On April 23, 2004, the Department of Labor (DOL) published its final regulations redefining which American workers receive overtime pay protections. Absent Congressional action, the regulations will take effect on August 23. Despite DOL claims to the contrary, the DOL regulations will harm workers earning from $23,660 to $100,000 – the vast majority of American workers. The Department for Professional Employees, AFL-CIO, which represents 25 national unions and more than 4 million white-collar workers, asks that you vote for the Harkin amendment protecting overtime pay rights.
The DOL regulations open the way for employers both to pay employees on an hourly, daily, or shift basis and treat them as exempt – an unprecedented elimination of overtime pay protection. They even allow the use of “paid time off,” or “compensatory time off,” as suggested by the National Association of Manufacturers. (Section 541.604; 69 Federal Register 22183 [NAM suggestion].)
This redefinition of the salary basis for assessing whether a worker is entitled to overtime pay will, at a minimum, guarantee endless new litigation. It is thus akin to many other provisions, both in its complexity and in inviting employer abuses. These characteristics belie DOL claims of seeking clarity to avoid litigation.
The only clarity in the final regulations is the intent to serve employer interests and eliminate overtime protection for employees. Thus, the regulations explicitly end as a matter of DOL fiat overtime pay protection for registered nurses (Section 541.301(e)(2)), team leaders (Section 541.203(c)), nursery school teachers (Section 541.303(b)), assistant managers in retail establishments who may also serve customers, cook food, stock shelves and clean the establishment (Section 541.106(b)); many workers in financial services (Section 541.203(b)), insurance claims adjusters (Section 541.203(a)), chefs and sous chefs (Section 541.301(e)(6)), and funeral directors and embalmers (541.301(e)(9)).
The regulations also lessen the requirements for classifying many employees as exempt. For computer employees, for example, the current regulations specify that exempt status requires “a level of skill and expertise which allows [the employees] to work independently and generally without close supervision.” (29 C.F.R. Section 541.303(c).) The revised regulations omit this requirement. (Section 541.400.)
The occupations for which overtime pay protections are removed or weakened include millions of American workers. An estimate by Professor Thomas A. Kochan of the MIT Sloan School of Management and Co-Director of the MIT Workplace Center puts the number of affected team leaders alone at 1.2 to 2.3 million employees.
American workers face a jobless recovery, off-shoring of white-collar jobs, and a failure to extend unemployment benefits. DOL should not be allowed to make things worse by slashing overtime pay and, for millions of workers and their families, ending the 40-hour week. We ask that you vote in favor of the Harkin amendment to protect overtime pay.
Paul E. Almeida