ITHACA, N.Y. – Employers fail to pay tens of thousands of dollars owed to Tompkins workers each year, according to a panel of experts and advocates organized by the Tompkins County Workers’ Center and the Worker Institute at Cornell’s ILR School.
Part of the reason the problem is so widespread is that penalties for carrying out wage theft are civil. Employers who fail to pay minimum wage, deny overtime pay, or misclassify workers to lower compensation might decide the risk is worth taking if the main penalty on the table is repayment of wages owed or a fine, panelists at Tuesday’s “How to Fight Wage Theft” event said. But through partnerships between labor organizations, state agencies and prosecutors, enforcement may start to look tougher in New York.
Asked whether wage theft is criminal, Matthew Van Houten, Tompkins County district attorney, answered unequivocally. “Yes – it is criminal, it should be criminalized, it should be prosecuted.”
Speaking on Tuesday’s panel, Van Houten said in over 20 years of work as an attorney in Tompkins County he has never seen a case of wage theft prosecuted in a criminal courtroom. But that doesn’t mean it’s not happening. The Workers’ Center recently said it handles between 80 and 100 cases of wage theft every year, and that only scratches the surface of what is happening in the community.
Typically, when a worker is not paid the wages they are owed their complaint is processed through agencies including the Department of Labor and National Labor Relations Board, often with advocacy centers like the Tompkins County Workers’ Center serving as intermediaries.
Civil enforcement can be a powerful tool for protecting workers’ rights. According to Milan Bhatt, assistant deputy commissioner for worker protection for the NYS DOL, his agency has recovered more than $35 million in unpaid wages each of the past four years across the state. Bhatt said the sums recovered by the DOL, though, are a fraction of total wages owed to workers.
Panelists acknowledged that agencies tasked with worker protection are underfunded and dependent on workers’ centers, unions, and other labor organizations to bring workplace violations to their attention and to organize workers to lodge complaints. For vulnerable groups, including undocumented immigrants, temporary workers, and independent contractors, it can be especially difficult to access support when employers are exploitative.
In Tompkins County, Bhatt said, “almost all of our cases are in Ithaca.”
Most likely, that’s not because Ithaca employers are particularly exploitative; it’s because the Tompkins County Workers’ Center and Worker Institute are located in Ithaca, so workers treated unfairly have better access to protections.
“Where are we not covering all the ground we can?” Bhatt asked. “We’re doing a pretty good job, we think, but we’re not even scratching the surface.”
Panelists agreed fighting wage theft requires a multi-pronged approach: strengthening enforcement agencies, passing stronger worker protection legislation, empowering workers to organize and advocate collectively for their rights. Given limited resources, state and local agencies and organizations are turning to creative partnerships to achieve these goals, including partnering with prosecutors and police.
Van Houten said wage theft entered his radar this year, at the urging of the Workers’ Center Coordinator Pete Meyers. Since Meyers brought the issue to his attention, Van Houten said he’s been in conversation with other prosecutors about how to use criminal law as a tool to ensure workers are paid what they’re owed.
“I’ve got a lot to learn about this,” he said, “but comparing wage theft to somebody who steals some clothing from Target – to me, wage theft is infinitely more serious and more egregious than those petty crimes.”
One of the prosecutors Van Houten has been learning from is Diana Florence, attorney-in-charge of the construction task force for the Manhattan district attorney. Joining the panel via video call, Florence said her office has been successfully prosecuting wage theft cases for about three years, since becoming aware of systematic theft while investigating a workplace death.
Among New York City construction companies, she said, her office has seen wage theft “as a business model.”
Companies eager to win bids lower costs by systematically underpaying workers. “This is not civil,” Florence said, “this is theft, plain and simple. And the way we stop theft is we criminalize. Going after the company where it hurts – their wallet– and going after owners where it really hurts, their liberty.”
Florence and Van Houten acknowledged the huge gap in resources in their offices. While Florence heads a bureau specifically tasked with prosecuting health and safety violations on construction sites, Van Houten said he has a total staff of seven assistants. He said it isn’t realistic to expect the Tompkins County District Attorney’s Office to prosecute all of the 80 to 100 wage theft complaints the Workers’ Center hears each year, never mind all the cases that are unreported.
Prosecuting just the most egregious cases, he said, would nevertheless send a strong signal. “It sends a message to the community, it sends a message to prospective employers who are considering doing it,” Van Houten said.
For now, criminal prosecution is not the most accessible channel for workers to make claims to unpaid wages. Panelists encouraged workers who have not been paid what they are owed to contact the Workers’ Center, DOL or NLRB to learn about their rights and come up with an appropriate advocacy strategy, and stressed that workers can come forward as soon as they suspect they are being treated unfairly.
In an economy where forms of work and the role of labor organizations are changing, so too are the tools used to hold employers accountable. In the context of broader calls for criminal justice reform, professionals in the field are adapting existing tools to level the playing field for workers who have been taken advantage of.