Support the Harkin Amendment to
Protect Overtime
On March 31, 2003, the Department of Labor (DOL) proposed regulations that would disqualify millions of workers from overtime protection under the Fair Labor Standards Act (FLSA). The Harkin amendment to the FY 2004 Labor-HHS appropriations bill would stop DOL from issuing any regulation that disqualifies from overtime protection any workers who are protected under current rules.
The DOL proposal would make it much easier for employers to disqualify workers from overtime protection. The Fair Labor Standards Act (FLSA) of 1938 requires employers to pay time-and-a-half cash for overtime work, but provides narrowly limited exceptions for executive and administrative management and independent professionals. Every single change DOL proposes to the tests that determine whether these exceptions apply would make it easier for employers to deny workers overtime.
The DOL proposal would strip overtime rights from more than 8 million workers. The Economic Policy Institute (EPI) concludes that DOL’s proposal would strip overtime rights from over 8 million workers. DOL estimates that 644,000 workers who currently earn overtime would lose overtime protection under the proposed regulations, but neglects to mention that many millions more workers not currently earning overtime would also lose protection under its proposal. According to DOL data, for every worker protected by the FLSA who is currently earning overtime, there are another 7.6 workers protected by the FLSA who are not working overtime. Thus, if 644,000 workers currently earning overtime lose overtime protection under DOL’s proposal, the corresponding total number of workers who would lose overtime protection is approximately 5.5 million. DOL also estimates that another 1.5 to 2.7 million workers would have received overtime protection had DOL not weakened the tests that determine whether the exceptions apply.
The DOL proposal would strip overtime rights from many kinds of workers in many industries. DOL’s proposed regulations would deny overtime protection not only to white collar office workers, but also to many manual and other union workers. Union workers would have to negotiate for overtime protection that is now guaranteed by law. The overtime exceptions would swallow workers with minimal administrative responsibilities, workers with minimal supervisory responsibilities, virtually all workers earning more than $65,000, and workers with certain kinds of specialized training or on-the-job experience. These include licensed practical nurses, journalists, policemen, firefighters, cooks, secretaries, dental hygienists, bookkeepers, journalists, administrative support, computer support, engineering technicians, assistant and associate architects, health technicians, and paralegals.
The 40-hour workweek should be strengthened, not rolled back. For more than 150 years, the American labor movement has struggled to limit excessive work hours, and the FLSA was a milestone of America’s social and economic progress. The FLSA was intended to be a universal standard of social progress, with narrowly limited exceptions for management and independent professionals who control their own work hours. The FLSA works; workers not protected by the FLSA are twice as likely to work overtime, and work hours steadily declined until the early 1980s. Since then, work hours have steadily risen and U.S. has surpassed the other industrialized countries in total work hours, which elsewhere have declined. Part of the problem is that fewer and fewer workers enjoy the overtime protections of the FLSA. The FLSA is as important now as it has ever been, but needs to be strengthened and extended to more workers. There is therefore no excuse for taking away overtime rights from any workers, and there is no dispute that DOL’s proposal takes away workers’ overtime rights.
There is no justification for taking away workers’ overtime rights. DOL claims its proposal is necessary to “clarify” the overtime rules and avoid litigation, to “update” the overtime rules for the 21st century economy, and to protect more low-income workers. However, the DOL proposal only adds more confusion to the overtime rules, and even DOL official Tammy McCutchen admits it will lead to a “deluge of lawsuits.” Furthermore, the 40-hour workweek is not by any means obsolete in the 21st century economy, and the most significant economic changes in recent years (longer hours, more women in the workforce) demand overtime protection for more workers, not fewer. Moreover, it is unclear whether the DOL proposal actually provides overtime protection to any low-income workers who are not already protected. In any event, none of these arguments is relevant to the Harkin amendment, which does not stop DOL from benefiting more low-income workers or updating or clarifying the overtime rules.
The DOL proposal would undermine the 40-hour workweek. Under the DOL proposal, millions of workers denied overtime protection would no longer be paid anything for their overtime work. If employers no longer have to pay more money for overtime work, they will have an incentive to demand longer hours, and workers will have less time to spend with their families.
The DOL proposal would be a pay cut. Millions of workers depend on overtime pay to make ends meet, and in 2000 overtime pay accounted for about 25% of the income of workers who worked overtime, or $161 per week. By contrast, Citizens for Tax Justice estimates that this year’s tax cut would give workers earning less than $62,500 only $350 over four years, or $1.68 per week. Workers who are still protected by the FLSA would also receive a pay cut because employers would naturally shift overtime assignments to the millions of workers no longer entitled to overtime pay.
The Harkin amendment is necessary to protect workers’ overtime rights. As the Supreme Court and other courts have repeatedly noted, the 40-hour workweek is presumed to apply broadly, and the overtime exceptions must be narrowly limited. For the first time ever, DOL is proposing a significant broadening of the overtime exceptions, and the Harkin amendment is necessary to stop DOL from embarking on this radical departure from DOL history and practice. The Harkin amendment would not stop DOL from issuing regulations, but would merely prohibit DOL from issuing regulations that takes away overtime rights. There is no “grandfathering” problem with the Harkin amendment, because any regulation that takes away workers’ overtime rights could not be promulgated in the first place.
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AI
