Working Families Flexibility Act Not What It Seems

Despite its name, the Working Families Flexibility Act (H.R. 1406) is an empty promise that offers neither the flexibility nor the support that working families need. 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. In other words, the bill claims to give hourly workers more time with their families by allowing them, through an agreement with their employers, to choose paid time off as compensation for working more than 40 hours in a week.

In reality, this partisan legislation would give workers less time, less money, and less flexibility. As mentioned above, it would erode overtime protections guaranteed by the Fair Labor Standards Act and if passed, would mean a pay cut for workers without any guaranteed flexibility or time off to care for themselves or their loved ones. The bill also provides little protection for workers in cases of employer misconduct or bankruptcy.

The  so-called “flexibility” provided by this comp time bill is provided by having employees work unpaid overtime and accruing up to 160 hours of compensatory time.   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.  Qualified non-exempt employees would get 1.5 hours of time off, in lieu of pay, for each hour worked over 40 hours in a week.  This scheme clearly provides employers with a very strong incentive to increase workers’ overtime hours (which may be mandatory overtime that workers can’t refuse without risking their jobs), given that there is no immediate out of pocket cost.

No longer would the employer have to actually pay time-and-a-half for hours worked beyond 40 per week.  Instead, these hours would be banked for later use.  And who profits from the deposits to this “bank”?  Employers do, in the form of what is in reality an interest free loan provided by its employees who work over 40 hours per week.  And the dollar amounts at issue are not small.  Workers who actually do accrue 160 hours of comp time will effectively have loaned the employer one month of pay and will have no guarantee that they will be able to actually use the banked time off when they really need it.  Instead, the employer still maintains complete control over the work schedule and accrued unused overtime pay may just be deferred and paid out 13 months late (12 months plus 31 days).

“We see this as a very dangerous proposal that pretends to be something that will help working families,” according to a recent quote by Vicki Shabo, the Director of Work and Family Programs of the non-partisan National Partnership for Women and Families. “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.”

It’s important that we urge our Congressional representatives to reject H.R. 1406 and support real family friendly solutions, such as the Healthy Families Act, as well as expanded access to the Family and Medical Leave Act, paid leave, the Paycheck Fairness Act, and more.

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