Beware Phony Flexibility Bill

Politicians aren’t always smart, but they’re often shrewd. Say your party has been drawing a lot of heat and needs to show it’s doing something for working families. You read the polls and see what’s moving on the state and local levels. Pollsters tell you that working families desperately need more time with their loved ones. Paid sick days and fair scheduling are hot issues, but the business lobby demands you keep away from those. What to do?

Offer up a bill with “Working Families” and “Flexibility” in the title. Talk about the longing for more time with family. Push your bill, which offers extra time off – comp time at time and a half – as the answer, using words like “balance” and “fairness.” And hope that no one notices the key flaw: workers get to spend more time with family only after they’ve been forced to work longer hours – time away from their family. As for that extra time off? The boss has final say on when workers get to take the time they’ve earned.

The bill is the Working Families Flexibility Act of 2017 (HR 1180), sponsored by Rep. Martha Roby (R-Alabama). Instead of being paid time-and-a-half for overtime, workers may be offered comp time – a paid hour and a half off in the future in exchange for each extra hour on the job this week. Workers may request the time for any purpose they like, including care for a sick child or even baseball opening day.

There’s just one hitch: the boss may decide an absence that particular day would “unduly disrupt” business operations and specify an alternative date when the child happens to be well and in school and the World Series has come and gone. Flexibility often is a one-way street.

There are a few other drawbacks. When overtime assignments come around, workers get to choose which option they prefer, pay or comp time. But the boss also gets to make the assignments. Those who need overtime to pay the bills may well be passed over. For them, this bill represents a pay cut.

Workers already have a working families flexibility bill: it’s called the Fair Labor Standards Act of 1938. Because workers had been burdened by inordinate work hours, the new law put a 40-hour-a-week limit on how much employers can require employees to work and a price on additional hours. That created a disincentive for employers to force workers to spend more time away from their families and was meant to encourage additional hiring.

The Roby bill does nothing to address mandatory overtime or help expand employment. By making it possible for employers not to pay for overtime, this bill instead provides an incentive to require long hours.

Here’s the good news: nothing in current law prevents employers from letting employees rearrange their schedules to fit in a doctor’s appointment or even a baseball game. It’s standard practice at many companies.
Those who work a lot of overtime and don’t need more money can take unpaid days off. That’s also an option now.
This bill may declare that employees can choose comp time or pay, but it ignores the reality that most workers have no control over their hours or working conditions. Wage and hour violations are rampant.

One other dilemma: employees may work extra hours and accrue comp time they will never be paid because their employers declare bankruptcy or go out of business.

The bill might as well be called the “Employer Flexibility Bill: More Overtime for Less Pay.”
Interestingly, those who promote these bills generally oppose the change President Barack Obama initiated to bring overtime pay in line with inflation. Right now if you earn more than $23,700, your employer can call you “salaried” and deny you any overtime pay. The Department of Labor approved raising that threshold to $50,400, about $970 per week. The new administration has put this on hold.

Fortunately, Congress has concrete alternatives to the Roby bill that would help working families be good providers and good caregivers. These include measures that would:

• guarantee they can earn paid sick days.
• make family and medical leave more accessible and affordable.
• guarantee minimum hours and predictable schedules, so that millions of workers can earn enough and plan their family time.
• pass equal pay measures.
• remove barriers to collective bargaining.

Workers desperately want more time with their families, more control over their hours, and fair compensation. The Roby bill would make it harder for them to have any of the above.

A version of this op ed originally appeared in Roll Call in August 2015.

By Ellen Bravo

Photo by Jeriden Villegas via Unsplash license