Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2004 - Continued

By:  Joe Biden, Jr.
Date: Sept. 9, 2003
Location: Washington, DC

DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION, AND RELATED AGENCIES APPROPRIATIONS ACT, 2004—CONTINUED

Mr. BIDEN. Mr. President, before my friend leaves the floor, and I don't want to keep him waiting while I make my statement, I think he made some interesting points. As he knows, I generally have great respect for him. But some of these things sort of don't pass the smell test. I ask the rhetorical question: Does anybody in here believe this administration is changing work rules in order to be able to pay more people overtime?

Let me say that again. Does anybody believe the Secretary of Labor, and this President of the United States, backed by the Chamber of Commerce and many other decent, honorable business people as their core supporters, is trying to change the law to give more people access to overtime?

Mr. GREGG. If that is a question which the Senator has presented, which I think was rhetorical in its nature?

Mr. BIDEN. I would be happy to have you answer it.

Mr. GREGG. By definition, this administration has shown it intends to give more people overtime. It has said people now earning up to $21,000 will be guaranteed overtime. Under the present law, if you are earning up to $8,000 you are guaranteed overtime, but between $8,000 and $21,000 you can be doing a number of jobs in the country which deny you overtime, where your employer can say, I am sorry, we are not going to pay you overtime because you happen to be an exempt employee. Under this proposal from this administration, over 1.3 million people will be getting overtime they would not get under the present law because the threshold goes up to $21,000.

I appreciate the Senator's question.

Mr. BIDEN. I am delighted to hear that. I am glad to see the President has had an epiphany. I find it absolutely fascinating.
I come from a corporate State. I come from a State where business is a great citizen and they are very active. I have never had one small businessman, I have never had one large businessman, I have never had one come and say: You know what the problem is here, Biden? You Democrats are denying people overtime. We want to expand that contract made in the thirties between labor and management to make sure our workers who are not getting it get overtime.

As they say in the neighborhood I come from, give me a break. Give me a break.

I am going to go to my formal statement in a moment. My friend from New Hampshire made a couple of very important points that are accurate, but draw exactly the wrong conclusion. He said that, in effect—my words—the social contract we entered into 30, 40, 50, 60 years ago with American workers said if you engage in manual labor, you will be rewarded for your efforts. We the American people, we the American Government value manual labor. We value what you have done to build this country. We are going to make sure that you get treated fairly. One of the things they said that related to being treated fairly was that nobody should have to work more than 40 hours. That was a judgment made. In Germany, or in France—I don't know which one it is—they say you only have to work 35 hours, and there is a debate about whether it should be 40 or 50 hours.

We made a deal as a nation. We said: Look, if you work more than 40 hours—those of you who do manual labor—you ought to be compensated time and a half for doing it—just like you work on Sunday. They say that is a day of rest. Most contractors say if you have to work Sunday, we will pay double time. That was the deal we made.

As my friend points out, there are not many manual labor jobs left in America. We have exported them overseas—or the bulk of them overseas. We made it easier for business to take all those manual labor jobs and send them overseas. This is a different world. We have now become a service economy. We have a lot less people doing manual labor. What was the underlying rationale as to why we were going to pay people overtime? We were going to pay overtime not to those who did manual labor. That is what it happened to turn out to be. We said we are going to give people overtime if in fact they are in the workplace and they don't have control over their destiny. They do not get to determine the work rules. They don't get to decide how much longer they will keep the lathes going. They don't decide whether or not they work on Saturday or Sunday. It is about control.

The underlying rationale was we said workers who by and large were manual laborers and do not have a say in their work conditions, do not have a say in how they function, do not have a say in whether they start at 8 or 10 in the morning or 4 in the morning, do not have a say in when the shifts run, and do not have a say in whether or not they get a window outside their work space, we are going to pay those guys something when we ask them to work more than 40 hours.

But for those folks who have a say, and those folks who have some control—theoretically white-collar workers, people who get a room with a view, people who have some say on whether or not the boss starts the shift or opens the door at 8 in the morning or 4 in the morning or 10 in the morning, and those folks who are more like management—they have a say and we are not going to compensate them. Their compensation is in effect because they have a say.

As a former Governor of California used to say, there is psyche remuneration for being white collar.

Just like around here, I get to pick my office. I get to decide whether I have a room with a view. I get to decide to have a more commodious work space. The person who works for me who happens to be answering the mail doesn't get that decision. If I put the mail room in a place where there is no window, as long as it meets OSHA's requirements, they work.
Guess what. Hang on everybody. For those of you who ain't management, you ain't going to get overtime anymore when the boss says: By the way, show up. I have an election. You get overtime now. You all get overtime. Get ready.

At any rate, the point is this: It is about control.

My friend said the world has changed. It is a different economy than it was in the 1950s and 1960s. That is right. But if it is based upon the premise of control, which is the underlying rationale for the Fair Labor Standards Act, I would argue my friend from New Hampshire is right. The world has changed. But guess what. White-collar workers don't have control now.
As we move to a service economy and white- collar workers, we don't have people digging ditches. We don't have people lifting lumber. We don't have people moving heavy equipment. They are still there, but we have white-collar workers who wear blue collars and who are in high-tech industries and industries that are the service economy—who work in restaurants and work at all these other places—who, in fact, still have no control.

Let me ask you a rhetorical question. Am I missing something here? Every single survey I have read during the last decade asking about satisfaction that American workers derive from their jobs—am I wrong or have all those surveys come back and said there is less satisfaction?

We are not allowed to talk to the galleries. So I am not going to.

But I wonder whether people watching this or sitting in the galleries as I ask a rhetorical question will ask themselves this: Am I satisfied in the workplace? Do I feel my job is rewarding? Do I have any element of control over my job?

The funny thing I have found is whether they are a DuPont engineer or a chemist or an analyst at a brokerage house, they
are all afraid they are going to show up one day and find that the company has been sold and they don't have a job. They don't have any control. Guess what. They don't have much.

I agree with my friend. The world has changed. But the values haven't changed. The value we are operating on is that people who do not get much say in how and when and where and under what conditions they work when you ask them to work more than 40 hours should get paid overtime. The fact that there are fewer people wearing sweatshirts and sweating as they perform their jobs is not the issue. How many of those folks in the new service economy have any more control over their jobs than those folks who did manual labor 40 years ago?

That is the first point I want to make.

The second point I want to make to my friend from New Hampshire, who is a very bright guy—I am not being solicitous; he really is.

The second point I make, I agree. He says there is more flexibility in the workforce. I will make a bet. I will make the staffers and my Republican colleagues a bet. I bet if they go out tonight, as they stop in the grocery store or stop to pick up the bottle of milk, or if they are single, stop at the local watering hole to commiserate with their colleagues, ask the following question to whomever they encounter: What does flexibility in the workplace mean to you? Although I have never done this, I make a bet the answer everyone gets is the following: It means my boss can fire me when he wants. It means I have to work part time. It means I am flexible, but they do not have to pay health care. It means I do not have to get benefits I used to get when it was not so flexible.

Flexibility does not translate into control. It does not translate into you being able to determine, in effect, compensation for being asked to stay longer, the environment in which you work or the circumstances in which you work. Flexibility translates to most American workers as flexibility for the boss to tell me I am part time.

My friend did point out part time. I am not going to get into a debate whether it is 8 million or 1.3 million. That is focusing on the trees and not the forests. What is the big picture, folks? The big picture is my Republican colleagues have a very different set of values than I have. They are good people. They are decent people. I am not impugning their motive, but they have a different value set. I think the basic principle is if, in fact, you work in a circumstance where you do not have much control over your environment, and I ask you to work longer than 40 hours, you should have to be paid overtime.
That is a basic fundamental value. To me it is simple.

What has this President done? He is a decent, honorable man. What has he done? He has a very different view of American labor and the rights of American labor. Look at his tax structure. All our existence in this last century and the beginning of this century, what was our tax structure designed to do? It was designed to treat the guy and woman who make their living using their hands the same way as the guy who makes his living using his head.

We did not make a distinction in this country based upon whether you pay taxes—until now. What has this administration said now? It depends whether you have—and it is a fancy term—earned income or unearned income. All those listening to me know the difference. Earned income means when you receive a salary, basically. Unearned income is when you have a return on an investment.

What have we done in trying not to tax dividends? We have said, if you sit in your living room, in your home library, in your corner office on the 67th floor, wherever you sit, and you manage your investments, you do your work with your brain alone trying to figure out how to best place the money you have to get a return, if you make money, if you make that week $1,000, then we are not going to tax you. But if you run a piece of heavy equipment, digging out the World Trade Center, and you make $1,000 because of your hourly wage and your overtime, we are going to tax you. Ain't that sweet?

This is the administration—my friend from New Hampshire wants me to believe—that is changing these rules in order that more people will get overtime. That does not pass the laugh test. Look, even the stenographer knows I am telling the truth.
It does not pass the laugh test. Let's get real here, OK.

There is a sound philosophic argument for the position of the Republicans based on a different value set than I have, but it is sound. They argue the reason why you shouldn't tax the guy who doesn't break a sweat is because he will provide the liquidity, the pooling of money out there from which people can borrow money, make investments, cap investments, to put guys like my dad to work when he was alive. God love them being so concerned about my dad. But that is a legitimate argument. And what they say is, we value that effort, because it is a more societal consequence, than we value the guy sitting behind a crane or a heavy piece of equipment because we will tax him, but we will not tax the guy who creates something of greater value. He does not break a sweat. He does not put his body at risk. He puts his money at risk.

Now we are creeping into a two-tiered notion of what is the most valuable thing to be compensated in this country. It is a legitimate argument with which I fundamentally disagree. Make no mistake about where those guys are coming from. Don't try to tell me they are trying to help my brother, the laborer. Don't try to convince me they are trying to help the average middle-class guy. Don't try to tell me they are trying to create wealth among those who are raising their kids in split-level homes and trying to pay for tuition. Don't try to tell me that. They are trying to do that indirectly because if you let the big guy have more money, he will take a greater risk and he will invest it and maybe employ that man or woman in the
$100,000 split-level home with three bedrooms and four kids. But for God's sake don't tell me that is their major concern.

This is about values. It is obvious this administration does not have the same value set, at least speaking for myself, that I have, or that we have had, or value the social contract in effect that we fought over all during the teens, 1920s, and 1930s, and began to put into place in the 1940s, 1950s, and 1960s.

The nature of the economy has changed, but the nature of those who have control and do not have control has not changed. That has not changed. Those numbers and proportions have not changed. This is not fair. But it is consistent. It goes back to the trickle-down, bubble-up disagreements, a very simplistic way to show the differences between our parties. We think average folks can actually make decisions for themselves. We think they can actually and should be rewarded for what they do. That will generate economic growth. They think, no, let the wealthiest among us make those judgments and that will trickle down and benefit my noncollege-educated father and mother. It is a legitimate argument. But it is different value set.
It is a different way of looking at the world.

For Lord's sake, do not try to convince me this administration is seeking to change the overtime work rules so more people get overtime. In the last 3 years, more than 3 million private sector jobs have disappeared. And for each of those 3 million jobs lost, there is a story of a child without health care, a family in crisis without dignity or hope, their dreams lost or at least deferred. A job loss is not just another statistic, it is a real human tragedy.

Paraphrasing President Truman, and I didn't know what he was doing at the time, my grandfather Finnegan from Scranton used to say, Joey, when the guy up in Throop loses his job, it is an economic slowdown; when my brother-in-law loses his job, it is a recession; when I lose my job, it is a depression.

There is a lot of depression for a lot of folks out there. For 3 years now, this administration has told us that tax cuts are the only thing we need to do to get this economy rolling. They said tax cuts were all we needed to create new jobs. You know the talk about creating new jobs. But here we stand today, trillions of dollars in tax cuts later, and we have not added a single—hear me now—a single, not one net new job to the economy in the United States of America—not one. And I will bet the President anything he wishes to bet that at the end of his term—defeated or reelected—on election day 2004, this will be the first administration since Herbert Hoover not to create one single solitary net new job. As they used to say on "Saturday Night Live," "Ain't that special?"—not one new job.

Not only have we failed to create new jobs, we are losing the ones we have. Tax cuts were the only policy we had, but it is painfully clear they haven't worked, at least in relation to jobs. And now it is clear that tax cuts and deficits are credited for crippling our ability to meet our responsibilities here at home in homeland defense and to shoulder the burdens we face around the world, at exactly the time the President has rightfully called on us to come up with another $87 billion for Iraq.

I think it is time to ask the question: If we are not going to create any new jobs—and the President's Council of Economic Advisers argued, by the way, that last year's tax cuts would produce 5.5 million jobs between now and the end of 2004. With the loss of 93,000 jobs last month, that puts them 437,000 jobs behind their promise already. I challenge them to create one new job during this administration.

The latest official numbers look slightly improved on paper, but that is because nearly 2 million men and women who have been out of work for over half a year know that good jobs are just not there so they have completely given up looking for work.

I know my friend from West Virginia has been through a lot. He could, not figuratively but literally, write a book on this.
He has witnessed what has happened to his coal miners. He has witnessed what has happened to the folks in his State. He has been through a depression. He was part of those who worked us out of that. He knows what not having a job means to somebody.

So most of us here—all of us, Democrat and Republican, know that the key to our dignity as human beings is being able to provide for ourselves, and it is also the key to a healthy economy.

A jobless recovery, which we have right now, means nothing to the millions still out of work. And this so-called jobless recovery is in danger of causing the recovery as a whole to sputter out because its foundation is not very solid.

There is little hope for sustained, healthy economic growth without solid, good-paying jobs. Consumer confidence and consumer spending—the keys to our economy—ultimately depend on Americans' confidence that they are going to have a secure job, a job that pays a fair wage for a fair day's labor.

For over half a century, American workers have known what that meant: a 40-hour workweek and time and a half for overtime. You could count on that extra pay in exchange for the extra burden of working more than 40 hours a week.

So I would just ask, what has changed in America that says when you work more than 40 hours a week, you should not get compensated more for it? What is it that has changed that says the premise of overtime pay is no longer sound? What is it? What is it that has changed, that is different from the agreement we made—business and management and labor—that if you don't control your work environment, you should be compensated monetarily when you are asked to work in that
environment beyond 40 hours? What has changed?

What is happening? Have we taken on a new set of basic values or is there something in the marketplace that has changed that demands this?

I will conclude with this. The irony of all of this is that at the very time when people are feeling less secure physically, the very time when people are feeling less secure about their jobs, at the very time when we have lost millions of jobs, and no reasonable prospect of seeing them regained in the near term, why is it they have to pile on now—pile on now—and begin to change that basic contract?

You would think they would at least have the good grace and the courtesy to wait until things have improved a little bit. It just seems to me to be really bad form, just bad form, because you know a lot of those guys and women who are making overtime are helping pay their mother's prescription bill, are making sure that their brother, who lost his job, is able to keep his kids in school.

A lot of that money for overtime is family overtime. And now we want to change that. I think it is getting a little bit greedy.
I think it is just a little bit greedy. I think it is bad form. And I sincerely hope I turn out to be wrong. I sincerely hope the economic conservatives in this administration really are attempting to provide a change in the rules to make sure that more people get overtime. I will come to the floor and say: I'm sorry, I misjudged you. I thank you for your concern for working-class people. I thank you for your concern that not enough of them were getting paid overtime, and I appreciate the fact you are now willing to pay more people more overtime. I don't think I will have to make that speech. I hope I am wrong.
Mr. President, last month 93,000 Americans lost their jobs. Over the last 3 years, more than 3 million private sector jobs have disappeared. And for each one of those 3 million lost jobs, there is a story of a child without health care, a family in crisis without dignity or hope, their dreams lost or deferred.

A job loss is not just another statistic, it is a real human tragedy.

For 3 years now this administration told us that tax cuts are the only thing we need to get the economy rolling again. They said tax cuts are all we need to create new jobs. But here we stand today, trillions of dollars in tax cuts later, and we have not added a single new job to this economy.

Not only have we failed to create new jobs, we are losing the ones we used to have. Tax cuts were the only policy they had, but it is painfully clear that they have not worked. And now it is clear that the tax cuts and the deficits they created are crippling our ability to meet our responsibilities here at home and to shoulder the burdens we face around the world—at exactly the time the President has rightfully called on us for $87 billion for Iraq.

It is time to ask the question: Can this administration create just one new private-sector job, one more job than existed when they took office?

The President's Council of Economic Advisors claimed that the last tax cut would produce 5.5 million new jobs between now and the end of 2004. With the loss of 93,000 jobs last month, that puts them 437,000 jobs behind their promises already.

I challenge them to create just one new job during this administration, one new job before the next election.

The latest official unemployment number looks slightly improved on paper, but that is because the nearly 2 million men and women who have been out of work for over half a year know that god jobs are just not there and they have completely given up looking for work.

Jobs are the key to our dignity as human beings. And they are the key to a healthy economy.

A jobless recovery like we have right now means nothing to the millions still out of work. And this so-called jobless recovery is in danger of sputtering out because it lacks a strong foundation.

There is little hope for sustained, healthy economic growth without solid good-paying jobs.

Consumer confidence and consumer spending—the keys to our economy—ultimately depend on Americans' confidence that they have a secure job, a job that pays a fair wage for fair days' work.

For over half a century American workers have known what that meant, a 40-hour work week, and time and a half if you worked overtime. You could count on that extra pay in exchange for the extra burden of working more than 40 hours a week.

Many workers often have no choice about working overtime, it is up to their boss. But they have to work those extra hours, their employer is required to pay them time and a half.

This has been a cornerstone of the social contract between labor and management, between workers and employers.

For other workers, higher overtime pay is often absolutely essential to making ends meet. For those struggling along on the
minimum wage or a little more, overtime pay can make all the difference when you are trying to make ends meet.

We know that many workers simply schedule themselves as much overtime as they can physically bear so that they can stay above water financially. But despite the key role of the 40-hour work week, despite the wide-spread reliance on time and half pay for work past those 40 hours, this administration has proposed crippling changes in the regulations governing overtime pay.

That is why I am here as a cosponsor to the Harkin-Kennedy amendment to prohibit funding for those new overtime regulations.

Senator HARKIN deserves our thanks, and the thanks of millions of workers, for his leadership on this issue.

On its face, the issue could not be clearer. The administration wants to take away the rights of millions of workers to overtime pay. They want to make it easier for employers to reclassify as many as 8 million hourly workers—who now get overtime pay—to make them ineligible for overtime pay.

Right now, for most workers, if you are not "white collar" working in management, your boss has to pay you time and a half for all the work you do over 40 hours a week. The idea is that more highly educated workers, who participate in management, who have significant authority over the workplace, are more properly classified as salaried, not hourly, workers. They get a fixed amount of pay, no matter how many hours they may put in a week.

Hourly workers, on the other hand, who do not manage the conditions under which they work, who have less to say about the work week is organized, must be compensated if they work more than the basic 40 hours.

That has been the definition of a fair day's work for a fair day's pay for more than half a century, and its basic fairness still makes sense today.

America has changed, but not our values. But the administration's new regulations would make it easier—would actually create an incentive for employers to classify workers who have little advanced education and little or no authority—to classify those workers as white collar workers.

Those regulations would lower the amount of education currently required to classify someone as white collar or professional. And they would also loosen the definition of management activities to make it easier to claim that a lot of the basic paperwork many hourly workers currently do actually makes them administrators or executives.

Overnight, with the stroke of a computer key, millions of workers could lose the right to overtime pay. These rules are designed not only to make it easier to reclassify workers, but to make it pay for employers who do so.

Employers will save money, since they will no longer be required to pay workers time and a half for work that they are now guaranteed. There would be no change in the number of hours they could be required to do, no change in their education, no change in their responsibilities, just one change in the regulations in Washington—and they are out overtime pay and out of luck.

Today, when the biggest problem facing our economy is the loss of job, when a well-paying job is so hard to come by, these regulations are the worst thing we could do.

This administration has the worst record of job loss since Herbert Hoover—3.2 million jobs lost. Faced with the obvious fact that his economic policies have failed to create a single new job, faced with the fact that years into a so-called recovery, we are still losing jobs, the President recently announced a warmed over package of his failed policies and labeled it a job creation plan. I suppose it is a good thing that he finally realizes that he is presiding over the worst job creation of any modern President.

Unfortunately, there is nothing new in his announcement, and absolutely nothing that would create one new well-paying job. If he truly wants to do something for the working men and women of America, I respectfully suggest that the President simply rescind these proposed regulations. That alone would protect the overtime pay on which so many men and women and their families depend today.

Now is not the time for this administration to use its regulatory power to cut the pay of millions of American workers. But if we will not stop this pay cut for millions of Americans, we can do that today here in the Senate. We can vote to prohibit any funds from going to enforce this unfair and wrong-headed change in our basic social contract, in the deal we have struck between millions of workers and their employers.

I urge my colleagues to join me in voting for this amendment.

Mr. President, I thank my colleagues and yield to the distinguished Senator from West Virginia.