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“A Fair Day’s Pay for a Fair Day’s Work”: Why Congress Should Amend the Fair Labor Standards Act to Include an Actual Time Test for Retroactive Damages

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ABSTRACT: In 1938, Congress passed the Fair Labor Standards Act (“FLSA”) with the support of President Franklin D. Roosevelt, who said every worker deserved “a fair day’s pay for a fair day’s work.”1 In an Eighth Circuit case decided in 2012, the court addressed an important and persistent ambiguity in the FLSA regarding calculating compensable time, but failed to clarify the issue. The question that has split the federal circuits is whether a “reasonable time” test or an “actual time” test is the appropriate calculation method for compensable time when a plaintiff successfully sues for unpaid wages in violation of the FLSA. One likely reason neither Congress nor the Supreme Court has yet resolved the issue is that disagreement over the calculation method for damages is usually not the primary impetus for a FLSA case. Courts are more concerned with making the proper decision for the preliminary issue: whether the alleged activities for which the employees were not paid are compensable. Nonetheless, the appropriate test for retroactive damages is an important issue and one that Congress can easily resolve. To resolve this circuit split, this Note proposes changes to the FLSA that would incorporate the actual time test as the appropriate calculation method to use for retroactive damages. This Note suggests that Congress should codify the actual time test because it is the more logical of the two tests under current law, because it will result in more desirable practical implications for the modern working world, and because it is supported by public policy.

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