Going Beyond the Minimum
By Shannon Gleeson – May 6, 2016
This month both California and New York passed path-breaking legislation to increase the minimum wage, up to $15 by 2022 for California and by 2018 for the slightly more ambitious Empire State. Opponents, especially in low-wage industries, decried the negative impact the change will have on their purportedly slim profit margins. Meanwhile, advocates praised the move, citing widening inequality and soaring corporate profits as evidence of needed change.
Some advocates are critical, calling the change too little, too late and too slowly phased in; they note the higher wage is still far below a living wage in many of the most expensive housing markets in these states.
But there is far too little discussion on how exactly this change, which at least labor leaders agree is moving in the right direction, will be implemented on the ground. Wage theft – the phenomenon of people not getting paid for their work – is ubiquitous and, some argue, the epidemic that no one is talking about. A 2009 study of low-wage workers in Chicago, Los Angeles and New York City found that minimum wage violations were one of the most commonly reported worker complaints, with 26 percent of workers surveyed paid less than the legally required minimum wage and 60 percent reporting underpayment of at least $1.
In my own study of low-wage workers contesting workplace abuse in the San Francisco Bay area, I found that over a third of all survey respondents, and 59 percent of undocumented claimants, reported having experienced a wage and hour violation, which also includes lack of overtime and missed breaks that are mandated by the state.
What evidence do we have that an increase in the legal minimum wage will translate into actual benefits for the most vulnerable workers – including temp workers, day laborers, domestic workers, janitorial staff, berry pickers and those in food service – and what can we do to move toward this reality?
The last four decades have seen what University of North Carolina sociology professor Arne Kalleberg describes as a “rise in polarized and precarious employment systems,” full of “bad jobs” characterized by “low pay, few benefits and high levels of workplace violations.” Many of these bad jobs have little effective government oversight, are rarely unionized, have unpredictable schedules and offer little upward mobility.
Part of the problem is that not all workers have equal access to the law and the benefits that new rights and protections afford. University of Nevada Las Vegas law professor Ruben Garcia points to these “marginal workers” as those who face particular challenges in realizing their rights under U.S. labor and employment law – including undocumented immigrants, women and racial and sexual minorities. Undocumented workers, in particular, have limited remedies for injustice under the law and live under the constant threat of deportation.
While much of the advocacy efforts have focused on essential outreach and education, to inform workers of their rights, even workers in the know can face major barriers in realizing those rights. Indeed, filing a claim is not cost-neutral. Workers in my study valued their time, but had little to spare; even those who initially came forward often walked away from their claim, or found that they had only a slim chance of winning. Workers cited the inability to take time off of work to chase down lawyers and government agencies, family obligations and childcare and the emotional toll of battling a seemingly broken bureaucracy.
In a perfect world, a single bureaucracy would examine the multiple injustices that low-wage workers are subject to on a daily basis. However, our labor standards enforcement system is sprawling and messy, much like our work lives. Federal and state bureaucracies seldom coordinate with one another, and it is often left up to the claimant and his or her legal advocate to decide which route to take and where to invest limited energies in this web of enforcement.
Access to legal counsel is often an optional part of the claims process, but can be crucial for those workers with limited education and English proficiency, or who are simply unfamiliar with how the bureaucracy works. Access to pro bono or “low bono” legal counsel is limited, and unlike in the criminal arena, civil law generally provides no right to counsel. Workers’ rights clinics and other worker centers across the country are doing amazing work, with very limited resources and capacity. Private attorneys often have little to gain from a typical wage and hour claim and are unlikely to take one on.
While wage theft by all accounts creates unfair business competition and ignores the true costs of “high road” employment, it is actually quite common. That is why as we create new laws to increase rights for workers, we should invest in mechanisms to make them a reality. This includes local ordinances that would revoke the business license of employers who refuse to pay, and institute criminal penalties to noncompliant employers.
It also means pouring resources into building worker power and addressing global inequality. This includes investing in worker advocacy and fully functional enforcement agencies. We must also consider how to empower workers, both through traditional labor unions and new forms of alt-labor, to fight for dignity and justice. Let’s also refuse to turn a blind eye to the many predatory systems that disadvantage low-wage workers and that define what Columbia University sociologist Saskia Sassen describes as the “brutal logic of contemporary capitalism.”
Wage theft is a symptom of the imbalance of power between workers and employers who often operate with impunity. It is also, however, a reflection of the race to the bottom in an era where on-demand labor can be outsourced. As we tinker with laws that bring us to the outer edge of a meager living wage, let us consider what it will take to get there and beyond.
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