By JODI SOKOLOWSKI
Buffalo Law Journal

Since the Fair Labor Standards Act was signed in 1938, the law, which established a minimum wage and guaranteed overtime pay in certain instances, has continually evolved to keep up with the current social, political and economic climate.

Those amendments are about "trying to strike the right balance of increasing the minimum wage, but not so much that you damage the economy and stifle job growth, protecting the inherent dignity of workers and paying them what they're worth," said Paul DeCamp, a partner in Jackson Lewis LLP's Washington, D.C., office and national co-chair of the firm's wage and hour practice group.

DeCamp has his finger on the national labor pulse; he's a former administrator of the U.S. Department of Labor's Wage and Hour Division, which interprets and enforces the FLSA, the Family and Medical Leave Act and many others.

He said that while the FLSA gets revised occasionally, it will never get repealed because there will never be enough consensus across the political aisle or between labor and business groups.

"The political fight gets played out year after year, but the result is somewhere in the middle," DeCamp said. "It has to be done with care, but it's a balancing (act)."

Not enough?

Buffalo-based Nixon Peabody LLP partner Mark Molloy, who represents employers, believes the amendments haven't kept up enough with the "realities of present-day business."

"It started in the Depression, when there was fear among the nation that employers would take advantage of economic problems," he said. "(The act) passed during a time when it served its purpose."

Robert Boreanaz, a senior partner at the Buffalo firm Lipsitz Green Scime Cambria LLP who represents worker interests, said the goal of the FLSA - the last act of Franklin Roosevelt's New Deal - was to provide shorter workweeks, thereby maximizing employees' hours at work.

"The thought was that it would advance society's quality of life by protecting health and safety and reducing worker injuries and fatigue," he said. "It would benefit the community by reducing labor strikes and provide more time for employees to be at home or in the community."

But the gradual increases in minimum wage have not kept up with inflation, Boreanaz said, and Americans are working longer hours than workers in most industrialized nations.

"The intent was to have less work, but we have created so many exemptions to the statute and people are working so much longer than at the start of the act that the impact has been diluted," he said.

For example, the 2007 amendment to increase the minimum wage to $7.25 continues to be controversial, and President Bush may veto the last two stages of increases.

The regulatory seesaw

That most recent amendment is probably the last change the act will see for years to come, say labor and employment attorneys.

"I don't see any more amendments on the horizon," Molloy said. "I doubt we'll see more changes in the near future."

Still, sources say, the 70th anniversary of the act should remind employers that they need to be more vigilant in complying with its statutes.

"The pressure has already been there, but employers are making sure there are no technical violations that would expose them to a possible employee claim," Molloy said.

A "new wave" of class-action lawsuits from employees claiming they're not being compensated for overtime or working through meal and rest breaks - perhaps when an hourly employee eats lunch at his or her desk or takes a fraction of an allotted half-hour break - is prompting employers to make sure workers are taking breaks or to pay them for break time.

That's a smart course for employers, who may not be aware that workers are not taking their breaks, Molloy said - particularly when plaintiffs' law firms are actively recruiting class-action participants.

The political atmosphere in Western New York supports worker rights, lawyers say.

"Despite 70 years of the law being in existence, you'd be absolutely shocked about how many calls I receive and the Department of Labor receives (about) violations of simple minimum wage and hour violations. It's amazing," Boreanaz said.

That may be so because in a depressed region, and with a national recession predicted, employers have an advantage, he explained.

"There's a workforce that's desperate and will tolerate to some degree minor violations. And employers know that," Boreanaz said.

Labor unions are fighting hard to attract members now so that when the economy rebounds and that seesaw balances, they'll stand to gain.

Employees are becoming less satisfied with what employers are doing, and employers are responding by providing benefits to attract quality employees, Boreanaz said.

"The pendulum is swinging in the other direction," he said.

The outcome of this year's presidential elected will be the determining factor in what comes next.

"If the Democrats win, you can count on a pretty significant upturn in legislation and employee progress," Boreanaz said. "If not, things will stay in the status quo, where employers have the upper hand."