Time and Time Again (and A Half)

May 12th, 2017 by AttyRick Leave a reply »
     Four score and … well, OK, not quite four score, but 79 years ago, Congress passed the Fair Labor Standards Act and President Roosevelt signed it into law. It was based on legislation originally introduced in 1932; it was so radical for the time, it took six years to get it into a form that would get through Congress.
     The Fair Labor Standards Act of 1938 (FLSA) is something that most of us take for granted (some of us have been fighting to improve) for decades. The FLSA gave us the forty-hour work week, established a national minimum wage, guaranteed overtime pay at “time-and-a-half” for most jobs with most employers, and prohibited most “oppressive child labor.” (It is the same law that allows some “tipped” employees to be paid less than minimum wage, so long as their tips are enough to bring them up to minimum wage; otherwise, the employer has to pay the difference.) The FLSA applies to “employees engaged in interstate commerce or employed by an enterprise engaged in commerce or in the production of goods for commerce.”
     That could soon change, thanks to legislation that has recently passed the House of Representatives and is headed for the Senate. You can always count on Congress to give things a good spin, of course, so this bill is called the “Working Families Flexibility Act of 2017.” After all, who doesn’t like flexibility – especially working families, juggling the burden of getting kids to and from daycare, school, soccer practice, band practice, etc.? But is it really the Working Families’ flexibility they’re concerned with? I think not.
     What the bill seeks to do, essentially, is eliminate your employer’s obligation to pay you for overtime. Currently, the government does not have to pay its employees overtime, but can instead give “comp time” – equal paid time off for the overtime you work. The Act proposes to extend that “flexibility” to private employers.

Highlights

  • At least in its proposed form, the Act does require that you get an hour and half of comp time for each overtime worked.
  • The Act says that the employer can’t require you to take comp time; it has to be voluntary on the part of you and the employer, and that it can’t be “a condition of employment.” But we know how that works; if you don’t agree to take comp time, the boss will surely remember.
  • You can only bank 160 hours of comp time (approximately 107 overtime hours), and your employer must “cash you out” each January. (Within a month of the end of a one-year cycle. It appears that the employer gets to pick when this year cycle begins and ends, but the default is the calendar year.)
  • Your employer may cash out any hours you have banked over 80, but has to give you 30 days’ notice before doing so. (The Act doesn’t address whether you have the option of using the time instead, or how conflict is resolved if there’s no practical way for you to use the time in that 30-day period.)
  • You may request a cash-out of your time in writing, and the employer must do so within 30 days. (The bill doesn’t address whether an employer can instead require you to use some or all of the comp time during those 30 days.)
  • You are automatically cashed out if you quit OR if you are fired.
  • An employer “shall not directly or indirectly intimidate, threaten, or coerce … any employee for the purpose of interfering with [the] employee’s right … to request or not request compensatory time off in lieu of payment of monetary overtime compensation for overtime hours; or requiring any employee to use such compensatory time.” (The bill does not address who gets the “flexibility” to decide when are acceptable times to use comp time. It only states that you must be allowed to use it “within a reasonable time of the request,” and at a time that “does not unduly burden the operations of the employer.” There’s your flexibility…)
  • On the plus side: If/when you cash out comp time, you get paid at the rate you were making when you worked the overtime, or the rate you are making when you are cashed out, whichever is higher.
  • As written, the Act is essentially a trial run; it will automatically expire five years after it’s enacted into law, unless it’s extended. You can read the entire bill here:
     If you have feedback or suggestions – whether you like it or not – contact your elected representatives and let them know!
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