The Working Families Flexibility Act: A Wolf in Sheep’s Clothing

On May 8, 2013, the United States House of Representatives passed the Working Families Flexibility Act. The Act – if enacted into law – would amend the Fair Labor Standards Act to allow private-sector employees to choose paid time off (i.e., “comp time”) in lieu of receiving time-and-a-half pay for overtime. Under existing federal law (passed in 1938 as part of FDR’s New Deal legislation), employers are required to pay employees a minimum of one-and-one-half times the regular rate of pay for hours worked beyond forty hours in a single workweek. House Republicans have attempted to sell the Act as being friendly towards labor, allegedly providing working parents the flexibility to meet the demands at home. However, this proposed legislation is far from being family friendly because, as they say, the “devil is in the details.”

The proposed legislation supposedly makes the decision to receive comp time voluntary. The Act purports to give an employee the choice of whether and when to use her comp time, provided the employee provides her employer reasonable notice. If the employee chooses to cash out his or her unused comp time, the employer must provide the employee cash wages within thirty days of receiving the request. In this sense, the Act does appear to give employees more flexibility in the workplace. But Democrats and organized labor have largely opposed the legislation, citing that the Act gives employers the opportunity to coerce employees into working unpaid overtime. The Act thus potentially allows employers to demand extra work from employees at no cost. This sort of abuse by employers will only impose a greater hardship on working families. If the Act is passed, those employees who work overtime likely will never see that time reflected in their paycheck. Less pay means less money to cover the costs of education, childcare, and medical bills. Further, there are no guarantees that an employee will be able to exercise his or her accrued time off at all, let alone at a time they want or need time off work. Employers can always deny an employee’s request for compensatory time off – the decision of when an employee can invoke their comp time is left to the discretion of the employer. In essence, an employer is able to obtain an interest-free loan from an employee’s accrued and unused comp time.

Also, while the bill sounds harmless by allowing an employee to choose between time-and-a-half pay and receiving time off work, labor experts anticipate that employers will find ways to exploit this “choice” to their advantage. Employers are often enacting unilateral policies and requiring employees to “agree” to terms of employment when in reality, the employee’s only choice is to either agree to undesirable terms or lose their job. For example, many employers will require employees at the outset of their employment to sign arbitration agreements, class waivers, jury trial waivers, and non-compete agreements. None of these types of terms/agreements are for the employee’s benefit, and employees are rarely compensated for agreeing to such things. Rather, these are common terms of employment that are unilaterally imposed on employees in a take-it-or-leave-it fashion. The Working Families Flexibility Act seems to provide employers with an opportunity to require employees to sign agreements to “voluntarily” choose comp time over overtime pay, only to then deprive employees of comp time at the employer’s own discretion.

Finally, the Act provides little recourse to employees who find themselves unlawfully coerced by their employer. The only remedy afforded such workers to sue their employer. Such a proposition is often costly and unduly burdensome on working individuals.

The Act is merely an empty gesture by an out-of-touch Republican Party to appear to be worker and family friendly. But in actuality, the Republican Party is opposed to proposed legislation that would actually help workers and families, such as an increase in the minimum wage and paid sick/medical leave.

In order to become law, the Act would also have to be passed by the U.S. Senate. At this point, the Act’s passage into law appears unlikely due to heavy opposition in the Democratic-controlled Senate and by organized labor. Likewise, President Obama has expressed his intention to veto the legislation if it is passed in its current form, and in that event, it is unlikely that Congress would have a sufficient number of votes to override a Presidential veto.

To read a copy of the Act, as passed by the U.S. House of Representatives, click here.