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“Wage Theft”: The Trendy Phrase That May Not Mean What You Think It Means

Posted in Highlight, Human Resources (HR) Compliance, Laws and Regulations, Manager & HR Pro’s Resource Center, Wage & Hour

Over the last few weeks, I’ve been seeing more tweets from human resources types and mainstream reporters using the phrase “wage theft”.  Two recent examples? William Tincup (who runs the popular online DriveThruHR show that I appeared on a while ago) recently tweeted:

And The New York Times labor reporter, Steven Greenhouse yesterday tweeted:

Yes, even The New York Times Editorial Board is beginning to use the term with surprising carelessness suggesting “law enforcement officials” (a term typically reserved for police officers, not Department of Labor officials) routinely use it.

It’s time for employers to beware this phrase and fight its usage because, in my view, it’s really an attempt to turn something often unintentional, into something nefarious and intentional.

Or as Mandy Patinkin’s character in The Princess Bride said: You keep using that word. I do not think it means what you think it means.

What DO I mean? Well, think of the word, “theft” and most of us think of the intentional taking of something that belongs to someone else. Like your jewelry, or your iPhone. Even your company’s trade secrets.

But as the term “wage theft” is used by some workers’ rights site, it is being used in an entirely different context.  It:

covers a variety of infractions that occur when workers do not receive their legally or contractually promised wages.  Common forms of wage theft are non-payment of overtime, not giving workers their last paycheck after a worker leaves a job, not paying for all the hours worked, not paying minimum wage, and even not paying a worker at all.

Before I go further, I should note that, in doing research for this, I realized I’m not the first to pick up on this. Jon Hyman, in the always-terrific Ohio Employer’s Law Blog, noted the trend even last year.

There is little doubt that this trend has gotten trendier.  Some examples: The Washington Post, last week, for example, ran a column on the subject.  A local CBS news report notes the “growing trend” of wage theft in Silicon Valley last week as well.

But the use of the phrase is really a relatively one. There is no notable usage of the phrase in Google’s N-Gram viewer through 2008, for example.  A quick search of federal court cases shows no usage of that phrase until New York’s “Wage Theft Prevention Act” went into effect in 2011.

(Sounds serious right? But the roots of that Act merely require employers in New York to provide notice to employees of basic pay information.)

Connecticut courts thankfully have not used that phrase.

(To confuse matters more, Florida business groups are using that phrase in yet still an entirely different way:  to refer to the patchwork of local laws, like paid sick leave.)

But despite the obvious and intentional confusion, labor unions and worker advocacy groups are continuing to push out usage of the phrase with impunity.  Just check out recent testimony at the Connecticut General Assembly on H.B. 5071, where various speakers referred to “wage theft” as reasons to support the bill.

In other words, the use of the phrase is being pushed to push various agendas — not as a result of any legal theory or real change in the law (though the phrase is also popping up in law review pieces for the last few years too).

That push is having a ripple effect.  The use of the phrase at major publications, like The New York Times, has shifted of late.

Check out, for example, an article from New York Times’ Greenhouse from 2009 in which he notes that “Low-wage workers are routinely denied proper overtime pay and are often paid less than the minimum wage.”  No use of the phrase “wage theft” is used.

But in the same year, The New York Times did use the phrase that year to refer to 3 employees indicted for, well, stealing employees’ wages.  That’s exactly the type of case where you would expect to see it used.

So, why the change of heart to start using the phrase for non-criminal activity?   I’ll leave it to others (perhaps even The NYT Public Editor?) to find the exact origin of the phrase further  – but somehow this phrase has been turned on its head.

And it’s time to call it out; it’s a phrase that is both misleading and loaded.

Perhaps posts like this can serve as the proverbial wakeup call for the mainstream press to avoid it and I hope that government officials in Connecticut, like the Connecticut Department of Labor, will continue to not use that phrase  (at least the CTDOL’s website avoids its usage, save a new reference to a New Haven Independent post of March 25, 2014 and a reference in an OSHA brochure citing to IWJ.)

Does that mean that the problem of employers failing to pay employees overtime should be ignored? Hardly.  Employers who fail to follow the the myriad of wage and hour laws should be held accountable.   And suffice to say that criminal activity by employers should continue to be enforced vigorously.  (And as readers of this blog know, I have long advocated for employer compliance.)  If people want to call criminal activity “wage theft”, I think we could probably reach consensus on that.

But as Hyman noted, “Wage-and-hour non-compliance, however, is a sin of omission, not a sin of commission. Employer aren’t intentionally stealing; they just don’t know any better.”

Quite simply: The use of a criminal term for a non-criminal act needs to stop.

So employers beware.  The use of this phrase and the broad concepts it is now being used to cover appears to be growing. And it’s designed to raise awareness in employees and place you in the crosshairs. But it’s also designed to be misleading.

Make sure you’re in compliance with the law. And dust off those dictionaries too.

  • Kim Bobo

    Contrary to Hyman’s comments (and your quoting it), most wage-and-hour violations are NOT sins of omission. They are indeed sins of commission. Interfaith Worker Justice and our network of workers centers have worked with thousands of employers who have stolen wages. Only a handful really didn’t understand the law and immediately changed their behavior. Like running through a red light, people know stealing wages is wrong, but without strong enforcement they do it anyway. Indeed, the phrase “wage theft” is completely appropriate.

  • http://www.texasemploymentlawblog.com/ Christopher McKinney

    I must agree with Kim (you’re shocked, I’m sure). Most misclassification cases we see really could not be considered to be an honest mistake. Given the rules as they currently stand it is generally pretty obvious who is a “worker’” and who is a “manager.”

    With the occasional exception of new job categories and/or very small employers my personal experience indicates that misclassifying obviously non-exempt employees as exempt, salaried employees is usually a purposeful decision or at least a decision made with reckless disregard. I’ve seen no credible data to the contrary.

    Unfortunately, the FLSA’s relatively short statute of limitations, application of “defenses” such as “fluctuating workweek”, and the fact that overtime class members must be gathered one-by-one as a part of a collective action often serve to make it a profitable decision for companies to make this “accident.”