On March 31, 2003, the U.S. Department of Labor (DOL) proposed regulations that would deny overtime protection to veterans employed in many scientific, engineering, medical and technical fields who have received certain kinds of training in the military. Bipartisan legislation in the U.S. House and Senate would stop DOL from stripping overtime rights from veterans or other workers.
DOL’s overtime proposal would deny overtime protection to veterans working in professional fields who have received certain kinds of “training in the armed forces.” Under current overtime eligibility rules, veterans are not denied overtime protection because they received technical training in the armed forces, but under DOL’s proposal they could be.
Under current regulations, workers can be denied overtime protection if they fall within the category of “professional employees,” but generally only workers with a specialized degree can be classified as “professional.”
DOL’s proposal would do away with this standard requirement and allow equivalent “training in the armed forces” to be routinely substituted for a specialized degree (Proposed Section 541.301(d)).
In other words, veterans working in a professional field who have received military training equivalent to a specialized degree could now be classified as “professional employees” and lose their overtime protection.
The determination whether a veteran’s training in the military is equivalent to a specialized degree is made by the employer, with virtually no guidance from DOL.
Employers recognize that DOL’s proposal would allow them to deny overtime to veterans. Boeing states in its public comments on DOL’s proposed regulations, "Boeing observes that many of its most skilled technical workers received a significant portion of their knowledge and training outside the university classroom, typically in a branch of the military service, where through a combination of classroom training and field experience they become 'learned experts' on very sophisticated aerospace products or services. Often times, such experts are actually more knowledgeable than colleagues with advanced degrees and are viewed by the customers as the company's experts on the product. Boeing thus supports the Department's focus on the knowledge used by the employee in performing her job, rather than the source of knowledge or skill.”
DOL’s proposal would deny overtime protection to veterans employed in many engineering, medical, scientific and technical occupations. Many veterans working in professional fields are currently entitled to overtime protection because they lack the specialized degree necessary to be considered overtime-ineligible “professional employees.” Under DOL’s proposal, such veterans could lose their overtime eligibility. Professional fields include engineering, various types of physical, chemical and biological sciences, actuarial computation, pharmacy and other similar occupations that are predominately intellectual and require advanced knowledge. Examples of occupations where veterans would be vulnerable to loss of overtime protection include those who work in engineering, accounting, and architecture, medical technologists, radiological technicians, nurses, physician assistants, culinary artists, surveyors, mapping scientists, financial professionals, human resource professionals, scientists, pharmacists, therapists, management analysts, librarians and psychologists.
DOL’s proposal would deny overtime protection to more and more veterans over time. DOL’s proposal explicitly anticipates that “[t]he areas in which professional exemptions may be available are expanding.” As a result, the number of veterans who fall within the overtime exception for “professional employees” would grow over time.
Other parts of DOL’s proposal would restrict overtime eligibility in occupations where veterans are heavily represented. Although only the proposed broadening of the “professional employee” exemption explicitly targets military veterans, DOL’s proposed broadening of the overtime exemptions for “administrative” and “executive” employees would also restrict overtime protection in occupations where veterans are heavily represented. For example, many veterans work as law enforcement officers, firefighters, air traffic controllers and other public service employees, all of which would be heavily impacted by DOL’s proposal.
DOL’s arguments that veterans would be unaffected are without merit. Responding to a question about proposed Section 541.301(d) at a Senate hearing on Jan. 20, 2004, Labor Secretary Chao testified that “in terms of training, as a general observation, overtime would not be taken away.” There is no basis for this statement. According to the Daily Labor Report (Jan. 21, 2004) and The Washington Post (Jan. 23, 2004), DOL officials claim that veterans would not be denied overtime unless they perform professional work, but many veterans do, in fact, work in professional fields and would lose their overtime eligibility under the proposed regulations.
DOL’s proposal would cut veterans’ pay. Veterans who lose overtime protection under the DOL proposal would no longer be entitled to any additional compensation for the overtime hours they work. Veterans who rely on overtime pay for any significant part of their income would suffer a reduction in their standard of living. Overtime pay accounts for 25 percent of the income of employees who work overtime—on average $161 per week.
DOL’s proposal would reduce the amount of time veterans can spend with family. The overtime protections of the Fair Labor Standards Act (FLSA) are extraordinarily effective in limiting excessive work hours. The General Accounting Office (GAO) has found that workers who lack FLSA protection are more than twice as likely to work overtime, three times as likely to work more than 50 hours per week, and three times as likely to work more than 60 hours. Veterans who lose their FLSA protection under the DOL proposal would therefore be more likely to work longer hours and have less time away from work to spend with family.
DOL’s proposal is a breach of faith with veterans. The armed services have traditionally used the training and experience acquired through military service, and the career opportunities they open up, as incentives for recruitment. The DOL proposal would punish veterans with loss of overtime protection precisely because they have received the exact same training that has been used as a recruitment incentive.
DOL’s proposal could even discourage military recruitment. If potential recruits expect training in the armed services to deprive them of future overtime protection, they may find such training to be less desirable and may even be less likely to join the military.
Bipartisan legislation in Congress would protect military veterans against loss of overtime protection. The Harkin amendment, which was stripped from the omnibus appropriations bill (H.R. 2673) at the insistence of the White House, would have prohibited DOL from issuing any regulation that denies overtime protection to workers who qualify under current rules, including veterans. Bipartisan legislation in the House (H.R. 2665) and Senate (S. 1485) would also prohibit DOL from stripping veterans or other workers of their overtime rights.
