Order Code RL32901
CRS Report for Congress
Received through the CRS Web
Minimum Wage, Overtime Pay, and Child Labor:
Inventory of Proposals in the 109th Congress
to Amend the Fair Labor Standards Act
May 4, 2005
William G. Whittaker
Specialist in Labor Economics
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress

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Minimum Wage, Overtime Pay, and Child Labor:
Inventory of Proposals in the 109th 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 demands.
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 inflation, 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 new pattern
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 109th Congress, it can be expected that further changes will be urged with
respect to the FLSA — some to increase worker protections and others, arguably, to
allow employers more flexibility by reducing them. This report will be updated to
reflect legislation introduced and/or enacted by the 109th Congress.

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Contents
An Introduction to the FLSA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Action of the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Action Proposed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Overtime Pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Action Proposed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Child Labor Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Action Proposed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
An Inventory of Legislative Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
List of Tables
Table 1. Minimum Wage Proposals of the 109th Congress . . . . . . . . . . . . . . . . . . 6
Table 2. Overtime Pay Proposals of the 109th Congress . . . . . . . . . . . . . . . . . . . . 7
Table 3. Child Labor Proposals of the 109th Congress . . . . . . . . . . . . . . . . . . . . . 8

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Minimum Wage, Overtime Pay, and Child
Labor: Inventory of Proposals in the 109th
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 109th Congress, further changes have been proposed — some to increase
worker protections and others, arguably, to allow employers more flexibility by
reducing them. This report will be updated, periodically, to reflect legislation
introduced and/or enacted by the 109th Congress.
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
(beginning in 1929) was Congress able to forge a comprehensive federal measure that
would withstand judicial review while respecting the differing interests of employers
and workers.
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.
Enforcement (and interpretation) of the FLSA is a shared responsibility. On
occasion, the Congress has been precise about how the act should work. For

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example, it provides a set statutory minimum wage: currently, $5.15 per hour.1 The
minimum wage remains at the statutory level until Congress takes action to alter it.
On the other hand, the Congress (in 1938, but the policy is continuing) mandated that
the minimum wage and overtime pay protections of the act “shall not apply with
respect to ... any employee employed in a bona fide executive, administrative, or
professional capacity ... as such terms are defined and delimited from time to time by
regulations of the Secretary.” Having so stated, the Congress moved on to other
issues — and, very largely, left the defining and delimiting up to the Secretary. (See
section below — “Overtime Pay.”)
In defining the terms of the FLSA and making it applicable to individual
workplaces, the Department has, from time to time, issued opinion letters —
generally stating its perception of what Congress intended. Such letters can be
challenged (and sometimes are), or they can be a catalyst leading to further
congressional action.
The Federal Minimum Wage
The federal minimum wage is set in statute and remains at a fixed rate
(declining in value as price levels continue to rise) 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 treatments) for students, youth, persons with disabilities,
regularly tipped employees, and others. In addition, special consideration for small
businesses has been built into the act. For the most part, each of these sub-minima
is in some measure separate and apart from the general wage rate.2
In 1968, the federal minimum wage reached, in relative terms, its highest value:
$l.60 per hour. Had the rate been indexed to the equivalent or real purchasing power
of the dollar, its value in December 2004 would have been $8.68.3
Action of the 109th Congress
During early spring 2005, the Senate called up for consideration reform of
bankruptcy legislation (S. 256). As floor amendments to that bill, the Senate
considered two minimum wage proposals. (See Table 1.)
On March 3, 2005, Senator Edward Kennedy proposed an amendment (S.Amdt.
44) that would have raised the minimum wage, in steps, to $7.25 an hour beginning
1 The individual states have, often, adopted state minimum wage standards that are in excess
of the federal statute or that cover areas that are not covered by the federal enactment. In
such cases, the state standards, in so far as they are more protective of the worker, normally
take precedent.
2 For consideration of the various sub-minima, see CRS Report RL30993, The Fair Labor
Standards Act: Minimum Wage in the 108th Congress, by William G. Whittaker.
3 CRS Report RS20040, Inflation and the Real Minimum Wage: Fact Sheet, by Brian W.
Cashell.

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24 months (and 60 days) after enactment of the legislation. In addition, the Kennedy
proposal would have applied the federal minimum wage, in steps, to the
Commonwealth of the Northern Mariana Islands.4 The Kennedy proposal was
defeated (46 ayes to 49 nays) on March 7, 2005.5
On March 7, 2005, in connection with the amendments by Senator Kennedy,
Senator Rick Santorum introduced a more far-reaching proposal (S.Amdt. 128). It
would have: (a) raised the minimum wage to $6.25 an hour, in steps, to have full
effect 18 months after enactment; (b) created a program of compensatory time as an
alternative to ordinary overtime pay; (c) created an enhanced small business
exemption; (d) altered the tip credit under the FLSA; and (e) provided a range of
unrelated tax and other incentives for business. The Santorum proposal was defeated
(38 yeas to 61 nays) on March 7, 2005.6
Action Proposed
Senator Debbie Stabenow, on January 24, 2005, introduced S. 14, a composite
infrastructure and jobs bill, part of which would increase the minimum wage to $7.25
an hour 24 months (and 60 days) after enactment. The bill was referred to the
Committee on Finance. (See also Overtime Pay, below.)
Representative Phil English, on March 3, 2005, introduced H.R. 1091, a bill:
(a) to increase the minimum wage, in steps, to $6.50 beginning October 1, 2008, and
increasing the pattern of exemption to eliminate employers with nine or fewer
employees; (b) to allow for an altered small business exemption under the act; and
(c) to provide assorted business incentives unrelated to the minimum wage. The bill
was referred to the Committee on Ways and Means and to the Committee on
Education and the Workforce.
Overtime Pay
In general, the overtime requirements of the FLSA call for a 40-hour workweek
— after which a worker must be compensated at not less than a rate of 1½ times his
or her regular rate of pay. No daily hours standard is provided, allowing for
flexibility within the context of a 40-hour week. However, each week is regarded as
a unit: hours may not be moved from one week to the next. Exceptions under the
4 Congressional Record, Mar. 3, 2005, pp. S1979-S1980. Under the Covenant attaching the
Commonwealth of the Northern Mariana Islands to the United States (1975-1976),
jurisdiction over labor standards was mixed: overtime pay to be governed by the United
States; minimum wage, by the insular government. There may also have been (there appears
to be some dispute about this) an option for the United States to reclaim jurisdiction over
the minimum wage should conditions in the Islands warrant. See CRS Report RL30235,
Minimum Wage in the Territories and Possessions of the United States: Application of the
Fair Labor Standards Act, by William G. Whittaker.
5 Congressional Record, Mar. 7, 2005, p. S2132.
6 Ibid., pp. S2132-S2133.

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act are technical and complex, but allow employers and their employees a variety of
options within the general requirements of the statute. (See Table 2.)
Action Proposed
On March 31, 2003, DOL proposed a restructuring of the executive,
administrative, and professional exemption under the act (29 C.F.R. Part 54l). After
nearly a year of controversy, the new regulations, somewhat altered, went into effect
in late August 2004. Two bills of the 109th Congress propose a reversal of the
Department’s action and, for the future, indexation of the earnings threshold
provision of the act. (a) S. 14, a composite infrastructure and jobs bill, by Senator
Debbie Stabenow and (b) S. 223, more narrowly focused, deals specifically with
overtime pay, by Senator Tom Harkin.7 The Stabenow bill was introduced on
January 24, 2005, and referred to the Committee on Finance. The Harkin bill was
introduced on January 31, 2005, and referred to the Committee on Health, Education,
Labor and Pensions.
Under the premise that (a) there is a shortage of nurses for American hospitals,
(b) that those within the profession are often overworked, and (c) that such overwork
and extended hours of work have caused nurses to seek other (alternative)
professions, several bills have been introduced that would limit or restrict the hours
hospital nurses work.8
Senator Daniel Inouye has proposed S. 71, the Registered Nurse Safe Staffing
Act of 2005,which would “provide for patient protection by establishing minimum
nurse staffing ratios at certain Medicare providers.” Introduced January 24, 2005, the
bill was referred to the Committee on Finance.
Senator Edward Kennedy and Representative Fortney Stark have introduced
bills that would amend the Social Security Act “to provide for patient protection by
limiting the number of mandatory overtime hours a nurse may be required to work”
by certain providers of services under the Medicare program. The Kennedy bill (S.
351) was introduced on February 10, 2005, and referred to the Committee on
Finance. The Stark bill (H.R. 791) was introduced on February 14, 2005, and
referred to the Committee on Energy and Commerce and to the Committee on Ways
and Means.
7 The Department of Labor’s proposal (now in place) carried two provisions. The first was
an increase in the earnings test for exemption. The second part was a duties test: did those
identified as executives, administrators, or professionals actually perform duties befitting
their exempt status. See CRS Report RL32088, The Fair Labor Standards Act: A
Historical Sketch of the Overtime Pay Requirements of Section 13(a)(1), by William
Whittaker, and CRS Report RL30927, The Federal Minimum Wage: the Issue of Indexation,
by Gerald Mayer.
8 The various bills, dealing with nursing, seek to amend the Social Security Act. While each
deals with hours of work, none is directly related to FLSA.

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Child Labor Legislation
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.
Under current federal law,9 jurisdiction is divided between the Congress and the
Secretary of Labor. Congress has enacted very general standards under the FLSA;
but, on occasion, it has also written precise language governing the work of children
and youth.10 On the other hand, the Secretary has reviewed the work experience of
children and youth and has established, inter alia, Hazardous Occupation Orders —
separately for agricultural and for non-agricultural workers: 11 for agricultural
workers; 17, for non-agricultural workers.
If the past is prologue, one can expect to see a number of child labor initiatives
introduced in the 109th Congress. (See Table 3.)
Action Proposed
On March 8, 2005, Representative Mark Foley introduced H.R. 1142, the Child
Modeling Exploitation Prevention Act. The bill deals with the use of children “in the
production of exploitive child modeling,” and related purposes. The bill was referred
to the Committee on Education and the Workforce and to the Committee on the
Judiciary.
An Inventory of Legislative Proposals
In the 109th 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 in more than one table.
9 States have often enacted statutes dealing with child labor. Where there is a conflict
between state and federal laws, the standards more nearly protective of children and youth
workers will normally take precedent.
10 For example, during the summer of 1996, Congress adopted legislation governing the use
of paper bailers and compactors by persons under 18 years of age. Again, in Oct. 1998, the
Congress passed the Drive for Teen Employment Act, addressing whether 16-year-olds
could drive as part of their employment. See CRS Report RL32881, The Department of
Labor’s New Rules for Working Children and Youth, by William Whittaker.

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Table 1. Minimum Wage Proposals of the 109th Congress
(The federal minimum wage is now $5.15 per hour)
Increase
Effective date for
Action
minimum
the final step
beyond
Other
Bill no.
Sponsor
to:
increase
referral
components
S.Amdt. 44
Kennedy
$7.25
To $5.85 on 60th day
Defeated,
CNMI wage
after enactment; to
Mar. 7, 2005,
componenta
$6.55 one year (and
46 yeas to 49
60 days) later; and
nays
$7.25 two years
(and 60 days) later
S.Amdt. 128
Santorum
$6.25
To $5.70 six months
Defeated,
Contains other
after enactment; to
Mar. 7, 2005,
wage, unrelated
$6.25, one year and
38 yeas to 61
industry
six months after
nays
components
enactment
H.R. 1091
English
$6.50
To $5.50, Oct. 1,
—
Amends the small
2006; to $6.00, Oct.
business
1, 2007; and to
exemption; alters
$6.50, on Oct. 1,
the pattern of
2008.
minimum wage
coverage; and
provides assorted
business
incentives
S. 14
Stabenow
$7.25
To $5.85 on 60th day
—
Part of a
after enactment; to
composite
$6.55 one year (and
infrastructure bill
60 days) later; and
$7.25 two years
(and 60 days) later
a. The bill would extend federal minimum wage protection, in steps, to workers in the Commonwealth
of the Northern Mariana Islands (CNMI).

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Table 2. Overtime Pay Proposals of the 109th Congress
Action
beyond
Other
Bill no.
Sponsor
referral
Impact
components
H.R. 791
Stark
—
Limits mandated
—
overtime for nurses
serving Medicare
patients, with other
related provisions
S. 14
Stabenow
—
Would reverse DOL
General
overtime pay
intrastructure
requirements for
bill
executive, administrative,
and professional, inter
alia (a)
S. 71
Inouye
—
Limits mandated
—
overtime for nurses
serving Medicare
patients, with other
related provisions
S. 223
Harkin
—
Would reverse DOL
—
overtime pay
requirements for
executive, administrative,
and professional, inter
aliaa
S. 351
Kennedy
—
Limits mandated
—
overtime for nurses
serving Medicare
patients, with other
related provisions
a. The bill would impose restraints upon DOL’s authority, under Section 13(a)(1), to reduce the duties
requirements for overtime pay exemption, with other elements. For the future, the earnings
threshold of the act would be indexed. See CRS Report RL32088, The Fair Labor Standards
Act: A Historical Sketch of the Overtime Pay Requirements of Section 13(a)(1), by William G.
Whittaker.

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Table 3. Child Labor Proposals of the 109th Congress
Action beyond
Bill no.
Sponsor
referral
Impact
H.R. 1142
Foley
—
To prohibit “exploitive child
modeling” involving persons
under 17 years of age

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