The Future of the Fair Labor Standards Act
NOTE: The remarks below were delivered by Ann O’Leary on November 15, 2013 where she spoke on a panel entitled “The Future of the Fair Labor Standards Act” commemorating the 75th anniversary of the law.
Thank you. It is a true honor to be here today, reflecting on what the Fair Labor Standards Act has done in the past 75 years not only for the American worker, but also for America’s families.
It is tempting to start a 75th anniversary talk by discussing just how much has changed in the past 75 years—dramatically when it comes to women in the workforce—along with the sheer number of workers, both men and women, who today combine wage earning with caregiving.
But instead of focusing on these big shifts in our work and family lives, it is perhaps more important to understand how the roots of the FLSA sprang up—in part from a debate over the proper limitations for workers who had caregiving responsibilities—to a discussion of women workers and the unfair assumptions sweeping all women into mother or potential mother roles.
It is important to briefly reflect on this history and how it set up the architecture for addressing the challenges faced by today’s workers—of the stress of inflexible work schedules and the continued lack of more robust laws to help parents combine work and caregiving.
These are not minor concerns when viewed in the context of the future of our country. Working parents are critical drivers of our current economy, but also hold in their hands our future economy through the support they provide their children, support they provide through the income they earn, and through the time they spend with their children.
As many of you know, well before the surge in women's workforce participation in the second half of the twentieth century and before passage of the FLSA, state laws governed basic labor protections.
These early state laws provided minimum wage and maximum hours protections for both men and women, but after the Supreme Court struck down New York’s maximum hours laws in the famous case of Lochner v. New York, state laws were targeted only at women.
The historical evidence makes clear that women-only state protective laws resulted from hard-fought advocacy and leadership by a broad coalition of women's organizations on behalf of low-wage working women.
In 1908, the women's organizations advocating for state maximum hours laws for women won a victory when the Supreme Court in Muller v. Oregon held that protective labor laws for women were constitutional on the ground that maximum-hour laws came within the state's police power to legislate worker protections based on health.
This victory led to a surge in the passage of state laws regulating the maximum hours that women could work, including limitations on daily and weekly hours and prohibitions against mandatory overtime.
In the brief supporting the maximum hours state law, the proponents highlighted the uniqueness of women's role in the workplace. This strategy was used by the women's organizations to protect low-wage working women in their roles as mothers, but it was a dangerous one.
The state protective labor laws were not tailored to “mothers.” Instead, they applied to all women regardless of whether they were wives, mothers, or caregivers, and regardless of their economic situation or need for such protection. The statutes assumed that all women were physically weak and unable to perform certain jobs, locking women into a gender-stereotyped role and denying women access to some jobs.
Nevertheless, such laws also allowed mothers and female caregivers some protection against long hours at the factory away from their families.
The maximum hours laws for women only were also problematic because a restriction in hours meant less opportunity to earn wages for the family.
Role of the FLSA
With the passage of the Fair Labor Standards Act in 1938, the problem of setting a minimum wage was resolved (at least for the workforce covered by the FLSA), and to a certain extent the debate over maximum hours was settled with what ultimately became the 40-hour work week set as the standard.
Unresolved, however, was the question of whether states could maintain their women-only maximum hours laws that went above and beyond the FLSA.
This debate was not resolved until the passage of Title VII of the Civil Rights Act of 1964 and with it the ultimate over-turning of the women-only maximum hours laws that had provided some protection against overtime but had also limited women’s ability to earn overtime if the state law prohibited it.
In the 1970s, after these women-only maximum hours laws had been overturned, one commentator, Professor Uwe Bronfenbrenner, noted, “Women are going to work, and they deserve to do so. Yet, we keep the old male work rules, 9 to 5, 40 hours a week, and if there's overtime, you do it or you don't keep your job. Neither men nor women can combine working with parenting under these rules. We need new ways of working.”
Protections Against Discrimination versus Basic Labor Standards
From the 1938 passage of the Fair Labor Standards Act to the 1964 Civil Rights Act through to the Family and Medical Leave Act of 1993, there was a robust development of the law that considered protections for workers with caregiving responsibilities in both an anti-discrimination framework and a basic labor standards framework.
Title VII of the Civil Rights Act required that women and men be treated equally with regard to caregiving policies.
The Pregnancy Discrimination Act passed, amending Title VII and protecting women from being fired or otherwise discriminated against based on the condition of pregnancy or needing leave to give birth and recovery thereafter.
But it soon became clear that the Pregnancy Discrimination Act was only as good as the employer’s labor policies—meaning that if any worker could be fired for taking leave for a temporary health problem, then a pregnant woman had no additional protection and could also lose her job.
The gaps in the Pregnancy Discrimination Act led ultimately to the passage of the Family and Medical Leave Act—which was novel in two ways:
- It set a minimum labor standard not an anti-discrimination law—so it affirmatively provides 12 weeks of guaranteed, job protected leave as a basic labor standard; and
- It is gender neutral, allowing men and women the right to take medical or caregiving leaving without losing their job.
With this long wind-up, allow me to make two points on how this architecture sets us up for the future of the FLSA and where we have work remaining.
1. The Family and Medical Leave Act helps with major caregiving life events but does not help workers with the day-to-day need for predictability and flexibility in their schedules2
When the Fair Labor Standards Act passed in 1938, Congress was concerned with “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.”
Certainly being fired or demoted from your job due to the need for leave to take care of a serious illness, family member with a serious illness, or a new baby constitutes a “labor condition detrimental to this minimum standard of living.”
But is there an argument today that FLSA should be used to protect against hours and scheduling practices that could be detrimental to one’s health, regardless of gender?
In recent years our 24/7 economy has led to an increase in the problem of uncontrollable schedules for employees. As employers set up systems to ensure efficiency in production and service, too often the needs of employees are left out of the equation.
This means that for low-wage workers, they can be faced with:
- Constantly changing work schedules, which make arranging consistent child or elder care nearly impossible;
- Required policies forcing them to be “openly available” for 60 or 70 hours per week without providing any guarantee of a set number of hours; and
- Last-minute demands to work mandatory overtime hours with no notice, even if the worker has an obligation to be at home to relieve a babysitter, pick up the kids at the end of the school day, or take an aging relative to the doctor.
Workplace flexibility allows workers to alter their schedules at work, the location of their workplace, or both, enabling them to meet their responsibilities at work and address their family and caring responsibilities.
Workplace predictability ensures that, at a minimum, workers will know their work schedules in advance from day to day and week to week so that they can make arrangements for their children or other family members who need care.
Work schedules that are flexible and predictable help workers sustain their family responsibilities over a lifetime—from coordinating with school schedules and arranging infant and child care in the early years to carving out caregiving time for an elderly, or ailing parent or spouse in later years.
The White House and the United States Department of Labor have been leading in this space—hosting a White House Forum on Workplace Flexibility in March 2010, releasing a Council of Economic Advisers report on the economics of workplace flexibility, and a Work-Flex Event Starter Kit in order to help bring about action at the community level.
Some in Congress think that the perfect solution to this conundrum for more flexibility and predictability is to amend the FLSA to allow workers to use “comp” time instead of overtime when they work over 40 hours per week.
But such legislation allows the employer to determine when that time off would occur, rather than the employee, so that the flexibility could be entirely to the employer and not to the employee’s benefit. Advocates and economists expressed grave concerns that this legislation would likely lead to an increase in involuntary overtime.
There is one idea on how to improve workers’ ability to control their work schedules, however, that is worth considering and that is being tested as we speak:
These right-to-request laws—based on models from the UK, Australia and New Zealand—do not mandate that employers provide every worker with the schedule they desire, but do require that employers set up a process to discuss and negotiate workplace schedules to improve flexibility or predictability and only allows the employer to turn down the requests for certain business reasons.
There is also much that employers can do voluntarily to foster environments that allow workers to have these scheduling discussions without facing retaliation, to post schedules in advance, to allow for shift-switching, and to stop the practice of mandatory overtime.
2. Intersection between FLSA and social insurance is missing with regard to caregiving
When FLSA was passed, it was just 3 years after President Roosevelt had signed the Social Security Act of 1935—providing social insurance for the loss of income due to major life events from unemployment to death—and eventually also expanded to include long-term disability.
FLSA and the Social Security Act were a puzzle fitting together—providing workers with a minimum wage when they are working in the labor force and allowing them to maintain their minimum level of well-being if they lost their job through no fault of their own.
But we have not done the same to protect workers against the loss of income due to short-term disability or family leave—and it is time that we fix this hole. You’ll hear more about it this afternoon—but in California we were the first in the nation to do this and now followed by New Jersey and Rhode Island. It is time that the nation follows to provide this basic protection—one that is provided by nearly every developed country.
Allow me to end by mentioning how critical these changes are to fully support today’s workers and to stop labor practices that are detrimental to their health and well-being.
These are not minor concerns when viewed in the context of the future of our country. Working parents are critical drivers of our current economy, but also hold in their hands our future economy through the support they provide their children.
Child development is severely impacted by parent’s stress. Not only does stress from work have an established connection to the early genetic development of children, the instability present in households has a negative effect on child health. Indeed, Dr. Clair Kamp Dush, a researcher at Ohio State University, notes in her most recent publication that chaotic home environments that feature parents with inflexible work schedules contributed to poorer early child health.
Without significant protections in the workplace, parents are immediately at a disadvantage, trying desperately to maintain their family’s income while simultaneously tending to the early development and health of their children.
This is why laws like San Francisco’s Family Friendly Workplace Ordinance (FFWO) and Paid Family Leave laws in states like California and New Jersey are so important. They provide a basis of protections for parents that allow them to not only be present with their children in the earliest years, but more engaged in their development at critical moments in their child’s life.
Parents are a child’s first and most important teachers, and with the proper tools and work protections, they can feel more empowered to engage in their child’s development and help them accomplish larger goals like closing the word gap and increasing early literacy.
These two issues – flexible, protected work environments and the science on early cognitive development in children – are highly interconnected. Without strong worker protections there is a direct disservice to enhancing early cognitive development like early vocabulary growth and strong emotional attachments.
1 This section is drawn from my previous work. For a fuller recount of the history, please see my article “How Family Leave Laws Left Out Low-Wage Workers,” 2007.
2 This section is drawn from a paper I co-authored with Heather Boushey at the Center for American Progress, “Our Working Nation in 2013: An Updated National Agenda for Work and Family Policies.”