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An Easy Fix for Members Who Want Overtime for Staff

Gutiérrez will pay his congressional staff overtime. (Bill Clark/CQ Roll Call File Photo)

Even if Congress takes no action on amending the Congressional Accountability Act to add overtime protections for staff, individual offices can lead the way and implement changes for their own staff, much as they have done for workplace protections such as maternity and paternity leave.  

Congressman Luis V. Gutiérrez, D-Ill., says he intends to apply the new overtime regulations to his congressional employees in Washington and Chicago, “regardless of whether the U.S. Congress moves to adopt them when final.” Gutiérrez compared himself to a small-business employer, saying, “If these regulations are good enough for American workers in the private and public sectors, they ought to be good enough for me and my colleagues in the House and Senate.”  

Gutiérrez has sent a Dear Colleague letter on the topic and a spokesman said the Democrat will be personally talking to other members about  implementing the new overtime regulations for their employees.  

Workplace experts believe Congress will be pressured to comply with the new overtime changes, though several acknowledge it may happen on the individual office level, as Speaker John A. Boehner, Minority Leader Nancy Pelosi and others have done , and not by congressional action, such as voting on the Office of Compliance pending regulations. The growing influx of millennials  on Capitol Hill, who value a better work-life balance, may also sway congressional offices to provide more workplace protections.  

“Those who are motivated by doing right by their workers will implement the changes,” said Judy Conti, federal advocacy coordinator at the National Employment Labor Project.  

Capitol Hill office spending is limited by the Members Representational Allowance, which is approximately $1.2 million per House office (leadership offices receive more money, and Senate offices use a different calculation). Congressional offices may not be able to hire more people or find additional funds to pay staff. But there is an alternative option: Offices can institute a 40-hour workweek for staffers making less than $50,440 per year. It may require more up-front planning, and shifting some late-night work responsibilities to staffers earning above that threshold. (Chiefs of staff, legislative directors and most press secretaries are likely to earn more.) Or it might require a member to rethink the decrees handed down from above, such as requiring all staff to stay in the office for a vote, or to be accessible at all hours.  

What else could push change to Capitol Hill's overtime regulations? A staffer could file an Fair Labor Standards Act complaint with the office of compliance, leading to an adjudication process and review of the current laws.  

A source familiar with the Office of Compliance and the Congressional Accountability Act said the OOC has waited  for a staffer to file an FLSA claim. Many Hill aides are given “exempt” status, meaning their work is primarily professional in nature and exempt from overtime regulations. But several sources familiar with the CAA believe that “exempt” status was disingenuous, entitling many staffers to overtime pay. Should a staffer file an FLSA claim,  “it would cause Congress to take action,” the source said, explaining the claim would go to a hearing, and a judge could rule the staffer was erroneously categorized as exempt and is in fact overtime eligible. "It would set a precedent for everyone else,” the source said.  

That hasn't happened, but things may be changing.  

The Department of Labor will accept comments on the proposed rule until Sept. 4. The Office of Compliance will make recommendations to Congress to adopt the new DOL overtime rules. Even if Congress decides not to act as unified body, individual offices could set up their own rules  and just do it.

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