Before 1974, firefighters and police were required to work long hours without payment of overtime. Public safety officers were expressly excluded from protection of the Fair Labor Standards Act - the law establishing minimum wages and maximum hours of work. Carpenters, plumbers and electricians since the New Deal had been protected by the Fair Labor Standards Act ("FLSA") which required employers to pay time and one half wages for all hours worked over 40 per week. Public entities were excluded by Congress from application of the overtime provisions; thus public safety employees were not afforded benefits given to other classes of employees whose jobs were far less risky. In 1974, Congress ended this discrimination against public employees and extended minimum wage and maximum hour protection to them. This legislation was immediately challenged by the National League of Cities ("League"), which filed a federal law suit challenging the constitutionality of the 1974 amendments. The League was successful in persuading a slim majority of the U.S. Supreme Court in holding that Congress lacked the power to regulate the wages paid to public employees by the the States and their political subdivisions. In National League of Cities v. Usery, 426 U.S. 833 (1976) Justice Rehnquist wrote for a 5/4 majority, that the Commerce Clause in the U.S. Constitution did not give Congress the power to restrict the wage payment practices of the States. That is , Congress could NOT regulate wages paid by States and their subdivisions to their employees. Such a restrictive view of the U.S. Constitution had not been advanced since 1935, when the Supreme Court challenged much "New Deal" legislation.
By 1985, the composition of the Supreme Court had changed and Justice Rehnquist became a member of the minority on this issue of overtime pay for public safety officers (actually for all public employees). In Garcia v. San Antonio Metropolitan Transit Authority , 469 U.S. 428 (1985), another 5/4 opinion was issued; Usery was reversed and with Rehnquist dissenting, the U.S. Supreme Court now held that Congress through the Commerce Clause did have the power and authority to require States to pay overtime to their public employees. Since that time firefighters and police officers have enjoyed the fruits of being paid premium pay for overtime work. Indeed, under many collective bargaining agreements "CBA") overtime is made available on a seniority basis.
Most voters never thought that these benefits were at risk when they cast their vote on November 2nd. Most pundits keep spouting off about "moral issues" and "liberal" vs. "conservative" agendas. Modern American news seldom weighs the effect of federal judicial appointments on workers' rights.
Well, keep your eye on Senate debates over Supreme Court appointments. Your overtime benefits are at risk.
The United States Supreme Court using a 1996 decision invalidating a federal law regulating gambling by Indian tribes, has declared a host of federal employment laws unconstitutional vis-a-vis States. Eg. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631145 L.Ed.2d 522 (2000) and Bd. Of Trustees of the Univ. Of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (held that the ADA was unconstitutional as applied to States). In the latter two cases, the U.S. Supreme Court remarkably struck down AS UNCONSTITUTIONAL application of the Age Discrimination in Employment Act and the Americans With Disabilities Act in reference to State employees. The Court relied on the Seminole Tribe decision for expanding application of the Eleventh Amendment to the U.S. Constitution as a tool is restricting the breadth of the Commerce Clause and the power of Congress to help you out.
It only takes an old lawyer with a good memory a few seconds to see the direction that a "Bush Court" will take with reference to overtime for firefighters and police officers. President Bush is quick to use these officers in a photo opportunity as evidence of his support of your efforts but I doubt that he will fight to preserve your overtime pay. There will be a fight over the appointments made by this President to the Supreme Court; please, please, pay attention and fight for fair and highly credentialed appointees. Your future salaries are at stake.