When I put the finishing touches into Labor Pains in 1995, actual publication was delayed because there was talk of revisions to the 1938 Fair Labor Standards Act. I only waited for three weeks and, hearing no more, proceeded with the publication of the first edition.

Eight years later, the talk of changing the FLSA seemed bolder, and the politics began. I was going to hold off on the 2003 edition, and made a number of calls to the US DOL to try and determine if the changes were actually going to take place. Nobody knew anything.

The 2003-2004 edition was published, and minor changes have been made to the .PDF version, not changes caused by the modifications proposed by the DOL, but rather changes that occurred in state labor codes. The DOL never quite solidified the proposed modifications to the law, and a year later, with Congress fully involved, we are about to get a law (maybe) that will benefit no one. It's almost as though the DOL, the legislators, and the Administration are looking for another thing to put on their resumes. That's like the president of a homeowner's association putting his or her "presidency" foremost on a list of management experience.

Today, March 22, a full year later, I received the following email: "DOL revising overtime proposal ­ The Department of Labor (DOL) has revealed little about the content of its soon-to-be released final rules on overtime pay, but a number of substantive changes to its original proposal can be expected, according to Wage and Hour Administrator Tammy D. McCutchen, speaking to members of the SHRM at the organization’s annual legislative conference in Washington. The DOL is expected to publish its final rules on or about March 31, and they are likely to raise the proposed salary threshold under which many white-collar workers would qualify for overtime pay." (CCH, March 22, 2004)

This football has been passed around, tossed, and kicked for well over a year, beginning with the promise to simplify the FLSA and bring that 1938 law into the Twenty-first Century. For those new to such processes, let me first point out that any time Congress says that they will "simplify" something, that means that in its final version, experts will be needed to interpret and help you implement the changes. If you don't believe me, remember that the new "simplified" tax codes are not referred to by weight and not the number of pages. The latest was I believe 22 pounds!

Maybe we have to bring the DOL and SHRM (who "helped") into the 21st Century. I once wrote how disappointed I was with Robert Reich, the Secretary of Labor under President Clinton, but I'm afraid that Elaine Chao has less acumen in administering the department than Mr. Reich did. In fact, by invidious comparison, Mr. Reich did a stellar job. It's one thing to screw up the lives of those who depend on overtime to augment their incomes. It's quite another to affect me!

Howso? The most often asked questions have to do with exemptions from the Fair Labor Standards Act. There are at least 15 references to it in Labor Pains, and at least a dozen articles or parts of articles on this Web site. It is one thing to know that there are changes, a whole list of changes. It is another not to know which of the changes will be "final," and then it is paralyzing not knowing when these changes will become law or go into effect.

It was with that in mind that I called the US Department of Labor this morning. Give it a try: they're very nice, not helpful, but exceedingly courteous: 1-866-487-2365. And I asked, "When will the changes to the FLSA become law," and the reply was that final arguments had to be made by July 31, 2003. "I know that," says I. "What I want to know is when do we have to abide in whatever changes are going to go into effect on March 31, 2004?" I was put on hold, and when Josie came back, she advised me to call the Wage and Hour Division at 1-866-487-9243.

Which I did with almost the same result except that I was told by the Wage and Hour Division to call my state's Department of Labor. I said that this was a federal law, and then I was told to call the Wage and Hour Division of the State of California's Department of Industrial Relations. (Because the only thing they asked me was for my Zip code. Now I knew why, but I didn't know why.)

To those who emailed and asked what and when this stuff would go into effect, I still don't know. I'm as frustrated as you, and probably a bit unhappier. If you want me to be honest - and boy is this brutal - I'd have to say that I was better off and a lot happier before the changes were proposed. It means darn-near "global" revisions for me. It also means that there will be employers who believe that they can now make anyone exempt. It looks that way, but remember that the employer cannot make someone exempt: they can only determine whether the job meets the requirements for exemptions. Still, it will be a lot easier to classify someone as exempt if the salary requirement is met (see proposed revisions on this site). The independent discretion and judgment test will be replaced by a "person of responsibility" which is about as vague as a criterion can be.

Who knows? Maybe it's a trap: everyone will follow the guidelines and then be fined for misclassifying nonexempt employees! That will help the deficit.

Summary: We have a list of possible changes. Some, maybe all, will become effective March 31, but we don't know when we will have to revise policies and implement these changes. Confused? Of course. It's what keeps us alert and, as the old saying goes, we need more lerts.