The Right to Improvise in Low Wage Work

82 Pages Posted: 1 May 2016 Last revised: 17 Mar 2017

Date Written: February 1, 2017


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. This Article tracks this ambitious next step and asks the critical question of whether improvised resistance can play a 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-World War II 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 diminished potential of improvisation arising 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 2017, working time is often the only time on the job, so employees 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 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.

Keywords: Fight for $15, improvisation, NLRA, strikes, working time is for work, breaks, Uber

JEL Classification: J50, J51, J53, K31

Suggested Citation

Oswalt, Michael M, The Right to Improvise in Low Wage Work (February 1, 2017). 38 Cardozo Law Review 959 (2017). Available at SSRN:

Michael M Oswalt (Contact Author)

Northern Illinois College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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