By Michael Rose
Under a bill pending in the House, private sector employers could let workers earn compensatory time off in lieu of time-and-a-half pay for overtime. Those testifying at an April 11 subcommittee hearing disagreed, sometimes heatedly, on whether comp time aids working families or creates an unfair advantage for employers.
During a hearing of the Subcommittee on Workforce Protections of the House Education and the Workforce Committee, members and witnesses disagreed on the benefits of the proposed Working Families Flexibility Act (H.R. 1406), introduced April 9 by Rep. Martha Roby (R-Ala.). Republicans argued that the bill would provide families with much-needed flexibility, but Democrats said it would disadvantage already struggling hourly workers.
The bill has been introduced several times before, most recently in 2009 (27 HRR 147, 2/16/09).
The measure would amend the Fair Labor Standards Act to let private sector employers offer compensatory paid time off to hourly employees who work more than 40 hours per week, in lieu of cash wages of time-and-a-half the worker's regular rate of pay. The comp time would be offered at a rate of 1.5 hours per hour of overtime worked, and both the worker and the employer would need to agree in writing to the comp time arrangement.
Roby, along with Rep. Tim Walberg (R-Mich.), the subcommittee chairman, emphasized during the hearing that public sector employers already are able to offer workers the option of taking comp time instead of time-and-a-half pay for overtime.
“It's only fair to extend the same benefit to millions of workers in the private sector,” Walberg said in an opening statement.
Roby in an opening statement said the bill would “help working people better balance the demands of family and work by removing an unnecessary federal restriction on the utilization of comp time in the private sector.”
“For some workers, having extra paid time off is actually more valuable than money,” Roby said. “The law shouldn't make it more difficult for working people to budget their time so they can see their child hit a home run or attend a parent-teacher conference.”
Roby said workers would be able to take comp time anytime “so long as reasonable notice is given and the requested time off would not unduly disrupt the business.”
But Democrats, and a witness representing a group that advocates for worker-friendly employment policies, said the measure would place too much authority in the hands of employers.
“We are wasting committee time debating legislation that forces workers to compromise their paycheck in order to have more time off work,” Rep. Joe Courtney (D-Conn.), the subcommittee ranking member, said in his opening statement.
“This bill has nothing to do with promoting workplace flexibility,” Courtney said. “It is about not paying overtime. It is about saying to hourly workers already struggling to make ends meet--if you need time off to care for a sick child or attend a school concert, you need to work extra hours, forgo the earned overtime pay, and then, as long as it is not disruptive to your employer, you may get some time off.”
In addition, Courtney said, “nothing in this bill requires that the worker has access to time-off when she really needs it.”
Juanita Phillips, the director of human resources at a Huntsville, Ala.-based engineering firm, testifying on behalf of the Society for Human Resource Management, said the bill was “commonsense legislation to give employees a choice and flexibility.”
“If the employee chooses a comp time arrangement but later prefers to receive cash wages for overtime hours worked, the employee can discontinue the comp time program by giving the employer written notice,” Phillips said. “Compensatory time off as a workplace option gives nonexempt employees more control over their time and can improve employee morale and job satisfaction and increase productivity by giving employees the option of increased flexibility.”
Phillips also emphasized that any comp time arrangement under the bill must be voluntary on the part of the employee, and that “any employer coercion is prohibited as is conditioning employment based on participation in a comp time program.”
But those points were countered by Judith Lichtman, senior adviser to the National Partnership for Women and Families, which she called “a nonprofit, nonpartisan advocacy group that has fought for every major policy advance helping women and families.”
“Instead of building on the success of [the Family and Medical Leave Act], state and local paid sick days laws, and a fair minimum wage, this so-called flexibility bill offers forced choices and false promises,” Lichtman said. “It pretends to offer time off but instead gives workers a pay cut without a guarantee of time off when they most need it.”
Although the bill would require employers and employees to agree to a comp time arrangement instead of time-and-a-half for overtime, “an employee could easily feel obligated to agree to comp time,” Lichtman said. “An employee who does not accept comp time could be penalized with fewer hours, bad shifts, and loss of overtime.”
Furthermore, because comp time is less expensive for the employer than time-and-a-half, “there is an incentive for employers to hire fewer people and rely on overtime hours--paid for in future comp time--to get work done,” Lichtman said.
Andy Brantley, president and chief executive officer of the College and University Professional Association for Human Resources, and previously an HR professional at the University of Georgia and Davidson College, testified in favor of the bill.
“Comp time is one more way to assist and support employees during a tough time in their personal lives when they want to work but require a little more flexibility,” Brantley said.
But Brantley was challenged during questioning by Rep. Tim Bishop (D-N.Y.). Suppose, Bishop said, Davidson College needed to staff graduation on a Sunday and needed 10 people to work overtime. Fifteen employees offer to work, 10 who would prefer to take comp time, and five who would prefer cash overtime. Wouldn't college officials be tempted to award the extra shift to the workers who opted for comp time? he asked.
“No, I disagree,” Brantley said. “Thinking about what's happening on campus at that point in time, having the opportunity to pay overtime to employees that want to have overtime, because you do need staffing the following week, versus that group that prefers to have comp time, when you might not need to have--”
“Stop right there,” Bishop interrupted. “You do need these employees the following week. And there is absolutely nothing in this legislation that would allow the person who is taking compensatory time to say, 'I'm taking next week off,’ because the employer schedules when the compensatory time takes place.”
“Given how tight choices are and how much every dollar has to be watched, we're going to discriminate against employees who want what they've earned,” Bishop said. “They want cash.”
Also testifying at the hearing was Karen DeLoach, a bookkeeper at a Montgomery, Ala., accounting firm, who said comp time off from her employer would help her care for family members or go on mission trips with her church.
“If I work overtime in April, for example, I would like to have the option of choosing to reserve that time to be taken off from work as compensatory time rather than making extra money in April and then taking leave without pay in June or July,” DeLoach said.
During questioning by Roby, DeLoach said when she takes vacation time, she must request it and her supervisors must approve it after making sure it works for the firm's schedule.
“You have to request [time off] from your employer,” Roby said. “This idea of 'unduly disrupt’ is not a new idea in the workforce. It's the same standard that is applied to public employees that already enjoy the ability to use compensatory time,” as well as to requests for other types of leave.
“This idea that this is going to be some coercive device is actually incorrect,” Roby said.
Text of the witnesses' testimony and a link to video of the hearing is available at http://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=326446. Text of H.R. 1406 is available at http://op.bna.com/dlrcases.nsf/r?Open=scrm-96nt97.