Millennials Weary from Overwork
A recent article in the Washington Post reports on a Global Generations Research Survey by Ernst and Young. [Millennials want a work-life balance. Their bosses don't understand why, WP, 5-6-15] The report finds many work long hours. As a consequence they delay having children, discontinue education and struggle to pay tuition for their children. The article contrasts Millennials with older generations where the young expect technology to free them to work productively from anywhere, but the older bosses are “afraid people who don’t come to the office won’t work as hard.”
The article does not mention a prime source of overwork: unpaid overtime. The demand to have employees around warming up a chair to meet the expectations of the boss has a special hypocrisy since it is common now for business to issue laptop computers, cell phones, and Blackberry’s to employees for use away from the office. Using new technology makes staff available for overtime on evening, weekends, or the middle of the night. Few reports suggest business treat these additional hours of work as paid work much less time and a half for overtime required by the Fair Labor Standards Act.
Back in 2003 the Bush Administration quietly rewrote the overtime rules in the Fair Labor Standards Act. In theory working more than forty hours a week is entitled to pay at time and half the regular pay rate. The Fair Labor Standards Act rules start out with the time and half rule, but they are followed with pages and pages of exceptions that make it easy for management to avoid overtime pay whenever they want.
Three people working forty hours a week equal two people working sixty hours a week, but management pays less for the two when overtime rules allow unpaid overtime. The abuse violates more than the overtime rules because the Fair Labor Standards Act requires at least regular pay for time worked in all cases. Overtime rules exempt millions of America’s executive, administrative, professional, computer, outside sales employees, motion picture employees, and other more narrowly defined occupations from overtime pay, but quite often they work overtime hours for free. Millions confront regular pressure to donate hours of work to their employers while others looking for work find that difficult to do with others working for nothing.
The Code of Federal Regulations sections known as 29 CFR 541 governs overtime rules. The rules run over 15 thousand words after the Bush Administration revisions. The revisions make it possible to avoid overtime pay for almost any office and professional work as long as an employee receives a salary equal to or greater than $455 a week, or $23,660 on an annual basis. Notice that any employer has authority to pay by the week or pay by the hour to fit the regulations as they choose. In practice it turns out weekly, monthly or annual pay makes it easy to forget the total of hours worked.
The long detailed wording in the regulations allows an employer to define or adjust duties to meet the regulations. The wording for administrative employees explains that any employee employed in a bona fide administrative capacity who is “compensated on a salary or fee basis at a rate of not less than $455 per week, exclusive of board, lodging or other facilities, whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers, and whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance” can be exempt from overtime pay.
The regulations describe ways that discretion, independent judgement, and matters of significance might occur and then by changed by higher ups in order to exempt an employer from overtime pay. The regulations read “The exercise of discretion and independent judgment implies that the employee has authority to make an independent choice, free from immediate direction or supervision. However, employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level. Thus, the term ‘discretion and independent judgment’ does not require that the decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review.”
The Obama Administration, now well into a second term, has finally proposed amendments to the overtime rules. They want to raise the salary cap for overtime exemption from $23,660 to $52,000. Business opponents of the change worry and fret to Congress that the new law will cause more lawsuits.
Jamie Richardson, vice president of White Castle Restaurants, told Congress “The new regulations will only result in more complicated laws, and eventually more lawsuits.” He means that raising the threshold for exemption will give financial incentive for more people and groups to challenge the vague terminology used to avoid paying overtime since the Bush Administration amendments went into effect in 2004.
Lawsuits are already on the rise the government’s GAO (General Accounting Office) reports because more employees are tired of employers who expect them to be available to answer emails and cell phones out of business hours on weekends and evenings.
Some like Ryan Shaw, quoted in the Millennial article above, have taken the work hours issue one step further. If they can be expected to work part of the time away from the office then why not all of the time. Since his work was over the Internet and on computers he demanded to leave his employer’s home base in Los Angeles and move to Florida and do his work from there based on a salary disconnected from work hours. Now his work depends only on what he does and not how he does it. Some employers have a hard time recognizing work for what it is; they want control over time.
It’s hard to defend rules that keep employees at work for free. As the Obama Administration moves into its final years, it is about time they did something for working Americans. The proposed rule changes make changes in the right direction; the only question is why so little, so late.