By Dan Getman and Professor Julius Getman
The Austin American-Statesman, Wednesday, September 15, 2004
Reprinted with the authors' permission
John Kerry needs to keep moving beyond Vietnam and remind voters that he's a Democrat — and that Democrats are willing to fight for the rights of workers. The issues are there, waiting to be addressed. American workers are losing jobs, income and medical benefits while corporate executive salaries aided by a massive tax cut have soared to record highs.
But the worst is yet to come if, as seems likely, the Bush administration's new overtime policies move from regulations to reality. These regulations, which the administration is insisting on despite votes against them in both houses of Congress, will gut the protections of the Fair Labor Standard Act.
They will reduce income, cost jobs and, most importantly, take away free time from workers — all on a massive scale.
Until now, the Fair Labor Standards Act has guaranteed time-and-a-half pay for most employees who work more than 40 hours a week. Current laws limit the types of employees that employers may treat as salaried and "exempt" from the overtime laws to "professional" employees, such as professors, scientists, lawyers, "executives" and "administrative" employees who run businesses. These employees stand to benefit from longer workweeks in other ways (they frequently receive benefits such as tenure, high salaries, commissions, and bonuses that compensate, albeit imperfectly, for the sometimes longer work week).
The new regulations will expand the list of those who can be paid a salary and exempted from overtime to lower-middle-class and middle-class workers who get no such alternative benefits. Virtually every assistant manager of every convenience store and retail outlet in the county will become exempt. Employers will be able to shift workers to a salary of $23,600, then demand unlimited overtime with no additional compensation. What a blessing for employers — more hours of work at less cost. This is the very abuse that FLSA was meant to prevent.
What employer, particularly in these difficult economic times, will be able to resist the allure of free labor? One can only conclude that the very purpose of the Bush administration's proposed overtime overhaul is a generous gift to employers of workers' time and sweat. Current estimates are that 6 million additional workers will lose the protections of the overtime law (though most will not be shifted over until after the election).
Salaried employees who do not have special credentials are easy targets for abuse. We know of salaried employees who are forced to work up to 120 hours per week for their employers — the equivalent of three full-time jobs. Unless the Congress and the next president act together to prevent these changes, excessive work weeks will become the norm. Unions are known as "the folks who gave you the weekend." The Bush administration will be known as the folks who took it back.
The administration claims to be pro-family. But if the new rules are allowed to stand, employees in two-wage earner families will find the previously difficult task of juggling child care and work time well nigh impossible. Both parents and children will suffer.
In addition, workforce reductions will inevitably ensue. An employer who has two 40-hour employees will be tempted to fire one and have the other cover both jobs. Such action would unfortunately make economic sense to employers devoted to the bottom line.
Many in Congress are rightly concerned about the devastating effect the changes will have on individual constituents and on the economy as a whole. The federal overtime law has been one of the bedrock protections of our family and social life. Lying below the surface, it is not always recognized for being one of the foundations of a civilized social order. But it is.
Even many Republicans have been wary of the potential political fallout from taking away overtime protections that have been in place since 1938. The Bush administration has given its largest campaign donors millions of hours of free labor each week. This "gift" is really a "theft" of working people's free time. John Kerry needs to speak out and bring this impending labor crisis to the forefront of public consideration.
Julius Getman is a labor law scholar at the University of Texas School of Law; Dan Getman is an attorney in New Paltz, N.Y., representing employees on overtime cases.