Procedural Hurdles and Thwarted Efficiency: Immigration Relief in Wage and Hour Collective Actions

Wage theft and its frequent exploitative companions, trafficking and involuntary servitude, have seen substantial increases in recent years. Low-wage workers often bear the brunt of these practices. Vulnerable populations, such as immigrant workers, and more specifically, undocumented workers, experience wage theft and other forms of workplace-related exploitation at alarmingly high rates. Individual adjudications of these claims are neither efficient nor, in many cases, feasible, given attorneys’ aversion to shouldering the risks and costs in cases that may yield only limited attorneys’ fees. The collective adjudication of Fair Labor Standards Act (FLSA) claims, however, largely resolves these challenges and provides an efficient and effective vehicle for pursuing exploited workers’ rights. Unlike Rule 23 class actions that provide for the presumptive inclusion of class members in the litigation, however, collective adjudication of FLSA claims under §216(b) is essentially a liberalized joinder mechanism requiring individuals to affirmatively join the case as parties to the litigation. This critical difference, particularly when considered alongside additional discovery responsibilities imposed on parties in collective actions, creates heightened procedural hurdles to undocumented immigrants’ ability to vindicate their wage rights.This article situates the current scholarship on workplace violations and U visas within the collective and class adjudication framework and analyzes the impact of these procedural hurdles on undocumented workers. It suggests that the availability of U visas for workers whose employer has committed wage theft accompanied by other criminal coercive actions, such as trafficking and involuntary servitude, reduces undocumented workers’ vulnerability, thus empowering them to participate in wage and hour collective actions. The article then considers which collective action members should be permitted to seek U visas, and concludes that both named plaintiffs and collective action members who participate in discovery should receive U visas. Finally, it considers from whom the law enforcement certifications required for U visa applications should be sought and argues that, in collective actions, such relief is best sought from judges