When protesters set up in front of 75 Varick Street on Wednesday morning, a building security guard promptly shooed them further out onto the sidewalk, lest they block one of the buildings doors, which happened to be sealed off by construction tape and brown paper anyway.
But workers who spoke at the rally said getting into 75 Varick Street, location of the city headquarters of the state Department of Labor, was not the problem. The problem, they say, was getting DOL to act on claims that employers ripped them off.
One of them was Carlos Rodriguez Rivera, who worked for two years at a Domino's Pizza franchise, logging 66 or more hours a week and, he says, getting paid for only about 46 hours. He complained to the DOL in 2007. “I called every month,” he said, through a translator. “I never heard anything.” Finally, he says, he heard DOL had secured only $365 in back pay. “How is that possible?”
Yudon Wong, a garment worker, said she filed a claim in 2006 and gave up four years later. “They don't give me the answer,” she said.
There are debates about whether to raise the statewide minimum wage, adjust the prevailing wage paid to tradespeople or pay a “living wage” to workers on government-subsidized projects. But wage theft is a separate issue: Whatever the legal wage is, there are businesses that don't pay it, or who cheat workers out of overtime. One advocacy group estimates that New York State workers are ripped off $1 billion a year.
A coalition of advocacy groups including the Hunger Action Network, MFY Legal Services and the Urban Justice Center is pushing for the state to improve its enforcement. According to documents they obtained via the Freedom of Information Act, the state has more than 15,000 active wage theft cases, including 8,500 being investigated and another 7,200 where payment is pending. All told, about half the cases are more than one year old.
“The government is not keeping up with wage theft,” Maia Goodell, a supervising attorney at MFY Legal Services said. “Unscrupulous employers are learning this. They're learning that they can violate the law with impunity.”
The root of the problem, Goodell and colleagues say, the DOL only has 90 investigators statewide, meaning an average of load of 94 open cases per staffer. The DOL appears to have stopped referring serious cases to the Attorney General and, in May, said it would stop investigating cases that were more than three years old unless they were egregious; state law allows DOL to look back as many as six years.
DOL notes that many states' wage theft enforcement investigations only look back one or two years, while New York is still looking back at least three. The rationale for cutting New York's look-back to three years is to focus on the cases that are most likely to result in workers getting wages paid to them. And the reason fewer cases are being referred to the attorney general is that DOL feels it can do a better job with them.
Chris White, a spokesman for the DOL, defended the administration's record. “Under Governor Andrew M. Cuomo’s leadership, the New York State Department of Labor is a national leader in wage theft case processing and fund recovery. Every year since this Administration took office, the Department has increased the amount of stolen money returned to workers, with more than $18 million dollars to workers having been distributed this year alone. That’s 16.7 percent more than it had distributed at this time last year by a staff of 109 people, one of the largest in the nation.”
There's little disagreement that resources and capacity profoundly shape how the state polices wage theft; DOL says it punches above its weight, while advocates want it to do more. The political problem—the reason why demands for more enforcement resources haven't gained traction—could be that wage theft is seen as merely a social justice issue, and not for what it also is: a law enforcement issue, same as iPod thievery and drunk driving.
“A worker should be able to count on the right to be paid,” Goodell said. “Anything else is against the law.”