Governor Paul LePage (Maine's Governor), please fuck yourself in the ass with a corkscrew...

The BBQ Pit
41

Right, so shut the fuck up about how employees should quit if they don’t like not getting paid for their work. You don’t give a shit about what’s fair. Which is fine. The law will work itself out, and either the policy will be upheld or it won’t.

All I’m saying is that if a guy making $47,000 is a bona fide manager or professional, I’ll eat a bug. You know it, I know it, the American people know it.

And also, if employees should shut the fuck up and quit whining about not getting paid overtime when they work overtime, because if they don’t like it they can quit, then I hereby proclaim that employers should shut the fuck up and quit whining about having to pay their employees, because if they don’t like it they can close their business and go live in Galt’s Gulch.

42

The problem is, you are not in any position to “proclaim” anything. We already have political and legal systems to resolve disputes like this. It’s not up to you, Kimstu, or the SDMB. Sorry to break it to you.

43

Well, thank goodness that process always returns the correct result, and that courts never make mistakes. And if they do make the wrong call what then? Life isn’t fair? So when the court or the legislature or an employer or employee makes a bad decision we just shrug our shoulders and turn our backs?

Because I’m pretty sure that if the court rules one way you’ll think they made the correct decision, while if they rule another way you’ll think the opposite. In any case you can’t be certain the court will decide correctly by your lights.

44

And there’s your problem. Lemur866 doesn’t get to determine what the “correct” decision is.

45

That’s right. But maybe the court will wrongly make a decision that gives the result I favor. But you won’t complain will you? Since you take injustice in stride?

46

I’ll remember this the next time you need a hand with anything. Like finding that brain you clearly don’t miss very much.

47

That has nothing to do with anything. The argument isn’t about life being or not being imbued with any particular quality or property; it’s not even about fairness, per se; it’s about equitability, and whether the standards being applied vis-a-vis just compensation of workers are being applied equitably, and whether the standards are themselves equitable.

Whether life is “supposed” to be fair or not, the standards by which participants in civilization treat with one another on matters of economics and resource allocation ARE “supposed” to be equitable. Because the participants are the ones who collectively decide what the standards are.

48

I won’t complain. I think that the law as written suggests a different result, and as it happens that result is the same one I prefer. But I am perfectly capable of reaching those two conclusions separately – in other words, I don’t first determine my preferred result and then decide that the administrative process must favor it.

Here, in my opinion, “fairness,” means that employers and employees should be left to negotiate independently of governmental rules. That’s always been the touchstone of fair – a fair price, for example, is one that a willing seller would accept from a willing buyer.

But society has already scuttled my view by widespread agreement with a minimum wage. That’s not my cuppa fairness tea, but I acknowledge that until Bricker I is crowned, we must craft rules from society’s mechanisms and not my own.

Here, though, the situation is much less clear, and it looks to me like the DoL short-circuited the rule-making process. Congress mandated that the distinction for overtime rest on the types of duties being performed; 29 USC 213(a)(1) specifically excludes “any employee employed in a bona fide executive, administrative, or professional capacity” from being covered by the mandatory overtime rule.

It fell to the Department of Labor to create rules to implement that mandate. And they did; they provided a series of tests by which the salary and job duties were analyzed to determine if a given job was “executive, administrative, or professional.”

Now, following the President’s directive to update that law, the DoL has in essence scrapped that test and replaced it with a straight salary test: a person is not a “employed in a bona fide executive, administrative, or professional capacity,” according to the DoL, if they make $47,000 per year. Under the new rule, DoL says that no bona fide executive, administrative, or professional employee makes 47,000 per year. Such a person is something else, and must be paid hourly overtime and not salary.

To my eye, this is not consistent with the statutory language.

But if the courts determine otherwise, then so be it.

I just don’t agree that this is a no-brainer, and that anyone supporting a challenge to the DoL here is EVIL.

49

I agree with the above – except that I suggest the “participants,” you mention must also include following their own mandated roles. The Department of Labor cannot re-write statutory law, which I’d argue this change does by essentially replacing the “bona fide executive, administrative, or professional capacity” requirement with a straight-line salary rule.

50

Well, I don’t think I actually expressed an opinion on how the courts should rule on the question, but absent a definition in the text of the statute, ISTM that the inclusion of the phrase “bona fide” gives the DoL an interpretive role.

51

Perhaps you could give him a bit more time to get over the whole “pocket picked every twenty-fifth of December” affront.

52

The conclusion that an employee paid a low salary is not in fact an executive, an administrator, or a professional is simple efficiency and application of common sense, precisely equivalent to an IRS auditor concluding that Elmer J. Fudd, who owns a mansion and a yacht, is in fact Elmer J. Fudd, millionaire, not Elmer J. Fudd, pauper, his tax filings asserting the latter notwithstanding.

53

Oh, no question about it, and the DoL has lots of unchallengeable ways to exercise that role.

But this particular way, in which they simply use a minimum salary level of over $47K as a stand-in for “bona fide” executive/admin/professional, is not. That is, I don’t agree that it’s accurate to say that any person earning $47K per year is automatically NOT an executive, administrative, or professional.

54

I am not sure where you got this from, but that’s not what happened at all. Employees have always had to meet each of three criteria to qualify for exemption - the salary basis test, the salary level test, and the duties test (executive/administrative/professional).

The salary level test has always existed, and is not a new invention by the Obama DOL. From 2004 (when it was last updated) to 2016, it was set at $23K and change; any employee making less than that amount was automatically entitled to overtime, regardless of whether the employee was salaried and/or in an EAP position. If anything, the “reinterpretation” came in 2004 when the Bush DOL did away with the two-phase duties test that was previously in use.

Now, the salary level test is set at $47K. That is not a “reinterpretation.” In fact, that is much closer to the original intent of the FLSA in 2016 dollars, and its interpretation from 1938 until 2004; in 1938, about 60% of salaried employees were eligible for overtime. Under the 2004 rule, about 7% (!) are.

55

The problem with your comparison is that you analogize a pauper to someone making a “low salary” of $47,000 per year.

It may be true that someone making a very low salary is almost certainly NOT a bona fide executive, an administrator, or a professional, but $47,000 per year is not a figure that supports that conclusion.

56

I suppose that may or may not be so. In the post immediately preceding yours, RNATB mentions that the level was changed from $23K and a bit. Do you disagree that the DOL was acting within the ambit of its authority to raise it from that level at ALL?

57

No, I agree that some raise would be unobjectionable.

But I sense that you might be contemplating hitting me with the sorites paradox: as expounded by Eubulides of Miletus, a heap of sand has a grain removed. Is it still a heap?

Of course it is! So remove another. And another. Still a heap?

The resolution of the paradox, applied here, makes it clear that DoL could have raised the level by a dollar with virtually no concern. by ten dollars with no real concern and the more that they raise it, the less defensibly they can rely upon the claim that the new level correctly identifies executive, administrative, and professional employees. Indeed, even their deliberative process shows a complete lack of careful analysis to reach this level: they simply doubled the old number.

58

In the first place, no, they did not “simply” double the number. There is a fact sheet that describes the rubric used by the DoL to arrive at the $47K floor. Something about the 40th percenitile of salaried compensation in the lowest-paid region in the country.

In the second place, what is the legal argument being advanced by the LePage administration in this lawsuit? I’m unsure if this discussion even touches on that.

59

  1. The proposed nationwide standard failed to account for regional and State variations in salaries and economic vibrancy, nothwithstanding the DoL claim that such a level would “accomplish the goal of setting a salary threshold that adequately distinguishes between employees who may meet the duties requirements of the EAP exemption and those who likely do not….” In other words, the new standard does not actually bear a sufficient tie to a real determination of whether the people covered are actually executive, administrative, or professional; there is no reason that the 40th percentile of all full-time salaried employees nationally has any relationship to whether those employees are EAP.

  2. The regulation covers state employees, which runs afoul of general federalism concerns.

  3. The DoL rule will automatically update the standard salary and compensation levels annually, either by a fixed percentage or by updating the amounts based on changes in the Consumer Price Index for All Urban Consumers (the “CPI-U”), an approach which violates the Administrative Procedures Act rule-making requirements.

60

Of course, the change in administration may moot this action.