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

See, e.g., Evans v. Harnett Cty. Bd. of Educ., 684 F.2d 304, 305-06 (4th Cir. 1982); Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1201-02 (7th Cir. 1971); see also 45C Am. Jur. 2d Job Discrimination § 2532 (2017) (“[P]ermanent injunctive relief can be entered on a class-wide basis in a nonclass action and need not be limited to the persons who brought suit.”).

29 U.S.C. §§ 206-207 (2012).

Id. § 216(b).

Id. (providing “legal or equitable relief” for violation of anti-retaliation provision in 29 U.S.C. § 215(a)(3)).

Id. § 217.

Id. § 211(a).

See, e.g., McComb v. Jacksonville Paper Co., 336 U.S. 187 (1949); Donovan v. Sureway Cleaners, 656 F.2d 1368 (9th Cir. 1981); Wirtz v. Ocala Gas Co., 336 F.2d 236 (5th Cir. 1964).

See, e.g., Powell v. Wash. Post Co., 267 F.2d 651, 652 (D.C. Cir. 1959); Roberg v. Henry Phipps Estate, 156 F.2d 958, 963 (2d Cir. 1946); see also Lorillard v. Pons, 434 U.S. 575, 581 (1978) (noting agreement among lower courts).

According to the Public Access to Court Electronic Records (PACER) system, there were 8,954 FLSA cases filed in 2015, 130 of which were by DOL. See Doug Hass, FLSA Minimum Wage, Overtime Lawsuits Set New Record in 2015, Filing Growth Continues, Day Shift (Jan. 4, 2016), http://dayshift.com/2016/01/04/flsa-minimum-wage-overtime-lawsuits-set-new -record-in-2015-filing-growth-continues/1352 [http://perma.cc/QG7X-YCJ5]. Note that these figures do not indicate relative levels of private and public FLSA enforcement generally, given that agency enforcement may not result in a lawsuit—for example, where an employer agrees to settle after an investigation.

Heitmann v. City of Chicago, 560 F.3d 642, 644 (7th Cir. 2009).

Sean Farhang defines “private enforcement regime” as a statute’s set of rules for “who has standing to sue, which parties will bear the costs of litigation, what damages will be available to winning plaintiffs, whether a judge or jury will make factual determinations and assess damages, and rules of liability, evidence, and proof.” Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in the U.S. 3 (2010). Farhang writes, “[T]ogether [these] can have profound consequences for how much or little private enforcement litigation will actually be mobilized.” Id. at 3-4 (2010). Note that in terms of remedies, Farhang’s definition focuses on damages and fee-shifting and does not mention whether and what type of injunctive relief is available.

42 U.S.C. § 2000e-5(g)(1) (2012) (providing that a court upon a finding of discrimination under Title VII “may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate,” including “any other equitable relief as the court deems appropriate”); Pons, 434 U.S. at 581 (discussing the availability of private injunctive relief under the ADEA).

See Fed. R. Civ. P. 23.

Id. 23(c)(2)(B)(v).

29 U.S.C. § 216(b) (2012) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court . . . .”); see also Scott A. Moss & Nantiya Ruan, The Second-Class Class Action: How Courts Thwart Wage Rights by Misapplying Class Action Rules, 61 Am. U. L. Rev. 523 (2012) (discussing this provision).

See, e.g., Kampfer v. Fifth Third Bank, No. 3:14 cv 2849, 2016 WL 1110257, at *2 (N.D. Ohio Mar. 22, 2016) (noting that “[t]he language of Section 216(b) does not expressly prohibit a second collective action,” and citing “[s]everal [district] courts [that] have also endorsed this position”).

See Nantiya Ruan, Same Law, Different Day: A Survey of the Last Thirty Years of Wage Litigation and Its Impact on Low-Wage Workers, 30 Hofstra Lab. & Emp. L.J. 355, 376-77 (2013) (discussing state opt-out class actions).

Fla. Const. art. X, § 24(e); Ark. Code Ann. § 11-4-218(e)(1) (2017); Fla. Stat. § 448.110(6)(c)(2) (2017); Mass. Gen. Laws ch. 149, § 150 (2017); Minn. Stat. § 181.171, subdiv. 1 (2017); N.M. Stat. Ann. § 50-4-26(f) (2017); 28 R.I. Gen. Laws § 28-14-19.2(a) (2017); Utah Code Ann. § 34-40-205(2)(a) (West 2017); see generally 1-2 Wage and Hour Laws: A State-by-State Survey (Gregory K. McGillivary ed., 3d ed. 2016).

See, e.g., Annette Bernhardt et al., Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in America’s Cities, Nat’l Emp. L. Project 4 (2009), http://www.nelp.org /content/uploads/2015/03/BrokenLawsReport2009.pdf [http://perma.cc/TWT7-P7UU] (finding over forty percent noncompliance with the minimum wage in apparel and textile manufacturing, personal and repair services, and private household work).

See Nicole Hallett, The Problem of Wage Theft 14-16 (Sept. 29, 2017) (unpublished manuscript) (on file with author) (explaining how employers often continue to violate the law after paying a settlement or court judgment, in light of the economic benefits, and illustrating this point with two relatively high-profile cases in New York and Connecticut). As the Government Accountability Office explained in a 1981 report, more than a third of employers found in violation of FLSA were repeat offenders: “Our review showed that many employers repeatedly violated the same sections of the act . . . . We believe that many employers are willing to commit repeated violations of the wage and hour laws because chances of discovery are slim, penalties are unlikely, and the rewards of illegally withholding employee back wages can be great.” Comptroller Gen., Report to the Congress: Changes Needed To Deter Violations of Fair Labor Standards Act, Gov’t Accountability Off. 23 (May 28, 1981), http://www.gao.gov/assets‌/140/133362.pdf [http://perma.cc/3U4S-Z3C4]. Indeed, the idea for this Note emerged from a law school clinic case against an employer whom DOL repeatedly found violated state and federal wage and hour laws, yet who continued to do so systematically.

David Cooper & Teresa Kroeger, Employers Steal Billions from Workers’ Paychecks Each Year, Econ. Pol’y Inst. 9 (May 10, 2017), http://www.epi.org/files/pdf/125116.pdf [http:// perma.cc/TP88-C3AE].

Bernhardt et al., supra note 19, at 42 (reporting that 32.8% of Latino workers were subject to wage violations, as were 19.1% of Black workers and 15.1% of Asian and other nonwhite workers, compared to 7.8% of white workers; 30.2% of female workers were subject to wage violations, compared to 19.5% of male workers; and 37.1% of undocumented workers were subject to wage violations, compared to 21.3% of documented foreign-born workers).

Cooper & Kroeger, supra note 21, at 2; see also id. at 14 (finding that eliminating wage theft would reduce the poverty rate among minimum-wage earners who are victims of wage theft from 21.4% to 14.8%).

Id. at 14 (finding that one in three workers experiencing wage theft is on some form of public assistance, and that 18% of workers experiencing wage theft receive food stamps); cf. Ken Jacobs, Ian Perry & Jennifer MacGillvary, The High Public Cost of Low Wages, U.C. Berkeley Lab. Ctr. (Apr. 2015), http://laborcenter.berkeley.edu/pdf/2015/the-high-public-cost-of -low-wages.pdf [http://perma.cc/YF7H-DDGP] (finding that U.S. taxpayers spend $152.8 billion each year in public support for working families because their wages are not sufficient to support basic living costs).

Just Pay: Improving Wage and Hour Enforcement at the United States Department of Labor, Nat’l Emp. L. Project 7 (2010), http://www.nelp.org/content/uploads/2015/03 /JustPayReport2010.pdf [http://perma.cc/2TY2-TBTK].

Id.

Josh Bivens et al., Raising America’s Pay: Why It’s Our Central Economic Policy Challenge, Econ. Pol’y Inst. 8, 65 (June 4, 2014), http://www.epi.org/files/pdf/65287.pdf [http://perma‌.cc/7YRB-P55N]; Cooper & Kroeger, supra note 21, at 2, 30.

See J. Maria Glover, The Structural Role of Private Enforcement Mechanisms in Public Law, 53 Wm. & Mary L. Rev. 1137, 1178 (2012) (discussing regulatory failure and mixed private/public enforcement regimes).

Bernhardt et al., supra note 19, at 2.

Id. at 2, 5.

See, e.g., Winning Wage Justice: A Summary of Research on Wage and Hour Violations in the United States, Nat’l Emp. L. Project (July 2013), http://www.nelp.org/content/uploads /2015/03/WinningWageJusticeSummaryofResearchonWageTheft.pdf [http://perma.cc /44H2-WFKG].

See Llezlie Green Coleman, Exploited at the Intersection: A Critical Race Feminist Analysis of Undocumented Latina Workers and the Role of the Private Attorney General, 22 Va. J. Soc. Pol’y & L. 397, 403-05 (2015).

For a report and series of enforcement recommendations that David Weil authored shortly before becoming WHD Administrator in 2014, see David Weil, Improving Workplace Conditions Through Strategic Enforcement: A Report to the Wage and Hour Division 1, 5 (May 2010), http://www.dol.gov/whd/resources/strategicEnforcement.pdf [http://perma.cc/Z4LD -2CVJ].

Annette Bernhardt & Siobhán McGrath, Trends in Wage and Hour Enforcement by the U.S. Department of Labor, 1975-2004, Brennan Ctr. for Just. 2 (Sept. 2005), http://www.nelp .org/content/uploads/2015/03/Trends-in-Wage-and-Hour-Enforcement.pdf [http://perma .cc/446Z-8EYB].

Id.

See Elizabeth J. Kennedy, Wage Theft as Public Larceny, 81 Brook. L. Rev. 517, 534-36 (2016).

Highlights: Wage and Hour Division’s Complaint Intake and Investigative Processes Leave Low Wage Workers Vulnerable to Wage Theft, U.S. Gov’t Accountability Off. 1 (2009), http://‌http://www.gao.gov/assets/130/122112.pdf [http://perma.cc/2SJ9-4347].

Eunice Hyunhye Cho et al., Hollow Victories: The Crisis in Collecting Unpaid Wages for California’s Workers, Nat’l Emp. L. Project 2 (2013), http://www.nelp.org/content/uploads/2015‌/02/Hollow-Victories.pdf [http://perma.cc/AQ4V-3ZLR]; see also Cmty. Dev. Project at the Urban Justice Ctr. et al., Empty Judgments: The Wage Collection Crisis in New York, Nat’l Ctr. for L. & Econ. Just. 5 (2015), http://nclej.org/wp-content/uploads/2015/11/Empty -Judgments-The-Wage-Collection-Crisis-in-New-York.pdf [http://perma.cc/9CV3-AE8D] (identifying $125 million in unpaid judgments and orders in New York).

Explicit amendment might not be necessary in some states where injunctive relief is impliedly available based on legislative history or remedial provisions from other areas of law, though such an argument is beyond the scope of this Note.

See supra note 9 and accompanying text.

Richard B. Freeman, Spurts in Union Growth: Defining Moments and Social Processes, in The Defining Moment: The Great Depression and the American Economy in the Twentieth Century 265, 292 tbl.8A.2 (Michael D. Bordo et al. eds., 1998).

Bureau of Labor Statistics, Union Members—2016, U.S. Dep’t Lab. 1 (Jan. 26, 2017), http://www.bls.gov/news.release/pdf/union2.pdf [http://perma.cc/P5Q2-XB4A].

See Cynthia Estlund, Rebuilding the Law of the Workplace in an Era of Self-Regulation, 105 Colum. L. Rev. 319, 321 (2005) (“Since the 1960s, the New Deal collective bargaining system has been supplemented, and largely supplanted, by . . . a regulatory model of minimum standards enforceable mainly by administrative agencies and a rights model of judicially enforceable individual rights.”); Benjamin I. Sachs, Employment Law as Labor Law, 29 Cardozo L. Rev. 2685, 2687-92 (2008) (describing the “hydraulic process” whereby workers have used employment law to serve labor law purposes, and employment law’s limitations in that role).

See, e.g., Matthew Fritz-Mauer, Lofty Laws, Broken Promises: Wage Theft and the Degradation of Low-Wage Workers, 20 Emp. Rts. & Emp. Pol’y J. 71, 117 (2016); Lauren K. Dasse, Note, Wage Theft in New York: The Wage Theft Prevention Act as a Counter to an Endemic Problem, 16 CUNY L. Rev. 97, 114 (2012); Winning Wage Justice: An Advocate’s Guide to State and City Policies To Fight Wage Theft, Nat’l Emp. L Project 19-20 (Jan. 2011), http://www.nelp.org/content /uploads/2015/03/WinningWageJustice2011.pdf [http://perma.cc/4ZBG-3ZLL] (identifying mandatory treble damages as a “NELP Top Pick” among several possible wage and hour reforms).

See, e.g., Stephen Lee, Policing Wage Theft in the Day Labor Market, 4 U.C. Irvine L. Rev. 655 (2014); Rita J. Verga, An Advocate’s Toolkit: Using Criminal “Theft of Service” Laws To Enforce Workers’ Right To Be Paid, 8 CUNY L. Rev. 283 (2005).

Lee, supra note 45; see also Eunice Hyunhye Cho et al., A New Understanding of Substantial Abuse: Evaluating Harm in U-Visa Petitions for Immigrant Victims of Workplace Crime, 29 Geo. Immigr. L.J. 1 (2014) (describing the heightened difficulty of securing certification for U-visa applications involving workplace-related crimes).

29 U.S.C. § 215(a)(1) (2012) (declaring it “unlawful for any person . . . to transport, offer for transportation, ship, deliver, or sell in commerce . . . any goods” produced in violation of FLSA’s minimum wage and overtime provisions).

See, e.g., David Weil, Crafting a Progressive Regulatory Policy: Why Enforcement Matters, 28 Comp. Lab. L. & Pol’y J. 101, 138, 141-42 (2007); Weil, supra note 33.

See, e.g., Moss & Ruan, supra note 15, at 561; Howard Wial, Minimum-Wage Enforcement and the Low-Wage Labor Market 30 (Task Force on Reconstructing Am.’s Labor Mkt. Insts., Working Paper No. WP11, 1999), http://pdfs.semanticscholar.org/2267/b7484ec851a091893 03ce63b9acec45f87a4.pdf [http://perma.cc/4R2C-Y22E].

Lora Jo Foo, The Vulnerable and Exploitable Immigrant Workforce and the Need for Strengthening Worker Protective Legislation, 103 Yale L.J. 2179, 2208 (1994); Wial, supra note 49, at 27.

DOL’s increased use of the hot goods injunction has been met with significant opposition from employers, particularly when applied to perishable agricultural goods. See Stephanie A. Koltookian, Note, Some (Don’t) Like It Hot: The Use of the “Hot Goods” Injunction in Perishable Agriculture, 100 Iowa L. Rev. 1841 (2015).

See Kim Bobo, Wage Theft in America: Why Millions of Working Americans Are Not Getting Paid—and What We Can Do About It 152-53 (2009); Cho et al., supra note 38, at 16-18.

Cmty. Dev. Project at the Urban Justice Ctr. et al., supra note 38, at 24-25.

Bruce Goldstein et al., Enforcing Fair Labor Standards in the Modern American Sweatshop: Rediscovering the Statutory Definition of Employment, 46 UCLA L. Rev. 983 (1999).

See, e.g., Janice Fine, Worker Centers: Organizing Communities at the Edge of the Dream (2006); Andrew Friedman & Deborah Axt, In Defense of Dignity, 45 Harv. C.R.-C.L. L. Rev. 577 (2010).

Daniel J. Galvin, Deterring Wage Theft: Alt-Labor, State Politics, and the Policy Determinants of Minimum Wage Compliance, 14 Persp. on Pol. 324, 339-41 (2016).

This Note uses “prospective injunction” or “prospective injunctive relief” to refer to injunctions prohibiting employers from future violations of wage and hour law. By contrast, injunctive relief may address past violations, such as by reinstating workers who were retaliated against by employers, or by enjoining the sale of “hot goods” produced in violation of FLSA. See supra notes 47-48 and accompanying text.

E. Merrick Dodd, Comment, The Supreme Court and Fair Labor Standards, 1941-1945, 59 Harv. L. Rev. 321 (1946); Note, The Statutory Injunction as an Enforcement Weapon of Federal Agencies, 57 Yale L.J. 1023 (1948).

29 U.S.C. § 202(a) (2012).

One might then ask why we should retain the moralizing language of “wage theft,” rather than something like “wage and hour noncompliance.” Understanding that structural forces encourage wage theft does not prevent us from condemning its effects and the structures of social domination in which it exists, as well as the abuse and intimidation that typically accompany wage theft. Moreover, “wage theft” has proven a resonant political frame that casts wealth transfers from regulatory violations in a familiar context of stealing and injustice. See generally Bobo, supra note 52 (framing wage theft in terms of faith-based notions of justice).

This Note is not the first to urge such a framing. As early as 1979, economists Orley Ashenfelter and Robert Smith theorized that employers engage in wage theft based on a cost-benefit analysis that weighs the likelihood of detection and the associated penalties against the expected profits of violating the law. Orley Ashenfelter & Robert S. Smith, Compliance with the Minimum Wage Law, 87 J. Pol. Econ. 333 (1979). Nicole Hallett has recently argued for engaging with the economics literature and foregrounding the employer’s cost-benefit analysis when developing and measuring solutions to the current wage theft crisis. Hallett, supra note 20.

Coleman, supra note 32, at 417 (referring to “civil rights statutes, including the Fair Labor Standards Act”).

See, e.g., Kate Andrias, The New Labor Law, 126 Yale L.J. 2 (2016); Estlund, supra note 43; Richard Michael Fischl, Rethinking the Tripartite Division of American Work Law, 28 Berkeley J. Emp. & Lab. L. 163 (2007); Sachs, supra note 43; see infra Part IV.

See, e.g., David Freeman Engstrom, Agencies as Litigation Gatekeepers, 123 Yale L.J. 616 (2013); Sean Farhang, Regulation, Litigation, and Reform, in The Politics of Major Policy Reform in Postwar America 48-76 (Jeffery A. Jenkins & Sidney M. Milkis eds., 2014); R. Shep Melnick, Courts and Agencies in the American Civil Rights State, in The Politics of Major Policy Reform in Postwar America 77-102 (Jeffery A. Jenkins & Sidney M. Milkis eds., 2014); Amanda M. Rose, Reforming Securities Litigation Reform: Restructuring the Relationship Between Public and Private Enforcement of Rule 10b-5, 108 Colum. L. Rev. 1301 (2008); George Rutherglen, Private Rights and Private Actions: The Legacy of Civil Rights in the Enforcement of Title VII, 95 B.U. L. Rev. 733 (2015); Michael Selmi, Public vs. Private Enforcement of Civil Rights: The Case of Housing and Employment, 45 UCLA L. Rev. 1401 (1998); Matthew C. Stephenson, Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 Va. L. Rev. 93 (2005).

Wirtz v. Jones, 340 F.2d 901, 905 (5th Cir. 1965); see also Heitmann v. City of Chicago, 560 F.3d 642, 644 (7th Cir. 2009) (describing § 217 injunctions as FLSA’s “heavy artillery”); Metzler v. INBP, Inc., 127 F.3d 959, 963 (10th Cir. 1997) (“Prospective injunctions are an essential tool to effectuate the policy of the FLSA . . . .”).

Fair Labor Standards Amendments of 1977: Hearings on S. 1871 Before the S. Subcomm. on Labor, 95th Cong. 16-17 (1977) [hereinafter 1977 FLSA Hearings] (describing an injunction under § 217, in contrast with damages, as the means for “getting the rate [of pay] changed”).

While there is not a neat division between these two benefits, this Note uses “regulatory benefits and disadvantages” as discussed in Part II to refer to broader, higher-level policy arguments; by contrast, the “litigation” perspective in Part III addresses the concrete legal mechanics of private wage and hour injunctions.

Note that this Part is not attempting to interpret statutory meaning in this manner, as courts have consistently held that private injunctive relief is not available under FLSA. See Powell v. Florida, 132 F.3d 677, 678-79 (11th Cir. 1998) (noting agreement on this issue among lower courts); Lorillard v. Pons, 434 U.S. 575, 581 (1978). Rather, the question at issue is why Congress chose this structure. This methodological approach is admittedly speculative to some extent, given the lack of directly on-point legislative history.

Further research may be warranted into the seven state wage and hour statutes that provide private injunctive relief, to discern how these fit into the historical arc of regulatory attitudes discussed in this Part. See supra note 18 (listing these state provisions).

Farhang, supra note 11, at 5; Robert A. Kagan, Adversarial Legalism: The American Way of Law 38-39 (2001).

Farhang, supra note 11, at 12.

Melnick, supra note 64, at 82; see also Kagan, supra note 70, at 3 (defining adversarial legalism as “policymaking, policy implementation, and dispute resolution by means of lawyer-dominated litigation”).

See Thomas F. Burke, Lawyers, Lawsuits, and Legal Rights 6-7 (2002); Kagan, supra note 70, at 34-44.

See Farhang, supra note 11, at 13-16 (discussing these and other alternative hypotheses).

Id. at 5, 13; Kagan, supra note 70, at 48; Farhang, supra note 64, at 51 (noting that divided party control marked twenty-one percent of the period from 1900 to 1968, but eighty-one percent of the subsequent thirty-two years).

Farhang, supra note 64, at 53-68; accord Anthony S. Chen, The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States, 1941-1972, at 170-229 (2009); Rutherglen, supra note 64, at 733.

Chen, supra note 76, at 171. The NLRB’s cease-and-desist authority is significantly limited, however, by the agency’s need to petition a court of appeals for enforcement. See Paul C. Weiler, Promises To Keep: Securing Workers’ Rights to Self-Organization Under the NLRA, 96 Harv. L. Rev. 1769, 1796-97 (1983).

Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 141 (1976) (noting that Congress “did not confer upon the EEOC authority to promulgate rules or regulations pursuant to [Title VII]” that carried “the force of law,” but that EEOC guidelines were entitled to some deference by courts).

See Anne Noel Occhialino & Daniel Vail, Why the EEOC (Still) Matters, 22 Hofstra Lab. & Emp. L.J. 671, 677 (2005).

Rutherglen, supra note 64, at 736-38.

David Freeman Engstrom, The Lost Origins of American Fair Employment Law: Regulatory Choice and the Making of Modern Civil Rights, 1943-1972, 63 Stan. L. Rev. 1071, 1073 (2011).

Id. at 1073-74.

Id. at 1091-94.

Rutherglen, supra note 64, at 737; see also George Rutherglen, Civil Rights in the Shadow of Slavery: The Constitution, Common Law, and the Civil Rights Act of 1866, at 93-110 (2013) (outlining the cases that adopted restrictive interpretations of the Civil Rights Act of 1866).

Rutherglen, supra note 64, at 738.

Id.

See Occhialino & Vail, supra note 79, at 686-87 (describing how the Civil Rights Act of 1991 instituted the right to a jury trial in a Title VII case, and the right to recover compensatory and punitive damages in the case of intentional discrimination); see also 42 U.S.C. § 1981a(c) (2012) (noting that “any party may demand a trial by jury”).

42 U.S.C. § 2000e-5(f)(1) (2012); see also Rutherglen, supra note 64, at 733 (“EEOC enforcement stopped well short of adjudication of claims against private employers.”).

Chen, supra note 76, at 188-89.

Farhang, supra note 64, at 54.

See Melnick, supra note 64, at 97 (“The most important moral of the Title VI and VII stories is that adversarial legalism can promote aggressive federal regulation of the private sector and subnational governments.”); see also Farhang, supra note 64, at 68 (describing how Title VII “became the liberal model for privatizing enforcement of the new social regulation”); Selmi, supra note 64, at 1403-04 (demonstrating that private actions constitute the large majority of Title VII litigation, and that they typically recover significantly more than agency actions).

Engstrom, supra note 81, at 1142.

Id.

Id. at 1091-93.

Id. at 1075, 1114.

Id. at 1074, 1091-93.

Melnick, supra note 64, at 98.

Farhang, supra note 64, at 49-51.

Farhang, supra note 11, at 12.

Farhang, supra note 64, at 68.

Id.

Glover, supra note 28, at 1137.

Howard D. Samuel, Troubled Passage: The Labor Movement and the Fair Labor Standards Act, Monthly Lab. Rev., Dec. 2000, at 32, 34-36.

Id. at 34-35.

John S. Forsythe, Legislative History of the Fair Labor Standards Act, 6 Law & Contemp. Probs. 464, 468 (1939). This optimism about the expansion and centrality of collective bargaining is understandable in 1938, as union density more than doubled in the two previous years, from 13.24% in 1936 to 26.56% in 1938. See Freeman, supra note 41, at 292 tbl.8A.2.

Samuel, supra note 103, at 34-35.

S. 2475, 75th Cong. (1937) (as reported by Senate, July 8, 1937).

H.R. 7200, 75th Cong. (1938) (as reported by House, Apr. 21, 1938).

The Portal-to-Portal Act of 1947, Pub. L. No. 80-49, 61 Stat. 84, responded to years of fierce litigation over whether certain time spent traveling and preparing for work—such as time spent passing from one mine portal to another—was compensable work time under FLSA and other statutes. See Marc Linder, Class Struggle at the Door: The Origins of the Portal-to-Portal Act of 1947, 39 Buff. L. Rev. 53 (1991). In particular, a nascent CIO brought a wave of portal suits during and following World War II seeking to gain bargaining power against employers and secure large recoveries. Id. at 56. This movement was strengthened when the Supreme Court held in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), that preliminary work activities performed entirely for the employer’s benefit and subject to employer control constituted work time under FLSA. A conservative Congress reacted to this “emergency” by passing the Portal-to-Portal Act in the same year it passed the Taft-Hartley Act—which significantly gutted the NLRA, or at least codified existing legal precedent that did so. Pub. L. No. 80-101, 61 Stat. 136 (1947); see Nelson Lichtenstein, Taft-Hartley: A Slave-Labor Law?, 47 Cath. U. L. Rev. 763 (1998) (reviewing the debate on the effect of Taft-Hartley). The Portal-to-Portal Act significantly limited compensable time under FLSA. More significantly, however, the Act—perceiving a threat of unions and plaintiffs’ lawyers stirring up litigation on behalf of large numbers of workers—repealed FLSA’s representative-action and opt-out class-action provisions.

H.R. Rep. No. 75-2738, at 11 (1938) (Conf. Rep.).

Fair Labor Standards Act of 1937: Joint Hearings on S. 2475 and H.R. 7200 Before the S. Comm. on Educ. and Labor & the H. Comm. on Labor, 75th Cong. 457-62 (1937) [hereinafter 1937 Hearings] (statement of John M. Keating).

Id. at 462-63.

Id. at 462.

See Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat. 56.

29 U.S.C. §§ 206-207 (2012).

Id. § 211.

Id. § 211(a). This section provides an exception to the Administrator’s sole authority to bring a § 217 action for injunctive relief, for actions arising under the child labor provisions of the Act (§ 212). The exception results from the fact that the Chief of the Children’s Bureau in DOL was originally charged with making all investigations related to § 212, and, “subject to the direction and control of the Attorney General, shall bring all actions under section [2]17.” Id. § 212(b). When the Children’s Bureau was transferred to the Social Security Administration in 1946, § 212 was amended to read “The Secretary of Labor.” 29 U.S.C. § 212(b) (1952). Section 211 was not amended to reflect this change, and still states the Administrator “shall bring all actions under section [2]17” except as provided in § 212, which now also refers to the Secretary of Labor. 29 U.S.C. § 211(a) (2012). The most natural way to read this vestigial distinction, given the statutory history, is that the “exception” for § 212 refers to the fact that investigations under that section, unlike under § 211, are “subject to the direction and control of the Attorney General.” Id. § 212(b).

29 U.S.C. § 216(b) (2012).

29 U.S.C. § 16(b) (1940).

29 U.S.C. § 216(b) (1952). The opt-in language states, “No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” Id.

See 29 U.S.C. §§ 211, 217 (2012).

1977 FLSA Hearings, supra note 66, at 16-17 (statement of Carin Ann Clauss, Solicitor of Labor).

Lorillard v. Pons, 434 U.S. 575, 581 (1978).

1977 FLSA Hearings, supra note 66, at 15-16 (statement of Hon. F. Ray Marshall, Secretary of Labor).

Id.

Id. at 17.

See Pub. L. No. 95-151, 91 Stat. 1245, § 10(a) (1977) (amending 29 U.S.C. § 216(b) to provide “such legal or equitable relief as may be appropriate . . . including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages”).

See supra notes 73-78 and accompanying text.

Bernhardt et al., supra note 19, at 2.

See supra notes 33-38 and accompanying text.

Glover, supra note 28, at 1203-04.

Id. at 1205.

Heitmann v. City of Chicago, 560 F.3d 642, 644 (7th Cir. 2009).

Selmi, supra note 64, at 1444-45.

See Rutherglen, supra note 64, at 755 (discussing the dangers of agency politicization with reference to this example).

See Andy Puzder, Minimum Wage, Maximum Politics, Wall St. J. (Oct. 5, 2014), http://www.wsj.com/articles/andy-puzder-minimum-wage-maximum-politics-1412543682 [http://perma.cc/3MBE-LJ7F] (opposing a raise in the federal minimum wage from $7.25 to $10.10); Julia Horowitz, Trump Taps Andrew Puzder, CEO of Hardee’s and Carl’s Jr., as Labor Secretary, CNN Money (Dec. 9, 2016), http://money.cnn.com/2016/12/08/news/economy /andrew-puzder-trump-labor-secretary [http://perma.cc/D8TV-XR5P] (stating that CKE Restaurants spent nine million dollars settling three overtime class actions in 2004, and another twenty million dollars over eight years addressing overtime lawsuits in California alone); Alan Rappeport, Andrew Puzder Withdraws from Consideration as Labor Secretary, N.Y. Times (Feb. 15, 2017), http://www.nytimes.com/2017/02/15/us/politics/andrew-puzder -withdrew-labor-secretary.html [http://perma.cc/5BVJ-2FJ7] (noting Puzder’s withdrawal from consideration for Labor Secretary).

See, e.g., Scott Detrow, Scott Pruitt Confirmed To Lead Environmental Protection Agency, Nat’l Pub. Radio (Feb. 17, 2017, 1:22 PM), http://www.npr.org/2017/02/17/515802629/scott -pruitt-confirmed-to-lead-environmental-protection-agency [http://perma.cc/CN89 -YWKP] (noting that EPA Administrator Scott Pruitt describes himself in his official biography as “a leading advocate against the EPA’s activist agenda”).

Revised Memorandum of Understanding Between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites, U.S. Dep’t Homeland Security & U.S. Dep’t Lab. 2 (2011), http://www.dol.gov/asp/media/reports/DHS-DOL-MOU.pdf [http://perma‌.cc/B4GH-SXW2]; see also Immigration and Labor Enforcement in the Workplace: The Revised Labor Agency-DHS Memorandum of Understanding, Nat’l Immigr. L. Ctr. et al. 1 (May 2016), http://www.nelp.org/content/uploads/Fact-Sheet-Immigration-and-Labor-Enforcement -Workplace.pdf [http://perma.cc/4R2Q-TSF5] (noting that the 2011 memorandum updated an MOU that had been in place since 1998).

See Eric Levitz, Are Employers Using Trump’s ICE Agents To Intimidate Workers?, N.Y. Mag. (Aug. 4, 2017, 5:30 PM), http://nymag.com/daily/intelligencer/2017/08/are-employers -using-trumps-ice-to-intimidate-workers.html [http://perma.cc/28LV-UEPC] (reporting two cases in which ICE attended California labor dispute proceedings and apprehended undocumented workers).

Farhang, supra note 64, at 68.

See Jonnelle Marte, Labor Dept. Cuts Target Job Training Programs for Seniors, Disadvantaged Youths, Wash. Post (Mar. 16, 2017), http://www.washingtonpost.com/business/economy /labor-dept-cuts-target-job-training-programs-for-seniors-disadvantaged-youths/2017/03 /15/4aba0966-0999-11e7-93dc-00f9bdd74ed1_story.html [http://perma.cc/XM5Y-8729].

Glover, supra note 28, at 1177-78 (footnotes omitted).

Id. at 1180-81 (footnotes omitted).

Id. at 1180 (footnotes omitted).

Id. at 1183-84 (footnote omitted).

Id. at 1184.

1937 Hearings, supra note 111, at 462-63 (statement of John M. Keating).

Glover, supra note 28, at 1184.

Id. at 1184-85 (footnote omitted).

Id.

See infra Section III.B.

Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 Harv. L. Rev. 1193, 1295 (1982).

See sources cited supra note 55.

Coleman, supra note 32, at 425.

Id. at 426 (footnote omitted); see also Rutherglen, supra note 64, at 738-40 (discussing the importance of individuals having control of civil rights litigation).

Coleman, supra note 32, at 427.

Id. at 414.

Id. at 428.

Id.

See William P. Quigley, Reflections of Community Organizers: Lawyering for Empowerment of Community Organizations, 21 Ohio N.U. L. Rev. 455, 457-59 (1995) (sharing a community organizer’s reflections that “[t]raditional lawyer advocacy creates dependency” and inhibits community leadership development (quoting Interview with Ron Chisom, Nat’l Trainer, People’s Inst. for Survival & Beyond (Jan. 26, 1993))).

See Tamara Relis, “It’s Not About the Money!”: A Theory on Misconceptions of Plaintiffs’ Litigation Aims, 68 U. Pitt. L. Rev. 701, 702 (2007) (finding that the overwhelming majority of civil plaintiffs report being motivated by nonmonetary issues, to which their attorneys are often not sensitive); Sachs, supra note 43, at 2738-40 (describing how workers choose to take actions that entail high risks of employer retaliation based on a “logic of reciprocity,” rather than acting as “self-interested wealth-maximizers” (internal quotation marks omitted) (footnotes omitted)).

See infra Section III.B (describing how the litigation benefits of an injunction, including contempt sanctions and a broad scope of relief, may better secure employer compliance than damages actions alone).

J. Randy Beck, The False Claims Act and the English Eradication of Qui Tam Litigation, 78 N.C. L. Rev. 539, 610-11 (2000); Stephenson, supra note 64, at 119; Stewart & Sunstein, supra note 152, at 1294 (claiming that “the very origins of administrative agencies lay in dissatisfaction with private litigation as an undemocratic mechanism for social choice and control”).

Stewart & Sunstein, supra note 152, at 1295.

Engstrom, supra note 64, at 638 (describing how private enforcers may “develop and press novel applications of legal mandates that public enforcers . . . would forgo as inconsistent with the original legislative design”).

See Beck, supra note 163; David Freeman Engstrom, Private Enforcement’s Pathways: Lessons from Qui Tam Litigation, 114 Colum. L. Rev. 1913, 1964 (2014).

See supra Section II.A.1.

See, e.g., Pamela H. Bucy, Private Justice, 76 S. Cal. L. Rev. 1, 33 (2002).

Kent Roach & Michael J. Trebilcock, Private Enforcement of Competition Laws, 34 Osgoode Hall L.J. 461, 474 (1996).

Barton H. Thompson, Jr., The Continuing Innovations of Citizen Enforcement, 2000 U. Ill. L. Rev. 185, 188.

Id.

See Larry M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age 254, 260 (2008) (finding “the views of constituents in the bottom third of the income distribution received no weight at all in the voting decisions of their senators,” and thus “were utterly irrelevant”); Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America 83 (2012).

See Coleman, supra note 32, at 425-28.

See Stephenson, supra note 64, at 116 (arguing that agencies intentionally promulgate overbroad regulations understanding that they retain enforcement discretion).

Beck, supra note 163, at 633, 627.

Joan H. Krause, “Promises to Keep”: Health Care Providers and the Civil False Claims Act, 23 Cardozo L. Rev. 1363, 1368 (2002).

Engstrom, supra note 64, at 632.

See supra note 33 and accompanying text.

See supra Section I.B.

Wirtz v. Ocala Gas Co., 336 F.2d 236, 240 (5th Cir. 1964); accord Mitchell v. Sw. Eng’g Co., 271 F.2d 427, 432 (8th Cir. 1959); Reich v. IBP, Inc., Civ. A. No. 88-2171-EEO, 1996 WL 445072, at *1 (D. Kan. July 30, 1996).

See supra Section II.A.

Indeed, one commentator has suggested that businesses should be able to bring FLSA actions against their competitors. Wial, supra note 49, at 27-28. Such a complaint, however, would be unlikely to succeed under current standards for implied private rights of action, particularly given that Congress explicitly removed FLSA representative actions with the Portal-to-Portal Act of 1947, Pub. L. No. 80-49, § 5, 61 Stat. 84, 87 (codified as amended at 29 U.S.C. § 216(b) (2012)).

29 U.S.C. § 202(a) (2012); see also H.R. Rep. No. 75-2182, at 7 (1938) (declaring that “the maintenance of substandard labor conditions in a particular industry by a few employers necessarily lowers the labor standards of the whole industry” and “results in a downward spiral of wages” that “leads to labor disputes”); id. at 6-7 (declaring that under FLSA, “[n]o employee . . . need fear that the fair labor standards maintained by his employer will be jeopardized by oppressive labor standards maintained by those with whom his employer competes”).

H.R. Rep. No. 75-2182, at 6-7.

See S. Rep. No. 87-145, at 2 (1961), reprinted in 1961 U.S.C.C.A.N. 1620, 1621.

See supra notes 175-176 and accompanying text.

See, e.g., Nevada v. U.S. Dep’t of Labor, 218 F. Supp. 3d 520 (E.D. Tex. 2016) (issuing a nationwide injunction against a DOL regulation interpreting FLSA’s executive, administrative, and professional exemption to its overtime provision).

See Krause, supra note 176, at 1398.

Beck, supra note 163, at 628-29.

See 29 U.S.C. § 216(b) (2012) (stating that the right to bring and maintain a private action “shall terminate upon the filing of a complaint by the Secretary of Labor”).

See Zachary D. Clopton, Redundant Public-Private Enforcement, 69 Vand. L. Rev. 285, 314-17 (2016) (arguing that mutually preclusive “redundant authority” regimes, where an agency and private parties both have the authority to bring an action but cannot do so simultaneously, “help[] with errors, resources, information, and agency costs while avoiding the direct costs of truly redundant litigation”).

29 U.S.C. § 259 (2012).

Stephenson, supra note 64, at 115-16; see also Beck, supra note 163, at 581-82 (discussing frivolous claims more broadly).

31 U.S.C. § 3729(a)(1)(G) (2012).

See Beck, supra note 163, at 630 n.476.

29 U.S.C. § 216(e)(2) (2012).

See sources cited supra note 18.

See supra Section II.A.

See, e.g., Hugler v. Foreclosure Connection, Inc., No. 2:15-cv-00653-DAK, 2017 WL 2168202 (D. Utah May 8, 2017); Landry v. Swire Oilfield Servs., L.L.C., No. CIV. 16-621 JB/LF, 2017 WL 1709695 (D.N.M. May 2, 2017); Perez v. Fog River, LLC, No. 2:15-cv-500-PMW, 2017 WL 1194343 (D. Utah. Mar. 30, 2017); Hugler v. Cathedral Buffet, Inc., CASE No. 5:15CV1577, 2017 WL 1287422 (N.D. Ohio Mar. 29, 2017); Perez v. Five M’s, No. 2:15cv176, 2017 WL 784204 (N.D. Ind. Mar. 1, 2017).

Wirtz v. Jones, 340 F.2d 901, 905 (5th Cir. 1965).

See 1977 FLSA Hearings, supra note 66, at 16-17.

See Metzler v. IBP, Inc., 127 F.3d 959, 964 (10th Cir. 1997); Brock v. Big Bear Mkt. No. 3, 825 F.2d 1381, 1383 (9th Cir. 1987); Solis v. Int’l Detective & Protective Serv., Ltd., 819 F. Supp. 2d 740, 754 (N.D. Ill. 2011).

See Wirtz v. Ocala Gas Co., 336 F.2d 236, 240 (5th Cir. 1964); see also Dunlop v. Davis, 524 F.2d 1278, 1281 (5th Cir. 1975) (“[T]his court has not hesitated to reverse district courts for refusing to enjoin future violations.”); supra Section II.B.2 (describing the nonburdensome nature of such injunctions).

See, e.g., Fed. R. Civ. P. 65(d)(1)(B)-(C) (requiring that every injunction “state its terms specifically” and “describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required”); NLRB v. Express Publ’g Co., 312 U.S. 426, 435-36 (1941); Jake’s, Ltd. v. City of Coates, 356 F.3d 896, 904 (8th Cir. 2004); Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 51 (2d Cir. 1996).

McComb v. Jacksonville Paper Co., 336 U.S. 187, 191-92 (1949).

See, e.g., Perez v. Gulf Coast Mgmt. Co., No. 14-00426-N, 2015 WL 895098, at *9-12 (S.D. Ala. Mar. 3, 2015) (enjoining defendants from violating FLSA’s minimum wage, overtime, and recordkeeping provisions).

See, e.g., Reich v. IBP, Inc., Civ.A. No. 88-2171-EEO, 1996 WL 445072, at *1 (D. Kan. July 30, 1996) (issuing a company-wide injunction, rather than limiting it to the plants specified throughout the suit); Marshall v. Nat’l Freight, Inc., No. 76-0385, 1979 WL 1977, at *13 (D.N.J. Sept. 6, 1979) (issuing an injunction against the defendant at each of its twenty-four truck terminals).

Brennan v. J.M. Fields, Inc., 488 F.2d 443, 449-50 (5th Cir. 1974), cert. denied, 419 U.S. 881 (1974); see also IBP, Inc., 1996 WL 445072, at *1 (finding such a piecemeal approach “highly inefficient and antithetical to the spirit of the FLSA”).

Wirtz v. Ocala Gas Co., 336 F.2d 236, 241 (5th Cir. 1964).

See 13 James Wm. Moore et al., Moore’s Federal Practice § 65.81 (3d ed. 2017).

See, e.g., Donovan v. Sovereign Sec., Ltd., 726 F.2d 55, 59 (2d Cir. 1984) (citing Hodgson v. Hotard, 436 F.2d 1110, 1115 (5th Cir. 1971)).

McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949).

Sovereign Sec., Ltd., 726 F.2d at 59-60.

Hodgson v. Hotard, 436 F.2d 1110, 1115 (5th Cir. 1971) (quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)).

See Hallett, supra note 20, at 22 (describing the importance of shifting this cost-benefit analysis in order to induce long-term compliance).

See, e.g., King v. Allied Vision, Ltd., 65 F.3d 1051, 1061-62 (2d Cir. 1995); Gen. Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1380 (9th Cir. 1986).

McLaughlin v. McGee Bros. Co., 681 F. Supp. 1117, 1140 (W.D.N.C. 1988).

United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 829 (1994); Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 632-33 (1988).

See Sec’y of Labor v. Tony & Susan Alamo Found., 783 F. Supp. 405, 406 (W.D. Ark. 1991) (noting a prior order to this effect).

Mitchell v. Fiore, 470 F.2d 1149, 1151, 1155 (3d Cir. 1972) (affirming a civil and criminal contempt finding, including imprisonment for sixty days, or for thirty days if defendant paid the “civil judgments and costs” within thirty days).

See Hicks, 485 U.S. at 632.

See Hutto v. Finney, 437 U.S. 678, 685-87 (1978) (upholding a “comprehensive order to insure against the risk of inadequate compliance,” which extended beyond plaintiffs’ established constitutional rights).

See Perez v. Nat’l Consol. Couriers, Inc., No. 3:15–cv–03224, 2015 WL 6692238, at *6-8 (N.D. Cal. July 15, 2015) (ordering such relief through a consent judgment).

Ahearn ex rel. NLRB v. Int’l Longshore & Warehouse Union, 721 F.3d 1122, 1131 (9th Cir. 2013) (citing McComb v. Jacksonville Paper Co., 336 U.S. 187, 193-94 (1949)).

Nantiya Ruan, What’s Left To Remedy Wage Theft? How Arbitration Mandates that Bar Class Actions Impact Low-Wage Workers, 2012 Mich. St. L. Rev. 1103, 1118-19; see also Glover, supra note 28, at 1184 (arguing that “FLSA systematically tends to generate low-value claims because of the nature of its protected class”).

See infra Section III.B.3.

Foo, supra note 50, at 2189.

See Wirtz v. Ocala Gas Co., 336 F.2d 236, 241 (5th Cir. 1964) (describing Tobin v. Frost-Arnett Co., 34 Lab. Cas. (CCH) ¶ 71, 220 (W.D. Tenn. 1958), aff’d per curiam, 264 F.2d 246 (6th Cir. 1959)).

Id. at 242.

See, e.g., Michael T. Morley, De Facto Class Actions? Plaintiff—and Defendant—Oriented Injunctions in Voting Rights, Election Law, and Other Constitutional Cases, 39 Harv. J. L. & Pub. Pol’y 487 (2016).

See supra note 1 and accompanying text.

Zayn Siddique, Nationwide Injunctions, 117 Colum. L. Rev. 2095, 2098 (2017).

Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (considering the propriety of the district court’s certification of a nationwide class of certain elderly and disabled Social Security beneficiaries, and concluding based on this principle that the lower court had not abused its discretion).

See supra note 183.

See supra note 182.

Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 552 (1937) (addressing a private labor dispute under the Railway Labor Act).

29 U.S.C. § 202(a) (2012).

Wirtz v. Jones, 340 F.2d 901, 903 (5th Cir. 1965).

See Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see also supra Section II.B.2.

442 U.S. at 702 (emphasis added).

Where private injunctive relief is available, another path to de facto aggregation is for a workers center to seek injunctive relief based on organizational standing under Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982), on the theory that it was injured by diverting resources in response to the employer’s violations. The injunction might cover all a defendant’s employees, or a subset who are reasonably likely to be subject to such violations, on the understanding that such employees could seek the workers center’s help responding to the violations. Unlike an “associational standing” claim under Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977), such a claim would not be on behalf of workers, but the organization itself. This could present other advantages, such as potentially circumventing arbitration clauses binding employees but not workers centers. See Julius Getman & Dan Getman, Winning the FLSA Battle: How Corporations Use Arbitration Clauses To Avoid Judges, Juries, Plaintiffs, and Laws, 86 St. John’s L. Rev. 447 (2012). Such a claim faces a number of potential challenges, including certain circuit precedent holding that litigation expenses cannot establish injury for standing under Havens. Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990). But see Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir. 1993). It may also risk rendering workers centers “labor organizations” under NLRA section 2(5), with several attendant consequences. See Memorandum from Barry J. Kearney, Assoc. Gen. Counsel, Nat’l Labor Relations Bd. on Restaurant Opportunities Center of New York (Redeye Grill) (Nov. 30, 2006) (concluding that a workers center was not a labor organization). A defendant-oriented injunction involving individual worker plaintiffs may be less risky in that regard because it does not place the workers center as a direct party seeking workplace-wide reforms. However, the possibility of an organizational-standing wage-theft action is worth further research given its potential benefits.

See supra Section III.A (describing the process for bringing a contempt motion).

Compare D.D.C. LCvR 40.5(c) (requiring that disputes over relatedness be decided by the prior judge in the matter) with E.D.N.Y. R. 50.3.1(d) (requiring that the prior judge takes no part in the relatedness decision).

See supra text accompanying note 210.

29 U.S.C. § 255(a) (2012).

See, e.g., Conn. Gen. Stat. § 52-596 (2017) (covering two years); 820 Ill. Comp. Stat. 105/12(a) (2016) (covering three years); N.Y. Lab. Law § 198(1-d)(3) (McKinney 2009) (covering six years).

See Fla. Ass’n for Retarded Citizens, Inc., v. Bush, 246 F.3d 1296, 1298 (11th Cir. 2001) (“Although not all injunctions operate in perpetuity, a district court should enforce an injunction until either the injunction expires by its terms or the court determines that the injunction should be modified or dissolved.” (quoting Board of Education v. Dowell, 498 U.S. 237, 247-49 (1991))).

Donovan v. Burgett Greenhouses, Inc., No. 83-2698, 1985 WL 153928, at *1-2 (10th Cir. 1985); Donovan v. Sureway Cleaners, 656 F.2d 1368, 1376 (9th Cir. 1981); Wirtz v. Ocala Gas Co., 336 F.2d 236, 243 (5th Cir. 1964).

Wirtz v. Chase, 400 F.2d 665, 668-70 (6th Cir. 1968).

Courts have routinely held that FLSA should be interpreted liberally in order to effectuate its broad remedial purpose. See, e.g., Irizarry v. Catsimatidis, 722 F.3d 99, 110 (2d Cir. 2013); De Ascensio v. Tyson Foods, Inc., 500 F.3d 361, 373 (3d Cir. 2007); Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 754 (9th Cir. 1979); Dunlop v. Carriage Carpet Co., 548 F.2d 139, 144 (6th Cir. 1977).

Ocala Gas Co., 336 F.2d at 243 (first citing Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 452 (1932); and then citing Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 444-45 (1911)).

Sureway Cleaners, 656 F.2d at 1375 (citing 29 U.S.C. § 251(a) (2012)).

Id.

See Sachs, supra note 43, at 2722-29 (discussing how employment statutes may serve as a frame for workers’ collective identity formation).

See supra Section II.A.2 (discussing information advantages and private enforcement).

Donovan v. Sovereign Sec., Ltd., 726 F.2d 55, 59 (2d Cir. 1984).

Id. at 59-60.

See, e.g., Brock v. Superior Care, Inc., 840 F.2d 1054, 1063 (2d Cir. 1988); Donovan v. Brown Equip. & Serv. Tools, Inc., 666 F.2d 148, 156 (5th Cir. 1982).

Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 (1945).

Renfro v. City of Emporia, 948 F.2d 1529, 1540 (10th Cir. 1991) (quoting Laffey v. Nw. Airlines, Inc., 567 F.2d 429, 463 (D.C. Cir. 1976), cert. denied, 434 U.S. 1086 (1978)).

See Winning Wage Justice: A Summary of Research on Wage and Hour Violations in the United States, supra note 31, at 53 (stating that when DOL settlements fail to impose liquidated damages, “they give employers little incentive for future compliance” because “employers can rationally gamble that, if they are caught, the only cost they will incur for breaking the law is to pay the wages they would have owed in the first place”).

Brock, 840 F.2d at 1063 (first citing S. Rep. No. 87-145 at 39 (1961), as reprinted in 1961 U.S.C.C.A.N. 1620, 1659; then citing Brown Equip. & Serv. Tools, Inc., 666 F.2d at 156; and then citing E.E.O.C. v. Gilbarco, Inc., 615 F.2d 985, 991 (4th Cir. 1980)).

See, e.g., Donovan v. Sovereign Sec., Ltd., 726 F.2d 55, 57 (2d Cir. 1984) (noting an “overwhelming weight of authority” on this point); Usery v. Associated Drugs, Inc., 538 F.2d 1191, 1194 (5th Cir. 1976) (explaining that this is “well established”).

See, e.g., Herman v. Davis Acoustical Corp., 196 F.3d 354, 357 (2d Cir. 1999); Reich v. Giaimo, Civ. A. No. 85-2184(C)(5), 1993 WL 724662, at *10 (E.D. Mo. 1993).

See supra note 203 and accompanying text.

In Hodgson v. A-1 Ambulance Service, Inc., the Eighth Circuit reversed a district court declining in its discretion to order wages owed because this could cause the defendant ambulance service to go out of business, negatively affecting the surrounding city. The Circuit rejected this reasoning, holding that “the national policy involved in the Fair Labor Standards Act” did not afford such discretion. 455 F.2d 372, 374 (8th Cir. 1972) (citing McComb v. Jacksonville Paper Co., 336 U.S. 187 (1949)); see also Usery v. Fisher, 565 F.2d 137, 139-40 (10th Cir. 1977) (gathering similar cases).

Sachs, supra note 43, at 2688.

Id.

Estlund, supra note 43, at 333; Sachs, supra note 43, at 2701-07.

Andrias, supra note 63, at 39-40.

James J. Brudney, Reflections on Group Action and the Law of the Workplace, 74 Tex. L. Rev. 1563, 1570 (1996).

29 U.S.C. § 202(a) (2012).

See supra note 63.

Andrias, supra note 63, at 5-6 (describing the “collapse” of American unions and the failure of the NLRA regime); Sachs, supra note 43, at 2685-86 (“[M]ost scholars believe that the NLRA is a failed regime.”).

Sachs, supra note 43, at 2730-31.

Andrias, supra note 63.

Id. at 68.

Id. at 9-10.

Estlund, supra note 43, at 333.

Majority Supports Increase in Federal Minimum Wage, Pew Res. Ctr. (Dec. 22, 2015), http://‌http://www.people-press.org/2015/12/22/as-election-year-nears-public-sees-mixed-economic -picture/majority-supports-increase-in-federal-minimum-wage [http://perma.cc/2Q37 -7NPK] (reporting that seventy-three percent of respondents supported raising the federal minimum wage); see also Issues and the 2016 Campaign, Pew Res. Ctr. (Aug. 18, 2016), http://www.people-press.org/2016/08/18/5-issues-and-the-2016-campaign [http://perma‌.cc/P7SS-V5VT] (reporting that fifty-two percent of respondents favored increasing the federal minimum wage to $15 an hour).