The Working Families Flexibility Act of 2013 (H.R. 1406) narrowly passed in the Republican-controlled U.S. House of Representatives by a vote of 223-204 on May 8, 2013. The bill now moves to the Democrat-controlled Senate. Introduced by Rep. Martha Roby, R-Ala., the bill amends the Fair Labor Standards Act (FLSA) of 1938 by allowing private-sector employers to offer employees the option of taking comp time in lieu of overtime pay, as federal workers have been allowed to do since 1985.
Similar bills have been introduced, unsuccessfully, multiple times since the late 1990s.
H.R. 1406 gives employees the choice of paid time off instead of monetary payment for overtime hours worked. Employees could decide when to use comp time as long as the time off would not unduly disrupt the business.
The Society for Human Resource Management (SHRM) was the principal employer association supporting the legislation, according to Lisa Horn, senior government relations advisor for SHRM and co-leader of SHRM’s Workplace Flexibility Initiative. In an e-mail after the vote, she said that SHRM “is pleased that H.R. 1406 includes numerous employee protections for workers who choose to participate in a comp time program.”
She noted SHRM members’ efforts in contacting members of Congress and asking them to support the bill, including a letter-writing campaign to 358 House members, meetings with 24 House offices, and the 73 SHRM state councils and chapters that joined 19 national employer organizations to sign the employer coalition letter that SHRM spearheaded.
In a May 1, 2013, SHRM webcast, Horn noted that the legislation includes protections to ensure that use of comp time is the employee’s choice, such as requiring a written agreement between the employer and employee that gives employees the option to withdraw from the comp time agreement at any time, and allowing the employee to cash out accrued comp time and receive overtime pay within 30 days.
The bill does not, she said, alter the 40-hour workweek or change the way overtime pay is calculated—one and one-half hours pay for each hour worked over 40 in a week.
Roby told House colleagues during debate that, while the law would give time-strapped workers the gift of flexibility, “no workers could ever be forced … to take paid time off, just like no business would be forced to offer it.”
The legislation, Roby said, goes beyond current worker protections, including making employers pay double damages if they are found liable of requiring employees to choose comp time.
However, House Democrats criticized the legislation. They agreed that the FLSA needs updating but disagreed that H.R. 1406 was the way to accomplish that. Democrats instead advocated for paid sick leave, paid family and medical leave, increasing the minimum wage and equal pay for equal work. Additionally, they said the legislation undercuts overtime pay and the 40-hour workweek and makes enforcement of worker protection difficult.
During debate preceding the vote, subcommittee member Rep. Joe Courtney, D-Conn., yielded some of his speaking time on the floor to allow more than a dozen female Democrat House members to insert their opposition into the record. One by one they wended their way to the podium where they deplored the bill, calling it variously a “scandalous,” “vile,” “disrespectful” and “deplorable” Mother’s Day gift for working mothers.
The Obama administration opposed the proposed legislation and the President’s Office of Management and Budget (OMB) had cited what it saw as five flaws in the legislation. The OMB said that if passed in its present form, Obama’s senior advisors would recommend that he veto it.
Additionally, more than 160 women’s worker and civil rights organizations sent a letter to the House days before the vote, urging it to reject the bill.
Debra L. Ness, president of the National Partnership for Women and Families, had called the bill “a shameful attempt to mislead America’s families” and claimed it would “make it more difficult for working families to get the predictable, flexible schedules they need … [and] less money and fewer wage and hour protections for works who need them most.”
Kathy Gurchiek is associate editor at HR News.
Private-Sector Comp-Time Bill Advances, HR News, April 2013