Jottings By An Employer's Lawyer

Monday, November 24, 2003

No One Ever Said The Legislative Process Was Simple- White Collar Exemption Rulemaking Survives

Earlier this fall, in a highly publicized vote the Senate passed the Harkin amendment barring the Department of Labor from moving forward with its proposed amendments to the white collar exemption regulations of the Fair Labor Standards Act of 1938. Then, the House of Representatives, which had earlier passed a spending bill without such restrictions, passed a non-binding instruction to the House conferees to accede to the Senate position. At that point, many, if not most, supporters of reform tossed in the towel. But the threat of a presidential veto, which the White House stuck to, and continued efforts by the business community, resuscitated the regulation process. MSNBC has the story of the brass knuckle in-fighting that occurred before this result was reached.

Although the ability of the DOL to continue the process has survived, the fight is by no means over. When the DOL issues its final proposed regulations, you can expect a true political donnybrook over the regulations complete with all the hot air that can be mustered in a presidential campaign year. Assuming no other legislative barriers, after the regulations are published in final form in the Federal Register, the only mechanism to keep them from becoming effective is for Congress to veto them within 60 days under the Congressional Review Act, a 1996 bill that has been rarely used. Assuming however a Bush administration that shows the same backbone that it took to revive them through the legislative process, an actual veto of a Congressional act to nullify the regulations would have to be overridden by a 2/3 majority vote in each House.

One other scenario would be a delay in getting the final regulations written and approved by the various regulatory agencies, prior to publishing. If there were to be a Democratic presidential installed before the regulations are actually published, they could be withdrawn by the new administration. One would assume having come this far and put so much political capital on the line for the regulatory process, that this Administration will ensure that the lights will be burning late at the DOL, and other agencies, to ensure there is no possibility of that happening.

The bottom line is that although it is way too soon to say that the regulations will be law, and for certain there will be some changes in the regulatory stage, it may be time to brush up on the major concepts, as change may be coming. After 40 years, hardly too soon.

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