Skip to main content

Will We Lose the 8-hour Day?

Congress considers 80-hour weeks while Labor Department guts overtime rules, by 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 pay."

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,² ³work 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 doesn¹t 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 away.