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Americans work more hours a year than any industrialized country but Japan. But while Japan's workload is falling, the workload in the United States is rising past 40 hours per week.

In today's segment of the WKSU series "New Work New Families," Mark Urycki looks at people working overtime and not getting paid for it...

Around the Civil War, workers started pushing for a 40 hour work week, made up of 8 hour days. The Federal Government codified that in 1938 when the Fair Labor Standards Act legislated that employees would be paid time and a half for hours worked over 40. That was easy to enforce when labor unions represented nearly half of the workforce. But today just 14% are in unions and the rest are on their own. The director of the Ohio AFL/CIO, Bill Burga...

Burga: A lot of employers try and do that to try and skirt the law. So again, the employees have to be on the alert themselves. If they don't believe that's correct, they can ask the Labor Department to clarify it. The problem is that a lot them don't know where to go--the employee is kind of at a loss.
What used to be a union/management dispute is now going to the courts with an apparent growing number of lawsuits over who gets overtime pay and who doesn't. Eckerd and Walmart both faced multi-million dollar suits from pharmacists who argued they should have been paid overtime. Even attorneys for the U.S. Justice Department are suing the department in a class action suit worth as much as 500 million dollars saying they were never paid for overtime work. Attorney Dennis Thomson is on the executive board of the Ohio Employment Lawyers Association. He says a lot of people are owed overtime but don't know it ...
Thompson: My guess is that there are thousands upon thousands of employees out there who should be compensated overtime who are not being paid overtime. And that's just in the northern Ohio area.
One common misconception, says Thompson, is that people who are paid on a salaried basis, rather than hourly, are not entitled overtime...
Thompson: It doesn't matter how they compensate you. It doesn't matter if they are paying you hourly or salary--it's irrelevant. It's the nature of the work being done.
Often an employee simply doesn't question his situation. Robert Lubell of Sylvania, Ohio worked at an advertising agency, 8am to 8pm on weekdays, plus a few hours every Saturday. He says he had to.
Lubell: Because the advertising agency business is deadline driven--what would happen would be the client would put the demand--the only way to achieve the result would be to put in the hours to see the deadline met. You did it because you knew that clients were hired to hold on to--which worked. But it was a never-ending circle. You knew that clients would throw more work at you and stopping work meant that you missed deadline and possibly lose your job. There was no budget for the overtime so the company said it was part of your "responsibility".
The family-owned agency had about 100 workers and the owners allowed overtime to no one except a few janitors. Managers even frowned on anyone using sick time. Most workers at the ad agency were young and not ready to question their hours...
Lubell: No one did it. It was all part of the race to get things done. Those who couldn't keep up with the pace, quietly left or got fired...young people who wanted to succeed did whatever they felt was necessary to get things done.

Urycki: And no one just went to the boss and said, "You know, I have young children now and I wanna be a good family person--and I want to spend some time with my family now. So I'd like to limit my hours to 40"?

Lubell: Sometimes that would happen and instead, they would come to a part-time arrangement. So the salary would be diminished by their part-time job. So maybe you've got a half-time job, so you can work 40 hours--but still get paid for 25. It's not a real option. So to say, "I'm only going to be here for a set amount of hours," was to say that I'm not definitely not a team player.

Urycki: Did anyone ever think of getting an attorney or talking to the Labor Department?

Lubell: The people thought they were being used--they didn't think it would be different anywhere else or that they were being wronged. It was the career path that they chose. Somewhat different than maybe working in a factory--in which everyone pretty much does the same thing--the diversity, the excitement, all those benefits seem to outweigh the need to threaten the organization. People left. They found jobs that left the business entirely. It never seemed to them that the business was at fault.

Urycki: Would you say that there was peer pressure to work like that?

Lubell: Absolutely. I'm 44 years old and I would be old by today's standard in that industry. As people matured and had families, they realized they had to get out. It is an industry that abused people's lives.

Robert Lubell worked his way up to Operations Manager at the firm and then quit lest he miss his four-year-old daughter growing up. Now he and his wife have their own company, and work out of their home. The Fair Labor Standards Act has three main exemptions: for people working as executives, administrators or professionals. But a lot is open to interpretation. Employment Attorney Dennis Thompson says a common dispute arises over people called supervisors.
Thompson: There, if you are spending at least 40% of your time--doing the work you supervise--for example, if you are a maintenance guy and you are turning wrenches 40% of the time or more--they gotta pay you overtime. It doesn't matter if you are a crew-leader or a working supervisor, if you are spending 40% of the time doing the work you are supervising, they gotta pay you overtime. For each and every hour you are working--not just for 40% of them--for all of them.
That issue sparked class action lawsuits by employees of Enterprise Rental Car, Denny's, and Taco Bell. Another exemption that is sometimes open to interpretation is one for professionals doing creative work...
Thompson: My experience has been--if you give any employer a loop-hole, then everybody is gonna become creative. We want creative accountants--we want creative production workers. If you are talking about artists, copywriter workers--then yes and no. It depends on the work they are doing. Just a regular old copywriter--just copywriting and proofing, I would say that they are gonna have to pay overtime to that person.
A number of odd exemptions have popped up. Computer industry lobbyists have received exemptions for workers making more than $27.63 an hour. Trade groups like the Canadian Advanced Technology Alliance are arguing that new economy companies shouldn't be strapped with old economy hindrances like overtime pay. In fact, the dot-com companies have been famous for employees who seem to gladly work incredible hours. Thompson says the promise of cashing in with stock options is usually unfulfilled...
Thompson: The dot-com companies are the worst violators. They are the ones that promise you anything and give you nothing in exchange for all the hours you are working. A lot of times the management that are involved in those are younger folks--who haven't had the benefit of knowing what the purpose is behind having all of this. They didn't grow up watching the union strikes. As it passes out of living memory, you are losing some of that. But the idea of overtime being an out-dated concept--absolutely not.
Ohio has no limit on hours per day, and new workplace rules with flex time and work at home can confuse the issue. But 40 hours a week is still the limit. And calling someone a consultant, says Thompson, is a red herring...
Thompson: A horse is a horse, I don't care what you call it. Then you get into the realm of "are they really employees or are they not?" The amount of control that the person has over their own work--they have the freedom of how it's done, where it's done, when it's done--just because they call you a consultant doesn't make you a consultant.
In 1999 the U.S. Supreme Court ruled that state workers are also exempt, but Ohio does have it's own minimum Fair Wage Standard Act. State employees can be given compensatory time off rather than overtime pay. Members of Congress and the Ohio Statehouse wanted to permit private sector employers to offer comp time in lieu of overtime pay. But union leaders like the AFL/CIO's Bill Burga were afraid employers would pressure their workers to take the time...
Burga: It's too easy for a supervisor or employer to say, "You aren't going to get paid now, we'll give you time off." But then they tell you when to take the time off--and it's totally unfair. They deprive you the right to pay--they may actually need. We oppose it in the private sector--and in the public sector we've already negotiated those provisions.
For now, the pressure to exempt more people from overtime grows. Even the Justice Department, faced with its own overtime violations, is lobbying Congress to provide an exemption for its attorneys. Thompson says the rule of thumb for the Fair Labor Standards Act is simple...
Thompson: It isn't what they call you. It isn't how what they pay you. It's what you are doing and for how long you are doing it.
I'm Mark Urycki, 89.7 WKSU.
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