On July 14, 2011, several lobbyists and business representatives argued before the House Education and the Workforce Subcommittee on Workforce Protections (“Subcommittee”) that the Fair Labor Standards Act (“FLSA”) needs to be revised. J. Randall MacDonald, senior vice president of human resources at IBM and chairman of the HR Policy Association, told the Subcommittee that the FLSA is “failing America” because it does not provide employers with enough flexibility in work arrangements with employees, nor does the law provide employers with sufficient certainty regarding their legal obligations.
While the hearing was not called to discuss amending the FLSA, MacDonald and other management side lobbyists blamed the climbing unemployment rate on the influx of wage and hour lawsuits over the past decade. Similarly, MacDonald argued that employers cannot comply with the law because the standards set forth in the FLSA are not applicable to the modern workplace. This sentiment was echoed by the chair of the Subcommittee, Tim Walberg, who stated, “It is hard to imagine a law intended for the workforce known to Henry Ford can serve the needs of a workplace shaped by the innovations of Bill Gates.”
Among the proposed changes to the FLSA are: clarification of which computer employees are exempt from overtime; guidance on whether activities such as checking email are considered work; and the designation of well compensated, commissioned “inside” sales employees as exempt.
Judith M. Conti, federal advocacy coordinator for the National Employment Law Project in Washington, D.C., as well as various Democrats on the Committee, opposed these changes to the FLSA. Ms. Conti stated that revisions to the FLSA could detract from the protections afforded employees. Rep. Dennis J. Kucinich argued that the business representatives appearing before the Subcommittee were “advocating for a system that is manifestly unfair” and that allowed wages to go down while corporate profits rose.
The proposed changes to the FLSA could provide employers with much needed assistance in complying with the law and avoiding potential lawsuits. However, employers shouldn’t hold their breath as there is no reason to believe that Congress will be revising the FLSA anytime soon.