Loyalty without truth
is a trail to tyranny.
|Wednesday, 1 September 2004 at 7h 14m 38s|
Another Chronicle Moment
Every now and then I'll pick up the local rag out here in liberal land, the San
Francisco Chronicle. Occassionally there is an insightful piece, and there are
a few good reporters on the staff, but for the most part the "comical" is just
another down-sized newspaper owned by the Hearst Corporation, with ill-informed
self-important hack writers and a lot of slush reporting that reeks of the
worldview of corporate executive bean-counters, cheerleaders of the impersonal
magical delusion that is the misunderstood globalism ideology.
This morning was no different. I have since learned to avoid the editorial
opinion page because it makes my stomach hurt to read what is presented as
factual, or how insidious arrogant banter can be congruent to thoughtful reason.
So today there was this opinion from some naval insider expert who actually
thought that the greatest accounting scandal was .... take a guess? Nope, not
Enron. Nope the greatest accounting scandal was the WMD accounting by the
Saddam regime. Yep, this fool was making muck about how Saddam's minions would
make 40,000 tons of Sarin and write down 50,000 on the books, or vice versa.
He titles his piece "An accounting scandal that could dwarf Enron ."
And that was the gist of the opinion. No mention was made of how the stocks of
the mythical Sarin gas were destroyed in the 1990's by international
inspectors. No mention was made of how the Reagan administration sold Hussein
the original stockpile of bio-chemical weapons, with Rumsfeld as the man who
made the deals.
The navy fool who presumed he was cute and smart, was deceptive beyond belief.
He mentioned how David Kay signed some document saying that Saddam needed to
get rid of these WMD monsters ... but said not one word, NOT ONE
DAMN WORD, about how the same David Kay returned from Iraq in January 2004 to
resign and testify before Congress that not only were there NO WEAPONS OF MASS
DESTRUCTION, but that he had serious concerns that the credibility of the Bush
administration was a matter of grave concern.
Although he has since mended fences with the Bush administration, David Kay did
have a genuine crisis of conscience and decided the truth was more important.
But not this hack Naval expert named Douglas A. Borer, an associate professor
in the Department of Defense Analysis at the Naval Postgraduate School in
Wowwie-zowwie, an associate professor, really.
Here's a moment of lucidity offered by this Borer fellow:
Hussein swore on a stack of Korans no weapons or programs existed, but
virtually every intelligence analyst on the planet did not believe him, because
the books did not balance. David Kay and Richard Butler, both former U. N.
chief weapons inspectors, have testified that official Iraqi records seized in
the 1990s clearly showed significant quantities of various chemical agents that
Iraq had produced, but did not turn over for destruction.
Virtually every intelligence analyst on the planet did what? Why is Borer not
mentioning Hans Blix or Scott Ritter, who have been consistently vociferous
that the 1990's inspectors effectively eliminated the stockpiles provided by
the Reagan administration.
Bush agreed with the intelligence experts -- one side of the deadly ledger did
not match the other. These ledgers served as the most compelling evidence that
the president pointed to in making his case for war.
And despite the artful comments about swearing on the Koran, even according to
the same David Kay, there were no Weapons of Mass Destruction in Iraq, swearing
or not. And in the 2000 election, GW Bush didn't swear on a bible when he said
he didn't believe in nation building, but what do you call it when you invade a
nation, appoint their leaders and write their new constitution?
And those mythical mobile trailers that Colin Powell mentioned? And the
yellowcake Uranium that never was? And the aluminum tubes that were supposed
to be for centrifuges, except that oops, they were actually not anywhere near
thick enough. And all of the statements of certainty about WMD made by
Rumsfeld and Wolfowitz and Cheney...
But hey, since one side of the deadly ledger did not match the other, Bush went
to war on a shoestring, ignoring the advice of his generals, paying top
dollar for the lies of Ahmed Chalabi and the skimmed profits for the intricate
webs of insider Halliburton consultants and sub-contractors. And
the "compelling evidence" all came from the Office of Special Plans created by
Rumsfeld and headed by Douglas Feith, where all intelligence was routed and
doctored first, and spiced up or ignored the reports to suit what they intended
to on day one.
Mr. Borer, you should apply the Enron accounting principles to the Rumsfeld
intelligence selecting principles.
|Tuesday, 31 August 2004 at 7h 2m 9s|
Who's deluded Mr. McCain
John McCain just told a captive audience that anyone who doesn't understand the
dangers out there in terrorist land is delusional?
Oh, so the administration's sloppy, arrogant ability to conduct the wars on
terror represents fearless leadership.
We are told that Mr. Bush makes unpopular decisions, that he doesn't follow the
tide. But he listens to the advice of men who doctor his intelligence
briefing, who pay Ahmed Chalabi $100,000 a month to tell them falsehoods taht
they want to hear, who have Israeli spies in their offices, who out CIA agents
trying to snuff out terrorist networks for partisan political motivations, and
who allow Pakistan's military dictatorship to sell nuclear secrets on the black-
market without so much as a slap on the wrist.
Oh, Bush is so successful at this war on the big bad ambiguous "terror" that he
allowed Halliburton and corporate insiders to do whatever they wanted in Iraq,
even if that meant an inability to adequately supply the troops with food,
ammunition, and guns. In the beginning of that war, our troops had to be fed
by Italian troops, because Halliburton couldn't supply MRE's that weren't
rotten. Our troops were using AK-47's captured from Iraq because Halliburton
couldn't supply enough equipement. They skimmed the profits off first, and
bought the supplies as cheaply as possible ... and this is what the Army
commission concluded in it's own investigation.
The company which Halliburton sub-contracted to deliver the mail refused to
deliver it to the soldiers in Iraqi outposts, and forced soldiers to drive 70
miles through potential ambush territory just to pick up their mail.
And then they overcharged the military for this lame service!! Oh, and you can
bet this ineptitude certainly does wonders for morale of the soldiers. What
ever happened to the days when the military provided these services without
Did I mention sending the unprepared National Guard to Iraq when they should be
hear protecting the homeland. Did I mention dangerously overextending the
military, and ignoring the recommendations of top brass of whom every single
warning about Iraq came true.
And the Iraqi soccer team the Bush used as an example of how great his actions
have been? In a Sports Illustrated article (another bastion of liberal ideas
no doubt) every single member of the Iraqi soccer team asked Bush not to use
them for his political purposes. Every single one wanted the military out.
One member of the team had this to say: "How can Bush face his God knowing he
has killed so many?"
But you go ahead and believe Bush is a valiant, bold leader who is going to
protect us from terror. Meanwhile, you need to go back and brush up on Senator
McCarthy. He too was praised for his boldness, and his bravery. And then one
day America woke up and saw McCarthy for the drunken opportunist that he was.
Yes, he was a really a drunk, and the corporate anti-unionists used the Red
Scare to pursue their own political agendas under the guise of patriotism.
Myself, I know a phony when I see one.
There were more police in New York City keeping an eye on the peaceful
protestors, than there are military personnel in Afghanistan, which is bombing
voter registration areas and asking the American appointed president to resign.
And cutting the budget that would secure our ports and beef up local fire-
fighters and police forces is another grand example of an effective war on
terror. Keep in mind that the Administration did not even want a national
agency of airport baggage screeners because they thought it was better to allow
the same inept private firms repeat the same poor performance because they
prefer making money more than providing adequate security.
John McCain is just another vainglorious fool who sees a chance to be a
national figure, and he's so politically ambitious that he'll sell his soul to
the devil to have a chance at the Presidency.
If someone slimed my honorable war record after I was in a prison camp for 5
years, if someone belittled and insulted my family like Bush did to McCain in
2000 South Carolina, there's no way I would praise this man in public.
And what does this Republi-thug party that swore they would not use 9-11 for
partisan gains do on day one? Choose one of the many 9-11 family members to
cry on stage before a national audience.
You can call this leadership. I call it disgusting and disgraceful.
But some people will blind themselves in order to pursue their relentless
ambitions. What a shame. I used to have respect for McCain.
And I'm sorry if you fall for this bull too. You can't fight a war on terror,
with the same foreign policy that created the anger which causes people to
perform terrorist acts. They don't "hate our freedom". They hate our foreign
Would you want a nation to invade, pillage our museums, destroy our electric
grid and sewage maintance systems, promulgate a new constitution that allows
foreign companies to import Mexican labor replacements and export 100% of the
profits, and then appoint all the officials in the government? Would the
nationalism of Americans who rose up and fought be terrorists?
Think about it people.
|Tuesday, 31 August 2004 at 6h 4m 47s|
Hypocrisy at it's worst
"...isn't it hilarious how the absolute worst thing the Right has
been able to dredge up about John Kerry is that he might sort of maybe have
exaggerated some facts about his various Vietnam medals and acts of and valor
and deeds of astounding heroism, which is sort of like saying well sure you
saved 10 babies from that burning building, but jeez, you were wearing special
shoes at the time and by the way couldn't you have saved 11? Traitor! And how
hard should we guffaw while we note that, as Kerry was volunteering in Vietnam
and earning his medals and risking his life in the most volatile and ugly and
pointless and lethal and hideous war in American history unless you count Iraq,
which you really really should, Dubya was "serving" in the Air National Guard,
which we all know translates to mean "hangin' down in Tijuana slamming tequila
shooters and annoying the waitresses, all while praising Jesus that he had a
daddy who could keep him away from scary complicated violent stuff."
|Tuesday, 31 August 2004 at 5h 56m 27s|
Corporate Media Whores Unite
I'm sick of these people whining about how come Kerry didn't do this or Kerry
didn't do that. Or how come he let them put him on the defensive? Or
We have got to understand how much power the media has to present the world and
not let our opinions be influenced by the suggestive wording and visual
stimulations offer by media production. What you see on TV is all produced,
down to the sequence in which the images are presented, and the words used.
How much time spent on any one event, and what does not make the screen are all
decided by corporate executives and lawyers that you don't see.
Yes, it is that simple. The media is an octopus of multi-layered corporate
bodies, and it's gonna stay that way until we start enforcing the anti-trust
laws. If you think a story doesn't get pulled, or edited because of the
concern of some legal advisor representing the holding company and advertizers -
- then you are quite ignorant of reality.
No matter what Kerry does, media talking gossip artists would have lambasted
him, because they don't have an imaginative thought in their pompous self-
important mind. They are too busy practicing how to look and sound to spend
time educating themselves.
Had Kerry reacted as you wanted, the corporate media and their shills would
have portrayed him as out of control, and they would have edited his words and
chose poor soundbites to make Kerry seem out of touch with mainstream America.
So Kerry took the high road and let the American people see these lying
bastards for who they are. Some Americans won't see a lying bastard, and
there's nothing anyone can do to reach these people.
You might think yourself the best armchair warrior in the world, but you don't
fight a pig by jumping in the pig-sty. The pig will only blame you for the
mud, and what can you do when you are covered in mud -- nothing! The lying
whores will all gossip about Kerry's mud, while they bust out with soap and
water to clean off their pre-ordained holy-man, arming the followers with all
the necessary phrases and word bombs they need.
You see this is a religious revival, and television has became the vehicle.
Kerry has a strong inner confidence, and you don't get to see the pounding he
and Edwards are doing everyday because the media doesn't show it too you. It
took guts to come back from Vietnam and try to get the truth. It took guts to
persist in the BCCI banking investigation for 3 years when everyone was too
afraid to touch it. Yea, he voted against the Iraq funds in the second vote
because it was going to pass anyway. He voted for the funds on the first vote
because that vote would have scaled back some (not all) of the tax cuts to pay
for the funding. He voted yes on the first vote, but every single self-
proclaimed fiscally responsible Republican voted against the funds because they
preferred to pile more debt on the nation.
How many of you even knew there were two votes on the Iraq funds? How many of
you heard of BCCI? And now you expect the media to fairly present anything?
You don't see Edwards and Kerry, because they don't show you Kerry and Edwards,
except for a suggestive 10 or 15 second clip culled from an hour long event --
followed by overpayed meat-heads pontificating about the meaning of the edited
clips. This is the world in which the meat-heads live. This is the world to
which they are responding, and in that stuffy room, they give you all the
culled facts and necessary details to portray themselves as knowledgeable. They
make grandiloquent statements and pat themselves on the back as the
representatives of what they call true America. But this is like tearing out
and presenting all but 10 of the pages from a 500 page book for people who
won't bother to read the 500 page book for themselves, and then acting like
they have a firm grasp on reality while the pasty, cosmetic blush gleams off of
their shiny faces.
Do you want the shills in the corporate media to babysit your mind?
People who go see Kerry and Edwards in person are allowed to ask questions and
participate, without having to be searched for evidence of liberal
paraphrenalia or the need to sign a loyalty oath. They get to hear more than
10 seconds and talking media heads. They come away feeling that these are two
people who care about this country, who take the time to listen, and who take
time to fill their minds with information.
And when those who disagree shout out, or make statements with bull-horns, the
Secret Service does not force the local police to make arrests. Try going to a
Bush rally with a Kerry T-shirt and you are asked to leave, or forced to take
the shirt off.
Throw away the TV, get on the internet, start informing yourself, and start
talking to your neighbors instead of getting pacified by lame sitcoms that
remind you when to laugh, cry, or get scared by a digitally mastered soundtrack.
It's time to get real baby.
|Sunday, 29 August 2004 at 5h 4m 44s|
Another misinformed voter
Today I walked past a fellow with a Nader button on his shirt. His Tee-shirt
contained the words "Anti-war.com" on the front. He was carrying his
When he walked by I had the temerity to utter, "A vote for Nader is a vote for
Immediately this fellow told me that Kerry was for the war, and then told me I
should cut my hair.
I didn't see how the length of my hair was pertinent to the details of the
argument, and mentioned that I could accuse him of having short hair, so what?
And besides, look at the President on your One dollar bill -- or the writer of
the declaration of Independence whose nabob is on the US nickel. I don't think
length of hair has anything to do with an individual's integrity (or lack
He then started to tell me that Kerry was lying about his war record, which I
thought was ridiculous, since he would have gotten his information from the
corporate media that Naderites are so quick to protest. I mentioned the facts,
as they stand. Every single one of the persons that were on the same boat as
Kerry stand by Kerry. All of the military records stand by Kerry. The only
individual who was on the same boat with Kerry, the gunner Steve Gardner,
admitted when questioned thathe was not on the same boat with Kerry at the time
of Kerry's first purple heart -- which was the incident to which Mr. Gardner
claimed "first-hand knowledge." Charles Rood, an editor for 35 years at the
Chicago Tribune, was the only other lieutenant alive who was on that mission,
and he stood by Kerry's events in a recent article in the tribune, stating that
the swiftboat vets were saying things that he knows to be "untrue."
Louis Letson was not the doctor whose name was on the medical form, whose name
was Carreon. Letson says he had this medic sign his forms, but this is not
very believable since Kerry's shipmates who were with him disgustedly said
otherwise. Shrapnel in the air as a result of bullets flying is a wound that
needs to be seen by a doctor. It's only an inch to severing the Aorta artery.
Does a man have to be blown to bits and disabled in order to deserve
Thurlow and O'Neill have been caught in so many discrepancies, that anything
they say is not worth listening to. And Hannity can selectively read parts of
Kerry's diary, but it proves nothing but Hannity's willingness to carry out
character assassination. Top Secret Swiftboat missions dropping off Green
Berets in Cambodia did occur. Do you think Kerry is going to write Top Secret
information in his journal?
And so what? One can denounce 527 groups all one wants, but this 527 group was
advised by top administration lawyer Ginsberg -- who resigned, and actually
wants the public to believe that he was advising the group to make sure that
there was no coordination. And Moveon.org's advertisements are at least
When President Bush talks about Billionaires writing checks, he's talking about
his longtime Texas friend Jim Perry who wrote the checks that got the Swiftboat
group started . Moveon.org has always been a grassroots organization, whereas
the swiftboat vets were coached by the same political consultants who
smeared John McCain, signing affadavits acclaiming first-hand knowledge they
did not have. A sheet of paper that attests that someone told you something
about someone else does not hold up in a court of law. Signing an affadavit
based upon heresay is called perjury.
So this fellow immediately starts telling me how Kerry shot a teenager in a
loin-cloth in the back, and then says that Kerry was a war criminal.
Man, oh man, how ill-informed of a voter is this Naderite, who presumably wants
to toss Corporations overboard, and yet is so filled with corporate abetted
I didn't get a chance to ask him if he heard Kerry's testimony before Congress
that the Swiftboat vets selectively editted. Had he taken the time to hear (or
read) the testimony, he would have known that Kerry was merely recounting what
other vietnam veterans had told him in a Detroit meeting. He would have known
that Kerry stated he did not see or participate in the crimes he was speaking,
but did state that he did participate in Free-fire zones and search and destroy
missions, because it was part of the military mission as set forth by the
military top brass leaders. Kerry was not trying to discredit or dishonor the
soldiers. He was trying to present the facts so that there could be changes in
leadership, instead of allowing the continuation of what he thought was failed
This Naderite chose to throw these accusations out at me, while I calmly tried
to explain the facts and tell him where he could get better informed. But he
was not interested in listening and chose to stay ignorant. Instead, he
decided to get personal, and again told me I needed to cut my hair, while
walking away, thinking he had the last word.
I told him that his personal vendettas meant nothing to me, and that he
shouldn't presume to be informed just because he saw something on TV, or heard
a rumor that confirmed his preconceived ideas. Cable companies and media
conglomerates will sensationalize a story without the least bit of journalistic
So if you want to find out the facts you can go look them up for yourself.
Don't presume that you got the straight story just because you saw a few
fellows on cable television with deep roots to a Republican smear campaign.
You can go to http://www.salon.com and
search for "swiftboat vets."
Or you can go read a large compendium that refutes the lies sponsored by
friends of the Bush administration at http://www.eriposte
I have written a tome on this topic, because I do research when I find myself
to be ill-informed. If you want to read what I said you can go to the Voice
of the People section, or read a text document I wrote here.
|Sunday, 29 August 2004 at 18h 59m 16s|
And they said these regulations would help clarify
We heard the opinions loud and clear. The soundbites from the
were right there for the citizens to hear. The Labor Department said the new
rules will strengthen overtime rights for 6.7 million American workers,
including 1.3 million low-wage workers who were denied overtime under the old
rules. The AFL-CIO, says the rules will bar 6 million workers from getting time
and a half.
Accordingly, the rules were said to be in need of clarification because they
were 50 years old, which is true. The old rules were causing workers to sue
large corporations like Walmart and Home Depot.
But did anyone bother to tell you what words were in the new regulations? Did
anyone bother to explain to you what was changed?
Enacted in 1938, the Fair Labor Standards Act, or FLSA, set the framework of
the 40-hour work week and guaranteed the right to time-and-a-half pay.
These regulations center around exemptions and non-exemptions to overtime
regulations. To be exempt from overtime, a worker must meet three legal
First, only workers who are paid a salary qualify for the exemptions. Workers
who are paid wages still qualify for overtime. A salaried employee, however,
must meet the 2 other criteria.
The second criteria is the worker must be paid a minimum salary of $455 a week,
or $23,660 a year. The new regulations upgraded this minimum from a salary of
$155 a week, or $8,060 a year; so in a sense this is an upgrade since 1938.
I looked up the Consumer Price Index(CPI)from the U.S. dept. of Labor's bureau
of Labor Statistics to see how fair the upgrade was. With 1983-84 = 100, the
index sets 1937 at 14.4 and 2004 at 184. To be fair, the same percent of
increase should apply. So, mathematically, this means 23,660 - 8,060 divided
by 8,060 should be roughly equal to the CPI 184 - 14.4 divided by 14.4. The
salary minimum percent of increase is 193.54%. The CPI index percent of
increase is 1177.77%.
The upgrade is almost 1/10th the increase of the Consumer Price Index. In
order to match the same percent of increase, the minimum salary should have
been upgraded by 1177.77%, which would have been $94,928.26 a year.
If the worker meets the first 2 criteria (a paid salary greater than $23,660
per year) the worker has one last criteria that must be met in order for an
employer to legally enable an employee exempt from overtime regulations. This
third criteria is also the most ambiguous, and the most contentious.
Called the "duties" test, the regulation tries to establish eligibility based
on the type of work an employee performs every day. Under federal law, a worker
whose job is deemed "administrative," "professional" or "executive" in nature
does not qualify for overtime.
But what type of labor exactly qualifies as "administrative," "professional"
or "executive" in nature? This is the stated purpose of the new regulations,
and the major issue at stake, the one issue that has caused the numerous
lawsuits pitting employees against employers, because they feel they are being
Now White-collar employees who earn more than $100,000 a year are automatically
exempt from overtime pay under the new law, regardless of whether they meet the
duties described in the third criteria. Based on the percent of increase
calculation described above, this minimum is fair. But all workers who fall in
between the minimum of $23,660 and the maximum of $100,000 will be affected by
the legalese that defines this third criteria.
I read 2 reports because I wanted to get to some understanding of what is in
the labor regulations. The regulations themselves, as with any changes in the
Federal Codes, are very lengthy (15,000 pages) and very difficult to read.
Legislators and interested parties commission organizations to study the
regulations, and give their legal opinions. One of the reports I read online
was from the Heritage foundation. The other was from the Economic Policy
The Heritage foundation disagreed with the EPI report, but did not really give
a convincing assertion that the legal language would not result in further
ambiguity. The Heritage research justified its assessment by stating that the
regulations are merely codifying current case law, but did not really alleviate
concerns that the language which redefined the third criteria could be used by
employers to unfairly classify workers.
For instance, in order for a worker to be classified as a supervisor, the old
regulations codified that "the" primary duties must consist of hiring and
firing of employees, and defines primary as "50% of the time." The new
regulations changed the word "the" to "a" primary duty, decided that a working
supervisor must only "influence" hiring and firing, and deleted the rule of
thumb clause "50%" definition.
Heritage contends that this new regulation is "more restrictive," whereas the
EPI report sees this as a loophole that could enable employers to label a small
part of an employee's job the “primary duty.” How a more restrictive standard
occurs by deleting a clause which stated that primary meant 50% is beyond my
ability to understand, and the Heritage report does not explain this
The previous regulations permitted employers to deny overtime protection to a
highly skilled and experienced employee who do not have the advanced degree
generally required to qualify as a learned professional. The new regulations
allow employers to substitute work experience “for all or part of the
The Heritage foundation believes the addition of a “creative” exemption only
codifies and consolidates current case law on the subject. The analysis then
goes on to state that even if some sous chefs did lose their non-exempt status,
the numbers would not be nearly as high as the EPI report contends. However,
the Heritage study does not quantify numerically what it means by "not nearly
as high" even while conceding that some sous chefs will lose their non-exempt
status. The Heritage report also presents what it feels is a refutation of the
EPI's notion of the changes, namely that
the new “hire and fire” duties or “recommendations … given
particular weight” requirement added to the executive duties test make it more
difficult to classify these employees as exempt executives.
But how can the phrase "given particular weight" make it more difficult than
the 50% rule of thumb clause? To me, it seems that merely asking an employees
opinion could constitute "particular weight."
The Heritage study states that the rules governing the work experience for
professional are "essentially identical," which is not the same notion as
identical. However, the language used by the Heritage study is quite specious
and ridiculously accusative. Heritage states that EPI suggests 900,000 sous
chefs would lose non-exempt status, and claims that EPI does not explain how
they arrived at that number.
But the EPI report does provide a sufficient explanation, so you have to wonder
at the credulity of the Heritage foundation's ability to read a report.
Here's what the EPI wrote:
There are about 2.4 million cooks and chefs in the United States, about 60% of
whom are fast food cooks, institution and cafeteria cooks, or short order
cooks, and are unlikely to be exempted, whatever their skills might be. The
other 850,000 chefs, head cooks, and restaurant cooks are fair game for the
three exemptions, depending on their skills and creativity – and the creativity
of their employers.
As you can see, the Heritage foundation has rounded up the EPI number to
900,000. The EPI report is also merely stating that the potential exemptions
do apply to 850,000 employees. These numbers are also provided by the
Department of Labor.
Furthermore, the EPI report thoroughly explains the three exemptions mentioned
in it's above reasoning. Under the old regulations,
"chefs, sous chefs, and other cooks can be found exempt and denied
overtime pay only if they manage a kitchen, supervise, hire and fire other
employees, and have executive duties as their primary duty. They are not,
however, learned professionals, because cooking is not a learned profession (it
is not “a field of science or learning” and does not involve “work that is
primarily intellectual in nature”), and most chefs learn through on-the-job
training and apprenticeship, not formal education at a college or school of
culinary arts....Now that the Department has created the “learned profession”
of being a chef or cook with a four-year culinary arts degree, 541.301(d) of
the final rule permits employers to deny overtime pay to any of the hundreds of
thousands of chefs or cooks who have “substantially the same knowledge level
and perform substantially the same work as the degreed employees, but who
attained the advanced knowledge through a combination of work experience and
intellectual instruction....The new creative professional exemption legalizes
the denial of overtime to non-degreed chefs who do not have executive duties,
effectively catching any chef the other exemptions missed, since every chef
creates unique new recipes "
Now read what the Heritage foundation considers a critique of the above
Chefs and Sous Chefs. EPI argues that 130,000 chefs, sous
chefs, and cooks will be exempted under the new rules. Once again, EPI fails to
consider the effects of the current rules and new rules. The addition of
a “creative” exemption only codifies and consolidates current case law on the
subject. In fact, DOL takes great pains to delineate the currently exempt chefs
who have culinary degrees from line cooks and other chefs whose duties
are “predominantly routine, menial, manual, mechanical, or physical work.” The
non-exempt status of these workers has been consistently upheld in court cases
and DOL Wage and Hour Division opinion letters that go back more than 20 years.
Given the regulatory language in the rules, even if some sous chefs did lose
their non-exempt status, the number would be nowhere near the 130,000 figure
claimed by EPI.
Another issue concerns what are referred to as "team leaders." EPI
states that “Section 541.203(c) exempts ‘an employee who leads a team of
other employees assigned to complete major projects for the employer,'” and
then mentions that the term “major projects” is vague and could be interpreted
to mean a variety of things.
EPI offers the statement of an MIT professor, thereby indicating an effort to
have a learned outside opinion. The closest Heritage gets to appealling to an
outside opinion is the often vague reference to unstated court cases and what
it refers to as legal precedence, completing ignoring the very real tactics by
corporate lawyers to pursue cases before friendly judges with the intention of
getting legal precidence. The whole point of clarifying and writing
regulations is to cease ambiguous interpretations which go against the
intentions of the laws.
EPI provides the reader with a specific name and reference.
According to an expert in the field,Professor Thomas Kochan of the MIT Sloan
School of Management, there are somewhere between 750,000 and 2.3 million
currently non-exempt team leaders who could lose their right to overtime
because of this new exemption. It appears that the management of a team would
transform a manual laborer or other blue-collar employee into a “management
blue-collar employee,” leading to exemption and loss of overtime pay.
Heritage says that the regulations state such a “major project”
include “purchasing, selling, or closing all or part of the business,
negotiating a real estate transaction or collective bargaining agreement, or
designing and implementing productivity improvements.” Accordingly, Heritage
writes "The problem with this analysis is that the current regulation is less
restrictive than the proposed rule and allows employers to exempt “a wide
variety of persons” who may do little else than 'advise the management.'”
But Heritage never mentions the affect of the clause 541.203(c):Employees whose
work is “directly related” to management policies or to general business
operations include those whose work affects policy or whose responsibility it
is to carry it out.
The EPI report offers a very detailed refutation concerning how the new
regulations could affect working foremen and working supervisors. Heritage
does very little refutation, and offers a few paragraphs on what it
calls “Rules of Thumb” for Working Supervisors.
In order to present the tragic reasoning presented by the Heritage foundation,
I have to present the sections provided by each study, so that the reader will
be able to see the difference for his or her self.
Working foremen and working supervisors
The final rule turns current law on its head and eliminates the right to
overtime pay for low-level supervisors who spend the vast majority of their
time performing routine, manual, non-exempt production, as long as their most
important duty is managerial. Relying on poorly reasoned cases interpreting the
current regulations, most notably the Burger King cases from the First and
Second Circuits, the final rule completely reverses those regulations, which
set a limit of 20% on the amount of non-exempt work a supervisor can do and
still be found an exempt executive.
Section 541.115(b) of current law provides:
Clearly, the work of the same nature as that performed by the employee’s
subordinates must be counted as nonexempt work, and if the amount of such work
performed is substantial the exemption does not apply. (“Substantial” as used
in this section means more than 20 percent.”)
Section 541.115(c) of current law applies the same rule to a supervisor whose
work is different from his subordinates’:
Another type of working foreman or working supervisor who cannot be classed as
a bona fide executive is one who spends a substantial amount of time in work
which, although not performed by his subordinates, consists of ordinary
production work or other routine, recurrent, repetitive tasks which are a
regular part of his duties. Such an employee is in effect holding a dual job.
The current rule is simple common sense. An employee who spends 90% of his time
frying French fries and flipping burgers is not a bona fide executive, even if
he is simultaneously responsible for supervising the other two employees on his
shift. An employee who works on a sewing machine six or seven hours a day is
not a bona fide executive, even if he does supervise other employees.
Nevertheless, the final rule rejects common sense and adopts the position that
an employee can spend 100% of his time performing ordinary, routine,
repetitive, non-exempt production tasks and yet still be a bona fide executive
by concurrently or simultaneously performing “executive” duties such as
supervision of two other employees. New section 541.106(b) provides:
For example, an assistant manager in a retail establishment may perform work
such as serving customers, cooking food, stocking shelves, and cleaning the
establishment, but performance of such nonexempt work does not preclude the
exemption if the assistant manager’s primary duty is management. An assistant
manager can supervise employees and serve customers at the same time without
losing the exemption. An exempt employee can also simultaneously direct the
work of other employees and stock shelves.
The implications of this change in the law are far greater than the Department
admits. While claiming to conform the regulations to current case law, in fact
the Department is rejecting the better-reasoned cases and extending the worst
case law beyond retail to the rest of American industry. Burger King and the
other cases that have permitted employees to do unlimited amounts of menial
work while still being held to be exempt executives are not the law in every
judicial circuit, and they have not been extended outside of the fast food and
retail industries. New section 541.106 applies the notion of concurrent duties
to every industry, including construction, manufacturing, and other “blue
collar” work. Employees who spend the vast majority of their time doing blue-
collar, manual labor will now be subject to exemption as “bona fide executives”
as long as the employer can establish that their most important duty is
Because the Department treats this sweeping new rule as established law, its
economic analysis does not account for any loss of overtime rights or pay. One
can get a sense of how damaging this change will be, however, by examining the
Department’s estimate that 346,000 low-income “managers and administrators not
elsewhere classified” and “supervisors and proprietors of sales occupations”
will have their overtime rights restored by the new $23,660 salary test. In the
Department’s view, all of those low-income employees would otherwise qualify
as “bona fide executives” or administrators, despite their abysmal pay.
“Rules of Thumb” for Working Supervisors. EPI contends that the “rules
of thumb” that have long been used to help determine who is exempt from the
overtime rules have been removed from the new regulation, making it easier “to
reclassify supervisors as ‘executives.’” In fact, the rules of thumb are
still in use. The new regulation simply calls them what they have always been—
a “useful guide.” Court cases have consistently held that there are situations
in which managers can spend more than 50 percent of their time doing non-
managerial work and still be exempt.
A careful reading of the new duties test for executives (see Table 1) clearly
shows that the new duties test is more restrictive, thereby increasing the
overtime protections of workers who might be misclassified as executives.
EPI also complains that line supervisors, who may do both production work and
supervisory work simultaneously, may be more easily classified as exempt.
Again, EPI is guilty of a selective reading of the new regulation. The
Department of Labor’s critique of a previous EPI study states:
[T]he final rule retains the current regulatory requirement that an exempt
employee’s primary duty must be work directly related to the management or
general business operations of the employer or the employer’s customers, and
includes a provision found only in the interpretive portion of the current rule
(section 541.205(a)) clarifying that this phrase refers to activities relating
to the running or servicing of a business as distinguished from working on a
manufacturing production line or selling a product in a retail or service
Therefore, in this case, the new regulatory rules governing working supervisors
and line managers are more restrictive than the current ones. Again, the
new “hire and fire” duties or “recommendations … given particular weight”
requirement added to the executive duties test make it more difficult to
classify these employees as exempt executives.
EPI’s final contention under this section is that some 548,000 hourly
supervisors will be converted to a salary basis for the purpose of exempting
them from overtime protections. Given that the new rules are at least as
stringent as—and, in some cases, more stringent than—the current rules, it
seems unlikely that employers would rush to convert these employees.
This is the consistent pattern in the new regulations according to EPI.
Statements are made in one section, that are affected by statements made in
other sections. In casting doubt on the EPI report, the Heritage foundation
report neglects to mention the affects of these secondary statements, and
relies and awful lot on the assertion that the regulations are only codifying
current case law. The Heritage study claims that EPI is selectively reading
the regulations, when it is obvious that EPI is quite thorough. Heritage
offers no case of law, whereas EPI uses a specific case, and Heritage's own
casually ambiguous mention of case law is exposed by the EPI reports own words,
While claiming to conform the regulations to current case law, in fact the
Department is rejecting the better-reasoned cases and extending the worst case
law beyond retail to the rest of American industry. Burger King and the other
cases that have permitted employees to do unlimited amounts of menial work
while still being held to be exempt executives are not the law in every
judicial circuit, and they have not been extended outside of the fast food and
Heritage even gets the numbers the EPI uses wrong. Where does Heritage come up
with 548,000, when EPI states that "by examining the Department’s estimate that
346,000" you can get a sense of how damaging the rule changes could be.
It seems to me that the EPI report is more believable, and that the Heritage is
a pathetic attempt to "put lipstick on the pig."
This is only a brief glimpse at the enormous body of regulations. Should you
want to understand them better, I suggest you read the EPI report for yourself.
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