The original regulations were enacted under the 1938 Fair Labor Standards Act. In 1999 the Labor Department estimated 80 percent of workers were guaranteed the right to overtime pay—time and a half for every hour worked past 40 in a week.

Speaking for the administration of President George W. Bush, Labor Secretary Elaine Chao claims the regulations “will strengthen overtime rights for 6.7 million American workers, including 1.3 million low-wage workers who were denied overtime under the old rules.”

Under the new rules all workers earning wages of $23,660 or less per year are eligible for overtime pay. The figure had remained at $8,060 since 1975. The 5.4 million others whose rights will be “strengthened,” according to the Labor Department, are those who were “at particular risk of being misclassified” under the numerous exemptions that exist in the labor codes.

In order for employees to be disqualified—or “exempted,” in the language or the Department of Labor—from receiving overtime pay, they must satisfy each of three tests: their income has to be paid on a salary rather than hourly basis; they must earn above a certain minimum, which under the new code is $23,660; and their “job duties must primarily involve executive, administrative, or professional duties.” In addition, the new rules state that those earning salaries above $100,000 per year, with few exceptions, are exempt from receiving overtime pay. The Labor Department’s original proposal had been $65,000.

These rules, of course, do not cover millions of undocumented workers, most of whom are paid cash by the bosses and never receive overtime pay or any other benefits stipulated under federal labor laws and regulations. This category also includes workers on parole or on probation. Many employers often count on the more vulnerable status of these workers to deny them premium pay.

The point of contention centers on the millions of workers whose income falls between the $23,660 and $100,000 figures. The myriad rules that have existed under Democratic and Republican administrations alike had left open to employers the ability to classify them as executives, administrators, or professionals, in order to deny them premium pay for extra hours worked. The tweaking of the rules by the Bush administration leaves these loopholes in place for the bosses.

Democratic Party presidential candidate John Kerry attacked the new overtime rules in July as “a shameful assault on the paychecks of hard-working Americans.” Using a study by the liberal Economic Policy Institute, a Democratic campaign statement charged that “Bush’s overtime rule eliminates overtime pay for 6 million by changing the tests for exemption.” Examples cited by this group include nursery school teachers, computer programmers, and police lieutenants.

The AFL-CIO has also criticized “Bush’s efforts to slash…overtime pay.” Its fact sheets charge, for example, that under the new rules registered nurses (RNs) “are very likely to lose their overtime pay rights.”

Elaine Chow of the Labor Department responded to what she described as its critics’ “myths, distortions and inaccuracies” with a list of jobs titles that it stated would not lose the right to overtime. These include nurses, production workers, and paramedics.

The new regulations, like the previous ones, disqualify RNs from receiving overtime pay. Licensed practical nurses (LPNs), however, remain eligible for premium pay for overtime.

Chao claimed the new rules would make things easier for both bosses and workers by ending “the lawsuit lottery that is delaying justice for workers and stifling our economy with billions of dollars of needless lawsuits.” A representative of the conservative Heritage Foundation backed her statement, charging that “trial lawyers exploit this confusion” to make companies pay overtime to the many white-collar workers it says “were never supposed to be” eligible.  
 
 
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