Aug 15, 2011
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Zapping the Fair Labor Standards Act

There’s a super-sized question floating around L&E blawgs right now, posed by Walter Olson at Overlawyered.com, that goes something like this:

If you could press a button and instantly vaporize one sector of employment law, what would it be?

Walter, in an article on Reason.com about promoting job growth, picked age discrimination. I, for one, want to be on Jon Hyman‘s superhero team.

Jon picked the Fair Labor Standards Act.

Jon’s reason was that it is essentially actually impossible to be in full compliance with the hedge-maze of regulations set up under the FLSA. He’s right, of course, but like all superheroes, my reasons for doing away with our shared nemesis are my own.

I think the FLSA is one of the most outdated laws in the Federal Lexicon. It’s not surprising. By my count, the way Americans think of work has fundamentally shifted at least three times since I was born. The FLSA – a law whose sole purpose is to protect the American workforce – is almost 80 years old. That’s where all those byzantine regulations came from. Some really smart businessperson came up with a new way to interact with their employees1, and the FLSA people2 had to figure out what the FLSA said about whatever that novel idea was. So they jury rigged the old law to fit the new system of work – cramming workers into classifications that didn’t really fit.  Multiply that by every innovative workforce procedure for the past 80 years, and you can understand why employers feel so squeezed.

Now, we’ve got news articles and pundits galore telling us that the future is an independent workforce – full of freelancers and mobile offices and microdistributors – and we’re still going to try and use this 1930′s regulatory model? That is a crisis that needs heroes.

Now where did I leave that spandex?

Footnotes:
  1. you know, like, intra-office telephones []
  2. that means the DOL []

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