Minimum Wage, Overtime Pay, and Child Labor: Inventory of Proposals in the 108th Congress to Amend the Fair Labor Standards Act

CRS Report for Congress
Minimum Wage, Overtime Pay, and Child Labor:
th
Inventory of Proposals in the 108 Congress
to Amend the Fair Labor Standards Act
Updated February 9, 2005
William G. Whittaker
Specialist in Labor Economics
Domestic Social Policy Division


Congressional Research Service ˜ The Library of Congress

Minimum Wage, Overtime Pay, and Child Labor:
Inventory of Proposals in the 108th Congress to
Amend the Fair Labor Standards Act
Summary
The Fair Labor Standards Act (FLSA, 29 U.S.C. 201-219) is the basic federal
statute dealing with minimum wages, overtime pay, child labor, and related issues.
Enacted in 1938, it has been modified through the years to take into account changing
workplace trends and to meet new worker and employer concerns.
The act has undergone general amendment on eight separate occasions (1949,
1955, 1961, 1966, 1974, 1977, 1989, and 1996) in addition to numerous more
specific legislated changes. It has also been the subject of continuing administrative
rulemaking by the Department of Labor (DOL) — and has been the focus of
extensive litigation that has impacted the manner in which the act is applied.
The FLSA is divided roughly into three parts corresponding to its subject areas:
minimum wage (Section 6), overtime pay (Section 7), and child labor (Section 12).
These are accompanied by a body of statutory exemptions or exceptions (Section 13).
Definitions appear in Section 3. Other sections deal with administration, penalties,
and related matters.
Nothing in the act requires that Congress revisit the statute. Amendment has
tended to respond to change in the value of the minimum wage. As the level of the
wage floor has eroded through inflationary pressure, Congress has revisited the FLSA
and, while addressing the wage rate, it has also, often, revised coverage patterns and
modified overtime pay and other requirements. Child labor, by and large (but with
exceptions), has been primarily the responsibility of the Secretary of Labor operating
within general guidelines laid down by Congress.
Until recently, legislation to amend the FLSA had been free-standing — the
product of extended hearings. In 1996, that pattern shifted. The 1996 FLSA
amendments were adopted as a floor amendment to a broad proposal dealing with
business and related tax issues. As a result, some have come to view as a tradition
a linkage of labor standards enhancement with sometimes unrelated benefits for
employers. Others argue that there is no inherent reason to tie FLSA amendments
to benefits for employers.
In the 108th Congress, further changes were proposed with respect to the FLSA
— some to increase worker protections and others, arguably, to reduce them. Most
of these proposals have been narrowly focused, reviewing a single aspect of the Act
— though several have been more complex. Only one, dealing with Amish children,
was adopted.



Contents
An Introduction to the FLSA.........................................1
Structure of the Fair Labor Standards Act...........................1
Focus of the Legislative Process..................................2
An Inventory of Legislative Proposals..................................3
List of Tables
Table 1. Minimum Wage Proposals of the 108th Congress..................4th
Table 2. Overtime Pay Proposals of the 108 Congress....................7
Table 3. Child Labor Proposals of the 108th Congress....................10
Table 4. General or Structural Amendment of the Fair Labor
Standards Act, Proposed During the 108th Congress..................11



Minimum Wage, Overtime Pay, and
Child Labor: Inventory of Proposals
th
in the 108 Congress to Amend
the Fair Labor Standards Act
The Fair Labor Standards Act (FLSA, 29 U.S.C. 201-219) is the basic federal
statute dealing with minimum wages, overtime pay, child labor, and related issues.
Almost immediately after its enactment in 1938, various Members of Congress
proposed its amendment to address worker and employer concerns. The act has now
undergone general amendment on eight separate occasions (1949, 1955, 1961, 1966,
1974, 1977, 1989, and 1996) in addition to numerous more specific legislated
changes in the statute. It has also been the subject of continuing administrative
rulemaking by the Department of Labor (DOL).
In the 108th Congress, further changes have been proposed — some to increase
worker protections and others, arguably, to reduce them. Only one bill — that
dealing with Amish children — was adopted. This report provides an overview ofth
legislation proposed during the 108 Congress. For analysis of the issues, consult the
CRS reports listed in the footnotes of this report.
An Introduction to the FLSA
When the federal wage and hour statute (the FLSA) was enacted in 1938, it was
not an especially new concept. Questions about minimum wages, overtime pay, child
labor, and related issues had been a central part of American (and world) labor policy
concerns for at least half a century. But only in the wake of the Great Depression
(1929 ff.) was Congress able to forge a comprehensive federal measure that would
withstand judicial review while respecting the differing interests of employers and
workers.
Structure of the Fair Labor Standards Act
The FLSA is divided roughly into three parts: minimum wage (Section 6),
overtime pay (Section 7), and child labor (Section 12). These are accompanied by
a body of statutory exemptions or exceptions (Section 13). Definitions appear in
Section 3. Other sections deal with administration, penalties, and related matters.
The federal minimum wage is set in statute and remains at a fixed rate (declining
in value over time as a result of inflationary pressures) until changed through
legislative action. Although the general rate is currently $5.15 an hour, there are also
a series of sub-minima (or special treatment) for students, youth, persons with



disabilities, regularly tipped employees, and others. In addition, special treatment for
certain small businesses has been written into the statute.1
In general, the overtime requirements of the act now set 40 hours as the standard
workweek. Thereafter, a worker must be compensated at not less than 1½ times a
worker’s regular rate of pay for hours worked in excess of 40 per week. No daily
hours standard is provided in the act, thus allowing for flexible scheduling within the
40 hour standard. As with the act’s minimum wage requirement, exceptions from the
overtime standard have been built into the statute. These exceptions are technical
and complex but allow employers a variety of options beyond the general
requirements of the act.2
Efforts to restrict or to regulate child labor date from the 19th century. After a
series of federal initiatives uniformly deemed unconstitutional, language dealing with
child labor was incorporated within the original FLSA of 1938. Beyond several
broad and general child labor provisions, the act leaves wide discretion in standard
setting to the Secretary of Labor who exercises that authority through the rulemaking
process. But, periodically, Congress has intervened to deal directly with a particular
aspect of child labor law.3
Focus of the Legislative Process
Because wage/hour and child labor legislation has been on the congressional
agenda, intermittently, through more than six decades, its consideration has
developed along more or less standard lines — but with certain recent variations.
Speaking generally, labor standards laws have been opposed by employers and
supported by workers. Economists can be found of all sides of the issue — with
“little consensus” with respect to impact.4 The arguments, pro and con, voiced
during the first three decades of the 20th century, remain en vogue — little seems to
have changed.
Packaging of wage/hour measures can be critical. From the original Act of 1938
through the 1989 FLSA amendments, such legislation was freestanding. While it
might deal with overtime pay or child labor or minimum wage or immediately related
subjects (singularly or as part of a package), it normally did not include broader tax


1 See CRS Report RL30993, The Fair Labor Standards Act: Minimum Wage in the 108th
Congress, by William G. Whittaker.
2 See CRS Report RL32215, The Fair Labor Standards Act: Overtime Pay Issues in the

108th Congress, by William G. Whittaker.


3 CRS Report RL31501, Child Labor In America: History, Policy and Legislative Issues,
by William G. Whittaker.
4 See Willis J. Nordlund, The Quest for A Living Wage: The History of the Federal
Minimum Wage Program (Westport, Conn.: Greenwood Press, 1997), p. xvii. Nordlund is
referring, here, specifically to the minimum wage — but that same conclusion might
arguably be drawn with respect to overtime pay and to child labor.

or unrelated business matters. However, in 1996 (the 104th Congress), various FLSA
amendments were added to an industry-oriented tax package as a floor amendment.
As the debate over the minimum wage developed in the 106th and 107th
Congresses, the issue of linkage came to be viewed as traditional. Thus, some now
argue that an increase in the minimum wage for workers must be combined with tax
breaks for employers: that the former should not move forward without the latter.
Others argue that there is no reason to tie minimum wage standards (or changes in
overtime pay and child labor policy) to benefits for employers: that they stand
independently as issues of economic justice and worker protection.
Almost every element of the FLSA can be contentious. Each proposed change
can (and often does) bring forth advocates, pro and con, to argue the justice and/or
economic impact of proffered legislation. The approach taken — whether a
freestanding measure or a package (whether of purely labor standards or linked to
business concerns) — can, by offering diverse legislative choices, either create an
incentive for enactment or provide a reason for opposing any action at all. Further,
support for or opposition to labor standards laws has often been philosophical. The
issues, however, are also essentially economic: who wins, who loses, and who pays.
An Inventory of Legislative Proposals
In the 108th Congress, legislative proposals dealing with the minimum wage,
overtime pay, and child labor are taking a variety of forms. The tables that follow
provide a simple overview of the various initiatives, broken down by the three
general categories: minimum wage, overtime pay, and child labor. In some cases,
a particular bill will be listed on more than one table.



Table 1. Minimum Wage Proposals of the 108th Congress
(The federal minimum wage is now $5.15 per hour)
IncreaseEffective dateAction
minimum for the final beyondOther
Bill no.Sponsor to: step increase referral components
H.R. 936Miller,$6.65To $5.90 per hour CNMI minimuma
George60 days afterwage component;
enactment; tomandates a “living
$6.65 1 year laterwage” for workers
engaged in federal
contract work; and
makes certain
changes in TANF
H.R. 965Miller,$6.65To $5.90 per hour CNMI minimuma
George60 days afterwage component
enactment; to
$6.65 one year
later
H.R. 1829Hoekstra Passed HouseProvides system of
Nov. 6, 2003minimum wages for
(H.Rept. 108-inmate workers in the
286); receivedFederal Prisonb
in Senate,Industries program
Nov. 7,
referred to
J udiciary
Committee.
Passed House
on Nov. 6,
2003.
H.R. 1996Wilson,Exempts certain
Joe comp uter-r elated
workers from
minimum wage andc
overtime pay
H.R. 2065Tiberi Exempts employees
who are licensed
funeral directors andd
embalmers
H.R. 2145AndrewsConditions the
minimum wage-
exempt status of
organized camps
upon compliance
with certain safety
sta nd a r d s
H.R. 2263Sessions Exempts employees
engaged in seasonal
sale of fireworks
H.R. 3174Payne Adjusts coordination
of FLSA with Motor
Carrier Act of 1935



IncreaseEffective dateAction
minimum for the final beyondOther
Bill no.Sponsor to: step increase referral components
H.R. 4256Miller,$7.00To $5.85 per hour CNMI minimuma
George60 days afterwage component
enactment; to
$6.45 a year later;
and to $7.00 one
more year later
H.R. 4396DeMint Exempts certain
co nstr uc tio n
engineering and
design professionals
H.R. 5043Bell$7.00To add an — - — -
ind e xa tio n
component
H.R. 5093English$6.50After Oct. 2007 -Provides expensing,
modification of tip
credit, and related tax
ma tter s
S. 20Daschle$6.65To $5.90 per hour CNMI minimuma
60 days afterwage component
enactment; to
$6.65 one year
later
S. 224Daschle$6.65To $5.90 per hourLegislativeCNMI minimuma
60 days afterCalendar No.wage component
enactment; to3: Jan. 29,
$6.65 one year2003
later
S. 237GrahamExempts certain
(SC) co nstr uc tio n
engineering and
design professionals
S. 292GrahamExempts employees
(SC)who are licensed
funeral directors andd
embalmers
S. 448Dodd$6.65To $5.90 per hour CNMI minimuma
60 days afterwage component;
enactment; tomandates a “living
$6.65 one yearwage” for workers
laterengaged in federal
contract work; with
certain changes in
TANF
S. 495GrahamExempts certain
(SC) comp uter-r elated
workers from
minimum wage and c


overtime pay

IncreaseEffective dateAction
minimum for the final beyondOther
Bill no.Sponsor to: step increase referral components
S. 2370Kennedy$7.00To $5.85 per hour CNMI minimuma
60 days afterwage component
enactment; to
$6.45 a year later;
and to $7.00 one
more year later;
Le gislative
Calendar No. 496
H.R. 4,Boxer,$7.00Increases wage inCloture voteCNMI minimuma
S.Amdt.Kennedysteps over 26fails, 51 yeaswage component
2945months from dateto 47 nays(H.R. 4 is welfare
of enactment(Apr. 1, 2004)reform
on H.R. 4reauthorization
legislatio n)
a. Bill would extend federal minimum wage protection, in steps, to workers in the Commonwealth of
the Northern Mariana Islands (CNMI).
b. For background purposes, see CRS Report 96-892, Federal Prison Industries: UNICOR, by
JoAnne OBryant; and 93-895, The Fair Labor Standards Act: Minimum Wage Protection for
Prison Inmate Workers and for non-Prison Labor, by William Whittaker (both archived:
available from the author: 7-7759)
c. Alternative pay standards are established by the act. For general background, see CRS Report
RL30537, Computer Services Personnel: Overtime Pay Under the Fair Labor Standards Act,
by William Whittaker.
d. For general background, see CRS Report RL30697, Funeral Services: The Industry, Its Workforce,
and Labor Standards, by William Whittaker.



Table 2. Overtime Pay Proposals of the 108th Congress
Action beyondOther
Bill no.Sponsor referralImpactcomponents
H.R. 745StarkLimits mandated overtime for
nurses serving Medicare
patients, with other related
provisio ns
H.R. 1119BiggertHearing held;Provides a “comp time” option
reported, H.Rept.for private sector employers
108-127; placed onand their employees
Union Calendar,a
No. 64
H.R. 1996Wilson,Exempts certain computer-
Joerelated workers from minimumb
wage and overtime pay
H.R. 2065Tiberi Exempts employees who are
licensed funeral directors andc
embalmers
H.R. 2263Sessions Exempts employees engaged
in seasonal sale of fireworks
H.R. 2660RegulaPassed House andLanguage limiting DOL optionAppropriations
Senate.on Section 13(a)(1) overtimefor DOL and
See H.R. 2673, P.L. pay rulemaking dropped fromrelated
108-199conference report, passed bydagencies
House and Senate
H.R. 2660,ObeyDefeated in HousePrevents DOL from
H.Amdt.(July 10, 2003)administratively expanding
222overtime pay exemption underd
the FLSA
H.R. 2665King Prevents the DOL from
administratively expanding
overtime pay exemption underd
the FLSA
H.R. 3174Payne Adjusts coordination of FLSA
with Motor Carrier Act of
1935
H.R. 4396DeMint Exempts certain construction
engineering and design
professionals
S. 237GrahamExempts certain constructionMinimum
(SC)engineering and designwage
professionals exemption
S. 292GrahamExempts employees who areMinimum
(SC)licensed funeral directors andcwage
embalmers exemption
S. 317GreggPermits private sector


employers to offer their
employees compensatory time
off and certain work hours
alternatives to cash payment
for overtime

Action beyondOther
Bill no.Sponsor referralImpactcomponents
S. 373KennedyLimits mandated overtime for
nurses serving Medicare
patients, with other related
provisio ns
S. 495GrahamExempts certain computer-
(SC)related workers from minimumb
wage and overtime pay
S. 991InouyeLimits mandated overtime for
nurses serving Medicare
patients, with other related
provisio ns
S. 1485Kennedy Prevents DOL from
administratively expanding the
overtime pay exemption under d
Section 13(a)(1) of the FLSA
S. 1611Specter Provides for a commission to
review overtime pay policy;
freezes DOL administrative
action pending commission
report
H.R. 2660,HarkinApproved by SenatePrevents the DOL from
S.Amdt.(September 10,administratively expanding the
15802003), dropped inovertime pay exemption underd
conferenceSection 13(a)(1) of the FLSA
S. 1637,HarkinOffered March 22,stPrevents the DOL fromBroad
S.Amdt.2004; 1 clotureadministratively expanding thelegislative
2881vote fails, 51 yeas toovertime pay exemption underdpackage
47 nays (March 24,Section 13(a)(1) of the FLSAdealing with
2004); secondtax, trade and
cloture vote fails, 50related matters
yeas to 47 nays
(April 7, 2004).
Bill recommitted
with instructions
(April 8, 2004);
called up, May 2004
and amended;
passed Senate, June
2004; conference on
House bill (H.R.
4520); Harkin
amendment
dropped.
S. 1637,HarkinOffered May 3,Prevents the DOL from


S.Amdt.2004; agreed to byadministratively expanding the
3107Senate, May 4,overtime pay exemption underd
2004: 52 yeas to 47Section 13(a)(1) of the FLSA
nays. [see S. 1637,
above]

Action beyondOther
Bill no.Sponsor referralImpactcomponents
S. 1637,GreggOffered May 4,Lists certain categories of
S.Amdt.2004; agreed to bywork which could be expected
3111Senate, May 4,to be covered by overtime pay
2004: 99 yeas to )protection notwithstanding
nays. [see s. 1637,Section 13(a)(1).
above]
S. 2975HarkinPassed by theWould amend the FLSA to — -
Senateprevent curtailment of Section
13(a)(1) exemptions
a. CRS Report RL31875, Compensatory Time vs. Cash Wages: Amending the Fair Labor Standards
Act, by William Whittaker.
b. CRS Report RL30537, Computer Services Personnel: Overtime Pay Under the Fair Labor
Standards Act, by William Whittaker.
c. CRS Report RL30697, Funeral Services: The Industry, Its Workforce, and Labor Standards, by
William Whittaker.
d. CRS Report RL32088, The Fair Labor Standards Act: A Historical Sketch of the Overtime Pay
Requirements of Section 13(a)(1), by William Whittaker. Restraints upon DOLs authority to
issue a Section 13(a)(1) overtime regulation have been attempted in connection with other
legislation as well — as discussed in the report.



Table 3. Child Labor Proposals of the 108th Congress
Action beyond
Bill no.SponsorreferralImpact
H.R. 756FoleyTo prohibit “exploitive child modeling
involving persons under 17 years of age
H.R. 1943PittsHearing, HousePermits employment of children, 14
Subcommittee onyears of age, in wood processing plants
Workfo rce
P r o tectio ns,
October 8, 2003.
See H.R. 2673
H.R. 3139Lantos Comprehensive restructuring of FLSA
child labor requirements; adds
prohibition on youth peddling; modifies
coverage with respect to youth who
work in agriculture
H.R. 2673BonillaOmnibusSubstance of H.R. 1943 and S. 974
Appropriationsincluded in H.R. 2673: permits Amish
Conferenceyouth, over age 14, to be employed in
Report,certain wood processing plants (H.R.
P.L. 108-1992673 provides appropriations for DOL,
inter alia)
H.R. 4190Markey Requires the Secretary of Labor to
declare operation of power driven
amusement park rides hazardous for
persons under 18 years of age
S. 404BunningTo prohibit “exploitive child modeling”
involving persons under 17 years of age
S. 974SpecterSee H.R. 2673Permits employment of children, over
the age of 14 years, in wood processing
plants



Table 4. General or Structural Amendment of the Fair Labor
Standards Act, Proposed During the 108th Congress
Actio n
beyond
Bill no.Sponsor referralImpact
H.R. 2516Ballenger To amend Section 3(f) to include Christmas tree
farming within the definition of agriculture
S. 2088Kennedy To amend Section 16 of the FLSA to waive state
sovereign immunity with respect to enforcement
of wage/hour and related labor standards under
the act