Fair Labor Standards Act: After 85 Years, Still Working Toward Justice for All

June 25, 2023, marks the 85th anniversary of President Franklin Delano Roosevelt signing the Fair Labor Standards Act (FLSA) into law. This important law established essential worker protections, including a federal minimum wage, overtime pay, and the prohibition of child labor. The FLSA has done much good in its 85 years of existence, but, unfortunately, its reach and impact have been unconscionably limited by a number of exclusions in the law, all of which were based in racism, misogyny, and ableism. It is long past time for Congress to remedy these discriminatory exclusions, and NELP calls on all legislators, advocates, and workers to fight tirelessly to finally fulfill the true promise of the FLSA.

The FLSA has done much good, but its reach has been limited by unjust exclusions of farmworkers, tipped workers, domestic workers, and others. It’s long past time for Congress to remedy these discriminatory exclusions.

The preamble of the FLSA stated that its purpose was to eliminate the conditions that substantially curtailed workers’ employment and earning power, seeking to protect workers. However, instead of lifting all workers, the original language of the FLSA excluded farmworkers, domestic workers, and tipped workers from its core protections—three groups with significant concentrations of people of color then and now, with domestic and tipped workers being disproportionately women.

These exclusions did not accidentally deny Black people and other workers of color the rights and protections given to white workers. Congress intentionally excluded whole categories of workers from vital protections in order to deny Black people the opportunity for economic and social freedom and to preserve a system where employers could profit from racist exploitation. The FLSA, after all, was established at a time when Jim Crow and white supremacist terror were common features of life in the South—and, arguably, throughout much of the nation. The effect was to depress the wages of Black and brown workers, and, by extension, their families and communities. And indeed, the FLSA’s legislative history, including floor speeches, makes it clear that this was precisely the intent of too many legislators who didn’t believe that Black workers should receive the same wages as white workers.

The effects of the FLSA’s racist underpinnings continue to be felt today. Despite being amended in 1966 and 1974 to be more inclusive—the outcome of years of organizing by the Civil Rights, women’s, and labor movements—the FLSA preserved the systemic racism of the original act by continuing to exclude many domestic workers from any wage and hour protections whatsoever; by shutting out agricultural workers from overtime rights; by allowing for a subminimum wage for tipped workers, which today stands at a mere $2.13 per hour under federal law; and by permitting a subminimum wage for young workers and workers with disabilities. The effects are harmful to communities of color, as Black and brown workers continue to comprise large shares of agricultural, domestic, tipped, and young workers.

The protections of the FLSA also fail to reach workers who are incarcerated or in detention centers. As a result, these workers are forced to labor for mere pennies per hour, a form of slavery that is a disgrace to this nation.

Black women picket for unionization, circa 1930s. Photo Credit: International Ladies Garment Workers Union Photographs (1885-1985)/The Kheel Center for Labor-Management Documentation & Archives in the IRL School at Cornell University.

When harms are rooted in racism, misogyny, and ableism, Congress and the entire federal government must address the problem at that root and explore structural, rather than cosmetic, solutions. The policy proposals presented in these blog posts are clear examples of structural action that this Congress can take immediately: Raising the minimum wage to a living wage, phasing out the subminimum wage for tipped workers, eliminating the lower wages allowed for youth and workers with disabilities, extending overtime protections to agricultural workers, and working to ensure that incarcerated and detained workers are fully protected by our nation’s wage and hour laws. Each of these policies will put us on the path toward more equitable and just treatment of the millions of workers who have been excluded from the protections of the FLSA for far too long.

Rebecca Dixon,
President & CEO, NELP

In the guest essays that follow, you will read about the origins and impacts of these exclusions from the FLSA from the perspective of workers and advocates, whose direct experience with the law’s shortcomings serve as a starting point for discussion and action to change it.