“I’m going to make sure that some employers go to jail for wage theft and all the other abuses that they engage in,” said presidential hopeful Hillary Clinton at a Labor Day rally in Illinois.

“Wage theft” is an elastic sort of epithet. These days, it gets used to describe employer practices ranging from the offering of unpaid internships – a practice, it should be noted, that Hillary Clinton has engaged in herself – to not paying employees overtime when they send or read work-related email after hours.  Last year, union advocates in the press widely accused an Amazon.com contractor of “wage theft” in a dispute over whether employees should be on the clock while undergoing physical security checks. The Supreme Court ruled 9-0 that the practice was not a labor law violation in the first place, let alone “theft.” 

Of course there are cases where employers (often of the fly-by-night sort) defraud workers of promised pay. The law has long, and rightly, treated this class of cases with severity. The effect of the suddenly prevalent “wage theft” phrasing — indeed, I would go so far as to say its purpose — is to blur the lines between those cases and the countless disputes that arise under the Fair Labor Standards Act and similar laws over employee classification, portal-to-portal compensation, tip pooling, donning and doffing time, and so forth. Because the FLSA and similar laws are vague and hard to interpret, and have repeatedly been clarified only after-the-fact by court interpretations (when courts manage to agree with each other), anticipating what is lawful is often a matter of guesswork. In typical situations, established employers delivered as promised on the compensation deal that workers had come to expect, and workers similarly stayed on the job with eyes wide open, but it is argued after the fact that the intricacies of the New Deal-era FLSA required the offering of a different deal.

This is bait and switch terminology and there is no reason to give it a pass. Reporters should ask Hillary Clinton which cases, specifically, she has in mind when she talks of jailing employers, and whether that includes cases in which managers were obliged to guess what the law required of them (adapted from Overlawyered.)