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Proposed bill makes a “comp time” law actually possible

May 9, 2013

Article courtesy of SBAM Approved Partner ASE

By Joe DeSantis

Republicans in the U.S. House of Representatives, mindful of the perception that their party has come to be perceived as anti-family and anti-worker, have resurrected a bill that they hope will win back voters who see the party that way and have turned against it in the voting booth.

The bill offers a clear contrast to the Democrats’ approach to paid time off legislation, which would force employers to provide paid time off to workers independent of any overtime they work. It illustrates the differences between the conservative and progressive approaches to family-friendly and work-life balance legislation.

The Republican bill, which the GOP has dubbed the “Working Families Flexibility Act of 2013,” would allow non-exempt employees in the private sector to choose compensating time off instead of time-and-one-half pay for overtime hours worked. Officially designated H.R. 1406, the bill was reported out of the Republican-led House Education and the Workforce Committee. “Reported out” means the committee approved the bill and sent it to the full House for debate and, eventually, an up-or-down vote.

If it were to become law, it would allow the employee to “bank” 1.5 hours of time off for each hour of overtime worked as defined in the Fair Labor Standards Act (FLSA). Currently, in the private sector Comp Time violates the FLSA.  Some of the other provisions of the bill:

  • The employee and the employer must agree in writing, before the overtime hours are worked, that the employee will take compensating time off instead of time-and-one-half pay.
  • The employee will be able to accrue up to 160 hours of paid time off per year by this method.
  • Once a year, the employer will be required to pay the employee in cash for paid time off accrued but not used during the year.
  • The employer may opt to pay the employee monetarily for time accrued over 80 hours in the year, after giving the employee 30 days notice in writing.
  • The employee will be able to request, at any time, to withdraw the agreement and/or to receive monetary compensation for time accrued but not used that year. The employer will be obligated to pay the employee for that time within 30 days of receiving the employee’s written request.
  • If the employee receives monetary compensation for any of the reasons above, having earlier chosen to accrue paid time off, payment must be made at the pay rate in effect at the time the monetary payment is made.

The bill has no language that directly guarantees the employee the right to take accrued time off whenever he or she wants to take it. It does contain broad language aimed at protecting the employee from employer abuse of the rules, but it also contains broad language that could be perceived as allowing the employer to control when and if the employee can use accrued paid time off:

  • An employer will not be able to “directly or indirectly intimidate, threaten, or coerce . . .” the employee into giving up his or her right to choose compensating time off in lieu of overtime pay, or to requiring the employee to use compensatory time earned.
  • The employer shall permit the employee to use compensatory time earned “within a reasonable period” after requesting it, “. . . if (it) does not unduly disrupt the operations of the employer.”

The American system of governance is designed so that lawmakers, who are motivated to act by political expediency, will make the right laws in order to win votes the next time they run for office. That is no doubt the Republicans’ primary motivation in introducing this bill. It is safe to assume that H.R. 1406 is highly unlikely to become law (the Democrats control the U.S. Senate, and the White House, according to reports, has already threatened to veto the bill). However, it appears to represent a serious approach to addressing the reality of work-life balance problems facing many U.S. workers in the 21st century. As such, it may be a hopeful sign that some version, or versions, of family- and worker-friendly legislation will eventually make it all the way through the system to become the law(s) of the land.

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