Abstract

The minimum wage was a signature achievement of the New Deal and remains an important safeguard for fair labor today. But for some workers, minimum does not mean minimum. As scholars and advocates have documented, the Fair Labor Standards Act creates legal subminimum wages for workers with disabilities and tipped workes. This Article uncovers another subminimum wage: for live-in domestic workers who live and work in their employer’s home, employers can count the value of meals or lodging provided against the cash minimum wage. This leaves take-home wages well below $7.25 an hour. Although deductions have been lawful since FLSA’s origin, this Article is the first to conceptualize deductions as a legal subminimum wage.

I describe the live-in domestic work industry and the history of its inclusion in the federal minimum wage. Next, I explain the law of meal and lodging deductions and how they function as a subminimum wage. Then, proceeding from normative skepticism of subminimum wages for work associated with women of color, I develop four critiques of the deductions rules. I argue that deductions generate poverty wages, mimic a problematic theory of the marriage bargain, widen the existing power gulf between workers and employers, and entrench illegal wage theft. Finally, I note how states have departed from the federal rules and conclude that abandoning deductions is the way forward to make the minimum wage a true wage floor.