Defying Silence: Immigrant Women Workers, Wage Theft, and Anti-Retaliation Policy in the States

Abstract

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. …