WORKING NOTICE

Wage theft experienced by our nation's low-wage workers remains extraordinarily high-upwards of $13 billion dollars goes unpaid each year. While federal and state enforcement of wage rights continues to wane, private enforcement has become increasingly difficult: courts have undermined the federal wage protection law (the Fair Labor Standards Act of 1938 (FLSA)) by restricting worker participation, and that result is neither textually nor historically defensible. <div> A current five-Circuit split highlights the schism in our judicial system that restricts the ability for low-wage workers to timely participate in collective action. In the absence of U.S. Supreme Court guidance, lower courts routinely limit the number of workers able to prosecute their wage exploitation claims by judicially gatekeeping if and when notice of collective action lawsuits is sent to workers. This results in expiring claims and diminishing deterrent effects on unscrupulous employers. </div> <div> This Article provides a path forward to harmonize the current Circuit split and for courts to recognize and revive the legislative purpose of federal wage protection laws by providing sufficient notice to workers on vindicating their wage rights. In essence, courts should recognize that notice is proper so long as “any question of law or fact common to all plaintiffs will arise in the action.” This realigns a notice standard with the prevailing permissive joinder framework of the time of FLSA’s enactment, and allows it to effectuate the FLSA’s remedial purpose, as recognized by the Supreme Court decades ago: “to aid the unprotected, unorganized, and lowest paid of the nation’s working population.” Such aid is needed now more than ever. </div>