Wage theft in South Florida: Nation's first county with wage theft protections reports on progress and perils

by Kim Krisberg

Earlier this month, Florida lawmakers wrapped up their latest legislative session. And nearly 500 miles south of Tallahassee in Miami-Dade County, workers' rights advocates breathed yet another sigh of relief.

Ever since Miami-Dade adopted the nation's first countywide wage theft ordinance in 2010, it's been under attack. For the first two years after its passage, state legislators tried to pass legislation to pre-empt local communities from passing their own wage theft laws; this last legislative session, they tried again but included a carve out for Miami-Dade and for Broward County, which passed its own wage theft measure in 2012. All three tries have died in the state Senate, but worker advocates aren't optimistic that the fight is over.

Still, in a state that decided to dismantle its department of labor a decade ago, Miami's wage theft ordinance is a milestone for Florida workers and one that's slowly spreading throughout the Sunshine State. Just last month, the northern county of Alachua passed a wage theft measure, and north of Miami in Palm Beach County, the local Legal Aid Society runs a wage theft pilot program that could pave the way for a legal ordinance.

"Wage theft is a huge problem in South Florida — it's absolutely huge," said Jeanette Smith, executive director of South Florida Interfaith Worker Justice, one of the groups that led the passage of Miami-Dade's ordinance. "As individual organizations we couldn't solve this problem on our own. Cases just kept coming and coming and we needed something systematic, a more institutionalized solution."

Since Miami-Dade's wage theft ordinance went into effect, hundreds of thousands of dollars in stolen wages have been recovered and more workers are filing wage theft complaints. Much of the progress to date is credited to the broad and diverse coalition that came together to tackle the problem — the South Florida Wage Theft Task Force (today, it's known as just the Florida Wage Theft Task Force). Its members include faith-based groups, immigrant rights organizations, unions, women's groups, researchers, legal aid and many more.

The groups originally came together about seven years ago to help a group of day laborers in Cutler Bay just southwest of Miami. At the time, a local developer had begun harassing the workers and their potential employers. At one point, the developer was arrested for physically attacking workers. In response, advocates came together in defense of the day laborers and quickly began talking about other issues facing workers in South Florida. Wage theft was at the top of the list. It was the first step on the road to a countywide ordinance.

"Today, people are talking about wage theft, workers are speaking up," Smith told me. "The success has been so much broader than just the ordinance itself."

Sun, surf and wage theft

In the span of just two-and-a-half years, more than $28 million in unpaid wages has been recovered by the U.S. Department of Labor's Wage and Hour Division in Florida, county staff enforcing Miami-Dade's wage theft ordinance and by advocacy groups throughout the state, according to a 2012 report from the Research Institute on Social & Economic Policy at Florida International University (FIU). But even though it's clear that Florida has a serious wage theft problem, as of late 2011, Florida's attorney general hadn't taken a single civil action to enforce the state's minimum wage law, and there is no state agency charged with enforcing wage and hour laws. Miami-Dade County leads the state in wage theft cases.

Cynthia Hernandez, a co-author of the report and a senior research associate at the institute, estimates that the South Florida economy is losing between $2 million and $6 million every year to wage theft. And that, by no means, reflects the larger impact of wage theft on families, neighborhoods and local economies, Hernandez told me. Hernandez and her colleagues first began investigating wage theft in 2006, interviewing immigrant workers and employers in the region's plant nursery industry. Many of the employers interviewed said they pay below minimum wage because they can get away with it, while others said it was the only way to compete.

"We were definitely surprised," Hernandez said. "I think everyone at the table was surprised they would just admit to it."

From there the researchers began digging deeper. While immigrants and agricultural workers were certainly among the most vulnerable to wage theft and more likely to experience it, they weren't the only ones. Wage theft complaints were coming in from the tourist, retail, hospitality and constructions sectors, but also from workers not typically associated with wage theft problems, such as teachers, attorneys and accountants.

"Unfortunately, it's just become the way of doing business in South Florida," Hernandez said.

At South Florida Interfaith Worker Justice, staff had spent years helping workers on a case-by-case basis to recover their wages. Their approach was similar to worker centers throughout the country — approach the employer and let him or her know that this worker is not alone. Ask for the owed wages or negotiate a payment plan. If that doesn't work, it's time for direct action, such as protects and attracting media attention. (See past stories on worker centers addressing wage theft and other employer abuses in Austin, El Paso, Houston, and the Rio Grande Valley.) The cases, however, just kept coming and there was no systematic incentive for employers to stop practicing wage theft in the first place. That's where the South Florida Wage Theft Task Force came in.

After first coming together to help the day laborers in Cutler Bay, task force members spent two years meeting with officials and stakeholders, looking for any measure or authority already in existence that could address wage theft. But other than taking cases to federal labor investigators or to court — an option very much out of reach for low-wage and immigrant workers — there was nothing that could effectively stem the rising tide of wage theft in South Florida. Having sought and found no other alternatives, when task force members went to their local elected officials to call for a wage theft ordinance they could truly say that a local ordinance was the best chance for a solution.

State Rep. Jose Rodriguez, who at the time was working with Florida Legal Services, developed most of the ordinance language, and task force members found a champion in County Commissioner Natacha Seijas (she's no longer on the commission). On Feb. 18, 2010, county commissioners voted 10-0 to pass the nation's first countywide wage theft measure — it was technically a unanimous vote, though some commissioners left the room instead of voting.

Throughout the process, advocates didn't call a lot of attention to their work. It turned out to be a great advantage, Smith said, as the business community didn't catch wind of the wage theft proposal until the last minute. Eventually, the Florida Retail Federation did catch on, but it was too late to stop a vote. The federation did end up filing a lawsuit challenging the constitutionality of the ordinance (a judge threw it out last year) and is behind the statewide attempts to pre-empt local wage theft measures.

With passage of the ordinance, the county's Small Business Development division was responsible for dealing with wage theft complaints (the task has now been shifted to the county's Consumer Services Department). The process works like this: County staff directly contacts employers engaged in wage theft and leads negotiations between workers and employers. If employers don't respond, the case goes to an administrative hearing, where both sides present their cases before a hearing officer. If the officer determines that wage theft has occurred, he or she can order the employer to pay up to three times the amount of wages owed as well as administrative costs.

Within the first year-and-a-half of the ordinance's passage, hundreds of thousands in owed wages was collected simply by having county officials pick up the phone, said Francesca Menes, policy and advocacy coordinator at the Florida Immigrant Coalition, a member of the South Florida Wage Theft Task Force.

"As a local organization we can call an employer, but it doesn't come with the power of the government," Menes told me. "We've made so much progress. Not everything is perfect, but we're learning as we go along."

Progress and protection

According to a September 2012 report from the Research Institute on Social & Economic Policy, Miami-Dade County staff had recovered more than $500,000 in owed wages and received nearly 2,000 wage complaints. It took an average of 103 days to recover wages. Still, more than $2 million in owed wages has yet to be collected, and wage theft complaints have doubled every year since the ordinance went into effect. At the time of the report, only 1.5 county staff were responsible for addressing wage theft cases, and hundreds of workers were still waiting to be helped.

While there have been some hiccups along the way, Menes said that task force members regularly meet with county officials to monitor the program's effectiveness.

"If these wages aren't going into workers' pockets, it's not going into the local economy and that's detrimental to all of us in the end," she said.

Jonathan Fried, executive director of We Count!, an immigrant workers advocacy group and a member of the wage theft task force, said the ordinance hasn't been as effective as he'd hoped. He said he's concerned that many workers are being misclassified as independent contractors and that "there's a bias creeping in in favor of employers." He noted that with such a backlog of cases and limited county resources, many cases never got heard and the workers involved have already left the area. We Count! also has a history of combating wage theft cases on an individual basis via employer-employee negotiations and direct action.

"We're concerned that workers aren't getting a fair hearing and the process is disadvantageous to workers who don't have an attorney," Fried told me. "It's been a big step forward, but there's some small changes that could be made to really improve it. Ultimately, my belief is that in addition to a state department of labor, we need some changes in federal law and federal enforcement. You shouldn't be able to get away with not paying a worker."

Hernandez at FIU said she'll be spending the summer studying the ordinance's effectiveness and how it can be improved, including the issue of having an attorney present at an administrative hearing (both sides can bring an attorney if they want, though it's not required). In the long run, Hernandez said Florida "needs a statewide strategy so we're not just on the defense."

Beyond just wage theft, Hernandez noted that employers that break wage and hour laws also seem more likely to ignore workplace health and safety regulations. Smith agreed — "wage theft and health safety violations go hand in hand," she said.

"As we've been working on wage theft, we've been looking at workplace health and safety...and now a few of us are working together to be more mindful and deliberate about workplace safety," Smith said. "It's complicated to get people to focus on safety because a first concern is getting their wages and keeping their jobs. We've been looking at it as an offshoot, but we need to pay it more attention."

To learn more about Miami-Dade County's wage theft progress, visit www.stopwagetheft.org or www.risep-fiu.org/tag/florida-wage-theft-task-force.

Kim Krisberg is a freelance public health writer living in Austin, Texas, and has been writing about public health for more than a decade.