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Lessons From the Fair Labor Standards Act

The Fair Labor Standards Act was passed 75 years ago to protect workers. A badly written amendment passed almost 40 years ago inadvertently exempted a pool of poor and vulnerable workers. It is way past time to right this wrong.
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Seventy-five years ago, Franklin Roosevelt signed the Fair Labor Standards Act (FLSA) into law. It was a weak version of its original design: the law applied only to industries in which about a fifth of the labor force was employed; maximum work hours were set at 44 hours and the minimum wage at $11 a week. The original New Deal promise was a work week of 35 to 40 hours and a minimum wage of $12 to $15 a week, and this promise was in fact realized for millions of workers employed under the National Industrial Recovery Act between 1933 and 1935. Even the southern cotton textile industry adhered to a 40-hour work week and a minimum wage of $12. But a conservative Supreme Court struck the law down as unconstitutional in 1935 and then proceeded to invalidate a number of state and federal labor laws protecting workers.

In the 1936 elections, Roosevelt campaigned on wage-hour legislation and won 523 electoral votes to 8. He then introduced legislation for a 40-hour work week and a 40-cent-an-hour minimum wage. But despite multiple attempts to push it through, conservative Republicans and southern Democrats kept it bottled up in committee until the president waded into the fray and put his personal prestige on the line -- and allowed the minimum wage to be reduced to 25 cents an hour. Still, this was the first time the principle of a minimum wage and maximum work week had the force of law. Workers now owned a two-day weekend.

And after WWII, in 1949, the FLSA was amended and the minimum wage almost doubled. So began the slow, lurching progress of improving wages and protections for workers. The minimum wage was increased again in 1955. Workers covered by FLSA expanded in 1961 and another minimum wage raise occurred. Reforms in 1962, 1963, 1966, 1967, and 1974 gave more protection to laborers, women, farmworkers, and public employees. Further amendments to FLSA expanded protections to tipped workers and migrant workers in 1977 and 1983. The minimum wage was increased again in 1989 and 1996. While unsteady and sometimes unpredictable, progress has occurred.

Yet we have more work to do.

Currently, the federal minimum wage is just $7.25 an hour. If you are one of the 3.3 million Americans who work for tips, the minimum wage is $2.13 an hour and you haven't seen increase since 1991. We need to index the minimum wage to living costs, just as we index Social Security for the elderly. Indexed to inflation, the minimum wage would now be over $10 an hour; indexed to the growth in worker productivity over the past 30 years, the minimum wage would be almost double this amount. An estimated 30 million workers would see their wages rise if the minimum wage were increased to $10 an hour, according to the Economic Policy Institute. Workers deserve a decent wage for their labor.

And we need to expand coverage of labor protections to 2.5 million home care workers. Due to an excessively broad definition of "companionship" contained in a 1974 amendment to FLSA, the home care workers in this $70 billion industry -- who cook, clean, change linens, and perform a host of other household services for the elderly and the disabled -- are exempt from labor protections and minimum wage laws. An estimated 500,000 of these workers live in poverty and half use food stamps to stay afloat.

Two years ago, the Department of Labor proposed a rule that would fix this oversight. Tens of thousands of public comments in support of the proposed rule were submitted. The president pledged his support. But despite the fact that an executive order says the Office of Information and Regulatory Affairs (OIRA) should review new rules within 90 days (three months), the rule that would allow these workers to live by the same standards as the rest of the workforce has not been approved. This is unacceptable.

The Fair Labor Standards Act was passed 75 years ago to protect workers. A badly written amendment passed almost 40 years ago inadvertently exempted a pool of poor and vulnerable workers. It is way past time to right this wrong. Home care workers and their families should not have to bear the costs of regulatory delay. It's time for the administration to move this standard forward.

The arc of history may feel long, but we can still bend it toward justice. Franklin Roosevelt would have said: We can. We shall. We must.

Katherine McFate is the president and CEO of the Center for Effective Government and co-chair of the Coalition for Sensible Safeguards.