Underwork, Work‐Hour Insecurity, and A New Approach to Wage and Hour Regulation

• Author: Charlotte Alexander,Anna Haley‐Lock
• Published date: 01 October 2015
• DOI: http://doi.org/10.1111/irel.12111
• Date: 01 October 2015

Underwork, Work-Hour Insecurity, and A New

Approach to Wage and Hour Regulation

*

CHARLOTTE ALEXANDER and ANNA HALEY-LOCK

When it was passed in 1938, the Fair Labor Standards Act (FLSA) sought to

address the “evils”of underpay and overwork by establishing an hourly minimum

wage and requiring premium overtime pay. However, today’s low-wage, hourly

workers more often face underwork than overwork, as well as fluctuating, unsta-

ble schedules, neither of which is addressed by the FLSA. This paper presents

and assesses the effectiveness of an alternative approach to wage and hour regula-

tion, the “reporting pay”guarantee. We begin by examining the problem of work-

hour insecurity, particularly employers’practice of sending workers home early

from scheduled shifts. We then move to a detailed assessment of state laws that

require reporting pay, as well as reporting pay guarantees in union contracts and

private-employer practices that attempt to address the problem of work-hour inse-

curity. We conclude by considering paths for strengthening such protections in

law.

Introduction

When Congress enacted the Fair Labor Standards Act (FLSA) in 1938, its

stated goal was to eliminate “labor conditions detrimental to the maintenance

of the minimum standard of living necessary for health, efficiency, and general

well-being of workers”(FLSA, 29 U.S.C. §202). The statute took a twofold

approach to achieving this goal: setting a minimum hourly wage and mandat-

ing premium overtime pay for hours worked over 40 in a workweek.

1

At the

time, this approach made sense. Unemployment was high, but for the workers

who had jobs, work hours were plentiful, even oppressively so, and workers’

*The authors’affiliations are, respectively, Georgia State University: Email: calexander@gsu.edu; University

of Wisconsin–Madison. Email: haleylock@wisc.edu.

The authors are listed alphabetically, and have made equal contributions to the manuscript. The authors wish

to thank Laura Dresser, Francoise Carre, Conrad Ciccotello, and the journal editors and anonymous reviewers

for their input on the manuscript.

1

The FLSA also outlaws retaliation against employees who have asserted their FLSA rights, abolishes

child labor in most circumstances, and establishes record-keeping requirements for employers.

INDUSTRIAL RELATIONS, Vol. 54, No. 4 (October 2015). ©2015 Regents of the University of California

Published by Wiley Periodicals, Inc., 350 Main Street, Malden, MA 02148, USA, and 9600 Garsington

Road, Oxford, OX4 2DQ, UK.

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time was undervalued. Against this backdrop of overwork and underpay, set-

ting a minimum hourly wage rate and disincentivizing the use of exploitatively

long work hours would seem to “spread the work”among more workers and

achieve the minimum standard of living at which the statute was directed

(Miller 2001). The overtime requirement placed appropriate controls on work

hours; the hourly minimum wage, assuming adequate work hours, assured

sufficient take-home pay.

The FLSA remains the main source of wage and hour protection for work-

ers. Though states and localities may set higher minimum wage or overtime

rates, only twenty-three states and the District of Columbia have done so, leav-

ing most American workers covered only by the FLSA’s wage and hour

requirements (National Conference of State Legislatures 2014). In addition,

political advocacy aimed at ending working poverty has adopted the FLSA’s

minimum wage–maximum hours framework. Campaigns to raise the minimum

wage and enact higher “living-wage”ordinances, for example, assert the

importance of the hourly wage in the fight against poverty, using a formula

for calculating employment income that assumes access to 40 hours of work

per week (Universal Living Wage 2013). Worker advocates also condemn the

widespread “misclassification”of workers as exempt from the FLSA’s over-

time guarantee, arguing that these workers are being subject to excessive work

hours without appropriate compensation (National Employment Law Project

2009). Embedded in these efforts is the same assumption that underpins the

FLSA: that workers have access to enough—even too many—hours of work.

It is true that for some contemporary American workers, exploitatively long

work hours remain a key feature of employment. Nurses, for example, are

often forced to accept mandatory overtime or risk losing their jobs (Golden

and Wiens-Tuers 2005). The reality faced by many low-wage jobholders

today, however, is no longer one of overwork, but rather of underwork. As

firms seek to align their labor expenditures closely with customer demand,

they employ a variety of cost-cutting strategies, including replacing permanent

jobs with temporary work; converting full-time to part-time employment; clas-

sifying workers as independent contractors instead of employees; and relying

on “just-in-time”scheduling to make finely tuned adjustments to workers’

hours during the week, day, and even shift (Lambert, Haley-Lock, and Henly

2012; National Employment Law Project 2009). While we acknowledge that

all of these practices may combine to destabilize workers’earned income and

work–life balance, we focus here on just-in-time scheduling, and in particular

on employers’practice of sending workers home before the end of a scheduled

shift in response to slow customer traffic.

Indeed, in today’s low-wage, hourly jobs, early send-homes from work, and

the inadequate, variable, and unpredictable work hours that result, are increas-

696 / CHARLOTTE ALEXANDER AND ANNA HALEY-LOCK