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FINAL OVERTIME RULES ANNOUNCED
DEPARTMENT OF LABOR FORCED TO RETREAT FROM INITIAL EXTREME
POSITIONS April 20, 2004 NAPO'S LONG FIGHT FOR SPECIFIC OCCUPATIONAL
RULE FOR LAW ENFORCEMENT SUCCESSFUL The United States Department
of Labor has issued its Final Rule regarding changes to the Fair
Labor Standards Act overtime provisions. The text of the new regulations
is available at NAPO's website: www.napo.org <http://www.napo.org/legislative-update/DOLrulechange.htm>.
The regulations are expected to be formally published in the Federal
Register April 21, 2004, and are slated to go into effect 120 days
later, on approximately August 18, 2004.
Of
key interest to law enforcement, an entirely new section has been
added to the Final Rule. Section 541.3(b) adds explicit language
that the revised overtime exemptions for executive, administrative
and professional employees are not to be applied to law enforcement
officers, deputies, correctional officers, probation and parole
officers, troopers and state police officers, and rangers, regardless
of rank, so long as those officers have as their primary duty preventing
or detecting crime, conducting investigations, pursuing, restraining
and apprehending suspects, supervising suspected and convicted criminals,
interrogating suspects, preparing investigative reports, and "other
similar work." (Please note that officers who don't have as
their primary duty such tasks as outlined above, and who gross more
than $23,600 per year, may still be at risk of losing overtime)
NAPO had asked such language to be included in the Final Rule, and
the fact that the DOL was forced to make this explicit, after so
long a time insisting that there was nothing wrong with their original
proposed rule, shows the validity of our concerns.
Also,
language in the preamble to the Final Rule states that the "super-short"
test for highly compensated employees (originally defined as those
grossing over $65,000 per year, now raised to $100,000 per year)
is not to be used for law enforcement workers. Basically, this means
that even highly compensated police employees will have to be evaluated
under the regular "duties test" to see if they can be
excluded from overtime pay. The "duties test" has been
modified to make it easier for employers to classify workers as
exempt, but, even so, it's still better for our members to be under
the duties test than the super-short test that non-law enforcement
workers will now be subject to. NAPO had lobbied hard for removal
of the super-short test for police, and had argued that the highly
compensated threshold level should be raised. While it would have
been better if the language excluding police from this provision
had been included in the Final Rule itself, instead of in the preamble,
the net result is still a win for police, as the DOL was forced
to revise its initial proposal.
Finally,
language that would have allowed employers to classify a worker
as a learned professional (and thus exempt from overtime) based
not on advanced academic degrees but on military training, community
college courses, or technical school attendance, has been completely
deleted. While at least one national group was publicly repeating
the administration line that the proposed language was nothing to
worry about, NAPO (and other groups) went public with its concerns,
and the DOL was ultimately forced to withdraw its proposal on this
issue.
While
NAPO and its allied organizations were successful in preserving
overtime compensation for law enforcement and correctional officers
across the United States, other workers were not so fortunate. The
DOL itself estimates that more than 100,000 workers who currently
receive overtime compensation will lose it under the new rule. Labor
organizations outside the DOL place the number much higher.
Since
March of 2003, when the new rules were first proposed, NAPO, along
with groups like the IBPO and IUPA, have fought tooth and nail to
force the DOL to amend its proposals to protect the overtime rights
of America's police. This fight took two paths. One was the filing
of formal comments with the DOL, followed by lobbying of that Department.
The second front was the U.S. Congress. NAPO's hope was to prevent
the new rule from going into effect and taking away overtime compensation
from law enforcement officers.
Our
formal comments filed with the DOL urged the Department "to
expressly provide in its final regulation a specific occupational
rule on law enforcement" and repeated follow-up letters to
our formal comments reiterated the need for explicit language exempting
law enforcement. At the same time, we worked closely with Congress
to pass legislation that would have prohibited the DOL from taking
away overtime from any employee (law enforcement or otherwise) who
already received it, while still allowing the DOL to extend overtime
to cover more workers who did not yet receive it. While at least
one national group was publicly stating that they didn't have a
problem with the proposals and that we all should just trust the
DOL, NAPO was doing everything it could to force the DOL's hand
by educating officers about what the regulations actually said and
aggressively lobbying senators and congressmen from both parties
to put a halt to the DOL's extreme and unprecedented rewriting of
federal law. Ultimately, both Houses of Congress voted to prevent
the DOL from implementing the new rules. Under subsequent pressure
from President Bush, Republican members of Congress allowed the
protections we had fought so hard for to be stripped from the final
legislation sent to the president for his signature.
The
message to the DOL was crystal-clear, however. Their proposals were
completely out of step with the American public. Even a Senate and
House controlled by Republican majorities voted to prevent these
rules from going into effect. In issuing the new Final Rule,
the DOL has been forced to back off their original plan. Don't be
deceived by DOL press releases or statements arguing that the changes
in the Final Rule are minor clarifications or minor issues. The
national press correctly reported that the DOL was making "a
substantial shift upward from an earlier proposal" (Washington
Post); was "backing off earlier proposed changes" (Associated
Press); "revising its planned overhaul of the nation's overtime
rules" (Associated Press); "bowing to political pressure,
has revised new regulations on overtime" (L.A. Times); "Retreating
under pressure" (Chicago Tribune); "under bipartisan election-year
pressure, has revised pending work rules" (Forbes); "With
an eye toward November's election, the Bush administration is retreating
on its planned overhaul" (Associated Press); "Retreating
under pressure, the Bush administration plans to revise a proposed
regulation" (Fox News).
One
thing should be absolutely clear: The DOL did not do this voluntarily.
They were forced to by groups like NAPO that were willing to fight
for their members and all American workers. If you want to see what
this DOL would do if it could on the overtime issue, read their
original March 31, 2003 proposal. Any claim that this DOL can be
persuaded by friendly discussions with labor groups to give back
some of the overtime pay they proposed taking away in the first
place, is false. It was frustrating to those who were trying to
help American workers, and was ultimately damaging to thousands,
if not millions, of workers who will now lose overtime, as even
the DOL now admits. Yes, we were successful in finally forcing the
DOL to back off, and we saved overtime for U.S. law enforcement,
but there are going to be a lot of non-law enforcement people who
will still lose it. Any purported "labor" group that takes
pride in its efforts to help this DOL accomplish its goal of reducing
overtime for so many workers as long as its own members are taken
care of should be ashamed of itself. Yes, there is now going to
be a scramble for credit as far as saving overtime for our law enforcement
officers, just as we predicted in our February 16, 2004 memo, but
one big difference among the groups that fought for this issue probably
won't get a lot of press: There were those who were willing to fight
for all workers at risk of losing benefits, while protecting their
own officers, and those who were perfectly willing to look the other
way so long as their own members kept their overtime. Yes, America's
police came out of this with our overtime intact, and all the groups
who helped make this happen should be praised. But spare a thought
for those who are going to lose benefits under this new rule.
In a letter dated April 20, 2004 to another national law enforcement
group, Secretary Chao writes that she found the efforts of groups
like NAPO to change the proposed rule "somewhat amusing."
That's some sense of humor, Mrs. Chao.
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