Wage theft is believed to be the most common form of stealing in the United States, taking an estimated $15 billion from the pockets of workers every year. But oftentimes the victims have no idea it's happening.
Prosecutors in San Diego are planning a crackdown on wage theft. The San Diego County District Attorney's Office recently received a $750,000 state grant to increase investigations and prosecutions of the crime.
District Attorney Summer Stephen said wage theft is rampant and underreported largely because California labor laws are complex and poorly understood by both employers and their workers. But she said ignorance of the law is no excuse.
"When you see a theft in a store, it's more visible and clear that it is theft," Stephen said. "But it's just as clear to me and to our team that it's theft to take away someone's wages that they earned. That is going to have a ripple effect that potentially is even larger than a retail theft."
Below are five common examples of wage theft. If you think you might be a victim of wage theft, you can report it to the state Labor Commissioner's Office or the city or county Office of Labor Standards and Enforcement. You can also contact the DA office's Workplace Justice Unit at workplacejustice@sdcda.org or 1-866-402-6044.
1. Misclassification as "exempt" employee
Jobs in California that pay less than $66,560 per year are protected by a host of regulations on pay and working conditions. Generally speaking, these employees — even those paid a flat salary — are entitled to dedicated breaks, overtime pay and other bonuses.
If you earn less than $66,560 but your employer does not pay overtime or offer dedicated breaks, you may be a victim of wage theft.
Jobs that pay more than $66,560 per year may be considered "exempt" from overtime regulations, but employees should seek to verify that such exemptions are legitimate and lawful.
2. Failure to pay the minimum wage
Paying employees less than the minimum wage is one of the most blatant forms of wage theft. California's statewide minimum wage is $16 per hour — but the city of San Diego's is $16.85.
Kyra Greene, executive director of the think tank Center of Policy Initiatives, said jobs involving work at multiple locations can be prone to wage theft.
"One way that someone might be underpaid in terms of the minimum wage is that they might work some hours in the city of San Diego and some hours outside the city, but be paid only the state minimum wage even when they're working inside the city of San Diego," Greene said.
California also has industry-specific minimum wages for the fast food and health care sectors that are higher than the statewide minimum wage.
3. Withholding paid sick days
As of this year, state law requires employers to offer their employees at least five days or 40 hours of paid sick leave per year — whichever is greater. If employees typically work 10-hour days, they should receive at least 50 hours of sick leave. Likewise if an employee works 6-hour days, they should receive five days of sick leave totaling 30 hours plus an additional 10 hours.
Employers also have to proactively tell their employees how much sick leave they have at their disposal, either on a paystub or through an online portal.
Your employer may be committing wage theft if they don’t offer you paid sick leave or haven’t told you how much sick leave you have. Another illegal practice is discouraging employees from using their accrued leave, Green said.
"People have accrued sick days, but there's a sort of pervasive feeling in their workplace that if you take it, you'll get punished — you'll get given a worse shift or you will maybe even be fired," Green said. "And those things are still illegal."
4. Withholding meal and rest breaks
If a non-exempt employee works more than five hours straight with no half-hour meal break, the employer must pay them for one additional hour of work. Failing to pay the employee that "meal premium" is wage theft. Failing to offer an employee a paid 10-minute rest break for every four hours of work is also illegal.
Greene said an employee may also be a victim of wage theft if they are prevented from leaving their work station while on break.
"They're told, 'You can take a rest break but you still have to keep your eye on the counter or you still have to keep an eye out for people coming in,'" Greene said. "That's not a rest break. That's still just working."
5. Withholding overtime pay
All employees in California are entitled to overtime pay — even salaried employees — unless they are covered by an exemption. Overtime pay is 1.5 times the employee's regular rate for work above eight hours in a day or 40 hours in a week. Work above 12 hours in one day, or working seven days straight, may entitle the employee to double pay.
Employers may unlawfully withhold overtime by simply not paying it, or by falsely telling the employee they are exempt from overtime laws.
