June 2002

The Fair Labor Standards Act (FLSA): Is It More Than an 1,800-Page Doorstop? A Resounding "Yes"!

by James H. Hopkins

The Fair Labor Standards Act (FLSA)
Ellen C. Kearns, editor-in-chief
BNA Publications
1999; 2001 Cumulative Supplement

Ellen C. Kearns's treatise on the Fair Labor Standards Act (FLSA) is to wage-and-hour law as Grossman is to discrimination law. Ms. Kearns is supported by a prominent group of contributing editors, including WSBA members Thomas W. McLane, who contributed to "Hot Goods Violations," and Timothy J. Pauley, who contributed to "Record-Keeping." I heartily recommend this volume to firms that enforce, defend or prosecute the FLSA and its attendant regulations established by the Wage and Hour Division of the U.S. Department of Labor.

Originally published in 1999, this book includes a 2001 cumulative supplement, current through the latter part of 2000, published under the guidance of Editor-in-Chief Monica Gallagher. Although the material contained in this volume may be obtained through different sources, it is notable that the editors have compiled the information under one roof, saving readers much effort.

When this work was commissioned, the Labor and Employment Section of the American Bar Association stated its goals in the foreword of the cumulative supplement: (1) "to be equally balanced and nonpartisan in their viewpoints"; and (2) "to ensure the book is of significant value to the practitioner, student, and sophisticated non-lawyer."

The book begins with a historical perspective, moves into a general overview, and ends with specific discussions of the various portions of the FLSA. A general plus of the volume is that the editors have cited cases from a variety of circuits, giving perspective to practitioners in various areas around the country. Since the FLSA does not pre-empt the field, various state statutes and case law are relevant to the practitioner. While using this book, attorneys must be cognizant of this, and should apply its information in coordination with these statutes. The editors have done a good job of keeping the reader apprised of this situation.

Great detail is given to the nuances of the act, and areas the daily practitioner may not often encounter. One example is the exemption established for home workers who make wreaths, as long as the wreath is made up of "natural holly, pine, cedar or other evergreens." If the editors have found this obscure exemption, we may feel safe that they have included those that practitioners use on a regular basis.

I have often struggled with determining the "regular rate" of pay to use for calculating overtime compensation. In its "Determining Overtime Compensation" chapter, this book does a good job of explaining the fine distinctions of this knotty problem. In addition, examples explain the administration of the different calculations.

Child labor is a topic that is very much in the news, especially as it applies to industries that move operations to other countries and place themselves in the position of using child labor. It has been less than a 100 years since the Triangle Shirtwaist Factory fire in New York City, where 146 women and children between the ages of 13 and 23 died. It is difficult to believe that the FLSA, the definitive answer to child labor in the United States, was not passed by Congress until 1937 — 26 years after this tragedy. Nor did the U.S. Supreme Court overrule its previous decision overturning a child-labor statute until 1941. With this in mind, are other countries' attitudes regarding child labor that far behind the United States? The editors provide a historical perspective of the various sections of the statute, lending an understanding of the "why" to help practitioners administer the "what" more effectively.

The editors are so thorough they have even included a short chapter aptly called "Homework." Before parents become too concerned, let me explain that this refers to a ban on work performed at home in an attempt by companies to circumvent the FLSA. In 30 years of working in this area, I have not needed to refer to this section, but it is an example of the attention to detail paid by the editors, and could become a larger issue in this era of cyberspace.

The volume contains a solid briefing on the FLSA's record-keeping requirements. Assuming that an employer's records reflect compliance with the act, following these guidelines will keep employers out of trouble. The editors have stated: "The regulations do not establish any single acceptable system of record-keeping." A sample of maintaining straight-time, overtime and regular hours worked would have been a helpful addition to the appendix. However, the chapter on "Record-Keeping" provides enough detail on the types of records to keep and the duration for retention that anyone should be able to develop an adequate record-keeping system.

The chapters "Enforcement and Remedies" and "Litigation Issues" comprise approximately a quarter of the volume, and offer insight into remedies ranging from administrative review to criminal sanctions. As an example, in a situation where an employee has a calendar reflecting times worked and the employer has kept no record, the administrative agency or hearing court must rely on only one set of documents, and the burden is on the employer to prove that the employee's documentation is inaccurate. A situation such as this clearly illustrates the importance of the record-keeping chapter, and adherence may prevent the employer from a required review of the "Remedies" and "Litigation" chapters.

I give The Fair Labor Standards Act an enthusiastic two thumbs up.

James H. Hopkins, JD, SPHR, is a principal in the law firm Skellenger Bender, PS in Seattle. His practice emphasis is on employment and construction issues. He may be reached at 206-623-6501 or jhopkins@skellengerbender.com.