Overtime Regulations Issued; Battle May Loom

Posted March 14, 2005 at 5:24pm

Legislative branch employees moved one step closer to working under new overtime rules last week after the Office of Compliance issued final regulations that would bring Congress under a similar overtime pay structure as the executive branch and the private sector.

Overtime has applied to certain employees since 1996, a year after the Congressional Accountability Act mandated that the Fair Labor Standards Act — which requires a minimum wage, overtime compensation and equal pay for men and women — be made applicable to Hill staffers.

The Labor Department issued new overtime regulations last fall, but the CAA requires that Congress affirmatively apply the rules to the institution before they go into effect. Unless or until that happens, the old rules — in this case rules based on decades-old Labor Department regulations — remain in effect.

The controversy surrounding the issuance of the regulations last year virtually ensures that the new regulations written by the Office of Compliance’s Board of Directors won’t be met with indifference on Capitol Hill, even though the CAA leaves little room for the board to substantially modify the rules issued by the Labor Department.

The new regulations were opposed by many Members, particularly Democrats, who deemed them tilted against employees. Rep. George Miller (D-Calif.), for one, has said he would oppose the new regulations being applied to Congressional employees, just as he opposes them for workers in the private sector.

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. That’s a boost from the previous threshold of $8,060, a level established in the 1970s.

The more contentious part involves 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 ineligible for overtime.

The Office of Compliance issued proposed rules based on the new Labor Department regulations in late September 2004, mirroring the Labor Department’s version almost exactly. Four offices — the employment counsels for both the House and the Senate, as well as their counterparts in the Capitol Police and the Architect of the Capitol’s office — submitted detailed comments seeking changes in the rulemaking. In issuing its final regulations, the Office of Compliance made only relatively minor alterations, however.

The Capitol Police sought to exempt its officers from the Labor Department’s new regulations on the grounds that the agency does not perform “traditional police work.” But the board determined that the department is not unique in this way, pointing out that the Uniformed Division of the Secret Service is not immune from the overtime regulations, and thus retained the applicability of the rules to the Capitol Police.

Gary Hankins, a lawyer who represents the Capitol Police Labor Committee, said he does not believe the regulations would affect officers represented by the Fraternal Order of Police.

In another comment, the House Employment Counsel’s office sought to count interns as “employees” for the purposes of establishing whether a staffer has supervisory status. The new Labor Department rules allow employers to classify those who oversee two or more people as “supervisors,” and thus ineligible for overtime. Although interns are explicitly not covered under the CAA, the House Employment Counsel’s office sought to count them as “employees” for purposes of applying that duties test. After informal consultation with the Labor Department, however, the board rejected that line of reasoning.

Anecdotal evidence suggests that many offices already assume that staff assistants, the lowest-paid legislative employees, have some managerial role — overseeing the intern program being one example — and use that determination to exempt them from earning overtime.

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. However, staff assistants, who primarily answer the telephone and sort mail, fall into a gray area.

According to a 2002 House staff employment study done by the independent 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.

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, regulations issued by the Office of Compliance in 1996 recognized 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 employees who will be most obviously affected by the new regulations are nonlegislative employees, including those who work for the Architect of the Capitol. The agency did not return a call seeking comment on the proposed rules. And Congress does not have a reporting mechanism for employers on the Hill to divulge how their workers are paid.