Saturday, August 10, 2013

The Overtime Loophole

Part 1 | Part 2 | Part 3

President Obama has been talking up the idea of raising the minimum wage. I would certainly support such a move. But until we require the minimum wage to always be a living wage, there's more work to do.

Author's Note: This is the last in a three-part series that began with Breaching the Social Contract and Lien Times for Startups.

“No one who works full-time
should have to live in poverty.”

President Barack Obama
in his State of the Union speech, February, 2013

People are having trouble making ends meet. There are signs of it all around, but it's not always spoken about. It's embarrassing, after all, and something people often just endure rather than talk about out loud. But shame gave way to outrage recently, and shy silence to loud cries of incredulity, when when McDonald's published a “Sample Monthly Budget”  (see excerpt at right).

What caught they eye of many was the unabashed acknowledgement, right up front, that McDonald's knows they are not paying enough for a person to live on, and that of course their employees will need a second job. That their pay is not a living wage was no surprise to anyone, but that McDonald's was willing to so casually acknowledge that fact was quite striking.

Not only that, but also striking was that the sample budget doesn't even mention obvious costs like food, clothing, and gasoline. And though it mentions health care, it seems to think $20/month is enough. That's not even a full copay for a doctor visit on most plans, much less a payment for the plan itself.

Curiously, the McDonald's 2012 annual report speaks proudly of its employees as part of its McFamily, and of their jobs as “a career.” I asked the all-knowing web what the difference was between a job and a career, and it referred me to Yahoo, which offered lots of talk about careers being things you build, things you work toward, or something that doesn't just pay the bills but is a passion. Merriam Webster defines career as “a profession for which one trains and which is undertaken as a permanent calling.” Hmmm. A permanent calling that doesn't pay enough to live. What could possibly go wrong?

In fairness, though, we probably owe McDonald's a thank you for publishing this budget. It doesn't show them to be much different than I'd imagine many other employers to be. It's just unusually honest and invites public discussion with a new degree of specificity. We don't have to guess what they're thinking. They've spelled things out.

For example, what leapt out at when I saw this budget, was that it acknowledges an ugly reality of modern employment that everyone probably knows about, but that gets far too little open discussion: that Big Business has found a pretty reliable way around overtime laws.

In the McDonald's budget, it's plain that they expect employees to work additional hours to break even. That's the reason for the second job. But just as obviously, they're not offering to let their employee work those hours at McDonald's. Why?

Is it that they're not open that many hours a week? No, McDonald's has a lot of interest in being open late. Is it that they want their employees to be well rested? Well, obviously not. The budget says the company expects their employees will be working long hours, just not for them. So it's not about more hours to rest up.

Antitrust laws notwithstanding, I imagine what's really going on is something like this: Suppose I have a company where I want to employ 100 workers at very little money for 80 hours without overtime. And suppose you do, too. That would violate employment laws and maybe also make a mess of various corporate policies. So I get an idea. I call up my friend Donald, who has a business similar to mine, and we get together to brainstorm about this problem:

Donald has an idea: “How about I cut my workers to 40 hours a week and you do the same? Then I'll hire your 100 workers, also for 40 hours, and you can do the same for me. We'll each now have 200 workers instead of 100, each working at 40 hours instead of 80 hours. Presto. Problem solved: We each get what we want, 8000 hours of work a week, but with no messy overtime for the employees.”

I'm skeptical this is what's intended, but Donald is insistent: “Nonsense,” he says of my concerns, “if they didn't want us to do this, they'd pass a law against it. Instead, they've created an economic incentive for us to do this. Congress must know it happens, so since they don't make a law against it, they must want us to do it.”

“But this Congress doesn't want to pass any laws,” I reply, still not convinced.

“Not my problem,” Donald responds. “I can't be running my business based on made-up constraints that my competitors aren't shackled by. It wouldn't be a fair fight.”

“But what's fair about cheating workers out of overtime?”

Donald scowls at me. “First, it's not cheating. And second, they signed up voluntarily. They could have gone elsewhere if they didn't like the deal you were offering.

“Like where? To your company? You'll offer them the same rotten deal that you suggest I offer. What if everyone does that trick you're suggesting?”

I don't know if a conversation like that ever happened. It might have. If it did, I'm sure there are no records. But, conversation or not, it seems clear to me that the companies engaged in this practice know they are doing it.

If the reason people were taking second jobs was to reach for something extra—not something they need to live, but something nonessential—that might be okay. But the McDonald's budget is a clear admission that these companies know that they aren't paying any kind of living wage. A claim to the contrary wouldn't pass the laugh test.

Employees have no real choice but to work overtime to break even. And since they have to do the overtime with another company, they won't get overtime pay. That's called an externality: These companies get the benefit, and the cost is someone else's problem—the employee's, to be exact. If the companies were paying time-and-a-half for that overtime work, the employee wouldn't have to work as many hours for the same money, or the employee would make more money for working so many hours. That seems the clear intent of the overtime law, even if not the letter of it. But the companies have found a way around it.

So what's to be done? To get the discussion onto something concrete, I suggest a tax. There being no employer to collect the extra money from, I suggest the government can pay it—up to the level of a living wage. Then the government can tax the employers to recover the cost. In that way it's also “revenue neutral” and the anti-tax folks should have nothing to object to.

If a worker is paid so little that he must work 80 hours for two employers, he's due 40 hours of half-time pay because he was only paid a straight wage, not time-and-a-half. At tax time, he gets a credit for the half-time pay. The government then taxes the two employers for their share of the cost, based on the number of hours each employed the worker and how much they paid him below a living wage. For every hour they underpaid him, a bit of tax is held in reserve to cover the very likely situation that he'll file for overtime.

None of this keeps an employer from offering overtime work directly and honestly with their own company. That would avoid the tax. Or they can just pay a living wage. That would avoid the tax, too. I'm not suggesting a tax because I'm fixed on taxing people. It's just a tool of last resort to make sure employers can't find a legal loopholes to hide from what should be their responsibility.

Let businesses find another way to make their money than on the backs of employees. Let them offer good products and services at prices that more fairly incorporate all legitimate costs of those products and services rather than hiding those costs by pushing them onto workers and society.


This third part of a 3-part series was originally published August 10, 2013 at Open Salon, where I wrote under my own name, Kent Pitman.

The other articles in this series are:
Breaching the Social Contract (part 1)
Lien Times for Startups (part 2)

Original graphic created from data obtained at

Tags (from Open Salon): monthly budget, budget, necessities, essentials, paying enough, overtime, forced overtime, unpaid overtime, overtime law, antitrust, antitrust law, collusion, tax, poverty, jobs, employment, mcdonald's, sample monthly budget, loophole, overtime loophole, second job, another job, extra job, make ends meet, making ends meet, business, taxation, politics, social contract, minimum wage, living wage, externality

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