Mid-Term Senate Races Matter: Heller’s High Water

U.S. Senator Dean Heller (R-NV) released the below statement after a right-leaning federal judge in Texas nullified the Obama Administration’s Department of Labor overtime rule.

“The former Obama Administration’s expansion of the federal overtime rule would have devastated Nevada’s business owners and job creators. Since the rule was issued last year, I have been strongly concerned about its impact because it would fundamentally change how employers compensate their workers, reducing Nevadans’ work hours and benefits. I’m pleased to see that a federal judge acknowledged the regulation’s harmful consequences and ruled it invalid today,” Heller said. “Today’s news is a relief for countless Nevada businesses and employers, and I commend Nevada Attorney General Adam Laxalt for his leadership in this fight.”

Heller has worked tirelessly at undermining the Obama-era overtime rule aimed at leveling the playing field for workers. Instead, he’s worked to bolster the bottom line of his corporate benefactors. Don’t believe me?  As evidence —

  • In February 2016 he wrote to Department of Labor Secretary Tom Perez about this rule and what he claimed would be its negative impacts on corporations in the state of Nevada.
  • In March 2016, he followed up with yet another letter highlighting his concerns over the new policy change.
  • In the Senate, Heller expressed concerns with his Senate colleagues by writing to Senate Appropriations Subcommittee on Labor, Health and Human Services, Education and related Agencies Chairman Roy Blunt and Ranking Member Patty Murray.

Heller also cosponsored S. 2707, the Protecting Workplace Advancement and Opportunity Act, in the 114th Congress, legislation that would have cancelled the proposed DOL regulation to increase the salary threshold for workers eligible to receive overtime pay and require impact studies for future proposals of related rules.

Protecting Workplace Advancement and Opportunity Act

S.2707 declared that the proposed or the final rule of the Department of Labor entitled “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees” shall cease to have any force or effect. The rule revises the “white collar” exemption of executive, administrative, professional, outside sales, and computer employees from minimum wage and maximum hour, or overtime, requirements of the Fair Labor Standards Act of 1938 (FLSA).

If the proposed rule is a final rule on the date of enactment of S.2707:

  • the Dept of Labor would have been prohibited from enforcing it based on conduct occurring before that enactment date,
  • an employee would not have any right of action against an employer for the employer’s failure to comply with the final rule at any time before that enactment date,
  • any regulations that were amended by the final rule would have been restored and revived as if the final rule had never taken effect, and
  • nothing in S.2707 would have been construed to create a right of action for an employer against an employee for the recoupment of any payments made to the employee before the enactment of this bill that were in compliance with that final rule.

It also specified that the Dept of Labor could promulgate any substantially similar rule only if it had completed certain required actions; but any new rule could not contain any automatic updates to the salary threshold for purposes of exemptions to minimum wage and maximum hour requirements under the FLSA (Fair Labor Standards Act).

The requirement that definitions applicable for such exemptions be defined and delimited from time to time by Labor regulations would have been construed to:

  • require Labor to issue a new rule through notice and comment rule-making for each change in any salary threshold it has proposed (creating more expensive and elongated rule-making processes); and
  • exclude any rule that would result in changes to any salary threshold for multiple time periods, including through any automatic updating procedure.

The Dept of Labor was also prohibited from promulgating any final rule that included any revision to duties tests for exemption from minimum wage and maximum hours requirements unless specific regulatory text for the provision was proposed in the proposed rule.

For clarity, here is the background on that “Final Rule” and what it did for WORKERS:

In 2014, President Obama directed the Department of Labor to update and modernize the regulations governing the exemption of executive, administrative, and professional (“EAP”) employees from the minimum wage and overtime pay protections of the Fair Labor Standards Act (“FLSA” or “Act”). The Department published a notice of proposed rulemaking on July 6, 2015, and received more than 270,000 comments. On May 18, 2016, the Department announced that it will publish a Final Rule to update the regulations. The full text of the Final Rule will be available at the Federal Register Site.

Although the FLSA ensures minimum wage and overtime pay protections for most employees covered by the Act, some workers, including bona fide EAP employees, are exempt from those protections. Since 1940, the Department’s regulations have generally required each of three tests to be met for the FLSA’s EAP exemption to apply:

  1. the employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed (“salary basis test”);
  2. the amount of salary paid must meet a minimum specified amount (“salary level test”); and
  3. the employee’s job duties must primarily involve executive, administrative, or professional duties as defined by the regulations (“duties test”).

The Department last updated these regulations in 2004, when it set the weekly salary level at $455 ($23,660 annually) and made other changes to the regulations, including collapsing the short and long duties tests into a single standard duties test and introducing a new exemption for highly compensated employees.

This Final Rule updates the salary level required for exemption to ensure that the FLSA’s intended overtime protections are fully implemented, and to simplify the identification of overtime-protected employees, thus making the EAP exemption easier for employers and workers to understand and apply. Without intervening action by their employers, it extends the right to overtime pay to an estimated 4.2 million workers who are currently exempt. It also strengthens existing overtime protections for 5.7 million additional white collar salaried workers and 3.2 million salaried blue collar workers whose entitlement to overtime pay will no longer rely on the application of the duties test.

* Key Provisions of the Final Rule *
The Final Rule focused primarily on updating the salary and compensation levels needed for EAP workers to be exempt. Specifically, the Final Rule:

  1. Set the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South, which is $913 per week or $47,476 annually for a full-year worker;
  2. Set the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally, which is $134,004; and
  3. Established a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.

Additionally, the Final Rule amended the salary basis test to allow employers to use non-discretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level. The Final Rule made no changes to the duties tests.

Effective Date
The effective date of the Final Rule is December 1, 2016. The initial increases to the standard salary level (from $455 to $913 per week) and HCE total annual compensation requirement (from $100,000 to $134,004 per year) will be effective on that date. Future automatic updates to those thresholds will occur every three years, beginning on January 1, 2020.

Frankly, it wouldn’t surprise me to see Senator Heller espouse and promote a nationwide move such as that just made by the Missouri GOP-led legislature which lowered the minimum wage from $10/hr to $7.70/hr (or, from $20, 800/yr to $16,016/yr for Missouri citizens.

Afterall, Senator Heller has made it exceedingly clear that he represents only his corporate benefactors and is a firm believer and double-downer in a failed trickle-down philosophy.

“Congress is ready to address tax reform, and that’s why I’m encouraged by the President’s comments today about bringing tax relief to all Americans. Nevada’s hardworking families and small business owners have been waiting for a simpler, fairer tax code for years now, and Congress and the White House are poised to make that happen,” Heller said. “I was honored to host Secretary Mnuchin earlier this week in Las Vegas for a meeting with Nevada employers and the message we received from these business leaders was clear – lowering rates will help boost the economy, create jobs and increase wages. As a member of the Senate Finance Committee, I’m looking forward to working with the Administration on this issue and having a seat at the table to make sure that the final product is what’s best for Nevada.”

Mid-term elections matter and we cannot let Dean Heller get re-elected to the Senate, nor can we let AG Laxalt get elected to the Governorship of Nevada.

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11 Things The Senate Should Remember While Voting On The Minimum Wage

— by CAP Action War Room

After returning from a two-week recess, the Senate is planning to vote on raising the minimum wage to $10.10 this Wednesday. The bill, called the “Minimum Wage Fairness Act,” needs 60 votes to advance thanks to the de facto GOP filibuster threat. And while in the past we have used this space to outline many of the different benefits of raising the minimum wage to $10.10, in anticipation of this important vote we wanted to go over some of the most important reasons one more time. Here they are:

  1. Increasing the minimum wage to $10.10 and indexing it to inflation would raise the wages of 28 million workers by $35 billion. Raising the minimum wage would provide Americans who work hard a better opportunity to get ahead while giving the economy a needed shot in the arm.
  2. In 2013, CEOs made 774 times the pay of minimum wage workers.While the top CEOs made an average of $11.7 million in 2013, full-time workers making the minimum wage took home only $15,080 a year.
  3. Nearly two-thirds of all minimum wage workers are women. Raising the minimum wage to $10.10 would benefit 15 million women.
  4. One million veterans would benefit from a minimum wage increase.After risking their lives to protect our country, 1 in 10 veterans working in America today are paid wages low enough that they would receive a raise if the minimum wage is raised to $10.10.
  5. Raising the minimum wage will cut government spending on food stamps. Millions of workers earning the minimum wage make so little that they qualify for food stamps (SNAP benefits). This, in effect, amounts to taxpayers subsidizing corporations paying low-wages. Raising wages for low-income workers would actually cut government spending on SNAP by $4.6 billion a year, or $46 billion over the next 10 years, as workers earn enough on their own to no longer rely on the program.
  6. Minimum wage workers are older than you think. Nearly 90 percent of minimum wage workers are 20 years or older. The average minimum wage worker is 35 years old. A higher minimum wage doesn’t just mean more spending money for a teenager, it means greater economic security for the millions of Americans who rely on it as their primary income.
  7. Businesses see the value in increasing the minimum wage. Nearly 60 percent of small business owners recognize that raising the minimum wage would benefit businesses and support raising it. In fact, 82 percent of those surveyed don’t pay any of their workers the federal minimum wage of $7.25.
  8. It won’t hurt job creation. States have raised the minimum wage 91 times since 1987 during periods of high unemployment, and in more than half of those instances the unemployment rate actually fell. Over 600 economists signed a letter agreeing that a minimum wage increase doesn’t hurt job creation.
  9. In polls, nearly three-quarters of Americans support a minimum wage increase to $10.10. Pew Research found that 73 percent of Americans back a minimum wage increase.
  10. Millions of children will be more secure. If we raise the minimum wage to $10.10, 21 million children will have at least one parent whose pay will go up.
  11. A $10.10 minimum wage means a $16.1 billion boost for people of colorRaising the minimum wage is a matter of racial justice: people of color are far more likely to work minimum wage jobs and those who do are far more likely to be in poverty. A $10.10 minimum wage would lift three and a half million people of color out of poverty and add $16.1 billion to their incomes.

BOTTOM LINE: Over the next few days, as Senators take to the chamber floor to debate and then vote on this legislation that would help the economy and millions of American workers, they should make sure they keep in mind these vital facts on why the minimum wage should be raised to $10.10. A vote against increasing the minimum wage is quite simply a vote against working Americans.


This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe.

What I signed today

Earlier today, I signed an Executive Order to raise the minimum wage to $10.10 for federal contract workers.

It’s the right thing to do. But what’s more, companies have found that when their employees earn more, they’re more motivated, they work harder, and they stick around longer. You should expect the same of your federal government.

The bottom line is this: We are a nation that believes in rewarding honest work with honest wages. And America deserves a raise.

If you agree, let me know you’re standing with me — and take a look at what else we’re going to do in 2014.

The order I signed today will help folks across the country. But it’s not enough.

Right now, there’s a bill in Congress that would raise the federal minimum wage to $10.10 an hour for all Americans. It would lift wages for more than 28 million current workers, and would move millions of Americans out of poverty. That means businesses would have customers with more money to spend.

Raising the minimum wage would grow the economy for everyone.

You don’t need to believe me: Believe the 600 economists — including seven Nobel Prize winners — who wrote both houses of Congress last month to remind them that the bill before them will have little or no negative effect on jobs.

When I stood before both chambers of Congress and said that I intended for 2014 to be a year of action, that wasn’t just a nice line in a speech. It was an acknowledgment that we’ve got to restore opportunity for everyone in America — the idea that no matter who you are, or how you started out, you can get ahead here if you’re responsible and willing to work for it. That’s what this “year of action” is all about.

And since that speech, I have taken actions on my own to make it easier for folks to save for retirement, help working Americans get the skills that good jobs demand, and assist millions of Americans who have been looking for work for several months. I’ve announced a major new commitment toward connecting our schools to 21st-century technology.

That action continues today, and in the months to come.

Take a look at what we’ve done already and what’s to come.

Thank you,

President Barack Obama