On March 25, the House of Representatives Subcommittee on Workforce Protections held a hearing on “Critical Reforms to Modernize Labor Law in the United States of America.” The hearing’s goal: to find bipartisan solutions to revise and amend the Fair Labor Standard Act (FLSA) of 1938.
Chairman Ryan McKenzie (R-PA) opened the hearing:
To this day, the Fair Labor Standards Act is the foundation of U.S. wage-and-hour laws[….] Needless to say, the workforce has changed since 1938. It is long overdue for Congress to update this 87-year-old law so workers and businesses have the best opportunities to succeed.
The FLSA established the minimum wage, the 8-hour work day, the 40-hour work week, the establishment of overtime pay, and outlawed child labor. Eighty-seven years ago, the nature of work primarily centered around the Industrial Revolution or the agrarian age, and labor laws reflected those occupations. If you were not working on a farm, you were probably working in a factory, mine, or mill. So-called “women’s work” often focused on housekeeping (maids, cleaners), textile production, telephone/radio/telegraph operators, and service industries. Aside from retail, white-collar office work was a rarified and limited sector, and many aspects of the FLSA were crafted to protect the industrial worker.
Fast forward to 2025, and the nature of work and workplaces are vast and far-reaching. Thanks to technology, what used to require an 8-hour workday or 40-hour workweek has been altered. White-collar professions have surged, and the nature and format of blue-collar work also look different from 1938. So, the fact that it has taken almost 100 years for lawmakers to update federal laws explains the gap between actual workforce progression and regulatory progress.
It’s a huge step forward for Congress to now consider the modernization of the FLSA. These labor standards have too long been deemed sacrosanct and untouchable. Certain committee members, like Ranking Member Ilhan Omar (D-MN), still question the reasons behind the hearing and invoked Project 2025, accusing the Trump administration of wanting to destroy labor safety and protections.
One witness, Andrew Stettner, Director of Economy and Jobs for the Century Foundation, saw DOGE as a threat to child labor law protection and enforcement. As workplaces and workforces have transformed over the years, Congress should have done the difficult work of revisiting and recrafting the FLSA to keep pace with the new century.
Instead, Congress relied on regulatory agencies such as the Department of Labor to cobble together alterations and amendments in patchwork fashion and draft regulations such as the Biden-Harris Overtime Pay Requirement and the Biden-Harris final independent contract rule, which only served to stifle business and worker freedoms. The result is a miasma of regulations and restrictions that confuse small business owners and employees alike and lead to inadvertent violations of labor law and restrictions on innovation and business growth.
Senior Vice President and Director of Human Resources at Farmers and Merchants Bank Paige Boughan said during the hearing, “The FLSA is the foundation of U.S. Labor law, but for it to remain effective, it must evolve.”
Another subcommittee witness, Tammy McCutchen, Senior Affiliate for Resolution Economics, agreed, deeming the FLSA definitions of “employers,” “employees,” and “work, to be
… vague and circular as to be useless. DOL’s regulations run to 10,000 words. Is it surprising that we have been debating joint employment and independent contractor for nearly a decade, millions spent on litigation, thousands of court and agency cases, dueling regulations from one administration to the next? Only Congress can stop the madness.
As McCutchen suggested, clearly defining employers, employees, and work would also allow those who choose to work as independent professionals the freedom and flexibility they desire. Rep. Kevin Kiley (R-CA) asked witness Jonathan Wolfson, Chief Legal Officer and Policy Director of the Cicero Institute, about how laws like AB5, which severely crippled independent contractors in the state of California, and the Biden-Harris Department of Labor final independent contractor rule, which tried to enact those same regulations federally, only have teeth because of the lack of clarity on these definitions. Wolfson said,
Workers knew the risks and benefits that they were taking upon themselves in starting the business and then California’s legislature came in and said ‘we’re not going to let you make that decision anymore, we’re going to protect you from yourself. If suddenly I had to provide anyone who was coming to do HVAC work at my house the same employee benefits as those [at my organization], that would change the entire calculus of how much I’m willing to pay them, what I’m willing to do, and we need to allow people to have these interactions.
When Rep. Mary Miller (R-IL) asked Wolfson how Congress and the Trump administration could support and protect the independent workforce, Wolfson touted the Modern Worker Protection Act and other legislation that have been brought before Congress which would give greater freedom to Americans to protect the work that they do, and to opt into independent status as they choose. That is the very nature of freedom and what could be possible if the government would get out of the way. As Rep. Miller said, “One thing government does well is complicate things.”
Congress is finally giving recognition and respect to independent professionals, entrepreneurs, and small businesses as essential arms of the economy. By potentially redrafting the FLSA, it is a hopeful sign that our contribution will be given deference and consideration. As the Trump administration pursues its ambitious 100 days, independent contractors, employers, and employees alike are cheering on this paradigm shift.