Off the clock

Many workers feel pressure not to accept overtime pay

By Diane E. Lewis, Globe Staff, 9/1/2003

Did overtime go out of style with the time clock?

The right to time-and-a-half pay for work beyond 40 hours a week is one of the hardest-won achievements of the American labor movement, finally enshrined in law in 1938 after a bitter and divisive struggle. Although some states had capped the workday at eight hours shortly after the Civil War, it wasn't until late in the New Deal that aggressive union leaders, including the legendary John L. Lewis of the United Mine Workers, won congressional passage of the Fair Labor Standards Act that guaranteed overtime pay.

Now, as the nation observes Labor Day and labor leaders direct harsh words at a Bush administration plan to redraw the rules for overtime, the verbal salvos pass unnoticed over the heads of many US workers. For them, overtime is a myth, no matter what the law books say.

Take Annemarie Kennedy, an editorial assistant at a Massachusetts publishing company and an admitted "workaholic." She routinely works 45 hours per week, but never requests overtime pay, she said. She cites loyalty to her employer and a concern for job security in a weak economy.

"Ours is a good company, and I feel I need to do the best job I can, even if it means working nine or 10 hours, sans lunch breaks, for seven hours' pay," said Kennedy, 26, of Gloucester. "Last, part of the reason is probably fear. I know the economy isn't so very good. I want to go out of my way to make sure everything my supervisor and I are responsible for is taken care of in an organized, efficient way."

Kennedy, who makes $15 an hour, is theoretically giving up $112.50 per week. The thought embarrasses her, she said.

"I don't make enough in the first place to justify working extra for free," she said. "I'm actually embarrassed when I think about how often I do."

Hourly employees such as Kennedy who do not hold administrative, managerial, or executive jobs and have no managerial duties are guaranteed overtime under the Fair Labor Standards Act. Some professionals are also legally entitled to overtime, provided they have no policy-setting responsibilities.

In 2001, the last year for which data are available, 80 million American workers, or about 55 percent of the country's work force of 146.5 million, were guaranteed a right to overtime, according to the US Labor Department. Of those, 71 million were hourly employees and 9 million were salaried. However, the department keeps no statistics on the workers, perhaps numbering in the millions, who are entitled to overtime but do not claim it.

Teri Franklin, product manager for Expedia.com, the online travel service, said its 2003 survey of 1,000 working adults found that 63 percent work more than 40 hours per week. But a hard core -- one in five of all workers -- work the bulk of the overtime.

Specialists said employees are most likely to forgo overtime pay, like other job benefits, during economic downturns.

"Culturally, the job insecurity set off by downsizing has meant that there are now more people working longer to try and protect their jobs," said Joe Robinson, author of the 2003 book "Work to Live: The Guide to Getting a Life." "But it is a futile exercise because defensive workers who work longer, come in on weekends, and seek no compensation for it are just as likely to get axed."

Joanne Ciulla, author of "The Working Life: The Promise and Betrayal of Modern Work," said some workers avoid claiming overtime for more positive reasons.

"They are not doing industrial work anymore. So, they tend to put their work before other things on their own, without even asking their employers," Ciulla said in a telephone interview. "No industrial worker does that. Professionals tend to do it because their work is part of what they think of themselves."

Tina Bourque, 40, of Braintree, is a scheduler for a diagnostic testing laboratory who earns $15.35 per hour.

"I work anywhere from one hour to, easily, six or eight extra hours per week," said Bourque. She doesn't ask for overtime pay because "it is a lot easier to do the work and get it done than go through the [overtime] approval process."

Executive secretary Jennifer McClay, 25, of Dracut, said she is uncomfortable asking for overtime pay because it makes her feel needy. "I occasionally work overtime, but I am afraid to put it down on my time sheet," she said. "I feel as if, by putting it down, it's as if I'm desperate for the money. I don't want my managers, who don't get overtime, to think I need the money that badly that I have to account for every single penny."

McClay, who earns $20.30 an hour, estimates that she puts in about five extra hours a week. By her account, she is voluntarily giving up $152.25 per week.

Joan Reissman, a trainer and software developer who earns less than $65,000 a year, would seem to fit Ciulla's description.

Reissman has a full-time job at JFY Networks, a nonprofit training program, where she adapts PLATO learning software for individual students. She also teaches young adults and advises teachers. Sometimes she puts in an hour or two of unpaid overtime at home after work.

"I used to see kids who had been passed along in school and they couldn't read or spell," she said. "It was heartbreaking. So, whatever the need is, you have to be flexible. You can't say, `Well, I've put in my seven-and-a-half hours, see you tomorrow.' "

Gary Kaplan, executive director of JFY Networks, said Reissman often resists his encouragement to put in for the overtime.

"Some people just love their jobs and the job is their life," said Ciulla, who teaches leadership and ethics at the University of Richmond in Virginia. "There are a whole lot of people like that. The one test of whether that is good is whether the job has made the rest of life good. For some people, it does."

The American employer has traditionally gauged workers' commitment by the number of hours they put in, according to Robinson, the author. He believes the situation has reached new extremes because of anxiety over layoffs.

"I talked to a woman who put in 90 hours per week for a company in Silicon Valley," Robinson said in a telephone interview. "Her hair was falling out; she had hives and insomnia. She could not sleep more than an hour-and-a-half at a time. She'd call in the middle of the night and leave messages for co-workers. Then, after all that dedication, she was let go."

When Towers Perrin, a management consulting firm, looked at how workers feel about their jobs, it found that workload was the single biggest factor shaping employees' views, accounting for about 15 percent of their emotional response to their jobs. The 2003 study of 1,100 found that because of cost-cutting and downsizing, many workers felt overworked, burned out, or angry, but stayed on the job because of economic insecurity.

For some, this led to unpaid overtime. One worker said, "I'm angry because there's not enough time to do what's required so I often wind up working without pay."

Workers at the bottom of the wage scale, the very workers the federal law is intended to protect, often lose out on overtime pay for a different reason -- because they are unaware of their legal rights.

That was the case with Patricia Alvarado, 24, of Allston. Originally from El Salvador, Alvarado came to the United States just over two years ago and landed work as a cashier at a group of four Mexican restaurants, all known as Anna's Taqueria. Her starting pay was about $7.50 per hour. By the time she left the job last year, she was making $8.75 per hour, according to Audrey Richardson, an attorney at Greater Boston Legal Services who represents Alvarado.

Richardson said Alvarado worked as much as 75 hours some weeks, but never earned more than straight time. About 59 other workers at the restaurant, all of them immigrants, also did not receive overtime for working more than 40 hours per week, the lawyer said. The restaurant has agreed to pay more than $230,000 in back payments to the workers, Richardson said.

"I never even noticed" that I wasn't getting overtime pay," said Alvarado, who expects to receive about $3,400 in back payments. "When you come from another country, you want a job. You don't know what the laws are. When you find a job, you stay."

Eleanor Uddo of Feigenbaum & Uddo LLC, who represents the restaurant, said the company withheld overtime pay from workers because of a misunderstanding of the federal rules. She said none of the 60 employees had worked more than 40 hours at a single site. Under federal law, however, the hours from various units of a company must be added together when tabulating overtime hours.

Uddo said that the restaurant owner had acted quickly and cooperatively to pay back wages and penalties.

Many companies have misunderstood or misapplied the regulations drawn up over the years by the US Labor Department under the Labor Standards Act, said Tammy McCutchen, an administrator for the department's wage and hour division.

Last year, the Labor Department collected $175 million in back wages for 263,593 workers. Of that, $143 million was for back overtime pay, a 29 percent increase over the $111 million that companies paid to settle overtime claims in 2001, the department said.

However, the overtime rules are headed for a drastic change. The Labor Department's proposed new regulations, due early next year, are intended to eliminate antiquated job descriptions and salary levels. The proposed rules would exclude professionals who earn $65,000 or more and perform one supervisory duty. Union workers with contracts providing for overtime would not be affected by the changes, nor would hourly employees who earn $65,000 or more per year. The Labor Department estimates that about 644,000 salaried professionals would lose overtime pay under the new rules.

But unions argue that many more workers would be made ineligible. A June 2003 study backed by the labor movement and released by the Economic Policy Institute, a think tank in Washington, D.C., estimates that as many as 8 million workers could lose the right to collect time-and-a-half when the new rules take effect.

One government proposal has won union support: raising the wage ceiling for supervisors eligible for overtime from $8,060 to $21,500. The department estimates an additional 1.3 million people would gain overtime coverage.

Diane E. Lewis can be reached at dlewis@globe.com.