The Yale Law Journal

January 2018

Democratizing the FLSA Injunction: Toward a Systemic Remedy for Wage Theft

Labor and Employment Law

abstract. The Fair Labor Standards Act (FLSA) and its state equivalents have proven a regulatory failure, as their minimum wage and overtime protections are widely violated with impunity. This Note attributes that failure partly to the overlooked issue of private injunctive relief. FLSA and most state laws reserve injunctive relief for agency actions—a remedial limitation that reflects New Deal regulatory attitudes presuming agency-centered enforcement, from which Title VII and other statutes have since diverged. Public enforcement is clearly insufficient to address the epidemic in wage and hour violations, and FLSA’s private enforcement regime of retrospective damages actions effectively treats wage theft as a matter of individualized malice. Yet, as Congress understood at FLSA’s passage, wage theft is more often a business model chosen by employers competing in a given market; minimum wage standards, then, are either secured or undermined collectively. This Note argues from policy and litigation perspectives that private injunctive relief would better address the systemic problem of wage theft than damages actions alone, and would help ensure that FLSA’s protections in fact serve as the baseline standards that Congress envisioned.

author. Yale Law School, J.D. 2017. I am grateful to Nicholas Parrillo for his inspirational teaching and thoughtful supervision of this project; to Nicole Hallett for many crucial practice-informed insights and for her dedicated supervision in clinic; and to Mike Wishnie for providing the clinical opportunities and supervision that stimulated much of my thinking in these areas. I also thank Yuvraj Joshi, Andrea Levien, and Will Bloom for their feedback and encouragement, as well as Annika Mizel, Arjun Ramamurti, Anthony Sampson, Kyle Victor, Erin van Wesenbeeck, and the Yale Law Journal editors for their helpful suggestions and excellent editing. The views expressed herein are my own and not necessarily those of my employer. All errors are my own.