Bush Administration Attacks Wage and Hour Laws, Jobless Workers

by Mike Hall, Oct 9, 2008

Barely three months before the Bush administration turns over the keys to the White House, Bush and his cronies continue their unmitigated disdain for the nation’s workers.

Yesterday, White House spokeswoman Dana Perino said America’s jobless workers should forget about any extension to unemployment insurance (UI). Her advice for workers struggling with the longest long-term unemployment in decades?

Get back to work.

But if, by chance, unemployed workers can find a job in an economy in which there are an average of 2.6 job seekers for every available job—Bush & Co. is seeking to change the nation’s wage and hour laws to ensure workers get even less pay or time off for pay. A group of Democratic U.S. senators and representatives opposing the changes say the proposed rules

substantially weaken wage and hour protections for tens of million of American workers—from nurses and factory workers to police officers and firefighters to waitresses and bartenders.

In late July, the Labor Department’s Wage and Hour Division published numerous proposed changes to the Fair Labor Standards Act (FLSA) that the lawmakers—including Sen. Barack Obama  (D-Ill.), Sen. Edward Kennedy (D-Mass.) and Rep. George Miller (D-Calif.)—say, in comments to the Labor Department, “would substantially weaken workers rights.”

The proposed FLSA changes came less than two weeks after two reports from the U.S. Government Accountability Office found the Wage and Hour Division was failing to conduct thorough investigations—if any at all, in some cases—of employers cheating workers out of wages.

Below are details on the proposed changes to rules on comp time, tipped workers and overtime for salaried employees.

Comp Time

Today, millions of public employees in state and local governments receive compensatory time off instead of cash overtime pay. For more than 20 years, those worker have been allowed to use that comp time for the day or days requested. Under current FLSA rules, employers cannot deny the request if it “does not unduly disrupt the operations of public agency.”

Over the years, when employers have tried to deny workers’ time off, the Labor Department and most courts have upheld that interpretation of the rule.

Bush’s proposed rule would give employers the right to deny the specific time off requested, as long as the worker is allowed to use the comp time “within a reasonable period.” The department claims the change brings it in line with court rulings that give employers greater rights to deny requested comp time off. But as William Lurye, AFL-CIO associate general counsel, writes in the federation’s comments to the proposed rules:

That’s an erroneous assertion….There is not unanimity among the appellate courts. In its haste to change substantially change, this regulation, which will impact millions of workers across the country and eviscerate Congress’s intent, DOL ignores those important cases.

Citing numerous decisions upholding the workers’ right, the AFL-CIO and Democratic lawmakers urge the department to withdraw the rule.

Tipped Workers

Currently, employers of workers who earn tips, such as wait staff, bartenders and others, are allowed to pay workers less ($2.35 an hour) than the federal minimum wage ($6.55 an hour) if the workers’ tips make up the difference. If the combination of the tips and the lower minimum wage—known as a tip credit—exceeds the minimum wage, the tips belong to the worker.

But Lurye warns, if an employer pays the full minimum wage, the proposed rule provides

…implicitly, if not expressly, that an employer may take an employee’s tips if the employer pays the full cash minimum wage.

The senators and representatives write:

Millions of hardworking Americans depend on tips just to make ends meet and for many workers, tips mean the difference between being part of the middle class and falling into poverty.

…The department appears to suggest…that employers can pay employees fixed hourly wages equal to or greater than the federal minimum wage and not permit the employees to keep their tips….We hope the department is not suggesting that employers can—or should—engage in such a practice.

Overtime for Salaried Workers

Under current rules, overtime pay for some workers on a weekly salary is calculated by a somewhat complicated formula known as the “fluctuating work week” (FWW) method. Under that formula, the extra hours are paid at just half the regular rate rather than at the standard time-and-a-half pay for any hours over 40 a week.

Because the regular pay rate is calculated by dividing the weekly salary by the number of hours worked, the more overtime hours a worker puts in, the lower the regular pay rate.

The Democratic lawmakers say the proposed FLSA changes will

undermine workers’ overtime pay because it will result in far more employees whose overtime pay is calculated under the FWW method. It is undisputed that the FWW method has the effect of reducing workers overtime pay.

The AFL-CIO and the Democratic lawmakers have urged the Labor Department to withdraw the proposed rules.

Joining Obama, Kennedy and Miller on the comment submission were Democratic Sens. Sherrod Brown (Ohio), Hillary Rodham Clinton (N.Y.) Christopher Dodd (Conn.), Tom Harkin (Iowa), Barbara Mikulski (Md.), Patty Murray (Wash.), Bernie Sanders (Vt.) and Rep. Lynn Woolsey (Calif.).

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