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How Is 2012 Like 1947?

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. See 29 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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