Wage theft has been a federal crime for decades but in California, where felony cases are punishable by up to three years in jail, prosecutors across the state rarely filed criminal charges based solely on wage theft.

But according to a report by CalMatters, some prosecutors say that is beginning to change.

Since 2015, the state’s Labor Commissioner’s Office has investigated 16 labor violation cases that resulted in criminal charges, spokesperson Paola Laverde said in an email; 11 of those cases involved wage theft. Five years ago, the criminal investigation unit in the Labor Commissioner’s office forwarded three cases to prosecutors. So far this year, it has referred more than a dozen, Laverde said.

Few local prosecutors contacted across the state could tell CalMatters how many wage theft cases they’ve brought charges for since 2015.

By contrast, the Labor Commissioner’s office conducted investigations of worksites and issued 141 minimum wage violation citations and 102 overtime violation citations in the 2019-2020 fiscal year. Those wage theft citations were handled administratively or in civil court.

Also workers who think their wages were stolen usually file claims with the Labor Commissioner’s office, rather than reporting it to law enforcement. Last year California employees filed 19,000 unpaid wage claims for a total of $320 million, which also are usually handled administratively.

As California continues to grapple with the scope of wage theft, prosecutors say criminal charges could become more common. Several prosecutors’ offices in recent years have announced units that will focus on labor violations such as wage theft.

“The goal here is to increase our prosecutorial attention to wage theft,” said George Gascón, LA’s district attorney who last year agreed to take referrals and investigate wage theft alongside the Labor Commissioner’s Office. “This (wage theft) is bad for the entire community.”

The initiatives coincide with an increase in what some call “progressive prosecutors,” who seek to refocus their offices’ attention on issues that disproportionately affect low-income and minority residents, such as labor violations and human trafficking. Studies show wage theft primarily affects the most vulnerable workers – those who make low wages, often people of color or immigrants.

These efforts often draw on law enforcement that already is targeting related forms of white-collar crime, such as workers compensation fraud or tax evasion – where victims are other businesses or the government, rather than workers.

Last year California lawmakers gave law enforcement additional flexibility when charging wage theft as a felony.

While the state’s felony grand theft statute already includes stolen wages of at least $950 from a single worker in a one-year period, the new statute allows charges if multiple workers lose at least $2,350 in unpaid wages combined. Nationally there is a rise in criminal prosecutions of labor abuses, according to a report released last year by the Economic Policy Institute. The study noted that since 2017 prosecutors in 15 states have brought new criminal cases against employers.

“My strong sense was that the employer community really responded differently to criminal versus civil cases,” said Terri Gerstein, the report’s author and a former labor bureau chief in New York’s Attorney General’s office. “It felt different when there was a criminal case. It was much more scary.”

Some labor experts question whether criminal prosecution is an effective tool for recovering money. After all, many workers who win civil wage judgments against their bosses still end up collecting nothing, and some businesses operating in the so-called underground economy don’t even have liquid assets, workers’ attorneys say.

When a business owner gets convicted, “if they’re behind bars, they’re definitely not paying their workers,” said Tia Koonse, legal and policy research manager at the UCLA Labor Center.

Others say the threat of jail time and the negative press associated with criminal charges are stronger deterrents than other labor enforcement methods.

The prospect of jail also can force a business owner to pay restitution, said Joel McComb, a deputy district attorney in San Mateo County.