Bills
| 3.23.22

Should Private Sector Employees Be Able to Choose Between Overtime & Paid Time Off Like Gov't Workers Can? (S. 1043)

Do you support or oppose this bill?

What is S. 1043?

(Updated September 28, 2019)

This bill — the Working Families Flexibility Act of 2019 — would allow private-sector employees to choose between overtime pay versus paid time off in lieu of overtime. It would amend the Fair Labor Standards Act (FLSA) of 1938 to authorize employers to provide paid time off to private employees at a rate of not less than 1.5 hours for each hour of employment for which overtime compensation is required (but only if it is in accordance with an applicable collective bargaining agreement or, in the absence of such an agreement, an agreement between the employer and employee). Employers who decide to offer this option to their employees would be required to: 1) establish a written agreement with the employee outlining the options and 2) allow each employee to voluntarily choose the option that best fits their needs. For any employees represented by a union, comp time agreements would also be required to be included in collective bargaining agreements negotiated between unions and employers.

This bill would prohibit an employee from accruing more than 160 hours of compensatory time. They could, however, “cash out” their accrued comp time at the traditional overtime pay rate at any time throughout the year.

Additionally, this bill would require an employer to provide monetary compensation for any unused compensatory time off accrued during the preceding year and give employees 30-day notice before discontinuing compensatory time off. It would prohibit an employer from intimidating, threatening, or coercing an employee in order to: 1) interfere with the employee's right to request or not to request compensatory time off in lieu of payment of monetary overtime compensation or 2) require an employee to use such compensatory time. An employer who violates these requirements would be liable to the affected employee in the amount of the compensation rate for each hour of compensatory time accrued, plus an additional equal amount as liquidated damages, reduced for each hour of compensatory time used.

Finally, this bill would require the Government Accountability Office to report to Congress on: 1) the extent to which employers provide compensatory time off and employees opt to receive it; 2) the number of complaints filed by employees with the Department of Labor (DOL) alleging a violation of such requirements and the number of enforcement actions commenced by Labor on behalf of aggrieved employees; 3) the disposition of such complaints and actions; and 4) any unpaid wages, damages, penalties, injunctive relief, or other remedies sought by DOL in connection with such actions.

This bill would maintain all existing employee protections, including the current 40-hour workweek and overtime accrual. It would provide additional safeguards to ensure that the choice to use comp time is voluntary.

Argument in favor

Private sector employees should have the same overtime benefit flexibility as public sector employees, including the option to choose more paid time off instead of overtime pay when they work overtime.

Argument opposed

This bill sets up a false choice between time and money. Working families shouldn’t be forced into the position of choosing between these two equally-important resources — which this bill would force them to do.

Impact

Private sector employees; overtime work by private sector employees; overtime benefit use by private sector employees; and the Fair Labor Standards Act (FLSA) of 1938.

Cost of S. 1043

Last Congress, the CBO estimated that implementing this bill would cost less than $500,000 annually.

Additional Info

In-Depth: Sen. Mike Lee (R-UT) reintroduced this bill from the 115th Congress to give employees more flexibility over their use of overtime benefits: 

“For many families, especially those with young children, their most precious commodity is time. But today, federal labor laws restrict the way moms and dads and everyone else can use their time. For decades, Congress has given a special exemption from these laws to government employees. This is unacceptable. The same work-life options available to government employees should be available to private sector workers, as well.”

Sen. Lee’s office argues that this bill would: 1) end unfair discrimination against private sector employees; 2) enable parents to better balance work and family obligations; 3) free all works to choose which commodity — time or money — is the more important resource at a given time; and 4) lessen the burden of unnecessary federal regulation.

Carrie Lukas, president of Independent Women’s Forum, expressed support for this bill in a May 2019 op-ed in The Hill: 

“Although 73 percent of Americans want the federal government to do more to expand access to paid leave, Republicans and Democrats are unlikely to agree to major legislation anytime soon. Yet this doesn’t mean that Congress can’t also make meaningful progress to help workers now. The Working Families Flexibility Act, introduced by Sen. Mike Lee (R-Utah), would amend the woefully out-of-date Fair Labor Standards Act to allow workers eligible for overtime pay to opt for more paid time off, rather than extra pay. Government workers’ have long enjoyed this option: Rather than getting paid time-and-a-half for every hour worked overtime, they can earn an extra hour-and-a-half of paid leave. Private-sector workers deserve this option too. The ability to earn more paid leave would be beneficial for all workers — particularly women. Someone who is pregnant could try to work overtime to bank paid leave time for after the baby’s birth. Parents of young children or people caring for elderly parents or other family members could similarly seek opportunities to work overtime in order to accrue more paid time off to use when they need it. Workers eligible for overtime are less likely to have traditional paid leave benefits, making this reform particularly important.”

The Society for Human Resource Management (SHRM) also expressed support for this bill last Congress. After it passed the House, SHRM’s director of congressional affairs, Lisa Horn, said: 

“SHRM is pleased with this vote by the House to advance H.R. 1180 to give private sector employees and employers the choice of offering and receiving comp time. It seems only fair to extend this benefit to the private sector since the public sector has enjoyed this option for more than 30 years. While it's unclear when the Senate might take up companion legislation—S. 801, introduced by Sen. Mike Lee, R-Utah—SHRM will continue to advocate for action on this bill to provide organizations and employees with another workflex option."

The National Partnership for Women & Families expressed its opposition to this bill when it was introduced last Congress. In a fact sheet, the organization argued that this legislation sets up a “false choice”: 

“The Working Families Flexibility Act sets up a dangerous false choice between time and money, when working families urgently need both. The bill does not promote family friendly or flexible workplaces. Instead, it would erode hourly workers’ ability to make ends meet, plan for family time, and have predictability, stability and true flexibility at work. Truly family friendly policies are common sense solutions that are available to all workers. Lawmakers should focus on updating and expanding our public policies to help ensure that workers have both fair wages and time to care for themselves and their families.”

The Trump administration expressed its support for this bill last Congress. In a press release, the White House said that the president’s advisers would recommend that President Trump sign the bill into law if were presented to him in the form passed by the House (that final House version’s text is what Sen. Lee has introduced this Congress).

However, Democrats strongly opposed this bill last Congress. Their primary concern was over employers’ ability to have final say on when time can be used — which means bosses can defer compensating employees for overtime work. Sen. Elizabeth Warren (D-MA), a candidate for the 2020 Democratic presidential nomination who has made workers’ protections her flagship cause and a member of the Senate Committee on Health, Education, Labor and Pensions, called this bill a “disgrace” in a series of tweets: 

“With working families across the country scraping to make ends meet, Congress should strengthen protections for workers - not gut them. Today, @HouseGOP are voting to make it legal for employers to cheat workers out of overtime. It's a disgrace. Americans are fed up with a Washington that works great for giant companies but kicks hardworking people in the teeth.”

Sen. Patty Murray, the ranking Democrat on the Senate HELP committee, also criticized this bill last Congress. In a statement, she said, “This is nothing but a recycled bad bill that would allow big corporations to make an end-run around giving workers the pay they've earned.”

The National Partnership for Women & Families argued that this bill would have three major negative effects: 

  • Erode the basic guarantees of the Fair Labor Standards Act (FLSA), which guarantees fair pay for overtime work and time off from work;
  • Amount to a pay cut for workers, without any guaranteed flexibility or time off, because employers would have significant financial incentives to assign overtime hours to works who agree to accept comp time instead of overtime wages; and
  • Give workers few protections in cases of employer misconduct or bankruptcy.

In lieu of this bill, the National Partnership for Women & Families proposed the following “truly family friendly policies” to protect workers’ financial stability and enable them to take care of children, older relatives, and other family members while being productive, responsible employees: 

  • Guaranteed paid sick days, up to seven days a year, to recover from short-term illness, care for a sick family member, attend a child’s health- or disability-related school meeting, seek routine medical care or obtain assistance related to domestic violence;
  • Creation of a national paid family and medical leave insurance program;
  • Expansion of the Family and Medical Leave Act (FMLA) to protect workers in smaller businesses and part-time workers;
  • An increase in the federal minimum wage to $15 over time;
  • Promotion of fair pay practices to help women challenge and eliminate discriminatory pay practices in the workplace; and
  • Ensuring fair scheduling practices to give workers more control over their schedules and offer them predictability and stability in shifts and work hours, consistent with FLSA protections.

The National Partnership for Women & Families’ president, Debra Ness, concluded: 

“Despite th[is] bill's misleading name, it would offer working people less flexibility, less pay and less time. This bill would give all employers a license to demand extra hours and deny people control over their schedules. Congress should instead prioritize higher wages and truly family friendly measures, such as paid sick days, paid family and medical leave, fair pay and schedules, and protections for pregnant workers."

This legislation has 33 Republican Senate cosponsors in the 116th Congress. Last Congress, it had 21 Republican Senate cosponsors and didn’t receive a committee vote. Its House companion, sponsored by Rep. Martha Roby (R-AL), passed the House by a 229-197 vote (with all Democrats, joined by six Republicans, voting against it) with 17 House Republican cosponsors.

Congressional Republicans have introduced legislation like this bill a number of times over the past 20 years, but haven’t managed to pass it in multiple attempts. In 2013, the Working Families Flexibility Act of 2013 (H.R.1406), a bill with provisions similar to this one passed the House but died in the Senate.


Of Note: Congress passed the “Federal Employee Flexible and Compressed Work Schedule Act,” which gave  federal, state and local governments the ability to give their employees a choice between overtime pay or paid time off for working overtime hours, in 1978. However, this choice was not extended to private sector employees. Thus, under current law, workers who are paid hourly (generally those earning less than $23,660 per year) must receive overtime pay at a time-and-a-half rate if they work more than 40 hours in any week.

In the 115th Congress, two Society for Human Resource Management (SHRM) A-Team members testified before the House Subcommittee on Workforce Protections in support of this bill. Leslie Christ, SHRM-CP, chief resource officer for WellStone Behavioral Health in Huntsville, Alabama, and Crystal Frey, vice president of human resources at Continental Realty Corp. (CRC) in Baltimore, Maryland, spoke on SHRM’s behalf and urged the House to pass this bill. 

Christ gave three examples of when comp time could have been helpful to WellStone employees: 1) in the case of a pregnant clerical staff member who wasn’t yet eligible for paid leave under the company’s short-term disability plan, and who had “significant overtime” that she couldn’t use to receive pay during her maternity leave; 2) in the case of Christ’s own 18-year-old son, a WellStone employee who would like a leave “savings plan” to build a bank of paid leave and get a lump sum payout from at the end of the year if the time went unused; and 3) WellStone employees who provide services to patients with mental illnesses along with Huntsville police officers and believe WellStone is denying them comp time as a corporate policy (rather than in compliance with federal law).


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / Drazen Zigic)