Against Criminalizing Wage Theft: Lessons From the Antitrafficking Movement

Abstract

Criminalizing wage theft is a popular idea. This Article argues that - based on practitioners' experience with human trafficking - workers' rights groups, legislators, and prosecutors should reconsider embracing the criminalization of wage theft as an effective response to preventing this form of abuse. Twenty years of experience with trafficking cases and data show that criminalizing wage theft is likely not only to be ineffective but also to cause further harm to the victims and vulnerable communities who suffer the most from wage theft. A review of labor trafficking cases and data shows the frequent negative impacts on victims from criminal prosecutions that would be avoided if existing civil enforcement systems redressing wage theft violations were instead adequately resourced. Learning from the antiviolence and antitrafficking movement's past carceral-focused approaches, workers' rights advocates must reject intensified law enforcement-focused approaches for combating wage theft. Indeed, advocates have the greatest chance of shifting resources from failed law enforcement efforts and creating new pathways for accountability for emerging crimes and for crimes like wage theft that have not been traditionally subjected to prosecution. In heeding this call, the powerful organizing voice of workers' rights advocates will amplify those currently calling for criminal reform in the United States that rejects mass incarceration and its associated disproportionate impact on Black and Brown communities. Calling for redirecting resources away from our criminal system to fund innovative efforts for accountability more robustly is an effort that workers' rights advocates, with their long history of community organizing and momentous efforts in partnership with vulnerable communities, are exceptionally well suited to lead. At a minimum, investment in developing data-driven, evidence-based practices to deter wage theft and create a better model of accountability on workers' own terms is sorely needed and must be prioritized by advocates and scholars.