The Wage Theft Direction Action Team stands with a worker after winning in small claims court.
By Chris Wheeler & Amy Czulada
The Direct Action Team on Small Claims Court
Small Claims Court enables persons with legal claims of $7500 or less to file suits in the court and fight cases for oneself. In wage theft cases, workers file claims for the amount of wages owed by employers and present their cases before judges in the small claims court. The small claims court process presents low wage workers with a series of issues at multiple levels of the process. First, according to attorneys working in the field of wage theft at the local level, fear of coming forward is one of the main impediments to workers pursuing their wage theft claims. One of the side effects of the long, cumbersome court process means it becomes inaccessible to many who might already be disillusioned or frustrated by the system. Having to complete small claims court forms in a second language can also prove difficult. For those from another country the formal procedures and atmosphere of Small Claims Court may be intimidating.
Securing a date in small claims court takes an appalling amount of time. Often courts schedule court dates about a month in advance, and different courts sometimes require mediation before taking cases to court, which costs roughly $30 per session. Sometimes the court is booked months out, giving an unscrupulous employer more time to forget about a case. Lengthy wait times also further discourage workers, leading them to question that the court is built to protect them. In fact, the Wage Theft Direct Action Team at El Centro Humanitario has found that the more time it takes to solve a case—through the court process or by using direct action tactics—the harder it is to keep momentum going with the worker, which works to the advantage of an employer. Filing costs, while seemingly small ($35-$55 to file), can also represent a substantial burden for those who already have lost wages. There are fee waivers that can be applied to the fees, but they can appear intimidating to the untrained eye. In addition, none of the forms for small claims court are in any other language other than English, so pursuing a case via this route is contingent on finding help for people who are monolingual. Arranging an interpreter requires advance scheduling, which presents another obstacle and delay. Finally, missing a day of work in order to present a case in small claims is often not worth risking the worker’s time and effort. Therefore, many workers do not pursue their cases.
Even when a person wins a case in small claims court, they face further impediments recouping their money. Default judgments are issued on cases in which an employer doesn’t show up to court, but it can be difficult to collect on that judgment or any judgment if the business is in default or has become bankrupt. Writs of garnishment and property liens can be issued in the event that an employer does not pay after a judgment is given, but that process is also cumbersome, takes a good deal of time, and requires additional filing fee expenses. If a plaintiff files a suit against a company instead of a person, liens can only be placed on properties owned by the company itself, not the individual. In the same vein, garnishing wages can be impossible if the employer has been conducting business under the table.
Part of the small claims court process is made more difficult by the fact that many of the employers serving as defendants in these cases are the “little guys” and not larger employers, who might be better equipped to handle the financial aftermath of such cases. Compounding collection difficulties, many of the employers who serve as defendants in small claims cases run small-scale enterprises; they often lack the capital to fulfill their mandated financial obligations.
While small claims court is supposed to create an accessible avenue for workers to recoup unpaid wages, long wait times, the perceived inaccessibility of court for many low-wage foreign-born workers, and collection difficulties all work to the advantage of employers: workers do not see the process as worthwhile and employers can continue unscrupulous practices without fear of repercussions. The hope is that the city of Denver can create systems that serve as deterrents for employers to commit wage theft. By changing the administrative repercussions for employers who commit wage theft, employers will feel less inclined to normalize the practice. An administrative system that is more accessible and user friendly could foster an environment in which workers are empowered to pursue their claims and employers no longer see committing wage theft as a risk-free comparative advantage.