Race and the Fair Labor Standards Act: 75 Years Later, Vestiges of Racism Persist


On Tuesday, the Supreme Court struck down key provisions of the Voting Rights Act (VRA), a critical piece of U.S. legislation addressing racial bias at the polls. Tuesday also marked the 75th anniversary of the Fair Labor Standards Act (FLSA), a major piece of New Deal legislation that extended minimum wage and overtime protections to most U.S. workers. Both events, though seemingly unrelated, reflect how Congress and the Supreme Court can perpetuate deep-seated problems of racism in the United States.

As Bryce Covert points out at ThinkProgress, home care workers—people who care for the ill, the elderly, and people with disabilities—are still not considered full participants in the economy. Since its enactment, home care workers have been excluded from the overtime and minimum wage provisions of the FLSA. Former Labor Secretary Hilda Solis, working with domestic workers’ advocates, proposed new regulations last year that would undo this “companionship exemption” and apply federal minimum wage and overtime laws to caregivers.

The new regulations are still being considered by the White House, and it is unclear when or whether they will be approved. Even though then-candidate Barack Obama made it a priority in 2007 to change these regulations, he has thus far not acted. There are some 2.5 million in-home caregivers in the United States, most of them women of color, and two-thirds of whom would be affected by the new rule.

But what explains this exclusion of so many workers who are key to the health and well-being of so many aging and infirm Americans? The debates and passage of the FLSA in 1938 reflect racial motivations of Southern legislators to exclude Black workers. As Loyola law professor Juan Perea has noted, “The hearings and debate on the FLSA reveal direct evidence of intentional discrimination against blacks because of their race.”

In his article, “Echoes of Slavery,” Perea quotes Rep. J. Mark Wilcox of Florida during debates over the FLSA in 1937:

Then there is another matter of great importance in the South, and that is the problem of our Negro labor. There has always been a difference in the wage scale of white and colored labor. So long as Florida people are permitted to handle the matter, this delicate and perplexing problem can be adjusted; But the Federal Government knows no color line and of necessity it cannot make any distinction between the races. We may rest assured, therefore, that … it will prescribe the same wage for the Negro that it prescribes for the white man. … [T]hose of us who know the true situation know that it just will not work in the South. You cannot put the Negro and the white man on the same basis and get away with it. Not only would such a situation result in grave social and racial conflicts but it would also result in throwing the Negro out of employment and in making him a public charge.

Thus the exclusion of home care workers from something as basic as minimum wage and overtime protections today is a vestige of this deep-seated racist mindset. As recently as 2007, the Supreme Court heard the case of Evelyn Coke, a Black single mother of five and a home care worker who earned about $7 an hour and no overtime. Coke sued for overtime, and her case ascended to the Supreme Court, where her claims were finally defeated.

The Court’s handling of the case was narrowly focused on whether the companionship exemption was constitutional and binding. The only, flippant reference to the material impact of the “companionship exemption” on workers occurred during oral argument, when Justice Stephen Breyer mentioned the effect of opening up overtime regulations on the families who employ home care workers:

I live in San Francisco. My mother lives in Massachusetts. Now, if I hire a companion to live in Massachusetts, that companion does not work about a private home of the person, me, by whom she is employed. … And if you win this case, it seems to me suddenly there will be millions of people who will be unable to do it and, hence, millions of sick people who will move to institutions. … It is a very worrisome point.

Justice Breyer’s remarks likely reflect the experience of the justices—none, we can safely assume, have worked as home care workers, and all viewed the case in light of what it means for them, as potential employers of home care workers.

RH Reality Check recently spoke with Craig Becker, the attorney who represented Evelyn Coke in the case. “It is short sighted to think we can supply this service on the backs of workers and not pay them fairly,” Becker said. “I am sympathetic to people who need services particularly people of limited means, but for the long term to think you can satisfy this need by denying basic rights to providers is a failure of social policy.”

In its decision on the VRA, the Supreme Court asserts that Section 2 of the law is out of date and needs to be revised by Congress to reflect “current conditions” in the states. It is unfortunate the Supreme Court did not feel the same way about the FLSA in hearing Evelyn Coke’s case. While a minority of states now cover home care workers within their minimum wage and overtime provisions, it is incumbent on the federal government to ensure that all home care workers are treated equally under the law. Ultimately, if the White House adopts Solis’ new regulations, the decision will not only affect the millions of home care workers; it will also reverse the racist undertones the original FLSA.

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