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YES: Employees like flexibility proposal offers
By WILLIAM J. KILBERG
Ross Eisenbrey is vice president and policy director of the Economic Policy Institute, an independent think tank based in Washington, that focuses on the interests of low- and middle-income workers.
For 65 years, federal law has provided one, and only one, way to compensate private-sector hourly employees who work more than the normal 40-hour week: time-and-a-half pay.
The opportunity for overtime pay is important to workers; this premium compensation will be with us for a long time to come, and so will the 40-hour work week. But what if employees could also choose paid comp time in lieu of overtime pay?
Congress will soon vote on the Family Time Flexibility Act, which amends federal law for comp time. The act's basic concept is simple: Employers and employees are given the choice of agreeing that for each overtime hour worked, the employee will receive an hour and a half off, rather than money.
The act gives workers more choices while preserving every protection currently available under federal law. Yet some individuals and groups have opposed the act quite vigorously. Their fears are unfounded.
The first argument often made against comp time is that the current system is not broken, so there is no need to fix it. Critics attack the Family Time proposal as offering no real benefit to employees, while providing employers an easy way to avoid paying overtime.
Among other things, that argument ignores fundamental changes that have occurred over the past seven decades. In the 1930s, when federal overtime laws were first passed, most families had one wage earner, and few women worked full time. In the 21st century, however, women make up nearly half the American work force, and roughly 70 percent of all mothers with children under 18 work outside the home.
These changes have placed enormous strains on families, and particularly on working women, who still tend to shoulder a substantial share of child-care responsibilities. Increasingly, parents are forced to choose between their jobs and taking care of personal, family and religious obligations that often can be addressed only during normal working hours. It does not have to be this way.
Survey after survey shows that employees want more flexibility in scheduling their working time. Comp time provides that flexibility. In 1997, the Union of Orthodox Jewish Congregations of America announced its support for comp time, noting that "[m]any religious faiths require that individuals refrain from work on holy days so they may concentrate on moral reflection, as well as tending to family and community concerns."
More opportunities
An employee who needs a few hours off to attend a child's soccer game or school play, or a day off for religious observances, or perhaps a few days off to attend a wedding out of state, can choose to work extra hours in advance. The employee can then take the time off as needed without receiving a short paycheck or forfeiting a personal or vacation day.
Indeed, federal law has allowed employees of the federal government to elect comp time in lieu of cash since 1978. State and local government workers received that option in 1985, and the flexibility has proved very popular. Working people would rather choose for themselves whether to have the option of comp time, and those who are given that choice find comp time a helpful way to balance the competing demands of work and home.
The second argument one usually hears against comp time is the danger of abuse. Some contend that employers will force employees to agree to comp time to save money on overtime payments, and that employees will have little say in when they can use their comp time.
The act carefully addresses those concerns. For starters, comp time is purely voluntary. Employers cannot make agreeing to comp time a condition of employment. Unless the employer and the employee want to allow comp time, the employer must compensate overtime work in cash. Any agreement for comp time must be in writing or some other type of verifiable record.
Option to cancel
Comp time accruals are limited to 160 hours per year, and overtime beyond 160 hours must be paid in cash. Employers must also "cash out" unused comp time at the end of each year by paying time-and-a-half for the banked hours. In addition, an employee who banks comp time then earns a raise would therefore be cashed out at the end of the year at the higher pay rate.
Even after comp time hours have accrued, employees retain the right to receive cash wages for those hours upon request. Thus, an employee who works overtime and banks the hours, but decides that he or she would rather have the money instead of using the time off, can notify the employer and receive the cash in lieu of comp time. Workers are also free at any time to cancel their comp time agreements.
Employees have power
Under the proposed act, employees have broad power to decide when to use comp time. With reasonable notice to their employer, employees must be permitted to use comp time when they choose, subject only to the limitation that the time off "does not unduly disrupt the operations of the employer." That is the standard used for government employees, and it works well.
Any employer who tries to intimidate, threaten or coerce any employee regarding comp time faces stiff penalties, including doubled damages and attorneys' fees, as well as potential criminal liability. As a practical matter, because comp time and cash payments are an economic wash from the employer's perspective, there is no reason to suspect that employers would have any real incentive to try to evade the act.
The third main argument one hears against comp time is that it is part of some secret plot to undermine the 40-hour work week and the concept of overtime pay. The Family Time proposal accomplishes no such thing, because employees still receive something extra for working more than a normal work week. They would simply have an additional choice regarding how to receive their reward for their hard work.
The measure also contains a "sunset" provision; it expires on its own five years after it is passed. So it gives private-sector employees the chance to try comp time and to see whether they like it. If it proves as popular as it is among government employees, then it can be enacted on a more permanent basis down the road. If not, then it will not be renewed.
This experiment has succeeded in the public sector, and it is high time that American workers and their families received the same opportunity. The Family Time Flexibility Act should be passed.
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William J. Kilberg, a partner in the Washington law firm Gibson Dunn & Crutcher, represented the U.S. Chamber of Commerce in congressional hearings on the Family Time Flexibility Act. |
