In the last two weeks, I posted Part 1 and Part 2 of this blog series which discussed what women want from the workplace, why many women are leaving the workforce when it does not accommodate their need for flexibility, the desire for businesses to recruit women, and developing business trends and needs requiring flexibility. This final blog will discuss how the Fair Labor Standards Act (FLSA) works against businesses’ being able to provide women with attractive work options, thus hurting women and businesses.
To begin this discussion, let’s talk about the incentives created by the FLSA. You might initially think the FLSA incentivizes its 1938 goals of hiring more people instead of working employees longer hours, and paying them a reasonable minimum wage for the first 40 hours worked. This, however, is far too simplistic, and no longer very true. Many more behaviors, including unintended behaviors, are incentivized by the FLSA. Before discussing those behaviors, let’s get some reactions and emotions out of the way. Like it or not, both employees and businesses are motivated in large part by money. Employees want to maximize their earnings up to the point they conflict with other priorities. How this is achieved varies significantly from hard work and job choice to “working the system.” Businesses, including non-profits, want to maximize cash flow and profits while minimizing expenses, all within the dictates of their priorities. No matter what some may think of these motivations, they are reality, and we must deal with reality. So here are realities regardless of opinions, emotions and reactions.
- Some employees maximize their opportunities for greater income by finding ways (legitimate and not so legitimate) to work over 40 hours to obtain premium overtime pay, including working (or claiming to be working) during break times, not getting work done during scheduled hours, starting work early, leaving work late, and doing work at unapproved times.
- Some employees are very dedicated to their work and would rather mis-represent their time records rather than stop working when directed. For example, I hear about nurses all the time who would rather work through lunch because a patient needs them, no matter how many times they are directed to take a full 30 minutes for lunch. (Employers love the dedication of these employees, but their good intentions can cause havoc from a WH perspective).
- Some employees will misrepresent the time they work when they think no one can verify their time. For example, a common employer and coworker complaint involves employees disappearing for extended periods of time from their work locations while on the clock without a legitimate reason. (Not surprisingly, these employees cause employers to be reluctant to let these employees work by the hour from their home!)
- Many, many employees like the prestige of being “salaried” and not punching a time clock even if they do not receive additional pay for hours over 40. These employees also do not usually get less pay for weeks in which they work less than 40 hours. I have seen countless misclassified employees get very, VERY upset when their employers convert them to non-exempt/hourly status in compliance with the law and make them start recording their time – a very real fact politicians refuse to acknowledge when they advocate for more classes of employees to qualify for overtime.