Double Damage Burden of Proof Shifts in New Wage Theft Law

G Heaven protest 2

A bill that shifts burden of proof for the payment of double damages in instances of wage theft has been signed into law by Governor Dan Malloy.

The passing of the law is being celebrated by labor rights advocates who have been lobbying for better minimum wage and overtime payment protection for workers. James Bhandary-Alexander, a New Haven Legal Aid attorney who handles wage theft complaints, testified in Hartford when the bill was with the Labor Committee of the State Legislature.

“At different times during the process, I felt more or less optimistic,” Bhandary-Alexander said over the phone. “I would’ve been surprised if the Governor vetoed it, but it did take a lot of work on the part of a lot of people to get it past the legislature.”

Bhandary Alexander thanked Senator Osten and Representative Peter Tercyak for supporting the bill, while also noting the aggressive campaign on the part of labor and immigrant rights activists to push the legislation through.

“There’s a lot of competition for time,” he said. “A lot of bills that pass through committees don’t get called, so I think they deserve a lot of credit.”

Wage theft plaintiffs in Connecticut have always been able to obtain double damages-what the latest bill does is make it easier. A worker had to prove that an employer failed to make “a good faith effort” to comply with minimum wage and/or overtime laws. Now, it is on the business owner to establish that they did.

“The reason people don’t [pay minimum wage or overtime] is they don’t feel like the law is going to be enforced, and they have competition from businesses that cheat,” Bhandary-Alexander said. “Those days are over-it’s too expensive to not do these basic things. All businesses benefit from a level playing field.”

But not all businesses are happy with the law.

“We’re pretty disappointed with the bill, and we’re quite confused as to why it was introduced at all,” said Eric Gjede of the Connecticut Business Industry Association.

Gjede noted the previous existence of double damage remedies, while expressing concern regarding what he perceives as a potential for non-offenders to get saddled with the penalties.

“We’re certainly not trying to defend [businesses that commit wage theft],” Gjede said over the phone. “Those people should definitely be paying. What we’re concerned about is forcing employers to settle when they’re is a legitimate wage dispute. It’s expensive no matter what you do, so you might as well settle the case from the beginning.”

But wage theft complaints are not difficult to avoid if employers pay minimum wage or necessary overtime, and check in with the Department of Labor from time to time to make sure that they are in compliance, Bhandary-Alexander says.

Can plaintiffs be in the wrong? He says yes, but in his experience, it’s rare at best.

“I hear what he’s saying, and it’s not impossible,” Bhandary-Alexander said. “But that’s gonna be a real outlier. I never have people come into my office for phony wage and hour claims.”

And what constitutes a failure to make a “good faith attempt” to comply with labor laws?

“Let’s say you violated a law and threatened to fire somebody for complaining,” Bhandary-Alexander said. “Those are the types of things I’d look for, and usually you have to have a whole bunch of things.”

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