Wage Theft: From Investigation to Resolution

Episode Notes

Transcript

Workers Comp Matters

Wage Theft: From Investigation to Resolution

02/20/2019

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Intro: This is Workers Comp Matters, hosted by attorney Alan S. Pierce, the only Legal Talk Network program that focuses entirely on the people and the law in workers’ compensation cases. Nationally recognized trial attorney, expert, and author Alan S. Pierce is a leader committed to making a difference when workers comp matters.

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Alan S. Pierce: Welcome to Legal Talk Network and Workers Comp Matters. My name is Alan Pierce. As you know by now, I am an attorney at Pierce, Pierce & Napolitano in Salem. And we are bringing you another edition of Workers Comp Matters.

Today’s guest is Karla Zarbo, not an easy name if you have a Boston accent, so I am trying very hard not to say Karla Zabo, but it is Karla Zarbo.

Karla is an Assistant Attorney General, she’s with the Commonwealth of Massachusetts Office of Attorney General Maura Healey. And Karla is going to be talking about a subject that is a little off the general workers’ compensation topic, but it does involve matters of compensation to workers, and that is actually their rights for wages, overtime and generally, I guess what we call wage theft, and what her office at the Attorney General’s Fair Labor Division can do and what employees or attorneys can do and the various areas of law that she deals with in the employment arena.

Before we get into our topic, we again want to thank our sponsor Case Pacer, practice management software dedicated to the busy trial attorney. To learn more, go to casepacer.com.

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So Karla, thank you for appearing on Workers Comp Matters, just in the way of background Karla Zarbo as I mentioned is an Assistant Attorney General in the Fair Labor Division. She is a graduate of Boston College and she is a graduate of Suffolk University Law School. And she has spent her 21 years of practice to date working in the Office of the Attorney General.

So Karla, let’s begin by talking about how would you define what is commonly referred to as wage theft?

Karla Zarbo: First of all, thank you for inviting me. Obviously, where anyone in the Fair Labor Division we’re always happy to talk about the work that our division does. So yeah, wage theft is sort of a newer term. It’s coming to vogue last couple of years and it’s sort of a catch-all phrase. It covers not just non-payment of wage, a straight or what we call a straight non-payment of wage, but it also covers a non-payment of minimum wage, overtime, employment misclassification, having employees work off the clock time, missed meal periods, meal breaks into legal wage deductions, stealing tips.

So it’s a term that really is intended to cover all of those things, not just failure to pay wages.

Alan S. Pierce: And obviously the Commonwealth of Massachusetts, through its Office of Attorney General, has a division set up for that. And I know there are regulations and statutes here in the Commonwealth that deals with most if not all of these issues. Can I assume since this broadcast goes out across the country that pretty much every jurisdiction has a division of departments similar to yours and are you aware of any significant variances?

Karla Zarbo: Yeah, most states do have it in some form or another, not all of them are within the Attorney General, some of them might have a separate state labor department. And actually at Massachusetts, we also have a Department of Labor Standards. We actually have a split between the enforcement authority which is Massachusetts Attorney General and the implementation including regulatory authority for minimum wage and overtime regs, that’s handled by our State Department of Labor.

So a lot of states have a combination of the two, but most states have something in place that’s similar to what we do.

Alan S. Pierce: Okay, so what gets somebody in your position started on a new case? Let’s assume it involves something like even non-payment of wages or under payment of wages. How do you hear about it and what happens?

Karla Zarbo: So we can get our cases that we actually conduct investigations and we can get them from a variety of sources, but probably the most common way we get them is through complaints. And we actually have an online filing system, anybody can go on to the Attorney General’s website and they can do it for other stuff too for consumer protection; whatever area they have an issue in.

(00:04:53)

But we have different complaint forms and some of the more common types of wage hour complaints we actually have them translated into other languages too, some of the more common languages like Spanish, Portuguese, Chinese. And someone can just fill out that form, hit the button then we can get their complaint, that’s all we need to start an investigation.

We look at the complaint and we know what type of an allegation it is and it gets assigned to an investigator. In our particular division, every state might operate a little differently but in our particular division, we mostly work in teams where we have investigators that are paired up with attorneys and they work together.

So right from the beginning, the investigator has somebody to go to for legal advice. They’re not sort of floating on their own. So it’s more of a directed investigation.

Alan S. Pierce:  Okay. So if there is a violation or violations uncovered, what type of corrective action is taken? Do you have the ability to recover monies for the complaining employees and let’s assume one employee complains, an investigation takes place, and it also affects other employees. Do they benefit from the complaint of the person who actually initiated the process?

Karla Zarbo: Right, that’s actually a really common scenario like we’ll get a complaint let’s say from one worker, saying they were improperly, illegally denied overtime, let’s say. If it’s something like that where the person is alleging this isn’t just an anomaly but a systemic problem, we will look at the entire company. We won’t look just for that one worker, look to see if other people are affected.

And we do have the right to recover money. We have a number of different ways we can do it. If we choose to, we can sometimes ask the employer if they want to voluntarily enter into a settlement with us where we can recover the wages for the workers, maybe we’re going to ask them to pay some sort of penalty to the state and we would resolve it through a written settlement agreement as opposed to a formal in court proceeding.

We also can do civil citations where we can cite the employer that include also restitution and a penalty. The employer would have a right to appeal it if they wanted to, it’s a process we have within the State. We actually have an agency, the Division of Administrative Law Appeals that handles agency citations. They handle other governmental agency citations.

And the other alternative we have is criminal prosecution, which obviously we reserved for the most egregious types of violations.

Alan S. Pierce: I may want to get into that in a little bit, but let me shift gears a bit. And this is where I think this intersects a lot with people like myself who handle workers comp cases. We, of course, generally are representing hourly workers as opposed to salaried, contractual salaried workers, although we do. We also tend to represent perhaps people on the lower end of the wage scale, primarily because of the type of work that produces injuries.

And we frequently deal with average weekly wage issues and see the different ways employers choose to remunerate their employees, anything from cash under the table to misclassification calling them independent contractors and not even having workers comp, not paying overtime and our calculation begins by determining what the average wage is.

So I frequently may be encountering clients who are coming to see me after an injury and seeing that something doesn’t look right with the way they were paid. And I know there are attorneys like me that have as part of their practice a wage and hour sort of collection process or a legal process. So tell me how a private attorney might institute a private cause of action on behalf of his or her client to recover monies and how that can be done or needs to be done in conjunction with your office?

Karla Zarbo: So in Massachusetts for the vast majority of the wage and hour laws including the Wage Act, minimum wage overtime, all those statutes have a provision in there, that allows employees to pursue their own civil lawsuits. They can report to us and we can investigate but if they want to, they can bring their own — it’s called a private right of action where they can act as if they were in the standing in the shoes of the Attorney General and collect the money, their wages on their own behalf.

They’re allowed to do that not just for themselves but for any co-workers that are also affected and under our state law, if they prevail, they get trouble damages meaning three times what the employer owes them. They get attorneys fees, they get all their litigation costs, so it can be an effective recovery avenue for a lot of — for attorneys, it benefits the employees.

And that was really the intent of the legislature creating this provision is the recognition that the Attorney General, we only have a finite amount of resources, we cannot bring enforcement in every case we encounter.

And by employees, on their own, having the right to bring their own actions, not only they’re protecting themselves, protecting their own rights but they can also bring actions on behalf of co-workers.

(00:10:00)

So they are out there helping the work of the Attorney General and for themselves as well. I know a lot of other states have similar things.

In California for example, they have something called PAGA, Private Attorneys General Action, where it’s a very similar concept where the attorney can bring an action on behalf of that employee client and behalf of that client and all other people who are similarly situated.

Alan S. Pierce: Which leads me to my next question, actually it’s a two-part question. If I as an attorney wanted to bring a private cause of action on behalf of my client or on behalf of my client and others similarly situated, do I have to get any type of authorization or approval from the Attorney General’s Office Fair Labor Division in order to do so?

Karla Zarbo: It actually it’s a provision in one of our state statutes that the employee has to give us notice. It’s actually — the idea of it is like a right of first refusal that we the Attorney General we should be allowed the option to bring it on our own first or to decide if we want to do that or if the employee wants to bring it pursuant their own right.

The statute actually imposes that requirement but over the years there have been a couple of Appellate Court decisions that have come out that have actually said, well, if the employee makes the request or notifies the Attorney General at some point in the time and the Attorney General is not prejudice essentially that’s sort of good enough.

I wouldn’t recommend that. I would say the best course of action would be to notify us right away and if it’s something as an attorney you know you want to pursue, you can request, what we call a Private Right of Action, the PRA letter and just say, I’m notifying you about this potential wage hour violation and I am requesting an immediate Private Right of Action, just to be on the safe side; rather than having detested and litigated, that would always be the better course is to notify the Attorney General first.

Alan S. Pierce: And how often let’s say in the total universe of wage and hour complaints that are filed, let’s say what percentage are handled through your office and what percentage might be handled as private right causes of action?

Karla Zarbo: I don’t know the exact percentage off the top of my head, but I can tell you that predominantly if somebody if — particularly if someone’ is represented. If an employee’s counsel, their attorney writes to us and says I want to pursue an action on behalf of my client right away in court, we’re not going to say generally, like we’re not going to say no, we’re going to give them that right immediately.

The cases we tend, because we do have limited resources. The cases we tend to focus on are primarily low-wage earners that don’t have counsel representing them. They really want us to pursue it on their behalf. Those are really the cases we’re going to focus on. Like you mentioned before, you’re looking primarily at hourly workers.

If we get a complaint let’s say from a salaried worker, a highly paid worker, an executive for example, that’s highly, highly compensated, we’re probably not going to want to devote a lot of resources at that person as opposed to a low wage earner who really needs our help. So we tend to focus our attention where we feel that it’s needed most.

And I don’t know what percent, split of, I can tell you that if someone asks for a private right of action we’re generally not going to tell them no.

Alan S. Pierce: Okay. The second part of the question would be that let’s assume that I asked for a private right of action and it’s granted, can I still get the benefit of any investigatory services of the Attorney General’s office or am I completely on my own?

In other words, do you folks just stop right there and do we also try to proceed to get any money back for the Commonwealth, there is obviously been evasion of taxes, it could be penalties, does your office still remain involved or offer any assistance in terms of your investigatory powers that may not be as easily available in a civil arena on the private right of action?

Karla Zarbo: So it depends on what stage in the process we are notified about let’s say your particular complaint or your client’s particular complaint. If we already have an active case going and it’s fairly well developed and you have come to us and said I want a private right of action just for my client and we grant that too, and we already have something that’s well underway and we’re close to completing it, we’ll probably just go ahead and do what we’re doing. But if we’ve never had a case opened on this matter before, we probably are not going to open up a new matter, if you’re requesting the private right of action.

But we would not expect private litigators to pursue tax compensation or money for the government, that’s something that we would do, but we wouldn’t — we would expect the private attorney would focus on their client trying to get them full restitution, potentially treble damages. Our wage hour laws are pretty broad and what the employees can recover, it includes not just lost wages but any benefits they might be owed.

(00:14:58)

A lot of times we see employees getting bounced paychecks. They have fees incurred for that. You have like a bank fee. All kinds of ramifications from that, that’s something the employee potentially could recover in their own litigation as well.

Alan S. Pierce: Okay and should the employee be successful in such a private cause of action, right of action? Is there any reporting requirements back to you folks? Do you ever follow here like the end of the story or do you target — do you sort of flag this particular employer and look at them for future violations or is this pretty much you’re off on to other complaints?

Karla Zarbo: It depends. If it’s something that’s what we would consider a systemic or widespread problem affecting a lot of people, it’s something we might want to monitor and the employee or their counsel would not be required to report to us, but we might ask as a courtesy if they could let us know if they are successful or not and it might be something that we would want to follow-up on depending on the scale of the problem. But I think it would depend on the case, the nature of the case.

Alan S. Pierce: I got you. All right, before we take a break, actually I have one question off your answer a few minutes ago, you talked about a high wage earner that might be complaining about a wage issue. Under what circumstances could somebody who is perhaps an executive and exempt from overtime has a salary, what type of violations or things might somebody in that level of employment be complaining about that could be improper or under law or not in compliance?

Karla Zarbo: So it could be a number of different things. Probably I would say for a highly compensated person, probably the most common thing we would say is an allegation they were not paid earned commissions. Commissions that are definitely determined due in payroll. That’s actually covered under our State Wage Act, and that’s considered a wage, just like an hourly wage. Sometimes those can be really, really large numbers that the person has owed.

The other area I would say we see a lot with salaried people would be vacation pay. That is also considered a wage under our State Law. So upon separation from employment, the employer has to pay that out, all the accrued unused vacation time.

And so you can imagine if you’re a salaried worker that could be potentially a considerable amount of money as well, and a lot of employers if they don’t pay that on separation. So that’s another potential area.

We also have a relatively new Earned Sick Time Law. It was actually passed by a voter referendum that employees are entitled to certain circumstances they’re entitled to paid sick leaves, and we see a lot of problems with that. I know we did a lot of extensive outreach and training to get employers up to speed on the Earned Sick Time Law, but we get a lot of complaints about it.

Alan S. Pierce: You actually raised another question. So before we break, hopefully this is a quick question and a quick answer. It’s actually very timely. I have a client on Workers Comp, I get this a lot, but today actually I was dealing, he’s been on Workers Comp for about eight or nine months, at the time he was injured he had about three weeks of accrued sick time. It’s one of these that you — not sick time excuse me, vacation time, it’s three weeks of vacation time worth about $1,000 a week.

It had already been accrued. He has not taken it and his understanding is if he doesn’t take it by a certain time he loses it. He is having trouble getting his employer to pay it to him. Is there a general rule of thumb if you are out injured and you have accrued vacation time, are you entitled to it or do you have to actually use it as if you were working, took three weeks off and used it in that way?

Karla Zarbo: The Vacation Law, it’s part of our Wage Act, it’s not as explicit as the question you’re describing, but the Attorney General Fair Labor Division has issued an advisory, it’s available on the Attorney General’s website. We talk about a slightly similar scenario where an employer has a “Use-It-or-Lose-It” policy, where if you don’t use up all your vacation by a particular date you lose it and what we say in our advisory, we advise employers that, that is okay but only if that’s a clearly communicated policy and the employee actually has the opportunity to use it.

So I would say in your scenario where the employee does not have the opportunity to use it, the employer arguably should be paying them out or allowing them to continue that. If the employee is planning on going back to work that they could continue using that.

The vacation pay payout is not actually due until the separation of employment. So if the employee is planning to come back at some point that leave should still be available to them, that paid leave.

Alan S. Pierce: And if that person never goes back or is unable to go back, does that person then lose the option of cashing out the vacation pay?

Karla Zarbo: So if there again, this is poor time of Massachusetts other states may vary but if they are separating from employment, the employer has to pay them in full all earned and accrued wages including vacation pay at the time of separation.

(00:20:00)

Alan S. Pierce: Okay. All right, well we’re going to take a brief break. And when we come back I think we’ll go and cover a couple of other issues including probably one of the hottest issues is immigration issues and how that may affect the work of the Attorney General, as well as perhaps the changes in economy, this so called fissured economy or gig economy or changes in the typical employer-employee relationships. So we’ll come back with Karla Zarbo after a quick break.

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Alan S. Pierce: Welcome back to Alan Pierce; Workers Comp Matters with our guest Karla Zarbo from the Fair Labor Division of the Massachusetts Office of the Attorney General.

Karla before the break we sort of previewed the next area I’d like to get into and that is the fact that perhaps the most classification of workers who might be affected by violations of wage and hour practices would be immigrants, newly arrived immigrants, documented or undocumented, are you seeing a lot of that and if so, is there any distinction between the rights and remedies available to undocumented workers as opposed to those who have proper work permits, green card or other authority to work in the United States.

Karla Zarbo: So we haven’t really seen it a change in that in the sense that that is a segment of the workforce in our state and nationally that is particularly vulnerable to exploitation not just for wage hour violations but also for workers’ compensation benefits.

I know I sent you a study that was done for — actually a couple studies for US Department of Labor and then there’s some from the Economic Policy Institute that have done all these analyses about the fact that undocumented workers they tend to be a segment of our society that are really exploited, not just for wage hour, but for workers’ comp purposes that when they present a claim, an injury claim, they are threatened with not getting reported for deportation or threatened with termination, a lot of times they’re paying for their own medical out of their own pockets.

So this is something that you’re seeing or we’re seeing across the board it doesn’t affect just wage hour type violations. It’s a segment of our society that’s really exploited in a lot of ways.

And to answer your question I don’t think that Massachusetts in particular, we have never asked people there are documentation thefts because frankly we don’t care, that’s not relevant to us. The only time we would even want to know is if there’s some concern that we would have that we want to try to protect them, but an employer is not absolved from paying wages, minimum wage, overtime by virtue of the fact that their employee that they chose to hire is undocumented that doesn’t relieve them of their legal obligations.

And that’s true under the federal law as well, under the equivalent of our Wage Act, the Federal Fair Labor Standards Act, there were a number of decisions coming out of Eleventh Circuit, Eighth Circuit, the First Circuit which is Massachusetts covers our area that documentation status is not relevant if someone is owed their wages, they have to be paid in full.

Alan S. Pierce: So, you’re correct. Same thing is in workers’ comp, an undocumented worker who is injured on the job has a right to collect workers’ compensation benefits and there are fears of retaliation; and in fact, I know we both have various statutes that prohibit retaliation and some question as to whether they need to be tightened or not that’s more of a perhaps a political discussion.

But it’s not just the people who report and then are threatened, it’s that whole group of folks who don’t even report or even bring a workers’ comp claim because of fear of the threat of deportation or the interaction with federal authorities such as ICE, Immigration Control Enforcement.

(00:25:08)

Is there any communication between your office and ICE or any other governmental agency that might cause some concern to an undocumented worker?

Karla Zarbo: No, we don’t have a day-to-day working relationship with them. I can tell you the federal agency that we would most commonly work with would be the US  Department of Labor, if we’re doing — potentially doing a joint investigation with them, under their Federal  Fair Labor Standards Act and they’re trying to get a recovery, a monetary recovery for the worker, we might in some circumstances team up with them, but we would never share a worker’s private information with another – any, I should say any other governmental agency, even another state agency without the employee’s permission.

For example, I’ve had cases where an employee says, gee, I am owed for a certain amount of time and I can prove the dates I was there and the way I can prove it is, I made an unemployment claim and I have all the paperwork for that with that unemployment office. I’ve done this in a couple of cases where I’ll say to the employee sign a release for me, give me permission to write to the Department of Unemployment to get access to that file and then whatever I get from them I’ll share with you, I will make you your own copy.

We would never disclose somebody’s information without their permission. In fact, we don’t even disclose employee’s information to the employer without their permission. A lot of complaints we get are anonymous or the person will tell us their identity but say to us, I’m still working there, I don’t want you to tell them it was me who complained and we respect that. If someone wants to remain anonymous, we will respect that.

Alan S. Pierce: So an undocumented worker who might have a fear of ICE or detention or deportation probably will always have that fear, but they should not be as fearful as they might think if they were to bring a complaint with you folks.

Karla Zarbo: Well I think that is true in terms of filing a complaint with us and us conducting an investigation. Given the current political climate, I don’t know if that fear is necessarily unfounded when it comes to appearing in court. We have heard stories or I’m sure you read them in Lawyers Weekly and every once in a while you see an article about this where an employee, for whatever reason, they show up, legitimately show up at a court proceeding whether to testify on their own behalf as a witness or someone else and there’s somebody waiting for them when they get out. So there is normally in past years I would say well that’s not really a realistic fear but I don’t know that that’s an unfounded fear in today’s climate.

Alan S. Pierce: Yeah unfortunately, you’re right, yeah.

Karla Zarbo: Yeah, and that’s why I say, we don’t ask someone’s immigration status because again we don’t care, it’s not relevant to us. But if that is a concern that that person has a fear, a legitimate fear of appearing in a formal court setting, a formal court proceeding, we would want to know just to the extent that we want to be able to protect that person. That maybe we’re going to make every effort to resolve that case through a settlement as opposed to making that person subpoenaing that person to appear at a grand jury or appearing at a trial so that we don’t pose a undue threat to them, when we can avoid it.

Alan S. Pierce: Great. Other area I want to get into before we close and that is what I guess has been described as the gig economy of this kind of blurred line between who is an employer and who is an employee. We could be talking about Uber and Lyft drivers or we can talk — be talking and we’ve done shows on this here on Workers Comp Matters and other shows on Legal Talk Network.

We are seeing these days a change in the traditional employment relationship. So I would suspect that somebody being an employee has different rights with respect to compensation in terms of salary, wages or remuneration for work done than somebody who’s an independent contractor. The clear independent contractors are easy, you know what when you see it.

Can you give us kind of your thoughts on some of these new burgeoning areas of the economy and how that impacts on the rights for overtime or tips, vacation pay, fringe benefits, etc.

Karla Zarbo: Right I think what you said is right that when you see an obvious misclassification case, it’s easy to spot like there was that Microsoft case out of California where they said if it looks like a duck and it quacks like a duck. The harder cases are the ones where it might get very fact-specific, it might be more difficult.

We actually have issued an advisory on this employment misclassification dealing specifically with our wage hour employment classification statute. And essentially, what we tell employers in the advisory is that in this fissured or tiered economy where you’re not really even sure who the “employer” is as long as somebody is treating that person as an employee and paying their wages and they’re getting workers’ comp benefits and they’re having the benefit of unemployment if that need arises.

(00:30:02)

If they’re having all those wage hour type protections in place, as long as somebody is doing that, then we’re not going to bring an enforcement action to parse it out.

The problem will be when nobody wants to claim that person then we’re going to vet that out and we’re going to determine who that employer is for wage-hour purposes.

Alan S. Pierce: Okay. I’d like to perhaps wrap this discussion up with a question that actually my wife asked me to ask you when I told her that we were doing this show. She frequents a nail salon, perhaps more often than she needs to but that’s another issue and she’s come to know the young lady who does her nails and she’s a very hardworking Cambodian.

And around here, most of the nail salons seem to have a workforce of Southeast Asian and primarily at least in our area Cambodians. She is here, she is documented; in fact, I think she’s now a citizen. She has brought her family over here after a long wait. But in the course of getting to know this young lady, she gets paid commissions. My wife obviously gives her a tip.

She, to my knowledge, does not get any vacation time or sick time. I’m not sure if she’s covered as an employee, is an employee, I don’t know what would happen if she got hurt. Have you seen some issues surrounding people in that type of service industry whether it’s hair salon or nails or other type of personal services like that and are they covered under your division, are they outside of it, is there the blurred line?

Karla Zarbo: You’re right about the nail salons. That Department of Labor report I was talking about, it’s — if you look at, you can just Google the name of it and it will pop-up, it’s called Improving Workplace Conditions Through Strategic Enforcement, it talks about certain areas. It’s a national report. Certain areas where certain industries are known for misclassification, for wage theft, for having problems and nail salons are one of them.

Hospitality, fast food, janitorial, those are some of the others, but in Massachusetts we’ve done our own look at that problem and nail salons popped up for us too. So this is not just a national problem, it’s a problem here in Massachusetts and we actually have a strategic enforcement initiative for nail salons.

Maura Healey issued on Labor Day, she issued her third annual Labor Day Report where she goes through some of the initiatives that Fair Labor Division has done and it talks about the fact that our investigators last year, they visited 90 different nail salons not because of receiving employee complaints but to be proactive and try to educate employers and more importantly, educate employees about what they’re entitled to under the law and encouraging them to report to us if they feel there’s some violation going on.

So I would tell Donna have that worker report to us, have her file a complaint, she doesn’t have to disclose her name or she want it makes it easier for us if we have follow-up questions we can reach her. But if she wants us not to release her name to her employer, we can do that.

We will respect that but this is a common area of discrimination in terms of wage theft and workers’ comp and all the other problems that we see. Nail salons’ workers are not exempt under our state laws, so that person should definitely file a complaint with us.

Alan S. Pierce: All right, well I think at that point, I think we’ll close our show. Karla, I want to thank you very much that you’ve really educated me and our audience in an area of the law and area of society and the world of work that we sometimes don’t think enough about.

So again, I want to thank you for that. I want to congratulate your office and particularly your boss Maura Healey, for doing a wonderful job for the citizens of the Commonwealth and I know a lot of her efforts have been noted nationally.

So having said that, I want to ask you folks to tune in to our next show and in the meantime go out and make it a day that matters.

Bye bye.

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Outro: Thanks for listening to Workers Comp Matters today on the Legal Talk Network, hosted by attorney Alan S. Pierce, where we try to make a difference in workers’ comp legal cases for people injured at work. Be sure to listen to other Workers Comp Matters shows on the Legal Talk Network, your only choice for legal talk.

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