Why not grant a right of refusal for any hours worked over 48 in a 7 day period. And then require those hours over 48 worked be paid at double time and a half. Naturally any hours worked over 40 would still be paid at time and a half up until the 48th hour in a 7 day period.
Overtime Rises, Making Fatigue a Labor Issue
September 17, 2000
By MARY WILLIAMS WALSH
In his last two and a half days of life, Brent Churchill slept a total of five hours. The rest of the time he was working.
Mr. Churchill, a lineman on call one stormy weekend for Central Maine Power, worked two back-to- back shifts on Friday, went to bed at 10:30 p.m., was called back at 1 a.m. Saturday, caught a quick nap around dawn and went back to his job clambering up and down poles for almost 24 hours straight. Taking a break for breakfast on Sunday morning, he got yet another call.
At about noon, he climbed a 30-foot pole, hooked on his safety straps and reached for a 7,200-volt cable without first putting on his insulating gloves. There was a flash, and Mr. Churchill was hanging motionless by his straps. His father, arriving before the ladder-truck did and thinking his son might still be alive, stood at the foot of the pole for more than an hour begging for somebody to bring his boy down.
The death of a 30-year-old lineman from remote Industry, Me., might have gone unnoticed beyond family, friends and the woman he had planned to marry in June, but for a coincidence: Mr. Churchill happened to die at a time of heightened public concern about the expanding workweek — a time, in fact, when the Maine legislature had been debating whether to cap the amount of mandatory overtime allowed in the state.
The bill was not exactly a clarion call for worker ease, placing the overtime limit at 96 hours within any three-week period. The governor had already vetoed two versions, and there had not been enough votes in the Senate to override him. But the outcry over Mr. Churchill's death lent new momentum to efforts to cap overtime. The lawmakers compromised on a cap of 80 hours in any two-week period, and in May, Maine became the first state in the nation to limit the number of hours an employee can be required to work.
But it is not the first to recognize the problem of physical exhaustion on the job in the tightest labor market in almost half a century. Although Maine faced an especially stark catalyst in Mr. Churchill's case, elsewhere around the nation, in courthouses and state legislatures, on picket lines and at negotiating tables, a backlash is building against the new economy's voracious appetite for Americans' time.
West Virginia and Pennsylvania recently debated but deferred action on bills that would allow workers to refuse overtime without being punished. Washington State lawmakers considered a Maine-style overtime cap earlier this year but it died in committee.
New Jersey legislators had greater success with a narrower bill, voting in June to ban mandatory overtime in hospitals; the bill now awaits Gov. Christine Todd Whitman's signature. California started counting overtime after an eight-hour day, rather than a 40-hour week, though lawmakers there are now being bombarded with calls to exempt ski lodges, hospitals, construction sites and many other workplaces.
The expanding workweek has become a flashpoint for some unions, though not all. Studies show that most employees who qualify for overtime premiums still want the extra hours. This lack of consensus on whether the workweek is too long or too short is one reason most state efforts to cap overtime have faltered.
The labor groups now taking a stand on the workweek tend to be those representing either workers with safety issues, like pilots and firefighters, or large numbers of women, who often feel the work-time pinch more acutely.
A strike by telephone workers against Verizon this summer was motivated in large part by overtime issues; women in the company's calling centers complained that they could not break free from work early enough to pick up their children or make dinner for their families. Firefighters in Connecticut recently challenged the constitutionality of mandatory overtime, arguing unsuccessfully that it violated the 13th Amendment ban on slavery. Nurses in several New York hospitals now sign protest statements when they start their shifts, creating a paper trail of their mandatory workloads.
Congress has also been grappling with the issue of the expanding workweek, though much of its effort is aimed not at workers but at helping employers who seek to reduce the associated labor costs. Several attachments to the pending minimum- wage legislation would disqualify technology workers, sales personnel and others from receiving overtime pay. Another provision would allow businesses to reduce overtime payments to virtually all qualifying employees.
Labor's fight for relief from onerous working hours dates back more than a century — and its victories have been hard won. From 1886, when a potent eight-hour movement exploded in street violence in the Chicago Haymarket, it took 52 years for American society to agree on a 40-hour workweek with the passage of the Fair Labor Standards Act in 1938. But now, the strains that the booming economy is putting on workers, especially women, are reopening the debate.
"Overwork has been an issue for quite a while," said Peter Rachleff, a history professor at Macalester College in St. Paul. "But whether workers have felt it was an issue they could address or not has changed in the last year."
For all the rumblings of discontent, it is difficult to quantify Americans' workload. Federal statistics show that Americans are working record levels of overtime, but the data tracks only hourly manufacturing workers, who make up a shrinking share of today's work force.
The average American employee works just two more hours a week than in 1982, according to the Bureau of Labor Statistics. But Randy E. Ilg, a senior economist at the bureau, said that figure probably understated the problem because women have been surging into the work force, and their generally shorter hours appear to have pulled down the average.
Only in the workweek statistics for households does the increase jump off the page, Mr. Ilg said.
"Twenty years ago, you had one person in the household working," he said. "Today you've got two. And who goes to the grocery store now? Who takes the check to the bank on the weekend? Who does the dishes after dinner?"
Other features of the new economy compound the sense of pressure. Samuel Bacharach, a professor at Cornell University's School of Industrial and Labor Relations, found that workers who are most worried about downsizing are the ones most likely to load up on overtime. Central Maine Power had, in fact, laid off 37 linemen several years before Brent Churchill was killed, his mother said, and was timing the performances of those remaining.
"He took that job seriously," his mother, Donna Churchill, said.
The increased use of cellular phones, laptops and beepers also makes Americans feel like they are working more, Mr. Ilg said. So do today's longer commutes.
David Kavanagh, who recently held a job maintaining cooling systems for the Grand Union supermarket chain, knows this better than most.
Each evening, Grand Union would call Mr. Kavanagh at his home in Patchogue, N.Y., and tell him which supermarket he should appear at by 8 a.m. the next day. Most of his trips required him to drive the length of traffic-clogged Long Island and through New York City during morning rush hour. Some days, his commute took nine hours.
"There was no fast way he could get where he was going," said his wife, Tara Kavanagh, a lawyer. "He would sometimes leave at 4:30 in the morning and not be home until 10 o'clock at night."
Represented by his wife, Mr. Kavanagh sued Grand Union, demanding compensation for his travel time. In June, the court ruled, in a split decision, that while his situation was "inequitable," the law held no relief because a 1947 provision specifies that employers do not have to pay for "normal" commutes. (The dissenting judge said Mr. Kavanagh's commute was not normal.)
Mr. Kavanagh was eventually fired. "I smiled all the way home," he said. Today, he works as a machinist — a 10-minute drive from home.
For all the travails of blue-collar workers like him, the people putting in the longest hours these days are white-collar workers on salary, Mr. Ilg said. Their ranks have been swelled by the information economy: 60 percent of the jobs created in the last 10 years are managerial and professional positions. Many of these people toil in a legal twilight zone, often performing duties that did not exist in 1938, when Congress drew clear-cut distinctions between workers and managers. The law is silent on how such workers should be compensated for their long hours, if at all.
Many businesses classify them as managers and executives, paying them a fixed salary with no premium for overtime. But many of them say their hours make them feel more like production workers on an assembly line. Some are demanding to be paid accordingly.
Alan Truex, a sportswriter for The Houston Chronicle, had a job doing something most people would hardly consider to be work: He watched hours and hours of baseball. Following the Houston Astros on the road, he racked up enough frequent-flier miles to take his wife on the occasional foreign trip. Team owners invited the couple to lavish celebrity parties.
But for all the glitz, the long hours began to wear on Mr. Truex, recalled Phyllis Truex, his former wife. From spring training in February until the end of the World Series in October, he devoted an average 51 hours a week to watching baseball and writing stories, and that was not counting the constant travel. His marriage began to unravel. His elderly parents fell ill and died, and he was not able to spend as much time with them as he wanted, Ms. Truex said.
Mr. Truex asked his employer for overtime pay. His boss replied that he was a salaried professional and not entitled to the premium. The next time Mr. Truex asked, he had a copy of the federal overtime law in his hand and a tape recorder hidden in his jacket. Again, his boss said no.
Mr. Truex sued Hearst Communications Inc., the Chronicle's parent company, entering his timelogs and a transcript of his conversations as evidence. The Chronicle settled with him out of court. Mr. Truex is barred by the agreement from discussing any aspect of the case, but other Houston media have reported that he received $300,000 to $500,000. He also remains an employee of the paper, reviewing restaurants out of his home.
Bob Carlquist, The Chronicle's vice president for administration and human resources, declined to comment, saying the paper never discusses disputes with employees.
It is precisely that sort of dispute that the current Congressional bills are meant to preclude. Measures now under consideration identify several types of information-economy workers — including computer network analysts and database administrators and even funeral directors — and specifically define them as management, barred from receiving overtime pay.
Yet another provision being considered would go further, allowing employers to reduce workers' regular pay and make up the difference in bonuses. Employees' total pay for every hour worked would be unchanged, but overtime compensation would fall since it would be calculated on a lower wage.
Advocates of these provisions say they would enhance American competitiveness. Opponents worry, though, that the changes are poorly understood by the public and are going largely unchallenged by organized labor. The provisions are under discussion as part of coalition-building for the proposed $1 increase in the minimum wage, which is expected to be passed this fall.
Should the measures be enacted, two things would happen, said Edward Montgomery, deputy secretary of labor. Many workers would see their income shrink, he said, "and second, who knows how many hours they would be compelled to work to make it up?"
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