Under current law, employers can give workers time off—paid or unpaid—whenever they want to, for any reason. They can, for example, reward employees who work overtime by giving them unpaid time off at a later date. The employer pays time-and-a-half for the overtime when it’s worked, and then can give an equivalent amount of unpaid time off to repay the employees for the extra time away from their home and family. That’s what a family-friendly employer can do now, with no legislative change required.
But Rep. Martha Roby wants a better, more “flexible” deal for employers. She wants them to be able to withhold the overtime pay until the employee takes compensatory time off (comp time), only paying it out if they can’t agree on a mutually convenient time to take the leave by the end of the year. Roby has introduced a bill, H.R. 1180, “The Working Families Flexibility Act,” to give employers that new right, while pretending to do something for employees.
Why should Rep. Roby stop there? I’d like to propose the “Working Families Super Flexibility Act.” My new bill takes the ideas of H.R. 1180 one step further, providing the greatest possible flexibility to employers and employees. Instead of receiving wages at the time they perform their work, employees can agree to receive credits toward future time off, which will be deposited in a “comp time bank.” The employees will have the freedom to use these credits whenever they want, as long as their employer agrees on the dates for leave. If no mutually convenient time is found before the end of the calendar year, the employees will finally get their earned wages—assuming that the company hasn’t gone out of business (as 400,000 do each year)—and the employer will collect all accrued interest.
For more than 40 years, big business and the Republican party have teamed up to drive down the wages of construction workers by attacking their unions, passing so-called “right-to-work laws”, and weakening or repealing prevailing wage laws— which protect construction wages from downward pressure. They have, unfortunately, been very successful. Construction wages are lower today than they were in 1970, despite 40 years of economic growth and a higher national income.
The real average hourly earnings of production/nonsupervisory construction workers were $26.17 in 1970, $26.00 in 1980, and $23.91 in 1990. Construction workers’ hourly earnings bottomed out at $22.97 in 1993 but have never fully recovered from their 1970 peak and were only $25.97 in 2016.
On a bipartisan basis going back at least to the Reagan administration, the Occupational Safety and Health Administration (OSHA)—the Department of Labor agency that enforces the right of workers to have a safe workplace—has required employers to keep accurate logs of injuries and illnesses, and has fined them if they fail to keep those logs for five years. Every OSHA administrator has recognized the value of this record-keeping, as a way to make employers pay attention to unsafe practices and address them, as well as to ensure accurate statistics for research, to show progress or lack of progress in improving workplace safety, and to help target the most dangerous workplaces.
Nevertheless, in Volks Constructors v Secretary of Labor, a court blocked OSHA from fining employers for various record-keeping failures that occurred more than 6 months before the citation. The court ruled that OSHA’s regulations didn’t clearly establish that the duty to maintain accurate records is an ongoing duty rather than just a duty to record each incident accurately at the time it occurs. Thus, if OSHA finds that an employer has for many years been hiding the fact that workers have repeatedly been burned, for example, or has failed to record numerous forklift accidents and injuries, it can only cite the employer for inaccuracies arising within the past six months.
Yesterday, the Trump administration released its budget blueprint, which, while it’s unlikely to be passed in its current form by Congress, sets out the administration’s priorities for the years ahead. Simply put, the Trump budget transfers funds from programs that keep people fed and sheltered, protect them from disease and environmental threats, or educate them—and gives those funds to defense contractors to build more weapons, planes, and ships. But it also seems to have the purpose of making America more ignorant, less informed about the challenges and problems that face us, and less able to understand and develop solutions to those challenges and problems. It could be called a “lobotomy budget” because it effectively removes big pieces of the government’s brain.
Here are some examples of how the budget leaves students less educated and less prepared for the 21st century workforce:
- The budget eliminates the Federal Supplemental Educational Opportunity Grant, a need-based grant program that helps 1.6 million undergraduate students pay for college.
- The budget cuts $1.2 billion for the 21st Century Community Learning Center before and after school programs:
EPI executive board member Paul Booth has been and continues to be a tireless advocate for American working people, and, in fact, for working people all over the world. Even though he is stepping down from his day job at AFSCME, we trust that Paul’s long career of union organizing and advocating for workers and social justice is far from over.
As a trusted advisor to EPI, Paul has served an important role—often encouraging us to take risks and see the long-game. He never stops pushing to make us more effective, to work harder, to make a bigger difference in the world and in the lives of the America’s working families.
By now, anyone following Andrew Puzder’s nomination to be the secretary of labor knows that the restaurant chain he leads has a long history of cheating its workers out of wages they earned. Not just the franchisees that own the bulk of the Carl’s Jr. and Hardees restaurants, but CKE itself, the franchisor corporation, has been found guilty of wage theft and compelled to pay back tens of thousands of dollars of wages stolen from workers earning poverty level wages. The U.S. Department of Labor, which he seeks to head, is the agency that busted Puzder’s corporation.
Today, the New York Times reports that Puzder violated immigration laws, too, not in his role as CEO of the restaurant chain, but in his private life. For years, Puzder employed a housekeeper who was not authorized to work in the United States, and also failed to pay employment taxes.
Puzder wants to be the chief enforcer of the nation’s labor laws, but his history of flouting those laws makes it clear that he is unfit for the job. Puzder’s violations of immigration law make him a strange choice to be a cabinet officer in President Donald Trump’s administration, given the president’s near hysteria about the presence of undocumented immigrant workers in the United States.
The University of Michigan and most of its alumni long for a national champion football team, or at least a team that can beat Ohio State. What the school and its publicly-elected Regents are willing to pay to get such a team is alarming, especially when compared with its willingness to pay for scholars and researchers.
Michigan is committed to paying head coach Jim Harbaugh’s top three assistants $1 million each per year. Harbaugh got an eye-popping $7 million contract to leave the NFL and restore glory to Michigan’s wolverines. But these are millionaire assistant coaches.
The Associated Press and the Detroit Free Press report that the defensive coordinator, Don Brown, and the offensive coordinator, Tim Drevno, have been retained with contracts worth more than $10 million combined over the next five years. The passing coordinator, Pep Hamilton, was lured from the Cleveland Browns with a four-year, $4.25 million deal.
Michigan is a state whose biggest city’s infrastructure is nightmarishly bad, whose school buildings are crumbling, and which only recently emerged from bankruptcy. Another large city, Flint, is in receivership and saved money by cutting corners on the safety of its water supply, leading to the poisoning of thousands of children and other residents.
But the state can afford to make its top school’s assistant coaches millionaires.
Why can’t it then pay overtime to its postdoctoral researchers or give them raises to $47,476 as it planned to before a federal judge blocked the Department of Labor’s overtime rule from taking effect? The University of Michigan was a leader in the campaign to fight the overtime rule, claiming it couldn’t afford to pay its PhD researchers for the 15-20 hours of overtime they work in an average week. University officials claimed U of M couldn’t even afford to give the postdocs raises of $3,000-$5,000 to put them above the threshold that permits exemption from overtime pay.
But it can afford to make millionaires of the assistant coaches.
This says something appalling about how far the University of Michigan and its current leaders have strayed from the mission of the university, which is one of the oldest public research universities in the nation. They value winning football games far more than they value the core research done by the university’s young scholars. They have little respect for either the researchers or the work they do.
As an alumnus of the University of Michigan Law School, it makes me sick.
Read more on this topic: Universities oppose paying their postdocs overtime, but pay coaches millions of dollars.
The Missouri legislature is poised to pass bills to weaken unions and clear the way for corporate dominance in the state. So-called “right-to-work” laws force unions to represent employees who pay nothing toward the costs of collective bargaining. It’s bad enough that these laws allow them to get the benefits of higher wages and better fringe benefits without paying their fair share. What’s worse is that these laws force unions to defend non-dues payers when they need to be defended against unjust discipline or being fired. Arbitration can cost thousands of dollars, including the cost of hiring lawyers.
These bills won’t lead to more manufacturing plants or better jobs or anything good. They lead only to weaker unions, less bargaining power for Missouri workers, and lower wages.
Wages are 3.1 percent lower in so-called “right to work” (RTW) states, for union and nonunion workers alike—after correctly accounting for differences in cost of living, demographics, and labor market characteristics. The negative impact of RTW laws translates to $1,558 less a year in earnings for a typical full-time worker.
Washington University in St. Louis professor Jake Rosenfeld finds that the dramatic decline in union density since 1979 has resulted in far lower wages for nonunion workers, an impact larger than the 5 percent effect of globalization on their wages. Specifically, nonunion men lacking a college degree would have earned 8 percent or $3,016 annually, more in 2013 if unions had remained as strong as they were in 1979.
Between 1979 and 2013, the share of private sector workers in a union has fallen from about 34 percent to 11 percent among men, and from 16 percent to 6 percent among women. The authors note that unions keep wages high for nonunion workers for several reasons: union agreements set wage standards and a strong union presence prompts managers to keep wages high in order to prevent workers from organizing or their employees from leaving. Moreover, unions set industry-wide norms, influencing the moral economy.
Rosenfeld’s report shows that working class men have felt the decline in unionization the hardest; their paychecks are noticeably smaller than if unions had remained as strong as they were almost 40 years ago. Rebuilding collective bargaining is one of the tools we have to reinvigorate wage growth, for low and middle-wage workers.
That’s why the so called “right-to-work” efforts make no sense. We need workers to have more bargaining power, to negotiate for higher wages. The RTW laws are designed by the business lobby to benefit corporate titans.
One wonders why state legislators go along with them when they hurt the vast majority of their constituents.
In 2011 and 2012 two states, New Hampshire and Indiana, debated the same bill: so-called “right-to-work” legislation, pushed by corporate lobbyists and the American Legislative Exchange Council (ALEC), designed to weaken unions financially and pave the way for greater corporate dominance of state politics. New Hampshire’s governor vetoed the bill in 2011. Indiana, by contrast, enacted it in 2012. It is instructive to compare the two states. By almost any measure, the economy of New Hampshire is stronger and its citizens are better off, on average, than the citizens of Indiana. Right-to-work did not improve the Indiana economy relative to New Hampshire’s, and no one should be fooled into thinking that passing right-to-work now will improve the New Hampshire economy.
So-called “right-to-work” laws prohibits unions and employers from agreeing to collective bargaining agreements that require employees covered by the agreement to pay their fair share of the costs of negotiating and enforcing it. The only right that “right-to-work” creates is the right for free riders to get the benefit of higher union wages and protections against unfair discipline without contributing any dues or fees for that privilege.
EPI published two reports critical of the New Hampshire legislation, one in 2011 and another in 2012, pointing out that the only real purpose and effects of these laws are lowering wages and weakening unions. As the figure below suggests, such laws do nothing to create jobs, and they don’t give anyone a right to work, but they are associated with lower wages—lower on average by more than 3 percent, or $1,500 per worker.
President-elect Donald Trump announced that he plans to nominate fast food CEO Andrew Puzder to head the Department of Labor (DOL). Puzder, who makes millions as a low-wage employer, fails every test for a Labor Secretary. DOL’s mission is to improve the wages and working conditions of working Americans, but Puzder wants to keep wages low and threatens to replace his fast food chain’s employees with robots if the minimum wage rises enough to crimp his profits.
He’s opposed to the new overtime rule that gave the right to time and a half pay to millions of salaried employees earning less than $47,476 a year. Walmart has already raised its managers’ pay, as did about half of all big retailers, even before the rule was supposed to take effect on December 1. But Puzder wants to kill it so he can keep working low-paid employees without paying them a dime extra for their overtime hours.
Judge Amos Mazzant, the judge who blocked enforcement of the Department of Labor’s new overtime rule, said many things that aren’t true in his opinion, including misstatements of historical fact such as when a minimum salary for exemption was first included in the regulations (it was right from the beginning, in 1938, not two years later). But Mazzant gets judicial precedent wrong, too.
The decisions of the 5th Circuit Court of Appeals control in Judge Mazzant’s Texas district. Importantly, the 5th Circuit ruled in 1966, in Wirtz v. Mississippi Publishers Corp, that the salary level test for exemption is rationally related to the determination of whether an employee is employed in a bona fide executive capacity. In a case against a publisher that claimed its executives were exempt even though it paid them less than the minimum salary for exemption, the Court of Appeals forcefully rejected the argument that the regulations are so ambiguous as to make the salary requirement arbitrary and capricious.
The decision of a judge in Texas to block the Department of Labor’s new regulations guaranteeing overtime pay to millions of workers is a legal travesty, so poorly reasoned that it invites questions about the judge’s motivation. The decision is more than just bad law, however, it is also a financial blow to people who had every reason to expect that their lives were about to be made a little easier.
The new rules, which were set to take effect today, on December 1, would have required employers to pay time and a half the regular rate of pay for each hour worked beyond 40 in a week to any employee paid less than $47,476 a year. Prior to the Obama rule, employees earning as little as $23,660 could be called “executive” or “administrative” and denied overtime pay even if they spent the majority of their workweek scrubbing floors or stocking shelves. There are 12.5 million salaried workers earning between $23,660 and $47,476, and every one of them would be entitled to overtime pay under the new rule.
People all across America who have been working 5, 10, or even 20 hours of overtime a week without any extra compensation had been told by their employers that that their long hours were about to end, thanks to the Department of Labor’s new overtime rules. Or they were told that they were going to be paid extra for their extra hours of work, or that, at least, they were going to get salary increases to make those kinds of long hours more financially rewarding. Now, many employers have put those plans on hold. At EPI we’ve heard from a number of the affected workers.
Judge Amos Mazzant’s opinion to block the Department of Labor’s new overtime rule is poorly reasoned and factually inaccurate. Judge Mazzant does not know the history of the Fair Labor Standards Act and he appears not to understand Chevron deference, a rule constructed by the U.S. Supreme Court to guide judicial review of federal agency regulatory decisions.
Let’s begin with Judge Mazzant’s astonishing unfamiliarity with the FLSA. Judge Mazzant incorrectly implies on page 2 of his Opinion that the initial regulations that accompanied the enactment of the FLSA in 1938 did not include a salary test:
“The Department’s initial regulations, found in 29 C.F.R. § 541, defined ‘executive,’ ‘administrative,’ and ‘professional’ employees based on the duties they performed in 1938. Two years later, the Department revised the regulations to require EAP employees to be paid on a salary basis.”
In fact, it was not “two years later” but right from the get-go on October 20, 1938 that the Secretary defined the exemption for executive and administrative employees to require a minimum salary of “not less than $30 (exclusive of board, lodging, or other facilities) for a workweek.”
CBO released a report on the economic impact of repealing the Department of Labor’s new overtime rule, which raises the salary level for exemption from $23,660 a year to $47,476, thereby making about 4 million employees newly eligible for overtime pay and strengthening the right to overtime pay for about 8.5 million more. CBO concludes that repealing the new rule would have no appreciable effect on employment, would cut the pay of about 900,000 salaried employees who would lose the right to be paid for overtime they actually work, and would increase employer profits.
CBO’s analysis differs in significant ways from the Department of Labor’s, which predicted much greater pay raises for newly eligible workers and much lower compliance costs for employers. CBO exaggerates the extent to which repealing the rule would increase employer profits because it inflates the compliance costs that employers would avoid if the rule were repealed.
Labor mobility is fundamental to the ability to earn good wages. The improvement in incomes and living standards over the centuries is tied tightly to the growing ability of workers to quit the job they have and take another. And it is a timeless truth that employers will try to find new ways to hamper their employees’ legal right to leave. Increasingly, they are turning to non-compete clauses that they slip into the fine print of employment contracts. Thirty million U.S. employees, many of them relatively low wage workers, are bound by non-competes.
Peasants in medieval times were generally not permitted to leave the land on which they were born, and throughout Europe and Russia they were essentially owned by the owner of the land, their lord and master. The use of indentured servitude in the cities was a less onerous but still heavy burden on young workers, who were forced to work for years with little or no compensation for a single master, whose abuse or mistreatment usually had no remedy.
Slavery is the most extreme example of a legal limitation on labor mobility and the most destructive. Slavery in the United States not only brutalized and impoverished the enslaved, it dragged down the wages of anyone forced into competition with them. Slavery’s effects on free labor were an additional reason beyond simple morality for Abraham Lincoln and the free soil movement to oppose slavery. How could free construction workers, for example, demand higher wages if their employer’s competitor was using unpaid, enslaved labor?
One of President Obama’s most important contributions to better pay and working conditions in the United States is his executive order on Fair Pay and Safe Workplaces, which he issued two years ago and is finally taking effect this month. The order, which addresses wage theft and on-the-job hazards, including sexual harassment and race discrimination, affects 25 million employees working for businesses that provide goods and services under contract to the federal government – businesses that range from janitorial services to ship builders.
The first provisions are set to take effect in two weeks – unless a lawsuit filed in Texas by various business groups succeeds in delaying or blocking enforcement of the rules.
Why is the Executive Order Needed?
The federal government purchases over $500 billion in goods and services from the private sector, and the firms it deals with employ about 20 percent of the nation’s total workforce. It is important that the government chooses to deal with honest employers and that, when given a choice of two otherwise similar contractors, it chooses to do business with the one that demonstrates superior integrity and a greater inclination to obey the law. That is common sense.
The final rule implementing President Obama’s executive order on fair pay and safe workplaces has been issued, along with guidance from the Department of Labor. This is a big deal, affecting as many as 28 million employees in the workforce of hundreds of thousands of government contractors.
The executive order puts in place a commonsense principle: when choosing which companies to do business with, choose the ones that follow the rules rather than the law breakers. Tax dollars should go to contractors with a record of integrity and business ethics, and should not be spent on bad actors. The executive order makes it clear that violations of labor law are an indication of bad ethics and a lack of integrity that must be considered when contracts are awarded.
As part of the contract approval process, federal contractors will have to reveal to the contracting agency any labor law violations they have been found guilty of committing in the previous three years. An agency can refuse to grant a contract to a company that has not resolved its violations. Today, by contrast, it is perfectly normal that a company with several OSHA violations, a National Labor Relations Act violation, and a judgment for wage theft and overtime pay violations could win a $200 million contract from the Department of Transportation or the Defense Department. In fact, the GAO found that almost two-thirds of the 50 largest wage-and-hour violations and almost 40 percent of the 50 largest workplace health-and-safety penalties issued between FY 2005 and FY 2009 were made against companies that went on to receive new government contracts.
The Department of Labor has issued an update to its overtime rules that will bring an additional 12.5 million salaried employees under the exemption threshold, the level below which they are guaranteed overtime pay if they work more than 40 hours in a week, regardless of their job title or duties. The Department of Labor estimates that about 4 million employees will gain the right to overtime pay for the first time, and 8 million more will have their right to overtime pay strengthened.
Business groups know that with wages stagnant and profits at all-time highs, they are unsympathetic opponents of the rule, so they have been focusing attention on non-profits. The Society of Human Resources Management, for example, has adopted Operation Smile, a non-profit that helps coordinate cleft palate surgeries in less-developed countries, as its poster child. An Operation Smile executive testified in the U.S. Senate against the new overtime rule, claiming that it would raise the organization’s costs dramatically and reduce its ability to deliver cleft palate surgeries:
“Yet still, this proposed update will increase our payroll cost by nearly $1 million annually affecting over 50 percent of our workforce. This is not a financial cost we can absorb. Considering that a cleft lip surgery costs an average of $240, this would mean nearly 4,200 fewer surgeries provided globally each year.”
Gretchen Carlson is doing working Americans a real service by suing Roger Ailes, the CEO of Fox News, for sexual harassment. First, when a powerful, high profile CEO like Ailes is called out for disgusting behavior, it reminds workers and their bosses everywhere that women have a legal right to be treated with respect in the workplace.
Carlson is doing something else: she is boldly fighting the latest technique employers are using to avoid justice, to get away with sex or race discrimination, and to escape lawsuits for wage theft—putting binding arbitration clauses in employment contracts, which keeps cases out of the state and federal courts and push them into private dispute resolution systems that systematically favor employers.
Millions of working Americans are subject to arbitration clauses that they don’t even know about. More and more employers are forcing their employees, as a condition of being hired or of remaining employed, to waive the right to sue in a court if their employer violates the law. Workers must accept a process they often don’t understand, where the costs of seeking justice might be far higher even as their chances of winning or obtaining a just award of damages are reduced dramatically.
The system-wide budget for the University of Tennessee is more than $2 billion a year. Rep. Phil Roe (R-Tenn.) claims that the new Department of Labor overtime rule, which requires time-and-a-half overtime pay for many salaried employees earning less than $47,476 a year, will add $9 million in new costs. This is less than half of 1 percent of the annual budget, yet Rep. Roe claims this will force a 2 percent tuition increase. That does not add up.
Rep. Roe has not presented any evidence that the University of Tennessee will actually experience $9 million in new overtime costs, and given his math problems, there is reason to doubt. But to put his claims in perspective, we should note that without any new overtime or minimum wage costs, the University of Tennessee has been raising its tuition in response to falling state appropriations. As a recent University of Tennessee trustees’ report declared:
State appropriations to higher education have been stagnant or declining for several years… Higher education has responded to the decline in state appropriations by increasing tuition, providing no salary increases to faculty and staff, not filling or eliminating vacant positions, and becoming more efficient in the delivery of instruction, research, and public services.
In 2014, for example, tuition for various classes of in-state and out-of-state students increased between 2 and 6 percent, even though salaries were frozen. The drivers of rising tuition costs have nothing to do with Department of Labor regulations. But with appropriations shrinking, one can imagine that the desire of university officials to get uncompensated overtime work from its employees is increasing, and the updated DOL rules will provide significant protection from excessive overwork.
Universities oppose paying their postdocs overtime, but will pay football coaches millions of dollars
Colleges and universities have made the indefensible argument that they can’t afford to pay their low-level salaried employees for their overtime under the Department of Labor’s new overtime rule. Universities have singled out postdoctoral researchers, many of whom spend 60 hours a week or more running the labs that turn out the nation’s most important scientific advances, as a group of employees that would just cost too much if they had to be paid for the extra hours they work each week.
Analyzed on their own, these postdocs—who are among the best-educated and most valuable employees in the nation, on whom our future health and prosperity depend, in part—obviously deserve to be paid for their overtime hours. After all, at a salary of $42,000 a year, these postdocs are being paid about $13.50 an hour (less than fast food workers are demanding).
When juxtaposed against the inflated salaries of university administrators with less stellar academic credentials making $200,000 to $3 million a year, the case for overtime compensation is only stronger. The comparison that really drives home how unfairly universities are treating their postdocs, however, is with the universities’ football coaches.
Note: The highest available head coach salary was selected for each state. Source: Data from USA Today and HKM Employment Attorneys LLP
Universities oppose paying their postdocs overtime, but will pay football coaches millions of dollars: Top NCAA College Football Coaches’ Salaries by State, 2015
University of Alabama
University of Alaska
University of Arkansas
University of Colorado
University of Connecticut
University of Delaware
University of Georgia
University of Hawaii
University of Illinois
University of Iowa
University of Kentucky
University of Maine
University of Maryland
University of Michigan
University of Minnesota
University of Mississippi
University of Missouri
University of Montana
University of Nebraska
University of Nevada
University of New Hampshire
University of New Mexico
University of Buffalo
North Carolina State
University of North Dakota
University of Oklahoma
University of Oregon
University of Rhode Island
University of South Carolina
University of South Dakota
University of Tennessee
University of Texas
University of Utah
University of Vermont
University of Virginia
University of Washington
University of West Virginia
University of Wisconsin
University of Wyoming
Note: The highest available head coach salary was selected for each state.
Source: Data from USA Today and HKM Employment Attorneys LLP
The Department of Labor has issued a new rule, which expands the right to be paid time-and-a-half for overtime to salaried employees who earn less than $47,476 a year. Business groups that oppose the new rule claim that salaried employees will lose important work schedule flexibility when they become eligible for overtime pay. But the evidence shows this fear is unfounded, and, in fact, salaried workers who earn less than $50,000 a year currently have barely more flexibility at work than hourly paid employees.
An EPI analysis using General Social Survey data by Penn State labor economist Lonnie Golden shows that:
- Almost half—47 percent—of salaried workers earning less than $50,000 a year report that on a daily basis they “never” or “rarely” are allowed to change their work starting time and quitting times, while only 20 percent of salaried workers who earn $60,000 or more per year report never or rarely being allowed to change their schedules.
- Salaried workers earning less than $50,000 a year have no more ability to take time off during work for personal or family matters than hourly workers at the same level. Thus, “switching” employees from salaried to hourly status or requiring employers to track or monitor their hours for purposes of overtime pay would not reduce this valuable type of work schedule flexibility for employees. If we consider regularly being required to work overtime an indicator of inflexibility in one’s work schedule, salaried workers earning between $25,000 and $50,000 a year have about the same or an even greater likelihood of working mandatory overtime than their hourly counterparts. Thus, raising the overtime pay salary threshold for exemption to $47,476 should, if anything, provide the newly eligible workers somewhat greater flexibility to refuse unwelcome work beyond their usual number of hours per week.
In light of these conditions and findings, it is unsurprising that salaried workers generally report higher levels of work-family conflict and work stress than do hourly paid workers. It is also important to note that nothing in the new rule requires any employer to change any employee from salaried pay to hourly pay. That decision is entirely within an employer’s discretion. Many employers, including small business owners such as the National Retail Federation’s witness at a congressional hearing last October, already track the hours of salaried employees and provide comp time and bonuses based on overtime hours.
Explaining the differences between EPI and DOL estimates of workers affected by the new overtime salary threshold
In our report on the new overtime rule, EPI estimates that it will directly benefit 12.5 million workers. At first blush, our evaluation of the impact of the rule differs significantly from the widely circulated Department of Labor (DOL) assessment that 4.2 million workers will directly benefit from raising the salary threshold—meaning they are currently legitimately exempt because of their duties, but will be covered by the new threshold. DOL also notes that 8.9 million workers, meanwhile, will have their rights strengthened by the higher salary threshold, for a total of 13.1 million directly affected by the rule (600,000 more than our estimate). Additionally, of the 8.9 million salaried workers whose overtime rights would be strengthened, DOL notes that about 732,000 regularly work more than 40 hours a week, but are currently incorrectly classified as ineligible for overtime—bringing the total number of workers DOL estimates will be newly eligible for overtime pay up to 5 million.
We believe that many more workers will be newly eligible for overtime pay. Our assessment differs from DOL’s because the department assumes, incorrectly in our view, that overtime eligibility was not eroded by changes to the OT rules implemented by the Bush administration in 2004. We provided detailed evidence last year showing that overtime eligibility has been severely eroded since the late 1990s, when DOL computed the exemption probability estimates by occupation that it still relies on today. We concluded that:
…reliance on judgments made in 1998 provides an unreasonably sunny view of today’s workplaces that ignores changes in the law implemented in 2004, various court decisions, and the corresponding behavior of employers to limit the ability of workers to obtain overtime pay.
The 4.2 million employees DOL estimates will be newly entitled to overtime pay are limited to those who both meet duties tests establishing that their primary duty is executive, administrative or professional, and earn a salary higher than the old exemption threshold ($23,660 a year) but less than $47,476. For example, an accountant earning $40,000 or a bank branch manager earning $45,000 are legitimately exempt under the current rules but will be entitled to overtime pay because their salary is below the new threshold.
Tomorrow, the Vice President is expected to announce the U.S. Department of Labor’s issuance of the final rule on overtime for salaried employees. Rumor has it that the rule will guarantee overtime pay to anyone working more than 40 hours in a week if their salary is less than $47,500 a year or $913 a week. That is less than DOL proposed last year, but still a very significant increase that will mean millions of employees will get raises or have their weekly hours scaled back to a more humane level. About 12.5 million employees will either be newly entitled to overtime pay or will have their rights strengthened so that they don’t have to rely on a complicated analysis of their job duties to determine that they have a right to time and a half for their overtime hours.
Reporters and Hill staffers wonder who are the people who will get raises, a question that is both easy to answer and difficult. The easy part is that employees earning close to, but less than, the new threshold will get raises if they typically work overtime. It will be cheaper and easier for the employer just to give them a raise of a couple of thousand dollars than to track their hours and pay them time and a half.
An obvious example is postdoctoral researchers, who typically earn $42,000 to $45,000, who work 50 to 60 hours a week, or more, conducting critical cancer and other biomedical research, physics, chemistry, biology, or math research. Paying them overtime for their normal, excessive workweek would be so expensive that their universities will give them a raise above the threshold in order to avoid it. The result will not just be better-rewarded researchers, but less turnover and stronger commitments to work that might benefit the entire nation and even the world.
In the comments it submitted for the rule-making record, the American Bankers Association provided good examples of employees in its industry who will benefit. The Bankers testified that banks commonly have various managers, including check processing managers, branch managers, IT managers, credit analysts, and compliance officers, who are currently treated as exempt and are denied overtime pay. But in many areas, their median salaries are fairly low: $45,400 for branch managers in Akron, Ohio and $46,300 in El Paso, Texas. Check Processing Managers in Little Rock, Arkansas earn a median salary of $45,800 while they earn a median $45,200 in Brownsville, Texas. It’s likely that their employers will give them all raises if they currently work even four or five hours of overtime a week.
It gets more difficult to predict when the salaries are lower. Will a university that pays its postdocs an exploitative $38,000 a year give them a raise above the new threshold? It probably depends on whether the postdocs are working more than 50 hours a week, at which point it’s cheaper to pay the threshold salary for exemption than to pay for each hour of overtime at 1.5 times the regular rate of pay.
Many reporters have told me that they are paid less than the salary threshold but are treated as exempt and denied any overtime pay. Reporters in high-cost areas such as New York, Washington, DC, or Boston are almost certainly going to receive salary increases, unless their pay is atypically low. I imagine that even in the South, many reporters are paid enough (and their hours are long enough) that a salary increase will be cheaper for their employer than paying overtime.
They probably won’t all get salary increases, but 2.6 million salaried employees covered by the Fair Labor Standards Act earn between $23,660 and $47,500. If they work substantial amounts of overtime now, they have a good chance that their salaries will be raised above the new exemption threshold.
The White House released a report this morning that illuminates another part of the complex problem of stagnating wages—the rise of non-compete agreements and their spread to low-wage employment. Non-compete agreements, or “non-competes,” are contracts that ban workers at one company from going to work for a competing employer within a certain period of time after leaving a job. They can make sense when a worker has trade secrets or intellectual property in which the employer has invested. But they make no sense when applied to health care workers, retail and restaurant employees, and other low wage employees. All they do is limit opportunity and shackle people to an employer who will have less incentive to give a raise to retain them.
Employers are imposing non-competes in occupations with no possible trade secret justification—even doggy day care providers! The Treasury Department has found that one in seven Americans earning less than $40,000 a year is subject to a non-compete. This is astonishing, and shows how easily businesses abuse their power over employees and restrict their rights, as they increasingly do with forced arbitration clauses that take away the right of workers to seek justice in the courts. In both cases, workers often accept jobs without ever knowing that they have signed their rights away.
The Treasury Department has done groundbreaking work to show that non-competes have a measurable, negative effect on wages, as one would expect from a practice that limits employee mobility. The report also provides evidence that non-competes can reduce entrepreneurship and innovation.
The Department of Labor (DOL) is about to release a final rule that will require overtime pay for millions of salaried employees who currently can be required to work long hours for no more pay than they receive for a 40-hour week. This will give them either more money or more time with their families or for themselves.
But the overtime rule naturally makes some employers unhappy, since they can currently get 60 hours of work from many employees for only 40 hours of pay. Even some non-profit human service providers, many of which are not even covered by the Fair Labor Standards Act (FLSA), oppose DOL’s updated rule.
An association of community providers serving people with intellectual and developmental disabilities (the American Network of Community Options and Resources, or ANCOR) commissioned a “Cost Impact Scoring Memo” by a company called Avalere to estimate the impact of the proposed overtime rule on its member agencies. Neither the survey questions, the actual responses, nor the response rate were included in Avalere’s report. But it is clear that the cost estimates are deeply flawed.
For more than two years, the Obama administration has been working on restoring and strengthening working people’s right to receive overtime pay for working more than 40 hours per week. It’s been reported that the salary threshold under which all workers, regardless of their title or responsibilities, will be eligible for overtime will be set at $47,000 a year. While this is slightly lower than DOL’s original proposal, it represents a significant step forward in the effort to boost wages for working people.
If the salary threshold is indeed set at $47,000, it will directly benefit 12.5 million workers. 4.8 million workers will be newly eligible for overtime protections and another 7.6 million will be more easily able to prove their eligibility. All told, about 33 percent of the salaried workforce will be eligible for overtime, regardless of their duties on the job.
By restoring their right to be paid for the hours they work, President Obama and Secretary of Labor Perez are giving a raise to millions of working- and middle-class Americans. They deserve praise for their efforts.
On September 11, 2001, almost 3,000 people died in the attacks on the World Trade Center, the Pentagon, and the airliner crash in Pennsylvania. That tragedy is being compounded by the growing toll of cancer, lung disease and other illnesses related to the attack, particularly in the New York metro area, where first responders were exposed to a sickening mix of chemical and biological toxins. USA Today reported that “more than 9,000 claimants have been determined eligible for compensation of medical bills and other expenses,” and that 2,620 of the approved cases were cancer-related. This second wave of illness and death is taking place out of the public spotlight, but it is real and is causing suffering in thousands of families.
During the years since 9/11, a much larger wave of workplace deaths has been crashing down on American families without drawing much attention from the public or the media. Every year, more people are killed from injuries in the workplace than were killed on September 11, 2001. The number of fatal injuries has been as high as 5,840 but never lower than 4,551—this translates into roughly 65,000 unnecessary deaths resulting from negligence or the reckless indifference of employers who continue to send workers into unshored trenches, onto roofs without fall protection, into confined spaces filled with toxic gas, and into factories and mills with dangerous levels of explosive dust.
The U.S. Department of Labor is about to issue a final rule that will increase the number of people entitled to overtime pay when they work more than 40 hours in a week. The rule will simply say, in effect, that if an employee earns less than $50,440 a year (or close to that—we won’t know the final number until the rule is released), she must be paid time and a half when she works more than 40 hours a week, even if she is a salaried employee, and even if her employer calls her a manager, professional, or supervisor.
This is a consequential move, which will improve the lives of many working people in a number of ways. Millions of employees who work long hours will get paid overtime for the first time. Millions of other workers who have been working long hours, at a cost to their health and their families, will have their hours reduced to 40 hours a week. Millions more will get a raise above the threshold, because their employer can continue to avoid paying overtime. And hundreds of thousands of people will get jobs because employers will reduce the hours of some employees to avoid paying overtime and hire additional people to do the work at straight time wages.
Many colleges and universities have complained that they cannot afford it. They don’t want to pay for overtime hours that have been free for years. At a congressional field hearing in March, the University of Michigan’s associate vice president for Human Resources said it would be “cost prohibitive” to raise salaries or pay overtime for post-doctoral researchers and others earning less than $50,000 a year. The coalition of universities and colleges lobbying to weaken the rule suggests a salary threshold “between $29,172 and $40,352” as the point where overtime pay could be denied. The U-M associate vice president went on to conclude that, “The climate for most colleges and universities in the U.S. is one of ongoing financial pressures that would curtail hiring new employees or increasing compensation as a result of these FLSA changes.”
A trial court in Wisconsin has ruled that the state’s new law banning union contracts that make every employee the union represents pay his fair share of the costs of representation is unconstitutional.
The union plaintiffs and the court took a fairly novel approach to this issue and ruled on grounds I had never considered: compelling a union to represent non-dues-paying free riders (as the law does) means the state is taking the union members’ dues and forcing them to spend it on free riders without any compensation by the state. It’s an unconstitutional taking without just compensation, in violation of Article 1, section 13 of the Wisconsin constitution. A similar argument under the Fifth Amendment of the U.S. Constitution was made by Judge Diane Wood, dissenting in Sweeney v. Pence, 767 F3d 654, 683-84 (7th Cir 2014), where the majority upheld Indiana’s identical law.
The state requires unions to represent every member of the bargaining unit fairly and equally, so the union can’t avoid spending from its treasury when a non-dues-payer demands that the union take his grievance, in a situation where it would take a union member’s grievance. That representation can involve arbitration fees and the costs of a lawyer, which can easily exceed $10,000. The state imposes this burden on the union for the “public purpose [of] making the business climate in the state more favorable,” but it offers the union no compensation at all. The court rejected the notion that giving the union exclusive bargaining rights was sufficient compensation: “The proposition that winning an election is sufficient compensation and that all subsequent work must be done for free does not make any more sense than the proposition that there is a free lunch.”