Does the FLSA drop the ball?
Ask McNicholas and Becica how they feel about the FLSA’s successes and failures, and you’ll quickly realize it’s a complicated subject. McNicholas is quick to point out it’s a law of its time.
“The country was coming out of the Great Depression,” she says. “There was a fundamental question that was being asked – what is the economy going to look like? What is our workforce going to look like as we heal out of the Great Depression? Broadly, are we going to return to some of the inequality that led to the Great Depression?”
As for whether its impact is still broad enough today, McNicholas says the law falls short. “To me, the Fair Labor Standards Act is like a great old house with amazing bones that has been woefully neglected,” she says. “In my view, both parties have failed to make sure that not just the Fair Labor Standards Act, but a whole host of protection measures, have been updated, so they respond to the needs of workers in a modern economy.”
One area that could use a rewrite is the law’s section regarding tipped workers , or the lack thereof. Currently, the FLSA has only vague rules regarding who should be allowed to receive tips and whether employers can claim a tip credit. “The general rule under the Fair Labor Standards Act is that if you have tipped workers who can claim the ‘tipped credit’ and be paid less than the minimum wage, you can still claim that ‘tipped credit’ if you pool your tips together,” says Becica.
“The issue that came up through the courts was what if we want to do a tip pool with some of these non-tipped employees but don’t want to claim the ‘tip credit?’ So, in other words, we’re going to pay the minimum wage and we’re going to have a tip pool with tipped employees and non-tipped employees. Is that ok?”
On this subject, the courts did eventually step in and make a ruling, but that’s just one example of how the FLSA could be improved. Holes such as this create inefficiencies and bottlenecks, as the court system gets clogged with cases that should already be addressed.