Opinion Piece: Insights into the Structural Disadvantages that Day Laborers Face and Proposed Solutions

By Brianna Klipp and Kat Englert

There is approximately $50 billion stolen from workers in the United States every year by their employers who, through various methods and often intentionally, unjustly withhold wages or underpay their employees. Yet, the issue of wage theft is significantly disregarded by the very systems in place that have power to enact change. Through our Qualitative Research Methods course taught by Professor Rebecca Galemba at the University of Denver, our student group continued Galemba’s ongoing research on wage theft experienced by day laborers in Denver, CO. While the focus of our research began with questioning the impacts of Covid-19 on wage theft, we found that much of our data compiled around resources available to victims and advocates who support them. Through our interviews and findings, we strove to more deeply understand the systems that dictate wage reclamation and why they are inherently designed to fail the individual, especially the marginalized populations who are also more likely to be victimized. 

Wage theft and exploitation can occur in different ways: an employer may underpay the worker, meaning that they withhold the agreed upon/promised amount for the work completed or pay below minimum wage, deny legally mandated breaks, withhold owed overtime, or they may simply not pay at all. Employers commit this fraud through different evasive tactics such as disappearing at the end of the week when they promised to pay the employee, paying with a check that bounces and never issuing a new one, pretending that they do not know the employee and never hired them, claiming that they do not have the funds from their boss at the time, claiming that the quality of work was poor and does not deserve the correct pay, and sometimes outright threatening workers with calling the police or deporting them even though such forms of retaliation are illegal. The question prevails; why aren’t employers held accountable? Workers can mitigate wage theft through a couple of strategies, however, once the act of wage theft has been committed, the burden falls largely on the employee to fight against their former employer and to navigate the legal bureaucracies that are meant to ensure their rights to their promised pay.  

The issue of wage theft in the United States is rampant, yet also paradoxical. All employees, regardless of their immigration status, are entitled to protections under both Colorado state and US federal wage laws. Why then, do so many instances of wage theft go unreported and remain lost? Many low-wage workers, like day laborers, are vulnerable simply because they live from pay-check to pay-check, which is compounded by economic vulnerability, racial discrimination, and other kinds of social disadvantages. The mindset of employers in the US can also be particularly sinister considering how capitalism functions by creating profit off the surplus value of labor, wherein the employer tries to get as much out of the employee at the lowest cost to them. When interviewing a staff member at a worker center, he explained, “I think the biggest component [challenging] wage theft is people not knowing what wage theft is. Because a lot of people, especially in a lot of marginalized communities don't have the necessary education to learn this kind of stuff. They don't know that they're being robbed of their wages. There's this mentality amongst immigrants, especially amongst low-income immigrants, that you have to work no matter what.” This means that regardless of citizenship or work authorization status, day laborers and immigrant day laborers are easy to exploit in the American economy. 

Despite the written laws, many labor agencies do not adequately protect workers due to the long, bureaucratic timeframe it takes to process wage theft cases and workers’ inability to wait for a remedy. Many individuals who experience wage theft do not pursue their lost wages for a number of reasons, including: a general lack of knowledge surrounding their rights, fears that reporting wage theft will put them at risk of being deported (even though this would be illegal), fear that reporting will have negative ramifications for their safety or their future work opportunities, limited time to pursue the case which would result in them taking off work, and language and literacy challenges. Moreover, many lack the necessary resources to navigate complex legal bureaucracies and courts to pursue their claims. While there are resources available to help day laborers learn about signs of wage theft and non-profits and worker centers such as the Direct Action Team with El Centro Humanitario and Towards Justice (a non-profit legal service organization) to assist with cases, public enforcement entities have not done enough to regulate and enforce repercussions on employers who commit wage theft. Thus, there is little deterring employers from repeating the violation. The central issue is that in practice, despite labor departments’ best intentions, the onus tends to fall more on the victim to either accept wage theft or to dedicate significant time and effort into fighting against the employer and recovering lost wages. 

Our findings suggest that revising laws to benefit employees, community activism, and improved technology to streamline the bureaucratic process are the best solutions to tackling the issue of wage theft. Though the economic and immigration systems can’t be changed overnight, civil society activists must organize victims and advocate for laws that reduce the burden on victims to proactively address wage theft and unite workers. The role of community organizations and advocacy groups therefore becomes tantamount to influencing a rules-based system that works in favor of worker and effectively shifts the burden to employers in practice as well as in theory so the courts will actively punish the perpetrators instead of the victims. 

However, before community engagement can help rectify wage theft through grassroots efforts, the systemic flaws that exist within the legal framework must be recognized and changed to better give activists a chance of succeeding. One attorney that we interviewed detailed the flaws in the legal system that unjustly burden the employee and require the victim to have leverage over the employer, which is often infeasible.  For example, changing the burden of proof to the employer instead of the employee can encourage more workers to come forward because they will know that they do not need to have records on file to prevail. Additionally, the mandated use of wage-theft bonds for repeat wage theft offenders, or for businesses in industries that are more prone to wage theft can act as insurance against potential future violations. If car washes, construction sites, nail salons, and industries who are more likely to have vulnerable workers with limited access to resources to remedy against wage theft were required to purchase wage-theft bonds in order to have a business license, there is a chance that the bonds will serve as a preventative measure to ensure workers are paid in a timely manner.

Moreover, it is important to recognize that even these solutions don’t address all instances of wage theft, and solutions will require additional support from the community to achieve a proper remedy. For example, a labor attorney explained that when employers rely on 1099s to employ their workers as independent contractors and aren’t always required to provide the same benefits or standards that they would provide to full time employees, they may sometimes simply ditch the employee without pay and are never heard from again. Therefore, the role of community activism and technology can further support efforts for employees when the system fails them. When speaking with an employee at the Colorado Department of Labor, they explained how the most vital shift in processing cases occurred when they implemented Salesforce to track and log wage theft cases. The government should actively improve its research and development and conduct its own meta-analysis on a yearly basis to improve their processes so that cases are completed in a more timely and efficient manner. For example, if the labor department utilized a mobile application where workers can submit their case information as soon as they suspect wage theft has occurred, an algorithm within the app can instantly assess and categorize the scenario immediately so that the perpetrator of wage theft is contacted more quickly, thereby increasing the chances that the employer will oblige to division standards and pay the worker.

Additionally, enhanced community engagement can help develop political power within local communities by empowering people to advocate for themselves. Communities should actively seek to educate their most vulnerable populations and implement creative strategies to ensure that outreach is a success. While the Covid-19 pandemic exacerbated economic tensions for vulnerable workers, it also allowed the community to seek alternative and creative solutions of advocacy to confront these problems. For example, as the Denver community of day laborers became engaged with El Centro Humanitario and learned how to use technologies such as Zoom to attend meetings, a significant uptick in attendance to the educational sessions on wage theft followed. Community activist groups should continue to use technologies such as zoom and social media to foster discussions and ensure that an informed populace can generate its own advocacy tools.  

Lastly, preventative measures can be bolstered by collaboration between the government and activist groups. During our research, a labor and employment attorney explained, “The government needs to be as proactive as possible, the government needs to be the sword and the shield for these people needs to go out there and become embedded in the community, so that people feel confident reporting to the government…because once the government becomes involved, it upends the power imbalance.” If the government is more proactive, people will feel more comfortable coming forward and partnering and perpetrators will be less emboldened to commit wage theft because they know they will face punishment.  Unfortunately, complex bureaucratic processes and steps  reduce the chances of victims coming forward due to the lack of financial resources or time to wait for the government to respond. If the government can effectively mitigate power imbalances by preventing wage theft from occurring and enforcing violations, it is more likely that employees will successfully achieve a proper remedy.There is no single change that will drastically improve the conditions for day laborers who experience wage theft. However, the power to make direct impact largely lies in the collaboration among community-based organizations. As Jennifer Gordon described in her paper titled The Lawyer is not the Protagonist, organizations and community coalitions as the entities that have the power to effect change even when the government will not. By speaking with people on the Direct Action Team, lawyers, day laborers, government employees, and staff from worker centers, we have seen organizations achieving results, especially when it comes to standing up for workers’ rights. In one of our interviews, a day labor center staff member described the effectiveness of partnering with other organizations in the area. Although these organizations focused on vastly different issues, they joined forces to be one voice for their community. This partnership has resulted in city leadership listening to peoples’ input on new developments to stave off the gentrification of their neighborhoods. Meanwhile, the Direct Action Team demonstrates the additional power of organizing through the many methods they employ to recoup stolen wages. Though wage theft is a burden placed on vulnerable victims that often goes unpunished, the future of addressing these issues and providing relief for victims can be achieved when the community is empowered to fight for tangible results.