Fair Labor Standards Act and the Expanding (or Contracting) Work Week


laptop-260x173I’ve written before about the need to update the Fair Labor Standards Act. A recent article on the Knowledge@Wharton website reminded me of this need again. See Management, If Not 40 Hours, Then What? Defining the Modern Work Week, Jan. 28, 2015.  As the article states, “With the advent of telecommuting, flexible hours, globalization and answering emails after hours and on vacation, the American worker has entered the era of the fuzzy work-home divide.”

The blurring of work and home lives began decades ago for many professionals. As an attorney in the early 1980s I could bill hours from home or on the road, though face time at the office was definitely important. But today, with smartphones in the hands of every worker, even many traditionally hourly occupations can be performed anywhere and anytime. Whether this is a positive or detrimental development depends on how it is managed—both by management and by employees themselves.

There are also differences in what workers want. Some want longer work weeks for more pay. Others want shorter work weeks for more time for other activities. Similarly, managers want more work for the same pay, but they also want productive workers who are engaged in their roles (which requires that the rest of their lives also be running smoothly).

1. Which Direction Are We Headed?

The eight-hour day was one accomplishment of the early 20th century labor movement, protecting workers from terribly long hours in dismal factory conditions. It was also intended to spread work out across more laborers during the Great Depression. The eight-hour day and forty-hour week were certainly not traditional in the agrarian society that predated the Industrial Revolution. There is nothing set in stone about the eight-hour day or forty-hour week, other than that it is mandated for non-exempt employees under the FLSA and similar laws in other nations.

The Wharton article focuses on a number of possible developments in defining the work week of the future, mostly focused on requiring fewer hours in the week. And yet, U.S. workers currently work an average of 46.7 hours per week, and 18% work more than 60 hours.

Will workers continue to increase their time spent working? Will managers permit more flexibility?

With today’s more flexible work and more flexible technology, the fixed eight-hour day may have outlived its usefulness. Yet in which direction will the work week of the future move—toward more hours or fewer? There are strong arguments for both. Whichever direction we take, managers will be challenged to comply with regulations that change much more slowly than the workplace does.

2. How Do We Manage?

imagesTraditional management: One option in managing work time is for companies to forbid any work by hourly employees except during certain hours. This makes compliance with the FLSA easier, but the trade-off is that company policies typically then do not permit employees to perform personal assignments during working hours. Otherwise, productivity suffers.

This option also penalizes employees who want to put in extra time or have flexibility in when and where they do their work. Unfortunately (or fortunately, perhaps, depending on your perspective), the FLSA is set up to regulate defined work times and to require payment for all time spent working.

Tracking Time: Another option for managing time is to require hourly employees to keep time sheets, where they log on and off the clock to handle personal matters. This is a difficult policy to enforce, and also runs the risk of violating the FLSA’s requirements that non-exempt employees must be paid for all breaks unless the break is long enough for them to leave the premises. So, employees could be permitted a half-hour of personal time in the middle of the day, but not a series of five-minute breaks to handle personal phone calls.

I predict that companies will develop diverging policies on this issue. Some will become more flexible, despite the management challenges. Others will hold to traditional schedules, at least until the FLSA changes significantly.

Congress should debate this issue and develop 21st Century laws for 21st Century workplaces.

What do you think? Should the FLSA permit more flexibility?

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Filed under Human Resources, Law, Management, Workplace

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