On Mother’s Day 2013, the New York City Police Department told 911 operators, most of whom are women, that they would have to work overtime that day. The women who were already covering that day’s three eight-hour shifts were told that they would have to stay an additional four hours and perhaps longer, even though it was Sunday. The choice of spending time with family was off the table—anyone who refused would be fired. Rubbing salt in the wounds, the NYPD required anyone who called in sick to provide documentary evidence of their illness. Said one operator, “It’s double-jeopardy for us, because handling crime calls all day, with no break to go home to your family, plays with the psyche. You worry about making a mistake and getting written up, but moreover, you worry about making a mistake that will hurt somebody.” And these workers even had a union.
When Congress passed the Fair Labor Standards Act (FLSA) in 1938, there was high unemployment, but for those with jobs, there were also brutally long days and little time off. The FLSA, for the first time, in addition to setting a minimum wage, established the length of the workweek employees could be expected to work without being paid overtime. By requiring extra pay— time and a half—for any hours worked in excess of the newly enshrined forty-four-hour workweek, supporters of the law thought it would provide an incentive for employers to hire more workers to spread the work around and save on overtime costs, thus reducing unemployment. They also sought to provide a fairer wage and regular, sustainable hours, especially for workers who did not have the protection of a union or who worked in low-skilled jobs without much bargaining power. The Supreme Court, in an early case interpreting the act, described its purpose as protecting the “unprotected, unorganized and lowest paid of the nation’s working population.”
But the law’s stated goal was undermined from the outset. As legislators hammered out the bill, they made political trade-offs and concessions to secure its passage that dropped many workers out—indeed, only 20 percent of workers were helped by the FLSA at the beginning. The southern members of Congress demanded the explicit exclusion of the workers who cooked, cleaned, and cared for children in their homes and the field hands who worked their lands—virtually all African American—so their plantation economy could remain intact. President Roosevelt and his allies in Congress had not wanted to carve out so many workers, but they needed southern votes to pass the law so they traded preserving Jim Crow conditions for some in favor of better pay and overtime for others. And business interests were able to whittle down the covered workforce even further, cutting out those laboring in laundries, tailoring, and dry cleaning in 1945. Ironically, partly because of the FLSA’s limitations and exclusions, those workers who fit the profile of the most vulnerable are those least likely to be protected.
In addition to excluding domestic workers, farmworkers, and others, the law was limited to larger employers, initially because of the worry that the Supreme Court might strike down the law. Many business opponents of the bill had specifically challenged its constitutionality as too broad a reading of the Commerce Clause, which had been a successful argument against earlier bills.8 Seeking to alleviate opponents’ concerns, Senator Hugo Black of Alabama assured them that factories and large unionized facilities fell under the act, but not retail stores and services: “The prevailing sentiment of the committee, if not the unanimous sentiment of the committee . . . [is] that businesses of a purely local type which serve a local community, and which do not send their products into the streams of interstate commerce, can be better regulated by the laws of the communities and of the [s]tates in which the business units operate.” It goes without saying that legislators understood that the act would play a very small role in the less-industrialized South—especially in conjunction with the explicit exemptions for agricultural and domestic workers. Later, courts and Congress came to see that almost all workers are actually “engaged in commerce,” and the coverage of the FLSA came to encompass a larger and larger group of workers. In 1989, however, after lobbying by powerful industry groups, like the National Federation of Independent Business, President George H.W. Bush maneuvered Democrats in Congress into adding an exemption for smaller companies by agreeing to an increase in the minimum wage. So once again, certain businesses were given a license to demand excessive work hours without paying overtime. Millions of workers lost their rights.
In drafting the FLSA, legislators made another choice that led to the exclusion of vast numbers of workers when they limited overtime provisions to “hourly employees,” giving companies wiggle room to write their workers out of the law by calling them “salaried.” George W. Bush followed his father’s lead by adopting a regulation that radically expanded the number of workers who could be called salaried, taking away their right to overtime with the stroke of a pen. When the rule was adopted, analysts found that an additional 8 million workers lost overtime protections; that number is approximately 6 percent of the labor force.
In the same pattern as other statutes, the FLSA leaves out some workers through the explicit exclusion of their job category, others by the size of their employers, and yet others by virtue of being designated as “salaried” and not “hourly” employees. These categories cover more and more people, and the hours Americans work are going up and up. Not having to pay time and a half is a great incentive to work people to exhaustion. Even for those who earn overtime pay, the forty-hour workweek does not mean employers can’t ask—or rather, demand—that employees work longer hours; they only have to pay them time and a half. Unexpected changes in schedules or additional hours can throw havoc into the carefully organized but often precarious plans of low-wage workers with children or sick parents or who have a second job. A woman who says no to extra hours, like the 911 operators, may be saying good-bye to her job at the same time.
On the flip side, many workers work less than they would like. The United States has seen a great increase in its part-time work-force, with women filling the majority of these jobs. Part-time jobs not only pay less overall because of reduced hours but also pay less per hour—employers impose a wage penalty on their part-time workers that compounds the difficulty faced by women and families scraping to get by. Some employers drop the number of hours employees work, to avoid having to provide any benefits. Other employers, particularly in the retail and restaurant industries, have added insult to injury by abandoning regular schedules altogether and forcing workers to call in daily to know whether they should report that day.
As our economy has shifted from manufacturing to service jobs, with more and more mothers in the workforce, and with our expectations of 24/7 commerce, women suffer particularly from the failure of the FLSA to give workers control over their workdays. The twenty-first-century workplace is one of too many hours or too few, one where employers can change workers’ schedules with no warning, where some workers know if they have work on a certain day only by calling in to their employers, where the FLSA’s lofty promises are irrelevant. Those most likely to control their working hours as well as their time off are those who have the most bargaining power. Flexibility and predictability are the province of those at the top of the food chain.
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RESTORING THE FLSA’S PROMISE: PROTECTING THE “UNPROTECTED, UNORGANIZED AND LOWEST PAID OF THE NATION’S WORKING POPULATION”
Working too much or too little or anytime the boss says does not describe the life anyone wants or merits. To make FLSA meaningful, we need to enforce a humane workday, giving workers more control over their hours and putting more money in their pockets. First, we need to add in the excluded workers and make sure they can collect overtime: farmworkers, home care workers, and nannies, among others. Without a doubt, they would work fewer hours, but with the added bonus of earning a bit more if they do work overtime. In addition, the salary test and the threshold salary level have to be updated. How long has it been since a true professional salaried worker earned only $455 per week? These so-called salaried workers should and must get overtime pay. To give workers more control over extra hours, we could set a maximum number of hours that they could be expected to work per week, absent a collective bargaining agreement or other contractual arrangement between the worker and the employer. They would have the right to refuse extra hours except for essential personnel and exceptional circumstances enforced by penalties under employment discrimination statutes. While this concept seems novel, workers represented by a labor union do have this right. And we have the example of the states that have passed legislation giving nurses, a group of workers who regularly work excessive hours, the right to turn down overtime. As far as possible, workers who are part-time should be part-time because they want to be. By requiring employers to offer additional hours to their part-time workers before adding more part-time staff, we would encourage the move to more full-time workers; some jurisdictions have adopted such rules. Workers also should have the right to know their schedules in advance and expect that their employers try to respect their external obligations. Employers should have to pay for a minimum number of hours if workers are sent home before working a full shift and should have to provide workers called in on short notice a pay bump, as is proposed in legislation by Representative George Miller (D-CA). Part-time workers should have guaranteed hours and not be expected to work fifty hours one week only to be dropped to fifteen the next. These simple measures would help the FLSA better live up to its lofty goals.
And perhaps we should consider allowing people to get time rather than cash for their extra work hours. In the past, business lobbyists have attempted to dismantle the protections of overtime pay by substituting time off for extra pay. Their cynical ver- sion, however, not only would have cut wages for workers but also would have given the boss total control over when the workers could use the time—which is exactly contrary to the point! Losing overtime pay for low-wage workers is bad enough; not being able to attend the parent-teacher conference, take the kids to the doctor, or celebrate a family event would completely undo any of the benefit of time off if it could not be used at times when the worker wants and needs some time away from the work- place. In the context of rethinking how we regulate wages and hours and in light of a growing number of women with children in the workforce, we need to come up with a new framework. If a parent could earn paid time and a half in hours instead of dollars, that might provide just as much of a disincentive for employers to demand extra work and, if the father or mother could decide when to use the hours, the change in policy might provide some families with a lot more stability. And to discourage employers from laying people off and making the remaining workers put in more hours, we should restructure unemployment taxes by actually raising taxes on those companies who lay off some people and then up the work time for others. But regardless of whether we tighten any definitions or add any new protections, we still need to beef up enforcement. It makes no sense to waste time fighting for statutory and regulatory reforms just to see the courthouse doors slammed in the faces of workers because corporate America still writes the rule book.
But we can do more than give workers the right to say no to extra hours; we should be thinking about how to ensure greater flexibility overall—flexibility that helps the worker mesh work and life outside—not schedule manipulation by employers to wring every cent of profits by cutting hours and changing workdays. With the increasing number of mothers working and the imperative that men share some of the parenting responsibilities, it is time we rethought the rigid schedules of the American workplace. Thirty years ago, research done by the Work in America Institute identified the increasing creakiness of the statute’s framework: “Because the assumption underlying the FLSA is that workers are employed full time and have a stay-at- home spouse to fulfill caregiving obligations, the law did not deal with or encourage workplace flexibility.” And not only would more flexibility help workers, but it could help the economy. The Work in America Institute recommends flexible schedules as a way to “raise employee morale and boost productivity. And work sharing, which avoids layoffs by distributing reduced work time among all of a plant’s employees, can serve as a cushion against cyclical recessions.”
Employers already have the ability to provide greater flexibility to workers, even within the forty-hour workweek, by allowing them to work longer hours but fewer days per week or alternate their schedules on different days. But this kind of scheduling is totally under the control of the employer, and few provide it. So for most employees, working from home, coming in early and leaving early or coming in late and leaving late, or working a four-day, ten-hour-per-day schedule will happen only if the boss decides it is okay. Without any requirement to offer flexible schedules, few employers do. If they do allow flexible schedules, like other benefits, they are available mostly at the upper end of the salary scale. The irony of the well-off having the most flexible schedules has an unfortunate downside. Politicians and opinion leaders, who regularly make it to their kids’ baseball games or performances, and certainly can always make their own doctors’ appointments (and have nannies to take their kids to their appointments), have no idea how much other families have to juggle.
But there are some advances. Both San Francisco and Vermont have adopted legislation allowing workers to request flexibility without suffering job consequences. While it is not a huge step forward, elsewhere workers can get fired for even raising the question. Great Britain, Australia, and New Zealand have also provided this protection and require employers who refuse to allow the worker a more flexible schedule to explain why. Under Prime Minister Tony Blair, the British government adopted a law that allows employees to request a flexible schedule if they have a child under six and have worked more than twenty-six straight weeks for the employer. Employees can request a range of schedule variations, including a shorter workweek with longer hours per day, flextime, work from home, a job split with someone else, alternative hours, and different shifts, accompanied by an explanation of how such a schedule could be implemented. Employers can deny requests because of cost or inconvenience, but overall the business community in Great Britain has found the law something it can work with. This didn’t happen without a lot of effort to create the right climate for business to support the law. The Blair government pitched the change as a partnership with business and one that would spur productivity rather than harm profits. The leaders focused on the benefits to business, and even provided a funding stream for companies to hire consultants to make it easier for them to develop and promulgate policies. And, writer Karen Kornbluh notes, while employers can deny requests, they must provide a written denial, which may have helped keep denials lower than they might have been without the documentation. According to Kornbluh, part of this outcome is due to shame: “It’s one thing to believe that business goals are more important than employee schedules; it’s quite another to state for the record that you’d rather Jane didn’t pick up her children from school because you prefer holding staff meetings at six in the evening. By throwing daylight on some of the unreasonable burdens that have been placed on employees without debate and without their agreement, the initiative creates a dialogue between employers and employees.”
Representative Carolyn Maloney (D-NY) and Senator Bob Casey (D-PA) have introduced the Working Families Flexibility Act, which would give American workers the right to request flexibility. Better yet would be legislation that would allow workers, in addition to requesting schedule variations, to opt out of overtime unless the employer can show need. Nonetheless, it is cause for hope that some lawmakers are taking the issue seriously. We need to support these efforts and challenge the rest of our elected officials and business leaders to do better.
Excerpted from "Under the Bus: How Working Women Are Being Run Over" by Caroline Fredrickson. Published by the New Press. Copyright © 2015 by Caroline Fredrickson. Reprinted here with permission.
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