Is the FLSA a Dinosaur?
Is workplace flexibility out of reach for employees? Based on the Fair Labor Standards Act,
nonexempt employees and their employers are restricted by the definitions of a workweek that were
established in 1938 when the law was enacted. A Congressional subcommittee on workforce
protections recently held a hearing to explore calls for reform of the FLSA. High-prole companies
like IBM testified that current regulations are neither employer nor employee friendly. Companies
have instituted policies to restrict flexible work hours, telecommuting, and the use of mobile
technology to comply with the wage and hour law.
Overtime “exemptions” were granted by the government to only a small subset of workers with an
intent to require companies to pay nearly all workers an overtime premium for work hours over 40 in
a week. Life was different in 1938 when the vast majority of workers were men working in manual
labor jobs. These jobs took a physical toll and long work weeks could lead to injuries and fatigue. All
work was done onsite under a bureaucratic organization hierarchy. Workers had little discretion and
input into how the work was to be done.
Fast forward 75 years and look at today’s workplace. Technology and communication tools allow
workers to carry their work with them wherever they go. No longer do we have to travel to a job site
to complete our work. Women make up approximately half of the U.S. workforce. Many jobs are
“knowledge” jobs rather than strenuous manual labor. Employees are empowered and engaged, and
their input into work design is welcomed by their employers.
While public-sector employees are allowed to take comp time rather than pay for overtime hours, it’s
strictly forbidden in the private sector. This limits employees from working hard early in the year in
order to “bank” some time to use for summer vacation or winter holidays. It’s a lose-lose because the
employee can’t get what she wants and neither can the employer. So, no flexibility for you!
If it’s such a good deal, who could be against revising the FLSA? There are those who believe that
employers would take advantage of workers and things would return to post-Depression era worker
abuse. Without being forced to acknowledge and pay overtime premiums, employers might make
unreasonable demands on workers’ time. There continue to be major lawsuits and settlements by
workers who have been underpaid for their work hours. So, perhaps companies can’t be trusted to
treat workers properly.
- Does the 40-hour workweek still make sense? Would you recommend changing to a “pay
period” calculation for overtime? For example, if a company pays workers every two weeks,
should hours over 80 in a pay period be used to determine overtime rather than 40 in a week? - How should nonexempt workers track their time spent away from work doing tasks such as
responding to e-mail or text messages? - Would you recommend that private-sector employers be permitted to offer nonexempt
employees’ compensatory time off rather than pay for overtime hours worked?
Sample Solution