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Friday, May 24, 2013
Recently, the House of Representatives passed H.R. 1406, titled the Working Families Flexibility Act of 2013, which amends the Fair Labor Standards Act of 1938. It was co-sponsored by Reps. Bob Goodlatte, Randy Forbes, Morgan Griffith, Robert Hurt and Rob Wittman and touted by Eric Cantor, all Republican congressmen of Virginia.
Purportedly, the bill would allow private-sector employees to take compensatory time in lieu of overtime. In the words of Goodlatte, “Employees would have the opportunity to freely choose which option they prefer . . . and would give all Americans the same flexibility to choose extra time off from work to deal with errands, vacation and family matters, or to receive the current time and a half on your paycheck. . . . What would you do with more of your time?”
Cantor describes it as “more freedom in the workplace.”
Well, that sounds awesome, but as usual, the devil is in the details. For some of these gentlemen, claiming they support working families is like a fox claiming to support a chicken’s right to roost undisturbed. So let’s dig a little into the bill and talk about the employee/employer relationship, as well.
The measure states “an employer which has adopted a policy offering compensatory time to employees may discontinue such policy upon giving employees 30 days notice.” Which means the employer actually doesn’t have to offer comp time at all.
Sec. 2 (2)(B) states that an employer may provide comp time under “an agreement arrived at between the employer and employee before the performance of the work and affirmed by a written or otherwise verifiable record maintained in accordance with section 11(c) — (i) in which the employer has offered and the employee has chosen to receive compensatory time in lieu of monetary overtime compensation; and (ii) entered into knowingly and voluntarily by such employees and not as a condition of employment.” The employee does not have the right to ask for comp time.
Scenario: Boss Bob comes to Mary and says, “I need you to work Sunday. Jane has to take her mom to the nursing home, but corporate has a no overtime rule right now, so it will have to be for comp time, that OK with you Mary?” How often do you really think Mary is going to say “no”?
So Mary keeps getting “asked” to work Sundays throughout the summer and into the holiday shopping season, for comp time of course. Mary, one day, says to Boss Bob, “I would like next Friday off for little Jimmy’s school play. I’ll use eight hours of comp time.”
Ah, but Boss Bob needs Mary because Jane finally quit, and there is a hiring freeze by corporate. He has an out. The law says an employee who has requested the use of such compensatory time shall be permitted by the employee’s employer (Boss Bob) to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the employer.
Boss Bob states they are swamped, and Mary has to work.
Mary can demand payment from her employer in lieu of comp time, assuming she isn’t pressured not to because it might show as paid OT during the “no OT” period, but supposedly the whole point of this law is for the worker to be able to take comp time, not get paid at a later date for hours worked earlier.
It defeats the purported purpose of the law, and in actuality ends up being an interest-free loan to the employer. Mary works now, but gets paid later. So, on with the story: Jan. 1 rolls around and Mary has 120 hours of comp time coming.
Boss Bob comes up to her and says, “Mary, I’ve got to lay you off for a couple of weeks. You know it’s always slow after the 1st, but corporate will get you the check for your unused comp time by the 31st, so that should help.”
Mary just got her comp time. She can enjoy looking out of her window as the snow falls in January and look forward to another summer of working Sundays for “comp time.”
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