Written by Raja Raghunath
The working poor pay many additional surcharges, or incur additional costs, that economically better-off workers do not have to worry about. Sometimes this takes the form of lower wages for the same work, sometimes it takes the form of uncertainty about whether there will even be work from day to day. Another persistent uncertainty for working poor people is the possibility of wage theft. Will this employer pay in full, or will they try to get out of it? Every observer, anecdotal or methodical, who has looked upon this workforce knows that, for poor workers, the answer is that a significant percentage of their employers will try to get out of paying. The question for the worker, and for us, is: how often will we let them succeed?
A better, and better-informed, empirical mind could quantify this uncertainty and reflect it in the already-low wage rates these workers are able to obtain. A more human perspective layered on top of this empiricism would be able to further “price” the effect this uncertainty has on the many other areas of a worker’s life other than work. So I applaud the Just Wages study for analyzing not only the rate of workplace law violations for day laborers, one of the most vulnerable populations, but the ripple effects that treatment has on their lives as a whole, their families, and their communities.
I have represented workers and unions since I was first licensed to practice law in 2002. From my perspective as a lawyer representing individual workers, the question of wage theft is usually a question of risk tolerance. Is the likelihood of getting these wages paid (in whole or part) sufficiently high to justify the time and effort that will be required to do so? The specter of opportunity cost looms high when day to day employment is not assured. Would I be better off just spending that time looking for work or working? This is a question that legal counsel cannot answer for anyone (certainly not a non-client), but can helpfully inform the decision.
For this reason, my efforts on behalf of workers who have been treated unlawfully by their employers has grown in recent years, beyond legal representation, to incorporate what the legal profession refers to as “limited-scope” or “unbundled” legal services, helping workers send written demands for their wages, or drafting filings for cases the workers prosecute themselves in Small Claims Court. I have also extended my efforts to activities that could not honestly be described as providing any service: distributing informational materials and state-provided forms in order to educate the community on the laws protecting them when they are not treated properly at work.
I hand these forms out because the lawyer only becomes involved once the risk-tolerance question above is presented to a worker – that is, after the wages have already been stolen and the employer has refused to pay, despite entreaties. But what can be done to avoid such employers in the first place? That is a question of organizing and education that is beyond me, but to which I try to contribute in the small ways that I can.
I have previously argued for government enforcement agencies to focus their efforts on helping undocumented immigrants, as the EEOC does, since they inhabit the bottom end of the labor market in which we all exist, and their (more-frequent) exploitation drags down more than just themselves, it drags us all down. Our laws governing wage theft, which at the federal level date back to the New Deal, are much better than the rest of American employment law, and suffer largely from incomplete enforcement, rather than some failure of their terms. For better or worse, the way the law is written, much of that enforcement has to come from the workers themselves, with the assistance of able counsel, if it is to occur at all. That is where I have always come in as a lawyer.
It is true that many of these vulnerable workers who are undocumented have larger battles to fight right now. But everyone needs to work, and this population and their loved ones will only see more exploitation as they attempt to do so in the coming years. It is incumbent on all of us to help in any way we can as this storm builds.