One of the most comical of the labor law idiosyncrasies that occasionally staggers into a courtroom or oak-paneled arbitration/mediation office is the matter of overtime pay and who gets it and who does not and why those who do, well, do — and why them that don’t just don’t.
The cases that involve those poor manual-labor types whose bosses fudge the timecards or simply ignore the law are simple enough — more a matter of detection and law enforcement than litigation magic.
No, the fun comes over those nit-picky nightmares that center on the weighty question of who is “professional,” who is a “manager,” and thus exempt from overtime rules — and who is mere white-collar cannon fodder, remaining eligible for overtime, just like the file clerks.
While for purposes of bragging rights, most middling white-collar munchkins consider themselves “professional,” for purposes of an overtime arbitration, they will admit with gracious humility that they are scum, deserving of overtime pay because they have no discretion, no independence, no freedom beyond the freedom to grovel before bosses who set the burdensome work schedule.
The bosses, on the other hand, will transform their contemptible, unmotivated subordinates into executive-level gods during an overtime-pay hearing, attributing executive talent and independent thinking to those who only yesterday were considered sheep-like blobs.
Public Enemy
A related matter of classification comes on matters of union representation, where law and common sense often suggest that the “boss” and related management shouldn’t be union members, because management would have an inherent conflict of interest if it was both benefiting from union representation and managing union members.
The management-cannon fodder distinction for union organizing purposes often disappears for public-sector employees, especially in a state such as Connecticut, where Democratic legislators and kangaroo-court labor relations boards are inclined to toss almost everyone into the union-eligible pool.
Local jurisdictions also labor under the burden of having all manner of school principals and other management types belonging to unions to whom “the public” is the enemy, not a customer to be served.
While most folks on both sides of the classification squabbles are clear-headed and cynical enough to smile at themselves, the public school teachers appear to remain clueless about what the union cha-cha does to their image and “professional” standing.
How often have we seen earnest and naïve teachers stand up at public budget sessions to explain how underappreciated they are, compared to other “professionals.” The problem comes, of course, from union rules that make clear to the public that teachers are no different than steel workers or coal miners.
It is the teachers’ unions that fight off merit pay, pay differentials for in-demand teacher specialties, and other accoutrements of “professional” life. Combined with tenure laws that protect teachers from dismissal for anything less onerous than a felony conviction, there is little on the table that looks like a “professional.”
An educational market that mirrored the real world would unleash creative energy and entrepreneurial spirit in a field that discourages all of it. Writing in the Financial Times newspaper last month, Suzanne Mulvehill, director of the Emotional Endurance Institute in Florida, noted that “teachers, as well as students, need to develop an entrepreneurial mindset in order to nurture the success of future entrepreneurs.”
That would be an interesting issue for school officials to discuss after school. Oops. Can’t keep the teachers after school. That would violate the union contract.
Laurence D. Cohen is a freelance writer.
