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Labor Reworks Overtime Rules; Retooling Helps Lowest-Paid, But Not All


April 23, 2004 (The News & Observer, Raleigh, N.C.) New federal rules will guarantee overtime pay to anybody making less than $23,660 a year, boosting pay for about 1.3 million workers.



But 106,000 higher-paid workers might lose their overtime pay under the rules, the Labor Department said.

The revised plan says specifically that licensed practical nurses, firefighters, police officers, paramedics and emergency medical technicians would not lose their right to overtime pay. Critics had said that the Labor Department's original proposal left such workers vulnerable.

In other concessions to critics, the department removed a provision that could have affected veterans' overtime pay, and it raised the salary ceiling for workers who qualify for overtime to $100,000 from $65,000 a year, depending on duties.

"Our intent has always been to strengthen overtime rules for workers," Labor Secretary Elaine Chao said at a news conference. "This will clarify the rules for workers in all income categories, and it will protect workers from unscrupulous employers."

But the new regulations could eliminate overtime pay for some white-collar employees who make more than $23,660 and less than $100,000, including technology workers, insurance claims adjusters, dental hygienists, accountants, chefs, paralegals, journalists and other professionals.

Union officials warned the changes could harm millions of middle-class workers.

"Wages are flat for most workers and falling for some, and the state of inflation is higher than at any time since 1990," said Chris Owens, public policy director for AFL-CIO, the nation's largest labor group. "Job loss and unemployment is still a problem for people.

"We don't think this is the time to take away overtime protection from any worker," he said.

It probably will take weeks or even months for businesses to figure out how the new rules will affect them, and for the changes to affect employees.

Officials at Duke University, Progress Energy and Rex Healthcare, some of the Triangle's largest employers, said Tuesday that they need to digest the regulations. Businesses have 120 days to implement the rules. Lawyers have said it could take a year or longer for courts to sort through them.

"It might be good for me, but I couldn't imagine employees would be happy with this," said Wendy Coulter, president of Hummingbird Creative Group, a Raleigh advertising and marketing firm that hires design professionals and writers for projects.

Coulter said she suspects some of her workers would no longer be entitled to overtime pay. Advertising and marketing professionals who do work that is "directly related to management of general business operations" may not qualify for overtime, according to the new rules.

But Coulter isn't sure what it would mean for her business.

"It's just hard to keep up with all regulations," she said. "It's already confusing enough."

Richard Haygood, a labor and employment attorney for Kilpatrick Stockton in Raleigh, said he was encouraged that the new regulations appear less confusing than the old ones.

"From the business community's perspective, any time there's more certainty, it's a good thing," Haygood said.

"And it looks to me like this is intended to be a compromise. I see that the regulations are written in a much more contemporary way and that they're based on jobs that would be expected in today's economy. It looks as if they're trying to provide more guidance to employers, and that's a benefit to everybody."

Most agree that changes to the federal Fair Labor Standards Act are long overdue. The rules were put in place in 1938, and revisions have been discussed since the late 1970s.

Labor Secretary Chao released the agency's proposed changes in March 2003, setting off criticism from labor groups and Democrats, who accused the Bush administration of catering to employers by taking rights away from workers.

The Economic Policy Institute, a liberal Washington think tank, estimated that 8 million people would lose overtime under those proposed rules.

The business community pushed for a change, saying confusion surrounding the antiquated regulations led to costly lawsuits.

The Labor Department estimates such litigation costs employers $2 billion a year. The new overtime rules could reduce lawsuits by 25 percent, saving businesses $500 million a year or more, the agency estimates.

Large employers such as Wal-Mart Stores and RadioShack Corp. were among businesses that lobbied in favor of the new rules.

THE CHANGES: Anybody who makes less than $23,660 a year will be entitled to time-and-a-half after 40 hours of work. The previous threshold was $8,060, which is below minimum wage.

--Anybody who earns more than $100,000 a year and has administrative, professional or executive duties no longer qualifies for overtime pay.

--Employees whose base pay is lower than $100,000 but who earn more than that because of bonuses will not be disqualified from overtime.

--Workers who make between $23,660 and $100,000 could be reclassified and lose their overtime protection. Whether they do will depend on their level of responsibility, how much discretion they use, how creative they are or what their job description is. Employers must perform a duties test to determine whether employees qualify for overtime.

That provision could affect some journalists, human resources managers, administrative assistants, dental hygienists, accountants, physician assistants, computer programmers, athletics trainers, software engineers and insurance claims adjusters who now qualify for overtime.

--Licensed practical nurses, firefighters, police officers, paramedics and emergency medical technicians are guaranteed overtime pay.

--Veterans will not be penalized for their military training. In the initial proposal, that training could be counted as professional experience and disqualified them for overtime pay.

--Workers covered by collective bargaining contracts are not affected by the changes.

The department announced the new overtime regulations Tuesday, revising a proposal it made last year.

-- Karin Rives

(c) 2004, The News & Observer, Raleigh, N.C. Distributed by Knight Ridder/Tribune Business News.

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