(Washington D.C.) Today National Restaurant Association Senior Vice President of Labor and Workforce Policy Angelo Amador, submitted a written statement for the record to the House Subcommittee on Workforce Protections during a hearing entitled, “Reviewing the Rules and Regulations Implementing Federal Wage and Hour Standards.”
In his statement, Amador expressed concern with initial reports surrounding the Department of Labor’s (DOL) proposed overtime regulations.
President Obama issued a memo asking DOL to update overtime regulations, which were last revised a decade ago. Since then, the DOL has met with employer groups including the National Restaurant Association but has yet to release its proposal.
Three criteria are now used to determine whether an employee is exempt from overtime. All three are expected to be targeted for revision:
- Salary threshold: Employees must earn a minimum of $455 a week, or $23,600 a year.
- Manner of pay: Employees must be paid on a salary basis, meaning employers can’t reduce their pay for working a partial day.
- Managerial/executive: The employee’s “primary duty” must qualify them as an executive, professional or administrative employee.
The duties test is of particular concern to the restaurant industry which relies upon all of its employees to impart a spirit of hospitality with patrons.
“The feedback I have received from our members in California is that its ‘duties test’ approach should not be emulated nationally. The duties test has become impractical and, as expected, confusing – leading to excess litigation and undermining an employer’s ability to utilize this statutory exemption without fear. Adopting a quantitative test, regardless of the percentage, would create a tremendous regulatory burden. Such an environment would require employers to track an employee’s work tasks on an hour-by-hour, or even a minute-by minute, basis and figure out whether each task is exempt or non-exempt in nature – destroying over 70 years of settled federal case law.”
In his testimony, Amador cited under a potential duties, test a manager – even one who was unquestionably “in charge” of the restaurant – rang up an order, wiped down a table, or jumped in to deliver an order, would need to track that time to ensure that it did not exceed whatever limitation the Department’s revisions would require.
Amador also addressed the impact of raising the salary threshold which could all but ensure that restaurant managers would no longer qualify as “exempt” and expressed concern that the DOL’s proposal will take an entire class of restaurant managers and re-define them as hourly employees.
Amador expressed appreciation to White Castle Vice President Jamie Richardson for testifying on behalf of the restaurant community.
Founded in 1919, the National Restaurant Association is the leading business association for the restaurant industry, which comprises 1 million restaurant and foodservice outlets and a workforce of 14 million employees. We represent the industry in Washington, D.C., and advocate on its behalf. We operate the industry's largest trade show (NRA Show May 21-24, 2016, in Chicago); leading food safety training and certification program (ServSafe); unique career-building high school program (the NRAEF's ProStart); as well as the Kids LiveWell program promoting healthful kids' menu options. For more information, visit Restaurant.org and find us on Twitter @WeRRestaurants, Facebook and YouTube.