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Matthew W. Finkin, From Weight Checking to Wage Checking: Arming Workers to Combat Wage Theft, Ind. L.J. (forthcoming), available at SSRN.

Matthew Finkin’s article, From Weight Checking to Wage Checking: Arming Workers to Combat Wage Theft, reaches back to the late nineteenth and early twentieth centuries for a solution to the very current problem of wage theft for low-wage workers. Finkin proposes a modern-day version of the “checkweighman” laws that enabled coal miners to select an independent checker to verify their wages.

Finkin begins by defining “wage theft” as a set of employer practices “that result in employees taking home less than they are legally entitled to under federal and state law.” Employers may pay sub-minimum wages, refuse to pay for “off the clock” time, fail to pay overtime at all or at the correct rate, steal tips, or fail to pay any wages whatsoever. Finkin summarizes the current research on wage theft, including now-DOL Wage and Hour Administrator David Weil’s valuable work on federal wage and hour violations and Annette Bernhardt, Trey Spiller, and Diana Polson’s excellent study of employment law violations experienced by low-wage, front-line workers in Chicago, New York, and Los Angeles. Drawing on this and other scholarship, Finkin concludes that wage theft is rampant, checked neither by government oversight nor by workers, who have too much to lose to take on the costly, risky proposition of suing their employers. Finkin thus characterizes wage theft as both feasible and attractive to employers; stealing wages from the workers who can least afford it has become—and likely always was—a good business proposition.

Finkin briefly reviews an array of possible solutions, including increasing the budgets of underresourced government inspectorates; strengthening the underlying employment laws; enhancing employer self-regulation; creating public-private partnerships that deputize outside agencies as watchdogs; and fostering various forms of worker mobilization, including unionization and worker centers. Finding each of these wanting, he then turns to a novel and little-known (at least by me) set of laws: coal mining’s checkweighmen laws.

Enacted by thirteen U.S. states (and still in force today in Alabama, Illinois, Missouri, Pennsylvania, Tennessee, and West Virginia), these laws gave coal miners—who were paid by the load or ton of coal mined—the right to hire, at their own expense, an outside “checkweighman” who would verify the amount or weight of coal mined by each worker. This honest accounting of production foreclosed opportunities for employers’ cheating in the determination of workers’ pay. In addition, at least some state laws, like West Virginia’s, were not limited to miners, but enabled workers in any “enterprise employing labor, [where the wage] depends upon the amount produced by weight or measure” to select a “checkweighman or measurer.”

Finkin considers this insertion of another set of eyes into the wage determination process a valuable check against wage theft for those workers who are paid according to their production. He proposes a modern wage checker law that would extend this concept to all hourly workers and attempts to work out the logistics of such a law: the determination of a wage checker’s eligibility, her authority, the manner of her selection, and the matter of her financing. He also considers whether such a law would be preempted by the NLRA, but makes quick work of that question, concluding that a wage checker’s function (legal compliance) is distinct from the function of the collective bargaining process (negotiating a labor agreement). Finally, Finkin concludes with a lovely passage about his proposal’s broader salutary effects: increasing worker agency through the selection of a wage checker “may manifest the possible and stimulate the desire for something more, to be achieved by further collective action or, conceivably, by collective bargaining: better health and safety conditions; a more stable work life, not subject to sudden change in scheduled time; freedom from abuse and retaliation.”

As someone who writes about wage and hour law and the barriers that low-wage workers face in enforcing their rights, I was intrigued by the concept of a wage checker; it brought to mind other monitor-type proposals, such as Zev Eigen’s ideas about how to improve FLSA enforcement by using readily available technology to analyze a company’s payroll data and flag FLSA violations. However, that there is even a need for a wage checker is itself a discouraging conclusion, revealing the profound failure of the existing mechanisms for protecting low-wage workers’ rights: unionization, private litigation, and government inspection and enforcement. Adding a wage checker law to these other systems would likely help matters, but I wonder whether wage checkers would be hampered by the same old set of tactics used by union-busting employers: scaring workers away from choosing a wage checker in the first place; interfering with the selection process; pressuring or interfering with wage checkers’ performance of their duties.

To end on a positive note, however, what is particularly tantalizing about Finkin’s article is the ability for advocates, right now, to use the checkweighmen laws that remain on six states’ books. Some of the lowest-paid workers in our economy are paid by unit of production: garment workers, farmworkers, truckers, and construction workers. It is likely no coincidence that many of these same industries appear at the top of researchers’ lists of wage theft perpetrators. Given that some of these laws reach beyond coal mining to cover all piece-rate pay, worker advocates today could add the wage checker to their arsenal of weapons for combating wage theft.

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Cite as: Charlotte S. Alexander, Another Set Of Eyes: A New-Old Proposal To Combat Wage Theft, JOTWELL (February 6, 2015) (reviewing Matthew W. Finkin, From Weight Checking to Wage Checking: Arming Workers to Combat Wage Theft, Ind. L.J. (forthcoming), available at SSRN), http://worklaw.jotwell.com/another-set-of-eyes-a-new-old-proposal-to-combat-wage-theft/.