Sen. Tom Harkin, D-Iowa, plans to offer an amendment to the 2004 Labor-Health and Human Services spending bill that would prevent the Labor Department's Wage and Hour Division from continuing work on the proposal.

A Senate vote could come as early as tomorrow or Thursday, but Harkin said the Republican leadership might pull the bill because he has enough votes to prevail.

The Labor Department says Democrats and other critics of the proposal such as the Economic Policy Institute are wrong in characterizing its scope and effects.

Only about 644,000 workers earning above-average wages would lose overtime pay, while 1.3 million low-wage workers earning less than $425 a week would get a new guarantee of overtime eligibility, according to the Bush administration.

Depends on who's counted

One reason for the wide variance in estimates of the regulation's impact is that the Labor Department counts only the 11.6 million workers who regularly receive overtime pay, instead of all 71 million workers who are eligible but don't necessarily work more than 40 hours a week or aren't paid for it when they do.

Harkin said using the larger number is important because employers often hire another worker rather than pay overtime to existing employees. If 8 million workers lose their eligibility for overtime, many employers would force workers to put in longer hours because it would be less expensive than hiring more workers.

Both sides agree the new regulation would offer greater protection to 1.3 million low-wage workers earning less than $425 a week by guaranteeing their eligibility for overtime pay.

The administration rejects suggestions that the proposal would end overtime protections for a wide range of occupations such as licensed practical nurses, restaurant chefs, police sergeants, paramedics and paralegals. The administration says many of those workers would see new safeguards protecting their overtime and not what critics describe as an erosion of guarantees.

The claims and counterclaims are confusing to people who are caught in the middle, like John Mislowski of Oshkosh, Wis.

Mislowski, a 33-year employee of the Piggly Wiggly supermarket chain, supervises two other workers as the manager of the meat department at a store in Appleton. He earns about $100 in overtime each pay period by working a sixth day every other week.

Ross Eisenbrey, policy director and vice president of the Economic Policy Institute, said Mislowski could be classified as an administrator exempt from overtime under the proposal because it would eliminate the requirement that retail administrators must spend at least 60 percent of their time on supervisory duties.

Tammy McCutchen, administrator of the Wage and Hour Division, disagreed.

"Actually, I think we are providing him additional protection," she said, explaining that the Piggly Wiggly meat manager would be exempt from overtime only if he could be classified as an executive who supervises two or more employees. And to meet that test, the new regulation would require that the meat manager have the authority to hire and fire employees or have substantial input.

In addition, employers would still have to honor hourly pay guarantees in union contracts covering workers such as Mislowski, who belongs to the United Food and Commercial Workers Union.

Different eligibility tests

What makes the debate so confusing for many is that workers like Mislowski are subject to several possible tests under the proposed rule — one for white-collar employees making $65,000, another for executives, and yet another for administrative workers.

Other occupations also have a test for defining a professional. A worker who passes one of the tests could be deemed exempt from overtime.

Leading business groups support the change because they say the current regulation is outdated and vague.

Randy Johnson of the U.S. Chamber of Commerce noted that the U.S. General Accounting Office, the investigative arm of Congress, urged the Labor Department to update the regulations in 1999.

"From our members, the pressure has come from member companies who have $70,000 to $80,000 employees who are suing for overtime — like loan officers," said Johnson, the chamber's vice president for labor, immigration and employee benefit issues. "The reason we are in the game: We have companies that think their high-end employees would be eligible under the law because of the vagaries of the law."

Lee Culpepper, senior vice president for government affairs at the National Restaurant Association, explained: "We think you need to have a bright line test for who qualifies for overtime and who doesn't."