NPR "All Things Considered", August 19, 2004, Thursday

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National Public Radio (NPR)

SHOW: All Things Considered (8:00 PM ET) - NPR

August 19, 2004 Thursday

HEADLINE: Workers who don't get paid overtime

ANCHORS: ROBERT SIEGEL

REPORTERS: KATHLEEN SCHALCH

BODY:
ROBERT SIEGEL, host:
Americans spend more time on the job than workers in any other industrialized country. Most who put in more than 40 hours per week are supposed to be paid overtime, time and a half. But as NPR's Kathleen Schalch reports, many who are entitled to overtime don't see it in their paychecks.
KATHLEEN SCHALCH reporting:
It's hard to know exactly how many employers and employees violate the law. But Ross Eisenbrey of the Economic Policy Institute says unpaid overtime is a problem that's big and getting bigger.
Mr. ROSS EISENBREY (Economic Policy Institute): It's safe to say that one in 10 businesses at least is violating the law. Some of the surveys indicate that as many as 30 percent of workers are working off the clock.
SCHALCH: Eisenbrey's data comes, in part, from the Labor Department, where he served during the Clinton administration. He says investigators uncovered violations nearly everywhere. The garment industry was the worst.
Mr. EISENBREY: They found nearly 100 percent non-compliance. Every employer that they went to was violating the law. And then there were violations on the order of three-quarters or more of nursing homes, poultry plants--it really is across the board in American industry.
SCHALCH: Why did this happen? One reason is ignorance. Eisenbrey says many workers, including college graduates, are confused about the law.
Mr. EISENBREY: Even if you're salary, if you're not doing managerial duties or professional duties, as defined in the act, you're entitled to overtime. I think very few people understand that.
SCHALCH: Then there are the workers who know their rights but choose not to exercise them. Newspaper reporter Rick Tokey(ph) falls into this category. He worked unpaid overtime for years, even though he was the president of his union and knew he didn't have to.
Mr. RICK TOKEY: I negotiated the contract. It had provisions in it, and every single week I would violate those provisions because it didn't matter to me.
SCHALCH: But there is another group of workers who don't like working off the clock but feel they have no other choice. Steven White used to work for Comcast. He says he and other line technicians often have too much to do in a day, but they can get into trouble for claiming overtime.
Mr. STEVEN WHITE: What most of the guys do is they'll just grab a hot dog and they'll eat it in between jobs, you know, going to job to job. They won't take their breaks or their lunch hour because they don't want to fall behind.
SCHALCH: White says he took his breaks and put in for overtime. This past spring he lost his job. Comcast will not comment on White's termination but says it complies fully with the law. White hopes to fight back by encouraging workers to unionize. But increasingly disgruntled employees are winding up in court. Complaints filed with the Labor Department have surged. Back-pay awards jumped 30 percent last year. In the past decade the volume of private lawsuits has doubled. And many cases involve thousands of employees, according to Kate Bronfenbrenner, director of labor education research at Cornell University.
Ms. KATE BRONFENBRENNER (Cornell University): Just taking Wal-Mart alone, there have been 39 state and federal lawsuits in a total of 30 states charging Wal-Mart with doctoring time sheets, forcing workers to work through their meal breaks, forcing them to take unpaid overtime.
SCHALCH: Attorney Shane Youtz represents 83 workers who won a lawsuit against Wal-Mart in Oregon.
Mr. SHANE YOUTZ (Attorney): They'd get to the end of their shift and they'd say, 'I didn't finish my work,' and their manager would say, 'Well, you need to finish this work before you can leave the store.' And they'd say, 'Well, I'm supposed to punch out.' And the managers would say, 'Well, go punch out.' Employees found out the only way to avoid discipline was to punch out and complete their work off the clock.
SCHALCH: Spokesmen for Wal-Mart counter that only a fraction of the 15,000 employees in Oregon solicited as plaintiffs actually came forward. They say that shows that unpaid overtime is rare and a violation of corporate policy. But plaintiffs' attorney Shane Youtz says managers at Wal-Mart and other retailers also face relentless pressure to cut labor costs.
Mr. YOUTZ: The store managers are then faced with this sort of Hobson's choice of, 'Either I go over the labor budget and lose my position as a store manager, or I don't go over the labor budget and I force people to work off the clock.'
SCHALCH: Increasingly managers themselves are suing, claiming their employers are holding down labor costs by forcing them to step in as substitutes for hourly employees. Until recently Drew Pooters managed a Family Dollar Store. He says he and other supervisors spent much of their time unloading trucks, stocking shelves and so on.
Mr. DREW POOTERS (Former Family Dollar Store Manager): Everything and anything, including picking up the slack for workers whose hours you've just been ordered to cut.
SCHALCH: Pooters says he sometimes put in 100 hours per week, twice the number he was paid for.
Mr. POOTERS: I remember sometimes getting out of there as late as 2 or 3:00 in the morning, cleaning up after multiple waves of customers and then turning right around and coming back at 7:00 in the morning to open up at 8. And even at one point my own wife, who had not seen me in two weeks because I was going back home late at night, getting up and leaving before she was getting up, finally came down with my daughter saying, 'Remember these people? You used to live with them.'
SCHALCH: Dollar General denies any wrongdoing, but Pooters and other managers involved in lawsuits say they're entitled to overtime despite being managers because the law groups workers not according to title but according to the kinds of duties they perform. Kate Bronfenbrenner of Cornell University says these so-called misclassification complaints are now common.
Ms. BRONFENBRENNER: There have been numerous companies that have been found guilty of this, companies such as RadioShack, Big Lots, Bank of America, Miller beer, Farmers Insurance, where they put people in titles such as sales manager and denied them overtime, and the workers complained to the Labor Department, and these companies were found guilty of falsely denying these workers overtime.
SCHALCH: The punishment can be stiff. Employers may be liable for back-pay and damages. But Labor Department investigators receive thousands more complaints than they can handle. And labor lawyer Shane Youtz says many employees shun litigation because they're afraid of losing their jobs.
Mr. YOUTZ: The law doesn't have enough heat to deter companies who can work a lot of people off the clock, make a lot of money from doing that and then defend the occasional wage-an-hour suit.
SCHALCH: Business groups strenuously disagree. They contend that the law has plenty of teeth and bites lots of employers who don't deserve it. They say the problem is that employers often don't realize they're breaking the law because the rules that are supposed to guide them are vague and open to different interpretations. The Bush administration agrees. Secretary of Labor Elaine Chao.
Secretary ELAINE CHAO (Labor Department): As the world of work has changed, these regulations have remained mostly frozen in time. They describe jobs that no longer exist and use tests that no longer make any sense. They were difficult and sometimes almost impossible to interpret and also enforce. This confusion has created a legal nightmare.
SCHALCH: Chao says the Bush administration's new rules on overtime will prevent wasteful litigation by helping settle the question of who's eligible for overtime and who's not. She says millions of workers will benefit. Critics charge that millions more will lose out. A new study commissioned by the AFL-CIO predicts the fraction of the work force that's not entitled to overtime pay could climb from 15 percent to as much as 40 percent. Majorities in both the House and Senate have attempted to block the rule change, but the Bush administration has managed to keep it on track. It's scheduled to take effect August 23rd. Kathleen Schalch, NPR News, Washington.