Will Winking and Nodding Work on the New Overtime Rule?

Actors protest minimum wage hike that they say will kill small theaters in LA. March 2015

Actors protest minimum wage hike that they say will kill small theaters in LA. March 2015

New Orleans   The fallout and positioning over the doubling of the salary requirement for exemption from overtime to more than $47,000 continues unabated, and you can just feel the strain starting to burst the seams of the new rule. The complaints are just not coming from the usual crowd of corporate exploiters but also from creative and nonprofit outfits.

Publishers, magazines, editorial departments, writers’ unions, and Hollywood film operations are all saying out loud what others may be thinking, and that’s whether or not there’s a way around the new regulations. Many of them have specialized in semi-unpaid internships and a grueling diet of long hours and low pay as younger, inexperienced workers try to earn their chops in essentially work-based apprenticeships, sometimes subsidized by wealthier families and well-greased connections. If you look carefully at the masthead of some of the publications you see coming into your own homes, often you can find a listing of the current interns who come and go as regularly as widgets off the assembly line.

Much of this has just been standard operating procedure to get ahead, a way in Drake’s works of “starting at the bottom, but we’ll all here now.” A friend of my daughter’s was lucky to get a clerical job in a production studio. A cameraman for a documentary shoot, originally from Kansas City, but now in Brooklyn, told me he had been in the industry for 10 years, starting by bringing coffee, and the last 5 years with his hands on the camera. A daughter of close friends jumped around as an intern at the Boston Globe and Chicago Tribune before writing her way into a regular position as a journalist.

Nonprofits like the US Public Interest Research Group, the old Nader outfit, on the progressive side and Judicial Watch on the conservative side both raised objections about what overtime would mean to blocking their work and the responsibilities of junior staff. Both argued from their differing perspectives that this would be a problem.

And, it is. Recently I’ve had several conversations about whether it would be possible to build a Farmworkers movement or an ACORN in the future. The UFW famously paid $5 per day and room and board. ACORN for years advertised widely for organizers willing to work “long hours for low pay,” and both were true. For decades we defined the hours as being “until the work was done” be it 5 hours one day or 15 the next. When the limit was raised to $23000 plus, we raised everyone over that, which wouldn’t be possible at $47000 plus.

One Hollywooder, said he suspected there would be a lot of “winking and nodding” to try and get around the regs, but there’s risk there. For everyone that finds opportunity that way, there will eventually be someone who is disgruntled, and a quick trip to the Department of Labor Wage and Hour Division will end up as one of those situations of “pay me now or pay me later,” but either way, people will be paid.

I suspect the seam that might allow mass-based organizations to still develop lies somewhere at the nexus of informal work and self-employed, Uber-style contracting, but there’s a lot of tearing the hair and lectures from lawyers awaiting the organizations at the threshold of this brave new world before they jump into that dark and deep water. Nonetheless, I know I can’t be the only one standing at the dock trying to see the bottom and what might work.

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Please enjoy Eric Clapton’s Can’t Let You Do It. Thanks to KABF.

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