For years, worker advocates have argued that “wage theft is theft.” Increasingly, legislators and prosecutors have agreed. If an employer intentionally fails to pay workers’ wages, why shouldn’t the law regard that conduct as a crime? A growing movement to criminalize wage theft, with laws on the books in thirty-seven states and Washington, D.C., now does just that. However, in More Harm Than Good, Alia Al-Khatib asks a deceptively simple question: What if criminal prosecution for wage theft is solving the wrong problem(s)?
Al-Khatib starts by cataloging three interconnected “spheres” in which wage theft causes harm: (1) the lives of the workers whose wages are stolen, (2) labor standards across workplaces, and (3) the communities in which workers live. She then analyzes the ways in which criminal penalties fall short of providing an adequate response.
First is harm to workers themselves. Wage theft deprives workers of money they have earned, and also causes emotional damage, broader economic insecurity, and loss of dignity. In addition, workers who complain about wage theft can experience actual and threatened retaliation and the associated stress and fear. Many are forced to choose between pursuing legal remedies and preserving the employment on which they and their families depend.
Criminal law, as Al-Khatib argues, is just not built to handle this array of harms. Criminalization is inherently punitive, not remedial. Even where successful wage theft prosecutions include restitution payments, by statute, these payments often exclude the emotional, familial, economic, and dignitary harms that workers have experienced.
The second harm is to labor standards more generally. Al-Khatib argues that employers who engage in wage theft are also likely to disregard other workplace protections and obligations, including safety requirements and prohibitions on harassment and discrimination. In this view, wage theft is just one part of a broader culture of worker exploitation. Further, employers who comply with the law find themselves competing against businesses that have lowered their wage bill simply by robbing workers’ pay.
Here, too, criminalization falls short. Research has failed to establish that criminal laws on wage theft deter much at all, both in the case of specific deterrence (evidenced by many repeat violators) or general deterrence (evidenced by high levels of wage theft even in jurisdictions with criminal laws). Al-Khatib concludes on this basis that criminalization is a poor approach to addressing wage theft’s workplace-level harms.
Third, wage theft harms the communities in which workers live and work. Most workers whose wages are stolen belong to immigrant groups, are people of color, and/or work in low-wage industries. Wage theft is therefore intertwined with racial and immigrant justice. As Al-Khatib shows, it is a structural problem, not just a question of individual economic loss. By the same token, criminalizing individual employers’ acts of wage theft does not address those acts’ broader causes or effects. Moreover, the criminal legal system is a particularly poorly suited tool in this context, given the system’s own long and well-documented history of injustice toward communities of color.
Beyond this insightful critique, Al-Khatib also provides a useful survey of criminal wage theft laws in the fifty states and Washington, D.C., as well as a detailed portrait of enforcement efforts in four jurisdictions: Connecticut, Minnesota, New York, and Washington, D.C. She finds that criminal enforcement is relatively rare, and when it does occur, it tends to advance goals, including punishment, coercion, and incarceration, that do not map neatly onto the harms workers identify as most pressing.
Al-Khatib ends by sketching out worker-centered alternatives to criminal wage theft enforcement. Readers may disagree about precisely where that balance should be struck. Some will undoubtedly conclude that criminal prosecution still has a role to play in especially egregious cases. But Al-Khatib skillfully shows the limits of that strategy, and outlines the continuing need for the hard, complicated work of building collective worker power, creating coalitions, and pursuing structural reform.
