Congressional Overtime Rules Advance

Posted October 18, 2004 at 6:39pm

New overtime regulations recently issued by the Labor Department have moved one step closer to covering thousands of staffers on Capitol Hill after the Office of Compliance submitted proposed new rules for Congressional employees.

The 1995 Congressional Accountability Act mandates that the Fair Labor Standards Act — which requires a minimum wage, overtime compensation and equal pay for men and women — be applicable to Hill staffers. The Office of Compliance board of directors sent the House and Senate proposed regulations earlier this month, starting a 30-day comment period that ends Oct. 29.

After the board processes any comments, the directors will then submit final proposed rules, which require Congressional approval.

Three of the five board members were term-limited out on Oct. 1, however, and President Bush has yet to sign legislation approved by both chambers that would allow their tenures to be renewed. Until that bill is sent to the White House and signed, the board is comprised of only two members.

The controversy surrounding the issuance of the regulations in August by the Labor Department could turn the regulations promulgated by the Office of Compliance into a political football, although Congressional action seems unlikely until next session. The new regulations were opposed by many Members, particularly Democrats, who deemed them tilted against employees.

The noncontroversial part of the rules issued by the Labor Department states that workers who earn less than $23,660 annually will become automatically eligible for overtime pay, a boost from the previous threshold of $8,060 last revised in the 1970s.

The contentiousness stems from a provision that salaried workers who fall between $23,660 and $100,000 a year could lose overtime based on a duties test determining whether they can be classified as a professional or an administrator, and thus ineligible for overtime.

The CAA leaves little room for the Office of Compliance board to substantially alter the rules issued by the Labor Department. Indeed, the 29-page regulations submitted by the board mirror the Labor Department’s version almost exactly. One notable change reflected in the rules submitted to Congress is the exclusion of interns, as required by the CAA.

Until Congress approves the new rules, the regulations issued by the Office of Compliance board in 1996 will remain in effect.

But even a decade after the CAA was passed, it is not at all clear that Congressional offices uniformly apply the existing overtime rules. No study has been done to indicate how this provision of the CAA is complied with or implemented, and the Byzantine nature of the rules themselves has prompted various interpretations by individual offices as to whether particular employees qualify.

Most staffers who work in a Member’s personal office or on a committee are automatically disqualified from earning overtime because of the professional or administrative nature of their work. Staff assistants, who primarily answer the telephone and sort mail, however, fall into a more ambiguous area of the law.

According to a 2002 House staff employment study done by the nonprofit Congressional Management Foundation for the Chief Administrative Officer, 20 percent of staff assistants in that chamber made $23,500 a year or less, meaning that as many as one in five staff assistants in the House may qualify for overtime under the new rules.

But anecdotal evidence suggests that many offices assume that staff assistants have some managerial role — overseeing an intern program, for example — or quietly ignore the overtime portion of the law altogether.

Even if an office determines that a particular staffer qualifies for overtime pay, the employee is often sent home rather than given the opportunity to accrue additional compensation. In addition, the regulations issued by the Office of Compliance in 1996 recognized the irregular work schedules caused by jobs that directly depended on the schedule of the House or Senate and thus allowed for compensatory time off.

The new regulations could have a more substantial effect on nonlegislative employees, including those who work for the Capitol Police and the Architect of the Capitol. But exactly what that impact will be remains unclear.