Wage theft: Difference between revisions

Wage theft is the illegal withholding of wages or the denial of benefits that are rightfully owed to an employee. Wage theft, particularly from low wage legal or illegal immigrant workers, is common in the United States.^[1] Wage theft can be conducted through various means such as: failure to pay overtime, minimum wage violations, employee misclassification, illegal deductions in pay, working off the clock, or not being paid at all. These violated rights have been guaranteed to workers in the United States since 1938 by the Fair Labor Standards Act (FLSA).^[2]

Federal law requires employers to keep detailed records regarding the identity of workers and hours worked for all workers who are protected under federal minimum wage laws.^[3][4] Most states require that employers also provide each worker with documentation every pay period detailing that worker's hours, wages and deductions.^[5] Arkansas, Florida, Louisiana, Mississippi, Nebraska, South Dakota, Tennessee and Virginia do not presently require this documentation.^[6] A 2008 study of wage theft issues for workers in Illinois, New York, and California reported that 57% of low wage workers did not receive this required documentation and that workers who were paid in cash or on a weekly rate were more likely to experience wage theft.^[7] Anecdotal evidence suggests that tip theft, which is a legally complex issue distinct from wage theft and not necessarily under the control of the same laws governing the payment of wages,^[8] may also be common in instances where employer record keeping does not comply with the law.^[9]

According to the FLSA, unless exempt, employees are entitled to receive overtime pay calculated at least time and one-half times pay for all time worked past forty hours a week. Some exemptions to this rule apply to public service agencies or to employees who meet certain requirements in accordance to their job duties along with a salary of no less than $455 a week. Despite regulations, there are many employees today who are not paid overtime due them.^[7][12]

In 2009, reform placed the new federal minimum wage at $7.25. Some states have legislation that sets a state minimum wage. In the case an employee is subject to both federal and state minimum wage acts, the employee is entitled to the higher standard of compensation. For tipped employees, the employer is only required to compensate the employee $2.13 an hour as long as the fix wage and the tips add up to be at or above the federal minimum wage. Minimum wage is enforced by the Wage and Hour Division (WHD). WHD is generally contacted by 25,000 people a year in regards to concerns and violations of minimum wage pay.^[7][13] A common form of wage theft for tipped employees is to receive no standard pay ($2.13 an hour) along with tips.^[12]

Misclassification of employees is a violation that leaves employees very vulnerable to other forms of wage theft. Under the FLSA, independent contractors do not receive the same protection as an employee for certain benefits. The difference between the two classifications depends on the permanency of the employment, opportunity for profit and loss, the worker’s level of self-employment along with their degree of control. An independent contractor is not entitled to minimum wage, overtime, insurance, protection, or other employee rights. Attempts are sometimes made to define ordinary employees as independent contractors.^[7][12]

Misclassification in the United States is extensive. In New York state, for example, it was found in a 2007 study that approximately 704,785 workers, or 10.3% of the state’s private sector workforce, was misclassified each year. For the industries covered in the study, average unemployment insurance taxable wages underreported due to misclassification was on average $4.3 billion for the year and unemployment insurance tax underreported in these industries was $176 million.^[14][15]

Employees are subject to forms of wage theft through illegal deductions. Trivial to sometimes fabricated violations in the workplace are used to validate deductions. Any deduction that brings an employee to a level of compensation lower than minimum wage is also illegal. In many states, employers are required to issue employees documentation of deductions along with earnings. Failure to issue this documentation is generally prevalent in working places subject to wage theft.^[7][12]

The most blatant form of wage theft is for an employee to not be paid for work done. An employee being asked to work overtime or working through breaks without pay is being subjected to wage theft. In the most extreme cases, employees report receiving nothing.^[7][12] In some cases, the legal status of the workers can enable employers to withhold pay without fear of facing any consequences.^[16]

Putting the pressure on injured workers to not file for workers’ compensation is frequently successful.^[1] Employees are often confronted with threats of firing or calls to immigration services if they complain or seek redress. Workers are often denied time off or vacation time that they have acquired or denied pay for sick leave or vacation time. Under-staffing is another form of wage theft. While workers may be compensated within the boundaries of the FLSA, they are forced into completing a task designed for a larger work force.^[7] In Australia another form of wage theft is the failure of employers to pay the mandatory minimum contribution to employee's superannuation fund. Between 2009 and 2013 the Australian Tax Office recovered A$1.3 billion in unpaid superannuation which is estimated to be only a small portion of total superannuation which is unpaid.^[17] 

A 2009 study based on surveys of over 4,000 low wage workers in Chicago, Los Angeles, and New York City found that wage theft from low wage workers in large cites in the United States was severe and widespread. Incidence varied with the type of job and employee. Sixty-eight percent of the surveyed workers experienced at least one pay related violation in the week prior to the survey. On average the workers in the three cities lost a total of $2,634 annually due to workplace violations, out of an average income of $17,616 which translates into wage theft of 15 percent of income. Extrapolating from these figures, low wage workers in Chicago, Los Angeles, and New York City lost more than $2.9 billion due to employment and labor law violations.^[7] Nationally it is estimated that workers are not paid at least $19 billion every year in overtime^[18] and that in total $40 billion to $60 billion are lost annually due to all forms of wage theft.^[19] This compares to national annual losses of $340 million due to robbery, $4.1 billion due to burglary, $5.3 billion due to larceny, and $3.8 billion due to auto theft in 2012.^[20]

In studies of employment markets, women and foreign-born populations experienced inflated rates of wage theft violations. Within the foreign-born population, women were at a much greater risk for wage violations than their male counterparts. Undocumented workers or unauthorized immigrants stood at the highest risk levels. Education, longer tenured employment, and English proficiency proved to be influential factors in employee populations. All three variables reduced the probability of wage theft for the aforementioned demographics. Workplaces where the compensation was paid in one weekly flat rate or in cash saw a higher instance rate of wage theft. Workplaces with less than 100 employees also saw a higher instance rate of violations rather than larger business. In one study, the manufacturing industry, repair services, and private home employment were at the highest risk for violations at the workplace. Home health care, education, and construction saw the lowest levels of wage theft. Restaurants, grocery stores, retail, and warehousing all fell around the median.^[7][21]

On November 19, 2011, Warehouse Workers for Justice helped Wal-Mart warehouse employees file their fourth class action lawsuit against the warehouse companies. While Wal-Mart is not a direct defendant, an argument is being made that Wal-Mart has created this culture amongst the companies it works with. The first lawsuit filed was in 2009. The workers argue that poor record keeping and broken promises have led to workers receiving less than minimum wage. Workers have also been denied paid vacations that they were originally promised upon contracting.^[22] In a report released on November 26, 2011, a Palm Beach County organization, People Engaged in Active Community Efforts (PEACE), sent postcards to Macy’s and Bealls executives as a form of protest. The Florida Retail Federation had recently proposed a bill to block a wage theft ordinance in their county. The ordinance was intended to create a system that would speed the investigation and processing of wage theft reports.^[23]

When the Wage and Hour Division (WHD) receives reports of violations, it works to ensure that employers change their work practices and pay back missed wages to the employees. Willful violators can face fines up to $10,000 upon their first conviction with imprisonment resulting from future convictions. In regards to child labor laws, an employer can face a fine of up to $11,000 per minor. In 2012 the Wage and Hour Division collected $280 million in back wages for 308,000 workers.^[24] As of 2014, there are 1,100 federal investigators for 135 million workers in more than 7 million businesses.^[25]

On February 28th, 2010, Miami-Dade County, Florida became the first jurisdiction in America to ban wage theft when an ordinance passed unanimously by the county commission ten days earlier went into effect. Prior to the ordinance being passed, wage theft was called "the crime wave that almost no one talks about".^[26]

• Executive summary "Houston Wage Theft Report" A Report by the Houston Interfaith Worker Justice Center, May 2012
  • Full report "Houston Wage Theft Report"
• Executive Summary "Broken Laws, Unprotected Workers"
  • "Broken Laws, Unprotected Workers"
  • Alternative link "Broken Laws, Unprotected Workers"