Misguided Bill Would Exempt IT Workers from Overtime

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A seemingly innocuous piece of legislation is pending in the U.S. Senate that the AFT and other unions want stopped. It's the Computer Professionals Update Act (S. 1747), which, in the words of the nonpartisan Congressional Research Service, "effectively eliminates overtime pay for all IT professionals."

The CPU Act, introduced by Sen. Kay Hagan (D-N.C.) in October, would, among other things, reclassify many computer and information technology jobs as "exempt" from overtime under the Fair Labor Standards Act.

On March 28, union members from across the country, who work in both the public sector and the private sector in computer-related jobs, took their concerns with the legislation to the U.S. Senate.

Members lobby on Capitol HillPictured L to R: Carl Hereford, Bill Walling and Michael Blue were on Capitol Hill March 28 to lobby against the Computer Professionals Update Act.

AFT Public Employees members Michael Blue of the New York State Public Employees Federation, Carl Hereford of the Alaska Public Employees Association, and Bill Walling of the Maryland Professional Employees Council met with staffers for Sens. Mark Begich (D-Alaska), Benjamin Cardin (D-Md.), Kirsten Gillibrand (D-N.Y.), Barbara Mikulski (D-Md.) and Lisa Murkowski (R-Alaska). Union members from the Communications Workers of America, International Brotherhood of Electrical Workers, and International Federation of Professional and Technical Engineers met with staffers for senators from Colorado, Connecticut, Minnesota, North Carolina, Oregon, Pennsylvania and Washington.

Following the office visits, Hereford, a technology infrastructure manager for Alaska's Matanuska-Susitna Borough, says every Senate office mentioned that it had been contacted by industry looking for support for the bill. "Industry is pushing it as a low-impact bill," Hereford was told.

Senators "need to understand that S. 1747, being so broad, would impact so many people whose jobs involve things such as routine maintenance," says Blue, who is a computer information specialist doing desktop support for New York's Office of the State Comptroller. "It's very common for all the maintenance that has to be done on a computer system to be done on overtime, because you can't do it when people are actually using the system."

"Current law exempts computer-related occupations that involve the application of systems analysis techniques, design and development of computer systems and programs, and creation or modification of computer programs. Workers who perform these duties are classified as 'computer professionals,'" says Tor Cowan, director of the AFT's legislation department. "As the [FLSA] is currently written, this is a narrow exemption. S. 1747 would expand this exemption to cover other computer-related occupations that are more routine and require less analysis, such as configuring, integrating and debugging computer systems."

IBM is one industry leader pushing the CPU Act, says David Cohen, executive director of the Department for Professional Employees, a coalition of 22 AFL-CIO unions that represent more than 4 million professional and technical employees. The CPU Act, he says, "is a lot broader and more dangerous than it looks."

In 2006, IBM paid $65 million to settle a class-action lawsuit regarding the company's failure to pay technical services professionals and information technology specialists overtime under the FLSA. Two years later, IBM made news again when it reclassified more than 7,000 technical-support workers as overtime-eligible, or "non-exempt" under the FLSA—and at the same time, cut their base pay by 15 percent.

Months before Sen. Hagan introduced the CPU Act, IBM's senior vice president of human resources, Randy MacDonald, testified before the Workforce Protections Subcommittee of the House Education and the Workforce Committee, and called the FLSA "a job killer."

MacDonald, who was chairman of HR Policy Association at the time, which represents companies that collectively employ more than 10 million workers in the United States, testified that Congress should "modernize" the FLSA to exempt more computer-related jobs from overtime, including jobs with responsibilities for "securing, updating, maintaining and testing of existing applications." He argued that "many workers desire 'exempt' status, a sign to them that they are recognized as skilled professionals."

On March 14, the AFL-CIO executive council passed a resolution calling on Congress to categorically reject the CPU Act "and all other proposals to roll back overtime eligibility." The resolution argues that the salary threshold determining overtime eligibility needs to be updated and indexed to inflation. "Just to keep up with inflation since the salary threshold was first established, the hourly threshold would need to be raised to $45.63" from $27.63 an hour. The resolution notes that part of the purpose of overtime pay laws is to "encourage businesses to hire new employees instead of overworking existing employees."

Co-sponsors of the CPU Act include Sen. Michael Bennet (D-Colo.), Sen. Scott Brown (R-Mass.) and Sen. Tom Coburn (R-Okla.). [Kathy Nicholson/photo by Michael Campbell]

March 30, 2012