Overriding Overtime in Decentralized Work

Abstract

A critical aspect of the American labor market has largely eluded scholarly attention: the phenomenon of millions of American workers holding multiple jobs. This Article represents a novel examination of this phenomenon termed "decentralized work" and elucidates the legal challenges it presents by juxtaposing it with the Fair Labor Standards Act. It demonstrates how workers engaged in decentralized work fall outside the Act's protections, depriving them of overtime pay despite working long hours, and argues that this exclusion creates a significant and overlooked structural pay gap. Yet, it argues, this is not inevitable. This Article explores three legal avenues to contend with the overriding of overtime, articulates the normative foundations of each approach, unearths each approach's underlying conceptualization of decentralized work, and proposes an innovative regulatory framework centered on pro-rata remuneration for overtime. More broadly, it contends that addressing the issue requires a fundamental rethinking of the necessity for overtime and of the meanings attributed to working overtime. Thus, the Article makes three contributions: First, it illuminates the phenomenon of decentralized work, providing a conceptual framework and empirical data and illustrating its impact on millions of workers. It identifies and explicates the formation of a new pay disparity and underscores its gendered dimensions. Second, it explicates the incongruit between the contemporary labor market and existing legal frameworks, illuminates how this incongruity creates a political economy of precarity and exploitation, and demonstrates how decentralized work challenges fundamental structures of working time regulation. Third, it offers a novel pathway for addressing decentralized work, while exposing the underlying paradoxes of overtime regulation.