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Jon Bekken, "Losing the 8-Hour Day?"

jim submits:

"Will We Lose the 8-Hour Day?

Congress Considers 80-Hour Weeks While Labor Department Guts Overtime

Jon Bekken, May 2003 Industrial Worker

The Bush administration proposed new regulations March 27 that would deny
overtime pay protections to millions of U.S. workers. The proposed rules
would enable employers to reclassify many workers as managers,
administrative or professional employees ­- categories exempted from FLSA
protections including the requirement to pay time and a half for work
after 40 hours.
Meanwhile, a House subcommitee has approved legislation that would enable
employers to replace overtime pay with compensatory time off (at the
employers' convenience, of course). HR 1119 is now headed to the full
Education and Workforce Committee. The Senate is considering a parallel
bill, S. 317, which would also replace the current 40 hour standard with
an 80-hour two week standard.

The Department of Labor's press release avoids the real issues to claim
that it is extending overtime protection to 1.3 million "managers" and
other salaried personnel currently excluded from overtime protection
because they make more than $155 a week -­ a standard set 30 years ago.

This change (the government proposes raising the salary threshold to $425
a week) would make it clear that some fast food assistant managers are
covered by overtime; but in fact, most are already covered since
"managers" spending more than 20 percent of their work time on
non-managerial duties are now entitled to overtime pay. (Of course,
employers routinely misclassify workers as managers or professionals in an
attempt to evade overtime and other labor protections.)

In exchange, the rules would eliminate overtime protection for possibly
millions of workers who could be reclassified as professional or
administrative employees. Current rules define "professional" workers'
jobs as predominantly creative or intellectual, requiring advanced
training, or involving creativity, invention and independent judgement.

Under the proposed rules, workers who hold a "position of responsibility"
or have learned specialized job skills through on-the-job training or a
trade school would be exempt from overtime protection. The proposed rules
were published in the Federal Register and posted on the Labor Department
web site for public comments, which are due by June 30. After reviewing
the comments, the department can revise the
regulations or simply adopt them.

The department says the new rules would ³modernize² obsolete regulations
and make it easier for employers to know if workers were exempt. A few
years ago, a pro-boss research group estimated that employers were
violating overtime law to the tune of $19 billion a year. Employers
complain that lawsuits have successfully challenged the misclassification
of employees as exempt, forcing them to pay overtime and damages, and that
many production jobs now require advanced technical skills. The Labor
Department proposed to address these complaints with regulations that
would eliminate overtime protection for millions of workers.

While the legislative history of the Fair Labor Standards Act makes it
clear that the intent was to cover all except a handful of executives and
professionals (such as doctors and lawyers), the new regulations would
presume that any salaried job requiring a two-year college degree or
specialized technical skills is exempt so long as it pays at least $425 a
week. However, the explanation of the proposed regulations published in
the Federal Register makes it clear that the primary goal is "modernizing
the regulations to exempt more classifications of workers from overtime

Thus, the proposed regulations would turn the overtime laws on their head
­- creating a presumption that workers are exempt from overtime protection
where the old standards assumed they were covered. However, in many ways
the new regulations are little clearer that the decades-old rules. The
proposed regulations are filled with phrases such as "requiring a high
level of skill or training," "work of substantial importance," or "primary
duty" of "performing ... non-manual work" ­- all of which exempt employees
from overtime protection ­- the definitions of which are far from clear.

Workers who sell and deliver soft drinks or snacks to local grocery stores
would lose overtime protection if their primary job is to sell, even if
they spend many hours delivering the cans and candy bars. That¹s a change
from the current rule that workers who spend more than 20 percent of their
time delivering, loading and unloading get overtime. Health care workers
such as nurses, X-ray technicians and dental hygienists would no longer
receive overtime pay. Accountants, chefs, insurance adjusters, journalists
and teachers would also no longer be eligible. But the regulations specify
that construction workers, longshoremen and truck drivers would remain
covered by overtime.

"It's a massive give-away for employers at the expense of workers," said
Nick Clark, assistant general counsel of the United Food and Commercial
Workers. The Labor Department estimates that 640,000 workers would lose
overtime pay; Clark says that is "grossly underestimated" because it
doesn't count workers who earn between $22,000 and $65,000 a year who may
also see their overtime eliminated under the sweeping re-classification.

Indeed, the Labor Department's own analysis estimates that employers would
pay $334 to $895 million a year in increased wages and overtime payments
under the new regulations, but would save up to $1.9 billion a year in
savings from workers who would no longer have to be paid for their
overtime. This seriously understates the potential savings to employers,
as it assumes that employers will not take advantage of their new right to
require unlimited unpaid overtime to lay-off current workers and require
the survivors to pick up their work.

In another section, the department asserts that "the rule will not
adversely affect the well-being of families" ­- a determination that
evidently assumes that it requires neither time nor money to care for
children. The proposed regulations do not require congressional approval
because they merely "interpret" the Act. However, more extensive changes ­-
such as abolishing the 40-hour week for non-exempt employees -­ would
require legislation.

Both H.R. 1119 and S. 317 would allow employers to require more mandatory
overtime, encouraging them to schedule even more overtime. On the surface,
the legislation says it is the employee who decides whether to accept comp
time instead of paid overtime. But "this ignores the reality that most
workers have no say in their hours or working conditions," Ellen Bravo,
director of 9to5, National Association of Working Women, told the House
Workforce Protections subcommittee at a March 12 hearing.

Although workers are desperate for more time with their families and more
control over their schedules, "HR 1119 does nothing to address the problem
of mandatory overtime. In fact, ... this bill provides an incentive to
require workers to endure long hours on the job."

And the bill allows employers to sit on the comp time for up to a year ­-
in essence, an interest free loan of workers¹ time. If the employer goes
bankrupt during that period, workers would be left with nothing. The comp
time legislation is nothing more than a scheme to allow employers to avoid
paying for overtime.

"Americans already work longer hours than their counterparts in most
industrialized nations," Bravo noted, adding that workers exempt from the
FLSA's overtime protections work over twice as many overtime hours as
those who are non-exempt. Workers' productivity reached the point where a
4-hour day at a living wage has long been realizable. Instead, for
millions of workers the 8-hour day is once again becoming little more than
a fading dream.

Even as productivity continues rising, wages stagnate and millions of our
fellow workers are unemployed, the bosses are demanding the "right" to
80-hour work weeks and unlimited mandatory overtime. Stopping this assault
will require building a new shorter hours movement, like the one that
fought for the 8-hour day in 1886. Generations of workers around the world
fought for the 8-hour day; we do not have the right to let it be taken