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Hofstra Labor & Employment Law Journal

Authors

Nantiya Ruan

Abstract

There can be little doubt that actions to recover lost wages from employers have increased dramatically in the last thirty years. Since the 1970’s, American workers have become subject to a “24/7 marketplace workweek.” Off-the-clock work, misclassification, contingent jobs, and wage theft have become far more prevalent in the last three decades. A few snapshots in time reflect this trend. In 1997, some 1,600 wage suits were filed in federal court. In 2007, just ten years later, the number of wage suits jumped to 7,310. In just one year, 2006-2007, the number of filed wage cases increased by 73 percent.

Strangely, this increase was not brought about by an expansion of wage rights, either statutorily or judicially. Wage and hour protections have remained mostly unchanged since the Fair Labor Standards Act’s enactment in 1938. Instead, this increase suggests that protecting low-wage workers has taken on a new urgency.

This Article surveys the major trends in wage litigation over the last thirty years. Common threads of vulnerability, scarce resources, insecure jobs, and economic disadvantage run throughout the three decades. In honor of the low-wage workers who are most affected by these hallmarks of American wage and hour jurisprudence, this Article aims to survey these themes to showcase the deep schism that continues to divide the economically secure and insecure of our workers.

Part I describes the changing American workplace and phenomena that allow wage violations to go unredressed, including contingent workers, the misclassification and exemption of workers from wage protection, persistent unpaid work, and the under-enforcement by the government agencies tasked with upholding our wage laws.

Part II focuses on immigrant labor and the challenges these workers face in our workforce, including the lasting effects of attempted immigration reform, the explosion of the day labor phenomenon, and the continued isolation of migrant farm workers.

Part III turns to the need for collective action to remedy wage abuses, and outlines the newest jurisprudence in collective wage litigation, including hybrid federal and state wage and hour class actions, the importance of the certification and notice process to vindication of FLSA rights, and the need for representational evidence and statistical sampling.

Part IV turns to the next 30 years: what is on the horizon for workers hoping to vindicate their wage rights? This section highlights four potential trends, including the impact of mandatory arbitration and class action waivers on wage claims, the growing trend of unpaid internships, the increased use of labor laws for non-union workers, and the role of non-lawyer advocacy for wage rights vindication.

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