Last week a number of bills were introduced in the House and Senate that seek to amend the Fair Labor Standards Act (FLSA) and prevent an FLSA-related regulation from moving forward. Some measures would toughen the statute by adding stronger pay discrimination nonretaliation provisions and increasing the minimum wage, while others target the FLSA’s minimum wage and overtime exemption provisions.

Pay Disclosure Protections

On June 4, the day before the Paycheck Fairness Act (S. 3220) failed a procedural vote in the Senate, Sen. Dean Heller (R-NV) introduced the End Pay Discrimination Through Information Act (S. 3256), a measure that includes a portion of the more extensive wage discrimination legislation. Specifically, the pared-down bill would strengthen the non-retaliation provisions of the FLSA by making it unlawful to discharge or in any other manner discriminate against any employee who has:

made a charge or filed any complaint or instituted or caused to be instituted any investigation, proceeding, hearing, or action under or related to this Act, including an investigation conducted by the employer, or has testified or is planning to testify or has assisted or participated in any manner in any such investigation, proceeding, hearing, or action, or has served or is planning to serve on an industry committee . . . . or has inquired about, discussed, or disclosed the wages of the employee or another employee.

The added protections for sharing or disclosing wage information would not apply if the disclosing employee had access to such information on account of his or her position in the company, and disclosed the information to employees who would not ordinarily have access to such data. The disclosing employee would, however, be permitted to provide wage and salary information in response to a complaint or charge in furtherance of an investigation, hearing, or related proceeding.

Minimum Wage

On June 6, Rep. Jesse L. Jackson, Jr. (D-IL) introduced the Catching Up to 1968 Act of 2012 (H.R. 5901), a measure that would increase the federal minimum wage to $10.00 per hour, and index future increases to the consumer price index. The bill would establish the minimum wages of tipped employees to be 70% of federal minimum, but not less than $5.50 per hour, to be adjusted annually.

Companionship Exemption

The following day, Sens. Mike Johanns (R-NE) and Lamar Alexander (R-TN) introduced the Companionship Exemption Protection Act (S. 3280), a bill that would preserve the FLSA’s in-home companion services exemption. In December 2011 the DOL issued a proposed rule that would extend minimum wage and overtime requirements to many home care workers. Among other major changes, this proposal would revise the FLSA’s companionship and live-in worker regulations to limit the types of duties that render a home caregiver exempt from FLSA requirements, clarify the type of activities and duties that may be considered “incidental” to the provision of companionship services, amend the recordkeeping requirements for live-in domestic workers, and specify that the exemption is limited to caregivers employed by the individual, family or household using the services only. Third-party employers, including in-home staffing agencies, would not be entitled to claim the exemption even if the worker is jointly employed by the third party and the family/household. In March of this year, the House Committee on Education and the Workforce’s Subcommittee on Workforce Protections held a hearing to discuss many of the concerns surrounding this proposal.

In contrast, the Companionship Exemption Protection Act – which was first introduced in the House in September 2011 – would maintain the exemption in its current form, and effectively prevent the DOL from moving forward with its proposed rule. In a press release, Sen. Johanns said: “This proposed change to a decades-old rule would take that opportunity away from many families by driving up costs and could force them to put loved ones in institutionalized care facilities. The cost of such care is often more expensive and paid through Medicaid – further straining state budgets.”

Marketing Research Exemption

The Research Fairness Act of 2012 (H.R. 5915), the last FLSA-related bill introduced in one week and presented by Rep. Mike Kelly (R-PA), would exempt marketing research participants and mystery shoppers from certain FLSA provisions. Specifically, this measure would exempt the following workers from the FLSA’s minimum wage and maximum hour requirements:

  1. any individual engaged as a participant in bona fide marketing research involved in the collection and analysis of data regarding opinions, needs, awareness, knowledge, views, experiences, or behaviors of a population, through the development and administration of surveys, interviews, focus groups, polls, observation, or other research methodologies, in which no sales, promotional, or marketing efforts are involved and through which there is no attempt to influence a participant's attitudes or behavior; and
  2. any individual engaged to measure or evaluate a customer's experience or some aspect thereof either at a defined location, or while using or purporting to use a specified product or service, provided that (i) the service opportunities are offered to the individual on a project-by-project basis, which the individual can accept or decline, and (ii) the remuneration for the services the individual performs is determined on a basis other than the amount of time worked.