Defying silence: immigrant women workers, wage theft, and anti-retaliation policy in the states.

• Author: Taykhman, Nicole

Abstract

A recent New York Times expose highlighted the inner workings of the nail salon industry in New York City, and revealed to the public how rampant wage theft props up an industry that relies on low-wage, undocumented women workers. New York's response provides a starting point to consider how governments should respond to wage theft as it affects undocumented women. There are various legal regimes available for responding to wage theft, but each presents serious shortcomings when it intersects with the immigration system, primarily because of the threat of retaliation. As federal protections are weak or exacerbate the victimization of undocumented women, states should strengthen anti-retaliation protections specific to undocumented workers. California passed legislation in this area which New York should adopt. While the protections provided in California's legislation would strengthen each of the various legal regimes discussed, they would also empower undocumented women to break the silence imposed by retaliation and tell narratives that resist victimization.

INTRODUCTION: WAGE THEFT IN NAIL SALONS AND ONE STATE'S RESPONSE

In May 2015, an investigative report in The New York Times shone a light on the inner workings of the New York metropolitan area's nail salon industry, one that many New Yorkers are aware operates to deliver what most people in the world would consider a luxury service, for a seemingly impossibly low fee. (1) The ten-dollar manicure, taken for granted in a city that promises to deliver virtually any good or service to consumers for a price, might have been justified as just another perk of living in a big city with sufficient competition in the spa services industry to keep prices low. The report not only exposed labor practices invisible to most consumers and lawmakers, it also forced the public to confront the economic reality behind a price that low. (2) Perhaps most important, the report used personal stories gathered through more than one hundred interviews as the chief documentation of the labor abuses occurring in New York's nail salons, (3) highlighting the human cost that undergirds the industry's profits. Through these interviews, workers, many of whom are undocumented Asian or Latina women, conveyed their experiences with wage theft.

The Times report identified several discrete forms of exploitation that routinely occur in New York nail salons. The first exploitative practice typically occurs on an employee's first day, when a nail salon worker might be required to pay the salon owner a "training fee"--likely between $100 to $200--to begin her job. (4) She then may work unpaid, surviving on tips alone until the owner decides to pay her a wage. (5) Once she is considered eligible for a regular wage, that wage is highly likely to fall below New York's mandated minimum wage. (6) To earn a raise, a worker likely must learn new skills, such as eyebrow waxing or gel manicures--and pay another fee for training. (7) The low wages are coupled with long hours and few breaks. (8) On top of this already exploitative baseline, workers report additional forms of wage abuse, including having tips docked as punishment for mistakes like spilling a bottle of nail polish. (9)

New York State responded following the expose, though advocates for nail salon workers have been exposing the harms in the nail industry for years. (10) Governor Andrew Cuomo immediately enacted temporary, emergency rules to create an Enforcement Task Force drawn from several state agencies to investigate the reported wage and health abuses. (11) The rules immediately required salons to post "Workers' Bill of Rights" signs in their shops in six languages. (12) The state promised to require salons to pay back wages where necessary and to require salons to be bonded to ensure that workers would be able to collect these wages. (13) In June 2015, the New York Legislature passed several permanent measures addressing wage theft in the nail salon industry. (14)

In the following few months, New York State initiated additional efforts to protect workers from wage theft. In July 2015, Governor Cuomo formed a Task Force to End Worker Exploitation composed of twelve state agencies acting together to enforce prohibitions against wage theft. (15) The Task Force subsequently opened more than 450 cases. (16) New York also created an "Anti-Retaliation Unit" in October 2015, consisting of attorneys and investigators who act to inform employers of the consequences of retaliation against workers' workplace complaints and provide employers with an opportunity to reverse retaliatory actions. (17)

Given the outcry following the Times report, journalists and advocates promptly reminded the public that wage abuse exists in other industries, such as gas stations, restaurants, and construction, among many others. (18) The report also sparked debate about whether state actors could act effectively and fairly to curb wage theft in an industry like the nail salon industry, which consists of small, often immigrant-owned businesses. While some observers lauded New York for acting quickly, several launched attacks ranging from arguments that the women interviewed were not representative of a largely well-functioning industry that was unfairly portrayed, (19) to reminders to the public that consumers might have a stronger responsibility to bear in changing business practices that outrage them. New York's action provides only one model for states to pursue in response to a multifaceted problem like wage theft. It is yet to be seen whether the New York approach was sufficiently responsive, imperfect, or seriously misguided, but New York's professed commitment to addressing wage theft provides a helpful starting point for considering how this particular state may move forward most effectively.

This Article is about wage theft, which is typically defined as the nonpayment of wages for work that has already been performed. (20) Wage theft also includes subtler forms of unfairness towards employees, such as practices that coerce employees into accepting unfair terms of employment, like payment below the legally mandated minimum wage, beginning work with periods of unpaid "training," and the requirement that an employee pay a fee to begin an entry-level job. Assessing the prevalence of wage theft in our national economy is extremely difficult, but the Economic Policy Institute recently determined that employers paid $933 million in back wages for wage theft violations in 2012 alone. (21) By contrast, less than $350 million was stolen in all robberies reported to the police in the same year, such that lawmakers should be particularly attentive to the problem of wage theft today. (22) $933 million is still a severe underestimation of the problem, however, as the vast majority of low-wage and undocumented workers, who are the primary victims of wage theft, never file a claim or receive back wages for their losses. (23)

This Article questions how governments should respond to wage theft as it affects undocumented women workers. Specifically, it argues that state legislators should pursue policies that protect undocumented workers from retaliation in the workplace, rather than expand access to the U Visa, a federal immigration benefit available to those who assist law enforcement in the investigation of certain crimes. In Part I, I introduce the problem of wage theft for immigrant women workers. In Part II, I consider the range of legal regimes available to advocates interested in combating wage theft, including criminal prosecutions, private civil suits, agency-led action, and market-based solutions. Analyzing the utility of each of these legal regimes, I highlight the shortcomings each tool presents as it intersects with the immigration system. In Part III, I argue that guarding against retaliation on the basis of immigration status should be a central policy focus of state laws addressing wage theft. I observe that the specter of retaliation against undocumented women workers substantially hinders the utility of the tools discussed in Part II. I consider existing federal anti-retaliation protections, and argue that these are either inherently weak or, in the case of the U Visa, exacerbate the victimization of undocumented women workers. These unsatisfying federal policies, coupled with increasing state policymaking on issues affecting immigrant workers, provide an opportunity for states to advance anti-retaliation policy that specifically protects undocumented workers. (24) I discuss California's recent legislation in this area, and argue that New York, as one state that has demonstrated will to address this problem, should adopt certain key provisions from California. Finally, I argue that a stronger anti-retaliation policy would empower undocumented women workers who experience wage theft to break the silence imposed on them by the threat of retaliation, tell complex narratives that resist victimization, and choose their own advocacy methods.

1. Undocumented Women Workers and Wage Theft

   While employers wield wage theft against men and women, as well as citizens and non-citizens, this Article focuses on the experiences of undocumented women workers with wage theft. Women constitute about half of the 11.4 million undocumented immigrants in the United States. (25) While it does not appear counterintuitive that half of the country's undocumented immigrants are female, this figure is notable because the historic gap between male and female immigration to the United States, in which men have always immigrated in greater numbers, has been narrowing in recent years. (26) Indeed, the United States has experienced a "feminization of immigration" in recent decades, in which the number of women immigrating to the United States has surpassed the number of men. (27) Of course, accurately assessing the number of undocumented women in the workforce is nearly...