I strongly support the movement to increase Maine’s minimum wage, but we first should recognize that across the state many workers are not getting paid the wages that the law already requires they be paid. From migrant labor crew leaders who disappear on payday to Fortune 500 companies that shave a few imperceptible minutes off time clocks, millions of dollars in workers’ wages end up on the corporate profit side of the balance sheet. We need to hold these corporations accountable, to help working families, but also to level the playing field for the hardworking small-business people who pay an honest wage for honest work.
For those living payday to payday, a late check can mean an eviction. And the refusal to pay earned overtime at time-and-a-half might lead to less healthy meals for a family. There are several forms of wage theft that are so endemic in the Maine economy that workers don’t always realize they are victims. One is not paying workers for travel time from the central office to the job site and back, or from jobsite to jobsite during the day as the law requires.
Sometimes workers are told to stay and work off the clock for, say, 20 minutes at the end of every shift. Perhaps they log out of a computer system but then have other required tasks that aren’t recorded. Another very common practice is to automatically deduct a lunch period even though the employee is still on some type of duty.
Some companies treat employees working more than 40 hours per week as independent contractors to avoid paying time-and-a-half. This not only takes money from the worker, but it defrauds the government of taxes and insurance payments. Others are misclassified as executive or administrative personnel when they have little authority. The corporations pay them a “salary” that doesn’t include time-and-a-half for hours over 40. Fortunately, the worker can later go back and demand the overtime based on the effective hourly rate.
Restaurant workers often find that managers are impermissibly sharing their tips, or simply not passing on tips made on credit cards. A lot of these violations nickel-and-dime workers, but in today’s economy we are often just happy to have a job. Fortunately, worker protection laws have been strong since the New Deal. Workers who pursue back pay are protected from retaliation and can even seek payments from companies they have already left. They have two and, sometimes, three years to bring a case under the federal Fair Labor Standards Act and can go back as much as six years under the Maine Wage Act.
Another egregious example of wage theft is the all-too-common unpaid internship. While truly educational internships are legal and part of a healthy economy, too often interns perform grunt labor that should be done by paid employees. And requiring unpaid internships as an entry into good jobs is especially pernicious because it closes those jobs off to workers from families that can’t support their 22-year-olds for another year. Fortunately, former interns are successfully bringing claims against movie studios and other companies for back pay at minimum wage.
In this tough economy, many entry-level workers aren’t paid for so-called training time even though they are doing the work that employees normally do. This is essentially an illegal pay-to-play scam that brings starting wages below minimum wage.
Workers can bring their claims to the U.S. or Maine Departments of Labor, or they can talk to private attorneys, who can often take a case on a contingency. The cases are complicated, and the corporate lobby has stuck all sorts of exclusions and exemptions into the law, but if a pay practice seems unfair, it is wise to have the Department of Labor or a private attorney versed in wage and overtime law take a look at it. Employees can bring claims on behalf of themselves and others who suffered the same practice, and can often get double or even triple damages.
It might only be $10 per paycheck, but wage theft adds up for the Maine economy. Millions of dollars that should go to paychecks to be spent in local communities get diverted into dividend checks that often leave the state. The workers of Maine have an obligation to stand up for themselves and each other so that corporations know they can’t get away with this any more.
Andrew Schmidt is an attorney in Portland. He can be reached at andy@maineworkerjustice.com.