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HISTORICAL OVERVIEW
OF THE
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FAIR LABOR STANDARDS ACT
Pamela N. Williams*
I.
INTRODUCTION
“If each of us hires people who are smaller than we are, we shall
become a company of dwarfs, but if each of us hires people who are
bigger than we are, [we shall] . . . become a company of giants.”1 It
was a similar sentiment that resulted in the passage of the Fair Labor
Standards Act of 1938 (FLSA). The Act provided:
(a) The Congress finds that the existence, in industries
engaged in commerce or in the production of goods for
commerce, of labor conditions detrimental to the maintenance of the minimum standard of living necessary for
health, efficiency, and general well-being of workers (1)
causes commerce and the channels and instrumentalities
of commerce to be used to spread and perpetuates such
labor conditions among the workers of the several States;
(2) burdens commerce and the free flow of goods in
commerce; (3) constitutes an unfair method of competition in commerce; (4) leads to labor disputes burdening
and obstructing commerce and the free flow of goods in
commerce; and (5) interferes with the orderly and fair
marketing of goods in commerce. That Congress further
finds that the employment of persons in domestic service
in households affects commerce.
(b) It is declared to be the policy of this chapter, through
the exercise by Congress of its power to regulate commerce among the several States and with foreign nations,
* Pamela N. Williams JD, LLM, is a legal writing professor at North Carolina Central
University School of Law. She is a graduate of the University of North Carolina
School of Law. Prof. Williams dedicates this article to her late father, Dr. McArthur
Newell, for his vision, imagination and strength of character.
1 Peter Krass, Introduction to David Ogilvy, Managing Crown Princes, in THE BOOK
OF MANAGEMENT WISDOM: CLASSIC WRITINGS BY LEGENDARY MANAGERS 130
(Peter Krass, ed., 2000) (quoting David Ogilvy).
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to correct and as rapidly as practicable to eliminate the
conditions above referred to in such industries without
substantially curtailing employment or earning power.2
II.
BEFORE
THE
FLSA
Following the Reconstruction Era, the United States entered a
period of rapid industrial growth that proved beneficial to the United
States, as well as the world economy; however, with the rapid growth,
the necessity of increased productivity became a strain on workers.3
While certain conveniences (e.g., transportation, food processing, pasteurization, etc.) became more available, the conditions of factories and
manufacturing centers that created them increasingly became more dangerous and conditions were squalid.4
III.
THE GREAT DEPRESSION
In October 1929 the United States’ stock market collapsed, producing worldwide economic instability, and by the 1930s, the Great Depression took hold of America.5 The depression was worldwide and
resulted in a descent of output and prices, and increased unemployment.6 Labor activists called for a federal minimum wage for an
“American standard of living.”7 This standard of living was to match
that set by some states. Specifically, Massachusetts was the first state to
enact a minimum wage, although it was only for women and minors.8
29 U.S.C. § 202 (1938) (emphasis added).
Sukkoo Kim, Immigration, Industrial Revolution and Urban Growth in the United
States, 1820-1920: Factor Endowments, Technology and Geography (Wash. Univ. in
St. Louis and Nat’l Bureau of Econ. Research, Working Paper No. 12900, 2007),
available at http://soks.wustl.edu/immigration.pdf.
4 Id.
5 CHAMBERS DICTIONARY OF WORLD HISTORY 361 (Bruce Lenman & Hilary Marsden
eds., 3d ed., Chambers 2005) (1994).
6 Id.
7 Thomas A. Stapleford, Market Visions: Expenditure Surveys, Market Research, and
Economic Planning in the New Deal, 94 J. AM. HIST. 418 (2007) (internal quotation
marks omitted).
8 William P. Quigley, ‘A Fair Day’s Pay for a Fair Day’s Work’: Time to Raise and
Index the Minimum Wage, 27 ST. MARY’S L.J. 513, 516 (1996).
2
3
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Other states, such as California, Oregon, and Washington, also enacted
minimum wage laws by 1920.9
IV.
WORKING CONDITIONS
In his famous work, The Jungle, Upton Sinclair described working conditions through the eyes of his protagonist, Jurgis Rudkus, who
was initially optimistic about working in a Chicago meat packing factory, but
was quite dismayed when he first began to find it out—
that most of the men hated their work. It seemed
strange, it was even terrible, when you came to find out
the universality of the sentiment; but it was certainly the
fact—they hated their work. They hated the bosses and
they hated the owners; they hated the whole place, the
whole neighborhood—even the whole city, with an allinclusive hatred, bitter and fierce. Women and little children would fall to cursing about it; it was rotten, rotten as
hell—everything was rotten.10
Despite the working conditions, the mass industrialization of the
United States produced an ample supply of consumer products, which
were readily purchased by the citizenry.11 During this time, many of the
necessities for funding and participation in World War I fueled the rise
in the American economy.12 While in the war, the United States shifted
more than twenty percent of its production to wartime needs.13
Much of the United States’ prosperity during this period can be
tied directly to World War I, as well as the supply of jobs created by the
invention of the automobile.14 Another benefit of the war was the creaId.
UPTON SINCLAIR, THE JUNGLE 81-82 (Plain Label Books 1906) (1906).
11 P. EDWARDS, STRIKES IN THE UNITED STATES 1881-1974, at 154 (1981).
12 Id.
13 JOHN M. PETERSON & RALPH GRAY, ECONOMIC DEVELOPMENT OF THE UNITED
STATES 357 (1969).
14 See generally JAMES H. MADISON, INDIANA THROUGH TRADITION AND CHANGE: A
HISTORY OF THE HOOSIER STATE AND ITS PEOPLE, 1920-1945 (Indiana Historical
Society 1982).
9
10
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tion of the World War I National War Labor Board, which the President
established “to settle industrial disputes, [and] became the model for a
national system of labor-management relations in the 1930s. For the
emergency period during the War, union representatives on that board
won the right of workers to join unions and not be discharged for union
activity.”15
Ultimately, the economic boom afforded by industrialization and
the war ended with the stock market crash of 1929.16 Immediately
thereafter, the United States suffered through the Great Depression,
which stripped the country of the prosperity, as well as the jobs, afforded by the increased industrialization and the war effort.17 Employment conditions became increasingly worse, and Congress and the
President took a number of measures to address labor issues.18 As referenced earlier, before the stock market crash, World War I resulted in
the creation of the War Labor Board in 1918.19 The War Labor Board
continued to improve labor-management relations. In addition, the Bureau of Labor Statistics received funding during the war to conduct
wage surveys to address labor-related issues.20 The work of these bureaus formed the basis for the legislation that would ultimately become
the FLSA.21
V.
CHALLENGES
TO
STATE WAGE LAWS
Nonetheless, the United States Supreme Court failed to uphold
state statutes that interfered with employers’ employment and wage
contracts with workers.22 In Adkins v. Children’s Hospital of the District of Columbia, the Supreme Court sought to determine whether the
PETERSON & GRAY, supra note 13, at 358.
Robert VanGiezen & Robert E. Schwenk, Compensation from Before World War I
Through the Great Depression, COMPENSATION & WORKING CONDITIONS, Jan. 30,
2003, http://www.bls.gov/opub/cwc/cm20030124ar03p1.htm.
17 H.M. Douty, A Century of Wage Statistics: The BLS Contribution, MONTHLY LAB.
REV., Nov. 1984, at 16, 20.
18 See id.
19 PHILIP SHELDON FONER, AMERICAN LABOR AND THE INDOCHINA WAR: THE
GROWTH OF UNION OPPOSITION 174 (1987).
20 See Douty supra note 17, at 19-20.
21 See Quigley, supra note 8, at 520-29.
22 Id. at 518.
15
16
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District of Columbia could set minimum wages for adult women and
children without regard to their earning ability or the necessities of the
employer.23 The Act at issue declared that its purpose was, “[t]o protect
the women and minors of the District from conditions detrimental to
their health and morals, resulting from wages which are inadequate to
maintain decent standards of living; and the act in each of its provisions
and in its entirety shall be interpreted to effectuate these purposes.”24
However, the Supreme Court held that the District of Columbia legislation conflicted with the Fifth Amendment and was therefore invalid.25
The Court rationalized the legislation interfered with the freedom to
contract, which is “included within the guaranties of the due process
clause of the Fifth Amendment. That the right to contract about one’s
affairs is a part of the liberty of the individual protected by this clause is
settled by the decisions of this court and is no longer open to
question.”26
The Court noted that it upheld a Utah statute restricting the
amount of time workers could spend in mines under the police power of
the state,27 and cited other cases upholding legislation based on the
same police power argument28—including Bunting v. Oregon 29 and
Wilson v. New.30 The Court found rent-fixing cases comparable with
the issue at hand in Adkins. 31
Adkins v. Children’s Hosp. of D.C., 261 U.S. 525, 539 (1923).
Id. at 541-42 (internal quotation marks omitted).
25 Id. at 560-62.
26 Id. at 545 (citing Butchers’ Union v. Crescent City, 111 U.S. 746 (1884); Allgeyer
v. Louisiana, 165 U.S. 578 (1897); Lochner v. New York, 198 U.S. 45 (1905); Adair
v. United States, 208 U.S. 161 (1908); Muller v. Oregon, 208 U.S. 412, 421 (1908);
Coppage v. Kansas, 236 U.S. 1, 10, 14 (1915); N.Y. Life Ins. Co. v. Dodge, 246 U.S.
357, 373-74 (1918) (citations omitted)).
27 Id. at 548-49 (citing Holden v. Hardy, 169 U.S. 366 (1898)).
28 Id. at 550-51.
29 Bunting v. Oregon, 243 U.S. 426, 439 (1917) (upholding an Oregon statute
forbidding any manufacturing establishment to employ a person for more than ten
hours per day).
30 Wilson v. New, 243 U.S. 332, 356-57 (1917) (sustaining a state law which
established an eight hour workday for employees of interstate carriers).
31 Adkins, 261 U.S. at 552 (citing Block v. Hirsh, 256 U.S. 135 (1921); Marcus
Brown Holding Co. v. Feldman, 256 U.S. 170 (1921)).
23
24
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Several activists submitted presentations and statistics about
how the minimum wage laws improved the status of women in the
workplace.32 However, the Court replied:
That the earnings of women are now greater than they
were formerly, and that conditions affecting women have
become better in other respects, may be conceded; but
convincing indications of the logical relation of these desirable changes to the law in question are significantly
lacking. They may be, and quite probably are, due to
other causes. We cannot close our eyes to the notorious
fact that earnings everywhere in all occupations have
greatly increased-not alone in states where the minimum
wage law obtains but in the country generally-quite as
much or more among men as among women, and in occupations outside the reach of the law as in those governed by it. No real test of the economic value of the law
can be had during periods of maximum employment,
when general causes keep wages up to or above the minimum; that will come in periods of depression and struggle for employment, when the efficient will be employed
at the minimum rate, while the less capable may not be
employed at all.33
As to using police power to regulate wages, the Court stated:
Finally, it may be said that if, in the interest of the public
welfare, the police power may be invoked to justify the
fixing of a minimum wage, it may, when the public welfare is thought to require it, be invoked to justify a maximum wage. The power to fix high wages connotes, by
like course of reasoning, the power to fix low wages. If,
in the face of the guaranties of the Fifth Amendment, this
form of legislation shall be legally justified, the field for
the operation of the police power will have been widened
to a great and dangerous degree.34
32
33
34
Id. at 560.
Id.
Id. at 560-61.
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Chief Justice William Howard Taft dissented, stating that, “[t]he
right of the Legislature under the Fifth and Fourteenth Amendments to
limit the hours of employment on the score of the health of the employee, it seems to me, has been firmly established.”35 He went on to
state that Adkins should be controlled by Muller v. Oregon, which held
that women could not work in a factory or laundry for more than ten
hours per day because of their inferior strength and to preserve their
health.36 The Supreme Court upheld both eight and ten hour restrictions
in several other cases.37
Thirteen years after Adkins was decided, in Morehead v. New
York ex rel. Tipaldo, the Supreme Court granted certiorari to hear a case
involving restricting the minimum wage laws based on the Fourteenth
Amendment.38 In Morehead, police arrested the manager of a laundry
because he refused to pay the women who worked for him the New
York legislative minimum wage.39 The manager argued that under Adkins, the New York statute violated the Fifth Amendment.40 The Court
noted the following about the New York statute:
The act extends to women and minors in any “occupation” which “shall mean an industry, trade or business or
branch thereof or class of work therein in which women
or minors are gainfully employed, but shall not include
domestic service in the home of the employer or labor on
a farm.” It is not an emergency law. It does not regulate
hours or any conditions affecting safety or protection of
35 Id. at 563 (Taft, C.J., dissenting) (citing Bunting v. Oregon, 243 U.S. 426 (1917)
(which limited all factory workers to ten hours); Muller v. Oregon, 208 U.S. 412
(1908) (which limited women’s hours); Holden v. Hardy, 169 U.S. 366 (1898) (where
the police power was applied to miners)).
36 Id. at 566 (citing Muller, 208 U.S. at 422-23).
37 See Miller v. Wilson, 236 U.S. 373, 379 (1915) (hotels); Bosley v. McLaughlin,
236 U.S. 385, 388-89 (1915) (nurses); Riley v. Massachusetts, 232 U.S. 671, 679
(1914) (manufacturing or mechanical establishments).
38 Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936), abrogated by Olsen
v. State of Nebraska ex rel. Western Reference & Bond Ass’n, 313 U.S. 236, 244
(1941).
39 Id. at 602.
40 Id. at 603.
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employees. It relates only to wages of adult women and
minors.41
In Morehead, the Court distinguished Adkins based upon the
purpose of the statute. In Adkins, the purpose of the statute was to “protect women from conditions detrimental to their health and morals, resulting from wages inadequate to maintain decent standards of living.”42
On the contrary, the New York statute in Morehead
declares it to be against public policy for any employer
to employ any woman at an oppressive and unreasonable
wage defined as one which is “both less than the fair and
reasonable value of the services rendered and less than
sufficient to meet the minimum cost of living necessary
for health.” “A fair wage” is one “fairly and reasonably
commensurate with the value of the service or class of
service rendered.” If the commissioner is of opinion that
any substantial number of women in any occupation are
receiving oppressive and unreasonable wages he shall
appoint a wage board to report upon the establishment of
minimum fair wage rates. After investigation, the board
shall submit a report including its recommendations as to
minimum fair wage standards.43
The Court noted the statute in Adkins provided for a determination of what wages were “inadequate to supply the necessary cost of
living to any such women workers to maintain them in good health and
to protect their morals.”44 On the other hand, the New York statute
challenged in Morehead protected women against “an oppressive and
unreasonable wage,” which the statute described in two elements: (1)
“less than the fair and reasonable value of the services rendered,” and
(2) “less than sufficient to meet the minimum cost of living necessary
for health.”45 The Attorney General argued:
41
42
43
44
45
Id. at 603-04 (quoting N.Y. LABOR LAW § 551(6) (McKinney 1933)).
Id. at 605.
Id. (quoting N.Y. LABOR LAW §§ 552, 551(7), (8), 554, 555 (McKinney 1933)).
Id.
Id.
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[t]he purpose of the statute in the Adkins Case was to
guarantee a wage based solely upon the necessities of the
workers. The statute did not provide for the wages to
have any relationship to earning power; was applicable
to all vocations and not to the character of the work.46
The New York statute in Morehead sought to place a floor below which employers could not descend and was not necessarily interested in a living wage; it was interested in paying fair wages or
reasonable value for the types of work that women provided.47 The
Court explained the New York statute did not extend to men, and only
affected the rights of adult women and all minors under the age of
twenty-one.48 Specifically, the Morehead Court stated:
[p]hysical differences between men and women must be
recognized in proper cases and legislation fixing hours or
conditions of work may properly take them into account,49 but “we cannot accept the doctrine that women
of mature age, sui juris, require or may be subjected to
restrictions upon their liberty of contract which could not
lawfully be imposed in the case of men under similar
circumstances. To do so would be to ignore all the implications to be drawn from the present day trend of legislation, as well as that of common thought and usage, by
which woman is accorded emancipation from the old
doctrine that she must be given special protection or be
subjected to special restraint in her contractual and civil
relationships.”50
The Court again noted that the New York statute is not an answer to an emergency; it is a broad permanent policy for women laborers, who seem to be taking over increasing numbers of jobs that would
46
47
48
49
50
Id.
Id.
Id.
Id.
Id.
at
at
at
at
607.
607-08.
610.
611 (citing Adkins v. Children’s Hosp. of D.C., 261 U.S. 525, 553 (1923).
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ordinarily belong to men.51 Considering the competition for work between men and women, the Court rationalized:
[m]en in need of work are as likely as women to accept
the low wages offered by unscrupulous employers. Men
in greater number than women support themselves and
dependents and because of need will work for whatever
wages they can get and that without regard to the value
of the service and even though the pay is less than minima prescribed in accordance with this act. It is plain
that, under circumstances such as those portrayed in the
“factual background,” prescribing of minimum wages for
women alone would unreasonably restrain them in competition with men and tend arbitrarily to deprive them of
employment and a fair chance to find work.52
Consequently, the Court held minimum wages violated the
Fourteenth Amendment.53
VI.
THE NEW DEAL
Regardless of the Court’s decision, the pessimistic view of employment still loomed in America. There seemed to be no end to the
Depression until the thirty-second presidential election. Following the
election of Franklin Delano Roosevelt, the federal government implemented the New Deal or more specifically, legislation that gave the federal government essentially limitless power over economic and social
issues.54 This legislation quickly passed in the first one hundred days of
Roosevelt’s presidency.55
The legislation affecting those in labor industries was of great
significance.56 During the 1930s tensions between workers and emId. at 615.
Id. at 616-17.
53 Id. at 618.
54 Michal R. Belknap, The New Deal and the Emergency Powers Doctrine, 62 TEX. L.
REV. 67 (1983).
55 CHAMBERS DICTIONARY OF WORLD HISTORY, supra note 5, at 714.
56 Michael D. Yates, Should We Return to the Policy of the Wagner Act?, 4 U. PA. J.
LAB. & EMP. L. 559 (2002).
51
52
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ployers were very high.57 Workers tried to form unions to push for
better working conditions, but business owners responded to their actions harshly, blacklisting organizers and using force to prevent
strikes.58
VII.
THE NATIONAL INDUSTRIAL RECOVERY ACT
Reacting to the employment struggles, President Roosevelt enacted the National Industrial Recovery Act (NIRA) in 1933.59 This Act
authorized the President to “approve codes of fair competition” and
“[to] impose such conditions . . . for the protection of consumers, competitors, employees, and others, and in furtherance of the public interest
. . . .”60 However, in A.L.A. Schechter Poultry Corp. v. United States,
the Supreme Court held that the NIRA was an unconstitutional delegation of legislative power to the President because there was no statutory
standard to guide him.61
In 1935 Congress enacted the National Labor Relations Act—
also called the Wagner Act—which “guaranteed the rights of workers to
join labor unions and to bargain collectively with their employers.”62
The Wagner Act benefited employees across the board, in that
“[t]he impact of unionization on the wages and benefits of blue-collar
workers in important manufacturing industries also spilled over into
non-union workplaces and industries.”63 The Wagner Act guaranteed
that non-supervised employees would have the right to organize themselves, decide on representatives, and bargain collectively or elect not to
do any of these things.64 It provided:
SEC. 157. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to barSee id. at 561.
Id.
59 15 U.S.C. § 703 (1933).
60 A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 521-23 (1935).
61 Id. at 549-51; Belknap, supra note 54, at 96-97; see U.S.CONST. art. I, § 8, cl. 3.
62 VanGiezen & Schwenk, supra note 16.
63 Id.
64 Brian Bain, The NLRB: The Wagner Act of 1935, http://www.stfrancis.edu/ba/
ghkickul/stuwebs/btopics/works/wagner.htm (last visited Aug. 25, 2009).
57
58
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gain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection . . . .65
SEC. 158. It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 157 of this
title;
(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial
or other support to it: Provided, That . . . an employer
shall not be prohibited from permitting employees to
confer with him during working hours without loss of
time or pay;
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor
organization: Provided, That nothing in this subchapter
or in any other statute of the United States, shall preclude
an employer from making an agreement with a labor organization (not established, maintained, or assisted by
any action defined in this subsection as an unfair labor
practice) to require as a condition of employment membership therein . . . if such labor organization is the representative of the employees . . . in the appropriate
collective-bargaining unit covered by such agreement
when made . . . ;
(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony
under this subchapter;
(5) to refuse to bargain collectively with the representatives of his employees . . . .66
Upon signing the Act into law, President Roosevelt made the
following statement:
65
66
National Labor Relations Act of 1935 § 7, 29 U.S.C. § 157 (2009).
National Labor Relations Act of 1935 § 8, 29 U.S.C. § 158(a) (2009).
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This Act defines, as a part of our substantive law,
the right of self-organization of employees in industry
for the purpose of collective bargaining, and provides
methods by which the Government can safeguard that legal right. It establishes a National Labor Relations
Board to hear and determine cases in which it is charged
that this legal right is abridged or denied, and to hold fair
elections to ascertain who are the chosen representatives
of employees.
A better relationship between labor and management is
the high purpose of this Act. By assuring the employees
the right of collective bargaining it fosters the development of the employment contract on a sound and equitable basis. By providing an orderly procedure for
determining who is entitled to represent the employees, it
aims to remove one of the chief causes of wasteful economic strife. By preventing practices which tend to destroy the independence of labor, it seeks, for every
worker within its scope, that freedom of choice and action which is justly his.
The National Labor Relations Board will be an independent quasi-judicial body. It should be clearly understood
that it will not act as mediator or conciliator in labor disputes. The function of mediation remains, under this
Act, the duty of the Secretary of Labor and of the Conciliation Service of the Department of Labor. It is important that the judicial function and the mediation function
should not be confused. Compromise, the essence of
mediation, has no place in the interpretation and enforcement of the law.
This Act, defining rights, the enforcement of which is
recognized by the Congress to be necessary as an act of
both common justice and economic advance, must not be
misinterpreted. It may eventually eliminate one major
cause of labor disputes, but it will not stop all labor disputes. It does not cover all industry and labor, but is
applicable only when violation of the legal right of independent self-organization would burden or obstruct interstate commerce. Accepted by management, labor and
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the public with a sense of sober responsibility and of
willing cooperation, however, it should serve as an important step toward the achievement of just and peaceful
labor relations in industry.67
The Act applied “to all employers involved in interstate commerce other than airlines, railroads, agriculture, and government.”68
Most importantly, the Wagner Act, employed by the National Labor
Relations Board to improve labor-management relations, made it illegal
for employers and labor unions to infringe upon employees’ rights.69
The board held hearings and determined whether an employer or union
violated labor or union laws.70
VIII.
THE FAIR LABOR STANDARDS ACT
In 1938, following the Wagner Act, the federal government enacted the Fair Labor Standards Act (FLSA), in an effort to
provide for the establishment of fair labor standards in
employments affecting interstate commerce, and for
other purposes. At the time of enactment, the [United
States] Congress found that in many industries, the labor
conditions in existence were detrimental to workers
maintaining the minimum standard of living necessary
for health, efficiency, and general well-being. Congress
believed these issues burdened the free flow of goods in
commerce; created unfair competition in commerce; and
lead [sic] to labor disputes. These labor disputes, Congress believed also burdened and obstructed commerce
and fair marketing of goods in commerce.
More importantly, the FLSA was adopted in an attempt
to stimulate economic recovery from the Great Depression. Congress wanted the FLSA to ensure jobs that paid
Franklin D. Roosevelt, President of the United States of America, Statement on the
National Labor Relations Act (The Wagner Act) (July 5, 1935), available at http://
www.fdrlibrary.marist.edu/odnlrast.html (last visited Aug. 25, 2009).
68 Bain, supra note 64.
69 Id.; see Roosevelt, supra note 67.
70 Roosevelt, supra note 67; Bain, supra note 64.
67
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a minimum livable wage. Additionally, Congress required overtime pay under the FLSA. To encourage
compliance, the FLSA subjected employers to a monetary penalty for not spreading their existing work among
the entirety of their workforce.71
Prior to the enactment of the FLSA, Congress passed the DavisBacon Act of 1931, which established the requirement for paying workers prevailing wages in public works projects.72 The Secretary of Labor, pursuant to the Act, determined what those minimum wages would
be.73 Meanwhile, the National Labor Relations Board was created to
prevent unfair labor practices.74 Procedures were put into place for
hearings on these matters.75
Although a primary purpose of the Act was to provide for the
safety and well-being of workers, Congress also designed it to protect
interstate commerce.76 Ostensibly, commerce was of central concern to
the federal government based on fluctuation in the economy over the
decades preceding the enactment of the FLSA. Before enactment of the
FLSA, the prior two decades saw the strong economy fall overnight
after the stock market crash. Consequently, the FLSA put a strong
value on interstate commerce and the worker.77
IX.
THE WOMEN’S BUREAU
Although the average worker suffered amid squalid conditions,
minorities and women bore heavier burdens.78 In 1920 Congress estabE. Fredrick Preis, Jr. & Reginald C. Johnson, Coverage Under the FLSA and the
New Regulations, EMP. REL. L.J., Sept. 22, 2004, available at http://www.accessmy
library.com/coms2/summary_0286-14368866_ITM.
72 U.S. Chamber of Commerce, Davis-Bacon Act, http://www.uschamber.com/issues/
index/labor/davisbacon.htm (last visited Aug. 25, 2009).
73 29 C.F.R. § 1.1 (2009).
74 Bain, supra note 64.
75 29 C.F.R. § 101.10 (2009).
76 See United States v. Darby, 312 U.S. 100, 109-10 (1941).
77 Id. at 109.
78 See WOMEN’S BUREAU, U.S. DEP’T OF LABOR, LEAFLET NO. 25, WOMEN IN THE
CANDY INDUSTRY IN CHICAGO AND ST. LOUIS: A STUDY OF HOURS, WAGES, AND
WORKING CONDITIONS IN 1920-1921, at 42-46 (1923), available at http://pds.lib.
harvard.edu/pds/view/2586392?n=1&s=4.
71
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lished the Women’s Bureau of the United States Department of Labor.79
Since its inception, it “is the only federal agency mandated to represent
the needs of wage-earning women in the public policy process.”80
In 1928 Eleanor Roosevelt wrote an article in which she pressed
the notion that women should be politically equal with men.81 She
noted that in meetings of significant political importance, either women
are not asked their opinion or women do not volunteer it.82 She also
stated that “[p]olitically, as a sex, women are generally ‘frozen out’
from any intrinsic share of influence in their parties.”83 Mrs. Roosevelt
concluded that the only way to forward women’s objectives was to
“elect, accept and back women political bosses.”84 She then criticized
women, stating:
The trouble with many women is that they won’t work.
They won’t take up their jobs as men do and put in seven
or eight real working hours a day. They lack knowledge,
and at that many won’t take the pains to study history,
economics, political methods or get out among human
beings. If they take a volunteer political job, it is a thing
of constant interruptions, with no sense of application,
concentration, business efficiency or order. One of the
reasons why men leaders so often do not consider as important what a woman says is that they do not feel sure
she has been active among the mass of women voters
and has learned what they want. In fact, many women
do make the mistake of ‘talking out of a blue sky’ instead of going about, mixing with women, and getting
their point of view from close personal contact and practical experience. When a man leader says his following
want certain things, the men higher up realize that he
United States Department of Labor, Women’s Bureau, An Overview 1920–2009,
http://www.dol.gov/wb/info_about_wb/interwb.htm (last visited Aug. 25, 2009).
80 Id.
81 Eleanor Roosevelt, Women Must Learn to Play the Game as Men Do, THE RED
BOOK MAG., Apr. 1928, at 78, available at http://newdeal.feri.org/er/er10.htm.
82 Id.
83 Id.
84 Id.
79
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knows what he is talking about, and that he has gone
through his district.85
As she called for women to band together for their rights, she
concluded:
I should not want the average woman, or the exceptional
woman for that matter, who for one reason or another
could not do a public job well, to take one at present.
For just now a woman must do better than a man, for
whatever she does in the public eye reflects on the whole
cause of women. There are women in the United States I
would gladly see run for any office. But if we cannot
have the best I should prefer to wait and prepare a little
longer until women are more ready to make a fine contribution to public life in any office they might hold . . . .
....
. . . Certain women profess to be horrified at the thought
of women bosses bartering and dickering in the hard
game of politics with men. But many more women realize that we are living in a material world, and that politics cannot be played from the clouds. To sum up,
women must learn to play the game as men do. If they
go into politics, they must stick to their jobs, respect the
time and work of others, master a knowledge of history
and human nature, learn diplomacy, subordinate their
likes and dislikes of the moment and choose leaders to
act for them and to whom they will be loyal. They can
keep their ideals; but they must face facts and deal with
them practically.86
In 1932 Mrs. Roosevelt asked the nation why there could not be
a female head of the Department of Labor or the Department of Educa-
85
86
Id.
Id.
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tion.87 She concluded that “[t]he only danger that women will not get
what they want lies in the fact that there are still a goodly number who
do not know how to use their influence and how to make known their
ideas.”88 Mrs. Roosevelt continued to rally women to increase and use
their political rights throughout the 1930s.89
During World War II, twelve thousand women served as overseas nurses.90 This spurred a surge in domestic nurses, both professional and in training.91 In addition, 2.3 million women worked in war
industries.92 Of that number, 1.9 million regularly worked in
factories.93
After the war, the issue of whether women would be able to
keep their jobs arose.94 Mrs. Roosevelt emphasized:
There is one point, however, upon which I think labor
leaders have a right to insist: women should not come
into any labor group and allow themselves to be used at
present or in the future as a body for keeping down the
wages of men, either because they can live on less or
because they, being unorganized, have never understood
the need to stand together with any group in order to help
the group.95
87 See Eleanor Roosevelt, What Ten Million Women Want, THE HOME MAG., Mar.
1932, at 19, available at http://newdeal.feri.org/search_details.cfm?link=http://new
deal.feri.org/er/er11.htm.
88 Id.
89 See Eleanor Roosevelt, Women in Politics, GOOD HOUSEKEEPING, Jan. 1940, at 8,
available at http://newdeal.feri.org/er/er13.htm; Eleanor Roosevelt, Women and the
Vote, IT’S UP TO THE WOMEN (1933), at 189, available at http://newdeal.feri.org/er/
er12.htm.
90 Eleanor Roosevelt, American Women in the War, THE READER’S DIG., Jan. 1944, at
42, available at http://newdeal.feri.org/er/er14.htm.
91 Id.
92 Id.
93 Id.
94 Eleanor Roosevelt, Woman’s Place After the War, CLICK, Aug. 1944, at 17,
available at http://newdeal.feri.org/er/er15.htm.
95 Id.
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Mrs. Roosevelt concluded “whether women remain in the labor
market or not will be, as it always has been, mainly a question of economic necessity.”96
The National Women’s Trade Union League advocated for female workers in the early 1900s through the 1930s, and attempted to
organize women into labor unions.97 However, male labor unions disapproved of the attempt and offered limited support.98 It seemed that
many women did not plan to continue working after the depression.99
They expected to be saved by a profitable marriage rather than contemplate a career.100
The Works Progress Administration (WPA)—established by
President Roosevelt—contained a Women’s Division.101 In her speech,
Ellen S. Woodward, a prominent Assistant Administrator inside the
WPA, noted that the nation’s largest problem was unemployment.102
“According to the conservative estimate of the Committee on Economic
Security, in March 1933, at the end of four years of an economic toboggan slide, there were 15,071,000 workers in this country cut off from
their jobs.”103 Woodward then praised President Roosevelt’s WPA and
gave an account of seeing, while traveling, eight hundred women newly
employed in one city and in another city, some one thousand women in
line for their first paychecks.104 Woodward continued to praise the administration and even gave certain statistics:
Over 12,000,000 garments were made in our 6,000 women’s sewing rooms, all of which were distributed to unId.
Seth D. Harris, Conceptions of Fairness and the Fair Labor Standards Act, 18
HOFSTRA LAB. & EMP. L.J. 19, 49 (2000).
98 Id.
99 See id.
100 See id.
101 See Ellen S. Woodward, Assistant Administrator in Charge of Women’s
Activities, Address Before the Democratic Women’s Regional Conference for
Southeastern States (Mar. 19, 1936), available at http://newdeal.feri.org/works/
wpa03htm; see Exec. Order No. 6252, (1933), available at http://www.presidency.
ucsb.edu/ws/index.php?pid=14505.
102 Woodward, supra note 101, at 4.
103 Id. at 5.
104 Id. at 19.
96
97
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employable on relief rolls. These sewing rooms gave
employment to more than 150,000 women. More than
4,000,000 public library books were repaired last year
and put back into use, giving employment to over 12,300
women and services to hundreds of thousands. Our library extension project carried on last year served over
1,000,000 persons and reached into the farthest rural sections of this country. Over 10,882 hot lunch projects in
41 states served warm food daily to 1,93C,945 [sic] undernourished, needy children, which gave employment to
10,078 women from relief rolls. Other health projects in
45 states gave employment to 6,351 nurses who visited
3,532,841 homes and examined 2,015,993 children. A
total of 89,410 physical defects were corrected for
children.105
Woodward concluded her speech with a portion titled “Functions of the Women’s Division.”106 The two main functions of the Women’s Division were: (1) “to develop and carry on . . . work projects
for eligible women on relief rolls—projects which are useful to the
community and to the individual as well”, and (2), “to see that employable women on relief rolls who are eligible for work receive equal consideration with men in this program.”107 Woodward noted the problem
of the unskilled woman, who was difficult to employ, but added that
some vocational guidance was available in different states.108
X.
FLSA: DEFINITION
OF
EMPLOYEE
Nonetheless, one of the main concerns of the FLSA affecting
women then and now, is the definition of employee.109 Congress passed
the FLSA to govern four major areas: minimum wages, overtime pay,
Id. at 33.
Id. at 35.
107 Id. at 35, 37.
108 See id. at 41-44.
109 See Quigley supra note 8, at 533 (“The FLSA’s definition of ‘employee’ resulted
in primarily traditional male jobs, such as those of production-line workers in steel
plants, being covered by the FLSA, while exemptions left traditional female jobs . . .
open to argument.”).
105
106
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equal pay, and child labor.110 Although it was a broadly based act, the
FLSA applied only to (1) employees engaged in interstate commerce;
(2) employees who produced goods for interstate commerce; and, (3)
employees engaged in an enterprise business relating to interstate commerce.111 State laws provided coverage to all other employees.112
Those exempt from the FLSA as enacted, included apprentices, housekeepers, chauffeurs, babysitters, message deliverers, seasonal workers,
and movie employees.113
Privately paid household work is a large industry exempted by
the Act.114 As of 2000, there were approximately one million domestic
workers in America.115 These jobs have no benefits.116 Further, many
domestic workers are not documented, so it was easy to deny them the
protection of the FLSA during the New Deal.117 Recently however,
courts have consistently held that undocumented workers are covered
by the FLSA.118
Domestic workers—a high percentage of them being women—
have categorically been denied protection under several federal laws,
110 Suzanne M. Crampton, John W. Hodge & Jitendra M. Mishra, The FLSA and
Overtime Pay, PUB. PERSONNEL MGMT., Fall 2003, http://www.entrepreneur.com/
tradejournals/article/160714654_1.html.
111 Id.; Donald J. Spero, Coverage of the Fair Labor Standards Act: What
Connection with Commerce Brings an Employee Within the Coverage of the Fair
Labor Standards Act?, Part I, FLA. B.J., May 2007, at 45.
112 Crampton, Hodge & Mishra, supra note 110, at 1 (“Employers and employees
who are not covered by the FLSA are generally required to comply with, or are
protected by, state laws that regulate maximum hours and minimum wages.”).
113 Id.
114 Peggie R. Smith, Organizing the Unorganizable: Private Paid Household
Workers and Approaches to Employee Representation, 79 N.C. L. REV. 45, 46 (2000)
(“Yet while the demand for private domestic service workers appears on the upswing,
the conditions that prevail in the job remain stagnate. Low wages, a lack of benefits,
and a lack of standardization are enduring traits of the domestic service industry.”).
115 Id. at 52.
116 Id. at 53-54.
117 See id. at 55-57 (“The failure to conceptualize domestic service as a legitimate
occupation has profound implications for the treatment of paid household workers
within the law of employment relationships.”).
118 Katherine E. Seitz, Enter at Your Own Risk: The Impact of Hoffman Plastic
Compounds v. National Labor Relations Board on the Undocumented Worker, 82
N.C. L. REV. 366, 398 (2003).
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including the NIRA and the Social Security Act.119 Since the employer
must classify the employment, many domestic workers are excluded because domestic employers do not consider themselves employers.120
The National Labor Relations Act excluded domestic workers because
they lacked a common employer and a common work site.121 In addition, domestic service did not clearly affect interstate commerce.122
Thus, domestic workers could not unionize and make demands.123
In 1936 most domestic service workers were African AmeriNow, there is still a disproportionate number of minorities who
can.
work in domestic jobs,125 but there are more people of other cultures,
including people of Central American, Caribbean, and Mexican descent.126 However, illegal aliens have been protected under the
FLSA.127
124
In fact, in North Whittier Heights Citrus Ass’n v. NLRB, the
Ninth Circuit Court of Appeals indicated that domestic workers did not
need legal protections because they would not suffer in negotiating with
employers and would not need to unionize.128 Because of the extensive
Smith, supra note 114, at 57.
Id. at 57-58 (“Many household employers fail to regard themselves as employers
or to perceive their homes as workplaces . . . .”).
121 See id. at 59-60 (“[D]omestic service employees are one of the few groups that the
Act expressly excludes by its terms.”).
122 See id. at 63-64 (“The domestic service exemption may also have reflected
congressional concern regarding the constitutionality of its commerce power.”).
123 See id. at 59-63.
124 Id. at 65.
125 Id. at 71.
126 ENCYCLOPEDIA OF RACE, ETHNICITY, AND SOCIETY 407 (Richard T. Schaefer ed.,
Vol. 3, 2008).
127 Seitz, supra note 118, at 398; see also 29 U.S.C. § 203(e)(1) (2008); Flores v.
Albertsons, Inc., No. CV0100515AHM(SHX), 2002 WL 1163623, at *5 (C.D. Cal.
Apr. 9, 2002) (“Federal courts are clear that the protections of the FLSA are available
to citizens and undocumented workers alike.” (citing Patel v. Quality Inn S., 846 F.2d
700, 706 (11th Cir. 1988))); Liu v. Donna Karan Int’l, Inc., 207 F. Supp. 2d 191, 192
(S.D.N.Y. 2002) (“[U]ndocumented workers were entitled to maintain an action for
unpaid wages and damages under the FLSA.” (citing Patel, 846 F.2d 700)).
128 N. Whittier Heights Citrus Ass’n v. NLRB, 109 F.2d 76, 80 (9th Cir. 1940).
119
120
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exemptions, the beneficiaries of the FLSA were mostly white males
working in industrial labor.129
Perhaps it should not be surprising that women in the workforce
suffer more than men, even in light of the FLSA protections. “Despite
women’s presence in the paid labor force in overwhelming numbers, we
still tend to see women as inauthentic workers.”130 The mainstream
does not see domestic work out of the home as real employment.131
Thus, women are paid less for jobs compared to men and frequently are
relegated to lower-paying and lower-status jobs.132
The problem is the way the FLSA differentiates between exempt
and nonexempt employees. The definition of employee is “any individual employed by an employer.”133 However, the following are not considered employees: (1) federal government workers, (2) postal service
workers, (3) state government staff, (4) any worker employed by an
interstate governmental agency, (5) individuals employed by a family
member in the agricultural field, (6) volunteers for state agencies, and
(7) humanitarian volunteers.134 In 1992 Congress amended the FLSA to
exempt high-tech employees, such as computer programmers.135 Also,
note that an employer may hire a minor under age fourteen, if it is in a
family-owned business.136
Nonexempt employees are employees who do not fit into an exempt classification.137 For example, nonexempt employees include
blue-collar workers, truck drivers, and assembly line workers.138 The
Quigley, supra note 8, at 531-33.
Vicki Schultz, Life’s Work, 100 COLUM. L. REV. 1881, 1892 (2000).
131 See id. at 1892-93.
132 Id. at 1893-95.
133 29 U.S.C. § 203(e)(1) (2008).
134 29 U.S.C. § 203(e)(2)-(5) (2008).
135 Crampton, Hodge & Mishra, supra note 110, at 3.
136 Joan Leotta, Fair Labor Standards Act of 1938, in ENCYCLOPEDIA OF BUSINESS
(2d ed. 2007), http://www.referenceforbusiness.com/encyclopedia/Fa-For/Fair-LaborStandards-Act-of-1938-FLSA.html (last visited Aug. 25, 2009).
137 Crampton, Hodge & Mishra, supra note 110.
138 Id. at 2.
129
130
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minimum wage and overtime provisions of the FLSA apply only to
nonexempt employees.139
XI.
EXEMPT EMPLOYEES
Exempt employees are even more difficult to define.140 They
are separated into four groups: executives, administrators, professionals, and outside salesmen.141 An executive employee manages and has
authority over subordinate employees.142 This classification includes
managers, workers who supervise at least two other employees, workers
who have decision-making power to hire and fire employees, and those
who mostly use independent judgment in their job duties.143
An administrative worker is a staff member who engages in administrative work, such as an office manager.144 This classification includes employees who work in offices, but do not work in manual
labor.145 It also includes administrative workers in education and executive assistants.146
To be considered a professional, an employee must obtain specialized education to learn a profession.147 This classification includes
original and creative artists, varied intellectual workers, computer systems workers, and teachers.148 Many computer workers do not have a
higher education or have only a technical college education.149 After
Congress amended the FLSA, this classification now includes computer
systems analysts, computer programmers, and computer software
workers.150
139
140
141
142
143
144
145
146
147
148
149
150
Id.
Id.
Id.; Quigley, supra note 8, at 536.
Crampton, Hodge & Mishra, supra note 110, at 2.
Id.
Id.
Id.
Id.
Id.
Id.
See id.
Id.
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Outside salespeople sell goods or services at the purchasers’
place of business, not their employer’s.151 In addition, an exempt employee must be salaried and earn more than $13,000 per year, or more
than $250 per week.152 Accordingly, while most white-collar employees are considered exempt, they may be deemed to be unexempt if their
employer fails to show that the employee was paid on a salary basis.153
Unfortunately, the FLSA does not cover low-wage employees, such as
babysitters, seasonal workers, and casual sales and retail workers.154
At the time of its enactment, the FLSA overtime pay policy
mandated employers pay workers time-and-a-half for any hours worked
in excess of forty-four in a given week.155 In 1939 that number changed
to forty-two hours, and in 1940 it changed to forty hours.156 Employers
were not allowed to average hours over more than one week when determining whether an employee is entitled to overtime compensation.157
The Act defined a week as seven consecutive twenty-four hour days.158
Employees who make more than $100,000 per year do not qualify for
overtime, no matter their job duties.159
The FLSA exempted several classifications of employees from
minimum-wage protection: retail, intrastate commerce salesmen,
seamen, airplane employees, fishermen, agricultural workers, some
journalists, transportation workers, apprentices, and handicapped
employees.160
Even today, over thirteen million employees are exempt from
the minimum wage requirement.161 Over two million earn less than the
151
152
153
154
Id.
Id.
See id. at 2-3.
Quigley, supra note 8, at 536; see Crampton, Hodge & Mishra, supra note 110, at
1.
Crampton, Hodge & Mishra, supra note 110, at 1.
Id.
157 Id.
158 Id.
159 Resource4 FLSA Law, Executive Exceptions and FLSA Law, http://www.resource
4flsalaw.com/fairlaborstandardsactemployeeclassifications.html (last visited Aug. 25,
2009).
160 Quigley, supra note 8, at 531.
161 Id. at 535.
155
156
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minimum wage.162 Minimum wage employees are not only teenagers—
over seventy percent are adults, mostly women and minorities.163 The
statistics are surprising:
The congressionally created Minimum Wage Study
Commission profiled minimum-wage workers in the
early 1980s and found minimum-wage workers in all
segments of the population, but disproportionately concentrated among those groups who are traditionally poor.
The Commission found that eighteen percent of all working women earned minimum wages or less versus eight
percent of all working men; forty-four percent of those
between the ages of sixteen and nineteen earned minimum wages or less, as did thirty-eight percent of those
over age sixty-five; and although whites accounted for
over three-quarters of those who earned minimum
wages, eighteen percent of all black workers earned minimum wages or less, while only eleven percent of all
white workers did. Surprisingly, seventy percent of all
minimum-wage workers were adults twenty or older, and
over fifty percent were twenty-five or older.
Recent studies suggest that there may be many more
people earning minimum wages than official government
figures suggest. The majority of these minimum-wage
workers is concentrated in the retail trade and restaurant
industries. Additionally, commentators have noted that
the largest proportion of minimum-wage workers live in
the South.164
These full-time working poor are mostly African American or
Latino families.165 The prevalence of these groups working minimumwage jobs can be traced back to discrimination in education and available opportunities.166 Additionally, a higher percentage of women are
Id.
Id. at 537.
164 Id. at 538-39.
165 Id. at 541-42.
166 Id. at 542-43; see Jennifer M. Gardner & Diane E. Herz, Working and Poor in
1990, MONTHLY LAB. REV., Dec. 1992, at 21-22.
162
163
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full-time employees and below the poverty level because “(1) women
were more likely to head single-parent families; and (2) women supported their families on lower wages.”167
The FLSA has been amended over twenty times.168 This was
mostly to amend the minimum wage, not to change the exemptions.169
The minimum wage standard has changed throughout the years: 1938$0.25, 1939-$0.30, 1945-$0.40, 1956-$1.00, 1968-$1.60, 1974-$2.00,
1979-$2.90, 1981-$3.35, 1993-$4.25, 1995-$4.75, 1997-$5.15, and
2007-$5.85.170
In raising the minimum wage to $5.85 in 2007, the federal government made provisions to raise it to $6.55 in 2008 and to $7.25 in
2009.171 However, this is not enough to guarantee a living wage for
workers covered by the FLSA. The provisions regarding $250 per week
and $13,000 as a salary cap should be revised to reflect inflation.172 In
addition, the terms describing exempt employees (executive, administrative, professional, and outside salesmen) should be redefined.173
Now that employees are given more discretion in their job duties, they
are losing FLSA benefits because they are more likely to fall into an
exemption.174
XII.
RECENT CHALLENGES
TO THE
FLSA
A majority of the recent cases involving the FLSA are contentions of FLSA coverage for overtime pay. In Thorne v. All Restoration
Services, Inc., an employee sued for overtime compensation.175 Under
the FLSA, “an employer is required to pay overtime compensation if the
Quigley, supra note 8, at 541 n.130 (citing SAR A. LEVITAN ET AL., WORKING BUT
POOR: AMERICA’S CONTRADICTION 19, 21 (2d ed. 1993); Gardner & Herz, supra note
166, at 20-21).
168 Leotta, supra note 136.
169 See id.
170 Crampton, Hodge & Mishra, supra note 110; Quigley, supra note 8, at 544-46.
171 U.S. Dept. of Labor, Compliance Assistance - Fair Labor Standards Act (FLSA),
http://www.dol.gov/esa/whd/flsa/index.htm (last visited Aug. 25, 2009).
172 Crampton, Hodge & Mishra, supra note 110.
173 Id.
174 See id.
175 Thorne v. All Restoration Servs., Inc., 448 F.3d 1264, 1265 (11th Cir. 2006).
167
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employee can establish enterprise coverage or individual coverage.”176
For individual coverage, the employee must show “that he was: (1)
engaged in commerce or (2) engaged in the production of goods for
commerce.”177 The employee testified that he was eligible for individual coverage because he regularly engaged in interstate commerce by
using the employer’s credit card to order supplies from other states.178
The court held that the use of the card was not sufficient to prove FLSA
coverage.179
In Vaughn v. Watkins Motor Lines, Inc., two truck drivers sued
their employer for denying them overtime compensation when the employer required them to work fifty hours per week.180 The court noted
that “the FLSA establishes a general rule that requires an employer to
compensate any employee ‘at a rate not less than one and one-half times
the regular rate at which he is employed’ ” for the time worked in excess
of forty hours per week.181 However, truck drivers are considered loaders who are exempt from the FLSA because the Secretary of Transportation has the power to establish qualifications and maximum hours of
service for loaders.182 Thus, truck drivers who travel beyond one state
are exempt from the FLSA.183
Id. at 1265-66.
Id. at 1266 (“[N]o employer shall employ any of his employees who . . . is
engaged in commerce or in the production of goods for commerce . . . for a workweek
longer than forty hours unless such employee received compensation . . . at a rate not
less than one and one-half times the regular rate . . . .” (quoting 29 U.S.C. § 207(a)(1)
(2005))).
178 Id. at 1267.
179 Id. at 1267, 1269.
180 Vaughn v. Watkins Motor Lines, Inc., 291 F.3d 900, 903 (6th Cir. 2002).
181 Id. at 903-04 (citing 29 U.S.C. § 207(a)(1) (2001)).
182 Id. (explaining that the Secretary of Transportation has the authority to establish
maximum hours for employees who work for private motor carriers in interstate
commerce, and a loader is defined as “an employee of a private motor carrier” (citing
29 C.F.R. § 782.5(a) (2009); Troutt v. Stavola Bros., Inc., 107 F.3d 1104, 1106-07
(4th Cir. 1997); Benson v. Universal Ambulance Serv., Inc., 675 F.2d 783, 785 (6th
Cir. 1982) (noting that the MCA grants this authority to the Secretary of
Transportation, thereby exempting the specified employees from the FLSA’s
overtime-wage provisions))).
183 See id.
176
177
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In Alden v. Maine, employees of the State of Maine sued on the
basis that their employer violated the FLSA by not paying employees
extra for overtime.184 The issue before the United States Supreme Court
was “the constitutionality of the provisions of the FLSA purporting to
authorize private actions against States in their own courts without regard for consent.”185 The Court held:
the powers delegated to Congress under Article I of the
United States Constitution do not include the power to
subject nonconsenting States to private suits for damages
in state courts. We decide as well that the State of Maine
has not consented to suits for overtime pay and liquidated damages under the FLSA. On these premises we
affirm the judgment sustaining dismissal of the suit.186
In making its decision, the Court looked at the Eleventh Amendment, which provides state immunity.187 The question then, is how can
a state employee receive the benefits of the FLSA? The answer is they
cannot. State and federal employees are exempt from FLSA
protections.188
In Freeman v. NBC, Inc., television news writers, editors, producers, and field producers sued for overtime compensation.189 The
employer argued the employees were artistic professionals, and thus exempt from the overtime provisions of the FLSA.190 The court explained
an employee is an artistic professional if the employee meets the following requirements:
(1) the employee’s primary duty consists of the performance of work that is original and creative in character in
a recognized field of artistic endeavor (as opposed to
work which can be produced by a person endowed with
general manual or intellectual ability and training), and
184
185
186
187
188
189
190
Alden v. Maine, 527 U.S. 706, 711 (1999).
Id. at 712.
Id.
See id.
29 U.S.C. § 203(e)(2)(A)-(C) (2008).
Freeman v. Nat’l Broad. Co., 80 F.3d 78, 80 (2d Cir. 1996).
Id.
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the result of which depends primarily on the invention,
imagination, or talent of the employee;
(2) the work requires the consistent exercise of discretion
and judgment in its performance;
(3) the work is predominantly intellectual and varied in
character (as opposed to routine mental, manual,
mechanical, or physical work) and is of such a character
that the output produced or the result accomplished cannot be standardized in relation to a given period of time;
and
(4) the employee not devote more than 20 percent of his
hours worked in the workweek to activities which are not
an essential part of and necessarily incident to the work
described in paragraphs (a) through (c) of this section.191
In making its decision, the court noted that “the FLSA was intended, inter alia, to prohibit substandard labor conditions.”192 Accordingly, the court stated that the employees’ “relatively high salaries
suggest that they are the type of employees Congress intended to exempt from FLSA coverage.”193 The court held that the employees were
artistic professionals, and therefore, were exempt from the FLSA’s
overtime provisions.194
XIII.
MOVING TOWARD
A
LIVING MINIMUM WAGE
The federal government has often been criticized for failing to
establish a minimum wage on which someone can live under the FLSA.
The term working poor refers to employees who work full-time, but still
cannot afford to support themselves or a family.195 An analysis of the
minimum wage shows that it is no longer sufficient.
The value of the minimum wage, in real dollars, peaked
in the late 1960s. That means workers today who earn
Id. at 83.
Id. at 86.
193 Id. at 87.
194 Id.
195 Stephanie Armour, What Recovery? Working Poor Struggle to Pay Bills, USA
TODAY, June 9, 2004, at 1B, available at 2004 WLNR 6655878.
191
192
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minimum wage have less buying power than in years
before. The inflation-adjusted value of the $5.15-anhour minimum wage is at least [twenty-four percent]
lower today than it was in 1979, according to the Economic Policy Institute, a non-profit Washington-based
think tank. A full-time worker earning minimum wage
would earn $10,712 a year, below the 2002 federal poverty line of $11,756 for a family of two.196
Most poor workers, including working welfare recipients and
workers who recently left welfare, are not able to take paid leave from
their jobs because their employers do not offer it.197
Feeding America is a national food bank network, consisting of
more than two hundred food banks.198 The network acquires and distributes more than two billion pounds of food products every year,199
shipping the food to food pantries, soup kitchens, emergency shelters,
and after-school programs.200 Feeding America assists an estimated
twenty-five million low-income people annually,201 an eight percent increase from twenty-three million in 2001.202 The network provides assistance to approximately 4.5 million people in any given week.203
Food pantries have reported an increase in the number of clients who
visit their emergency food program sites since 2001.204
Id.
Id.
198 Feeding America, About Us, http://feedingamerica.org/about-us.aspx (last visited
Aug. 25, 2009). Feeding America was formerly named America’s Second Harvest.
Id.
199 Id.
200 Id.
201 RHODA COHEN ET AL., MATHEMATICA POLICY RESEARCH, INC., HUNGER IN
AMERICA 2006: NATIONAL REPORT PREPARED FOR AMERICA’S SECOND HARVEST 1
(2006), available at http://www.hungerinamerica.org/export/sites/hungerinamerica/
about_the_study/A2HNationalReport.pdf.
202 MYOUNG KIM ET AL., MATHEMATICA POLICY RESEARCH, INC., HUNGER IN
AMERICA 2001: NATIONAL REPORT PREPARED FOR AMERICA’S SECOND HARVEST 1
(2001), available at http://www.mathematica-mpr.com/pdfs/hunger2001.pdf.
203 COHEN ET AL., supra note 201.
204 Id. at 4.
196
197
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Thirty-seven percent of all adults served by the Feeding
America network have completed high school or an equivalent degree,
with no education beyond high school.205 Almost thirty-two percent
have to choose between paying for food and paying for medicine or
medical care.206
There are some startling statistics regarding the working poor:
•
•
•
•
•
•
•
66% of all Feeding America client households have
annual household incomes at or beneath the poverty
line.207
17.5% of all client households have annual incomes
between 100% and 185% of the federal poverty
level.208
6.2% have annual incomes of 186% of poverty or
more.209
The number of people below the poverty threshold
numbered 36.5 million in 2006, or 12.3% of all
Americans.210
The average annual income in 2004 among client
households served by the Feeding America Network
was $11,210.211
36% of client households served by the Feeding
America Network include at least one employed
adult.212
The average monthly income of client households in
2005 was $860, or 75% of the federal poverty level.
Overall, clients indicated that a job was the main
Id. at 82.
Id. at 134.
207 Id. at 101.
208 Id.
209 Id. at 102.
210 CARMEN DENAVAS-WALT, ET AL., U.S. CENSUS BUREAU, INCOME, POVERTY, AND
HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2006, at 11 (2007), available
at http://www.census.gov/prod/2007pubs/p60-233.pdf.
211 COHEN ET AL., supra note 201, at 102.
212 Id. at 86.
205
206
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source of income for their households for the previous month.213
• 46% of clients’ households do not have access to a
working car.214
• Nearly half of all nonelderly, low-income families
that used a food pantry in 2001 consisted of working
families with children.215
Additionally, working poor families have the dilemma of choosing between food, heat, and electricity.
•
•
•
•
•
An estimated 35.5 million Americans are food insecure, meaning their access to enough food is limited
by a lack of money and other resources.216
41.5% of all client households served by the Feeding
America Network reported having to choose between
buying food and paying for utilities or heat within the
previous twelve months.217
35% of client households reported having to choose
between paying for food and paying their rent or
mortgage.218
31.6% of client households reported having to choose
between paying for food and paying for medicine or
medical care.219
6% of households with seniors (1.59 million households) were food insecure.220
Id. at 93, 96.
Id. at 109.
215 Sheila R. Zedlewski & Sandi Nelson, Snapshots of American Families III: Many
Families Turn to Food Pantries for Help, URBAN INSTITUTE, Nov. 25, 2003, available
at http://www.urban.org/UploadedPDF/310895_snapshots3_no17.pdf.
216 MARK NORD, ET AL., U.S. DEP’T OF AGRIC., HOUSEHOLD FOOD SECURITY IN THE
UNITED STATES, 2006 5-6 (2007), available at http://www.ers.usda.gov/publications/
err49/err49b.pdf.
217 COHEN ET AL., supra note 201, at 134.
218 Id.
219 Id.
220 NORD ET AL., supra note 216, at 10.
213
214
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A very high number of families have to turn to food banks to
help support their need for food.221 Approximately half of food-insecure households in 2007 participated in at least one of the three major
federal food assistance programs: (1) the Food Stamp Program; (2) the
National School Lunch Program; and (3) the Special Supplemental Nutrition Program for Women, Infants, and Children.222 It is amazing that
a nation as wealthy as the United States still has problems feedings its
citizens. This is particularly disturbing when hungry families are employed and still cannot put adequate food on the table.
XIV.
CONCLUSION
Thus, although Congress passed and amended the FLSA with
the purpose of providing certain financial protections to some employees, many are slipping through the cracks. Recent case law has focused
on overtime compensation; however, the above statistics show that there
is a greater problem with the working poor and minimum wage in the
United States. Perhaps after the minimum wage increases in 2008 and
2009, Congress and the courts will revisit the issue and more favorable
statistics will be available.
Id. at 27.
MARK NORD, ET AL., U.S. DEP’T OF AGRIC., HOUSEHOLD FOOD SECURITY IN
THE UNITED STATES, 2007, at 31 (2008), available at http://www.ers.usda.gov/
Publications/ERR66/ERR66.pdf.
221
222