Wage Theft and the Social Construction of Crime

On June 25th, house members once again introduced the Wage Theft Prevention and Wage Recovery Act. As the bill’s sponsors point out, “wage theft” — when an employer fails to give an employee a benefit or payment they are legally entitled to — is the largest source of property crime in the US. The bill seeks to increase employer accountability, facilitate recovery of owed money, and increase penalties for employers engaging in wage theft.

However, despite the incredible scale of wage theft and the impact it has on workers, historically, wage theft has been treated as a bureaucratic matter, rather than a criminal one. (And employee underpayment is assuredly sometimes a matter of bureaucratic error.)  Under current law when wage theft is established, the employee is entitled to back pay and sometimes so-called liquidated damages in an amount equal to the back pay. Although, as of June 2025, the US Department of Labor no longer pursues liquidated damages. To be clear, the proposed law still does not criminalize wage theft at the federal level, although it does increase possible damages. Some states have, however, taken steps to criminalize wage theft.

What determines when something is treated as a crime and how serious the consequences should be? One approach is analytic. We begin by considering the social goals at play. Surely one aim is deterrence – in criminalizing intentional wage theft, we expect employers will take further precautions to ensure fewer instances occur. In considering policy, we might also look at other kinds of theft to see how wage theft fits those models. Wage theft certainly deprives workers of property, a key hallmark of theft. Although, conversely, it does not take existing property from employees, but deprives them of owed property. So, from a technical perspective, one could argue it is best understood as breach of contract.

Rarely though is the law decided on such dry analytic grounds — power matters too. Enter the social construction of crime. “Social constructs” have been somewhat maligned over the past few years, entangled in the culture war. But the underlying idea is simple and useful. Social constructs are things whose existence and character are a product of societal agreement. If all humans were to suddenly disappear, mountains would still exist, as would artifacts such as cars. However, the value of money would not. Money then, or at least the value of money, is a social construct.

A social constructivist approach to crime contends that what things we identify as crimes (and what punishments they deserve) are not the result of pure ethical analysis, but the product of a social context and often reflect who has power and influence. In a previous article, I discussed the case of punishment for pollution in the US. Plausibly, the lesser status of “wage theft” reflects the lesser political influence of employees compared to their employers.

But wage theft also demonstrates how labor organizers and activists leveraged the socially constructed nature of crime. While the idea of employers stealing from their employees is hardly novel, the term “wage theft”  is quite new, dating to the early 2000s. It strategically packaged together a number of employment infractions, from unpaid overtime to employee misclassification, and labeled them as theft. By design, it stresses that employers are taking money from their employees, rather than simply violating policy. In short, it created a category of crime.

This fact alone is neither good nor bad. Being a social construct is a descriptive claim about what kind of thing something is. From a philosophical perspective, the crucial question is what are the reasons behind a designation. For example, there may be excellent reasons to consider murder a crime. We may be less impressed with the US Supreme Court’s very narrow reading of corruption. A social constructivist approach helps us attend to the full suite of reasons behind whether something is criminalized and how seriously it is taken.

A social constructivist approach also reminds us that criminality is contested ground and the categories we have arrived at are not inevitable. For example, homosexuality used to be criminalized in the US. Wage theft is a straightforward case. It is not buried deep in our culture and it is easy to understand how the treatment of wage theft is a product of changing social conditions. We can imagine far deeper revisions of the relationship between wage labor and criminality. Many Marxists, for example, would stress that all labor under capitalism is similar to theft because the owner-class takes all additional profits resulting from their employees’ labor and appropriates it for themselves. This is a much more radical claim and pushes harder against our entrenched sense of the appropriate organization of the economy.

In fact, this is a key value for more “radical” philosophy even if we ultimately disagree. We all go through life picking up beliefs here and there, often quite casually. By interrogating our beliefs and confronting alternatives even to core convictions, we can improve the reasoning behind our ethical commitments.

Fortunately, Congress does not have to wrestle with the socially constructed nature of crime nor radical alternatives to wage labor to vote on the proposed wage theft law. The law uses existing non-criminal enforcement processes and simply makes them more robust. It remains to be seen if, unlike 2022, the bill will make it out of committee.