Support Grows For Overhauling FLSA’s Principles
The federal Fair Labor Standards Act turns 72 years old this year. Even though today’s working world is radically different from that of 1938, the FLSA’s principles remain largely unchanged and have become increasingly counterproductive in a global economy. Many believe that it is imperative to harmonize this strict, unforgiving law with modern realities, including by making it more flexible, more adaptable, and better-attuned to the practical concerns and preferences of present-day employers and employees.
Further evidence of this growing sentiment surfaced last week in the form of a letter from the HR Policy Association to U.S. Labor Secretary Hilda Solis. In that correspondence, the organization advocated a reform-oriented collaboration among the Labor Department, the HRPA, and other interested parties. This would be a good starting point, but any meaningful success will depend in substantial part upon whether fundamental legislative changes in the FLSA itself can be brought to fruition.
Any list of proposed FLSA statutory revisions would be a long one, but high priorities should include:
• A provision assigning at least some legal responsibility to non-exempt employees to report their worktime accurately. Today, employees sometimes claim months or years after-the-fact that their records reflect less time than they actually worked. The absence of any FLSA “give” on this means that such claims are routinely credited by the courts and by U.S. Labor Department investigators, even in cases where an employer has in place a policy designed to produce accurate time records, and even when there is room to question whether an employee is being truthful. Perhaps this could be addressed by, for example, creating a legal presumption that an employee’s time records are accurate, if (i) the employee records his or her own hours worked each workday and each workweek; (ii) the employee reviews those records each workweek and certifies that they are correct; and (iii) the employer maintains, enforces, and in practice actually observes a written policy both stating how hours worked are to be recorded and requiring that all hours worked be accurately and correctly recorded each workday and each workweek.