But the law is now seen in a broader context — one that does not diminish its accomplishments, but addresses its exclusions. To secure the votes needed to pass the bill, Roosevelt agreed to certain exemptions for farmworkers, domestic workers and others that led to generational financial injury for Black and Brown people.
“By excluding jobs held by Black and Brown workers from basic worker protections, the FLSA inserted institutional racism into federal wage and hour law,” Rep. Alma Adams (D-N.C.), chairwoman of the House Education and Labor subcommittee on workforce protections, said at a hearing last month. “Today, farmworkers still do not have overtime protections. Live-in domestic workers still do not have overtime protections. And tipped workers are still not guaranteed the full federal minimum wage.”
Democrats hope to correct those situations with three bills facing Republican opposition. Each was previously sponsored or co-sponsored by Vice President Harris when she was a senator.
●The Fairness for Farm Workers Act, sponsored by Rep. Raúl M. Grijalva (D-Ariz.), was reintroduced last month and would phase out the FLSA overtime exemption for agricultural workers.
●The Raise the Wage Act, sponsored by full committee Chairman Robert C. “Bobby” Scott (D-Va.), would gradually eliminate sub-minimum wages for tipped workers. The House approved it in February as part of the American Rescue Plan, but it was stripped out by the Senate parliamentarian.
●The Domestic Workers Bill of Rights Act, sponsored by Rep. Pramila Jayapal (D-Wash.), would eliminate the overtime exemption for live-in domestic workers. It will be reintroduced this summer.
President Biden backs all three bills. His administration’s support for the Domestic Workers Bill of Rights was emphasized by Labor Secretary Marty Walsh at Wednesday’s full committee hearing. After reciting statistics indicating more than two-thirds of domestic workers are Black, Brown or Asian, Walsh told Jayapal “you have my support. I will do what we can. This is an important piece of legislation.”
Republicans registered their opposition, however, saying the measures would create burdensome regulations.
“Unfortunately, the misguided proposals before us today fail to address the needs of the modern workforce and will ultimately harm the very individuals my colleagues on the other side of the aisle claim to help,” Rep. Frederick B. Keller (Pa.), the subcommittee’s top Republican, said at the May hearing.
He said he agreed the FLSA needs updating but added “a radical mandated wage policy and one-size-fits-all regulations will lead to fewer employment opportunities, less economic freedom, restricted hours for workers and more aggressive use of automation, all while threatening our economic recovery from covid-19.”
While no one at the hearing denied that racist compromises were needed to win Southern Democrats’ votes in 1938 for the original FLSA, Republicans scoffed at today’s Democrats for raising the issue, saying they were playing politics.
“It’s sad to see,” said Rep. Bob Good (R-Va.), “Democrats once again framing every issue in terms of race, seeking to further divide our nation, perpetuate a false narrative and further portray a victimhood mentality.”
Taking no position on “what is and is not racist,” a former Republican presidential appointee, Paul DeCamp, testified the law originally provided “protections only to workers personally engaged in interstate commerce.” He was administrator of the Labor Department’s Wage and Hour Division, which enforces the FLSA, under President George W. Bush.
The law’s exclusions were not racist in name, but in design, implementation and impact.
The maids, caretakers and nannies “were largely women, largely women of color,” Jayapal said in an interview Wednesday. “That meant that the laws, as they were written, were inherently racist. . . . This exclusion was not accidental. It was intentional.”
When the law was originally considered, “Congress used sectors of work dominated by Black workers and other workers of color, including farm labor, tipped and domestic work as a proxy for race, in order to exclude Black workers in particular from the FLSA’s protections,” Rebecca Dixon, executive director of the National Employment Law Project, told the subcommittee.
Adams acknowledged “there’s been important progress” under the law but said “some racist FLSA exclusions are still on the books and continue to prevent people of color who remain overrepresented in these jobs from getting the pay they deserve.”
“We cannot build a more equitable future for this country without first confronting the active legacy of slavery throughout our institutions,” she added, “and recognizing the federal government’s continued role in perpetuating racial discrimination.”