You may have heard about a new bill introduced in the U.S. Senate that would change the classification of “professionals” exempt from overtime pay requirements to include more types of I.T. workers.

The linked article discusses the wisdom of the policy and some of its potential consequences. But I’d like to talk about a few things that the commentary has overlooked on a practical level.

Suppose , hypothetically, that congress passes this bill and it is signed into law. Simply because the federal government has lifted the requirement for overtime pay for certain workers in IT does not necessarily mean that a given employer can immediately cease paying these workers their overtime wages. There are a few other hurdles that employer would have to clear, first.

Watch out for State Law

For example, http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter151/Section1A”>Massachusetts law sets out in MGL c. 151 §1A the general rule for overtime pay and a list of exempted employees. This list also includes “professional person[s],” but it doesn’t appear to include IT workers. Your state’s law may be different, and employers with employees in multiple states will have to review each state’s law on overtime before they can make any changes to payment, even if the bill were to become federal law.

So, let’s suppose the employee in question works and is paid in some state that has an exemption for IT workers. Are you ready to roll with a new wage policy that no longer provides overtime?

Watch out for Existing Employment Agreements

If the law used to be that there was an overtime requirement, then you probably got good enough advice to have that fact reflected in your employment agreement. It would be impossible to write overtime out, and attempts to do so through misclassification of employees as independent contractors often result in serious penalties.

The problem is that any employment agreement previously entered into will still be in effect after the new law is passed. It’s a very real contract, not just a handbook, and if an employer tried to renege on promised overtime pay, that would breach its agreement and it would be liable to the affected employees for the lost wages, and maybe for some penalties.

Employers may be tempted to just “update” employment agreements to reflect the new changes in the law. But this is like trying to “update” your mortgage by moving the decimal point over. It’s a contract, so you need the other party’s acceptance to change it!

And getting acceptance isn’t enough: you may also need “fresh consideration.” After all, there are probably a lot of people who would agree to losing their overtime pay rights on the condition that they not be laid off. But from a legal standpoint, there has been no change in the position of the employee—no inducement—to accept this new agreement.

In an example from Pennsylvania, when an employer tried to amend its non-competition contract with its employees, it failed to offer any new incentives like cash or promotions. When the employees sued, the courts held that no contract was ever formed because there was no consideration present to make it valid!

There is no doubt that if the proposed bill were passed, it would affect a large number of people. But maybe not immediately, and maybe not properly.

You can contact the author here, and follow @gerritbetz and @ExemplarCo on Twitter.