Will Congress Apply the Overtime Rule to Itself?

Senate and House not automatically subject to regulations

Allen Smith, J.D. By Allen Smith, J.D. June 27, 2016


Congress won't necessarily feel the pain of the overtime rule, unless it passes a resolution saying it will comply with the regulations—though Congress never adopted the 2004 changes to the Fair Labor Standards Act (FLSA) regulations, said Veronique de Rugy, a senior research fellow at the George Mason University Mercatus Center, a research organization in Arlington, Va. But if it does adopt the changes, junior staff may miss out on valuable on-the-job experiences.

Congressional Accountability Act

The Congressional Accountability Act of 1995 (CAA) requires Congress to meet the FLSA's overtime requirements, in addition to other employment laws and regulations.

Despite the CAA, Congress hasn't complied with the 2004 changes to the overtime rule, which was the last time changes were made before the May 2016 updates. So, Congress still operates under the FLSA regulations it adopted in 1996 when the weekly salary level was $155 for the executive exemption, $155 for the administrative exemption and $170 for the professional exemption, de Rugy said.

Congress seems "comfortable applying rules to the private sector it does not apply to itself," she told SHRM Online.

The chance that Congress won't apply the new overtime rule to itself is "a distinct and appalling possibility," said Alfred Robinson Jr., an attorney with Ogletree Deakins in Washington, D.C., and former acting administrator of the Department of Labor's Wage and Hour Division. "To demonstrate its accountability to the taxpayers of the United States, Congress should adopt a resolution before Election Day in November to apply the new part 541 regulations to the legislative branch effective Dec. 1, just as they will apply to almost all for-profit and many nonprofit entities."

But, de Rugy noted, "For 12 years, Congress has not followed the law."

Trouble for Congress if Overtime Rule Applies to It

Some Congress members think the overtime rule is a bad one. Max D'Onofrio, press secretary for Sen. Michael Enzi, R-Wyo., said that Enzi "believes the overtime rule is just another example of this administration's inability to understand that one-size-fits-all regulations don't work. He believes the changes will impose more federal requirements on employers that will make it harder for businesses to succeed." He added that "Enzi has said that when you force businesses into a position where they have to make bad choices, it doesn't just hurt employers, but also the employees by limiting workplace flexibility and increasing reliance on part-time workers and automation."

Asked whether the wheels are in motion for Congress to apply the overtime rule to itself, D'Onofrio said that "Sen. Enzi compensates his employees in a fair manner and follows the law and rules of the Senate."

Should Congress wind up applying the overtime rule to itself, the management of congressional offices will be affected, according to Brad Fitch, president and CEO of the Congressional Management Foundation in Washington, D.C. The foundation is a nonprofit organization that focuses on improving congressional operations and providing a better understanding of how Congress works.

House legislative assistants would likely be affected. They typically are in their late 20s, work between 45 to 55 hours a week when Congress is in session and earn under $50,000 a year, Fitch said. As of Dec. 1, the exempt salary threshold will rise to $47,476 a year. Some legislative assistants' salaries may fall below this. If their salaries aren't raised above the threshold, representatives' offices will have to engage in a management regime to ensure they do not work overtime. 

Other positions that might not be exempt anymore and that typically involve working more than 40 hours a week are field representatives or case workers in field offices in districts or states. These workers handle constituents' complaints about anything that the government touches, whether that's visa problems, Medicare, Social Security, disability benefits or Veterans Affairs issues, for example, Fitch noted.

"No one works on [Capitol] Hill for money. They do it for a sense of public service," he said.

Junior aides may miss out on valuable learning experiences if their managers tell them not to go to markups that are being held at 6:00 p.m. just because the offices can't pay overtime, he said. A markup is the process by which congressional committees and subcommittees debate, amend and rewrite proposed legislation.

"If Congress acts like a rational employer, it would dodge these new rules as being unduly harsh and burdensome on both the employer and the employees," said Robert Boonin, an attorney with Dykema in Detroit and Ann Arbor, Mich., and immediate past chair of the Wage and Hour Defense Institute, a network of wage and hour lawyers. "Of course, if they do not adopt the rules applicable to virtually every other employer in the country, the double standard would be glaring and even resented—but still, understandable. Too bad the rest of the country can't choose to opt out."


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