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Tim’s rant against the Dept of Labor’s changes to the Overtime and Exempt Employee rules under the Federal Overtime Laws

UPDATE: 8-23-04 was the day the Bush administration acted to weaken overtime pay rights for millions of workers. AFL-CIO fact sheet on new overtime rules, See also Tim’s Rant about the new overtime rules (with more links about the new rules).

Visit the homepage of the DOL’s Overtime Regulation changes, a propaganda website called “Fairpay”. The reason I say “propaganda” is that the government tries to convince you that workers “win” with the new regs, by calling them “fairpay” regs. Don’t fall for it. The main winners are big corporate supporters of the Republican Party.

Want to download the new regulations? The new regulations download central, or try right-clicking this link and Save-As: Direct link to the new regs [250K PDF file].

*** Original article follows below ***

Some early pros and cons of the DOL Overtime proposals, mostly cons

As of July 2003, the “proposal” is still not the law, but observers think these proposals will likely succeed and will become law soon. We’ll see.

Strap on your BS detectors, but leave some room for your thinking cap. What follows is the ranting and raving of an advocate (me) about the politics and motives of other advocates (Republican Party leadership running the Department of Labor). The nature of politics, and legal argument for that matter, is for each side to overstate its position and distort the other side’s position, and let someone else decide who is more right.

Let’s start our lesson today with the distortions put forth by the Republicans in the Federal Department of Labor:

Remember something: The President of the United States appoints the “Labor Secretary” who runs the DOL and sets policy. Since we have a Republican President, we have a Labor Secretary sympathetic to the President’s political philosophy. The Republican Party is not interested in increasing the amount of overtime paid, or in increasing the number of workers eligible for overtime.

See this link for the Federal Department of Labor’s (DOL’s) misleading, mistitled, proposal to greatly reduce the chance that employees can get overtime pay: Federal DOL’s “Proposal to Strengthen Overtime Protection” (the title is the DOL’s not mine – and it’s not an accurate description of what the proposal attempts to accomplish).

In a nutshell, here’s what the “Proposal to Strengthen Overtime Protection” really seems to be trying to accomplish, as you can read and interpret for yourself by clicking the above link:

Big Business wants the freedom to deny overtime pay to many millions of office workers, technicians, and low level lead-persons, and Big Business is willing to make very tiny improvements in the overtime protections that apply to very small businesses in order to create the illusion that this overtime proposal is a “strengthening of overtime protections”.

Maybe a few people will actually be helped by the overtime proposals, but this is simply the nature of politics: Give something unimportant to get something very important – Help a few people in order to deny overtime protection to many millions more.

Here are a few specific bad effects that I predict will flow from the new Republican DOL’s “Proposal to Strengthen Overtime Protections”:

  • Exempting Community College Graduates from overtime pay by calling them “learned professionals” on a par with Doctors, Architects and Professors, and other occupations where advanced degrees are required and hence are likely exempt from overtime laws.
  • Exempting Technical School Graduates from overtime pay by calling them “learned professionals” on a par with Doctors, Architects and Professors, and other occupations where advanced degrees are required and hence are likely exempt from overtime laws.
  • Exempting Those with a lot of on the job training and experience from overtime pay by calling them “learned professionals” on a par with Doctors, Architects and Professors, and other occupations where advanced degrees are required and hence are likely exempt from overtime laws.
  • Exempting everyone from overtime that the employer claims to “be in a position of responsibility”, doing away with the old test that looked for actual decision making authority and exercise of important discretion. EVERYONE is arguably in a position of “responsibility”. Even the janitor is responsible to secure the building after hours (a critical function of course), and is in a trusted position because he has the master keys to everyone’s offices and data. Is the janitor going to be exempt from overtime pay?
  • Eliminating the “Long Test”, and using only the “Short Test” – Quickly, you are not really a “manager”, under the long test, if you do non-managerial chores more than about 20% of the time. The DOL wants to make it very easy to call people “managers” and hence exempt people from overtime pay. So the DOL wants to eliminate the “long test” and just use the “short test”. The Short Test looks at “primary duties”. PROBLEM: Who’s opinion counts most when determining what your “primary duties” are? The Employer. Even if you know very well that your real primary duty is to ring-out those gas station customers, the employer will claim that your “primary duty” is to “supervise”; hence, you are exempt from overtime even though your real job is to run that cash register.

Here is the limited positive for some workers, as the tradeoff for excluding millions more from overtime:

The DOL Proposal mentions that millions of workers are going to get overtime now, because of an increase in the amount of pay that people must receive before being allowed to be classified as “exempt” from overtime. The proposal talks about how it’s going to require $425 a week in pay for managers and supervisors before they will be exempt from overtime. Think about this: What types of businesses have the following three characteristics: 1) Grosses $500,000 per year (to be covered by the Federal overtime laws), 2) Is not already excluded from the overtime laws (agriculture, etc) and 3) pays its “managers” less than $425 a week? There will be people helped by this proposal, but they will be employees of very small businesses, and won’t affect Big Business (Big Business already pays better than $425 to its managers, so they are unaffected).

Watch for more info to come. Here’s an interesting summary of the controversy from the Denver Post on July 20, 2003 “Overtime Plan Divides Workplace” (Old link: href=”,1413,36~33~1521018,00.html).

Click a feedback link at bottom of the page to tell Tim how wrongheaded he is on this topic.

Here is an article I have written about how the overtime laws work right now: Overtime and Comp Time.

***** END OF ARTICLE ***** Missouri Employment Law

Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)

Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.

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