Let’s Not Repeat the Mistakes of the Past With Worker Protections

Jessica Mason

Today marks the 80th anniversary of the enactment of the Fair Labor Standards Act (FLSA), the cornerstone of labor protections for working people in the United States. Responding to the rampant exploitation that occurred during the Gilded Age and the hardships of the Great Depression, the FLSA established a national minimum wage, limited child labor, set a standard for weekly working hours with overtime pay, and created a federal agency, the Wage and Hour Division, to administer and enforce the law. Just weeks ago, we noted another milestone — the 55th anniversary of the Equal Pay Act — which amended the FLSA to establish that women and men must receive equal pay for equal work.

Our workplaces and our economy have changed a lot since Presidents Franklin Delano Roosevelt and John F. Kennedy signed these protections into law but it’s unlikely that they could have imagined the world we live in today, where many of us use tiny pocket computers to hail cars or hire babysitters — or that women would be key breadwinners in half of families with children. Still, despite all that has changed since those laws were enacted, the protections they provide remain vital to working people today. Fair pay can support a decent quality of life, and reasonable, predictable working hours and standards like overtime pay help employers to respect and value their employees' time.

As important and relevant as the FLSA and the Equal Pay Act continue to be, they have always been imperfect. The FLSA unjustly, in large part due to racism and sexism, excluded whole categories of workers in jobs that tended to be performed by people of color and women, including tipped workers, farm workers and home care workers. The same is true of Title VII of the Civil Rights Act of 1964, the landmark anti-discrimination law, which from its passage left out domestic workers, independent contractors and anyone who works for an employer with fewer than 15 employees. The gaps and exclusions in each of these laws remain today — but each could and should be strengthened to provide stronger legal protections for workers.

Updating these protections is especially important today as the inadequacies of the laws have been exacerbated by the fact that FLSA protections do not cover some of the fastest-growing occupations, including food service workers, and workplace “fissuring" and other changes in the nature of work have created new challenges for enforcement. Because women and people of color are overrepresented in unprotected occupations, they are particularly harmed by the flaws of the FLSA.

As policymakers consider what “gig” work, robots and the changing economy mean for working people, they risk perpetuating and repeating the mistakes of the past if they fail to update the FLSA and Title VII and ensure any new protections are inclusive of all working people. Data released by the Bureau of Labor Statistics this month confirms that women and Black and Latinx people continue to make up a disproportionate share of the contingent workforce, particularly temp agency workers. Compared to similar workers in standard, non-contingent jobs, these workers are paid significantly less and are less likely to have benefits that have traditionally been provided through employers.

The protections that the FLSA, the Equal Pay Act and Title VII provide remain essential for women and working families. Fixing the flaws in each law to protect all workers is essential. We must correct the mistakes of the past as we fight for new protections like paid sick days and paid family and medical leave for all. And we must continue, at the federal level, to press Congress to pass the Paycheck Fairness Act and to update the overtime standard, which was blocked by the Trump administration last year.

It’s past time to expand these laws to cover all workers — including part-time, self-employed and contingent workers — and to make sure that new workplace protections do the same.

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