The headline, "How companies rip off poor employees and lax enforcement lets them get away with it" graced the pages of the Chicago Sun Times on May 4. Similar calls for prosecutors to aggressively go after wage payment noncompliance—including failing to correctly pay overtime, allocate benefits, or classify workers—as if it were "theft" have been reported throughout the country with increasing frequency in recent years.

Prosecutors have answered the call. Government wage-related enforcement—focused particularly on the construction industry—is gaining momentum, and the repercussions for construction companies' wage-and-hour compliance failures are only intensifying in both the civil and criminal realms. Indeed, as the focus has intensified, wage and hour non-compliance has increasingly drawn criminal charges, leaving employers fearful of fines, regulatory actions, and, in some cases, incarceration.

• Wage-and-Hour Compliance Veers Toward the Criminal Realm

Traditionally the focus of wage-and-hour compliance disputes has been in the civil realm, either through private litigation or through the Department of Labor's enforcement authority under the Fair Labor Standards Act (FLSA), which lays out employer obligations to pay minimum wage and overtime, and sets requirements regarding child labor and recordkeeping. See 29 U.S.C. Sections 211, 216. But in recent years, prosecutors have increasingly used Section 216(a) of the FLSA—which provides for imprisonment for willful violations—to criminally prosecute employers for wage and hour noncompliance.