[Congressional Record Volume 149, Number 125 (Thursday, September 11, 2003)]
[Senate]
[Pages S11419-S11421]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER:
  S. 1611. A bill to provide for the establishment of a commission to 
conduct a study concerning the overtime regulations of the Department 
of Labor, to the Committee on Health, Education, Labor, and Pensions.
  Mr. SPECTER. Mr. President, I sought recognition to introduce 
legislation to create a commission on overtime pay.
  Yesterday, the Senate passed an amendment to preclude Federal funding 
for the regulation issued by the Department of Labor on overtime pay, 
and it is uncertain what will happen as the bill goes to conference. 
There has been a representation that the President will veto the 
appropriations bill on Labor, Health and Human Services, and Education 
if this regulation is not in the bill.
  It seems to me we ought to be taking another step, and that is to 
create a commission to deal with this issue so we are prepared in any 
eventuality. There is no doubt that the 1945 regulations on the Fair 
Labor Standards Act, that those regulations are vastly out of date and 
they ought to be revised. There are many lawsuits, some class actions, 
to determine what the definitions are for those who are or who are not 
covered by overtime pay that ought to be clarified. Clarification can 
be achieved without having the massive disruption on the change on 
overtime pay for so many in the workforce.
  A change in the overtime pay for those in the workforce would be 
especially problematic given the economic situation at hand, that it is 
a difficult time and there ought not to be that kind of disruption 
which would be occasioned by this bill, by the regulations going into 
effect.
  Even though the Department of Labor's propose legislation stated that 
the Department could not exactly clarify which workers would be exempt 
or not exempt based on the current and the proposed rules, the 
commission which I am proposing would have representatives from 
business, the public sector, the labor groups, with widespread approval 
from congressional leaders, and is a preferable course so we can 
achieve both objectives; that is, to have clarification on the outdated 
regulations to avoid the litigation and know who is exempt and who is 
not exempt while doing it without massive disruption of the overtime 
pay at a very difficult time for the workers.
  To reiterate, today I am introducing legislation to establish a 
commission to conduct a thorough study of issues relating to 
modernization of the Fair Labor Standards Act overtime provisions. 
These provisions have remained substantially unchanged since 1975, 
despite changes in the modern work place.
  On March 31, 2003, the Labor Department issued proposed regulations 
to update the exemptions from overtime pay for executive, 
administrative, professional, outside sales and computer employees. 
More than 70,000 comments were received by the June 30, 2003 deadline. 
Due to the controversy generated by the proposed regulations, I held a 
hearing on July 31, 2003 to explore this

[[Page S11420]]

complex question. We heard testimony from the Labor Department, as well 
as organized labor and business representatives. It was evident that 
while there was general agreement that greater clarity of definitions 
concerning overtime pay eligibility would be beneficial to both 
employees and workers there was disagreement about the impact of the 
proposed regulations, and no consensus about how to achieve greater 
clarity and compliance to avoid costly lawsuits. Even the Labor 
Department's proposed regulations stated that the Department could not 
exactly clarify which workers are exempt and nonexempt based on the 
current and proposed rules.
  The commission I am proposing will bring together experts to study 
these ambiguities and other issues deemed appropriate, and report to 
the Secretary of Labor and Congress by July 30, 2004. The legislation 
also specifies that the proposed overtime regulation will not become 
effective until 60 days after the date the commission report is 
submitted.
  The commission will be composed of 11 members representing organized 
labor, the business community, the general public and Federal 
officials. The commission members will be appointed on a bipartisan, 
bicameral basis and shall be appointed by the Secretary of Labor, and 
the House and Senate appropriations and authorizing committees.
  The primary duties of the commission will be to conduct a thorough 
study of, and develop recommendations on, issues relating to the 
modernization of the overtime provisions of the Fair Labor Standards 
Act of 1938.
  Specifically the commission will:
  (1) Review categories and numbers of workers not eligible for 
overtime pay under current regulations and identify how many workers 
and employers might be affected by proposed changes to the current 
regulation;
  (2) Determine if the proposed regulation relating to overtime is 
sufficiently clear to be easily understood by employers and workers;
  (3) Assess the paperwork burden that employers would have in order to 
assure that each individual worker, claimed to be exempt from such 
overtime requirements, actually is exempt under such regulation;
  (4) Assess the extent to which it will be clear to the individual 
worker as to his or her overtime pay protection under the proposed 
regulation; and
  (5) Determine the impact of the regulation on nurses, pharmacists, 
and police, firefighters and paramedics.
  Given the extreme controversy over the proposed overtime regulation, 
I believe that the legislation that I am proposing will provide an 
opportunity for all sides to air the concerns and work with the 
Secretary of Labor to craft a regulation that will benefit employers, 
employees and the general public.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1611

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. COMMISSION ON OVERTIME REGULATIONS.

       (a) Establishment of Commission.--There is established the 
     Commission on Overtime Regulations (in this section referred 
     to as the ``Commission'').
       (b) Membership.--
       (1) Composition.--The Commission shall be composed of 11 
     members of whom--
       (A) 1 member shall be appointed by the Secretary of Labor 
     from the general public;
       (B) 1 member shall be a representative of business to be 
     nominated by the United States Chamber of Commerce and 
     appointed by the Secretary of Labor;
       (C) 1 member shall be a representative of organized labor 
     to be nominated by the AFL-CIO and appointed by the Secretary 
     of Labor;
       (D) 1 member shall be appointed by the chairman of the 
     Committee on Health, Education, Labor, and Pensions of the 
     Senate;
       (E) 1 member shall be appointed by the ranking minority 
     member of the Committee on Health, Education, Labor, and 
     Pensions of the Senate;
       (F) 1 member shall be appointed by the chairman of the 
     Committee on Appropriations of the Senate;
       (G) 1 member shall be appointed by the ranking minority 
     member of the Committee on Appropriations of the Senate;
       (H) 1 member shall be appointed by the chairman of the 
     Committee on Education and the Workforce of the House of 
     Representatives;
       (I) 1 member shall be appointed by the ranking minority 
     member of the Committee on Education and the Workforce of the 
     House of Representatives;
       (J) 1 member shall be appointed by the chairman of the 
     Committee on Appropriations of the House of Representatives; 
     and
       (K) 1 member shall be appointed by the ranking minority 
     member of the Committee on Appropriations of the House of 
     Representatives.
       (2) Period of appointment; vacancies.--Members shall be 
     appointed for the life of the Commission. Any vacancy in the 
     Commission shall not affect its powers, and shall be filled 
     in the same manner as the original appointment.
       (3) Quorum.--A majority of the members of the Commission 
     shall constitute a quorum, but a lesser number of members may 
     hold hearings.
       (4) Chairperson and vice chairperson.--The Commission shall 
     select a Chairperson and Vice Chairperson from among its 
     members.
       (c) Duties of the Commission.--
       (1) Study.--The Commission shall conduct a thorough study 
     of, and develop recommendations on, issues relating to the 
     modernization of the overtime provisions of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 201 et seq.) in order to 
     promote clarity and compliance. In conducting such study the 
     Commission shall--
       (A) review the categories and number of workers not 
     eligible for overtime pay under current regulations under the 
     Fair Labor Standards Act of 1938 and identify how many 
     workers and employers might be affected by proposed changes 
     to such regulations;
       (B) determine if the proposed regulation relating to 
     overtime is sufficiently clear to be easily understood by 
     employers and workers;
       (C) assess the paperwork burden that employers would have 
     in order to assure that each individual worker, claimed to be 
     exempt from such overtime requirements, actually is exempt 
     under such regulation;
       (D) assess the extent to which it will be clear to the 
     individual worker as to his or her overtime pay protection 
     under the proposed regulation;
       (E) determine the impact of the proposed regulation on the 
     access of individuals to health care based upon the impact 
     the proposed regulation has on nurses and pharmacists, and 
     the impact that such regulation has on fundamental security 
     occupations of first responders such as police, firefighters, 
     and paramedics;
       (F) identify how the proposed regulation would affect 
     enforcement and compliance actions of the Department of 
     Labor;
       (G) make recommendation to simplify the definitions of 
     professional or managerial duties that exempt workers from 
     overtime requirements so that they have a greater ability to 
     know in advance what their expectations should be;
       (H) identify new and emerging specialty positions in the 
     modern workplace that require clarification of their status 
     with respect to the profession employees exemption to the 
     overtime requirements;
       (I) review the need to update the exemption to the overtime 
     requirements for computer workers;
       (J) examine the merits of an income ceiling above which 
     workers would be exempt from the overtime requirements;
       (K) review the salary levels used to trigger the regulatory 
     tests for overtime compliance, including the merits and 
     drawbacks of indexing such levels for inflation;
       (L) consider what kind of limited or conditional 
     ``docking'' flexibility would provide employers with 
     alternatives to termination and to week-long suspensions 
     without being used as a subterfuge to evade or undermine the 
     salary test with respect to overtime requirements;
       (M) identify obstacles small businesses may face in 
     achieving compliance or correction with respect to the 
     overtime requirements and develop a means to overcome those 
     obstacles;
       (N) clarify the definition of ``workplace conduct'' so that 
     employers and employees know whether dangerous or abusive 
     situations, such as harassment or violence off the employer's 
     premises can, nevertheless, be addressed in a manner 
     consistent with the Fair Labor Standards Act of 1938;
       (O) identify ways in which employers can satisfy the 
     requirement that policies regarding workplace conduct be in 
     writing to permit the use of other forms of notice or other 
     technologies for communications while ensuring that notice is 
     fairly provided to workers;
       (P) identify ways to improve the availability of the 
     proposed safe harbor means of demonstrating compliance with 
     the overtime regulations by clarifying that such regulations 
     are intended to parallel existing legal requirements for 
     discrimination or labor law cases and not to prompt new 
     litigation or confusion; and
       (Q) study other issues determined appropriate by the 
     Commission.
       (2) Report.--Not later than July 30, 2004, the Commission 
     shall prepare and submit to the Secretary of Labor, the 
     appropriate committees of Congress, and the general public a 
     report concerning the study conducted under paragraph (1). 
     The report shall include the findings and recommendations of 
     the Commission with respect to the matters described in 
     subparagraphs (A) through (Q) of paragraph (1).

[[Page S11421]]

       (3) Effective date of revised regulations.--The Secretary 
     of Labor shall ensure that the effective date for any 
     proposed modifications to the regulations relating to the 
     overtime requirements under the Fair Labor Standards Act of 
     1938 is not earlier than 60 days after the date on which the 
     report is submitted under paragraph (2).
       (d) Powers of the Commission.--
       (1) Hearings.--The Commission may hold such hearings, sit 
     and act at such times and places, take such testimony, and 
     receive such evidence as the Commission considers advisable 
     to carry out this section. The Commission shall, to the 
     maximum extent possible, use existing data and research prior 
     to holding such hearings.
       (2) Information from federal agencies.--The Commission may 
     secure directly from any Federal department or agency such 
     information as the Commission considers necessary to carry 
     out this section. Upon request of the Chairperson of the 
     Commission, the head of such department or agency shall 
     furnish such information to the Commission.
       (3) Postal services.--The Commission may use the United 
     States mails in the same manner and under the same conditions 
     as other departments and agencies of the Federal Government.
       (e) Commission Personnel Matters.--
       (1) Compensation; travel expenses.--Each member of the 
     Commission shall serve without compensation but shall be 
     allowed travel expenses, including per diem in lieu of 
     subsistence, at rates authorized for employees of agencies 
     under subchapter I of chapter 57 of title 5, United States 
     Code, while away from their homes or regular places of 
     business in the performance of services for the Commission.
       (2) Staff and equipment.--The Department of Labor shall 
     provide all financial, administrative, and staffing 
     requirements for the Commission including--
       (A) office space;
       (B) furnishings; and
       (C) equipment.
       (f) Termination of the Commission.--The Commission shall 
     terminate 90 days after the date on which the Commission 
     submits its report under subsection (c)(2).
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