant,



Hispanic/ Latino and/or Day Laborers are all protected by agency 

standards in the same manner as any other worker population. 

Nonetheless we acknowledge that particular outreach and enforcement 

efforts may be necessary in order to address the circumstances of many 

day laborer workers.



In that regard, OSHA has undertaken significant efforts to develop 

programs for Hispanic immigrant workers and day laborers. Many of 

OSHA’s area offices have programs to reach day laborers. The programs 

are designed to meet the needs of the local population. In August 2001, 

the Agency responded to Secretary of Labor Elaine Chao’s concerns about 

protecting Hispanic workers by forming the Hispanic Task Force. This 

task force is pulling the local programs together, conducting a gaps

analysis and developing suggestions and recommendations for 

implementing a national integrated strategy to address the problems of 

Hispanic and immigrant worker populations, including day laborers. We 

believe the GAO report should recognize OSHA’s significant, non-data 

related initiatives.



The majority of day laborers fall into the category of Hispanic and 

immigrant workers, the subject of our task force initiative. According 

to page 12 of your report, one-third of day laborers have been in this 

country for less than one year. In addition, according to the same page 

of the report “the majority of day laborers were Hispanic men.” OSHA’s 

Hispanic Task Force has already suggested and OSHA has initiated a 

number of program efforts that address several of your recommendations. 

For example, when looking at the barriers that language may pose to 

Hispanic/Latino workers and employers, the Agency has:



*translated numerous materials into Spanish,



*established a nationwide Spanish capability 1-800 complaint/ concern 

telephone line,



*introduced a new web page for Spanish-speaking employers and workers, 

*initiated new efforts in working with Spanish employers, Hispanic 

Chamber of Commerce groups, and Mexican Consulates,



*formed an alliance with the Hispanic Contractors of America to expand 

outreach and communication on safety and health awareness and best 

practices for Spanish-speaking employers and employees in the 

construction industry.



*increased its cooperation with NIOSH to determine (and then overcome) 

the barriers Special Populations at Risk may encounter, and to learn 

the best methods to train Hispanic/ Latino and immigrant workers in

preventing workplace injuries and illnesses, and *enhanced its data 

collection methods.



We plan to continue to share special project and program information 

nationwide, work with community and faith-based groups, and form 

special business alliances and partnerships to address the problem of 

increased fatal injuries to Hispanic/Latino and immigrant workers, 

including day laborers. In fact we will be participating in the 

National Safety Congress’ Hispanic Forum in October presenting 

information about OSHA to a significant number of Hispanic community 

groups.



OSHA’s participation in the Roswell Intercultural Alliance (RIA) in 

Georgia is another example of the work we are doing with day laborers. 

RIA has been actively assisting day laborers for the last seven years 

by providing a place for the laborers to come to find work. However, 

the center wasn’ t attracting as many employers as they had hoped. RIA 

turned to OSHA for help. OSHA began a partnership with RIA to 
coordinate 

safety and health training programs. OSHA is working with Georgia 

Tech University, safety directors of a few construction companies 

and a local chapter of the Association of Builders and Contractors 

(national trade association representing about 23,000 contractors, 

subcontractors, material suppliers and related firms from across the 

country and from all specialties in the construction industry), to 

provide the day laborers at the RIA Center with 6 hours of safety 

training. After receiving training the participants are issued a 

certificate from Georgia Tech. This special training program has 

attracted employers and day laborers as well. The employers are 

interested in hiring day laborers that understand safety concepts 

and how to protect themselves. The workers find that they can get 

better jobs, many of which turn into permanent employment by having 

a certificate in safety training. In fact, 22 of the 60 laborers 

trained to date have obtained full time permanent employment due to 

their safety certificates. OSHA is also working with a center in 

Duluth, Georgia and the city of Fort Worth, Texas to develop similar 

programs. Each of our ten regions has similar outreach programs for 

day laborers, Hispanic and/or immigrant workers. The national focus 

brought to these programs is strengthening them. The GAO report 

should emphasize this point.



Finally, we have several more specific concerns with the report.



On page 19, your report states that OSHA targets construction sites 

valued at $50,000 or more and day laborers generally work for small 

employers. However it should be noted that small contractors regularly 

subcontract work at large construction sites and certainly at many of 

the construction sites valued over $50,000. This criterion does not 

preclude OSHA from inspecting sites where many day laborers will be 

found.



Also, on page 20, your report indicates OSHA has implemented a 

temporary procedure that required OSHA investigators, for all fatality 

and catastrophe investigations, to determine if the worker was foreign-

born, Hispanic or had language barriers and then, if that were the case 

to determine if the worker is a day laborer. This description fails to 

mention that the new OSHA procedure is defined as “temporary” only 

because it is a pilot project. The temporary procedure for fatality/ 

catastrophe investigations, including changes to the OSHA Form 170, has 

been introduced into OSHA’s regional and area offices and will remain 

in place until the permanent procedure is incorporated into the 

agency’s overall redesign of the Integrated Management Information 

System (IMIS). The agency changed the Form 170 in May to include 

several questions about ethnicity and language capabilities, such as 

country of origin, and whether language barriers may have caused or 

contributed to the workplace accident. OSHA compliance officers are now 

using this new procedure to report current fatality/ catastrophic event 

investigations and are also completing the form for fatalities/ 
catastrophes 

that have occurred since October 2001; thus giving the agency data for 

all of Fiscal Year (FY) 2002.



Additionally, your report indicates OSHA is visiting fewer worksites. 

To the contrary, OSHA’s enforcement efforts are not declining. OSHA 

inspections have steadily increased from 24,024 in FY 1996 to 36,400 in 

FY 2002. In FY 2003, OSHA expects to increase its current level of 

inspections in high hazard workplaces from 36,400 to 37,700.



The GAO report (page 20) also implies OSHA’s phone/ fax system for 

handling complaints from workers may not be effective since it prevents 

inspectors from actually visiting worksites. To the contrary, since it 

was implemented in 1996, the new system has been praised by workers and 

employers alike since the system provides immediate feedback to 

employees who complain to the agency about corrective action taken. If 

the complainant is still not satisfied with the action taken by an 

employer, an onsite investigation is scheduled. Without this system, 

employees would have to wait for several days to a week for a complaint 

inspection to be scheduled, while the hazard remained uncorrected. 

Given the transient nature of day laborer working conditions, OSHA 

believes the phone/ fax system is superior to the more traditional 

on-site approach of handling worker complaints.



Thank you for providing us with an opportunity to comment on your draft 

report. If you have questions, please contact Frank Frodyma on (202) 

693-1914.



Sincerely,



John L. Henshaw: 



Signed by John L. Henshaw:



GAO Comments:



1.	 See discussion in Agency Comments section of report.



2.	 We do not disagree with the number of investigations that OSHA’s 

cites in its comments. The data OSHA cites in support of increasing 

number of investigations include those conducted by telephone and fax. 

As a result, these numbers do not necessarily indicate increases in 

worksite visits.



[End of section]



Appendix VI: GAO Contacts and Staff Acknowledgments:



GAO Contacts:



Lori Rectanus, (202) 512-9847

Monika Gomez, (202) 512-9062:



Staff Acknowledgments:



Ronni Schwartz made significant contributions to this report, in all 

aspects of the work throughout the review. In addition, Lisa Lim and 

Torey Silloway assisted in gathering and analyzing information 

collected on our site visits; H. Brandon Haller helped develop our data 

collection instrument and our overall design and methodology; Julian 

Klazkin provided legal support; and Patrick DiBattista assisted in 

report and message development.



[End of section]



FOOTNOTES



[1] We selected these states based on a variety of state-specific 

factors, including perceived high numbers of day laborers; use of day 

laborers at nationally important locations, such as the World Trade 

Center and the Pentagon sites; and local efforts to enforce existing 

laws. 



[2] The term “contingent” has been used for many years to describe a 

variety of nonstandard work arrangements. It describes the impermanent 

nature of certain work arrangements, such as those (1) providing a 

relatively low level of job security, (2) with more variable or less 

predictable hours, and (3) that reflect a change in the traditional 

rights of workers and the benefits offered to them.



[3] The CPS surveys approximately 50,000 households each month. This 

information is the primary source of nationally representative data 

used to develop national employment and unemployment rates.



[4] See P.L. No. 75-718 §§ 6, 7 (1938).



[5] See P.L. No. 87-30 §§ 5(b), 6(a) (1961).



[6] Workers performing domestic service qualify for the minimum wage if 

they work a total of more than 8 hours a week for one or more employers 

or receive cash wages from one employer totaling at least $1,300 in 

2002. See 29 U.S.C. § 206(f); 66 Fed. Reg. 54047 

(Oct. 25, 2001).



[7] 29 C.F.R. § 1975.6.



[8] The OSH Act allows states to operate their own safety and health 

programs as long as they are determined by OSHA to be at least as 

effective as the federal OSHA program. Two of the state programs cover 

only state and local government employees.



[9] We also identified some day laborers who were black, eastern 

European, or female. Although available BLS data show most day laborers 

are white (88 percent), this is because ethnicity is asked separately 

from race. Thus, Hispanics will indicate first whether they are of 

white or black race, then separately indicate their ethnicity as 

Hispanics. Data from the survey show that Hispanics make up nearly 40 

percent of the entire day laborer population. 



[10] Abel Valenzuela, Jr., Working on the Margins: Immigrant Day Labor 

Characteristics and Prospects for Employment, Working Paper No. 2, 

Center for Comparative Immigration Studies, University of California-

San Diego, May 2000.



[11] We did find a small percentage of day laborers who had more than a 

high school diploma, usually obtained in their home country.



[12] Individuals working for temporary staffing agencies may be more 

likely to be documented and authorized to work since they generally 

have to provide documentation of their legal work status to their 

employer. However, we were told of instances where temporary staffing 

agencies did not ask for documentation or where day laborers provided 

fraudulent documentation.



[13] Several temporary staffing agencies were unable to provide 

specific information on race, age, and educational levels because they 

do not collect this type of information. 



[14] This report does not fully address the characteristics or 

vulnerability of day laborers who are not served by any group, as that 

information is difficult to obtain. For example, we heard of Chinese 

day laborers in New York working for storefront or “fly-by-night” 

temporary staffing agencies. These workers are likely to be as 

vulnerable as those day laborers working with the agencies we 

contacted. 



[15] See U.S. General Accounting Office, Contingent Workers: Incomes 

and Benefits Lag Behind Those of Rest of Workforce, GAO/HEHS-00-76, 

(Washington, D.C.: June 30, 2000). The Department of Health and Human 

Service’s 2002 Poverty Guidelines identifies the poverty threshold for 

a family of three as $15,020. 



[16] BLS does not publish information on day laborers separately, but 

while the number of other types of contingent workers has remained 

relatively stable since 1995, the number of day laborers has increased 

by 135 percent. In 2001, day laborers accounted for about 

2 percent of the contingent workforce.



[17] See footnote 10.



[18] U.S. General Accounting Office, Child Labor in Agriculture: 

Changes Needed to Better Protect Health and Educational Opportunities, 

GAO/HEHS-98-193, (Washington, D.C.: Aug. 21, 1998).



[19] BLS said that it can conduct the survey in person if necessary and 

does have the ability to conduct the survey in Spanish; however, some 

day laborers may not have a fixed address or may speak a language other 

than Spanish.



[20] Moreover, the characteristics of this workforce reflected in BLS’s 

data raise questions about the extent to which BLS reaches day laborers 

employed by temporary staffing agencies. For example, BLS’s 2001 data 

show that individuals working for temporary staffing agencies are 

predominately white and employed in clerical and administrative 

occupations, which does not reflect the characteristics of day laborers 

working for temporary staffing agencies.



[21] We determined that the day laborers who were the subject of our 

review generally do not appear to meet the legal criteria to be 

considered independent contractors under the OSH Act or FLSA. We 

determined this through our structured interview questions regarding 

the ownership of tools and transportation and the supervision of 

employees. 



[22] OSHA also responds to all fatalities, catastrophes, and cases of 

imminent danger. 



[23] In some states, the percentage of compliant-driven inspections is 

higher than the national average. 



[24] In one of our previous reports, Labor officials reported that 

there is a misperception among the foreign-born working community, 

actively promoted by those who do not want employees to cooperate with 

Labor, that cooperating with Labor will automatically result in an 

Immigration and Naturalization Service investigation. See U.S. General 

Accounting Office, Illegal Aliens: Significant Obstacles to Reducing 

Unauthorized Alien Employment Exists, GAO/GGD-99-33, (Washington, 

D.C.: Apr. 2, 1999).



[25] We reviewed a sample of complaint-based investigations in the 

temporary staffing industry for both OSHA and WHD and confirmed that 

none of the complaints came from day laborers.



[26] See, for example, Dan Kerr and Chris Dole, Challenging 

Exploitation and Abuse: A Study of the Day Labor Industry in Cleveland, 

Prepared for the Cleveland City Council, Ohio, Sept. 2, 2001. 



[27] See footnote 10. 



[28] At the local level, WHD offices have the authority to target 

construction. In 2001, about 3 percent of WHD’s investigations in 

construction were targeted.



[29] Although the client employer records an injury, the temporary 

staffing agency pays workers’ compensation for the injured worker.



[30] High rates of workers’ compensation payments indicate either a 

large number of injuries or potentially fewer injuries that incurred 

significant costs--an indicator of a potentially hazardous work 

environment.



[31] A court can assess a penalty if an employer is convicted of 

willfully violating recordkeeping requirements. 29 U.S.C. §§ 215(a)(5), 

216(a).



[32] 29 C.F.R. § 776.17.



[33] WHD might also inform the individuals of their private right of 

action to file suit in state or federal court.



[34] See 29 U.S.C. § 203(m); 29 C.F.R. pt. 531.



[35] These items can be deducted only if they are customarily provided 

and priced at a reasonable cost or fair value. 29 C.F.R. §§ 531.30-

.33,.36-.37. Check cashing fees or other such deductions are illegal in 

some states. 



[36] See 29 C.F.R. § 531.36(b).



[37] One temporary staffing agency we interviewed dispenses pay using a 

cash machine that charges a fee ranging from $1 to $1.99. A pending 

class action suit in three states alleges this practice is illegal. 



[38] 29 U.S.C. § 1841.



[39] Labor’s Office of the Solicitor commented that, depending on the 

particular facts, some waiting time may be compensable, such as when 

the waiting time occurs between the first and last tasks performed 

during a workday.



[40] Representatives from all of these agencies said that many local 

communities continue to make efforts to pass anti-loitering ordinances 

in an effort to prevent day laborers from gathering at street corners. 

In at least three states--Virginia, California, and Illinois--those 

ordinances or efforts have been struck down by the courts. 



[41] CHIRLA provides mediation and other services for six unorganized 

corners.



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