"When the strongest nation in the world can be tied down for four years in a war in Vietnam with no end in sight, when the richest nation in the world cannot manage its economy, when the nation with the greatest tradition of the rule of war is plagued by unprecedented racial violence, when the President of the United States cannot travel abroad, or to any major city at home, then its time for new leadership for the United States."
-- President Nixon, 1968 RNC Acceptance Speech

"The speech-makers kept saying "we did not seek this war," and that it was imposed on us, and by God we were going to keep hitting back. That is, the rhetoric was that of righteous anger, of the avenging victim. While this argument works with regard to Afghanistan (which the US did not invade, only providing air cover to an indigenous group. the Northern Alliance), it is hollow with regard to Iraq. Only by confusing the "war on terror" with the war on Iraq could this rhetoric be even somewhat meaningful, and it is not a valid conflation.

"No American president has more desperately sought out a war with any country than George W. Bush sought out this war with Iraq. Only Polk's war on Mexico, also based on false pretexts, even comes close to the degree of crafty manipulation employed by Bush and Cheney to get up the Iraq war. Intelligence about weapons of mass destruction was deliberately and vastly exaggerated, producing a "nuclear threat" where there wasn't even so much as a single gamma ray to be registered. Innuendo and repetition were cleverly used to tie Saddam to Usama Bin Laden operationally, a link that all serious intelligence professionals deny.
-- Juan Cole, at www.juancole.com

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 Monterey.

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.

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.

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 private contractors?

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 policy.

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.

"...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."
--Mark Morford--

SOURCE: http://sfgate.com/cgi- bin/article.cgif=/g/a/2004/08/27/notes082704.DTL&nl=fix

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 whatever.

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.

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 groceries.

When he walked by I had the temerity to utter, "A vote for Nader is a vote for Bush."

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 thereof.)

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 consideration?

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 truthful.

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 lies.

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 policy.

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 integrity.

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 .com/media/liars_inc/swiftboat.htm.

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.

We heard the opinions loud and clear. The soundbites from the 2 sides 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 criteria.

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 manipulated.

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 Institute (EPI.)

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 discrepancy.

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 educational requirement.”

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 reasoning process:

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.

From EPI:

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 supervisory.

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.

From Heritage:

“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.’”[31] 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.[32]

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 establishment.

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, namely

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.

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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SOURCES:

1. epi source

2. heritage source

3. overtime regulations

4. article in money magazine

5. CONSUMER PRICE INDEX SINCE 1913