More states should follow new Colorado policy on wage theft

More states should follow new Colorado policy on wage theft
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Something important for workplace justice quietly happened in Colorado this month, unheralded amidst the roar of our national politics. Governor Jared Polis signed a bill strengthening the penalties for employers who commit wage theft. In Minnesota, even stronger legislation was sent to Governor Tim Walz this week. Now other states should follow their lead.

Why does this matter? Because workers are cheated of pay every day. The incidence of workplace abuse is high. When people do not get paid, it has a huge impact on their lives, as we saw in the federal shutdown. Our laws too often treat employer crimes with a light touch, levying only minimal penalties amounting to little more than a slap on the wrist. The new law in Colorado appropriately treats wage theft with the seriousness it deserves.

Worker advocates started using the term “wage theft” awhile ago. The phrase began to take hold more broadly after activist Kim Bobo wrote a 2011 book by that name. Since then, “wage theft” entered the vernacular and eventually legal terminology, as worker exploitation and economic inequality have become high profile national issues. Of course, “wage theft” sounds more visceral and less wonky than “nonpayment of wages” or “violations of wage law,” but this term is not just better marketing or political framing, it is a more accurate description of what happens. I work 60 hours a week. You do not pay me or pay only a portion of what you owe or a fraction of what is required by law. You stole my work. That is theft.

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It took awhile for people to wrap their minds around this, as we tend to think of theft as taking something that someone owns, something that you could actually touch and seek to recover, such as cars, cash, wallets, laptops, or other valuable objects. But work by people is also valuable. The legislation in Colorado perfectly demonstrates this conceptual leap. Seeking to combat both wage theft and human trafficking, the law notes the need “to recognize labor as a thing of value that can be subject to theft” and states that “to protect all workers, it is necessary to close loopholes that allow for the exploitation of human labor for profit.”

This bill cuts straight to the heart of the matter. Labor is a thing of value. Exploitation of human labor for profit must stop. It is powerful to eyeball the actual legislation. State bills are generally drafted in a particular way. Although the specifics vary, the old language to be removed is bracketed or crossed out, and new language to be added in is in italics, uppercase, or underlined. In the Colorado bill, you can see pretty toothless penalties maxing out at $300 or $500 and up to 30 days in jail crossed out. The conduct is redefined in uppercase as theft. This means it is a felony if the amount of money involved is over $2,000. The bill covers only willful or intentional acts, preventing its use for prosecution of honest mistakes.

Previously, an employer would receive a harsher sentence for stealing an employee cell phone than for stealing his wages, according to Michael Dougherty, the Boulder County district attorney whose office played a leading role in the legislative effort, along with key support from unions, advocates, and other district attorneys. He said, “This law will allow us to better combat crimes against workers, including labor trafficking.” His office is not the only one starting to take wage theft and other employer crimes more seriously. Many prosecutors across the country have begun to prosecute employers for a host of criminal acts against their workers.

A Minnesota employer was charged with labor trafficking and accused of threatening workers, underpaying them, and committing insurance fraud. A Houston homeowner was charged for refusing wages for a worker for repairs following Hurricane Harvey. A Maine construction contractor was charged with workplace manslaughter when an untethered roofer died on the job. Some states have been leaders in this work. In New York, the state attorney general and the Manhattan district attorney have brought similar cases for years. In California, prosecutors have a long history of this work.

Wage theft is a little like a canary in a coal mine. Companies that underpay employees are often also violating a bucket of laws as they cheat on taxes, underreport workers on unemployment insurance forms, flout employee compensation laws, permit or commit discrimination and harassment, or recklessly endanger the lives of employees. The new Colorado statute and the Minnesota proposal should help send a strong message to employers about the importance of following workplace laws. They should also send a strong message to hard working people that work is a thing of value and that intentionally stealing it is theft. More states should also do the same.

Terri Gerstein is director of the State and Local Enforcement Project at the Harvard Labor and Worklife Program. Follow her on Twitter @TerriGerstein.