Every year millions of Americans are victims of wage theft throughout the United States.
Kim Bobo is the executive director of Interfaith Worker Justice and the author of “Wage Theft in America.” She says two of the most common ways that wage theft occurs are paying employees minimum wage and overtime violations. The third most common wage theft tactic is when an employer intentionally refers to a person as an “independent contractor” instead of an employee.
While all 50 states have wage theft laws, a report from the Progressive States Network says the success of some of these laws is less than ideal.
In its report, the group demonstrates on a map that in all 50 states, stealing $2,000 from someone off the street could land a person in jail, but stealing the same amount of money from a paycheck will likely land a person in jail only in about 15 states.
The highest “grade” a state received for its wage theft laws was a “C,” and the group only gave out two of those top grades, to New York and Massachusetts. Four states received a “D” grade, but the majority of the country was given an “F” or “F minus.”
One of the states to receive an “F minus” was Texas.
Until 2011, a loophole existed in the Texas criminal code that allowed employers to get away with paying employees only partially for their work without facing criminal charges. In response to this, an Austin-based group called the Workers Defense Project lobbied for an amendment be added to the state’s wage theft code.
As a result of that effort, the city of El Paso became the first city outside of Austin to actually indict an employer for stealing wages using the new amendment.
According to a press release from the Labor Justice Committee and Paso del Norte Civil Rights Project, local employer John Najera was arrested and indicted for criminal wage theft. The El Paso businessman, who owns Sun-City Roofing, promised to pay employee Esteban Rangel more than $2,000 to replace a roof, but never did.
“The homeowner cooperated with the police and told me that she was satisfied with the roof and that she had paid Najera. But after I finished the work, Najera kept refusing to pay me,” said Rangel.
“The last thing he told me was he wasn’t going to pay me ‘because he didn’t want to.’ I did my job and I did it well! But Najera thought he could get away with keeping the money he legally owed me. This arrest shows him, and all El Paso employers, that there are serious consequences to stealing from your workers.”
Jed Untereker is an attorney with Paso del Norte Civil Rights Project who represented Rangel. He agreed with Rangel’s comments that this case was a big win for employees. “It’s huge because we’re finally treating the stealing of someone’s wages the same way we treat someone stealing from Target or Albertsons or [any] store,” he says. “The consequence for an unscrupulous employer is you’re going to be thrown in jail if you don’t pay your workers what they’re owed.
The wage police
Currently, El Paso is the only city in Texas with an official wage theft task force, which is comprised of the El Paso Police Department, the El Paso Sheriff’s Office, El Paso County and District Attorneys, the Labor Justice Committee and the Paso del Norte Civil Rights Project. It’s believed that Rangel’s case has only gone to the indictment stage because worker advocates were able to present the case in front of the Wage Theft Task Force.
Sen. Jose Rodriguez (D-El Paso) is a member of the wage theft task force and author of the 2011 bill that closed the loophole in the criminal code. He said that while implementation of SB 1024 is a challenge, progress is being made.
“Because non-payment of wages is especially common for low-wage workers, it is a major quality-of-life issue. Working families with no margin for temporary hardship cannot afford to miss even one paycheck.”
While Rangel found success in spotlighting the theft perpetrated by his employer, worker rights advocates from across the state have expressed that they are having a difficult time getting local police departments and district attorneys to prosecute wage theft cases. Advocates explained that it’s difficult to get police departments to file reports and even harder to convince a district attorney to prosecute a case, since these cases are considered low priority.
Still, workers rights advocates keep pushing for better enforcement of the law.
In Austin, Workers Defense has worked to arrest several employers, which led to the indictment of at least three employers in the past three years. Patricia Zavala is the workplace justice coordinator for Workers Defense. She says that some employers were indicted before the amendment passed in 2011 thanks to a collaborative effort between Workers Defense, the Austin Police Department, and the county attorney.
She said that in other cities, including El Paso, workers have to take their case to civil court if they want to do anything about it. Since most of these people don’t have the financial resources to go to court, they ended up losing wages representing weeks or sometimes months of work.
In January, the Memphis City Council considered creating a General Sessions Court-based process that would be used for settling wage theft complaints. Complaints that sparked the new process came after workers alleged they were not being paid overtime and had “fees” taken out of their paychecks. Some workers even alleged their employer would stop the work clock when there were no customers.
GOP and employers: Repeal the law
Unfortunately, the battle to beat wage theft elsewhere has been more of an uphill battle than in El Paso. Earlier this year the Shelby County Commission voted against an ordinance that would have fined employers $50 per each wage theft occurrence. Part of the concern was that legitimate businesses may have to defend themselves against faulty claims.
“There are disgruntled employees, and if we create an easy avenue to file a claim, we’ll have to defend ourselves twice,” Mike Miller, owner of Patrick’s restaurant and president of the Memphis Restaurant Association says. “We want a response on how the Department of Labor will review this because state and federal law supersedes local law in general.”
GOP lawmakers in New York tried to repeal the wage theft law for that very reason in 2010. They said that the mandate costs businesses to waste millions of dollars and doesn’t lead to the creation of new jobs or help current employees.
Patrick Purcell is a spokesman for United Food and Commercial Workers Local 1500 in New York, which championed a wage theft measure in 2010. He said «The only people who have to concern themselves with this law are thieves,» adding that employers who withhold wages end up with an unfair leg up against their competitors.
«This helps make sure that good, responsible employers are not losing out to less reputable ones. The real cost here is when good employers do the right thing and other employers are screwing them over.»