Avenging Wage Theft for Free

Vol. 16 No. 4


Bryce W. Ashby is an associate with the Donati Law Firm, LLP in Memphis, Tennessee. His practice consists exclusively of representing workers in employment matters.

A recent survey of about 4,000 low-wage workers in New York, Los Angeles, and Chicago found that 68 percent of those workers suffered some form of wage violation in the previous week. Such a violation, often called “wage theft,” is the practice whereby an employee receives none or only a portion of his or her wages as guaranteed by contract or state or federal law. Wage theft mainly affects the working poor—those who can least afford it.

Often the victims of wage theft are immigrant workers. New immigrants make easy targets as they are often linguistically isolated, unfamiliar with state and federal wage laws, and in many cases fearful of reporting violations to authorities.

Fortunately, for young attorneys, this is an area that is ripe for pro bono legal service. The perceived problem with these cases from the perspective of many private attorneys is that they frequently involve small, isolated incidents affecting only one or two workers. Many private practitioners suppose that these cases are not capable of justifying the costs and difficulties of litigation. The following are some reasons why that perception is inaccurate and why all attorneys should consider this a prime area for pro bono work regardless of practice area:

Rewarding Work

There are few concepts as fundamental as the idea that a worker who gives of his sweat and time deserves to be compensated fairly for that labor. Though a particular incident may cost an individual worker only a few hundred dollars, denial of an employee’s proper wages has a real and lasting effect, as it can result in a family not being able to buy food, pay rent and utilities, or make a car payment.

An attorney’s involvement can make a significant difference because too many of these families live from check to check and sit on the precipice of financial collapse.

Simple, Yet Creative Lawyering

For an attorney who may be engaged in other areas of practice, wage theft cases are the perfect type of pro bono practice. Smaller cases are typically uncomplicated—they usually involve breach of contract claims or violations of the Fair Labor Standards Act (FLSA), which guarantees covered employees a minimum wage of $7.25 per hour and one and one-half times their hourly wage for all hours worked in excess of 40 hours in a work week.

Despite the relative simplicity of the factual issues involved, the methods to seek redress for your client can provide a real opportunity for creativity, as a number of worker centers, legal aid attorneys, and private practitioners have made use of local and state ordinances, common law unjust enrichment claims, and small claims courts to quickly and effectively vindicate their clients’ rights.

Fee Shifting

The FLSA’s fee-shifting provision also means that a case that begins as pro bono does not have to end that way. There is nothing in the FLSA that discusses the amount of damages ultimately recovered for a worker versus the amount that an attorney may be awarded in fees. In fact, the purpose of the fee-shifting provision is to encourage private attorneys to take these cases regardless of the size of the violation. Indeed, a recent decision from the U.S. District Court for the Western District of Tennessee awarded attorney fees in an amount of nearly $50,000 for the recovery of only $300 in denied wages.

Although pro bono work should be engaged in as a means of community service, such a fee can significantly encourage future service when earned or donated.

Thus, for those young lawyers looking to make a real difference, avenging wage theft may be the opportunity for you. For further information, contact the National Employment Law Project (www.nelp.org), the Legal Services Corporation (www.lsc.gov), or your local worker center.





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