"Don't protect your rights or your employer will break the law!"
Well, the NLRB, one of the arbiters of labor laws, doesn't say "maybeeeee", it says they _are_ breaking labor laws.
"Even if an employer is caught, the penalties are generally not severe enough to change their future behavior. The two primary penalties that DOL uses are civil money penalties and liquidated damages. Employers who repeatedly or willfully violate the minimum wage and overtime requirements may be subjected to civil monetary penalties of up to $1,100 for each violation, but DOL seldom uses these penalties (Bobo, 2009)."[0]
[0]https://smlr.rutgers.edu/sites/default/files/Documents/Cente...
Sometimes the employer is also acting as a worker but not necessarily and they get to keep the surplus either way
That seems like a pretty clear distinction to me