Congress Finds Private Sector Labor Laws Tough to Obey

It was a politically irresistible idea: make Congress abide by the same workplace rules as the rest of the country.

Passed overwhelmingly a year ago during the heady early days of the Republican takeover, the Congressional Accountability Act was the first item of the GOP’s “contract with America” to become law.

Now is the time, its GOP proponents argued, for Congress to get a taste of its own regulatory medicine.

But when the law kicked into gear in late January, one provision in particular sent shock waves across Capitol Hill:

The law requires that nonexempt congressional office employees receive overtime whenever they put in more than 40 hours a week--yet it provides not a dollar for extra pay.

Aggravating the problem is the workplace culture in Washington, where young, highly motivated, politically astute acolytes readily accept long hours and modest pay in exchange for exposure to the personalities and issues that shape the nation.

Suddenly, lawmakers and their aides are wondering how to cram into 40-hour weeks the work produced by industrious staffers who often put in 55 to 60 hours.

Many are confused and torn over which of their entry- and mid-level workers are eligible for overtime pay--with its hint of blue collars and time-cards.

They also have to be careful about how they choose, because the law gives Capitol Hill workers, like private sector employees, the right to sue.

And looking over their shoulders is a special Compliance Office with a staff of 15 and a budget of $2.5 million which has been set up to enforce the overtime law as well as an array of other laws now protecting the 25,000 employees in both houses of Congress.

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“Congress has been operating on a basic management notion that time is free,” said Rick Shapiro, whose organization is helping members of Congress adapt to the new law. “Forty hours a week, 80 hours a week, there’s no real cost to the system.

“But there is an added cost,” he said. “It burns people out, makes members retire, makes staffers say this is a family-hostile work environment. This law is saying, ‘We are going to punish offices for being inefficient.’ ”

Ironically, at least in the short term, the prospect of overtime pay is an unappealing benefit to some.

“Let’s say there was a lot of unhappiness [about the new law],” said a top aide to a California Democrat. “They don’t want to punch a time clock.”

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Typical of the rueful mood among the newly nonexempt is a receptionist for a Southern California House member.

“We’re still a team, but we have to get the same amount of work done within X amount of hours,” said the aide, who didn’t want his name used.

Once used to routinely logging 55 hours per week, the aide now will strictly conform to the 40-hour limitation--but with little enthusiasm.

“If the choice is between some overtime and the good old days, give me the good old days,” he said.

Added a legislative assistant, who was designated as exempt from the 40-hour rule:

“Up until three days before it went into effect, I was under the impression that I was going to be nonexempt.

“On one hand I had this selfish reaction that, wow, I can work 40-hour weeks. But I went to law school, I am a professional. If they want to treat me like I don’t know what I’m doing . . . . “

The overtime system could alter the dynamics of staff work in the Capitol, according to Shapiro, executive director of the nonpartisan Congressional Management Foundation.

“They were willing to spend eight hours doing mail because in the evening they could hang around with the member and listen to the debate and be part of the conversation,” he said. “That’s where they learn and grow and that’s where they were assigned to write a few paragraphs for the member’s speech the next day.

“Now the message is, ‘If you had illusions that you were a trusted worker and part of the inner sanctum, think again. We’re sending you home at 6 at night.’ ”

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The law already is having impacts on how Congress does its business.

“It will really be felt in the committees,” said Rep. John Doolittle (R-Rocklin), who chairs the water and power resources panel of the Resources Committee.

“The clerk of the committee used to make last-minute changes, staying up late typing up the final agenda, adding the final witness for a hearing that would start at 9 or 10 in the morning,” said Doolittle, who supported the law.

“We’re not going to be able to have hearings that start at that hour because the committee has ruled [such jobs] are nonexempt . . . and it doesn’t want to pay the overtime. So [the clerk] is going to have to work a normal business day, which means the professional staff will have to pick up that role in the evening.”

But having Congress adapt to new workplace laws is not exactly what its supporters had in mind.

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“The theory of accountability and applying these laws to Congress was so we’d see how stupid these laws were, react and change them,” Doolittle said. “But I was always skeptical of that because of the other possibility that Congress would simply accommodate itself as the private sector has had to do.”

The legislation requires that Congress operate under the Fair Labor Standards Act, the workplace regulations private employers have wrestled with since 1938.

Eventually, Congress will have to comply with nearly a dozen workplace laws. They include anti-discrimination laws; family and medical leave laws; the Americans With Disabilities Act; the Federal Labor Relations Act, which will allow congressional employees to unionize, and the Worker Adjustment and Retraining Notification Act, which requires at least 60 days notice of office closings and layoffs.

Congress is in recess until the end of the month.

But since the law became effective Jan. 23, the ramifications of its overtime provision already have sunk in.

Determining who is entitled to overtime has proven a daunting task.

Receptionists, mail-sorters and computer data entry workers usually are. But chiefs of staff, administrative assistants, many legislative directors, staff directors and other management-grade employees are generally exempt.

The overtime status for many legislative assistants, district field workers, caseworkers and other mid-level employees is more murky.

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Despite an outpouring of guidance on how to interpret the law, “There is a tremendous amount of confusion,” said a top aide to a California House member.

A spot check of the California delegation showed considerable variation in how the law is being applied.

Of the 14 full-time workers in the offices of Rep. Bill Thomas (R-Bakersfield), none has been designated eligible for overtime. Thomas chairs the House Oversight Committee helping implement the new law.

On the other hand, the ranking member of the Oversight Committee, West Sacramento Democrat Vic Fazio, has designated 11 of his 19 Washington office employees as eligible for overtime.

Rep. Zoe Lofgren (D-San Jose) designated two of 14, Rep. Brian Bilbray (R-San Diego) two of eight, and Sen. Barbara Boxer (D-Calif.) 20 of 36 in her Washington office.

The Office of Compliance, set up to oversee the new law, has already knocked heads with the Oversight Committee. It has refused to sign off on a draft of a new House employee handbook or model job descriptions of House employees compiled by committee staff.

Earlier this year, Thomas complained to the compliance office that it was not providing sufficient guidance to House members who are confused over the new law.

In replying last month, Glen Nager, chairman of the board of directors of the Office of Compliance, said its “resources . . . are severely limited” and it “cannot address so many issues in the near term.” The office has told congressional employers that they, like private sector employers, should rely on their own judgment.

Hanging over members of Congress is the prospect that somewhere, sometime, a disgruntled employee will go to court over his or her overtime designation--just as workers do in the private sector.

“Nobody wants to be that first test case,” said one Oversight Committee aide.