House to Vote Today on Overtime Rule Delay; Obama Threatens Veto

Friday, September 30, 2016

The U.S. House of Representatives is expected to vote today on a bill that would delay the new Fair Labor Standards Act (FLSA) overtime rules’ effective date by 6 months.The White House, however, said yesterday that President Obama would veto the bill.

The rules are scheduled to take effect December 1 and will require that employers pay overtime to employees who make less than $913 per week ($47,476 annually), regardless of their duties. The Regulatory Relief for Small Businesses, Schools, and Nonprofits Act (H.R. 6094) would push the effective date back to June 1, 2017.

Stakeholders have made many attempts—judicial,legislative, and just plain asking U.S. Department of Labor (DOL)—to delay or void the rules, but experts continue to recommend that employers implement changes before the December 1 deadline because, they say, these efforts are likely to fail.

In an emergency Rules Committee hearing Tuesday night aimed at getting the latest bill scheduled for a Wednesday vote, Representative Jim McGovern (D-MA) said “I think we all know that this bill is not going to go anywhere.”

Indeed, in a “Statement of Administrative Policy” issued by the White House’s Office of Management and Budget Tuesday, the administration said it strongly opposes H.R. 6094 and that if presented with the legislation, Obama would veto it. “While this bill seeks to delay implementation, the real goal is clear—delay and then deny overtime pay to workers,” OMB said.

McGovern also said the use of an emergency meeting was inappropriate. “I don’t know why this is an emergency,” he said, adding that lawmakers should instead be focused on preventing the impending government shutdown or dealing with the lead in Flint, Michigan’s water. Representative Mark Takano (D-Calif.) agreed that a desire to delay the overtime rule does not constitute an “emergency,” arguing that Congress should instead be trying to fund measures to stop the spread of the Zika virus.

Moreover, because the bill will be brought for a vote without warning to other members of the House, there will be little ability to debate the issue, McGovern noted. “I think that the strategy obviously is to try to extend the clock … I think you guys are hoping that your candidate will win the presidency and maybe undo this,” he said.

Representative Pete Sessions (R-Texas) disagreed, however, saying that lawmakers can’t allow the rule to take effect during the holiday season. He said he expects employers will have to implement reductions-in-force “and I cannot think of a worse Christmas present from Barack Obama and the Democrat party than a [layoff] notice at Christmastime.”

Employment law attorneys have said all along that employers should not rely on these efforts, and this bill hasn’t changed that recommendation. John E. Thompson, a partner at Fisher Phillips, said in a blog post Tuesday that H.R. 6094 would still have to pass the Senate and, if Obama vetoed it, it is unlikely that his veto would be overridden.

“Perhaps in the end there will be a reprieve of some kind,” Thompson said. “But with only about 60 days to go, we continue to urge employers to move forward with their final preparations.”

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