By Ruben J. Garcia, author of Critical Wage Theory: Why Wage Justice Is Racial Justice
Raising the federal minimum wage is not a front burner issue in the U.S. presidential election campaign. Other important issues such as the war in Gaza, the trials of former President Donald Trump, or the future of American democracy, often dominate the headlines — with good reason.
Yet our federal wage and hour policy is an urgent issue that needs to be addressed and that affects many workers of color and immigrants who labor at the lower end of the pay scale. As I argue in my new book, Critical Wage Theory: Why Wage Justice is Racial Justice, critical race theory helps explain why the federal minimum wage has remained so low, why it’s poorly enforced, and why workers of color and immigrants are most at risk for wage theft. The question that should confront all of those running for office this year is what they will do about the strain of economic insecurity facing workers today. The book gives that roadmap to a fair and racially just economy.
What is the problem?
In an era of increasing prices for necessities and growing income inequality, the minimum wage might not seem like the most pressing issue to workers. After all, many workers who earn above the minimum wage are also struggling to get by, and there are many other workplace law issues that need addressing. While the federal minimum wage has remained stagnant at $7.25 per hour, more than 20 states have raised the minimum wage to nearly $15 per hour, or more.
But the federal minimum wage remains an important issue for several reasons. The federal minimum wage, which was federally legislated in 1938, is estimated to have lost more than 30 percent of its purchasing power between 1968 and 2021. It has also impacted enforcement efforts and deterrence. The legal penalties are usually just double the amount of unpaid minimum wages. The predictable result is more wage theft —and people of color are more likely to be the victims of uncollectable wages.
The most direct way to ensure racial justice is through wage justice
Ruben J. Garcia
Besides these economic reasons to care about raising the federal minimum wage, there are noneconomic ones as well. The federal minimum wage shows how society values work, especially the work of the people of color and immigrants. As long as the minimum wage remains low, so will the moral disapproval for violating the law.
What is Critical Wage Theory?
Critical Race Theory (CRT) has been at the forefront of news headlines this year. Politicians have utilized the backlash against racial justice to demonize CRT. More than 35 states have proposed or passed laws that have limited education on topics such as race, history and inclusion. These laws do not change the fact that CRT has had a lasting impact on several fields, including sociology, education and law.
I first learned of CRT in the mid-1990s as a law student at UCLA, where I took a course taught by Professor Kimberlé Crenshaw, one of the progenitors of the field with other law professors at the University of Wisconsin, Harvard and UCLA. Those writings formed the movement which inspired my legal and academic career and ultimately led me to write this book.
Drawing on CRT, I developed Critical Wage Theory (CWT) to explain the paradox of why the federal minimum wage has been stagnant for more than a decade despite a majority of the public supporting raising it to at least $15 per hour. Many of the reasons that the law fails to fully protect workers in a variety of other contexts can be found in my 2012 book, Marginal Workers: How Legal Fault Lines Divide Workers and Leave Them without Protection. In the book, I argued that workers are not better protected because they have a diffuse and diverse group of interests due to low unionization rates in the economy today.
In CWT, I argue that raising and enforcing the minimum wage can be a tool for fighting racial injustice. Enforcing and enhancing the current law, however, is only one of many things that could be accomplished by putting low wage workers, and immigrants, at the center of our economic policy. There are many other reasons to “look to the bottom” in the creation of public policy as critical race theorist Professor Mari Matsuda has argued.
Why write this book?
I wrote this book because of the many instances of wage theft that I witnessed both as scholar and a practicing labor attorney in Southern California in the 1990s. I also was inspired by the success of immigrant-led efforts to achieve justice on the job.
Although there are many good books that have been written on the plight of low-wage workers in today’s tough economy, Critical Wage Theory is the first to explicitly address the problem from a CRT perspective.
The gaps in the laws passed to protect workers are well-known. Many of these were explicitly designed to exclude workers because of their race or gender, such as the 1935 National Labor Relations Act, the first innovation against the dominance of the laissez faire jungle where the employer had carte blanche over the workplace. The racial hierarchies that exist in other areas of law and society also affect how workers are paid.
What are the solutions?
The most direct way to ensure racial justice is through wage justice. But what is wage justice? There have been many different conceptions of a living wage. In the book, I discuss the many different social movements that have framed economic justice in racial terms, from the Freedman’s Bureau after the Civil War to the movements to end the tipped minimum wage. These are all examples of the way that race was central to a positive vision of economic justice.
This is why the Thirteenth Amendment to the Constitution is crucial to challenging the fault lines in the law that continue to leave workers unprotected. New constitutional strategies should be developed to deal with intersectional problems of race and class in the payment and nonpayment of wages.
A beginning, not an end
In this election year, we need to continue to examine questions about the relationships between race and the economy. Candidates for office from all parties should be asked their positions on a federal living wage. I hope Critical Wage Theory willpromote discussions of how best to ensure racial and economic justice in this challenging economy for workers, by looking to the lowest levels of economic scale.