It's not always true that you "just have to give it back"; repeat offenders do get taken to the woodshed sometimes.

But, when employers and employees steal from each other, the fact that one is a criminal matter and the other a civil matter says a great deal about the law is and what purpose it was designed to serve.

I just Googled and saw that wage theft is actually a crime in Minnesota, punishable by fines and jail time. So it's not universally treated as a civil violation, at least.

And is that wage theft as in a local manager literally stealing wages, or wage theft as in general management chronically underpaying and having explicit policies to prevent workers from using their rights, deny them health coverage, ... ?

Stealing from a restaurant is a criminal matter because you're taking (by force or concealing your actions) what doesn't belong to you. A restaurant not paying wages is a civil matter because they failed to fulfill their contractual obligations to pay you and are in debt. Arguing that taking money by force and not paying money are equivalent is comparing apples and oranges.

(It may be appropriate to criminalize failing to pay employees, but I'm not sure about the first and higher-order effects of doing so, or how to craft legal principles and laws with the right incentives, while avoiding special cases like the laundry list of exemptions to California's AB5.)

I love the phrase “comparing apples to oranges” because while I know the intended meaning, the literal meaning is the opposite: they’re both sweet fruits that are common in western society, they’re sliced and juiced and used in a variety of dishes, and they are readily available.

The difference between “stealing cash” and “wage theft” is only a difference in perspective. The employee didn’t perform any labor to earn the money they took so they’ve broken the contract and now they’re in debt to the restaurant. Likewise, an employee’s labor is a fungible resource they control and the expenditure of it that solely benefits the restaurant through a lie (concealing their actions) is no different than someone scamming the person at the register and walking out without paying.

> A restaurant not paying wages is a civil matter because they failed to fulfill their contractual obligations to pay you...

That's tautological. The actual reason it's a civil matter is because the people who write and interpret the law want it that way, yes?

Emergency medicine doctors appear to routinely suffer from this: most are expected to stay after their 12-hour shifts (some EDs have 8, 9, or 10 hour shifts, but 12 is common) to finish charting and take care of other tasks, but hospitals never pay for this time. I've asked EM docs about taking this to state labor boards and the like, but most seem not to think that wage theft is a problem, or fear retaliation too much to do so.

Docs are typically salaried, aren’t they?

An excellent point: some are, but many aren't, particularly in fields like emergency medicine (EM) and anesthesia. 1099 work is common as is hourly w-2 work.

Are you sure these doctors are paid hourly?

Because if they are salaried they are exempt from the FLSA and not entitled to overtime. (Mind you, that doesn't actually prevent hospitals from paying overtime, they just aren't required to.)

I imagine there's an equilibrium, where they can be paid $25 per hour for eight hours and do ten hours of work, or follow strict time keeping and get paid $20 per hour for ten hours. Both parties to the agreement seem to have an understanding that there's a certain amount of work to do and a certain amount of compensation provided.

Flight attendants might be another example.

Some of the airline contracts are really odd. IIRC: Some roles are paid only when the door is closed. Some flying roles are paid one rate while the airplane is chocked and another rate when it’s unchocked. Pilots are paid a minimum number of hours per month; some are paid to sit in ready reserve and others have to sit on reserve as assigned as part of the agreement to get the monthly guarantee.

It’s messy for sure.

I usually shit on them all, but maybe I shouldn't. It was the legal system that forced powers onto them, after all.

The flip side of wage theft is time theft, where the employee lies about the hours they worked. In most cases, the offender just gets fired. They aren't even required to give the money back because it's generally more trouble than it's worth to make them do so.

False equivalence. Wage theft is companies using their power as an employer to rob workers. Time theft is sneaking around the edges. It’s not “pay me for this time i didn’t work or i quit”. We care about this because of the power imbalance, and it’s not present in the time theft case.

GP's comment wasn't about the power imbalance. My point is that people getting away with fraud isn't limited to employers.

Moreover, the biggest culprit of time theft are struggling businesses, and most employees can and do leave these places without a problem. The lack of a power imbalance in these cases doesn't make the wage theft any better.

Lack of power imbalance? “I might lose my job, because my company is struggling” isn’t much of a power equalizer.

The equalizer is the that people can and do decide to leave these companies that owe them wages, meaning the company has no leverage on them.

People can and do leave countries with totalitarian governments, but that doesn't mean there isn't a power imbalance between the government and the people of that country. Mobility can come at a very high cost, depending on your circumstances.

> Maybe I should try that next time I'm in a restaurant.

Perhaps ironically, people frequently place orders at restaurant and then decline to come to pick them up & pay. They restaurant still ends up providing the service they promise, and the customer declines to make the payment they promise.

It's terrible, but my understanding is it's similarly quite commonplace and hardly ever prosecuted.

Not quite the same, since McDonalds actually enjoyed the benefit of the labor without paying. So it's as if the customers sat down and ate the meal, then declined to pay. If the cops get called the consequence is probably worse than merely having to pay what was already agreed.

Neither is a perfect analogy, but note that in your example the customer is actually depriving the restaurant of their possession of some goods without payment, i.e. it's theft. The example here is about services being rendered.

Are you saying that labor being deprived of their, uh, labor, is not comparable to businesses being deprived of their goods?

I'm saying that legally speaking (not morally speaking), being deprived of intangible things (aka services, think "verbs") is somewhat different from being deprived of tangible things (aka goods, think "nouns"). Neither entirely different (obviously), nor entirely identical (obviously). They're not treated the same way in general and I don't think you'd want to treat them identically for legal purposes.

Restaurants regularly resell goods in cases like this. I’ve had it happen when I was 10 minutes late.

Worst case they can give it to workers at the end of the shift.

I wish they did that more! I haven't seen it happen much personally but I'm glad you've seen it a lot. I know not long ago I went to a restaurant where I saw meals had been waiting for pickup for several hours... right before they were closing. Probably easier for small businesses than chains/franchises I'm guessing.

Because it is not a crime.

You can order whatever you want unless a payment is made and product accepted a legal transaction hasn't occured. Missed items, uncooked food, poor quality are common reasons not to accept and send back. You can decide to decline the transaction at any point.

What businesses do is make the person pay first. Rarely does a fastfood worker take my order.. stop.. makes my food and then asks me to pay. They take my money serve the next person, I wait to get called.

A drive through is different and they get very low rates of drivers ordering only to drive away.

Businesses have found a way to deal with this issue.

"You can order whatever you want unless a payment is made and product accepted a legal transaction hasn't occured."

It may or may not be a crime depending on intent, but a transaction is not the issue. It is breach of contract. Laws obviously vary around the world, but the US Uniform Commercial Code is probably typical. The restaurant has made an offer. The customer has accepted it. There is agreed-to "consideration" (value) to be provided by both sides. If the restaurant does what they said they would do you, having accepted the "offer" by making an order, are bound to do what you said you would do (pay the price that you knew was the price when you accepted the offer.)

Just increase the dollar amounts by a large enough factor, and you'll see it. A company sells widgets. I order a million dollars worth, items that can't simply be put back in stock and resold to others. They make them, but I don't pick them up. I'm not arguing that they didn't do their part by making defective items. I'm (probably) not required to pick them up, but I am required to pay what I agreed. You are saying "no transaction occurred", but that's not at issue. The company will (rightly) sue me for breach of contract.

It's the same for fast food except that the static friction of legal costs vastly overpowers the scale of recovery from the breach of contract for each instance of no-show. But if a single order for $10,000 (catering a company picnic) is not picked up, you get past the friction, and the restaurant will sue for breach of contract.

Big orders require pre-payment. If no stock is available the customer should expect a wait. Even a pizza shop will require a credit card for 20 pizzas.

If someone is selling 1 million dollars worth of widgets and the buyer is unknown prepayment is required. If known and a valid purchase order is signed the customer usually has net30/60 to pay if they don't there might be a lawsuit or a black mark on their credit file with collectors calling.

Does it ever make sense to pay hundreds to win that 2 dollars back? Your employees waste more when meals don't turn out perfect. The cost of food to the restaurant includes the wasted food (usually from employee mistakes) and those are reflected in the prices.

"Big orders require pre-payment." That's neither criminal (ex: fraud) nor civil (contract) law. That's just one of countless things a party may or may not choose to do as personal/corporate policy. I might ask for a downpayment, or a full prepayment or a credit card or collateral or just trust you or whatever. It's irrelevant to the question of criminal culpability or civil liability. Unfortunately, you can be at risk even when you are in the right because of practical aspects of recovery such as legal costs, unpredictability of court outcomes, ability of the other party to pay even if they lose in court, etc. So there are extra-legal (not illegal, just private policy) methods of reducing the risk.

Whether you choose to avail yourself of such policies or not (including even getting the contract in writing) has no relevance to the legal question of whether a contract was breached.

"A drive through is different and they get very low rates of drivers ordering only to drive away."

I hadn't realized this until I read your post, but most (not all, but most) drive-throughs that I've been to recently seem to be engineered to prevent people from ordering and then driving away.

"Engineered" like civil engineering, not social engineering. They feature a single lane with curbs on either side, typically near the edge of the property (so frequently near a fence or wall, etc).

I suppose the person could order, pull through, and then drive past the payment window and keep going, but other than that it's definitely not easy to leave that single, bounded lane once you're in it.

All the examples you mention are those where the customer actually intended to pay if the meal is properly cooked, and thus would have if there were no issues. Not ones where they place an order intending not to make the payment they promise to. Are you sure that isn't a crime? It sounds like fraud to me (or some other crime) but I'm not a lawyer.

The problem is likely that distinguishing these for prosecution/conviction, but that's probably a similarity with wage theft, not a dissimilarity.