The Making of the FLSA

by Jack R. Johnson 07.2023

In a recent OxFam survey of member OECD states on worker safety, the U.S. came in dead last (38th out of 38), behind such states as  Turkey, Mexico, Colombia, Costa Rica and Estonia. Presumably, this was because we fail to provide paid sick leave or affordable care for our children, not to mention our comprehensive failure to provide affordable health care to our citizenry. On the 1-to-100 scale measuring the adequacy of worker protections, first-place Germany had a score of 72.91, while 37th-place Estonia’s score was 44.41. Then came the U.S., with “a mind-bogglingly low score of 25.23.”

This shouldn’t come as a surprise when considering the legislative efforts made by Republicans to roll back worker rights and protections across the country in the last few years. Republican Governor Sarah Huckabee Sanders recently signed the “Youth Hiring Act” — a law eliminating Arkansas’ requirement that 14- and 15-year-olds get work permits (despite the ten children Federal officials recently found working illegally in Arkansas for a company that cleans hazardous meatpacking equipment.) In early May of 2023, Republican state lawmakers in Wisconsin circulated a new bill that would allow workers as young as 14 years old to serve alcohol in bars and restaurants. Over the last few months there have been Republican-led bills in states like New Jersey, Ohio, and Iowa aimed at making it easier for teenagers to work in more jobs and for more hours a day. A recent Texas state law, which goes into effect beginning in September, will eliminate local government requirements for mandatory water breaks. In the triple digit heat of a Texas summer, these breaks can be lifesaving. Karla Perez, a city construction worker in Dallas, said that without a water break, “Workers are going to die. There’s no way around it.”

All of these laws seek to whittle away or avoid the federal standards put in place in the United States since 1938 under the umbrella of the Fair Labor Standards Act (FLSA). 

To gain some sense of the FLSA’s impact on the U.S., and ultimately, the world, you have to imagine a time in which millions of children, some as young as five, were forced to work. They toiled in coalmines, glass factories and textile mills, for up to 18 hours a day. Our nation allowed employers to pay workers as little as possible, some less than $1 per day. Often owners would work laborers 12 to 14 hours a day, six days a week—though some, as in the steel industry, worked seven days a week. No days off.

There were no weekends, no minimum wage, and no safety guidelines, much less legal protections against a hazardous work place. But getting the Fair Labor Standards Act passed took decades. Then, as now, the Supreme Court sided with business owners.  For years, whenever state and federal officials passed laws to protect workers, the U.S. Supreme Court struck them down. For instance, the Court declared, in 1905’s Lochner v. New York, that a law establishing a 60-hour workweek was unconstitutional for violating the “sanctity of contract” and “economic liberty.” In Hammer v. Dagenhar in 1918, the justices ruled for a business owner, invalidating a federal child labor law and protecting North Carolina’s right to set its own child labor laws. 

That logic didn’t sit well with the majority of Americans, however. Legendary union radical Mother Jones castigated the insanely long hours and the legality of child labor: “Some day the workers will take possession of your city hall, and when we do, no child will be sacrificed on the altar of profit!” A similar struggle for the eight-hour day lasted most of a century. On May 1, 1886, hundreds of thousands of workers nationwide went on strike for the eight-hour workday. There were riots, most notably the Haymarket rRiot and bombings. Yet, it wasn’t until decades later, during the Great Depression that the Roosevelt administration managed to pass the necessary legislation. In his 1936 re-election campaign FDR declared, “Something has to be done about the elimination of child labor and long hours and starvation wages.” He won in a landslide.

Roosevelt’s Secretary of Labor Frances Perkins, the first woman to serve in a presidential cabinet, led the effort. As early as 1911, after the tragic Triangle Shirtwaist Fire killed 146 textile workers in New York City, Perkins worked with the growing labor movement under the leadership of the AFL-CIO to push for what would become the FLSA.

Resistance to the law was profound. Detractors used exaggeration and scare tactics. The National Association of Manufacturers declared that the FLSA “constitutes a step in the direction of communism, bolshevism, fascism, and Nazism”, but they were on the losing side of the national sentiment, and history. The FSLA was signed into law two years after Roosevelt’s landslide victory.

We tend to take for granted the weekend, an eight-hour work day, minimum wage, and OSHA rules, but the safe guards put in place through bloody strikes and protests years ago can also be whittled away. Indeed, they are being whittled away. Ask OxFam; or better, ask a Texas constructor worker going without a water break this summer.