The Theft of Wages Is Sin: Fighting for Migrant Workers
Advocates for migrant workers and local law enforcement team up to get deadbeat employers to pay up.
Until recently, APD didn't put much effort into pursuing nonpayers because such situations were considered civil disputes, says Commander Juan Gonzalez. Officers would typically refer workers with wage-claim issues to small claims court or to the Texas Workforce Commission. According to the Texas Penal Code, however, employers who intentionally avoid paying wages are guilty of "theft of service," a crime similar to refusing to pay a restaurant for serving you food or a taxi driver for giving you a ride.
In the past few months, Gonzalez and other APD officers have met with Casa Marianella staff as well as representatives from the Mexican consulate, the Catholic Diocese of Austin, and other migrant-focused agencies to formalize a procedure for reporting wage theft. Though additional standardization is necessary on APD's end to make things run more smoothly, Gonzalez says, what's already in place is "working beautifully."
If all goes well, Austin will eventually establish a workers-rights center and legal clinic focused on resolving wage claim issues, says Julien Ross, a grad student at UT's LBJ School of Public Affairs and the Casa Marianella volunteer leading the wage-claim fight. Casa has been helping workers with wage issues for years, he says, but efforts have been fairly disorganized. When Ross realized that unpaid wages were a widespread problem, he began researching state and federal employment laws intended to protect workers, including the federal Fair Labor Standards Act and the Texas Payday Law, and found they applied to migrant workers. But the TWC -- the state agency charged with handling wage-claim issues -- is too underfunded and underresourced to effectively enforce the laws, he asserts. "We need another mechanism." APD's commitment has helped Casa's efforts, Ross says. "We're not lawyers," he says. "A letter from Casa Marianella saying you didn't pay wages doesn't go very far."
In the past three months, Casa has held wage claim clinics two nights a week and has implemented a procedure to help workers get their money. Affected workers give their wage claims to Ross, who then contacts the employer. Sometimes all it takes to reclaim wages is one phone call; other times, employers hang up on him or provide excuses. If the employer proves unresponsive, Ross typically sends them a certified letter; if that doesn't work, he reports them to APD, which then files a report on its own and, if necessary, issues an arrest warrant. Currently, Ross has 40 open cases filed against employers, including one restaurant that refused to pay a worker one full week's wages. That case is currently on the county court-at-law docket. "All she needed to pay was $425," Ross says of the employer. Other employers have been more cooperative; so far, Casa has helped workers reclaim about $5,000 in unpaid wages, he said.
Aside from pursuing criminal charges, another mechanism available to unpaid workers on commercial or residential construction projects is the property lien. Recently, Ross filed 14 liens against Pulte Homes on behalf of one worker who wasn't paid by the subcontractor that hired him. Corporations are more frequently contracting out work to subcontractors, many of which are fly-by-night operations that take on projects without accurately calculating the time needed to complete them and hire migrants to do the work on a contingent basis. Furthermore, the economic downturn has produced a trickle-down effect: When general contractors go bankrupt, their subcontractors often don't get paid. They sometimes try to make up for shortfalls by issuing payroll checks that bounce or by picking up folks for contract labor, promising to pay them at the end of the week, then stiffing them. Valerie Dolenga, a spokeswoman for Michigan-based Pulte, says her company uses "pretty good, reputable organizations" to complete jobs and pressures subcontractors to pay workers if they haven't. "It's not something we encounter too often," she said.
County Attorney Ken Oden says his office has tried to take action when it believes it can prove a conscious and intentional effort to defraud the employee from the very start. But such proof is hard to come by. "From our end, if it's a bad debt, it's a civil process and contract question, and there's not much we can do," he said. Gonzalez agrees that proving harmful intent can be difficult, but he believes that local law enforcement's heightened involvement in wage claim cases will eventually deter many employers from stiffing workers. "I think the threat of APD has already made some employers pay up," he said.