Guest Blog Post from Barbra A. Kavanaugh
December 4, 2012
Everyone knows what theft is, but I am constantly surprised by how few people know what “wage theft” is. Simply put, wage theft is when employers refuse to pay employees the wages they have earned, either by denying them the minimum wage, overtime or frequently, simply not paying them at all. Every week, more than two-thirds of low-wage workers experience at least one incident of wage theft. At a time when many Americans are living paycheck to paycheck, for many of the clients we see, even just one incident of wage theft can result in unpaid rent, car repossession or homelessness.
One of the most common ways that employers steal wages is by misclassifying their employees as independent contractors to avoid paying the legally required minimum wage and overtime pay. Workers who are wrongly labeled as independent contractors are cheated of many of the legal protections afforded to employees – including minimum wage and overtime.
No matter what an employer calls a worker, the law determines whether a worker is an employee or independent contractor. Although there is no hard and fast rule, the more control an employer has over the circumstances of a worker’s employment, the more likely it is that the worker should be considered an employee, and not an independent contractor. For example, if an employer controls the hours that someone works, where they work and provides their equipment, that person is not likely to be an independent contractor. Too often, employers take advantage of workers’ ignorance on this issue, and deny rightful wages, overtime, breaks, sick leave, vacation and other benefits, while telling workers they are doing so legally. They are not.
The Employment Justice Center, Jobs with Justice and other allies have been working to make it harder for employers to steal wages by misclassifying their employees. Legislative reform is part of those efforts, but so is education. Low-wage workers cannot defend their rights if they do not know them and they cannot do it alone. It is important for everyone to know the people they do business with – and whether their workers are paid a living wage, benefits, or sick leave. By asking these questions, and refusing to do business with employers who do not provide their workers with a just and lawful workplace – we are advocates for those workers who may not know their rights, or cannot risk complaining themselves.
Barbra Kavanaugh, Esq. is Executive Director of Employment Justice Center