As you know, the Department
of Labor’s (DOL) final rule on the white-collar exemptions to the Fair
Labor Standards Act (FLSA) is scheduled to take effect on August 23. However,
opponents of the FLSA revisions are fervently contesting the application and
effect of these regulations.
The opposition efforts, headed by Senators Tom Harkin (D-IA) and Judd Gregg
(R-NH), promise (if successful) to further complicate the overtime regulations
for employers and human resource directors who will be administering the FLSA
regulations. The two key overtime rule amendments, the Harkin amendment and
the Gregg amendment, were attached to the Foreign Sales Corporation/Extraterritorial
Act (S. 1637) and passed by the U.S. Senate on May 4. The Senate then passed
the full bill on May 11, leaving the Harkin and Gregg amendments in effect.
The bill still needs to pass the House of Representatives before going to President
Bush for signature or veto, which will ultimately determine what happens to
the DOL's final regulations.
The Gregg amendment states that for 55 enumerated jobs/job categories, all the
overtime pay rights they held as of March 31, 2003, are retained, and to the
extent the new rule takes away any overtime rights, the rule does not apply
to the enumerated jobs/job categories. Many of the enumerated jobs/job categories
were nonexempt as of March 31 and would likewise remain nonexempt under the
final regulations. Some of the identified jobs and job categories include blue-collar
workers, production-line employees, computer programmers, teachers, journalists,
athletic trainers, and outside sales employees. The Gregg amendment would require
any employee who earns less than $23,660 a year to be nonexempt, and the amendment
does not allow a salary-level exception for teachers and certain other professionals
that the final regulations allow. The Gregg amendment is designed to protect
many jobs and job categories from otherwise being exempt from overtime.
The revised Harkin amendment would allow for the increase in salary that the final regulations provide, but would "freeze" in place all other aspects of the white-collar regulations at their pre-March 2003 requirements, thus protecting all workers that were nonexempt as of March 31, 2003, from becoming exempt under the final regulations.
Efforts are also underway in the House of Representatives to block the new regulations. Several pro-labor Republicans, Representatives Frank LoBiondo (R-NJ) and Steve LaTourette (R-Ohio), are seeking an up-or-down vote on an amendment that would block implementation of parts of the final rule.
Human resource professionals should carefully monitor the situation in Congress regarding these legislative efforts in the event that action occurs before August 23 that would alter the implementation of the final FLSA regulations. In the meantime, however, human resource professionals need to begin implementing the final regulations, so as to be ready by the August 23 deadline.
This article was provided by Jennifer M. Vogel, BERENS & TATE, P.C., Omaha, NE, Phone: 402-391-1991, Web site: www.berenstate.com, Email: berens@berenstate.com.© 2004 Berens & Tate, P.C. Reprinted with permission.
Council's Personnel Law Update and Public Sector Employment Law Update can help you stay on top of the most recent state and federal developments in employment law, including any legislative action that impacts the DOL’s new FLSA white-collar regulations. Click on the links above for more information, including detailed agendas, dates, and locations.