In November, the House Education & Workforce Committee quietly passed yet another version of the so-called “Working Families Flexibility Act” out of committee with a party-line vote. But will this benevolent-sounding bill actually help workers?
Under the Fair Labor Standards Act (FLSA), our most fundamental labor protections law, most workers are entitled to overtime pay—pay at 1.5 times the rate of their typical hourly pay—for every hour they work over 40 within a week. The law includes many exceptions and special cases to determine overtime eligibility depending on the type of job, pay structure, or industry. One of these carveouts from the FLSA’s overtime protections specifically applies to public-sector jobs—say, employees of local government—who may be provided compensatory time off, or “comp time,” in lieu of overtime pay. In other words, public-sector employees who work more than 40 hours a week could earn time off for the hours they worked overtime instead of getting more pay. Private-sector workplaces, however, cannot use “comp time” for employees who might otherwise be entitled to overtime pay—and many bosses think that should change.
Here’s why the Working Families Flexibility Act (H.R. 2870/S. 1158) is a bad deal for working families:
The Working Families Flexibility Act (WFFA) would amend the FLSA to allow private-sector employers to also provide hourly workers with compensatory time off in lieu of overtime pay. Despite the bill’s generous-sounding title, the WFFA would not create any new employee rights or give workers more genuine flexibility. Instead, it takes away workers’ right to earn pay at a rate of time and a half when they work more than 40 hours a week.
The WFFA does create a new employer right—the right to delay paying any wages for overtime work—and imposes a new burden for workers: having to ask for a payout of their overtime pay. The legislation forces workers to compromise their paychecks for the possibility of time off in the future—but does not guarantee that employers will honor workers’ comp time requests. This bill would undermine the fundamental goal of overtime protections, which is to discourage employers from overworking employees without having to pay more for it.
Workers and their families desperately need real flexibility. No one should have to sacrifice their livelihood to juggle family care responsibilities, illnesses, or other of the daily challenges of life. But WFFA does nothing to improve family flexibility, provide paid sick leave or family leave, or establish fair scheduling practices. It simply allows employers to replace their obligation to pay overtime when it is earned with a promise of “comp time” in the future—one they don’t have to keep.
It’s not the FLSA law stopping employers from providing flexible schedules or benefits to their workers—it’s their own choices. The FLSA is the original family-friendly law. These labor standards could always be strengthened, but they are foundational for workers in the United States. The FLSA permits a wide range of flexible work schedules. Employers can give people more leave, avoid overworking their employees, or raise their pay above and beyond the overtime requirements to entice workers to take on longer hours when they’re needed.
The WFFA will reduce worker income. This bill would result in less money in employees’ paychecks, even when they do work overtime hours. Many employees rely on overtime pay to earn enough money to make ends meet—but this bill would allow employers to avoid paying overtime premiums when employees work extra hours, by giving them “comp time” to bank for future use instead. This means employees will still be working longer hours, but they will be receiving less in their paychecks at the time they work the longer hours while they request and wait for a payout. They will essentially be loaning their employer their overtime pay (at no interest).
Comp time in lieu of overtime pay is wrong for the private sector. Public-sector workers have better rates of union representation, making them more likely to be actually able to enjoy these benefits or avoid being coerced into accepting comp time in lieu of overtime. And even for public-sector workers, comp time has not always proved to be a fair deal; despite their protections, public-sector workers may end up being pressured into putting in long hours for no extra pay, in the name of saving the federal, state, or local government money on their wages. Further, private-sector workers also face a real danger of losing comp time accrued in the event of a business failure. If a company goes out of business or files bankruptcy, nothing in this legislation provides workers with a guarantee that they’ll receive payment for any accrued comp time.
Simply put, this bill would be a bad deal for workers. The House and Senate should both reject these bills if they continue to move forward.