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Flexible Work Schedules and the Fair Labor Standards Act (FLSA)

On July 14, 2011, Tim Walberg, R-Mich chaired a hearing before the House Subcommittee on Workforce Protections in Washington, D.C. The purpose of this hearing was to start a dialogue on whether the rules and regulations concerning minimum wage, maximum hours worked and overtime need to be changed in a world that is becoming increasingly flexible and mobile.  It is currently believed that court rulings have created ambiguity and uncertainty in how the rules should be applied. This has led to an “explosion of wage and hour litigation”, Walberg said in opening remarks.

Many HR professionals and organizations including the Society for Human Resource Management (SHRM) have stated that they believe the FLSA is outdated and needs to reflect a 21st Century Workforce. Enacted near the 1930s, the regulations written simply don’t reflect the workforce or workplace of today.

Here is one simple example that illustrates the constraints placed on the employer and the employee by the FLSA. Ms. Smith’s current work load requires that she work an average of 40 hours per week. However, it does not require that she work 40 hours each week. Ms. Smith would prefer to work 30 hours one week and 50 hours the next; repeating this pattern throughout the year to help her balance her obligations at home and work. On principal alone, her employer has no problem with this type of schedule as Ms. Smith has proven herself to be a productive employee with excellent time management skills. The problem is that Ms. Smith is an hourly employee and the FLSA requires that she receive overtime in any workweek where she works over 40 hours per week.  Therefore, this employee would cost the employer 1.5 times the normal rate for this type of work on the 10 hours per weeks when Ms. Smith works 50 hours per week.

Lyn Woolsey, D-Calif., agreed that the workplace has changed from when the law was enacted but stated, “… the occupations predicted to experience the greatest growth, over the next decade include workers for whom the protections provided by the FLSA are fundamental.”

HR professionals and other business leaders will continue to urge our government officials to make changes to the FLSA. It will be difficult to create legislation that protects the employee and still allows the employer to create work environments that benefit their employees without penalizing the employer. This situation becomes more complicated when you take into account that some state laws have more stringent rules than the federal government, such as overtime pay being required anytime an employee works more than 8 hours per shift. This creates a huge disadvantage for employers who would otherwise offer their employees flexible work schedules.

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