Worker advocates urge Labor Department to restore Obama overtime rule

WASHINGTON—Millions of workers, most of them working women, would benefit if the Trump Labor Department reversed course and restored the overtime pay eligibility rule former President Barack Obama’s DOL promulgated in 2016, worker advocates told department officials on Oct. 17.

But whether Heidi Shierholz of the Economic Policy Institute, Judy Conti of the National Employment Law Project, Judy Feldman of the National Women’s Law Center and other pro-worker speakers had any impact at DOL’s sixth “listening session” on overtime is unlikely.

That’s because the Labor Department official chairing the two-hour session in D.C. – after prior sessions in Atlanta, Seattle, Kansas City, Denver and Providence, R.I. – said the agency wouldn’t publish anything on overtime until March.

It’s also because Trump ordered DOL to dump Obama’s rule in the first place.  And a corporate lawsuit against the rule led a GOP-named federal judge in Texas to stop it last year, nationwide, too. His Labor Secretary, Alex Acosta, previously told senators he believes overtime should cover workers – those not covered by union contracts – who earn up to $32,000 yearly.

Obama’s rule raised that cap from $23,660 – set in 2005 – to $47,476. He also tightened an “executive, administrative and professional” exemption that eliminated millions of workers from overtime pay eligibility.

That left Shierholz, Conti, Feldman and Maria Maisto of New Faculty Majority, which speaks for unorganized adjunct professors, to argue for workers. So did a speaker from AARP, who noted older workers are the fastest-growing segment of the workforce and must often take jobs below their skills – until their bosses “promote” them to deny them overtime.

“Almost 75 percent of those who would have benefited” from Obama’s overtime pay rule change “have fallen through the cracks” since the Bush rule stayed unchanged, Shierholz, EPI’s policy director, said. “Look at DOL’s own analysis” in 2016, she urged.

Indeed, inflation has eaten away so much at the overtime pay rule, that it now covers fewer than 10 percent of all workers, she noted. The Obama rule Trump dumped would have raised that share to one-third, Shierholz said. When DOL first started keeping records on the subject, in 1965, 60 percent of workers fell under that year’s overtime pay cap.

Every year the overtime pay threshold “is not indexed, it erodes the standard” – and the number of protected workers – “even more,” she added. And maintaining Obama’s overtime rule “would have been excellent” for workers “and an excellent use of government resources” by cutting the down lawsuits over the reach of the loophole, Shierholz said.

“You shouldn’t be able to pay workers for 40 hours, but work them for 80,” Conti told DOL. Indeed, she

pointed out, one original purpose of the 1938 Fair Labor Standards Act, which established overtime pay for toiling more than 40 hours a week, was to encourage employers to hire more workers, rather than employ fewer workers and pay them overtime.

And forcing more workers to toil overtime, paid or unpaid, “takes them away from their families and their children and, studies show, endangers their health,” she added.

That goes not just for the fast food workers – misclassified as managers and denied overtime pay, according to an employment lawyer from Philadelphia – but the adjunct professors, Maisto said. And adjuncts are now 75 percent of all college and community college faculty.

“They work full-time hours for part-time pay unless they’re unionized. Meanwhile, all teachers were very disappointed” when even Obama’s DOL exempted them from overtime as “professionals.”

“In higher education, more than 50 percent” of professors “are exempt, or salaried.” But given professors’ hours, including hours out of the classroom, grading exams and the like, “they make less than the minimum wage,” Maisto said.

“Rather than continuing this hearing, the department should urge the Justice Department to defend the 2016 rule,” Feldman said. Trump’s Justice Department refuses to do so. Feldman also noted the “executive, administrative, professional” exemption still would leave higher-paid women – such as lawyers – out.

“The higher the salary, the greater the likelihood she holds an EAP position,” Feldman explained. “But because women disproportionately occupy the low end” of workers cut off from overtime eligibility by the current $23,660 income limit, “they would disproportionately benefit” from a hike.

The Obama threshold, she calculated, would cover one-third of all woman workers sand half of African-American and Latina workers. They would then be eligible for overtime.

“For some, it would mean hundreds of dollars each in additional pay. For others, it would mean they could spend more time with their families” – and that benefits not only the workers but their kids, she said.

The worker advocates followed a parade of corporate lobbyists who marched to DOL’s microphones.

Some of the corporate lobbyists uttered vague platitudes about raising the overtime pay cap sometime in the future and without increases for inflation. And they didn’t suggest any numbers, either.

Others, from the notoriously low-paying National Restaurant Association, the National Retail Federation, the Chamber of Commerce and the right-wing National Federation of Independent Business, didn’t even go that far. Indeed, some of them claimed affected workers were upset by Obama’s rule.

Conti, who is also a former human resources director for a non-profit group, rebutted that. The way to ensure workers aren’t upset by Obama’s overtime rule, she said, is to sit down and talk with them – and explain its benefits, in pay and more time with families. That’s what she did. Then, she said, they get it.

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