Accuracy in Media

It’s puzzling to speculate but why are there 12 hours in a day, 5 fingers (except for the otherwise ill-fated Queen Ann Boleyn) on a hand, 60 (12 x 5 or 10 x 6) minutes in an hour, and so on, but 8 hours in a standard working day, 40 (5 x 8) in a standard working week?

History answers the days and hours riddles, nature the fingers riddle, politics the remainder. 

The Chaldeans used 12 as the basic number and are more responsible for mathematically measuring time than other Ancients whose formulae do not survive in usage.  There are theories but no proof as to the origin of 12 in that context.  The Arabs, mathematicians of the period dubbed in Europe the Christian Era (although that name isn’t politically correct among our contemporary secularists), used 10 as the basic number.  The most obvious theory is that people have 10 fingers but there are competing, mostly arithmetically esoteric, theories.  So much for historical answers.

What is the source of 8 hours?  What is the source of the notion — statutory since 1938, the Fair Labor Standards Act (“FLSA”), 29 USC, ?? 201 et seq — of overtime?

The 8-hour source was born of political compromise.  It probably also has the advantage of practicality.  Great numbers of people can work productively for 8 hours, especially with a break for a meal, while fewer can work equally productively for 10 or 12 or some other greater number of hours.

Why the typical American employee working week is not 7 days is a mixture of compassion, common sense and Judeo-Christian teaching.  Our childhood rhyme reminds us what happens when Jack has  “all work and no play.”  Why the typical working week isn’t 6, instead of 5, days is politics but it, too, manifests some common sense.

What about overtime?  Whence the concept and why?  And, doubtless because 2004 is the quadrennial year — Presidential election — any change or proposed change in overtime rules becomes an election issue.  Those candidates seeking the votes of employees, and particularly of unsophisticated employees, naturally can’t — and don’t — resist an opportunity to dump upon any opponent who approves a regulation which affects overtime.

Thus, the Democrats condemned the Republicans because pursuant to proposed Department of Labor (“DOL”) regulations (August 23, 2004) many workers — for example, some 130,000 chefs and 160,000 mortgage loan officers — supposedly no longer would have been eligible for any overtime pay.  Republicans claimed the regulations would have added some 70,000 teachers and 82,000 sales workers who had been ineligible.  Overall, the Republicans claimed 6.7 million additional people would gain the right to overtime rates or to clearer and more beneficial overtime rates while the Democrats claimed 6 million people would lose overtime-rate eligibility.  (BusinessWeek, September 6; United States Senate Republican Policy Committee Memorandum, September 9; DOL website materials,; Congressional Record,  at H6922 et seq, September 9.)  It would appear the proposed DOL regulations would have benefited more workers, in large measure because they are clearer and would reduce litigation.  By and large, it’s blue-collar and nonprofessional white-collar wages workers who are eligible for overtime pay rates, whatever the numbers.

Does the concept of overtime pay stand the test of reason?  The candidate for office must assert a resounding Yes!  The more objective answer may be a quiet but rational No.  Common sense, human experience and various studies tell us that most people work less productively after they have worked 8 hours than during those 8 hours.  Why, then, pay overtime?  Wouldn’t it be logical to pay a reduced rate, reflecting reduced productivity (assuming, of course, the individual is not forced to work overtime)?  Or, more generous toward the worker, pay at the base rate?  The answer undoubtedly varies with the person, type of work, compensation and other factors.  However, as a generalization, unquestionably more people work less productively during overtime than during base time.

Everybody has forgotten a principal — some might say, the principal — reason why the New Deal first inaugurated overtime:  To save jobs!  The Great Depression was raging in the 1930s, as it did until World War II force-rescued our economy.  Some employers were compelling employees to work what we now term overtime while many others were unemployed.  Thus, forced to pay the same worker more wages hourly when the worker worked overtime, it was calculated that many employers would not compel their employees to work beyond 8 hours daily or 40 hours weekly and would hire more people, thus reducing unemployment.  The labor unions also projected — correctly — that when better times returned more employees would be paid more money because they would work overtime hours.

A realistic and sensible society would not require any overtime differential unless the employee were compelled to work overtime.  (Extra pay for working graveyard or other unattractive shifts is a discrete issue, beyond this project.)  Let’s not anticipate the dawn of such common sense, even if this were not a Presidential election year.  Society tends to forget why laws are enacted.  Laws often take on a life of their own.  Tinker with them at your political peril.

Hold on!  It’s the quadrennial year!  No tinkering!  We must not expect the Congress to risk political peril.  What happened on September 9?  The expected, of course:  the  House  rejected  the  proposed  regulations,  22  (mostly Northern and Midwestern) Republicans joining the Democrats, 223 – 193.  On September 16 the Senate Appropriations Committee added its block, 16 – 13 (although at least the Chairman voted for jurisdictional reasons — a separate subject.)  So we never will learn whether the rejected DOL regulations would have benefited more or fewer workers (although objective analysis suggests they would have benefited more, as well as reduced litigation).

Political PR predominated:  Big Labor, in cahoots with the so-called “Trial Lawyers” (who feast upon opportunities to litigate), opposed the proposed regulations, so Congress dumped them.  Perhaps it’s not much taught in collegiate political science but my empirical experience since I was a Congressional page 57 years ago, other observation posts on and off Capitol Hill since, is that even-numbered, and especially the quadrennial, years, even more than odd-numbered years, are less for serious legislating unless it’s a handout of taxpayer money (which, of course, is the overriding and masterful Congressional talent).

Do you think there was any reference in debate to the inherent illogic in overtime — paying somebody more when he is less productive?  Or to a principal original FLSA  purpose — to provide more jobs by discouraging overtime?  Of course not.  Overtime is a “right,” a “contract,” millions depend upon it, so forth — all good political rhetoric, nothing relating to an original statutory purpose, productivity, economic sense, foreign competition.

Meantime, without attempting to rationalize how 8 instead of 10 or 12 became the magic base, we stick with 8.  Maybe over the relative objectivity of non-election years, as cheaper (and sometimes equally, or more, qualified) foreign workers compete, the politicians might phase out the overtime differential when the overtime truly is not compulsory — but let’s not bet that way.  As thousands of my overtime-deprived fellow lawyers can testify, overtime compensation is not a sine quo non of success.

Meanwhile, the Chaldeans and the classical Arabs, mathematicians of bygone ages, have departed with their secrets.

Guest columns do not necessarily reflect the views of Accuracy in Media or its staff.

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