National Consumers League

Frustrations at Congress over Working Families Flexibility Act


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By Michell K. McIntyre, Director of NCL’s Special Project on Wage Theft Yesterday was another frustrating day in Congress. Not only did the Senate cave with the gun vote, but a troubling bill advanced through the House of Representatives Education and Workforce Committee and will soon land on the House floor for a full vote. This measure passed unanimously along party lines in Committee and will presumably do the same in the full House. The so-called “Working Families Flexibility Act” (H.R. 1406) is a wolf in sheep’s clothing. It is NOT family friendly nor does it offer workers REAL flexibility in the workplace. The bill looks to change the Fair Labor Standards Act’s (FLSA) overtime section by allowing private sector employers to “offer” employer-controlled compensatory (“comp”) time in place of paid overtime. Last week, during the bill’s introduction, a parade of majority witnesses were singing the virtues of H.R. 1406, but under questioning it was revealed that those witnesses did not understand what the bill really said – it does not give employees the right nor protection to use their earned comp time when they want; rather it leaves the decision up to employers. It does not allow employees to easily take off to watch their children’s games or recitals nor does it allow them to stay home with a sick child. What the “Working Families Flexibility Act” offers are empty promises of flexibility at work while doing an end run on the Fair Labor Standards Act.  H.R. 1406 does not assure that the decision to substitute comp time for cash overtime payments will be voluntary. While the bill nominally makes it unlawful for an employer to coerce or intimidate an employee into accepting comp time, it does nothing to prevent an employer from discriminating – in hiring or in the award of overtime –against those employees who choose overtime compensation. Nor does it provide penalties that would deter employers from coercing employees into accepting comp time – a much cheaper alternative for employers than paying overtime wages, which can be one and half or twice the hourly wage. This bill is an invitation to engage in wage theft. The reality is that employers have a lot more power in the workplace than employees and all too many workers are victimized by “wage theft” because of unscrupulous employers and because the Department of Labor does not have the resources to investigate many of the violations of the wage and hour laws. This bill gives employers another vehicle to exploit their employees. The FLSA established the 40-hour workweek to limit exploitation of workers and overly long work days and work weeks. . These were hard won victories with NCL in the forefront of these battles. The landmark 1908 case of Muller vs. Oregon establishing the legality of limiting the work-week to 60 hours is a case in point. The FLSA also encourages employers to hire more staff when workloads increase. Sadly, this odious bill would encourage employers to set the clock back by allowing them to receive the benefits of overtime work at no additional cost. Employers could pay workers nothing at all for overtime when the work is performed, and schedule comp time only at their convenience and not the employee’s convenience. Employees deserve fair wages, safe working conditions, and more flexible schedules to meet both workplace and family needs. There are far better bills to support. They include the Healthy Families Act (H.R. 1286), Paycheck Fairness Act (H.R. 377), Fair Minimum Wage Act (H.R. 1010), and paid family and medical leave insurance so that all employees will be afforded more equitable, flexible and predictable working conditions. For more information on H.R. 1406 please look at the National Consumers League’s letter to House members and visit the Democratic Ed & Workforce Web site.