Catherine Fisk is the Barbara Nachtrieb Armstrong Professor of Law at UC Berkeley Law, where she teaches and writes on the law of the workplace, legal history, civil rights and the legal profession. She is the author of dozens of articles and four books, including the prize-winning Working Knowledge: Employee Innovation and the Rise of the Corporate Intellectual Property, 1800-1930, and Labor Law in the Contemporary Workplace. Her research focuses on workers at both the high end and the low end of the wage spectrum. She has written on union organizing among low-wage and immigrant workers as well as on labor issues in the entertainment industry, employee mobility in technology sectors, employer-employee disputes over attribution and ownership of intellectual property, the rights of employees and unions to engage in political activity, and labor law reform. She is the co-author, with UCI Law Professor Ann Southworth, of an innovative interdisciplinary casebook, The Legal Profession. Her current public service includes membership on the SEIU Ethics Review Board, the Board of Directors of the Wage Justice Center, and committees of the Law & Society Association. Prior to joining the founding faculty of UC Irvine School of Law, Fisk was a chaired professor at Duke Law School, and was on the faculty of the University of Southern California Gould School of Law and Loyola Law School in Los Angeles. She practiced law at a boutique Washington, D.C. firm and at the U.S. Department of Justice. She received her J.D. at UC Berkeley, and an A.B., summa cum laude, from Princeton University.
The working poor need more than an increase in the minimum wage. They need effective enforcement of the wage laws already on the books. The ideal would be to expand to all workers the long-established principle of the mechanics’ lien, which allows any worker who performs labor to improve real property to assert a lien against the property for unpaid wages. On October 11, 2015, California’s governor signed into law SB 588, the Fair Day’s Pay Act, which is a partial solution to the problem of wage theft, although it does not go far enough to create a wage lien, like a mechanics’ lien, to remedy wage theft. The difference between the law that was enacted and the wage lien law that was first proposed reveals much is still to be done.
Wage theft is endemic in the low-wage industries where immigrants and the working poor toil. While California has some of the most protective laws in the country, in Los Angeles alone, low-wage workers lose an estimated $26.2 million to wage theft every week.
Thousands of workers annually file claims for earned unpaid wages with the office of the Labor Commissioner of the California Department of Industrial Relations. The California Labor Commissioner often issues an order against the corporate entity that hired the worker only to discover that the corporation is defunct and the judgment is uncollectable. In many cases, the owners anticipate wage claims and transfer the corporation’s assets to other corporations or to themselves so that they can continue to operate the business and bilk their employees and other creditors. A study by the UCLA Labor Center and National Employment Law Project found that only 17 percent of workers who won wage judgments from the California Labor Commissioner between 2008 and 2011 were able to collect even a penny of the judgment.
Since 2013, the Labor Commissioner and the nonprofit Wage Justice Center have had a partnership to enforce the thousands of unpaid wage judgments, but it takes hundreds of hours for attorneys and investigators to trace the assets from the judgment debtor to a corporation or individual that can be held liable for the unpaid wages.
The solution is to streamline enforcement of wage claims. Mechanics’ lien laws in most every state offer an excellent model. Decades ago, construction contractors successfully urged legislatures to adopt mechanics’ lien laws because contractors often had difficulty collecting payment for work performed. The mechanics’ lien law allows the contractor or the construction worker to assert a lien against the property to secure payment. Because the lien is against the property, the unpaid wages can be collected even if the corporation has gone out of business or transferred its assets to an individual or another corporation. Nor does enforcement depend on hiring a lawyer or filing litigation. It’s easy to file a mechanics’ lien and the vast majority of mechanics’ liens are resolved through negotiation. Once the worker or contractor files the lien and proves that wages are owed, the landowner (often a bank) has a strong incentive to insist that the person or entity that employed the worker pay the claim so that the lien can be lifted and the property can be refinanced or sold.
The Wage Justice Center, with a group of dozens of labor and community organizations, persuaded the California Assembly to enact a bill (AB 2416) in 2014 that would have extended the mechanics’ lien principal to any worker. Car wash workers, restaurant workers, and other workers in industries where wage theft is endemic finally would have the same rights that plumbers and bricklayers have to ensure payment.
California finally passed a weaker bill, the Fair Day’s Pay Act (SB 588). SB 588 provides the Labor Commissioner the power that law currently gives other judgment creditors to levy on the property of judgment debtors. Under the Fair Day’s Pay Act, the Labor Commissioner can levy on the property of any person or company that has in its possession or control any of the assets of the employer that owes the unpaid wages. The Fair Day’s Pay Act also provides that employers that fail to pay wage judgments may lose their business license unless they post a bond so that there will be money in the future to pay judgments for unpaid wages.
The Fair Day’s Pay Act gives the Labor Commissioner the power to ensure that the wage judgments it issues can be enforced against a person or entity that is responsible for the wage theft and actually has the assets to pay the judgment. While it still depends on an understaffed state agency to pursue the claims, and is therefore not as powerful as the mechanics’ lien laws that allow any construction contractor or worker to ensure payment, at least it is the first step toward ensuring that the minimum wage – whether it is $7.25 or $15 per hour – is actually paid.
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April 18
Disneyland performers file petition for unionization and union elections begin at Volkswagen plant in Tennessee.
April 18
In today’s Tech@Work, a regulation-of-algorithms-in-hiring blitz: Mass. AG issues advisory clarifying how state laws apply to AI decisionmaking tools; and British union TUC launches campaign for new law to regulate the use of AI at work.
April 17
Southern governors oppose UAW organizing in their states; Florida bans local heat protections for workers; Google employees occupy company offices to protest contracts with the Israeli government
April 16
EEOC publishes final regulation implementing the Pregnant Workers Fairness Act, Volkswagen workers in Tennessee gear up for a union election, and the First Circuit revives the Whole Foods case over BLM masks.
April 15
The Supreme Court ruled in favor of bakery delivery drivers in an exemption from mandatory arbitration case; A Teamsters Local ends its 18-month strike by accepting settlement payments and agreeing to dissolve
April 14
SAG-AFTRA wins AI protections; DeSantis signs Florida bill preempting local employment regulation; NLRB judge says Whole Foods subpoenas violate federal labor law.