The U.S. Senate passed two amendments to Senator Tom Harkin’s (D-Iowa) Jumpstart Our Business Strength bill late in the afternoon on May 4, 2004. These amendments are significant because one provides that an additional 55 professions will be non-exempt regardless of whether the new regulations ever take effect, while the other freezes overtime protections provided by the former regulations.

Senator Judd Gregg (R-New Hampshire), chairman of the labor-issues committee, first presented Senate Amendment 3111 today. This amendment guarantees overtime pay for workers such as computer programmers, nursery school teachers, journalists and grocery store managers. It passed without opposition, 99-0. If enacted, the Department of Labor will be unable to issue any rule seeks to limit overtime protection for workers in the 55 professions. In support of his amendment, Senator Gregg stated, "[w]e want to make it absolutely clear that these people are not going to be negatively impacted."

Senator Harkin’s amendment to the JOBS bill narrowly passed 52-47. It seeks to amend the Fair Labor Standards Act of 1938 (FLSA) by adding a new subsection that freezes overtime protections. In part, it reads:

any portion of the final rule promulgated on April 23, 2004, revising part 541 of title 29, Code of Federal Regulations, that exempts from the overtime pay provisions of section 7 any employee who would not otherwise be exempt if the regulations in effect on March 31, 2003 remained in effect, shall have no force or effect and that portion of such regulations (as in effect on March 31, 2003) that would prevent such employee from being exempt shall remain in effect.

The increased salary requirements of $23,660 per year, however, "shall remain in effect."

The DOL already commented that, should Senator Harkin’s amendment pass, it would be nearly impossible to determine which set of regulations apply to which employee.

The DOL’s attempts to clarify the half-century old FLSA Regulations, have started to unravel. In light of the amendments proposed by Senators Harkin and Gregg and the Illinois preemptory legislation, the impact of the new regulations for Illinois employers is unclear. After today’s events, the only clear point is that the debate over the FLSA regulations continues.

Vedder Price will continue to provide analysis and guidance on this issue.

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