Legal Tools for Making Day Labor Wage Claims Economically Viable

News media stories report that a decline in construction activity across the US has made life for day laborers, which was already hard in good times, even harder still. Many laborers have hit the road, going to places like Texas, that have not felt quite so much pain as the rest of the country. This mobility of day labor is nothing new-- it is one example of the flexibility of day labor, which helps explain its persistence as a labor market phenomenon.

But this mobility also highlights the difficulty of organizing day laborers to enable them to protect their common interests. Claims by individual day laborers that an employer has underpaid him or failed to pay him at all are sometimes abandoned. The stakes are too low to make it economic for an attorney to be hired to file suit. If an employer mistreats a number of day laborers in this way, the stakes are much higher. One attorney might represent a number of day laborers against a single defendant, and the higher stakes would justify the costs of hiring an attorney to take on this "collective action" or "class action."

The mobility of day labor makes collective action suits harder to bring. The federal Fair Labor Standard Act (FLSA) and certain state law counterparts require employers to pay minimum wage and overtime and advise workers of their rights. Collective actions brought under the FLSA require that each employee plaintiff affirmatively notify the court of their intention to join the suit. It is hard enough to get mail to many day laborers. But if an aggrieved day laborer moves out of town, or out of state, it makes it very difficult to advise them of their rights and the possibility of vindicating them in a collective suit.

Fortunately there is a way to enlist the help of the court to contact potential plaintiffs to an FLSA collective action. In Marroquin v. Canales, 236 F.R.D. 257 (D. Md. 2006), a federal district court adjudicated a FLSA collective action brought on behalf of day laborers who were hired to perform clean up work in Mississippi and Louisiana in the wake of Hurricane Katrina. Thirty seven plaintiff day laborers alleged that their employer failed to pay them the wages promised or overtime. These plaintiffs asked the court to help them locate and notify more than a hundred other day laborers who were similarly mistreated. The court granted their request. It did this based not on the pleadings alone, but also on the evidence that the thirty seven plaintiffs had submitted. This demonstrated that there were other potential plaintiffs that worked for the same employer and suffered the same mistreatment. The court also relied on evidence that it would be difficult for the thirty seven plaintiffs already before the court to locate these other aggrieved employees. Their employer kept poor records of employee names and addresses, and many employees had moved away.

Attorneys considering representing day laborers on wage claims under the FLSA would do well to remember this tool to bring together a class and make a case viable. With day laborers on the move more than before, and desperate employers tempted to cut corners by short-changing their help, it might come in handy. It doesn't hurt to ask.