More Harm Than Good: Criminal Penalties for Wage Theft

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Wage theft is a crime.” Workers, their advocates, and even some policymakers have made this declaration repeatedly to emphasize the severity of violations of wage and hour laws. In recent years, this campaign has moved beyond mere rhetoric into increased criminal enforcement. Various obstacles to seeking remedies through the civil system have buoyed this expansion. This Article critiques criminal strategies to remedy wage theft. It first identifies three spheres of harm caused by wage theft: (1) to individuals laboring in low-wage industries; (2) to the workplaces where employers engage in wage theft, and (3) to communities to which impacted workers be-long. It then examines the criminal penalty provisions on the books in all fifty states and Washington, D.C., and analyzes their implementation in selected jurisdictions, using data gathered from various sources. This close examination of criminal penalties and their enforcement uncovers a deep disconnect between what criminal strategies seek to achieve–or are even capable of achieving—and the harms for which impacted workers seek remedies. The Article argues that various practices in the criminal system utilized in wage theft prosecutions, such as an emphasis on incarceration to coerce compliance and a rigid adversarial system, further entrench practices detrimental to the communities most impacted by wage theft and undermine efforts to engage workers collectively and to build coalitions across racial and immigrant justice movements. The Article identifies various anti-wage theft strategies that align more closely with remedying the harms experienced by workers. It concludes by renewing a call to center workers’ experiences in develop-ing anti-wage theft strategies and to invest in strategies that seek structural change, both within and outside of the legal system.

 

Alia Al-Khatib *

* Clinical Lecturer and Supervisor, Civil Practice Clinic, University of PennsylvaniaCarey Law School.