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2012 Mich. St. L. Rev. 1103 (2012)
What's Left to Remedy Wage Theft: How Arbitration Mandates That Bar Class Actions Impact Low-Wage Workers

handle is hein.journals/mslr2012 and id is 1147 raw text is: WHAT'S LEFT TO REMEDY WAGE THEFT? HOW ARBITRATION MANDATES THAT BAR CLASS ACTIONS IMPACT LOW-WAGE WORKERS Nantiya Ruan* 2012 MICH. ST. L. REV. 1103 TABLE OF CONTENTS INTRODUCTION .................................. ..... 1104 I. WAGE THEFT IN AMERICA ...................................1106 A. Low-Wage Work: Impacting the Most Vulnerable...................1107 B. Under-Enforcement by Regulatory Agencies and the Barriers to Private Enforcement................... ........1111 II. THE ROLE OF CLASS ACTIONS IN PROTECTING AGAINST WAGE THEFT............. .............................1115 A. The Difficulties in Prosecuting Small Wage Claims........1 118 B. The Threat of Retaliation................. .........1119 C. The Importance of Notification Under 216(b)...........................1121 D. Deterring Future Wage Theft ................. ......1122 III. THE GROWTH OF MANDATORY ARBITRATION AND CLASS WAIVERS IN EMPLOYMENT CONTEXTS ......................1125 A. Judicial Enforcement: The FAA ............... ......1126 B. Class Waivers: Banning Aggregate Claims.. ...............1129 1. When Silence in Contracts Is Given Legal Meaning .......... 1129 2. AT&T Mobility LLC v. Concepcion: Protecting Defendants from Collective Action............ ..... 1131 3. The Post-Concepcion Split......... ............... 1134 IV. How MANDATORY ARBITRATION WITH CLASS WAIVERS AFFECTS LOW-WAGE WORKERS: WHERE Do WE GO FROM HERE? 1136 A. Redress Within the Current System of Enforcement ..................1137 1. Challenging Class Waivers as Precluding Vindication of Federal Statutory Rights.......... ...............1137 2. Renewed Public Enforcement of Wage Rights .... .....1139 * J.D., M.S.W., Lawyering Process Professor, Director of Workplace Law Pro- gram, University of Denver Sturm College of Law. A special thank you to Rosemary Dillon, Piper Hoffman, Nancy Leong, Julie Nice, Nancy Reichman, as well as the Colorado Em- ployment Law Faculty working group (particularly Professors Rachel Arnow-Richman, Melissa Hart, and Scott Moss) for their helpful feedback. This Article was made better by the comments given when presented at the Law & Society Association Conference in Hawaii, May 2012, and the Labor and Employment Law Scholarship Colloquium, held in Los Ange- les in September 2011. Special thanks to Joseph Doyle for his excellent research assistance.

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