Do systems work in favor of vulnerable workers? Insights from wage theft recovery of Colorado's day laborers

By Michelle Carrere Seizer and Caitlin Long

Study Context & Continuation of Research 

Since 2015, the Direct Action Team (DAT) has been an ongoing advocacy project developed to support low-wage immigrant workers who have (or are currently) experiencing issues of wage theft. For years Professor Rebecca Galemba and Josef Korbel students have carried a community-based, longitudinal ethnographic study on DAT’s work. DAT is loosely associated with the nonprofit El Centro Humanitario and is composed of volunteers, academic professionals, attorneys and graduate students. Employing “direct action tactics” such as negotiation, applied pressure, and civil litigation, DAT team members assist day laborers and low-wage workers in the recovery of rightfully owed wages from dishonest employers. As we have learned, low-wage immigrant workers and day laborers are especially vulnerable to wage-theft due to their immigration status and systemic inequalities. 

Continuing this longitudinal research study, as a part of Professor Rebecca Galemba’s Qualitative Research Methods class, our team decided to focus on the impact of COVID-19 on day laborers’ experiences with wage theft. Constructing our hypothesis from information provided by previous findings and secondary research, we hypothesized that the pandemic had increased the vulnerability of day laborers and their susceptibility to wage theft due to high unemployment rates nationwide. Our overall goal for the research was to understand how, if at all, COVID-19 affected laborers’ pursuits of wage theft compensation, as well as possible methods the DAT could employ to better assist laborers in their wage recovery efforts.  

However, our research focus shifted as our study progressed. Due to unforeseen circumstances such as hazardous weather and illness, our ability to observe and speak with day laborers at hiring sites and our interactions with day laborers were limited, which forced us to readdress our research approach. We pivoted to mostly interview advocates and professionals who occupied positions of more relative power–wage theft attorneys, program directors, Labor Department employees, etc. In doing so, we began to realize that systemic conditions severely limit individual recovery efforts and perpetuate wage theft because there is a noticeable lack of proactive measures to address wage theft, as well as minimal consequences for offenders. Furthermore, we learned how systemic injustices allow for wage victimization to occur by restricting resource access of vulnerable communities. For example, during an interview with a labor and employment attorney, we learned how time consuming and costly the litigation process is for low-wage workers, and how, more often than not, the outcome goes against their favor. Furthermore, because the monetary reparations of these cases tend to be more minimal than other types of civil litigation, private practices tend to reject wage theft cases, leaving these vulnerable populations to defend themselves. 

Human Subject Guidelines

To recruit interviewees for our research study, we relied on contact information from previous groups and the professor as well as purposeful sampling. Conducting our interviews via Zoom and in-person, our interview process was mostly semi-structured in that we came prepared with a list of questions, but employed them loosely so as to help steer the discussion. This flexibility in our interviewing process allowed us to get our intended questions answered, while allowing the participants to interpret and respond to the questions through their natural conversational styles. Being mindful about our research positionality, we decided to conduct our interviews in this manner, using direct quotes and ample context to convey our findings. Furthermore, this approach allowed us to identify themes across our data without making assumptions that could alter our conclusions or negatively misrepresent our participants. 

To conduct qualitative research on a sensitive topic, it was imperative for our group to consider the potential impacts, harms, and benefits of the research to the participants. From the beginning of our study (and the entirety of our research) we intentionally considered and reconsidered how to mitigate and prevent harm towards our participants. In order to be ethical while conducting interviews, our group drafted thorough and inclusive written and verbal consent forms that introduced our research topic, explained our overall purpose, disclosed potential issues that could arise, and communicated our intent to record. We explained to interviewees that we would never publicly release the interviews, but would use the recordings to assist in our notes-taking and transcribing. Once that process was complete, we would permanently delete the recordings. Additionally, we never used the names of the interviewees, but instead employed Dedoose and REDCap, numerical coding platforms, to transcribe and interpret our data. 

Central Argument & Findings 

Every year in Colorado alone there is an approximate $750 million in lost wages, with half a million workers having been estimated to have lost wages in one way or another. Some of the forms that wage theft takes are non-payment, underpayment, employee misclassification, deduction violations, and tipped job abuse. Even though wage theft occurs at all levels, day laborers and informal workers are especially vulnerable to suffering wage theft and also have a lower chance of recovering lost wages. The main reason is that they do not have the time or the resources to make a claim with the Colorado Department of Labor or hire a lawyer. Although the issue of wage theft has been prevalent for a long time, the Covid-19 pandemic proposed new challenges for worker. However, we learned that it also brought new opportunities, which we had not anticipated when beginning our research. In general workers’ situations became more precarious during the pandemic, for example unemployment rose and many workers had to take on myriad care responsibilities as relatives grew sick or children were sent to attend school remotely from home. Research shows that in April 2020, when the recession due to the pandemic peaked, 20% of low-wage workers were paid below minimum wage, in comparison to the 10% prior to the pandemic. On the other hand, according to one attorney we interviewed, these difficulties made workers more interested in knowing their rights and unwilling to put up with injustice. These realizations have motivated workers to quit when experiencing minor wage theft. In addition, a member of the Direct Action Team added that workers’ growing interests about their rights and more outreach possibilities facilitated by technology helped them reach more people than expected with their “Know Your Rights” workshops. Initially, Centro Humaintario had hoped to reach 300 people this year, but  in just two meetings they had reached 110. It will be interesting to evaluate the impacts of these outreach and workshops efforts, including how they will impact worker engagement over time. Even though Centro reached more workers through their digital outreach, it is important to mention that not all workers have the same access to technology. This technological and resource divide can also increase inequalities among workers.

Although workers not putting up with abusive conditions and quitting earlier can be seen as something positive, this has made it more difficult for workers to recover their wages through attorneys. One of the attorneys we interviewed mentioned that it is not profitable for attorneys to pursue cases of, for example, 500 dollars, in comparison to pre-Covid cases, which tended to be of many thousands when workers put up with abusive conditions for more time, and thus accrued more unpaid wages. These dynamics diminish workers’ chances of finding representation because attorneys get paid a fee based on the award. The same attorney told us that during the Covid pandemic, wage theft cases increased, but the average amount of money owed per case decreased. 

All attorneys interviewed agreed that the Covid pandemic also helped spur new legislation that favors workers; for example Covid paid sick leave in Colorado. Yet this new legislation ironically increases the chances of wage theft because more regulations may provide more opportunities to violate them. An example is when workers are not paid sick leave when they contract Covid. In addition, an attorney told us that the legal changes were not properly communicated, and for this reason, not all employers are aware of them which makes workers more susceptible to violations like wage theft.

The challenges that day laborers during the pandemic were not confined to wage theft. A local organizer told us that increasing challenges around gathering made it more difficult for workers to collectively organize. Prior to the pandemic, workers would gather in person in places such as the Dayton Street Day Labor Center or El Centro Humanitario, which created a strong sense of community and support. With the pandemic, gathering shifted to virtual space. Fortunately, as in-person gatherings became possible again, this created more avenues for workers to organize.

Another challenge revealed by the Covid-19 pandemic related to the uneven and gendered burden of care responsibilities. An attorney told us that the greatest challenge the pandemic brought was care. For many, the pandemic provided the opportunity to work from home, but not all could do this nor was it necessarily embraced by all. For example,  it was difficult for workers with care responsibilities to manage these dual obligations. Many employers did not look favorably at employers taking time from their work day to look after children, but not all employees have the option of ignoring care responsibilities and tending only to work. Additionally, not all workers have the possibility to work from home; day laborers are especially susceptible to losing work due to care responsibilities as the type of work they do has to be carried out in person. The attorney told us that these situations significantly affect women. Another thing we noticed while conducting participant observation around the Don Street Day Labor Center was the absence of women in this space, which may limits their ability to benefit from the center’s resources, as well as the ability to connect from with other day laborers and organize. 

Our limited timeframe only allowed initial insights about the impacts of  the pandemic on day laborers. A major limitation was our difficulty in contacting day laborers, which was limited by weather conditions and illness. Instead, we mainly obtained insights from attorneys, DAT volunteers, members of the Colorado Department of Labor, and the director of the Dayton Street Day Laborer Center. Through these insights, we switched our focus how societal systems work in favor or against day laborers attempting to recover their lost wages. We concluded that, rather than proactive institutional measures like monitoring systems or offender databases that prevent wage theft or create institutional support for workers, recovery efforts tend to still be reactive in Colorado. This means that wages are recovered on a case by case basis and mainly depend on the individual to come forward and pursue their cases. This individualized and reactive process deepens the inequalities between workers when the most precarious workers that are most exposed to dangerous and exploitative workplaces, do not have the time and means to go to the Colorado Department of Labor or hire an attorney. The few workers with whom we spoke mentioned the high costs of pursuing unpaid wages. When they were denied a day’s pay, they didn’t bother to recover their wage because it would cost them a day’s work to go to the police or talk to a lawyer. At the same time, attorneys’ fees would be more expensive than the amount of money recovered. For these reasons, these workers said that the only thing they could do was warn other workers that a certain employer did not pay to prevent others from working with him. The workers did not mention calling the Colorado Department of Labor, which makes us believe that they do not consider an option when trying to recover lost wages. Their attitude seemed to be one of resignation, coinciding with Ordoñez’s description of day laborer’s vulnerability in the San Francisco Bay Area. He concurred that day laborers exhibited “skepticism towards the possibility of contesting abuse” and “the certainty that they can do little to oppose unfair and illegal actions once they become victims”. Volunteer organizations such as the DAT are more effective means for workers to recover lost wages because they raise awareness amongst workers of their rights, and look for creative ways to overcome systemic obstacles and inequalities by showing that other alternatives are possible.