Yesterday, the Congressional Education and the Workforce Subcommittee on Workforce Protections heard suggestions on how the FLSA can and should be modernized to better reflect the realities of the 21st Century Workforce. The following summarizes the suggestions made by business and employer representatives on how the FLSA should be modernized:
- Update the computer professional exemption by broadening the exempt computer-related duties such as securing, updating, maintaining and testing existing applications even if the duties do not include modifying the programming code.
- Clarify the rule of what constitutes “de minimus” time that need not be compensated in the context of insignificant IT-related activities such as remotely checking e-mail, calendar and voice mails or checking a schedule change using PDA devices.
- Expand the exemption for highly compensated commissioned inside sales people. Changes in technology and customer purchasing habits make a distinction between inside and outside sales representatives is artificial and outdated.
- Remove disincentives for performance based bonuses by permitting employers to exclude performance-based bonuses from the regular rate of pay.
- Allow for the preemption of state and local wage and hour laws or create a safe harbor for multistate employers operating in compliance with the FLSA.
- Better define what constitutes “work” to account for the modern world where employees have 24 hour access to e-mail and their company’s computer systems through remote devices like PDA’s, laptops or remote computer access.
- Provide more clarity, predictability and consistency in being able to determine whether a particular employee qualifies for the white collar exemption.
While these are all good, needed changes to the FLSA to update and modernize it, the proposed changes are unlikely to occur overnight and there are unlikely to be meaning changes proposed by the business community until there is a change in the administration. You can access a full webcast of yesterday’s hearing here and the printed remarks of the witnesses here.
Congressional Subcommittee to Examine the Effect of the FLSA and the Modern Workforce
Congressional Hearing Examines Problems with Fair Labor Standards Act