Category Archives: regulation

Another Disregard for Congress

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Congress passed the Fair Labor Standards Act in 1938, and it last was amended in 2007. Among other things, the FLSA allows the Labor Department to define who, in a business, is a manager and who is not.

There are two problems with this, either of which alone is sufficient to demonstrate the need for a further amendment. One problem is that it lets government dictate to business owners—private citizens—how they will run their businesses by dictating to them who they may have on their management teams.

The other problem, the one of interest in this post, is that Labor’s definition of who can be a manager is determined by the man’s salary and not by what he does. This definition matters because managers are “exempt employees,” that is, businesses do not have to pay them overtime for working more than full-time hours (nominally, 40 hours per week or 80 hours per two-week periods; although Obamacare muddles that definition).

Sean Higgins, of The Washington Examiner, had some thoughts on that earlier. I’ll just comment on a couple of them here; RTWT.

The president and administration officials have indicated they plan to increase the $23,000 minimum amount a worker must make before his employer can opt to exempt him from federal overtime rules….

Groups such as the liberal Center for American Progress, which has close ties to the White House, have called for the threshold to be raised to $50,000.

That’s the set up.

Higgins then quoted Joshua Parkhurst, a New York labor rights lawyer:

A fast-food restaurant can slap an “assistant manager” title on someone and…that exempts them from overtime. The white-collar exemption is far and away the most litigated issue under the act.

I’ll ignore the fee-generating litigation Parkhurst alluded to; the “error” is his implication that being an assistant manager is, of necessity, a bogus status. How many managers does a fast-food restaurant (or other small business) need? Exactly one. Who’s in charge on the shifts where the manager isn’t working? Somebody? Anyone? Answer: the assistant manager. Businesses doing 24-hour operations need at least three assistant managers—one for each shift (because the day shift’s manager would benefit from the help, and so the business would), plus one (or more) to fill in when someone gets sick or goes on vacation. How many more properly is a business decision, not a government one.

Doubling the threshold, the Center for American Progress argues, would force businesses to pay workers the overtime they are due or force employers to raise salaries to meet that level. “The average worker works 11% more hours than he or she did in 1975. If we as a nation could afford overtime rights then, we can afford them now,” center policy analyst Brendan Duke wrote….

This, of course, is nonsense. Raising the threshold (not even doubling it) would not at all force businesses to pay overtime or to raise wages. Businesses also have the option of restricting their business hours. They also have the option of restricting those workers’ hours and hiring temporary, part-time help. The former could harm the business, but it’s a business decision whether the higher labor costs or the reduced business hours would be the less harmful. The latter would be good for the temporary hires, albeit their hours and income would be uncertain. It would harm the existing workers, though, by capping them, ending their upward mobility and limiting their ability to build resume material for later, better jobs. This is what most of the workers in this sort of business are doing anyway—getting work experience and looking to improve themselves.

Or, the businesses could (and this is the most likely alternative) simply cut back on the benefits provided in order to compensate for the increase in labor cost from government’s redefinition of “manager.”

And the pseudo-logic that, just because “we as a nation could afford overtime rights” 40 years ago when we worked less, we surely can afford to pay increased costs today is breathtaking to hear from an “analyst.” Or maybe not.

Finally, here’s Parkhurst, again:

The point is, if you are shifting someone back and forth from administrative tasks to manual labor, they aren’t a manager. And slapping a title on them doesn’t change that.

This, too, is nonsense. By Parkhurst’s logic, “if you are shifting someone back and forth from administrative tasks to manual labor, they aren’t a” laborer. And calling him that doesn’t change that.

This gets to the crux of the matter. What makes a man an assistant manager is what he does, not how much he’s paid. And what he does is a matter for business to determine, not government. Or a “labor rights” litigator.

The FLSA would benefit from one more amendment, and so would the country.

EU Immigration

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British Prime Minister David Cameron may be starting to stand strong on the matter of immigration into Great Britain. It sounds like he’s beginning to agree with German Chancellor Angela Merkel, who said four years ago

We kidded ourselves a while, we said: “They won’t stay, sometime they will be gone”, but this isn’t reality.

And of course, the approach [to build] a multicultural [society] and to live side-by-side and to enjoy each other…has failed, utterly failed.

Cameron announced measures Friday:

[M]igrants from the EU should have to wait at least four years before receiving benefits such as tax credits or access to state-subsidized housing. EU migrants also no longer would be eligible to receive state child welfare payments unless their children have moved with them to Britain, a measure which he said is designed to stop the practice of using handouts to support family in their home countries.

He also said that his proposals would be “an absolute requirement” in any renegotiation of the terms of Britain’s continued EU membership that he’s promised to conduct with the EU if he wins a second term in the elections next spring.

Britain isn’t alone in starting to take such a firm position, either. Apart from Germany, the conservative parties of France (despite President François Hollande’s words to the contrary), the Netherlands, even Sweden, are starting to demur from easy border crossing and easy access to government-funded welfare.

If it gets hard for immigrants to go there, though, where else might they go? What other western nation has notoriously porous borders?

Hmm….

The PRC and Language

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“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

So says the People’s Republic of China government, too. Here’s the State Administration for Press, Publication, Radio, Film and Television, on banning puns from news media, other programming, even advertising:

Radio and television authorities at all levels must tighten up their regulations and crack down on the irregular and inaccurate use of the Chinese language, especially the misuse of idioms[.]

After all, puns and idioms could lead to “culture and linguistic chaos.” Can’t have that. Order, dammit. Especially the government’s definition of order. The PRC government’s incumbents do clearly understand that language is thought.

Free Speech, PRC Style

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During visits to more than 20 schools, the regional paper [Liaoning Daily] wrote last week, it found exactly what it said it was looking for: some professors compared Chinese Communist Party co-founder Mao Zedong to ancient emperors, a blasphemy to party ideology upholding Mao as a break from the country’s feudal past. Other scholars were caught pointing out the party’s failures after taking power in 1949. Some repeatedly praised “Western” ideas such as a separation of powers in government.

“Dear teachers, because your profession demands something higher of you, and because of the solemnity and particularity of the university classroom, please do not speak this way about China!” implored the article….

Yep.

Recall, also, the PRC’s ongoing suppression of democracy in Hong Kong, in cynical repudiation of its commitment to the Hong Kongese and the Brits as part of the turnover agreement between the Brits and the PRC.

Privacy and Government

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…and government shoe-squeezing.

The No. 2 official at the Justice Department [Deputy Attorney General James Cole] delivered a blunt message last month to Apple Inc executives: new encryption technology that renders locked iPhones impervious to law enforcement would lead to tragedy. A child would die, he said, because police wouldn’t be able to scour a suspect’s phone, according to people who attended the meeting.

The naked panic-mongering is something we’d expect to get out of the press, but for a high-ranking government official to spout such nonsense is…unseemly. For Cole to masquerade his extreme outlier as the trend that must result, though, is dishonest. But it’s all good—DoJ must be able to snoop into Americans’ communications on DoJ’s own recognizance. Because, of course, no American administration would abuse its discretion.

This comes on the heels of another DoJ overwrought claim.

Last month, Federal Bureau of Investigation Director James Comey said new Apple and Google encryption schemes would “allow people to place themselves beyond the law.”

This is the risk a free people take; it’s a risk the free American people have said repeatedly we’re willing and anxious to take. Because such encryption schemes also would “allow people to place themselves beyond an overreaching government.” Which overreach the crocodile tears and manufactured crises of Cole and Comey demonstrate this government is committing.

Give up some freedom—some privacy from government snooping—in order to have security? Pssh. Without the freedom, without the privacy from government snooping, there can never be any security.