Overtime Rule Stumps Congress on Hill Staffers'Pay

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Ben Penn

Feb. 17 — The top two House Democratic leaders have quietly begun to comply with the spirit of a forthcoming Labor Department regulation by paying overtime to more staffers, but the rule is creating administrative headaches in other lawmakers' offices, legislative sources told Bloomberg BNA.

Relaying a conversation he recently had with one member's chief of staff, Brad Fitch, president and CEO of the Congressional Management Foundation, told Bloomberg BNA Feb. 16 that House “Democratic chiefs of staff are freaking out” about finding room in their budget for overtime wages. “That was her clinical assessment of the managerial challenges,” he said.

Whether the DOL's eventual final rule to open up overtime pay to millions of new employees winds up applying to the legislative workforce remains to be seen. But a short list of House Democrats sprang to action anyway after the proposal was unveiled last June .

Still, outside of the House leadership, which receives greater funding for payrolls than other members, there are Democrats who support the DOL's rulemaking but don't know if they can afford to compensate staffers accordingly because of steep cuts in their office budgets.

“We don’t have a set-hour kind of situation here; some kids work 12, 14, 16 hours a day, weekends, and I feel terrible that I cannot afford to give raises to the staff,” Rep. Alcee Hastings (D-Fla.) told Bloomberg BNA Feb. 11.

With $320,000 slashed from members' representational allowances (MRAs) over the past four years, “I don’t see how we could pay overtime” for the “17 or 18 people that each of us is allowed to have—that’s problematic for me,” added Hastings, a senior member of the House Rules Committee.

The mounting trepidation on Capitol Hill comes as a wide range of employers have argued against the regulation for imposing unnecessary costs. Republicans have opposed the DOL proposed rule, citing the burdens placed on employers. They're considering a legislative challenge once the final version is released later this year .

Democrats overwhelmingly support the proposed expansion of overtime wages. Worker advocates have praised the administration for modernizing overtime regulations under the Fair Labor Standards Act and boosting the middle class.

`Awkward' Scenario for House Democrats

On the Senate side, offices have more room in their budgets to compensate staff time-and-a-half for additional hours beyond 40 in a workweek. The overtime issue has presented less of a conflict thus far in that chamber than in the House, Fitch said.

That leaves House Democrats in a unique bind. They largely favor the DOL's proposal to more than double the minimum annual salary for overtime exemption to $50,440 from $23,660. But they understand that providing overtime pay for their employees—many of whom earn below $50,440 and are prone to work well over 40 hours some weeks—may not be financially feasible.

Jim Moran, who resigned last year after 24 years as a Democratic representative from Virginia, told Bloomberg BNA Feb. 9 that the concern will be widespread on the Hill. “Most members are of the sentiment that it's impractical to be paying overtime,” observed Moran, who was a member of the Appropriations Subcommittee on the Legislative Branch in the previous Congress.

“The problem is that this is the body that makes the laws that others have to comply with, so it’s a little awkward when you exempt yourself from the very laws that you’re expecting others in the public and private sector to comply with,” Moran added.

The CMF's Fitch confirmed Moran's characterization of the dilemma, saying he's already had conversations with about five to 10 House members' chiefs of staff who have sought guidance on overtime.

“They feel it would be unfair or hypocritical to support this kind of ruling for the private sector and not implement it in their own offices,” Fitch said.

Steep Budget Cuts

Rep. Rosa DeLauro (D-Conn.), one of the more vocal worker advocates in Congress, acknowledged the budgetary constraints, but said that won't stop her from paying overtime once the DOL publishes a final rule.

“We are dealing with challenges, with MRAs being cut,” DeLauro told Bloomberg BNA Feb. 11. “It puts people in a difficult spot.”

The MRAs for House members were reduced by about 20 percent from fiscal years 2011 to 2013, according to an analysis by the CMF, an independent organization that provides operations and management training for congressional offices.

House members “don’t have any surplus funding in their MRA account, but the funding is flexible, so what they would have to do is reduce the size of their staff or” cut back on constituent communications, said Moran, now a lobbyist with the law firm McDermott Will & Emery LLP. They might also consider eliminating a district office to afford overtime wages, he suggested.

What chiefs of staff fear, Fitch said, is the prospect of being forced to send staff assistants and legislative correspondents home at 5 p.m. because the office can't incur additional expenses. In doing so, they'd be “degrading the quality of services” available to both the member and constituents, he said.

Leaders Take Charge

The need to maintain an internal policy that is consistent with standards a lawmaker believes are proper for the overall workforce is what motivated House Minority Leader Nancy Pelosi (D-Calif.) to adjust the overtime protocol for her staff.

“Starting this year, the overtime compensation caps in” Pelosi's “leadership and personal offices increased to $50,440 in order to comply with this new rule,” Evangeline George, the minority leader's spokeswoman, told Bloomberg BNA in a Feb. 5 e-mail. “Leader Pelosi has long believed that workers in every field and every industry should be afforded the respect of wages that recognize the long hours given by so many—and that includes her office,” George said.

Minority Whip Steny Hoyer (D-Md.) also responded to the agency's rule by paying overtime for the newly nonexempt staff, Mariel Saez, a spokeswoman for Hoyer, told Bloomberg BNA Feb. 3.

The House Committee on Education and the Workforce's Democratic office has paid workers overtime dating back at least 10 years, a senior committee staffer who requested anonymity told Bloomberg BNA Feb. 17.

Then, in reaction to the DOL proposed rule, Rep. Bobby Scott (D-Va.), the committee's ranking Democrat, encouraged colleagues to follow suit on overtime. The committee source was not aware of any office that has enacted such a policy but said some members have expressed interest in doing so.

The Workforce Committee Democratic staffer said it should be an easy rule to comply with, provided that a legislative office requires workers to get approval before they work overtime, and only approve it when it can be afforded.

Representatives for Hoyer and Pelosi both declined to comment specifically on the economic hurdles for their colleagues to also provide overtime wages. “Individual offices may implement their own workplace policies,” Pelosi's spokeswoman said.

The Workforce Committee's Republican leadership has been outspoken in disapproval of the DOL proposal for the overall workforce. Asked to respond to how the rule affects its own staffers, Tyler Hernandez, spokesman for the committee's majority staff, didn't provide Bloomberg BNA with a comment.

Workforce Composition

Higher ranking and higher paid positions such as chiefs of staff and legislative directors should remain exempt from overtime unless the DOL were to dramatically increase the salary threshold in the final rule.

The latest available data from the Congressional Research Service shows that as of FY 2013, median annual pay of several other job titles on the Hill would fall under the new threshold for overtime pay if the department's proposal were to apply.

For instance, staff assistants ($35,501), legislative correspondents ($38,052), schedulers ($48,199), legislative assistants ($48,622) and field representatives ($49,500 per year) all typically earned below the DOL's proposed $50,440 to qualify for exemption from overtime pay.

Office of Compliance Waits in Wings

Even if members opt not to voluntarily observe the spirit of the regulation, they may be required to comply with the letter of the law, depending on a decision by a small agency that oversees workplace policy in the legislative branch.

The Office of Compliance enforces the Congressional Accountability Act, which extends some FLSA protections to legislative branch employees. Upon the release of the DOL final overtime rule, the OOC will issue a separate regulation covering congressional staff.

Under the Congressional Accountability Act, the OOC is mandated to write a rule that adopts the same provisions as the DOL regulation unless the OOC determines that a modification is necessary because of factors specific to the congressional workforce.

Paula Sumberg, deputy director of the OOC, told Bloomberg BNA Feb. 8 that her office has been closely following the DOL rulemaking process, but hasn't formally started its review.

Faced with an unknown rulemaking outcome and a limited budget, some Capitol Hill offices may simply take the wait-and-see approach. After all, Congress typically doesn't tend to a crisis until it's “staring at” it “in the face,” Fitch said. “I don’t think managers have yet estimated or assessed the potential impact of this regulation.”

To contact the reporter on this story: Ben Penn in Washington at bpenn@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Request Labor & Employment on Bloomberg Law