Published January 2022
Federal Wage and Hour Division investigations in 2021 found, on average, $1,211.70 for each employee due back wages. Though the federal government might not know it, I don’t need to tell you how pervasive wage theft is in our industry. Nonprofits with everything riding on their grant writer, slimy directors setting up pet projects, and even big players like Live Nation can be caught doing it. It’s not that difficult to prey on giggers who lose track of details with a new employment agreement every few days and some gig-employers who play a kind of shell game, whereby the show, employer, venue, human resources, and payroll company are all listed by separate names. And nation-wide, a 2017 Economic Policy Institute report suggests that the total US wages stolen from workers due to minimum wage violations alone exceeds $15 billion every year. Although wage theft may be ubiquitous, it’s not always malicious. We must be diligent in our record keeping and proactive in our advocacy to prevent ourselves (and each other) from being victims.
Most people think wage theft is not getting paid but it goes way beyond that. Wage theft is defined as underpayment or failure to pay all wages earned.
Examples of wage theft include:
- Shorted pay
- Pays under minimum wage
- Pays overtime as single-time
- Tipped minimum wage violations
- Shorted time worked
- Work performed off the clock
- Made illegal adjustments to time clocked
- Working far more hours than promised for a flat rate
- Unlawful deductions
- Delays/Missed payday
- Could result in overdraft/late fees
- Could result in loss of earned interest
- No payment at all
- Skips town
- Declares bankruptcy
- Refuses to send final check
- Misclassification of employees as independent contractors
Wage Theft for Employees
If you experience wage theft from your employer, assume good faith and remain calm. Contact your employer’s payroll representative (usually HR or a managing director) and talk through what the issue is and what is a reasonable solution. If the employer admits error, it can be handy to drop them an email after the conversation to reiterate the plan for resolution.
Depending on the specifics of your case, it might be worth notifying your coworkers or union of the issue because others may have experienced the same error. If the employer becomes difficult, a union representative may have more power or tact to help resolve the issue. If multiple good-faith attempts have been made or you experience red flags which make you think you’ll never see that money, you can report the problem to your local Department of Labor or Department of Civil Rights. Documenting the problem and attempts to resolve it will come in handy.
If you are not getting paid for your work, you can withhold your labor. In a world where employers have so many advantages, this is your biggest tool. Timing is everything. It’s amazing how fast money will appear when the threat of holding up opening night is on the table. (Solidarity required. )
Employees in Minnesota as of Jan 1, 2020. A, employee pre-hire notice must be provided by the employer before work begins and must be signed by the employee (MN DLI: Wage Theft). This simple document includes at least the bare minimum to clarify the financial terms of the work arrangement. It must include the name, address, and contact information for the employer, the rate of pay, pay period and date of first payment, overtime exemption status, accrual rate of sick or vacation time, and expected deductions. The MN Department of Labor provides employers with a sample (MS Word download) to meet this requirement.
If you are an employee working under a contract, much of this information may be provided in that contract. However, because you are not required to sign it as a basis of your employment, the contract does not satisfy the pre-hire notice requirement.
These or similar requirements may also be obligatory in other states or municipalities. If it is not required and your employer does not provide it, we recommend you request it or work with your political representatives to require it.
Providing a pre-hire notice is not politically divisive. It creates transparency in the workplace relationship and therefore prevents miscommunication in good-faith actors. Both the employer and employee benefit from transparency. Laws like this one have been popping up in many states because of an initiative to crack down on wage theft. This transparency makes it easier for the Department of Labor to prosecute bad apples and protect workers’ rights.
Early in my career, I found a home stage managing for an organization that paid more than anyone else at the time (4 figures!). Surprisingly, they were also low-stress, high quality, and script-centric. But the fourth show I did with them had low turn-out and unanticipated costs. They failed to pay anyone in the cast and crew their full stipend. They were upfront about the problem and paid people out in installments. Peeved but privileged and loyal, I agreed to work their next show at the Guthrie Studio. An opportunity to work in the big room with access to modern working equipment, I wasn’t going to turn that down! From their perspective, this was going to pay all the bills and then some. A month after that show closed (and 6 months after the previous contract should have been paid), they still owed me $910.44 between the 2 shows. When I complained, they sent me a check for $100 and a promise to continue to pay off the rest of it “eventually.” At least they had transparent communication, I guess.
Wage Theft for Contractors
Step one: make sure you have a contract. The more you can be transparent in your contract about expectations, the easier it is to follow them or know when they’ve been broken. A contract is a binding agreement but a contract that is broken doesn’t necessarily mean it’s possible or reasonable to collect what’s owed. If you experience wage theft as a contractor, you can (and should) still follow the steps listed above to seek, in good faith, a resolution.
After that, if you still find yourself in a shitty wage theft situation, you have a couple of options:
- Take them to small claims court, if you are not in a forced arbitration situation
- Report them to your local Department of Civil Rights
- Count your losses
- Be a G*d D*mn F**king nuisance
Some states or municipalities may have requirements for contractors similar to the employee pre-hire notice described above. For instance, Minneapolis has one called the Freelancer Worker Protections ordinance. In any case, the key takeaway is to always have a written agreement – even among friends.
Yes – wage theft is real, it’s pervasive, and it’s possible (or maybe likely) that it’ll happen to you. But you are in luck because you have power and tools to not be a victim. Make it a goal to have transparency about work arrangements before you start. Keep records of the work you perform, what you expect to be paid for it, and keep on top of them. The better documentation of an inconsistency, the easier it will be to have a rational conversation with an employer and to get it resolved quickly. Save your most valuable (and most-risky) tool – withholding your labor – for when you’ve run out of all other options. If you walk away without pursuing justice, more people are likely to be victims. You CAN have this conversation; you are a reasonable person and being paid is a reasonable expectation.