Working Families Flexibility Act: Friendly or Foe?

Trade Overtime Pay For Time Off?

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By Douglas Word, THELAW.TV

Last week the U.S. House of Representatives passed H.R. 1406, the Working Families Flexibility Act by a vote of 223-204. Republicans argued that it would give families more flexibility in the workplace, while Democrats largely opposed it on the grounds that hourly workers would lose precious overtime pay.

If enacted, the bill would amend a 75-year-old law, the Fair Labor Standards Act of 1938 (FLSA), in favor of giving private sector employees who earn hourly wages the option to take comp-time instead of time-and-a-half overtime pay. Public sector employees, the GOP argued, are already afforded this opportunity thanks to a 1985 amendment to the FLSA.

The bill was sponsored by Rep. Martha Roby (R-Ala.), and she applauded its passage.

"I am proud to champion the Working Families Flexibility Act on behalf of working moms and dads across the country," said Roby. "Our message to the American people is this: We want to get Washington out of the way of how you use your time.

"Talk to just about any working mom and dad and they'll tell you they need more time. They need just one more hour in the day to be able to take care of responsibilities and make life work. We can't legislate another hour in the day, but we can help working Americans better balance their time by removing unnecessary federal restrictions on comp time in the private sector."

To become eligible for comp time, an employee must have worked 1,000 hours continuously for his or her employer in the one-year period before entering into the agreement between the two parties. Also, an employee cannot accrue more than 160 hours of comp time and loses the right to earn overtime pay for each hour of time taken off from work.

If the employee does not take the comp time afforded, the employer must provide monetary compensation for the additional hours worked and time accrued. In addition, the employee has the right under the act to withdraw from the agreement at any time. In this case, the employer must provide that compensation within 30 days.

Vicki Shabo is the Director of Work and Family Programs of the non-partisan National Partnership for Women and Families. Her organization is staunchly opposed to H.R. 1406 and sees it as a wolf dressed in sheep's clothing.

"We see this as a very dangerous proposal that pretends to be something that will help working families," said Shabo. "It will take money out of worker's pockets for overtime pay that they otherwise would have received in wages and instead replace it with possibly an empty promise or a mirage of time that's out in front of them that they may never be able to take."

The bill provides safeguards against employer intimidation, threats and coercion pertaining to the employee's desire to request compensatory time off or an employer requiring a worker to request the time off in lieu of monetary compensation.

Steny Hoyer (D-Md.), the House Minority Whip, also opposed this legislation on the grounds that workers might never see the benefits of the compensatory time off.

"Yes, there will be those who will volunteer who can afford to do comp time," said Hoyer. "Others will not be. So they will not be able to earn overtime, because the employer will invariably – not because they are bad people, but will invariably – go to the person that will in fact do it for free. I understand its comp time, but they won't get paid.

"Most workers at this level need the pay. They need to pay their mortgage. They need to pay their car payment. They need to send their kids to school. It would of course be cheaper to run a business if we didn't pay people at all, but it wouldn't be America."

Shabo says the bill leaves, "a lot of discretion to the employer as to when and even if to approve the request of a worker to take the time that they've already earned by working extra hours."

"Essentially, I could ask for the time off to see my daughter through surgery, take my daughter to outpatient surgery on Thursday, and my employer could say, ‘No, I'll let you have time off on Friday, but I really can't let you go on Thursday, because that will unduly disrupt the operation,'" she said. "Or the employer could say, ‘No, I'm sorry, this is a really bad week. I can't let you go this week. Sorry about your daughter, but good luck to her.'"

The U.S. Senate is unlikely to take the bill up, and the White House has promised a veto were it ever to reach the president's desk. Shabo said there are several other measures that Congress should work toward to help working families.

"What workers really need are proposals like the Healthy Families Act, which would allow workers to earn paid sick days that they could use to take care of themselves or a family member who is ill," said Shabo. "They need paid family and medical leave expanding on the 1993 FMLA, which has been tremendously successful in helping men and women manage the dual demands of work and family.

"Workers need higher wages. Raise the minimum wage to bring it up to historic levels. Women need fair pay, so that as they are contributing to their family's income their wages aren't unnecessarily depressed because of gender discrimination."

Shabo said Congress could adopt a number of these commonsense proposals that have broad public support, some of which have enjoyed past support from both parties.

"The Senate could do any of those things," she said. "The Paycheck Fairness Act has passed the House before. It currently has the support of every single member of the Democratic caucus. All of these policies have overwhelming support among the public across party lines. These are unnecessarily partisan issues in Congress. Real people understand, whether you are Democrat or Republican, you get sick, you have family needs, and you need public policies in place to help you and your family have greater opportunities and greater security."

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