Document Type



The resurgence of strikes in the non-union fast food and retail sectors has created unprecedented momentum for increases in state, local, and company-specific minimum wages. The once fantastical demand for a $15 an hour wage floor has been legislated into life in two states, four major cities, and counting. Early work, drawing from organizational studies, identified “improvisation” as the theoretical engine of the walkouts, and while that strategy remains, the ground has since shifted. Today’s strikes are no longer just about McDonald’s or Walmart but low wage jobs generally, from child care, to adjunct teaching, to security, and beyond. The article tracks this ambitious next step and asks the critical question of whether improvised resistance can play a truly foundational and widespread role in workplace advocacy. The answer is “yes” — but only if the law lets it. Workers improvise when they trust each other, and they trust each other when they can talk to each other in relaxed settings. At work, and under longstanding labor law, that means break time. But work changed and the law did not. Today’s low wage service economy is nothing like the post-War industrial age when the main law governing workplace relationships was established. A prime consequence is the end of opportunities to informally hang out on the job — that means less talk, less trust, and a much diminished potential that improvisation will arise organically. This article argues that protecting the right to improvise in low wage work requires reform of the labor law super-principle that “working time is for work” and nothing else. In 2016 working time is often the only time, so workers must be empowered to interact freely right there and then. Two specific changes are proposed. First, workers should be allowed to chit-chat — about any topic — in the midst of assigned tasks. While allowing talking while working might seem like a productivity menace, multitasking research suggests the opposite. Second, labor law should carve out space for workers to take “micro-breaks,” short concerted worktime stoppages that impact production only modestly. Both changes are possible through existing precedent and without amendment to the National Labor Relations Act.

Publication Date


Original Citation

Michael M. Oswalt, The Right to Improvise in Low Wage Work, 38 Cardozo L. Rev. 959 (2017).


College of Law

Legacy Department

College of Law




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