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

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

Order Code RL32353
CRS Report for Congress
Received through the CRS Web
Minimum Wage, Overtime Pay, and Child Labor:
Inventory of Proposals in the 108th 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 . . . . . . . . . . . . . . . . . . 4
Table 2. Overtime Pay Proposals of the 108th 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
in the 108th 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 of
legislation proposed during the 108th 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

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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.

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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.

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Table 1. Minimum Wage Proposals of the 108th Congress
(The federal minimum wage is now $5.15 per hour)
Increase
Effective date
Action
minimum
for the final
beyond
Other
Bill no.
Sponsor
to:
step increase
referral
components
H.R. 936
Miller,
$6.65
To $5.90 per hour
—
CNMI minimum
George
60 days after
wage componenta;
enactment; to
mandates a “living
$6.65 1 year later
wage” for workers
engaged in federal
contract work; and
makes certain
changes in TANF
H.R. 965
Miller,
$6.65
To $5.90 per hour
—
CNMI minimum
George
60 days after
wage componenta
enactment; to
$6.65 one year
later
H.R. 1829
Hoekstra
—
—
Passed House
Provides system of
Nov. 6, 2003
minimum wages for
(H.Rept. 108-
inmate workers in the
286); received
Federal Prison
in Senate,
Industries programb
Nov. 7,
referred to
Judiciary
Committee.
Passed House
on Nov. 6,
2003.
H.R. 1996
Wilson,
—
—
—
Exempts certain
Joe
computer-related
workers from
minimum wage and
overtime payc
H.R. 2065
Tiberi
—
—
—
Exempts employees
who are licensed
funeral directors and
embalmersd
H.R. 2145
Andrews
—
—
—
Conditions the
minimum wage-
exempt status of
organized camps
upon compliance
with certain safety
standards
H.R. 2263
Sessions
—
—
—
Exempts employees
engaged in seasonal
sale of fireworks
H.R. 3174
Payne
—
—
—
Adjusts coordination
of FLSA with Motor
Carrier Act of 1935

CRS-5
Increase
Effective date
Action
minimum
for the final
beyond
Other
Bill no.
Sponsor
to:
step increase
referral
components
H.R. 4256
Miller,
$7.00
To $5.85 per hour
—
CNMI minimum
George
60 days after
wage componenta
enactment; to
$6.45 a year later;
and to $7.00 one
more year later
H.R. 4396
DeMint
—
—
—
Exempts certain
construction
engineering and
design professionals
H.R. 5043
Bell
$7.00
To add an
— -
— -
indexation
component
H.R. 5093
English
$6.50
After Oct. 2007
— -
Provides expensing,
modification of tip
credit, and related tax
matters
S. 20
Daschle
$6.65
To $5.90 per hour
—
CNMI minimum
60 days after
wage componenta
enactment; to
$6.65 one year
later
S. 224
Daschle
$6.65
To $5.90 per hour
Legislative
CNMI minimum
60 days after
Calendar No.
wage componenta
enactment; to
3: Jan. 29,
$6.65 one year
2003
later
S. 237
Graham
—
—
—
Exempts certain
(SC)
construction
engineering and
design professionals
S. 292
Graham
—
—
—
Exempts employees
(SC)
who are licensed
funeral directors and
embalmersd
S. 448
Dodd
$6.65
To $5.90 per hour
—
CNMI minimum
60 days after
wage componenta;
enactment; to
mandates a “living
$6.65 one year
wage” for workers
later
engaged in federal
contract work; with
certain changes in
TANF
S. 495
Graham
—
—
—
Exempts certain
(SC)
computer-related
workers from
minimum wage and
overtime payc

CRS-6
Increase
Effective date
Action
minimum
for the final
beyond
Other
Bill no.
Sponsor
to:
step increase
referral
components
S. 2370
Kennedy
$7.00
To $5.85 per hour
—
CNMI minimum
60 days after
wage componenta
enactment; to
$6.45 a year later;
and to $7.00 one
more year later;
Legislative
Calendar No. 496
H.R. 4,
Boxer,
$7.00
Increases wage in
Cloture vote
CNMI minimum
S.Amdt.
Kennedy
steps over 26
fails, 51 yeas
wage componenta
2945
months from date
to 47 nays
(H.R. 4 is welfare
of enactment
(Apr. 1, 2004)
reform
on H.R. 4
reauthorization
legislation)
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 O’Bryant; 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.

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Table 2. Overtime Pay Proposals of the 108th Congress
Action beyond
Other
Bill no.
Sponsor
referral
Impact
components
H.R. 745
Stark
—
Limits mandated overtime for
—
nurses serving Medicare
patients, with other related
provisions
H.R. 1119
Biggert
Hearing held;
Provides a “comp time” option
—
reported, H.Rept.
for private sector employers
108-127; placed on
and their employees
Union Calendar,
No. 64a
H.R. 1996
Wilson,
—
Exempts certain computer-
—
Joe
related workers from minimum
wage and overtime payb
H.R. 2065
Tiberi
—
Exempts employees who are
—
licensed funeral directors and
embalmersc
H.R. 2263
Sessions
—
Exempts employees engaged
—
in seasonal sale of fireworks
H.R. 2660
Regula
Passed House and
Language limiting DOL option Appropriations
Senate.
on Section 13(a)(1) overtime
for DOL and
See H.R. 2673, P.L.
pay rulemaking dropped from
related
108-199
conference report, passed by
agencies
House and Senated
H.R. 2660,
Obey
Defeated in House
Prevents DOL from
—
H.Amdt.
(July 10, 2003)
administratively expanding
222
overtime pay exemption under
the FLSAd
H.R. 2665
King
—
Prevents the DOL from
—
administratively expanding
overtime pay exemption under
the FLSAd
H.R. 3174
Payne
—
Adjusts coordination of FLSA
—
with Motor Carrier Act of
1935
H.R. 4396
DeMint
—
Exempts certain construction
—
engineering and design
professionals
S. 237
Graham
—
Exempts certain construction
Minimum
(SC)
engineering and design
wage
professionals
exemption
S. 292
Graham
—
Exempts employees who are
Minimum
(SC)
licensed funeral directors and
wage
embalmersc
exemption
S. 317
Gregg
—
Permits private sector
—
employers to offer their
employees compensatory time
off and certain work hours
alternatives to cash payment
for overtime

CRS-8
Action beyond
Other
Bill no.
Sponsor
referral
Impact
components
S. 373
Kennedy
—
Limits mandated overtime for
—
nurses serving Medicare
patients, with other related
provisions
S. 495
Graham
—
Exempts certain computer-
—
(SC)
related workers from minimum
wage and overtime payb
S. 991
Inouye
—
Limits mandated overtime for
—
nurses serving Medicare
patients, with other related
provisions
S. 1485
Kennedy
—
Prevents DOL from
—
administratively expanding the
overtime pay exemption under
Section 13(a)(1) of the FLSAd
S. 1611
Specter
—
Provides for a commission to
—
review overtime pay policy;
freezes DOL administrative
action pending commission
report
H.R. 2660,
Harkin
Approved by Senate
Prevents the DOL from
—
S.Amdt.
(September 10,
administratively expanding the
1580
2003), dropped in
overtime pay exemption under
conference
Section 13(a)(1) of the FLSAd
S. 1637,
Harkin
Offered March 22,
Prevents the DOL from
Broad
S.Amdt.
2004; 1st cloture
administratively expanding the
legislative
2881
vote fails, 51 yeas to
overtime pay exemption under
package
47 nays (March 24,
Section 13(a)(1) of the FLSAd
dealing with
2004); second
tax, trade and
cloture vote fails, 50
related 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,
Harkin
Offered May 3,
Prevents the DOL from
—
S.Amdt.
2004; agreed to by
administratively expanding the
3107
Senate, May 4,
overtime pay exemption under
2004: 52 yeas to 47
Section 13(a)(1) of the FLSAd
nays. [see S. 1637,
above]

CRS-9
Action beyond
Other
Bill no.
Sponsor
referral
Impact
components
S. 1637,
Gregg
Offered May 4,
Lists certain categories of
—
S.Amdt.
2004; agreed to by
work which could be expected
3111
Senate, May 4,
to be covered by overtime pay
2004: 99 yeas to )
protection notwithstanding
nays. [see s. 1637,
Section 13(a)(1).
above]
S. 2975
Harkin
Passed by the
Would amend the FLSA to
— -
Senate
prevent 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 DOL’s 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.

CRS-10
Table 3. Child Labor Proposals of the 108th Congress
Action beyond
Bill no.
Sponsor
referral
Impact
H.R. 756
Foley
—
To prohibit “exploitive child modeling”
involving persons under 17 years of age
H.R. 1943
Pitts
Hearing, House
Permits employment of children, 14
Subcommittee on
years of age, in wood processing plants
Workforce
Protections,
October 8, 2003.
See H.R. 2673
H.R. 3139
Lantos
—
Comprehensive restructuring of FLSA
child labor requirements; adds
prohibition on youth peddling; modifies
coverage with respect to youth who
work in agriculture
H.R. 2673
Bonilla
Omnibus
Substance of H.R. 1943 and S. 974
Appropriations
included in H.R. 2673: permits Amish
Conference
youth, over age 14, to be employed in
Report,
certain wood processing plants (H.R.
P.L. 108-199
2673 provides appropriations for DOL,
inter alia)
H.R. 4190
Markey
—
Requires the Secretary of Labor to
declare operation of power driven
amusement park rides hazardous for
persons under 18 years of age
S. 404
Bunning
—
To prohibit “exploitive child modeling”
involving persons under 17 years of age
S. 974
Specter
See H.R. 2673
Permits employment of children, over
the age of 14 years, in wood processing
plants

CRS-11
Table 4. General or Structural Amendment of the Fair Labor
Standards Act, Proposed During the 108th Congress
Action
beyond
Bill no.
Sponsor
referral
Impact
H.R. 2516
Ballenger
—
To amend Section 3(f) to include Christmas tree
farming within the definition of agriculture
S. 2088
Kennedy
—
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