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Once upon a time, a seriously-alarmed legislative body concluded
that wage-hour claims and litigation had gotten out-of-hand.
Following a series of court decisions that had, among other
things, broadly interpreted the scope of what counted as
"hours worked", this group observed that the law was
"creating wholly unexpected liabilities, immense in amount and
retroactive in operation . . .." The legislators were
convinced that, if the status quo persisted:
"the payment of such liabilities would bring about
financial ruin of many employers and seriously impair the capital
resources of many others, thereby resulting in the reduction of
industrial operations, halting of expansion and development,
curtailing employment, and the earning power of
employees;"
"there would be created both an extended and continuous
uncertainty on the part of industry, both employer and employee, as
to the financial condition of productive establishments and a gross
inequality of competitive conditions between employers and between
industries;"
"employees would receive windfall payments, including
liquidated damages, of sums for activities performed by them
without any expectation of reward beyond that included in their
agreed rates of pay;"
"there would occur the promotion of increasing demands for
payment to employees for engaging in activities no compensation for
which had been contemplated by either the employer or employee at
the time they were engaged in;"
"voluntary collective bargaining would be interfered with
and industrial disputes between employees and employers and between
employees and employees would be created;"
"the courts . . . would be burdened with excessive and
needless litigation and champertous practices would be
encouraged;" and
"serious and adverse effects upon the revenues of
[various] governments would occur."
This legislature was the U.S. Congress, and these quotations are
drawn from the actual findings that led Congress to pass the May
1947 Portal-to-Portal Act to "meet the existing emergency and
to correct existing evils" by refining and limiting certain
aspects of and claims under the federal Fair Labor Standards Act.
See29 U.S.C. § 251.
These findings are written in a bygone style, but they are
nevertheless apt today, when there is an "emergency" that
is at least as pressing as it was then. Indeed, these concerns are
even greater now, as the 73-year-old FLSA has become anachronistic
and ill-suited to the 21st century. It is in part for this very
reason that the FLSA has become foremost among the sources of
employment-law claims.
The current state of affairs is leading to broad-based,
increasingly-urgent
calls for changes in the FLSA to move it out of the 1930s and
to align it with modern-day realities. Supplications to the U.S.
Labor Department will not be sufficient. Fundamental changes in the
FLSA itself are necessary.
The question is: Are Congress and the President listening in
2012?
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