Overtime Rules, Zika Virus the Focus of Legislative Day

Against a backdrop of critical March 15 presidential primaries, NPMA Legislative Day attendees met with Congressional representatives to raise awareness of three issues impacting them: the Department of Labor’s (DOL) proposed overtime rules; NPDES permits; and the role the industry plays combating Zika virus.

This year’s Legislative Day, lead-sponsored by FMC, was unique because of the circumstances surrounding it. On March 15, five states held both Republican and Democratic primary elections with several hundred delegates up for grabs. Florida and Ohio were considered the two big prizes of the night, as each state awarded all of its delegates to the statewide winner. If Republican frontrunner Donald Trump had captured both Ohio and Florida, he would have secured the approximately 60 percent of delegates needed to officially be the nominee. (As it turned out, Ohio Gov. John Kasich won Ohio, while Trump took Florida, meaning that at press time Trump needs to win roughly 60 percent of the remaining delegates to clinch it.)

PROPOSED OT RULE CHANGES. Why is the presidential election important to PCOs? Take, for example, the centerpiece issue of Legislative Day: The pest control industry’s opposition to the Department of Labor’s proposed overtime rule. The proposed rule would raise the minimum threshold to approximately $50,440 annually ($970 per week) in 2016. The final rule is anticipated to be released in summer 2016. With that timing occurring just before President Obama leaves office, it is an issue that has the potential to become highly politicized.

As background, in summer 2015, DOL proposed new overtime (OT) regulations in response to a 2014 directive by Obama to update OT rules under the federal Fair Labor Standards Act (FLSA). FLSA guarantees overtime pay at a rate of one and one-half the employee’s regular rate of pay for hours worked in excess of 40 in a workweek. The current FLSA has a salary threshold of $23,660 annually ($455 per week), meaning ANY employee making less is eligible for overtime. Employees making more than the $23,660 annual threshold are eligible for overtime unless they fall under a specific industry exemption (teachers, doctors, lawyers) or the “white collar exemption,” which includes executive, administrative, professional, outside sales and computer employees.

The DOL proposed rule would raise the minimum threshold to approximately $50,440 annually ($970 per week) in 2016. This new proposed level is equal to the 40th percentile of weekly earnings for full-time salaried workers. The threshold will be indexed to maintain the salary threshold at the 40th percentile. The DOL estimated that approximately 4.6 million employees that are currently exempt based on the $23,660 threshold, will become eligible for overtime under the $50,440 threshold. The rule does not propose changes to the current exemptions, including the “white collar exemption,” and the duties test used to determine the “white collar exemptions.”

The rule does invite comment on these exemptions specifically, which raises concerns that the exemptions could be changed in the final rule. In September 2015 the public comment period for the DOL proposed rule closed, despite requests to extend the comment period.

NPMA’s position on this proposed rule is that while the pest management industry acknowledges the importance of implementing proper compensation mechanisms to protect employees, the proposed rule will result in pest management companies having to convert from a salary-based model to an hourly model out of necessity. This conversion inhibits employee job flexibility, earning opportunities, career growth and lowers morale, NPMA says.

(Update: On March 17, just two days after Legislative Day, Senators Tim Scott (R-SC) and Lamar Alexander (R-TN) and Representatives Tim Walberg (R-MI) and John Kline (R-MN) introduced the Protecting Workplace Advancement and Opportunity Act, which requires the U.S. Department of Labor to conduct a comprehensive economic analysis on the impact of mandatory overtime expansion to small businesses, nonprofits and public employers before issuing any final rule.)

NPDES PERMITS. Legislative Day attendees also encouraged members of Congress to revisit the newly finalized Clean Water Act (CWA). The original CWA, enacted in 1972, gives EPA the authority to regulate all of the waters of the U.S. (WOTUS), historically defined as “navigable” waters, including interstate waters and territorial seas. On May 27, 2015, EPA and the U.S. Army Corps of Engineers finalized the Clean Water Rule, which expanded the definition “waters of the U.S.” to include “tributaries and waters that significantly affect the chemical, physical or biological integrity of the aforementioned traditional navigable waters.”

The expanded WOTUS definition is not expected to have a significant impact on those who perform structural pest management; however, included in the final rule is language that would maintain the current status quo concerning the National Pollution Discharge Elimination System (NPDES). NPDES is a national permit program that regulates the point source discharge of pollutants and chemicals into waters of the U.S. EPA has delegated NPDES authority to the states; currently 46 of the 50 states regulate NPDES permits independent of EPA. NPMA’s position is that NPDES permits are unnecessary, redundant and a costly burden because pesticides are already reviewed and regulated under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

There are two pieces of legislation NPMA is encouraging its members to support. In the Senate, the Sensible Environmental Protection Act of 2015 (S. 1500) was accepted as an amendment to the Bipartisan Sportsman Act of 2015 (S. 659) which passed the Committee on Environmental and Public Works, and awaits a full Senate vote. In the House, the Reducing Regulatory Burdens Act of 2015 (h. 897) has been recommended by the Committee on Agriculture for a full House vote.

ZIKA VIRUS INVOLVEMENT. The pest control industry also used its Capitol Hill visits to raise awareness of the role the pest management industry plays in combating the Zika virus. Zika is an emerging mosquito-borne virus that currently has no specific medical treatment or vaccine.

NPMA is encouraging legislative and executive action to highlight the important role the pest management industry plays in preventing exposure to mosquitoes. There are 20,000 pest control companies who collectively employ more than 150,000 service technicians. Many are trained to identify and treat for mosquitoes in residential backyards, subdivisions, commercial properties and other public and private settings.

In addition to Capitol Hill visits, Legislative Day included sessions on pesticide issues (e.g., pesticide re-registration and fumigation updates) and business issues (e.g., labor issues). Attendees also were treated to presentations from Washington pundits. For the Monday luncheon, sponsored by FMC, Paul Begala paired off with former White House Press Secretary Ari Fleischer to offer perspectives on the 2016 Presidential campaign. Political analyst Nicolle Wallace reviewed why partisanship can be good, in a speech sponsored by Dow AgroSciences, and political commentator SE Cupp gave her thoughts on the presidential race, in a session sponsored by Control Solutions Inc. MGK hosted the “Headquarters on the Hill” luncheon event at the Rayburn House Office Building, a congressional office building for the U.S. House of Representatives.

The author is Internet editor and managing editor of PCT and can be contacted via email at bharbison@gie.net.