Final regs reflect union’s recommendations
PEF comments soften blows from new federal OT regulations
By SHERRY HALBROOK
The Bush administration’s changes to federal overtime rules mean serious pay cuts for many working Americans.
But the recommendations submitted to the U.S. Labor Department by PEF and other labor unions soften the blow for some PEF members and actually improve the OT-eligibility chances for others.
The new Fair Labor Standards Act (FLSA) rules regarding the “white-collar exemption from overtime coverage” that took effect August 23, will help some PEF members, but harm others.
“Some PEF members are now eligible for overtime, who previously were not” said PEF Deputy General Counsel Lisa King.
“Specifically, we believe that state senior parole officers, environmental engineers involved in toxic waste spills and clean up, transportation engineers who inspect bridges and roads, and other employees who do similar work will be overtime eligible under the new rules.”
However, on the down side, King said the legal argument which PEF has made in lawsuits it previously brought under FLSA is undermined by the new rules.
Salary, job duties key
Under FLSA, employees working in an “executive, administrative or professional” capacity are not eligible for OT.
Both a duties and a salary test may be used for determining which employees fit within this so-called “white-collar exemption” to OT eligibility.
Anyone making less than $23,600 is automatically overtime eligible.
While the new rules retain the two-part test for employees earning more than $23,660 annually, they significantly change both parts of the test.
And, generally, if you earn more than $100,000 per year, you are not OT-eligible if you perform even one of the specified white-collar duties.
But that rule doesn’t apply to a certain class of employees which includes PEF members such as parole officers, hazardous materials workers and similar employees who prevent or detect crimes, conduct investigations or inspections for violations of law and prepare investigative reports or other similar work.
“PEF has a plan for getting its members the full benefit of this new rule,” King said. “We’ve written to the state Division of Budget and outlined our position, and we’ve met with PEF’s Statewide Labor-Management Committee to discuss which job titles may be affected.”
New salary rules critical
For PEF members, the changes to the salary test tend to be the most unfavorable.
Generally, this test makes you OT-ineligible if you are a salaried employee, regularly paid a predetermined amount.
Under the old rules, a salaried employee still could be OT-eligible if their employer suspended them for less than a week and docked their pay for breaking rules, other than those involving major safety issues.
Since the PS&T contract makes PEF members subject to such deductions for violations of other rules besides such safety rules, PEF had contended that all of its members are overtime eligible.
Now, this rule provides that you are still OT-ineligible, even if you are suspended without pay for one or more full days for breaking serious workplace-conduct rules.
“We think this change in the rule undermines our argument that all PEF members in grades 23 and higher are overtime eligible based solely on the salary-basis test,” King said. “We do not recommend bringing another such FLSA case on that legal ground. Of course, we will continue to review FLSA eligibility questions on a case-by-case basis.”
Could’ve been worse
Another important new FLSA rule for PEF members is creation of the category of “highly compensated employee.”
Originally, the Bush administration proposed to make all employees earning more than $65,000 per year subject to a much more stringent duties test.
PEF argued successfully the salary bar should be set higher and the duties test should not be changed. DOL increased the salary level to $100,000 and modified its proposals on the duties test. Now, employees will not lose their OT eligibility unless they perform the specified duties customarily and regularly, rather than sporadically.
And in response to comments from PEF and other unions, the Labor Department also scaled back some of its proposed changes to the white-collar duties test.
The
Communicator September 04
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