Access Disparity: Why Wage Theft is Still a Problem

I have been practicing law in Abilene, Texas for nearly thirty years. During that time, I have had a view the American judicial system from a number of different angles. And one of the biggest problems I have consistently encountered is something that I have come to call access disparity.

Access disparity occurs when one person (or group) has a more privileged level of access to the justice system than another person (or group). This can be for a number of reasons, but the two most common reasons are: (1) the parties have different entry points into the system, one of which is more difficult than the other, (2) enforcing rights requires a substantial amount of resources, and one party or group doesn't have access to sufficient resources to enforce their rights. Either way, this creates a system of inequality in which a weaker individual or group can be exploited by another (usually, more wealthy) individual or group.

Access disparity has nothing to do with the content of the law. The law itself may provide significant rights to the weaker group, and indeed the law's purported assertion of such rights will often serve to hide the problem of access disparity in plain sight. You can have all of the laws in the world protecting you, but if you don't have a way to enforce those rights, none of them do you any good.

I recently ran across a very simple illustration of the problem of access disparity: wage theft. Let's suppose a minimum wage worker walks into her place of business one day, opens up the cash register, and takes $150 in cash, which she intends to spend on her family's needs. If her manager catches her, what will happen next? The manager will likely call the police, who will show up in a very short period of time and issue a citation, if they don't arrest her. She'll be brought before a judge, and sentenced to pay a fine or spend time in jail. And of course, any of the cash that she hasn't yet spent will be immediately returned to the employer.

But what happens if, after she works a long overtime shift one weekend, her employer fails to pay her $150 in wages? She can call the police if she likes, but they are likely only to refer or over to the wages and hour division of her local department of labor. From there, she will be given a form to fill out. After filling out the form, she will be set for an administrative hearing, where she and the employer will be invited to attend. If the employer doesn't hire a lawyer for the proceeding, the employer will likely have a college-educated human relations professional, with training and experience in these situations. Not having the money to hire a lawyer, the employee will show up on her own. During the hearing, the employer may come up with some reason why the overtime was properly denied and use the procedures established by the agency to their advantage. Maybe the employee wins and maybe she doesn't. But clearly her experience will not be as easy as the employer's experience in reporting the cash that was taken from the register, nor will the outcome be as certain.

And then, even if she wins, what happens next? The law purportedly protects her from retaliatory actions by her employer, but unscrupulous employers will often find ways to create other excuses for making life difficult for the employee where the motive or retaliation is easily deniable. Again, the employee may find that enforcing those rights is extremely difficult.

Here is the point.

The employee who steals cash and the employer who has withheld wages from an employee have both committed a wrong that caused the other to lose $150. We consider both of these actions to be unacceptable as a society. And the law does indeed, on its face, protect their respective rights. But there is still substantial inequality between the two because of access disparity. The employee has a different entry point, and she has less resources to put into paying for an advocate to represent her in the proceedings.

There is only so much that an individual can do to address this disparity. The system is again set up and controlled by those with - here comes that word again - access to lawmakers and the legislative process, and employees usually don't have that kind of clout. But everyone can do is raise awareness of the problem. Additionally, even though the disparity is significant, anyone who thinks they are the victim of wage theft should do what they can to enforce their rights as aggressively as possible. You may not win your case, but - after the experience of responding to your claim - your employer may think twice about trying it again on you or someone else.