The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“OVERTIME REGULATIONS” mentioning the U.S. Dept of Labor was published in the Senate section on pages S4732-S4734 on May 3, 2004.
The publication is reproduced in full below:
OVERTIME REGULATIONS
Mr. KYL. Mr. President, I rise to speak to the legislation we are going to be taking up when we go back to S. 1637, called the Jumpstart Our Business Strength Act, which will attempt to modify the law relative to how we treat manufacturing firms in tax policy to comply with rulings of the World Trade Organization and related legislation.
There is an amendment pending that will be offered by Senator Harkin that relates to final regulations issued last week by the Department of Labor. I would like to speak to why we should quickly dispense with that Harkin amendment to move on with the S. 1637 and not get bogged down in the regulations that were issued by the Department of Labor.
The regulations issued a final rule to update the previous regulations that implemented the Fair Labor Standards Act. That act implements rules guaranteeing overtime pay for certain nonwhite collar workers--in other words, when somebody works longer than the period they would ordinarily be required to work, what circumstances the employer is required to then pay overtime pay for that additional work. The rules the Department of Labor has had in effect have not been modified for over a quarter of a century. The salary levels to which these regulations apply have not been changed since 1975. The duties test has actually not changed since 1949. That is the test that tries to define whether a worker is a white collar worker who would be exempt from this requirement or a blue collar worker who would be guaranteed overtime if they worked longer than they are supposed to. What this has done is to leave employers with very obsolete job classifications, things such as straw boss and leg man, other titles for work that have not been performed for years. That needed to be fixed.
The Department of Labor had been struggling to try to bring it up to date and get final rules into place, which now has been done. A lot of the concerns expressed by supporters of the Harkin amendment are based on interpretations or misreadings of the previously proposed rule. But a lot of that has now been cleared up in the final rule made effective last week. Much of the criticism should fall by the wayside.
Let me describe what the final rule does. It would guarantee overtime benefits to 1.3 million low-wage workers who before were not entitled to overtime pay. Under this rule, 6.7 million new employees must be paid overtime regardless of their duties. That is 1.3 million more than is currently the case. It would raise the minimum salary level at which workers are ensured overtime pay from $155 to $455 a week or $23,660 annually. That is the largest increase since the law was enacted in 1938. Under the previous regulations, individuals earning the minimum wage, which would be about $10,700 a year, were not guaranteed overtime. They must be classified by their employers as nonexempt in order to receive overtime. The previous regulations guaranteed only employees earning less than $8,000 a year a nonexempt status--in other words, guaranteed minimum wage. This regulation updates all of that.
The work the Department of Labor has done is going to help a lot of Americans. Over 6.7 million Americans will now be guaranteed this overtime pay and a lot more than that will probably get it, depending upon exactly what kind of work they perform. Under the new regulations, employees who earn more than $100,000 annually would be exempted, but here again, even they would only be exempted if they regularly and customarily perform executive, administrative, or professional duties. Even somebody with earnings over $100,000 a year could get overtime pay. The Department of Labor estimates only about 107,000 employees who earn $100,000 or more could be reclassified as white collar employees and potentially lose their overtime pay. Those who earn between $23,660 and $100,000 will remain eligible for overtime pay if they meet the so-
called ``short test,'' which determines whether they are exempted white collar employees or not.
Let me respond to some of the misinterpretations. There was a view that a lot of folks would not be guaranteed pay. The new rules explicitly define certain groups as being guaranteed pay. For example, first responders, police officers, firefighters, paramedics, emergency medical technicians, and similar public safety officers are entitled overtime pay.
I ask unanimous consent to print in the Record a statement from the Fraternal Order of Police relating to these regulations.
There being no objection, the material was ordered to be printed in the Record, as follows:
Final DOL Regulations Protect and Expand Overtime for America's First
Responders
F.O.P. Efforts Crucial to Protection of Overtime for Public Safety
Today National President Chuck Canterbury hailed the release of the Department of Labor's (DOL) final regulations on the exemptions from overtime under the Fair Labor Standards Act (FLSA) as an ``unprecedented victory'' for America's first responders. The regulations, which were first proposed in March 2003, highlight the F.O.P.'s singular and significant contribution to protecting the future of overtime compensation for State and local police officers, firefighters and EMTs.
``The Fraternal Order of Police is extremely grateful for the work of Secretary of Labor Elaine L. Chao and Wage & Hour Administrator Tammy McCutchen to take into consideration and incorporate the views of the F.O.P. in developing their final regulations,'' Canterbury said. ``Since the beginning, the F.O.P. was alone in its confidence in this Administration's commitment to our nation's first responders, and their intention to resolve this issue to the benefit of these vital public servants.''
On the preamble to the final regulations, the Department of Labor acknowledged that it was responding specifically to the views of the Fraternal Order of Police ``about the impact of the proposed regulations on police officers, firefighters, paramedics, emergency medical technicians (EMTs) and other first responders.'' DOL went on the note that the current regulations do not explicitly address the exempt status of these employees, and ``this silence . . . has resulted in significant federal court litigation to determine whether such employees meet the requirements for exemption.''
The final Part 541 regulations make several important changes for public safety employees. for the first time ever, the regulations clarify that neither the regulations contained in 29 CFR nor the Section 13(a)(1) exemptions apply to police officers, firefighters, EMTs and other first responders who perform public safety work. The regulations go on to clarify why these employees, regardless of their rank or pay level, cannot be classified as executive, administrative or professional employees, and thus be exempted from receiving overtime pay. In addition, the Department acknowledges that the right to overtime compensation may be extended to some public safety employees who are currently classified as exempt because of changes to the regulations.
``Where others were content to ask the Department to say in its final rule only that `no expansion of law enforcement exemptions is included in or intended by the new rules,' the Fraternal Order of Police said `today's public safety work is more unique than ever before, and the final regulations must account for the challenges faced by our nation's first responders in the post-9/11 environment,' '' Canterbury said.
``The final regulations achieve that goal.''
On 31 March 2003, the Department of Labor published a Notice of Proposed Rulemaking in the Federal Register to revise and update the exemptions from overtime under the FLSA for executive, administrative, and professional employees; also known as the Part 541 or ``white collar'' exemptions. Immediately, the clarion call spread across the nation that the Department was trying to take away the right to overtime pay for hundreds of thousands of police officers, firefighters and EMTs.
During the public comment period, the F.O.P. worked with the International Association of Firefighters (AFL-CIO) to seek clarification of the Department's intent with respect to the overtime eligibility of public safety employees--an issue which was not explicitly addressed in the proposed rule. In late June, the F.O.P. submitted its formal written comments to the Department. It was the first organization to weigh in on behalf of America's law enforcement community regarding the proposed changes, and advised DOL about the potential impact of the proposal on public safety employees.
``We were never concerned that DOL was trying to destroy the ability of police officers and others to earn overtime compensation, despite the rhetoric employed by other groups and some legislators to vilify and demonize Secretary Chao,'' Canterbury said. ``Rather, we believed it was important to point out that the regulations as proposed did not sufficiently recognize the increased workloads and hazards faced by public safety employees since the heinous terrorist attacks of September 11, 2001, and to use that as the basis for our efforts.''
Canterbury explained that while the F.O.P. faced strident and often vitriolic opposition from other organizations who viewed this as a fight to maintain the status quo, the F.O.P. never considered this to be a viable solution because of the number of public safety officers currently classified as exempt under the existing regulations. Instead, the F.O.P. viewed the proposal as a unique opportunity to correct the application of the overtime provisions of the FLSA to public safety officers.
``These final regulations show that this Administration and this Department of Labor are responsive to the concerns of rank and file first responders,'' Canterbury said. ``There has been too much posturing and rumor mongering on this issue by the leadership of other police organizations, who have seemed intent on sacrificing their members' paychecks on the altar of partisan politics. I hope that those who have been so employed over the course of the past year can see the folly of their ways, and that we can all recognize this for what it truly is: an unprecedented victory for police officers and their families.''
Mr. KYL. The Fraternal Order of Police is one of the groups very interested in this issue. It is the largest organization of sworn law enforcement officers, and obviously they are in support of the first responders being exempt from the nonguarantee--in other words, being guaranteed overtime pay.
Another group is nurses. The licensed practical nurses and other similar health care employees will be entitled to overtime pay under the new regulations. Originally unions had asserted to the contrary, but that is not the case. With respect to registered nurses, they are already exempted professionals under current law. The new rule will not change that. Explicitly blue collar workers are identified as entitled to overtime pay.
There was a question about cooks. They are entitled to overtime pay. The only people in that group that might not be are college degree chefs who have degrees in culinary arts, who supervise others in work they do. Paralegals will be entitled to overtime pay. Public sector inspectors, people such as building inspectors, will be entitled to overtime pay. Union courts, collective bargaining agreements in States will not be affected by the rule. This is another area that has been grossly misrepresented.
The bottom line is this final rule will bring clarity. It defines specific categories of people who will be guaranteed pay and, therefore, shuts down a lot of the litigation that has been based on the fact that the law has not been explicit or very clear. The confusing and outdated current or previous regulation has been a gold mine for trial lawyers, and there are a lot of articles that have recently been published that point out some of the abuses. The number of lawsuits in this area has doubled since the 1990s. Class action lawsuits have tripled since 1997. The number of these suits has actually surpassed the EEOC class action lawsuits in number.
While the trial lawyers have made out very well off of the confusion of the previous regulations, the plaintiff's benefit is significantly smaller. For example, in a recent Oregon lawsuit, which the Presiding Officer will be interested in, fast food restaurant workers each received $1,300, while the trial lawyers received $1.5 million. In a similar California case, workers got $2,800 while the trial lawyers were awarded almost $4 million.
Let me conclude by making a point that part of the confusion is due to objections by the AFL-CIO. Even before the final rule was made public, they were criticizing it, producing TV advertisements, misrepresenting the effect of the new rule. This is especially distressing given the fact--I know this personally from the Secretary of Labor, who had spent untold numbers of hours working on this--it was their intention to try to take in all of the criticisms and comments and blend them into a rule that made sense for workers. She did this, and then to have it attacked before it is finalized, with misrepresentations, is very unfair.
Prior to drafting a rule, the Department of Labor held over 40 stakeholder meetings with 50 different interested groups, including 16 different unions, and invited 80 groups to participate in these so-
called stakeholder meetings. It was not as if this were done without the input of people clearly interested in it.
The amendment that is in order when we take up the bill is the Harkin amendment. It is unclear precisely what the wording of the amendment will be, but obviously the intent is to preclude the regulations from fully taking effect.
I urge my colleagues, after they review that language, to quickly dispose of the amendment so we can move on to the important business of passing the underlying JOBS bill. As we know, the only group of employees that is not going to be guaranteed overtime under the new regulations is those making over $100,000 or more. The theory there is they are in a position to negotiate their own salary.
Just to conclude, if this new rule is not allowed to go into effect, the biggest winners under the new rule, which are the low-income workers, will be the biggest losers. We need to put this into effect, clear up the confusion, and create the specific categories that are guaranteed overtime pay or these people are going to lose. The police, the firefighters, the lower income people, the blue collar workers are not going to be assured overtime pay. Remember, it only previously would guarantee anybody with $8,000 or less the overtime pay they should be entitled to.
The effect of the Harkin amendment will be to hurt workers, not to help them. It is my hope that, again, we can quickly dispense with the Harkin amendment, defeat that amendment, support the regulations, the new rules that have been adopted by the Department of Labor, let them go into effect, and see how they work; in the meantime, move on with S. 1637, the underlying legislation, the purpose of which is to finally get our manufacturing industry back on even par with our competitors, particularly in the European market. That is legislation we have to pass because of the tariffs that are being imposed each month until we comply with the ruling of the WTO.
The ACTING PRESIDENT pro tempore. The Senator from Florida.
Mr. NELSON of Florida. Mr. President, I ask unanimous consent I be allowed to speak for 15 minutes, and I include in that request Senator Reid of Nevada who has asked to follow me for an additional 15 minutes.
Mr. KYL. Mr. President, reserving the right to object, there is a division of time between the two sides. Could I suggest that regarding the remarks of the Senator from Florida with the Senator from Nevada, that they get together and figure out the time to speak if it will not be under leader time? Is that acceptable?
I will object to the request and try to talk to the Senator.
The ACTING PRESIDENT pro tempore. The objection is heard.
The Senator from Florida.
Mr. NELSON of Florida. Is the unanimous consent request that I made that I be allowed to speak for 15 minutes, is that acceptable?
The ACTING PRESIDENT pro tempore. It has been objected to.
Mr. NELSON of Florida. I ask unanimous consent that I be allowed to speak for 15 minutes, and if there is a Member on the other side of the aisle who would like to speak for 15 minutes, that they be allowed to do so, as well.
The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.
____________________
