Following in the Footsteps of Fair Pay: The Case for Exempt 'Time Transparency' and the Mandatory Disclosure of White-Collar Work Hours

• Author: Jennifer Haskinwill
• Position: Assistant Professor of Legal Studies at Hamline University in St. Paul, Minnesota
• Pages: 671-712

Following in the Footsteps of Fair Pay: The Case for

Exempt “Time Transparency”and the Mandatory

Disclosure of White-Collar Work Hours

JENNIFER HASKIN WILL*

ABSTRACT

Demanding schedules are increasingly the norm for salaried office workers

in the United States today, and there is no legal limit to their workweeks. The

federal Fair Labor Standards Act of 1938 (“FLSA”) is the nation’s primary

legislation governing wages and working hours, but it does not require overtime

pay for all employees. Instead, several categories of employees are exempt from

the FLSA’s minimum wage and overtime protections, including certain executive,

professional, and administrative employees, colloquially known as “white-collar”

workers. Without overtime protections, white-collar workers are vulnerable to

mounting workweeks. Despite repeated calls for reform, including specific pro-

posals to rein in working hours for exempt employees, the FLSA has remained

largely the same for over eighty years. But amending the FLSA to impose maxi-

mum hours or overtime protections may not be the best solution. The very fact that

such proposals have repeatedly failed to gain traction in the past suggests that

opposing concerns may be valid and that sweeping reforms may not be viable.

This Article suggests that we should consider new forms of reform instead.

Specifically, we should follow the lead of pay-equity advocates who have

responded to the inadequacies of the Equal Pay Act and Title VII by proposing

pay transparency regulation as a means of informing and empowering employ-

ees and prompting employers to correct gender pay disparities on their own ini-

tiative, even in the absence of litigation. In a similar vein, this Article suggests

that instead of revising the FLSA to limit hours, the more effective, less intrusive

path to shorter workweeks for exempt white-collar workers may be as simple as

requiring employers to disclose the hours that their white-collar workers

actually work. Requiring employers to compile and disclose working hours

could put downward pressure on long workweeks as employers compete in the

marketplace to recruit and retain talent and maintain their reputations. This

Article is the first to argue that for all the same reasons that pay transparency

proposals promise to close a gender pay gap that has persisted for decades,

exempt “time transparency”is better suited to produce more reasonable work-

weeks than command-and-control legislation regarding maximum hours and

overtime.

* Jennifer Haskin Will is an Assistant Professor of Legal Studies at Hamline University in St. Paul,

Minnesota. ©2022, Jennifer Haskin Will.

671

TABLE OF CONTENTS

I. INTRODUCTION................ ........................ 673

II. THE CASE AGAINST MAXIMUM-HOURS LEGISLATION AND

OVERTIME PAY FOR EXEMPT WHITE-COLLAR WORKERS ........ 676

A. Repeated Proposals to Limit Work Hours and Expand

Overtime Protections Have Failed to Come to Fruition for a

Variety of Valid Reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . 677

B. Even If Overtime Reform Were Likely, It May Not Be Helpful . 681

III. THE CASE FOR MANDATORY DISCLOSURE OF EXEMPT WORKING

HOURS..... ......................................... 684

A. Just the Start: The Early Case for Workplace Transparency

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 684

B. A Model to Consider: Arguments in Favor of Pay

Transparency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 686

1. Command-and-Control Statutes Such as the Equal Pay

Act and Title VII Have Made Slow Progress, at Best, in

Closing the Gender Pay Gap . . . . . . . . . . . . . . . . . . . . . . 687

2. Pay Transparency Promises To Be Much More Effective

in Closing the Gender Pay Gap . . . . . . . . . . . . . . . . . . . . 689

3. Pay Transparency Stands to be Even More Effective in

the Face of Shifting Social Norms. . . . . . . . . . . . . . . . . . 692

C. A New Application of Transparency Regulation: The Unique

Case for Time Transparency . . . . . . . . . . . . . . . . . . . . . . . . . 693

1. Distinct Attributes of the Information Deficits Facing

White-CollarWorkers.......................... 694

2. Distinct Qualities Characterizing the Problem of Exempt

Overwork . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 697

IV. A PRELIMINARY SKETCH OF PROPOSED DISCLOSURE OBLIGATIONS

AND ENFORCEMENT MECHANISMS FOR TIME TRANSPARENCY ..... 700

A. Skepticism Regarding Confidentiality and Cost Is

Unwarranted and Could Be Addressed by Adjusting the Scope

of Required Disclosures in Any Event. . . . . . . . . . . . . . . . . . . 700

1. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701

2. Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702

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B. Neither the Recordkeeping Regulations of the FLSA Nor the

Proposed Federal Paycheck Fairness Act Serves as a Ready

Vehicle for Exempt Time Transparency . . . . . . . . . . . . . . . . . 704

1. The Recordkeeping Requirements of the FLSA. . . . . . . . 704

2. The Proposed Federal Paycheck Fairness Act . . . . . . . . . 706

C. Any Proposed Time Transparency Legislation Should Require

Disclosures Sufficient to Shape Employer and Employee

Behavior Without Undue Burden on Business Operations. . . . 709

D. As With All New Ideas, Many Questions Remain . . . . . . . . . . 712

I. INTRODUCTION

Oppressive work hours are the norm for many salaried office workers in the

United States today, and there is no legal limit to their workweeks. The federal

Fair Labor Standards Act of 1938 (“FLSA”) is the nation’s primary legislation

governing wages and working hours,

1

but it does not require overtime pay for all

employees. Instead, several categories of employeesare exempt from the FLSA’s

minimum wage and overtime protections,

2

including certain executive, professio-

nal, and administrative employees,

3

colloquially known as “white-collar”work-

ers.

4

Without overtime protections, white-collar workers are vulnerable to

mounting workweeks, exacerbated by technologies that extend the digital work-

day.

5

Despite repeated calls for reform, including specific proposals to rein in

working hours for exempt employees, the FLSA has remained largely the same

for decades.

6

When it comes to white-collar working hours, political gridlock has

led to an FLSA stalemate. White-collar workers are on overload, and there is no

end in sight.

1. 29 U.S.C. §§ 201–219.

2. See 29 U.S.C. § 213(a).

3. 29 U.S.C. § 213(a)(1).

4. The United States Department of Labor has more recently referred to exemptions in Section

213(a)(1) as the “EAP”—executive, administrative, and professional—exemptions. See Defining and

Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer

Employees, 84 Fed. Reg. 51230, 51230 (Sept. 27, 2019) [hereinafter Defining and Delimiting](“Section

13(a)(1) of the FLSA, commonly referred to as the ‘white collar’ or ‘EAP’ exemption, exempts from

these minimum wage and overtime pay requirements ‘any employee employed in a bona fide executive,

administrative, or professional capacity.’”). However, given the prevalence of the term “white collar”in

the case law and scholarly commentary regarding theexemption, and its popular useby the media and the

public, this Article uses the term “white collar”to apply to executive, administrative, and professional

employeesthroughout.

5. See generally ERIN L. KELLY &PHYLLIS MOEN,OVERLOAD:HOW GOOD JOBS WENT BAD AND

WHAT WECAN DOABOUT IT(2021).

6. See Elizabeth Tippet et al., When Timekeeping Software Undermines Compliance,19Y

ALE J.L. &

TECH. 1, 9 (2017) (“It is worth pausing here for effect: the main law regulating work hours and pay for

most employees in the United States has remained unchanged since before the Second World War.”).

2022] TIME TRANSPARENCY &WHITE-COLLAR WORK HOURS 673