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Working Families Flexibility Act: Separating Fact from Fiction

Policy

A bill that will allow private-sector employers to offer  employees the choice between being paid extra for overtime hours worked or getting  paid time off  instead of cash,  allowing them greater choice and increased time flexibility in the workplace, passed out of a House Committee last week. Wisconsin 6th District Congressman Glenn Grothman said in a news release last week:

The Working Families Flexibility Act is a straightforward bill that allows private-sector employers to give hourly workers the option of either monetary compensation or additional paid time off for any overtime hours worked. Grothman is a co-sponsor of the bill.

For example, those hourly employees who work 48 hours in a week currently must take money as compensation for the eight hours of overtime they worked. This bill gives them the option to either take the money, or take eight hours of paid time off instead.

But the bill was quickly denounced by Linda Meric, National Executive Director of 9to5. Meric claimed that the bill gives all the flexibility to the employer and none to the employee:

This anti-family proposal would force workers to spend more time away from their families in exchange for possibly getting to spend time later with their families. Under this proposal, the employer, not the employee, determines when earned comp time can be used.

In other words, a low-wage working mother could be forced to work 50 hours one week during Spring Break when her children are off from school and in exchange for the overtime work get 10 hours off another week when they are back in school. This may be flexibility for the employer, but it would cost the employee extra money for childcare, less money in overtime earnings and less time with her family.

The Leadership Conference on Civil and Human Rights made similar claims:

“The Working Families Flexibility Act is misnamed – it neither supports working families nor provides flexibility. If passed, this bill would mean more overtime hours and less money for workers without any guarantee of time off when they need it. It amends the Fair Labor Standards Act (FLSA), replacing actual paid overtime with a promise of future paid leave and undermining its longstanding protections for workers. Employers would have unfettered discretion to grant that leave, while employees would have no guarantee of having that flexible time off when they request it.

A release from Representative Virginia Foxx (R-NC), chairwoman of the committee that passed the bill out, refutes critics’ claims point by point:

Myth: H.R. 1180 will result in employees working longer hours for less pay. Fact: The Working Families Flexibility Act safeguards workers’ time and wages.

 

  • Receiving paid time off or ’comp time’ for working overtime hours is completely voluntary. An employee who prefers to receive cash payment for overtime hours worked is always free to do so.
  • Employers and employees are required to complete a written comp time agreement. An employee can withdraw from this agreement at any time and receive cash wages for accrued comp time.
  • Comp time is accrued at the same rate as overtime cash wages. Employees who work more than 40 hours a week will accrue paid time off at a rate of time-and-a-half for overtime hours worked.
  • Workers can cash out their accrued comp time whenever they choose. Employers are required to provide cash wages within 30 days of receiving an employee request.

Myth: H.R. 1180 will allow employers to control when workers use their comp time. Fact: The Working Families Flexibility Act protects employees’ use of the comp time they’ve earned.

 

  • The Working Families Flexibility Act allows workers to use their comp time whenever they choose as long as they provide reasonable notice and the leave is not overly disruptive.
  • The ‘unduly disrupt’ provision included in H.R. 1180 is the same standard used today for public employees receiving comp time, which has worked well for over 30 years.
  • All existing enforcement remedies — including action by the Department of Labor — are available if a worker believes he or she has been unfairly treated.
  • The Working Families Flexibility Act will promote greater workplace flexibility for employees while protecting the business needs of employers.

Myth: H.R. 1180 will allow employers to force workers to take comp time. Fact: The Working Families Flexibility Act prohibits worker coercion.

 

  • The decision to use comp time is completely voluntary. An employee who prefers to receive cash payment for overtime hours worked is always free to do so.
  • H.R. 1180 explicitly prohibits an employer from “directly or indirectly intimidating, threatening, or coercing or attempting to intimidate, threaten, or coerce an employee” into taking or not taking comp time.
  • An employer who violates these anti-coercion provisions will be liable to the affected employee for ‘double damages,’ which includes both the amount of comp time owed and an equal amount in cash wages.
  • In addition to new provisions prohibiting coercion, H.R. 1180 ensures all existing enforcement remedies — including action by the Department of Labor — are available to workers if an employer fails to pay cash wages for overtime hours worked.

Myth: This bill is unnecessary because current law already allows for workplace flexibility. Fact: The Working Families Flexibility Act empowers workers with more options.

 

  • Under the Fair Labor Standards Act of 1938, private-sector employees may only use paid time off during the same pay period in which it is accrued. Paid time off cannot be saved by the employee for future use outside the pay period.
  • The law currently allows public-sector employees to accrue comp time to be used at their discretion so long as reasonable notice is given and the leave does not unduly disrupt the workplace.
  • H.R. 1180 provides private-sector employees with comp time benefits similar to those of public employees.

So, why would liberal groups misrepresent what the bill does? Grothman told Media Trackers in an interview last week that :

“it says something, the degree to which some members of the left, including at least one congress member who voted against the bill, don’t like American workers, and particularly women, saying ‘if I get overtime this week, I want to take eight hours off next week.’There are a lot of women out there, men too, of course…who wish they could spend more time with their families. And if the work 48 hours one week, they’d like to work 32 hours the next week, rather than get the overtime (pay) and work another 40 hours the next week.

There are people who believe, you know their mantra is, we have to have women making more money in this country and they don’t like it if some women say ‘I would prefer not to make as much money, I’d like to spend more time with my family.’ That’s basically what it boils down to with these 9to5 people.”

Grothman says it is the opponents of the bill who are trying to take the flexibility and choice away from employees.

 

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