"WE ARE BEGINNING the new year with a reform that requires Congress to live up to the laws it imposes on the American people."
With these words, President Clinton signed the Congressional Accountability Act last January. Effective next year, the act promises to end congressional exemptions from the multitude of statutes regulating private employment practices.Unfortunately, despite unreserved commitments from members of both political parties to subject Congress to private sector laws, some are working behind the scenes to carve out special exceptions before the act becomes effective.
The primary focus of these efforts is the 57-year-old law requiring minimum wages and overtime premiums for work hours in excess of 40 per week - the Fair Labor Standards Act - FLSA.
It is little wonder that the FLSA is triggering such concern. On the one hand, the FLSA regulates every aspect of wage and hour relationships in excruciating detail. On the other hand, the statute exempts "executive, administrative, and professional" employees, but it defines these categories through regulations that are so lengthy, convoluted and vague that employers - and even courts - cannot be certain of their exemption decisions.
Although the Congressional Accountability Act is supposed to force Congress to live with this same law, the budgetary impact of overtime premiums is prompting some members to look for an escape hatch. They may have found one in the Office of Compliance, a congressional agency created to satisfy some members' concerns about the implications of subjecting themselves to executive branch regulatory and enforcement authority.
Under the act, the Office of Compliance must issue regulations by next January specifying exactly how the FLSA's private sector requirements are to be implemented in the legislative branch. The office is empowered to deviate from private sector standards only "for good cause shown," and then only if an alternative "would be more effective for the implementation of the rights and pro-tec-tions" of the FLSA.
Yet some members are pressuring the office's independent five-member board of directors to soften the FLSA's impact by substantially weakening many of the statute's key provisions as applied to Congress.
These pleas are apparently having an effect. Last month, the Office of Compliance issued partial proposed regulations authorizing, among other things, compensatory time for congressional employees. Compensatory time - future time off in lieu of cash for overtime hours - is allowed on a voluntary basis in the government, but is generally forbidden in the private sector. Meanwhile, legislation allowing private business to grant voluntary compensatory time remains mired in committee.
Private businesses have lobbied for years seeking compensatory time and other meaningful reforms to the FLSA. Many would like to see broader reforms, including a simplified exemption systems separating those who need FLSA protections from those who do not, primarily based on income. The prospects for such legislation are substantially less favorable, however, if Congress is spared the burdens of private sector laws.
Contrary to what some members may think, Congress is not the only employer that faces schedule disruptions, recordkeeping burdens or demands to keep employment costs within budget.
If the law, as presently written, imposes too much of a burden on Congress, then it should be changed for all employers, public and private. It should not be maintained in its current state while Congress enjoys a special regulatory oasis created by the Office of Compliance.