U.C. Davis Law Review
Benjamin Levin, Wage Theft Criminalization, 54 U.C. Davis L. Rev. 1429 (2021), available at https://scholar.law.colorado.edu/faculty-articles/1315.
Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace. The phrase invokes a certain moral clarity: theft is wrong. The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished. Harshly. Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes to reach wage theft.
In this Article, I examine the drive to criminalize wage theft. In the literature on workers’ rights, “wage theft” has been accepted uncritically as a distinct problem. But the literature fails to grapple with what makes wage theft clearly distinguishable from other abusive practices endemic to capitalism. For scholars concerned about worker power and economic inequality, does classifying one class of conduct “wage theft” actually serve to legitimate the other injustices of the labor market?
Further, the literature on wage theft has failed to reckon with the stakes of using criminal law and incarceration as the tools to remedy workplace violations. Absent from the discourse on wage theft is any engagement with one of the most vital contemporary movements to confront structural inequality: the fight to end mass incarceration. Despite insistence from proponents of wage theft criminalization that their focus is on society’s most marginalized, particularly poor people of color, these advocates have turned to a criminal system that is widely viewed as inimical to the interests of those same marginalized populations. Moreover, in calling for criminal prosecution, many commentators have embraced the same actors and institutions that have decimated poor communities and constructed a hyper-policed population. By resituating wage theft within the literature on mass incarceration, I examine the limitations of using criminalization to redress economic injustices. I frame pro-criminalization arguments within the growing literature and activist discourse on decarceration and abolition, examining why criminalization of wage theft is and might be particularly problematic.
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