Maine seeks to clarify overtime rules

BANGOR – Concerned that businesses might be questioning whether their workers are entitled to overtime pay under new federal rules implemented last week, the Baldacci administration on Tuesday released draft rules that state which classifications of workers are not.

The intended purpose behind the four pages of definitions is to preserve overtime pay for Maine workers who could lose it under the federal rules written by the Bush administration that went into effect Aug. 23.

“What it says is that anyone who was governed by overtime protections before will still be protected,” said Laura Fortman, commissioner of the state Department of Labor.

The draft state rules include definitions of executives, administrative and professional workers. They state that any worker who spends at least 80 percent of his or her time managing or supervising others is exempt from overtime pay. For retail workers, it’s 60 percent.

The new federal overtime rules state that if a worker spends any amount of time in a role that can be viewed as supervisory, the worker is not eligible for overtime pay.

But the state’s draft rules concern the Maine State Chamber of Commerce – and it plans to speak up about it at a public hearing that should take place by Oct. 1.

The business advocacy group isn’t worried so much about the definitions themselves, which the Chamber is having reviewed by a labor attorney before commenting on their actual language.

Instead, the Chamber is worried that adding another layer of definitions to the new federal rules could add confusion to businesses already trying to make sense out of who is entitled to overtime pay and who is not under the federal rules, Gore said.

He said the new federal rules were designed “to simplify” for businesses which workers could get paid overtime. Adding new state definitions could exacerbate a problem that businesses thought was remedied last week, Gore said.

“It gets confusing for the business community, especially for small businesses that will wonder, ‘Do I follow the federal rules or the state ones?'” Gore said. “Any time you promulgate new rules you are going to make it more difficult for employers and employees to figure out which ones to follow.”

So far, the state Department of Labor has not received any complaints of workers losing overtime pay since the federal rules went into effect a week ago, Fortman said. The department last week had encouraged businesses that were questioning whether a certain classification of workers still was eligible for overtime pay to call the state Bureau of Labor Standards for an answer.

“I would be surprised if people were trying to remove overtime pay from their workers,” Fortman said. “That doesn’t seem to be the Maine way of doing things.”

The state’s draft definitions are not in place yet. A 30-day public comment period is in effect and a public hearing will be scheduled for sometime around Oct. 1.

Since 1995, Maine workers have been protected from changes in the federal Fair Labor Standards Act. At that time, a provision was added into state overtime law that said if the federal act on overtime pay is changed to the detriment of workers, state laws on overtime rates prevail over the federal ones, according to Ned McCann, secretary-treasurer of the Maine AFL-CIO.

But ever since that provision of state law was enacted, it has been interpreted to apply not only to changes in the federal act regarding wage rates but also to any changes in the classifications of workers eligible to overtime pay.

Businesses are supposed to follow the provisions in overtime laws – either federal or state – that offer workers the best overtime protections, McCann said.

Last week’s new federal definitions on overtime eligibility brought up questions among businesses and state agencies as to whether Maine’s overtime-rate protection law could trump the new federal rules on eligibility.

“That was part of the confusion,” Fortman said. “What Governor [John] Baldacci wanted to get clear was who exactly is covered by the new overtime rules. Whether it’s federal or state, whatever rule provides the greatest protection for the worker is the one that’s in force.”

McCann said that even though he believes state law already protects workers from any changes in federal rules pertaining to overtime rates as well as who is eligible to receive it, Maine’s new draft definitions will put in writing some “extra caution” that the eligibility standards aren’t questioned again.

“The governor’s on the right track,” McCann said. “We’re tickled about it.”