Wednesday, September 3, 2014

“Wage Theft” is a fraud (or at least a misnomer)


Forgive them, for they know not what they do.
Over on LinkedIn, my friend (and author-extraordinaire of the Connecticut Employment Law Blog) Dan Schwartz wrote a post entitled, Beware: Use of Loaded Term “Wage Theft” On the Rise

In that post, Dan called out the use of the phrase, “wage theft.”
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.… 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.… And it’s time to call it out; it’s a phrase that is both misleading and loaded.
Dan was kind enough to point out that I covered this issue last year, in a post of my own entitled, Taking issue with the term “wage theft.” Here's what I said:
I have a huge problem with the term “wage theft.” It suggests an intentional taking of wages by an employer. Are there employees are who paid less than the wage to which the law entitles them? Absolutely. Is this underpayment the result of some greedy robber baron twirling his handlebar mustache with one hand while lining his pockets with the sweat, tears, and dollars of his worker with the other? Absolutely not. 
Yes, we have a wage-and-hour problem in this country. 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. 
And who can blame them? The law that governs the payment of minimum wage and overtime in the country, the Fair Labor Standards Act, is 70 years old. It shows every bit of its age.… 
We are left with is an anachronistic maze of rules and regulations in which one would need a Ph.D. in FLSA (if such a thing existed) just to make sense of it all. Since most employers are experts in running their businesses, but not necessarily experts in the ins and outs of the intricacies of the Fair Labor Standards Act, they are fighting a compliance battle they cannot hope to win. 
As a result, sometimes employees are underpaid.
There is no doubt that our wage-and-hour laws need to be fixed. But the solution is not to craft heftier penalties for non-complying employers. Instead, we need to update our laws to account for the realities of the modern workplace, one in which the iPhone has replaced the time clock. 

Until Congress gets its act together to amend the FLSA, employee advocates will continue to push the term "wage theft" to drive an agenda. As this turn of phrase gains traction, it will focus attention on whether you, as an employer, are paying your employees correctly. These are expensive crosshairs in which to find yourself. As we round into the final quarter of 2014, make wage-and-hour compliance a priority, if for no other reason that because employees are watching, and no company is 100% error free under the FLSA.

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