Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2004-Conference Report

AGRICULTURE, RURAL DEVELOPMENT, FOOD AND DRUG ADMINISTRATION, AND RELATED AGENCIES APPROPRIATIONS ACT, 2004-CONFERENCE REPORT

Mr. KENNEDY. Mr. President, one of the worst provisions in this shameful bill is the provision that will take away the right of overtime pay to millions of loyal and hard-working Americans. That provision also shows the enormous gulf between what the Bush administration says and what it does.

Again and again, President Bush talks about providing economic security for all Americans, and then he quietly tries to deny millions of workers their basic right to overtime.

If you have to work overtime, you deserve overtime pay. No employer should deny you that right, and no President and no Congress should take it away from you.

In his State of the Union speech last night, the President said his jobs and growth agenda would include "relief from needless Federal regulation." Apparently, he believes protecting employees' overtime pay is a needless regulation.

Millions of employees across America disagree with that. This proposal makes clear that the Bush administration is working overtime for the corporations and against the workers of America. We are fighting a war in Iraq, and this President and this administration is also waging a war on workers here at home.

Thirteen million children are going hungry every day; 8 million Americans are unemployed with no jobs in sight; 7 million workers have been waiting since 1997 for the raise they deserve in the minimum wage; 90,000 workers a week are losing their unemployment benefits. They can't find jobs in the Bush economy, and the President took away their unemployment benefits, too. And more than 8 million workers will lose their overtime pay because President Bush says they don't deserve it.

Majorities in both the Senate and the House agreed that the Bush administration was wrong to deny overtime protections
to workers, and by a vote in the Senate and a vote in the House of Representatives, we said to the President: You are wrong. But here it is. They took it out of this bill behind closed doors at the last minute, and now they expect Congress to accept that because the vote is on this larger bill.

We could change this bill in a minute and send it on to the President, and that is what we ought to do. We know for whom we are fighting on this issue, and we know why we are fighting-for their right to keep the overtime pay they deserve.

We are fighting for the nurse who burns the midnight oil day in and day out caring for the sick and the elderly. We are fighting for the firefighters, the law enforcement officers, the first responders-the heroes of homeland security-the men and women standing watch and working night and day to protect our safety. They are our generation of Paul Reveres prepared to act when danger comes. They deserve fair pay for all they do.

We are fighting for our veterans and for our men and women serving so bravely now in Iraq and across the world who return to civilian life only to find that the training they learned in the military will now be used to deny them their right to overtime pay.

I want to point out what this proposed regulation under professional employees is all about and what it states. I will include the whole provision but included in the provision-listen to this, Mr. President-is:

The word "customary" means that exemption is also available to the employees in such professions-these will be the
people who are included in the rule and, therefore, ineligible for overtime-it says:

The exemption is also available to employees in such professions who have substantially the same knowledge level as the degreed employees-

Those are generally the 4-year degree employees to whom they are referring.
but who attained such knowledge through a combination of work experience, training in the Armed Forces-

Training in the Armed Forces. This is the first time they have included that you can be ineligible for overtime pay if you have been trained in the Armed Forces.

I say to my colleagues, what are the kinds of training they get in the Armed Forces? The Army, for example, offers new recruits a choice of over 200 occupations, each of which includes training and a listing of the civilian occupations for which training could help them find a job. This proposal would punish the veterans with loss of overtime protection precisely
because they have received the exact same training that is used as a recruitment incentive.

The military trains service members for hundreds of occupations, including lab technicians and other health care occupations, information technology, engineers, drafters, designers, air traffic controllers, communications specialists, law enforcement, firefighters, security personnel, journalists, and the list goes on.

If you go into the Armed Forces, you serve in Iraq, you come back, you have received training programs. Under these regulations, you are ineligible for overtime.

That is unconscionable. Why did they put in the service members' training programs in the Armed Forces for the first time? This is put in for the first time in changes to the rules. This is the first time in the history of overtime, going back to the Fair Labor Standards Act, that they have included this training.

I am absolutely amazed, at a time when we are asking our service men and women to do so much and while they are in Iraq and elsewhere, we are passing a regulation in this omnibus bill that is going to say when they come back that if they have been trained in any of these areas, they will be considered, under these regulations, a professional and be ineligible for overtime, after they have been risking their lives for the American people. Does that make sense? Permit us to have an up-or-down vote on that, Mr. Republican Leadership? Permit the Senate to vote on that and see what the sentiment is? Oh, no. Just tuck it into the regulation, behind closed doors; put it in there with everything else and let it become law without giving Congress a say.

I do not know what that will mean in the future if that happens because we know that the incentives-one of the reasons that many young people go into the Armed Forces is because of the various training and educational benefits. Effectively, the Bush plan would do away with the standard requirement and allow equivalent training in the Armed Forces to substitute for the 4-year degree and therefore make these veterans ineligible. These training programs, as I say, have been a primary incentive for attracting people into the Armed Forces.

Do my colleagues understand that? It says here-I am reading right from it-training in the Armed Forces, and it goes on: Comma, or other intellectual instructions, training in the Armed Forces.

So that is what would happen to thousands of those men and women who are over in Iraq and Afghanistan, scattered around the world. They come on back. This proposal goes into effect. Their employer is going to look down and say, oh, Jim, by the way, you were in a training program before you went over to Iraq and you were trained, and it says in these rules here I do not have to pay you overtime because that is right in these rules.

So we are fighting for our veterans and fighting for our men and women serving bravely now in Iraq and across the world, who return to civilian life only to find that the training they earned in the military will now be used to deny them their right to overtime pay.

Most cynical of all, the Bush administration claims that its plan would actually entitle low-income workers to qualify for overtime. The Department of Labor has distributed guidelines to employers on the steps that they can take to avoid the need to pay that overtime. Just calculate the pay an employee now gets with overtime included and then cut the employee's basic pay enough to reduce the total to what it was before.

Is there anybody who doubts what is going on? This is basically a sop to companies and corporations around the country in order to squeeze employees even further. There are more than eight million out of work. Last quarter we found employment increased by only 1,000. They expected close to 300,000. It increased by only 1,000. There are so many workers who are eligible for unemployment insurance even though they have paid in for it, 90,000 at the end of this week which will be the end of all of their unemployment compensation. Did we hear anything about that last evening? I did not.

So is that cynical or what? How redhanded do we have to catch this administration before the American people understand what is being done to them? Always it is the Bush administration putting corporate profits over the well-being of American workers. The Department of Labor's mission is to promote the welfare of the job seekers, wage earners, and retirees of the United States, and that is what it says on the Department's Web site. It does not say promote the bottom line for businesses.

The last thing American workers need in today's troubled economy is a pay cut like that. Staff Sergeant John Miller, who performs homeland security and other public safety duties in the District of Columbia National Guard, is concerned that he and many in his department will lose their overtime pay because of the Bush plan. He recently testified that eliminating overtime pay will have a devastating impact on his department's ability to perform vital public safety responsibilities. Without his overtime pay, he said his family could no longer afford their current mortgage or save for college for their two teenage children.

Thousands of veterans will lose their overtime pay as well. Under current law, workers can be denied overtime protection if they are in the category of the professional employees. In general, it is only workers with a 4-year degree in a professional field who will be classified as professional. The Bush plan will abolish this standard and allow equivalent training in the Armed Forces to be routinely substituted for a 4-year degree. How is that for a slap in the face to our courageous men and women fighting in Iraq?

Cutbacks in overtime pay are a nightmare that no worker should have to bear. Nationwide overtime pay makes up a quarter of a worker's total pay. The administration's policy will mean an average pay cut of $160 a week for every worker. That is an outrage.

Hard-working Americans deserve a pay raise, not a pay cut.

It is wrong for the administration to try to force the unfair pay cut on them. More than 2 million jobs have been lost since President Bush took office. Unemployment is a massive problem, especially in hard times such as these. Overtime pay is exactly the incentive needed for job creation, because it encourages employers to hire more workers, instead of requiring current employees to work longer hours. We need a job creation policy, but all the Bush administration proposes is a job destruction policy.

The overtime pay requirement and the Fair Labor Standards Act has been a fundamental right of American workers for more than half a century. That basic law was enacted in the 1930s to create the 40-hour week. It says workers have to be paid time and a half for extra hours. Since 1938, that has been the law.

According to the Congressional General Accounting Office, employees without overtime protection are twice as likely to work overtime as those covered by protection. Americans are working longer hours today than ever before, longer than any industrialized nation. I will show this in the following illustrations.

This chart shows that Americans work more hours than workers in any other industrialized nation in the world. The United States is right over here on this chart. We can also compare Denmark, France, Ireland, Netherlands, the UK, Italy, and Germany. This was in 2001. It is still relevant in terms of the current time. We can see workers in the United States work considerably more than any other country in the world. So they are No. 1 in the workplace.

The second chart shows that if one does not have overtime protection, this is what happens: Workers without the overtime protections are more than twice as likely to work longer hours, more than 40 hours a week without protection. Forty-four percent of workers who had no overtime protection worked more than 40 hours a week, compared to 19 percent of those with the overtime protection, well more than double. If it is more than 50 hours a week, those without overtime protection work three times longer than those who have the protection.

Who is affected by this? All one has to do is see under the recommendation of the Bush administration of the 8 million people, what are the classifications? It is very interesting. We are talking about police officers. We are talking about nurses. We are talking about firefighters. They are the backbone of the homeland security, the front line responders. The dangers we are facing from bioterrorism, who is out there first? The firefighters, policemen, and nurses. This proposal will effectively eliminate their overtime. We should not be eliminating it.

We ask them to take vaccines in a number of instances where we are unsure about what the outcomes are going to be. We do not even provide them with adequate compensation if they are going to get ill or sick as a result of it. We ask them to do all kinds of things.

Now their reward will be we will find that, under the proposal that is in this legislation, their overtime pay will be effectively eliminated.

The same department that is tasked to protect American workers and enhance the employer's workplace and enhance the opportunity for work in this country put out the proposal about how to avoid paying your employees overtime. That is courtesy of the Bush Department of Labor.

There it is. They just spell it out for us. The Department of Labor spells out how the employer can circumvent paying any kind of overtime if they are doing it even today, and gives every employer who wants to the way in which they can undermine it.

Congress cannot stay silent and roll over while more and more Americans lose their jobs, their livelihoods, their homes, their dignity, and their hope. We will be fighting other battles in this session, battles to restore jobs, guarantee fair unemployment benefits, raise the minimum wage. The place to start is here. Let's at least not allow the Bush administration to take the country backwards on this fundamental issue, the right to overtime pay when workers are forced to work overtime by their employers. Let's preserve the overtime protections on which so many millions of working families across the country depend today. Why should their standard of living have to go down so employers can make higher profits by squeezing workers harder?

I would like to address one other issue that is related to the workers of this country, and that is the issue of the unemployment compensation. The Federal extension of unemployment benefits expired December 31 and 90,000 workers a week have been running out of benefits. The economy lost 2.4 million jobs since President Bush took office and at the December rate of job growth it would take 200 years to return to prerecession jobs levels. American workers can't wait that long. Nearly 15 million Americans are out of work, including discouraged and underemployed workers, and the number of long-term unemployed remains unacceptably high at 2 million.

Historically, job loss during a recession is about 50 percent temporary and 50 percent permanent. Today, nearly 80 percent of the job loss is permanent. As a result, many of the unemployed will not return to work soon.

Today, there is only one job opening for every three out-of-work Americans. The Republican leadership continues to paint a rosy picture of the economy while ignoring these workers. House majority leader TOM DELAY has said he sees "no reason" to extend unemployment benefits and the Bush administration has been silent on the issue. Democratic Senators have asked for unanimous consent to take up and pass a Federal unemployment extension more than a dozen times. Each time the Republicans say no.

The program was enacted in March 2002 and extended in January 2003 and May 2003. It provided 13 weeks of unemployment benefits in most States, and 26 weeks in high unemployment States. Today, due to the criteria used to define high unemployment, only one state qualifies as a high unemployment State, Alaska, despite continuing unemployment in many other States.

The bill would reinstitute and extend the Federal Unemployment Insurance Program for 6 months, and ensure that high unemployment States continue to be covered.

I see my friend and colleague on the other side. I have just mentioned to the Senate we are now at the point where we are losing 90,000 workers a week, those who are losing coverage on unemployment. We still have some 15 million Americans out of work, including the discouraged and underemployed workers. And the number of long-term unemployed remains unacceptably high-nearly 2 million.

Historically, as I mentioned, the job loss during a recession is about 50 percent temporary and 50 percent permanent. Today it is 80 percent permanent. These are real people with real needs-families, mortgages to pay, food to put on the table. If we are going to have an expanding economy, it should not be done at the expense of one sector of our economy. It should be a tide that raises all the boats. There is no question that Wall Street is doing well. There is no question that a number of our companies are having extraordinary profits.

But we have these two issues, one denying the 8 million Americans the overtime, including veterans. And now we have a proposal to permit the extension of the unemployment compensation for those who have paid into the program and who are in dire need.

I ask unanimous consent the Senate proceed to the immediate consideration of S. 2006, a bill to extend unemployment benefits for 6 months, which I introduced yesterday; that the bill be read a third time, passed, the motion to reconsider be
laid on the table, and any statements appear in the RECORD as though read.

The PRESIDING OFFICER. Is there objection?

Mr. NICKLES. Reserving the right to object, I need to find out what the request is. Unfortunately, I tell my friend and colleague from Massachusetts, the Senate has been in for a day, but I have not read his bill. I understand he introduced it yesterday. He wants to pass it today. Senator Kennedy is a very effective legislator, but I personally have not had a chance to read the bill.

Will the Senator tell me what the essence of his bill is? Is it a program to double unemployment compensation extension to 26 weeks? Or extend the present program to 13 weeks?

Mr. KENNEDY. I say to the Senator, it is essentially the same plan we passed before. The bill will reinstate the insurance program for 6 months, ensure that higher unemployment States continue to be covered-13 weeks; 13 weeks. It is the narrower program.

Mr. NICKLES. I appreciate the clarification.

Mr. President, I object.

The PRESIDING OFFICER. Objection is heard.

Mr. NICKLES. Mr. President, two or three comments. Senator Kennedy is my friend. We debated this issue a couple of times.

In the past many months, I guess for the last year and a half, there has been an effort to turn a 13-week program into a 26-week program. I have objected to that very strongly and will continue to object to it very strongly.

As I understand Senator Kennedy's explanation, this is an extension of the existing Federal unemployment compensation program which is scheduled to expire by the end of March of this year. But I would like to point out a couple of reasons why I object.

I will be happy to work with my friend and colleague from Massachusetts to maybe learn in greater detail of his proposal, but just a couple of editorial comments. No. 1, the unemployment rate is coming down. It is at 5.7 percent. In 1993, at the conclusion of a significant downturn and recession in the economy, the Democrats were in control of the Senate and they had a Temporary Federal Unemployment Compensation Extension Program. The unemployment rates at that time were between 6.6 and 7.7 percent. In other words, they discontinued the program when the unemployment rate was at 6.6. The unemployment rate today is 5.7.

I might mention the title of this program has been Temporary Federal Unemployment Compensation. It was temporary. I note today there are 26 States, over half of States have unemployment rates of less than 5 percent.

To have a national program for every State, which is very expensive, I am not sure is timely.

That is the reason we should have a chance to review this. Without having a chance to find out what the cost of it is, from what I have gathered and learned over the years, I object.

We have already spent, for the information of my colleagues, over the last 36 months I think something like $30 billion. It is not an inexpensive program.

I might note that in the 1990s Congress spent $28.5 billion. That was over 30 months when the unemployment rate was much higher-6.6 to 7.7 percent.

I might also, for the information of my colleagues, note that many States have not spent the $8 billion of Federal funding that we transferred in March of 2002 for unemployment compensation. We transferred $8 billion. According to the Labor Department, there is still $5 billion remaining unspent by the States.

Those are reasons I objected to my friend's unanimous consent request. I appreciate his bringing this to the forefront of the Senate. It may not be the last we have heard of this. But this is a temporary program. I think some people would like for it to be a permanent program. This Senator does not want it to be a permanent program.

For those reasons, I objected to the request. I will be happy to work with my colleague, the Senator from Massachusetts, to see if we can't do something positive to help create an environment which is more conducive to more jobs for more Americans this year. I think we can do that in a variety of ways, one of which would be making the Tax Code more fair for the working environment. I will work with all of our colleagues to see if we can't have a more productive job-creating environment, one part of which would be to pass an energy bill.

We passed a good energy bill. I am not saying that what we had last year, which I guess is still on the calendar, was a perfect energy bill. But I believe there are thousands and thousands of jobs that could be created if we passed a positive energy bill.

I hope our colleagues will look at that and other measures maybe that would help reduce health care costs and other things that would create a more productive environment for job creation in the United States.

I yield the floor.

The PRESIDING OFFICER. The Senator from Massachusetts.

Mr. KENNEDY. Mr. President, just to respond briefly, as this chart indicates, our economy has lost 2.4 million jobs since the President took office. The job creation has been anemic. The economy created only 1,000 jobs in December. At the December rate of job growth, it would take 200 years to return to the level of jobs we had when President Bush first took office.

The reality is that the estimate of the administration was that we were going to create 300,000 jobs as a result of the tax cut. It is down to 1,000. The reason we have seen the move from 5.9 to 5.7 percent in unemployment is basically that so many people have been disillusioned. They have given up. We put this program in, which I support, at a time when unemployment was 5.7 percent, the exact same percent that it is now. But it is objected to.

It is true the plans are costly, but we know that the fund itself which the workers have paid into has nearly $20 billion. This would cost about $7 billion. That represents funds the workers have paid in for just this kind of rainy day. But no, we are being objected to.

In the early 1990s, Congress extended the unemployment benefit five times. That program did not end until the economy had more jobs than before the recession began.

This is a fair enough test, it seems to me. But when you have 90,000 Americans who have worked-these are Americans who have worked hard, played by the rules, have families, mortgages, and paid into the fund. The fund is in surplus, and we have 90,000 who are losing their coverage. This is a temporary program. It is short term-6 months, about $7 billion, with nearly $20 billion in surplus.

Workers are entitled to this kind of protection. They are entitled to a minimum wage. They work 40 hours a week 52 weeks of the year so they don't have to live in poverty. Most Americans believe that. They understand, for example, when we have the chance to increase the minimum wage that we have been blocked for 7 years. For 7 years, Republicans have blocked it. They block increasing the minimum wage. They block extending unemployment compensation. They initiate rules to eliminate overtime.

This is the record. When we talk about the minimum wage, it is obviously a women's issue because most of the people who receive the minimum wage are women. It is a children's issue because great numbers of those women have children. It is a civil rights issue because many of those who work at minimum wage are men and women of color. And it is a fairness issue.

We can't get the chance to vote on these matters. There is objection. How long did we hear last fall about, we ought to be able to vote on Medicare? Let the people vote up and down. But no, no, we can't with regard to the unemployment compensation. We can't get a vote on increasing the minimum wage. They have refused to permit this institution to have a vote again on the overtime limitations for 8 million people because there is objection. I think that is wrong.

We look forward to another opportunity to come back and address these issues in a way where hopefully we will be able to get a vote.

The PRESIDING OFFICER. The Senator from Oklahoma.

Mr. NICKLES. Mr. President, it is a pleasure to see my friend from Massachusetts again. He is feeling good. He is energetic, as he always is. He is a very effective legislator and champions the cause with great enthusiasm. I appreciate that.

I will make a couple of editorial comments.

I love the chart. He said if we went at last month's pace of 1,000 jobs being created, it would take 200 years. That was 1,000 jobs last month. Over the last 5 months, 280,000 jobs were created, according to the Department of Labor. He forgot to mention that. But for December, I think he is correct as reported by the Department of Labor.

It is kind of interesting. He also said we have to have a vote on increasing the minimum wage but those Republicans haven't allowed us to do it. He said they haven't allowed us to do it for the last several years.

I remember a period with not necessarily the greatest fondest of memories. But for almost 2 years, the Democrats were in control. Senator Daschle was the majority leader, I believe from about June of 2000 or maybe 2001 until the end of 2002. He was the majority leader of the Senate. Senator Kennedy was the chairman of the committee, and that could have been brought to the floor at any point during that time. The majority leader controlled the floor and the agenda of the Senate. It could have been offered as an amendment by any Member of the Senate, and it wasn't. I just make note of that fact.

It is interesting that it wasn't raised during that timeframe when this body was controlled by my friends on the Democratic side of the aisle. I want to just make note of that.

I don't doubt that we will have the pleasure of debating that issue. I look forward to that debate when that happens. I don't know that we want to make it against the law for anybody to work in the United States for less than $6 an hour. Some people say if they didn't make $6 an hour, they would be unemployed. I don't share that philosophy. But I guess we will have a chance to debate that. That is fine.

I yield the floor.

The PRESIDING OFFICER. The Senator from Massachusetts.

Mr. KENNEDY. Mr. President, very briefly, we will have an opportunity to debate this further. We were denied an up-and-down vote on the minimum wage just last year when the Republican leadership pulled the State Department bill from the floor rather than let us vote on the minimum wage amendment.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

However, the word "customarily" means that the exemption is also available to employees in such professions who have substantially the same knowledge level as the degreed employees, but who attained such knowledge through a combination of work experience, training in the armed forces, attending a technical school, attending a community college or other intellectual instruction.