We Need To Revive The Fight For Overtime Pay

The eight-hour workday, and the 40-hour workweek, are not naturally occurring phenomena. They had to be fought for by an international social movement, millions of people who refused to accept the existing norm of endless daily toil. They marched under a slogan, “Eight hours’ labour, Eight hours’ recreation, Eight hours’ rest,” and it took well over 100 years from the coining of that slogan in 1817 to the widespread establishment of eight hours as a norm. In the United States, it wasn’t until the Fair Labor Standards Act was passed in 1937 that “time and a half” for hours above 40 per week became the law.

But we never really did win the eight-hour day at all. Nearly half of all full-time workers routinely put in 50-hour weeks, with nearly one in five working 60 or more hours. A Gallup poll put the average reported hours of full-time workers at 47, and while other estimates put the number lower, it’s clear that millions exhaust themselves through working far more than eight-hour days. The United States has been called “the most overworked developed nation.” Some of these workers may be choosing to work more—personally I have a job I love, and I rarely leave my desk—but when they are, it’s often a choice made for financial reasons. The Fair Labor Standards Act codified an important principle, which is that when you do make workers put in extra hours, they should not just be paid for their extra time, but compensated for the violation of the “eight-hour day” principle. Overtime pay should be higher than ordinary pay, because you are asking something from workers that they shouldn’t have to do. Eight hours should be enough to make a good living, and if you’re going to ask for more, you need to escalate pay accordingly. “Time and a half’s the American way,” to quote the title of a 1300 page book about overtime exemptions.

But time-and-a-half still isn’t the American way, and employers have fought hard to avoid having to pay overtime. There are many exceptions to overtime requirements. Agricultural workers, for instance. White collar workers, too, were excluded—the book Time and A Half’s The American Way is actually a long history of how that exclusion has been maintained. (In it, overtime scholar Marc Linder shows that the exemption is fundamentally irrational and questions why labor organizations have never advocated eliminating it.) And while these exceptions have been present in the law from the beginning, the overtime situation has actually been getting worse for Americans over time. This is because, while Americans earning under a certain amount are eligible for overtime pay, that amount is very low and hasn’t been adjusted upward over time.

So, at the moment, workers who earn under $23,000 a year can earn 50 percent extra hourly for hours worked a week in excess of 40. But that number should be far higher. In the 1970s, the amount it was set at would be the equivalent of $50,000 today, meaning that if you’re a salaried worker earning between 23k and 50k per year, you should be legally eligible for overtime, but you probably aren’t. The Obama administration proposed a rule raising the threshold to $47,000 (with a provision to steadily raise it over time, so that it would reach 55k by 2022), which would have apparently given new overtime eligibility to over 13 million workers. The Trump administration (of course) scrapped that rule. The current amount is so low, though, that even this government has decided to raise it somewhat, to $35,000. As a result, while 60 percent of salaried workers were once entitled to overtime, now only about 8 percent are.

On the left, we talk a lot about the minimum wage, as we should. It makes sense to devote most of our attention to the people who are the worst off. But exploitation happens in middle-class and white collar jobs too. Salaried workers are particularly easy to exploit. Because they’re not paid hourly, employers have an incentive to demand as much labor as they possibly can. If I’m getting $50,000 a year, my employer may try every means possible, including guilt and threats of consequences, to get me to give them 80 hours a week for my $50,000 rather than 40 hours a week. (In mainstream financial advice publications, you often see columns suggesting that Americans often don’t take their vacation days, or stay longer at work, because we’re a nation of workaholics. That may in part be true, but it’s also the case that people are made by their bosses to feel guilty about wanting to work normal hours and not be bothered on weekends.) The failure to legally enforce overtime means people are working a lot of unpaid hours. People sign on for a 40 hour a week job, and then it suddenly becomes an 80 hour a week job, and as white collar or “managerial” workers they’re often not getting any more money because they’re not guaranteed any overtime. This should be considered wage theft. Nick Hanauer, a prominent advocate for expanded overtime regulation, has commented that “weakened overtime protections have been a leading mechanism through which the wealthiest Americans have fattened our profit margins.”

The overtime issue isn’t particularly sexy, unfortunately. It can be a little complicated to explain, and seem rather wonky. “We demand $15 an hour” is easier to say than “We demand 1.5 x the base hourly salary to be paid for each hour a week worked in excess of 40!” Rules vary from state to state. But because rules vary across states, it’s actually possible even in the Trump era to improve the overtime rules in individual states. Washington just raised the overtime exception threshold to $70,000, which will apparently give hundreds of thousands of workers in the state new access to overtime. Washington’s move hasn’t gotten much press coverage, but it should.

It’s very easy for hard-earned gains to slip away. We can’t forget the century of effort it took to get an eight-hour workday. If we don’t vigorously guard it, it will be eaten away at slowly, by employers who realize that they have the power to squeeze far more time out of their workers. Overtime is a way of enforcing the eight-hour norm, by making sure that there is a cost to violating it. Time-and-a-half may not be the American way, but it needs to be. Failure to pay overtime is wage theft, and paying people what they are owed for their labor should never be a secondary issue.

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