Labor Law Discriminates Against WomenCommentary by Pete du Pont
August 10, 2001
If one thing is certain about American society today, it's that it's not 1940 anymore. But that doesn't mean that Congress has caught on to that fact.
According to a new report from Denise Venable with the NCPA's Women in the Economy project, one of the main areas where our nation's laws need to catch up with today's society are the laws that govern the work schedule.
The nation's work schedule is still governed primarily by the Fair Labor Standards Act (FLSA). Passed in 1938, the act mandated a federal minimum wage and established an eight-hour workday, with overtime pay for any hours over 40 worked in a week. Overtime pay was set at one and one-half times the rate of regular pay. The law was initially beneficial to workers, but its inflexibility has hindered development of an accommodating workplace. This is especially important to low-income women.
A lot has happened in a little over sixty years. Women have entered the labor market at rates incomprehensible a half-century ago. According to the U.S. Census Bureau and Department of Labor Statistics for example, in 1940, 67 percent of households were "traditional" family structures in which the father was the main earner and the mother remained at home full time. Today only 17 percent of families are "traditional," while a majority of families are dual-earner. In 1950, single mothers were less than 3 percent of families; today they make up more than 12 percent of family households. In fact, sixty-one percent of women age 20 and over work, which constitutes 46 percent of the workforce. Between 1976 and 1998, the average weekly hours women worked increased 42 percent, and the proportion of women working overtime rose from 14 percent to 21.6 percent.
Yet while more women are working outside the home, most women continue to be the primary caregivers of their family. In fact according to the Families and Working Institute, working mothers are 83 percent more likely to take time off to care for a child than working fathers. Unfortunately, studies have shown that women's intermittent departures from the labor force to care for a child or an elderly parent lower average lifetime wages. This is partly because the FLSA's strict overtime regulations limit work arrangements that will accommodate the flexibility women need.
Many women are searching for new ways to balance work and family. Some are more willing to accept positions at lower pay in exchange for flexible work schedules and other benefits. Diana Furghtgott-Roth suggests in her book, Women's Figures, that many of the jobs known as "pink-collar jobs" (often those in the service/trade/retail and finance/insurance/real estate industries) contain a larger percentage of women simply because they afford the flexibility other jobs can't, due to the FLSA.
Congress had a chance to fix this problem back in 1997, with the Family Friendly Workplace Act. Its major provisions included a biweekly work schedule option that would allow employees to work 80 hours over a two-week period in any combination; flexible credit-hours that would allow any hours worked over 40 in one week to be saved and used toward paid leave later; and compensatory time and a half off in lieu of overtime pay, with the caveat that it must be taken within the same year or it would revert back to overtime pay.
These arrangements would have required agreement in writing by the employer and employee prior to their application, and the act would have imposed severe penalties for any employer attempting to force employees to choose a specific option or denying compensation previously agreed upon.
Unfortunately Washington union bosses objected that the wording of the plan would eliminate the time and a half pay guarantee for overtime and would allow employers to arbitrarily deny overtime pay to covered employees or postpone requested time off for those who chose comp time payment. They also charged that employees dependent on overtime income would be denied the opportunity of earning it.
Efforts at improving the workplace for families are still under way, however. Sens. Judd Gregg (R-N.H.) and Kay Bailey Hutchison (R-Texas) introduced another bill that attempts to meet big labor's objections. Let's hope they're successful. Without reform of the overtime provisions of the FLSA, most women will continue to find it difficult to achieve a balance of career and family.