WASHINGTON — New overtime rules recently issued by the Labor Department could indirectly affect compensation for thousands of staffers on Capitol Hill, although how dramatic the impact will be remains unclear.
The Fair Labor Standards Act — which requires minimum wage, overtime compensation and equal pay for men and women — is one of 11 federal labor laws covered under the 1995 Congressional Accountability Act. The law requires the Office of Compliance board of directors to promulgate regulations for the legislative branch based on those issued by the Labor secretary.
“The board is actually meeting today on that subject and is working on a notice of proposed new regulations in hope to have that prepared and put in the Congressional Record within the next few weeks,” Bill Thompson, executive director of the Office of Compliance, said Tuesday.
At that time, at least a 30-day comment period will commence. “After which time the board will review the comments and prepare a final notice of proposed adoption for Congressional action,” Thompson said. “Since these are substantive rules, Congress will have to decide on their final adoption.”
The controversy surrounding the issuance of the regulations late last month virtually ensures that the new regulations written by the Office of Compliance won’t be met with indifference on Capitol Hill, despite the fact that the CAA leaves little room for the board to substantially modify the rules issued by the Labor Department. The Senate voted in May to block those rules, and Sen. John Kerry (D-Mass.) has vowed to repeal them if elected president.
The new rules state 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 contention arises primarily from the provision that salaried workers who fall between $23,660 and $100,000 a year could lose overtime based on a duties test, which describes ways in which workers can be classified as a professional or administrator, and thus ineligible for overtime.
Until Congress adopts new overtime rules for legislative branch employees, the rules written and approved in 1995 remain in effect, according to Thompson.
But even a decade after the CAA, 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 spurred varying 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, are in a more ambiguous area.
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 perhaps as much as a fifth of staff assistants in the House may qualify for overtime under the new rules.
But anecdotal evidence suggests many offices assume staff assistants have some managerial role (overseeing an intern program, for example) or quietly ignore the overtime portion of the law altogether. And even if an office determines a particular staffer qualifies for overtime pay, the employee is often sent home rather than given the opportunity to accrue additional compensation. Additionally, the regulations issued by the Office of Compliance in 1995 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.
But the new regulations could have a substantial effect on nonlegislative employees, including those who work for the Capitol Police and the Architect of the Capitol.