WHEREAS:

On March 31, 2003, the Bush administration began an aggressive effort to take overtime rights away from workers. On that date new regulations were proposed under the Fair Labor Standards Act (FLSA) that would have eliminated overtime for at least 8 million workers, whether in the form of pay or comp time; and

WHEREAS:

The regulations were finalized on April 23, 2004 with an effective date of August 23, 2004. The labor movement successfully pressured the Bush administration to retreat on many of its proposed changes. However, the final regulations contain changes that could still result in millions of workers losing overtime protections; and

WHEREAS:

The FLSA regulations that were changed are the professional, administrative and executive exemptions, which are commonly referred to as the "white collar" exemptions. Employers can exempt from the minimum wage and overtime protections of the FLSA workers who satisfy the "duties tests" and salary requirements. The final regulations will make it easier for employers to broadly classify workers as exempt; and

WHEREAS:

DOL failed in its stated goal of clarifying and modernizing the current regulations to reflect a contemporary workplace and to reduce the level of litigation. The actual impact of its final regulations will be increased litigation as courts are asked to determine the meaning and intent of ambiguous provisions that replace language in the current regulations that had been clarified over 50 years of case law and DOL interpretations and enforcement; and

WHEREAS:

AFSCME workers who could lose overtime protections include registered nurses paid on a hourly basis, Head Start teachers, certain computer employees, social workers and workers employed as working supervisors and team leaders; and

WHEREAS:

Millions of workers depend on overtime pay to make ends meet. In 2000, overtime pay accounted for about 25 percent of the income of workers who worked overtime. Workers stripped of their overtime rights would end up working longer hours for less pay. Many working families depend on overtime to pay bills--especially during this period of declining wages and increasing costs of health care and prescription drugs. In addition, a larger pool of exempt workers will be created for employers to assign overtime work, thereby taking overtime away from workers whose nonexempt status remains unchanged; and

WHEREAS:

Labor Secretary Elaine Chao is not accurate when she states that union workers with collective bargaining contracts are not affected by the final regulation. Many AFSCME contracts currently reference the exemption criteria in the FLSA regulations in identifying those workers exempt from overtime; and

WHEREAS:

The state of Illinois amended its minimum wage and overtime law to protect overtime rights of Illinois workers. The state law explicitly includes the FLSA "white collar" exemptions as defined in current federal regulations. The law locks in the definitions that existed on March 30, 2003, which was the day before the Bush administration issued the original proposed changes, while protecting any expansion of overtime eligibility; and

WHEREAS:

In 2003, the U.S. Senate passed an amendment to the Labor, Health and Human Services (HHS) and Education appropriations bill, offered by Senator Tom Harkin (D-IA), that would prevent the DOL from issuing any regulation that takes away workers' overtime rights. The U.S. House followed by approving a motion to instruct the Labor-HHS conferees to accept the Harkin amendment. However, the Harkin Amendment was eliminated from final congressional legislation because President Bush repeatedly threatened to veto any legislation which contained it; and

WHEREAS:

In May 2004, the U.S. Senate passed an amendment to a corporate tax bill introduced by Senator Harkin that allows DOL to update FLSA regulations that govern overtime eligibility but ensures no workers currently eligible for overtime lose their protection. It also protects those provisions of the final regulations that expand overtime eligibility; and

WHEREAS:

Home care workers fall under the category of domestic workers and employers are not required to pay minimum wage or overtime compensation because of a 1974 amendment to the Fair Labor Standards Act, 29 U.S.C. 201, originally enacted in 1938.

THEREFORE BE IT RESOLVED:

That AFSCME opposes any changes to the FLSA and regulations that jeopardize overtime protections; and

BE IT FURTHER RESOLVED:

That AFSCME urges lawmakers to go further by enacting laws that provide minimum wage and overtime protections pursuant to the Fair Labor Standards Act (FLSA) for home care workers; and

BE IT FURTHER RESOLVED:

That AFSCME urges affiliates to work to protect the overtime rights of members by modifying current contract language and state minimum wage and overtime laws that explicitly refer to the definitions of "white collar" exemptions in the FLSA regulations; and

BE IT FINALLY RESOLVED:

That AFSCME will continue to lobby the U.S. Congress to prevent the Bush administration from taking overtime protections away from workers.

SUBMITTED BY:

International Executive Board

Ninfa Vassallo, Delegate
AFSCME Local 389, Council 1707
New York