From 1976 to 2002, I worked as a Compliance Specialist for the U.S. Department of Labor’s Wage and Hour Division. In that capacity, I enforced about 80 different laws, including Federal minimum wage, overtime, child labor, migrant farm labor, family and medical leave, and equal pay and age discrimination. In 1998, I first learned about complexity, and the dynamics of complex adaptive human systems. Complexity has given me a powerful perspective on the forces influencing employer behavior, and on ways that regulatory compliance agencies like Wage and Hour, should plan and deploy their limited resources. Over the intervening years, I have on several occasions corresponded with my former DOL colleagues about the complexity perspective, and their work to influence outcomes towards broader compliance.
Recently I received an email from two former colleagues, with a brief comment about a particular work visa program, enforced by Wage and Hour. This bit of law applies to non-agricultural workers, and is most commonly used to let in foreign seasonal workers at various hospitality businesses. You would think that Americans could and would fill the jobs at beachfront amusement parks, hotels, and restaurants. You’d be wrong. Despite concerted efforts to educate and inform employers and employees, patterns of violation are still widespread. The possibility of litigation and significant penalties still do not stop employers from violating the law.
Following is my response to my DOL friends, written from a complexity perspective:
I would presume that…we have tipped H2B workers in Summer seasonal employment, most likely at the shore, and most likely in hotel, restaurant, amusement, and related businesses.One key characteristic of complex human systems, is something we’ve talked about for years, with health care, and also low wage employers. We humans are always impacted by what are called “attractors of meaning.” Think of these as “idea magnets” whose perceived meaning and consequences pull and push us, in varying degrees, over time. The establishment and imposition of structured processes (like how to do one’s job, or a set of laws and regs) provides some limits and boundaries.In a perfect world, maybe everyone would do exactly what the system and rules intended. But that isn’t how nature works, or how humans work. The variations in our understanding, and the impact of multiple Attractors, lead us to act in ways that confound or contradict the system and the rules/laws. The motivation of more money, lower business costs, shrinking attendance, post-hurricane rebuilding delays, and so on, are all powerful. When these perceived factors outweigh the concern or fear of the law, more violations are likely.What will create desired change (compliance, for example)? Can Wage and Hour have a better and bigger Attractor of Meaning to motivate employers and employees? Can you ever have enough investigators and lawyers to get all the violators? Of course not. Is education and outreach a sufficient strategy? When we began in healthcare, ed/out was novel, and carried the promise of fewer investigations, less hassle, and lower costs through avoided litigation. But we saw in the data over time, how increased cost pressures resulted in more recidivism. People in the healthcare sector adapted to the changes in their economic environment.If you can not control the system, and you can not force sufficient compliance, what are your options? The challenge is to think and act as the employers and employees do. But you are perhaps more bounded and constrained.Who are the major originating countries? What does WH currently do to inform workers and their families before they come here? Are there tactics of espionage and counter-insurgency that can be adapted and deployed (e.g., using planted undercover WH people as H2B workers)?We’d like to think that the rule of law makes problem-solving easier. With known knowns, we use known best practice. With known unknowns, we call on the experts. But with unknown and emergent unknowns, the best we can do is make educated guesses, and try “safe to fail” experiments. We then watch, learn, and amplify the good results, while dampening the bad ones. It is always back and forth, until the range and power of the attractors settle into coherent, stable, and predictable patterns that we can manage.You can’t “master” chaos or complexity. But you can learn what it is, and what works best in response to it (agility and adaptability). What is Wage and Hour doing in this area?Thanks, dear friends, for reminding me of my Wage and Hour heritage 🙂Have a great day,Bruce