Testimony on Flexibility in the Workplace by William Kilberg

Statement of William J. Kilberg, Senior Partner, Gibson, Dunn & Crutcher LLP

and Former Solicitor, U.S. Department of Labor before the Subcommittee on Workplace Protections, House Committee on Education and the Workforce

March 6, 2002

Chairman Norwood and Members of the Subcommittee:

I am pleased to appear today on behalf of the United States Chamber of Commerce to discuss the Fair Labor Standards Act ("FLSA"). The United States Chamber of Commerce is the world's largest business federation, representing more than three million businesses and organizations of every size, sector and region. Gibson, Dunn & Crutcher LLP is a member of the Chamber's Labor Relations Committee. In speaking on the Chamber's behalf, I bring to bear a perspective that comes not only from years of advising employers about FLSA issues and litigating on their behalf, but also from having served from 1973 through 1976 as Solicitor of the Department of Labor. In the latter capacity, I functioned as chief legal officer for the agency charged with interpreting and enforcing the FLSA.

The FLSA is an important and effective worker protection statute, and I am confident that it will continue to protect workers in the years to come. It is, however, long overdue for revision, having failed to keep pace with the rapidly evolving workplace. As my esteemed co-panelists have testified in detail, today's workplace bears little resemblance to its post-Depression counterpart. Unlike 60 years ago, when Congress enacted the FLSA, few workers today have a "stay at home" spouse; men and women alike are looking for ways to reconcile the competing demands of work and family.

Moreover, the line between "blue collar" and "white collar" workers has become blurred as radical changes have redefined America's workforce. From the technologization of the workplace, the metamorphosis of the economy from a manufacturing base to a service base, and other equally momentous developments, a large class of highly skilled and compensated technical workers has emerged. It should come as little surprise to this country's lawmakers and regulators that the FLSA and the Department of Labor's interpretive regulations, which have undergone little if any substantive change since their codification in 1938 and 1954, respectively, are outdated remnants of a different era that do not reflect the new realities of the workplace.

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