Management-side employment lawyers point to gray areas in the Fair Labor Standards Act and the low threshold for winning conditional certification in collective actions as two reasons why the FLSA litigation boom refuses to die, but plaintiffs lawyers say the law lacks the teeth to give employers an economic incentive to comply. Management-side and plaintiffs employment lawyers don't agree on much, but attorneys in both camps say the volume of new FLSA suits will continue to swell.

Kelly Dermody, a partner with Lieff Cabraser Heimann & Bernstein LLP, conceded that there might be some questions on the margins about how to apply the FLSA, but the same could be said of Title VII, the Employee Retirement Income Security Act or the tax code. The bottom line is that some costs can be controlled and some can't, and labor costs fall into the first category, Dermody said. The pressure on companies to keep costs down is intense, and the risk they face in terms of penalties they would suffer as the result of being hit with an FLSA suit is low, so some companies are erring on the side of cost-cutting if there's a question about whether or not pay practices run afoul of the FLSA, Dermody added. "I don't think the law is that vague. The real problem is that there isn't that much of a downside for violating the law," Dermody said. "We're talking about a law that doesn't have enough teeth to create proactive enforcement."