Comp or cash? Bill would allow employers to offer choices for overtime

Hank Hayes • May 11, 2013 at 8:08 PM

When employers offer workers compensatory time instead of overtime after the employees have worked more than a 40-hour work week, are the employers being flexible or knowingly engaging in cheating?

Congress is attempting to answer that question with federal legislation that pleases employer groups but has employee interests crying foul.

The GOP-controlled House last Wednesday passed the “Working Families Flexibility Act of 2013” by 19 votes; although, the legislation is not expected to get traction in the Democrat-led Senate.

The bill would amend the Fair Labor Standards Act of 1938 to authorize private employers to provide compensatory time off to private employees at a rate of one and a half hours per hour of employment when overtime compensation is required.

This option is currently available for federal, state and local government employees.

The legislation would prohibit an employee from accruing more than 160 hours of compensatory time; require an employer to provide monetary compensation, after the end of a calendar year, for any unused compensatory time; and require an employer to give employees a 30-day notice before discontinuing compensatory time off.

Major unions like the AFL-CIO are vehemently opposed to the bill.

“The Working Families Flexibility Act offers workers only an empty promise,” William Samuel, AFL-CIO director of Government Affairs, stressed in a letter sent to congressional lawmakers. “It does not assure that the decision to substitute comp time for cash overtime payments will be voluntary. While the bill nominally makes it unlawful for an employer to coerce or intimidate an employee into accepting comp time, it does nothing to prevent an employer from discriminating — in hiring or in the award of overtime — against those employees who want paid overtime compensation. ... There are no aspects of the Working Families Flexibility Act that are truly protective of employee rights. The employer is given virtually complete control over when the overtime is used.

“The AFL-CIO believes employees deserve fair wages, safe working conditions, and more flexible schedules to meet both workplace and family needs.”

The Tennessee Democratic Party (TDP) calls the legislation the “Pay Working Families Less Act.”

The bill, claimed a TDP release, has been part of the anti-working-families Republican agenda since 1997.

“In truth, the Republican record has been openly hostile to women and working families,” the TDP release added.

Small businesses represented by the National Federation of Independent Business (NFIB), however, hailed the legislation’s passing in the House.

NFIB’s position is the legislation would not affect the 40-hour workweek nor change the way overtime is calculated.

“A growing number of employees report challenges in negotiating the dual demands of work and family, and adopting workplace flexibility strategies, without additional costs, will help small employers compete with their larger counterparts as they work to recruit and retain valuable employees,” said Susan Eckerly, NFIB’s senior vice president of Federal Public Policy.

“An overwhelming majority of our membership support more flexibility in the workplace and this legislation is a family-friendly, commonsense piece of legislation that is a win-win for employers and employees.”

Both of the region’s GOP congressmen, Morgan Griffith (9th-Va.) and Phil Roe, M.D. (1st-Tenn.), voted for the bill.

“As the son of a single parent and as a parent myself, I understand the struggles of balancing personal responsibilities with professional demands,” Griffith said. “While there is certainly a need for monetary compensation, also very valuable is the flexibility to attend events like a child’s swim meet, a soccer practice, a parent-teacher conference or other special occasions. ... Importantly, this bill retains current employee protections, including methods for accruing overtime.”

Roe agreed. “I support giving workers greater flexibility in how they are compensated for work above and beyond the normal scope of their jobs. For some workers, increased pay will continue to be the preferred option, but some would find time off from work to spend with their families more valuable. This legislation gives them that choice.”

For more, visit www.thomas.loc.gov. The bill’s number is H.R. 1406.

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