Faculty Publications

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.