I’d say no. If criminalized, I’d want it to be the kind of crime that requires intent, not merely completion of the action. In practice, you’d probably want to see a pattern of the behavior, rather than evidence of a one-time payroll error or the type of mistake you described.
I’m not being pedantic. What you said was the question the OP asked generally, but the argument is poor because it compares two completely different circumstances.
No, it should not be criminalized because it is simply a breach of contract. What other contract claims would you jail people for? Failure to pay a credit card bill? A utility bill? You asked the electric company for power, yet when it delivered and provided you with power, you didn’t pay. That’s the exact same thing that happens with “wage theft.” The employee performed and you didn’t pay. “Wage theft” is a short hand and very inaccurate term.
His word was embezzlement, not mine.
I think it should be criminalized in cases where there is intent.
But I’m also going to acknowledge that there are inherent problems in criminalizing this type of behavior.
One reason I’m not a big fan of “corporate personhood” is that’s it not possible to enforce criminal laws against corporations in the way that they are enforced against individuals. And it is often difficult or impossible to prove that any one individual is, beyond reasonable doubt, criminally guilty.
The civil standard of preponderance of evidence is easier to meet. I think there would be a great social benefit in terms of deterrence if these cases were criminally prosecuted. But I also think in most cases the victims just need their money as soon as possible and are content with civil remedies. That’s a side effect of the power imbalance.
And their are risks to attempting criminal prosecution. The first few cases would have to be carefully chosen and robustly defended. A loss in the initial cases could set precedent that makes it more difficult, or even impossible, for future attempts to succeed. And corporations know this and would make a collective effort to tank these cases.
And, off topic - but while we are discussing pension funds and withholding and the like:
If you suspect your company has made a mistake in your favor -like if your tax withholding or pension fund contributions drops significantly at the first of the year - bring it to their attention immediately.
Once that mistake is discovered, you WILL be liable for the shortfall. Unambiguously. You will lose if you fight it. The best you will be able to do is negotiate a payment plan. I’ve seen this happen several times in several situations. A neighbor of mine owed thousands to her condo board because they under assessed her common charges and no one caught it for years. She should have called them when she got a letter talking about a increase but her fees went down.
I’ve seen it happen with withholding and pensions, too.
Sorry for the diversion, go back on topic now,
ETA: IANAL (and neither are some lawyers)
ETA 2- Yeah, it’s not embezzlement. I’m not trying to minimize the severity of the crime, but words mean things.
I expect some sort of “intent to defraud” language in states that do have such laws already. But I only checked MN (§ 609.52, subd. 2(19)), where they did add wage theft to the criminal definition of theft. Perhaps to head off the low-value “well actually, that’s not what that word means” objections.
Fraud. As in:
- The defendant made a false representation of a fact or facts.
- The defendant either knew or believed the fact or facts to be false.
- The defendant intended to defraud, mislead or deceive.
- The victim believed the defendant’s false representation, justifiably relied on it and either took an action or decided not to take an action in response to it.
- The victim suffered a legal injury as a result of the misrepresentation by the defendant.
All of this can apply to employment and the non-payment or underpayment of wages earned.
They’re taking labor from the employee. Arguing that taking labor (and failing to pay huge sums of money for it) is just ‘a civil matter’ but that taking even a tiny amount of money should clearly be criminal goes right back to ‘rich people make the laws’. The inequity is obvious, what you’re arguing boils down to ‘the kind of theft rich people engage in should not be criminal, but the kind a poorer person does then it should’. In the OP I acknowledged the current state of law, this thread is not a discussion of ‘what is the law’ but ‘what should be the law’ or ‘what is moral’.
But it was never the employer’s labor to begin with, and they stole it from the employee.
Actually, it would be great if every employer in the country was risking arrest if they choose to engage in wage theft. If they’re risking jail or prison time every time they instruct someone to work off the clock, or ‘decline’ to pay for overtime, they would do it a lot less, and as someone else has posted wage theft is much larger than any other kind of theft in the US. For mistakes, they’d have the exact same redress that an employee who makes a mistake taking money from a company by mistake does, and genuine mistakes are clearly not the subject here.