The Fair Labor Standards Act at 80: Everything Old Is New Again

On the eightieth anniversary of the federal wage and hour statute, the Fair Labor Standards Act of 1938 (FLSA), critics warn that it cannot keep pace with shifting business trends. More and more individuals engage in "contract work," some of which takes place in the much publicized "gig economy." These work arrangements raise questions about whether these workers are "employees," covered by U.S. labor and employment law, or "independent contractors." Subcontracting arrangements, or what some call domestic outsourcing, are also expanding. Indeed, more and more workers in the U.S. economy engage with multiple businesses, raising questions of which of these businesses are "employers" responsible for the payment of wages. These are pressing questions for the judiciary, policymakers, scholars of work, and the U.S. Department of Labor because many of these individuals work in low-wage sectors and do not make minimum wages or overtime premiums for the hours they work.

This Article uses a systematic study of thousands of pages of legislative-history documents to bring a historical lens to the independent contractor and joint employer debates that are raging on Capitol Hill and in the courts. It concludes that Congress broadly and flexibly worded this New Deal legislation with foresight about the need to cover evolving business relationships regardless of business formalities. It calls for a narrow reading of the independent contractor category and a broad interpretation of employment relationships that should help the FLSA to serve its statutory purpose of ensuring "a fair day's pay for a fair day's work" in the twenty-first century.