Rethinking Wage Theft Criminalization

Published April 13th, 2018 -  - 04.13.183

Ben Levin is an Associate Professor at the University of Colorado Law School.

“Wage theft” is an evocative turn of phrase, but how literally should we take it?

Used to refer to employers underpaying workers or denying them compensation to which they are entitled, the phrase increasingly crops up in conversations about work law and policy. Scholars, activists, and politicians have leveraged its powerful rhetorical force: theft is a crime and thus invokes issues of moral culpability and wrongdoing.

In Australia, though, legislators are taking the criminal framing seriously.  Instead of simply using the phrase as a means of describing the immorality or harmfulness of the practice, Australian legislators and activists are pushing to criminalize wage theft.  The current proposal would punish wage theft by up to ten years’ incarceration.

Treating wage theft as a criminal offense is hardly novel.  In the United States, employers who willfully violate the Fair Labor Standards Act may be prosecuted.  Yet, prosecutions in the U.S. are rare and carry lighter penalties.  The Australian proposal, with its potential for lengthy prison sentences, provides an opportunity to rethink the turn to criminalization.

Faced with growing economic inequality and increasingly contentious labor relations, it might be tempting to turn to the strong arm of criminal law (or to amp up existing criminal sanctions).  Globalization and the rise of the neoliberal economic order have seen the decimation of labor power.  In the United States, the decline in unionization and organized labor has been well documented and much lamented.  Criminal law, then, becomes an attractive vehicle: it’s expressive power is unrivaled, and it evokes discussions of morality, right, and wrong, rather than efficiency and profit maximization.

But, I think the turn to criminalization is a big mistake.  Certainly, the rhetorical force of deploying “wage theft” as a metaphor for employer misconduct is compelling, and worker advocates can use all the help they can get.  Yet, criminal law isn’t the answer, and the turn to criminalization in Australia reflects a troubling analogy to U.S. criminal policy.

Put simply, who actually benefits from incarcerating employers?  If the goal is for workers to benefit, and the point of state intervention is to level the playing field between labor and capital, it’s not clear at all that criminalizing wage theft advances those objectives.  Or, even if it does, it’s not at all clear that it’s the best way of achieving those ends.

As I see it, there are three reasons to take the Australian approach to criminalize wage theft.  And, each of those three justifications is severely deficient.

First and foremost, the reason to criminalize wage theft is to help workers who have been harmed by bosses.  If we want to make workers whole or improve their lot, addressing wage theft certainly should be a priority, but does incarcerating an abusive boss actually make the worker whole?  It might send a message that the employer has done wrong and that the workers are in the right.  And, in so doing, it might be a way of reifying official support for workers.  But, if the issue is that the worker hasn’t been paid, sending her boss to prison doesn’t put money in her pocket or put food on the table.  Whether criminally or civilly, Australia, the U.S., or other nations could take steps to ensure that workers get the money that’s owed them (or more) in a range of ways.  Throwing someone in prison doesn’t accomplish that end.

Second, criminalization might be justified on grounds of deterrence.  That is, employers who otherwise might cheat their workers will be deterred from doing so because of the possibility of prosecution and incarceration.  There is a significant literature that problematizes the claim that criminalization and harsh criminal punishment deter bad conduct.  But, even if we accept the logic of deterrence, why do we need criminal law?  Again, couldn’t large cash penalties and enforcement of workplace regulations by the state achieve deterrent effect?  And, if advancing worker interests is a primary goal, then punitive damages (or some other remedy sounding in restorative justice) might increase deterrence while also helping the harmed party in a way that incarceration simply cannot.

Third, criminalizing wage theft might be justified on equality-based grounds.  That is, the law treats property theft as a crime; why not treat more affluent defendants the same as we treat the less affluent, and why privilege theft that occurs in a workplace setting?  In some sense, this is part of the justification for harsh criminal treatment of corporate or “white collar” crime – poor people are subject to the full force of state violence when they fall afoul of the law; why shouldn’t rich people be?  This argument is fair as far as it goes: inequality is a defining feature of the criminal system.  But, why should the answer be to equalize down?

We might address inequality by punishing affluent white defendants more harshly or denying them process.  That would be a reasonable approach if the real problem with the system were the inequality itself.  But that approach assumes that it would be alright for the treatment of marginalized defendants to become the norm for everyone.  I think that’s the wrong approach.  As a practical matter, it’s unrealistic to assume that all law enforcement actors will ignore political and economic incentives and suddenly begin targeting privileged defendants.  But, even if they did, that wouldn’t change the horrible realities of the U.S. criminal system: lengthy sentences; dehumanizing prisons; and debilitating collateral consequences.

Ultimately, the push to criminalize wage theft provides an important opportunity for labor activists to reexamine their commitments.  As I’ve written elsewhere, the impulse to use criminal law for “progressive” ends is dangerous; it serves to bolster the carceral state and all of its deep structural flaws.  Wage theft is a serious problem.  There can and should be solutions that don’t feed the ravenous social appetite for more criminal punishment.

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