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Washington, D.C. – U.S. Senator Mike Enzi, R-Wyo., was disappointed with the Senate's passage of an amendment today that he said would, "try to force the square peg of the jobs of the 21st century into the round hole of the workplace of 50 years ago."

An amendment offered by Sen. Tom Harkin, D-Iowa, to the Labor, Health and Human Services, Education appropriations legislation currently in the Senate, would prohibit the Secretary of the Department of Labor (DOL) from reviewing nearly 80,000 comments on a proposal to update the rules concerning white-collar employees and the overtime requirements of the Fair Labor Standards Act. The amendment passed by a vote of 54-45.

Enzi, the chairman of the Senate Subcommittee on Employment, Safety and Training said the amendment undermines the DOLs efforts to better accommodate today's workplace and anticipate future workplace trends.

"White-collar regulations today are substantially the same as they were 50 years ago, even though the workplace has changed dramatically during the last half century," said Enzi. "This amendment won't help employers and employees clearly and fairly determine who is entitled to overtime. My colleagues should have allowed Secretary Chao to do her job. By going around the process, we are saying we don't want anybody to look at what the public is saying, and we don't want to see if there can be a change."

The Administration's proposed rule would make workers automatically eligible for overtime if they earn less than $22,100. Currently, only those workers that earn less than $8,060 are automatically eligible for overtime. Enzi said this change would result in about 1.3 million more of the lowest paid workers being guaranteed overtime pay.

The Senate expects to vote on final passage of the Labor-Health and Human Services bill today.

Senator Enzi's Floor Statement follows.

Statement on Harkin Overtime Amendment
to Labor-Health and Human Services Appropriations Bill
U.S. Senator Mike Enzi
September 4, 2003


I am a little confused because for the last hour I have been listening to debate on an overtime amendment and, as far as I can tell, an overtime amendment has not been laid down. But it is my understanding that when it is, what it will do is keep the Secretary of Labor from spending a single dollar to review the proposed rule dealing with overtime.

Now, the process we usually have is that agencies propose rules, they publish them, and then they get comments. As I understand it, there are 80,000 comments on this. Now, the job of the agency following that is to take those comments into consideration and, if worthy, put them into the rule. What we are saying is we don't want anybody to look at what the public is saying; we don't want anybody to say what the 80,000 people who took the time to comment said. We don't want to see if there can be a change to this rule. We think we can blast it best in its present form. So don't let the Secretary look at the comments.

It is her job to look at them. It is her job to see if there needs to be a change to the proposed rule. All this amendment does is keep the Secretary from taking that action. I suppose it is no coincidence that we are possibly taking up this amendment right after the Labor Day weekend. Each year at this time, we honor those who work hard and help to strengthen the economies of our states and the country. The holiday cannot help but remind us of those workers this amendment purports to protect.

Now we must carefully consider who is really helped and hurt by this amendment--this amendment that stops the Secretary of Labor from looking at 80,000 comments on ways to improve her rule.

Most of us were able to spend a considerable amount of the August work period meeting with our constituents. At each town meeting I held, there was usually someone in attendance who was quite concerned about government regulations. I was often told to rein in big government, keep the rules and regulations simple, current, responsive, and make sure they make sense in today's everchanging workplace.

This amendment that would keep the Secretary of Labor from looking at the 80,000 comments has the opposite approach. Instead of keeping the regulations simple and current, it would prohibit the Secretary of Labor from updating the rules concerning white-collar employees and the Fair Labor Standards Act overtime requirements. Simply put, it is an attempt to reject the new, turn back the clock, look to yesterday for the answer to tomorrow's problems. It is an approach that is doomed to failure before it is even applied, and I am opposed to it.

There is no question that the workplace has dramatically changed during the last half century. It changed during the last half decade. The white-collar regulations remain substantially the same as they were 50 years ago. The existing rule takes us back to a time when workers held titles such as ``straw boss,'' ``keypunch operator,'' ``legman,'' and other occupations that do not exist today. As our economy has evolved, new occupations have emerged that were not even contemplated when those regulations were written 50 years ago.

A 1999 study by the General Accounting Office recommended that the Department of Labor ``comprehensively review current regulations and restructure white-collar exemptions to better accommodate today's workplace and to anticipate future workplace trends.'' That was the General Accounting Office telling the Department of Labor they needed to ``comprehensively review current regulations and restructure white-collar exemptions to better accommodate today's workplace and to anticipate future workplace trends.'' That is precisely what the Department of Labor's proposal to update and clarify the white-collar regulations will do.

While the Department's proposal will update and clarify, this amendment will do neither. It keeps it from happening, it keeps the comments from being reviewed, and it will set the clock back to 1954 and try to force the square peg of the jobs of the 21st century into the round hole of the workplace of 50 years ago.

I am a former shoe salesman, and I know how to tell when something will not fit. This amendment just will not fit. It is like trying to force a size 10 foot into a size 6 shoe. It will not fit no matter how hard you try.

So let's be clear about what this amendment will do. The amendment that keeps the Secretary from looking at the 80,000 comments will undermine the Department of Labor's efforts to extend overtime protection to 1.3 million low-wage workers. Under the current rules, these 1954 rules, only those rare workers earning less than $8,060 a year are automatically protected for overtime. You have to make under $8,060 to automatically be protected.

The Administration's proposed rule would raise that threshold to $22,100. As a result, 20 percent of the lowest paid workers would be guaranteed overtime pay. The overtime provisions of the Fair Labor Standards Act were originally intended to protect lower income workers. The proposed rules would provide lower income workers with the protection they deserve.

By undermining the Administration's efforts to better protect lower income workers, whom will this amendment protect? The supporters of this amendment claim that an estimated 8 million workers will become ineligible for overtime under the proposed rules. However, this estimate is based on a study by the Economic Policy Institute, and I have to tell you, Mr. President, it looks as if it is riddled with errors.

For example, the study includes in its calculations at least 18 percent of the workforce who work 35 hours or less a week. These part-time workers do not work more than 40 hours a week and, therefore, they do not receive overtime in the first place.

The study also claims the proposed rule will deny overtime pay to white-collar employees earning more than $65,000 a year. However, not all employees earning over $65,000 are excluded from overtime under the proposed rule--only those performing office or nonmanual work or one or more excluded duties. This means that workers such as police officers, firefighters, plumbers, teamsters, carpenters, and electricians will not lose their overtime pay. Of course, under union contracts, that is already stipulated regardless of what kind of rule there is.

The Department of Labor does acknowledge the possibility that 644,000 highly educated workers making over $65,000 a year might lose their overtime. It brings in 1.3 million making under $22,100, and then there is the possibility that 644,000 making over $65,000 a year would lose their overtime.

Supporters of this amendment claim the proposed rules will strip overtime pay for first responders and nurses. If we strip the rhetoric from the reality, we will find there will be virtually no change in status for the first responders and nurses under the proposal. Under both the current and the proposed regulations, only registered nurses are automatically excluded from overtime pay.

Again, what this amendment does is keep the Secretary of Labor from looking at the 80,000 comments on the proposed rule to see if the rule ought to be changed. There is not anything in the appropriations bill that automatically puts into place any rule, but it will keep her from looking at the comments that have been sent in.

Who will this amendment protect if not lower income workers, first responders, nurses, or millions of other working Americans? The antiquated and confusing white-collar regulations have created a windfall for trial lawyers. Ambiguities and outdated terms have generated significant confusion regarding which employees fall within overtime requirements. The confusion has generated significant litigation and overtime pay awards for highly paid white-collar employees. Wage and hour cases now exceed discrimination suits as the leading type of employment law class action.

The amendment will not preserve overtime for millions of working Americans. This amendment will not help employers and employees clearly and fairly determine who is entitled to overtime.

The only clear winners of this amendment will be the people filling in their time from chasing personal injuries. It is a sideline. So the trial lawyers will continue to benefit from the current state of this confusion.

Businesses need to know the rules. The rules need to be interpretable by the average small businessman. I really object to the inference that the only reason anybody would pay overtime is that the federal government said you had to. That is not true. That is not the way it works, and I can tell you that even if the federal government says you have to, there will still be one-tenth of 1 percent of the people who will not comply. But for the most part, 99.9 percent of the people do comply and want to comply--not only will comply but will exceed complying in a number of areas.

We are spending taxpayers' dollars sorting through the court cases that could be solved with clarity. We are talking about taxpayer money being spent to review the 80,000 comments. I think that is entirely necessary. I expect any agency that has a rule to review the comments of the rule and to make changes based on the comments.

The Department of Labor has received and is currently reviewing those 80,000 comments to the proposed regulation. We should allow that regulatory process to continue and give the Department a chance to complete its review of the proposed rules.

Once the review is completed, the Department will align the white collar regulations with the realities of the 21st century workplace and what they have learned from the comments, should they get to read them, and the intent of the Fair Labor Standards Act.

I want to assure my colleagues that if the rule has gone astray, when it is finished we put into place something called the Congressional Review Act. That is where we get to jerk these agencies back to reality if they do not follow the proper procedures, if they do not pay attention to what is being said. We have used that before, and that would be the appropriate place for us to jerk the Department of Labor back to reality if they do not pay attention to the comments that are coming in.

I urge my colleagues to oppose this amendment, allow those comments to be read, check and see if there are going to be changes to the overtime rules, and see if it does not clarify it for the workers and the employers so that there will be less conflict.

Time spent in court does not benefit anybody but the trial lawyer. There is no point in having that done if we can clarify things so everybody understands what the rules are, and we raise that terrible $8,000 up to $22,100 so that we are covering more people for overtime.

I do ask that the amendment be defeated when it is put in, should it be put in.

I yield the floor.