Legal Barriers to Fighting Wage Theft

This blog was originally published on the Human Trafficking Center blog.

by Kara Napolitano

When it is a matter of telling the truth and serving the victims, let unwelcome truths be told. Those of us privileged to witness and survive such events and conditions are under an imperative to unveil – and keep unveiling – these pathologies of power.” – Paul Farmer

It is often perceived that once a bill is passed into law that the problems the law addresses are resolved.  In fact, implementation and enforcement of new laws are often dictated by political will, public knowledge of the issue, and power structures embedded in our society.   For example, the passage of the Victims of Trafficking and Violence Protections Act of 2000, while a very positive step in the right direction for protecting human trafficking victims, by no means solved the issue of human trafficking in the United States any more than SB 14-1273 solved it in Colorado.  The discourse around trafficking has grown to encompass more than just the “severe” forms outlined in the TVPA.    The International Labor Organization has identified wage theft and related practices as possible signs of human trafficking.  However, federal, state, and local law fail to make such a link, limiting the perceived severity of wage theft. These issues are treated as separate under the law even though they can overlap in reality.

Still, in recent years, certain states within the U.S. have begun to address the issue of wage theft through legislative measures that mitigate the crime and attempt to prevent it, while treating it as a separate issue from trafficking. With the enactment of the amended Colorado Wage Claim Act (CWCA) in 2015, Colorado has joined the states with new wage theft legislation. This law bolsters the state’s ability to collect unpaid wages so that workers who are denied payment for their work can receive compensation by empowering the Colorado Division of Labor and Employment (CDLE) to investigate and adjudicate such claims.  Since the law only went into effect on January 1, 2015, it is somewhat premature to assess its impact. What can be considered now, however, is whether the enforcement mechanisms for ensuring the law’s implementation and long-term effectiveness are in place and understood by victims and advocates.

Claimants’ challenges in seeking legal redress and advocates’ challenges in implementing and enforcing the law are rooted in and reflective of political and social power dynamics, as well as the resource capacity of institutions at the state and local level.

Location, location, location

The location where the crime of wage theft occurs matters, arguably more than it should, illustrating that political will and social norms play a role in addressing wage theft even on a county level.   In Colorado, there is less legal outreach in rural areas as compared to urban ones. Urban areas have more resources such as workers’ centers like El Centro Humanitario. Federal entities such as the Department of Labor (DOL) and state entities like the CDLE also have a strong presence in urban areas.  Private attorneys also tend to cluster in urban areas.  Additionally, victims of wage theft in rural areas may have to contend with more animosity towards immigrants.

City ordinances can also affect how claimants pursue wage theft claims and whether or not they are resolved.  The differences between city ordinances in Boulder and Denver illustrate how location affects workers’ legal options.  Boulder passed an ordinance in 2007 to protect the rights of individuals working within the city. This ordinance criminalizes non-payment of wages, regardless of intent. This removes the burden of proof from the employee that exists under the CWCA and places it on the employer.  The Boulder Office of Human Rights has the authority to investigate cases under the ordinance, assist the claimant with pursuing damages, and refer the case to court if necessary. This office enjoys the support of the Boulder police department and the city attorney. This method of pursuing wage theft claims has been highly effective for claimants that fall under their jurisdiction.

Denver on the other hand has a city petty theft ordinance that can be used to pursue wage theft claims, but there has been much less success using this ordinance.  Furthermore, this ordinance is not exclusively directed towards wage theft, as is the case in Boulder.  In the case of Denver, a worker who pursuing a wage theft claim needs to go to the police, a potential deterrent for anyone worried about their legal status. According to our research, the Denver police see wage theft as a civil matter, so they do not investigate it.   According to one informant, no known cases of wage theft brought under the petty theft ordinance have been resolved.

Looking ahead

While the effects that the CWCA will have on resolving wage theft claims in Colorado is still unclear, its passage is a step in the right direction for workers’ rights advocates and the workers themselves.  Changing societal norms and stereotypes will take time and advocacy.  As of July 2015 no case has been brought before the courts under the new law, though at least one is pending.  A reassessment of funding for the law and its effectiveness should be made after the next Colorado legislative session.  In the meantime, through our research we hope to bridge the gaps in service provision and communication across sectors to facilitate education and collaboration that will eventually lead to treating wage theft as the crime that it is.

Keep up to date on wage theft news, stories, and research results of the DU Just Wages Project @ Korbel. Sign up to receive emails today!

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