Does the New Overtime Rule Really Affect Nonprofits and Organizers?

overtimeNew Orleans     Randy Shaw, the executive director of the Tenderloin Housing Clinic and its burgeoning empire, first challenged me to think about whether the new FLSA overtime guidelines would prevent any future prospects of building a farmworkers’ movement or an ACORN, both of which famously focused on building an army of volunteer and professional organizers working “long hours at low pay,” as ACORN advertised for years. The new overtime rules, long overdue, as more and more people are realizing, double the level of eligibility for overtime from a 2004-floor of a bit over $23,000 per year to the mid-$47000 range. On organizing programs that are not easily shoehorned into a 40-hour grid, such a jump seems like a huge budget buster and dream crusher. Both the US Public Interest Research Group, the Nader-created group of researchers and students, and Judicial Watch on the right had both expressed fears of the new rules impact and how it would hurt their work.

Looking into this all more carefully and going back to the basics, I remembered our many tussles with the fine men and women of the Department of Labor’s Wage and Hour Division, an understaffed and overworked group, I mean this seriously, the likes of which has few parallels in government. At different times we were able to establish organizers as discretionary employees and therefore properly salaried, which still maintains. I also remembered once on a Local 100 review shaking the investigators hand as he left, having concluded in the mid-1980s that we were not involved in sufficient interstate commerce. To make the story shorter, I finally shook myself back from my stupor and went back to the basics.

At one level, the gross expenditures to establish coverage under the Fair Labor Standards Act (FLSA) is $500,000, so a huge number of nonprofits in general and organizing efforts in specific are far under that number and face years of work to have any worries in this regard. More importantly, a DOL Wage & Hours circular dated as recently as August 2015 reminds one and all that nonprofit organizations existing for charitable, education, and similar purposes are in fact exempt from coverage of the FLSA and that this is a long settled matter in the courts as well. The circular importantly for membership-based organizations like ACORN and the original UFWOC, says that dues, gifts, donations, and the like are NOT counted at establishing the gross revenues, and in ACORN’s case those were the revenues period. Furthermore, the coverage threshold is established by commercial activity, and the DOL is clear that a nonprofit can also separate out the workers and revenue involved in any sales or commercial work so that only those workers are under the FLSA. The same separation can be done for any individual staff involved in regular interstate commerce like phone calls and travel between states.

So, why did ACORN worry about these issues for its organizers? First, ACORN was a complicated organization as any look at the more than 130 “banned by Congress” list would establish, yet we operated under one organization-wide salary and seniority schedule, so the mix-and-match would have diluted that solidarity of mission and commitment. Secondly, we were involved in hundreds of living wage fights, and the “optics” were sometimes issues, including the one legal test where we challenged the coverage in California. It was easier to raise the minimum of our scale in 2004 at the last FLSA adjustment on overtime to over the threshold and more clearly differentiate hours for non-field staff. Nonetheless, that doesn’t change the fact that we believed under the FLSA, like all other similarly situated nonprofits that we were legally exempt, and we threw in arguments over freedom of speech and association into the mix as well.

Why are the US PIRG and Judicial Watch worried? Obviously, I can’t be sure. The PIRGs contract a lot of their fundraising to a for-profit, which may have been part of their concern. Judicial Watch is a unit of other conservative operations to the best of my knowledge, so there might be issues that are not immediately obvious. For the most part though, if they were willing to take the heat, they could still cook the same way even in the new kitchen.

So in short, yes, a farmworkers movement could be built again under FLSA with the additional argument I believe still exists that all of its $5 per day and room and board were volunteers under the FLSA guidance, and an ACORN could also be organized again. The obstacles to doing so are many and mountainous, but they are not the FLSA or the new overtime rules.

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Community Organizers in Kenya Struggling with their Roles

the whole gang at COPA Kenya

the whole gang at COPA Kenya

Nairobi    A highlight whenever I’m in Nairobi is the opportunity to meet and dialogue with community organizers who are part of COPA Kenya, the Community Organization Practitioners Association of Kenya, and a unique professional association of organizers. We had what they call a “sharing” in which ACORN Kenya’s organizers, David Musungu and Sammy Ndirangu joined with the elected chair of ACORN Kenya and laid out the six year history of ACORN’s work in the Korogocho slum in Nairobi, and I briefly described the work of ACORN around the world, followed by questions from the dozen organizers who attended.

ACORN organizers, Sammy and David, prepare for COPA Kenya meeting with chair of ACORN Kenya

ACORN organizers, Sammy and David, prepare for COPA Kenya meeting with chair of ACORN Kenya,  Daniel Kairo

COPA Kenya’s roots go back more than 20 years to an equally novel training program funded by Misereor, the German Catholic Bishops fund, where Dennis Murphy and other organizers from the Philippines were brought to Kenya to train community organizers and in some cases the best of the lot were brought for further training in the Philippines. Some of the senior organizers at our meeting spoke of being in the second or fourth groups that were part of the initial trainings and through COT, the Center for Organizer Training in Kenya, generations of community organizers have continued to go through the six month initial training or the advanced training. The legacy of that experiment continues through COPA Kenya and the creation of a unique culture of organizing and the special sense in Kenya of community organizing as a profession.

Florence Juma, one of the senior community organizers

Florence Juma, one of the senior community organizers

The presentations and questions quickly underscored the uniqueness of ACORN Kenya’s work especially the fact that it was membership-based and dues driven. Several of the community organizers in attendance identified themselves as “consultants” now, working for various NGOs or the government to interact with the community. Others were engaged in programs around education or health in particular areas of the city. One said she was on the “job corner” looking for work. Another was both a consultant and working for a rural women’s empowerment group. Several were in agency work.

In the Q&A I shared the donor trends in the USA that were defunding organizational formation, leadership development, capacity building, and infrastructure and instead privileging specific tasks for campaigns and envisioning community organizations more as outreach tools than empowerment projects in their own right. I was briskly informed that in Kenya donor-driven work had led to the devolution of community organizers to little more than outreach workers and liaisons to the community for years to most organizers dissatisfaction.

In became clear in the question and answer session, as several offered examples of their work, that for some the roles of an organizer had become very confused. Several seemed to frame their work and experience as more of a mediator between government, business and the community. In a language confusion that turned out to be heated and perhaps profound, several organizers saw their roles in “prepping the target,” as including discussions with the target before an action or meeting with the community, taking the mediator role past a comfortable line for many organizers.

Everyone agreed the conversations were clarifying and helpful and parted in good spirits, but there was a lingering cloud for me. There was some confusion about the role of our elected chair and whether or not he was seen, which he expressly denied, as a community organizer successfully emerging from the community, as opposed more appropriately as a leader. The notion of developing leaders seems to have declined in importance for many now by necessity who were trapped in agency and NGO work for livelihoods. An organizer detached from an organization where accountability to members is a condition of employment and leaders are democratically elected and supported and determine an organizer’s tasks has become rarer in Kenya, and organizers are struggling with their roles and unhappy about it, which was disconcerting to me.

An organizer without an organization is a fish out of water, drowning on the shore.

debating the issues during the Q&A with the organizers -- pick best

debating the issues during the Q&A with the organizers

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