The Senate’s top employment lawyer suggested last week that the Office of Compliance hold off on issuing final regulations to apply the Labor Department’s new overtime rules to Congress, inserting herself in what could become a political debate over the regulations early next year.
Senate Chief Counsel for Employment Jean Manning referenced several pending bills that would overturn the controversial rules issued this summer by the Labor Department, suggesting that the Office of Compliance acted prematurely in writing the overtime regulations for Congressional employees.
“If they do promulgate regulations now and there is an additional change, they might have to promulgate additional regulations, and we may have to go through this for a second time,” Manning said.
The Office of Compliance’s executive director, Bill Thompson, said the agency had no choice but to issue the regulations when they did, because the Congressional Accountability Act leaves no flexibility in this regard.
The 1995 law 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 has been fully aware of the pendency of various pieces of legislation which would amend the existing Department of Labor regulations, however, it is not the role of this office to vary the statutory requirements based upon potential legislative activity,” Thompson said.
In a statement, Sen. Chuck Grassley (R-Iowa), who drafted the CAA, said the original intent of the law “was to ensure that Congress lived by the same rules it imposed on Main Street America. We should be able to find a way to make the same overtime rules work for Congress as they do for America’s workers in the private sector.”
Amy Call, a spokeswoman for Senate Majority Leader Bill Frist (R-Tenn.), declined to comment on Manning’s remarks.
The Office of Compliance’s board of directors sent the House and Senate proposed regulations at the end of September, initiating a 30-day comment period that ended Oct. 29.
Manning, along with her colleagues in the House Employment Counsel’s office and the employment lawyers for the Capitol Police and the Architect of the Capitol, submitted comments. All four entities suggested that the Office of Compliance eliminate what they consider extraneous language that’s not applicable to Congressional employees, such as references in the Labor Department’s regulations to such jobs as longshoremen and dental hygienists.
“We’re not objecting to the regulations — we’re suggesting that the Office of Compliance draft them in a manner that exclude any language that does not apply to the Senate directly,” Manning said.
Thompson said the CAA gives his agency little flexibility over how the rules are issued. The law requires that any “substantive” regulations issued by the Labor Department shall be the same for Congress “except to the extent that there is good cause to change them,” Thompson said.
Manning and the other employment offices that submitted comments used the “good cause” language to make their case that the portions of the rules that don’t directly apply to Congress should be stricken, as they were when overtime rules were first applied to Congress in 1996.
Thompson explained that his agency was under different constraints this year because the “extraneous” material that the board was able to rescind in 1996 had not been formally promulgated by the Labor Department as “substantive regulations.” The new rules released this year, he said, differ substantially because the department issued examples — job descriptions such as longshoremen and dental hygienists — to provide guidance to employers in the form of substantive regulations, instead of interpretive bulletins as had been done in the past.
“Consequently, the descriptive material which is intended to provide comprehensive guidance to employers of all varieties, is all ‘substantive regulations,’” Thompson said.
After the board processes the comments, the directors will then submit final proposed rules, which require Congressional approval. But the board is currently made up of only two of its five members, as the other three were term-limited out Oct. 1, and Congress has yet to reappoint them, as is expected.
Frist’s spokeswoman said the Senate has no plans to take up the regulations during the lame duck.
Until Congress approves the new rules, the regulations issued by the Office of Compliance board in 1996 will remain in effect.
In a signal that a political fight may be looming, a spokesman for Rep. George Miller (D-Calif.) said his boss would oppose the new regulations being applied to Congressional employees, just as he opposes them for workers in the private sector.
“We believe what goes for the rest of the country should go for Capitol Hill, as well,” Miller spokesman Tom Kiley said, adding, “We would like to see them overturned for the rest of the country, and we’d like to see them overturned on Capitol Hill.”