Earlier this year, I engaged in a debate with plaintiff’s attorney (and author of the excellent employee-side blog, Screw You Guys, I’m Going Home) Donna Ballman over whether discrimination lawsuits are sins of commission or omission. I argued that most employers are well-intentioned, but sometimes act out of inexperience with the complexities of myriad employment laws. Donna argued that many employers act out of malice and deserve to be on the receiving end of discrimination lawsuits.
Last week, writing at Aol Jobs, Donna turned her attention to wage and hour laws. She listed “10 tricks employers use to cheat workers out of overtime.” Donna’s premise, however, is faulty. Managers and executives are not spending their days in locked, smoke-filled conference rooms scheming how to cheat extra hours and steal overtime pay from their employees. Paychecks and timesheets are neither a ploy nor a tactic. Instead, most employers are well-intentioned but ignorant. They are ignorant of the myriad, twisted rules and regulations that govern why, when, to whom, and how much overtime is to be paid.
It’s no secret that I believe the Fair Labor Standards Act is woefully outdated and needs a modernized, top-to-bottom rewrite. As I’ve written before:
Congress enacted the FLSA during the Great Depression to combat the sweatshops that had taken over our manufacturing sector. In the 70+ years that have passed, it has evolved, via a complex web of regulations and interpretations, into an anachronistic maze of rules that even the best-intentioned employer cannot hope to comply with. I would bet any employer in this country a free wage and hour audit that I can find an FLSA violation in your pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive. Instead, what employers and employees need is a more streamlined system to ensure that workers are paid a fair wage.
Reforming the system into a manageable and understandable set of rules is the best means to ensure that workers are paid a full wage for all hours worked. The system, as it is currently set up, dooms even the most well-meaning employer to failure.