Wednesday, February 22, 2017

“If I could press a button and instantly vaporize one sector of employment law?” (redux)

Nearly six years ago, Walter Olson, writing as his Overlawyered blog, asked the following question:
“If I could press a button and instantly vaporize one sector of employment law…”?
This was my answer:
The Fair Labor Standards Act. The FLSA needs to go because compliance is impossible. 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.
Six years of an Obama-led DOL has not softened my position. And Mr. Olson totally agrees.

Yesterday, he tweeted the following: Walter did not pull any punches in his book chapter. He saved his harshest critique for my favorite punching bag, the FLSA, correctly stating that “its high-stakes litigation arising from elaborate guessing games about how to classify and categorize employees, should have been first to go.”

What issues can arise under the FLSA that illustrate its difficulties in adapting to the modern workplace? Walter offers 10 classes of employees the law harms:
  • grocery co-ops that rely on member volunteers to stock shelves 
  • developmentally disabled persons in community employment 
  • workers asked to surrender company cellphones and stop using company online services after hours 
  • elders for whom overnight home attendants, suddenly unaffordable under an overtime mandate, had been the alternative to nursing home care 
  • restaurant, airport, and other service workers who made farmore under a tip system
  • interns and first jobholders in competitive, sought-after fields like fashion journalism and political campaign work 
  • drivers left with a choice of machine car wash or nothing because by-hand washes are unsustainable when a tip system gives way to a $15 minimum wage
  • disabled persons who rely on now-unaffordable personal care assistants 
  • small wineries with community volunteer programs 
  • telecommuters recalled to in-office assignments only 
Let’s get real. The FLSA isn’t going anywhere. But, these 10 examples demonstrate that legislators’ and regulators’ unwillingness to bring it into the latter 20th century, let alone the 21st, has real consequences for employees and their employers.