[Congressional Record Volume 141, Number 130 (Saturday, August 5, 1995)]
[Senate]
[Pages S11709-S11710]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             AMENDING THE FAIR LABOR STANDARDS ACT OF 1938

  Mr. DOLE. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of H.R. 1225, just received from 
the House.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       A bill (H.R. 1225) to amend the Fair Labor Standards Act of 
     1938 to exempt employees who perform certain court reporting 
     duties from the compensatory time requirements applicable to 
     certain public agencies, and for other purposes.

  The PRESIDING OFFICER. Is there objection to the immediate 
consideration of the bill?
  There being no objection, the Senate proceeded to consider the bill.
  Mr. PRESSLER. Mr. President, on Tuesday the House of Representatives 
unanimously passed H.R. 1225, the Court Reporter Fair Labor Amendments 
of 1995. The bill has since been received in the Senate. I rise to 
strongly support this much needed legislation, modeled after a bill, S. 
190, I introduced last Congress and reintroduced again this January.
  This legislation would correct a situation caused last year by a 
Labor Department interpretation of the Fair Labor Standards Act of 1938 
[FLSA] as it relates to State and local court reporters. The bill would 
exempt from the overtime provisions of the FLSA the time official court 
reporters spend outside of work preparing transcripts of court 
proceedings for a private fee.
  Mr. President, for purposes of legislative history, let me take a 
moment to explain the background of this issue and why this legislation 
is so necessary. Traditionally, court reporters have enjoyed a somewhat 
unique position of being treated as both public employees and 
independent contractors, depending on the nature of their work. While 
performing their primary duties of recording and reading back court 
proceedings, reporters have been considered employees of the court 
entitled to appropriate compensation and benefits.
  In addition to these in-court duties, however, official court 
reporters also are required by most jurisdictions to prepare and 
certify transcripts of their stenographic records. Transcripts are 
typically requested by a wide range of persons--including attorneys for 
indigent and nonindigent criminal defendants, civil litigants, and 
judges. In return, reporters are paid a per-page fee by the party 
requesting the transcript. 

[[Page S11710]]

  When preparing transcripts for outside parties, not including judges, 
reporters have been considered independent contractors, not court 
employees. This makes sense because the court receives no benefit from 
the preparation of the transcript. The work is performed after normal 
working hours, on weekends, or when all their other court duties have 
been completed. Quite often, court reporters produce these transcripts 
at home using computer-aided transcription equipment, which they have 
personally purchased, without any supervision by the court.
  For taxation purposes, the fee income received for the work is 
treated as separate and apart from reporters' court wages. In fact, 
court reporters in my home State of South Dakota are required to 
collect and pay sales tax on this income. They also file self-
employment income forms with the U.S. Internal Revenue Service.
  Mr. President, the situation I have described, typical of almost all 
State and local court reporters in the country, was thrown into turmoil 
last year by the Wage and Hour Division of the Labor Department. In a 
series of letters, the Division took the position that official court 
reporters in Oregon, Indiana, and North Carolina were still acting as 
court employees, for purposes of the FLSA, when they prepare 
transcripts of their stenographic records for private litigants, 
regardless of when or where the work is completed. Court reporters in 
most other States operate in circumstances similar to these three 
States.
  None of the groups affected are pleased by the Labor Department's 
position. Many view the Labor Department as unnecessarily intruding 
into a situation with which everyone concerned was happy.
  If allowed to stand, court employers would be forced to pay overtime 
for transcription work that is not supervised by the court and from 
which the court does not receive a benefit. As a result, many more 
hours of overtime would be accumulated by reporters. At one and one-
half times the regular rate of pay, these additional overtime hours 
would severely strain the limited salary budgets of the courts. In 
response, courts would be forced to drastically cut back the number of 
hours allowed for transcription work, or cut back the number of court 
reporter positions.
  State and local court reporters also are not happy with the Labor 
Department's interpretation. Though they purportedly would be the 
beneficiaries of the ``protections'' of the FLSA, reporters are worried 
their ability to earn outside income would be drastically reduced, that 
they would be subjected to court supervision when preparing 
transcripts, and that many reporter positions could be eliminated.
  Finally, attorneys and others who request transcripts do not wish to 
see the current system changed. Under the traditional situation, they 
receive transcripts quickly and accurately at a reasonable price.
  Mr. President, this legislation fixes the problem. It would allow 
State and local court reporters to continue to prepare transcripts for 
attorneys and others in their off hours for a per-page fee. During 
these hours, court reporters would be considered independent 
contractors, not employees of the court. These hours would not count 
toward the overtime provisions of the FLSA. Courts would not be 
required to pay reporters for these hours. The effect of the bill would 
be to preserve the system as it has existed for years. It is strongly 
supported by the National Court Reporters Association. I also have 
heard strong support from many judges and attorneys in South Dakota for 
preserving the present system.
  Mr. President, this is not a partisan issue. As it progressed through 
the House, this legislation enjoyed broad support on both sides of the 
aisle. During a hearing held several weeks ago in the House Worker 
Protections Subcommittee of the Economic and Educational Opportunities 
Committee, no witness testified in opposition. After consultations with 
members of both parties and the Labor Department, the House bill was 
modified to clarify its intent. The modified version was then offered 
as an amendment in the nature of a substitute by Representative Owens, 
the ranking member of the subcommittee, with the approval of the 
sponsor, Mr. Fawell.
  Essentially, two conditions must be met for the exemption to apply. 
First, when performing transcript preparation duties, reporters must be 
paid at a per-page rate that is fair. To ensure reporters are not 
exploited, the rate must not be less than the maximum rate set by State 
law or local ordinance or otherwise established by a judicial or 
administrative officer, or a fair market rate as negotiated by the 
reporter and the party requesting the transcript.
  Second, transcription work must be performed during hours when 
reporters are not otherwise required by their court employer to be at 
work. Reporters are clearly acting as employees subject to compensation 
when they are required by the court to be working, or to be on call 
during a period of down time in a trial, for instance.
 However, when court reporters no longer are required to be at work, 
when they are free to go home or spend their time as they wish, and 
they choose to prepare transcripts for a private fee, then court 
employers are under no obligation to compensate them or count those 
hours toward the overtime provisions of the FLSA. This is common sense.

  Mr. President, as I mentioned, no opposition to this legislation 
appeared in the House. I do not expect any opposition in this chamber 
either. S. 190, the bill I introduced, has been cosponsored by Senator 
Kassebaum, chairman of the Labor and Human Resources Committee, as well 
as Senators Exon, Helms, Jeffords, Cochran, Coats and Brown. I thank 
them for their support and am confident they also will find the House-
passed legislation satisfactory.
  H.R. 1225 is being held at the Senate desk pursuant to my request. It 
is my intention to seek unanimous consent to move this bill at the 
appropriate time. I understand from the staff of the ranking member of 
the Labor Committee, Senator Kennedy, that he does not plan to object 
to moving this legislation. I also have checked with other members of 
the Labor Committee from the other party and have not heard of any 
opposition. Nor did I expect any.
  To conclude, Mr. President, I thank all my colleagues for their 
support and look forward to moving this bill quickly.
  Mr. DOLE. I ask unanimous consent that the bill be deemed to have 
been considered, read a third time, and passed, and the motion to 
reconsider be laid on the table, and any statement relating to the bill 
appear at the appropriate place in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  So the bill (H.R. 1225) was deemed to have been read the third time 
and passed.

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