Representatives Mark Amodei (R-NV2) and Joe Heck (R-NV3) voted on May 8, 2013 in favor of H.R. 1406 “To amend the Fair Labor Standards Act of 1938 to provide compensatory time for employees in the private sector.” [roll call 137] The CRS Summary describes the bill:
“Working Families Flexibility Act of 2013 – Amends the Fair Labor Standards Act of 1938 to authorize private employers to provide compensatory time off to private employees at a rate of 1 1/2 hours per hour of employment for which overtime compensation is required. Authorizes an employer to provide compensatory time 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.”
Trade your time and a half for comp time? What could possibly go wrong? Let us count the ways!
#1. Right off the bat, this is a frontal assault on the 40 hour work week. The old system, in place since 1938, (pdf) is a dis-incentive for employers to demand longer hours of their employees because over-time costs more, one and one half times more. This Republican “innovation” allows employers to require more over time work, without any extra compensation.
#2. There are limits on the employee, not necessarily on the employer. For example, under the terms of the bill employees may not accrue more than 160 hours of comp-time in any calendar year. If there are approximately 260 work days a year (52×5) and we take out 5 for holidays leaving 255 days, then we’d have a total of 2,040 work hours (255×8) during a calendar year. 160 hours is about 8% of the total number of annual work hours. In some jobs it wouldn’t take much to hit the limit quickly.
#3. H.R. 1406 slaps the wrists of employers who coerce employees into taking comp-time rather than over-time payment with a serious application of a soggy noodle.
“Makes an employer who violates such requirements 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.”
Got that? If an employer threatens an employee who doesn’t want to take comp-time, the employee will be compensated for the “lost hours” plus liquidated damages MINUS each hour of comp-time used. So, hypothetical Mr. Grinch demands that his employees participate int he comp-time scheme. Miss Cindy Lou doesn’t want to participate, but is given a “choice” by Grinch to either take the comp-time or (a) get nothing or (b) get canned. She takes the comp-time. When she complains to authorities she’s to be “paid” back but the time she took off (at the firm suggestion of Grinch) is counted against her? Lovely. The “choice” to take uncompensated time off isn’t a viable choice for most working families.
#4. Nothing in the bill requires the employer to be consistent about over-time or comp-time policies. In fact, an employer can shuck the comp-time scheme if he or she gives the employees 30 days notice. Then there’s the matter of when the comp-time will be taken. It would be in the employer’s interest to have employees work over-time during peak seasons and give comp-time during slow periods. There’s NO flexibility for employees if the employer is the one determining when the leave can be taken. Does Cindy Lou need to cash in some comp-time because The Kid is out of school with chicken pox? Nothing in the bill requires any employer to award comp-time except at his or her own discretion. This is “flexibility” for the employer and the same old (but this time uncompensated) routine for the employee.
#5. Employees could easily end up bankrolling the employer in this scheme. Here’s one example:
“That’s because employers would be able to pay workers nothing at all for overtime work at the time the work is performed and could schedule comp time off at no extra cost to them (for example, during less busy periods when co-workers can pick up the slack). So, when employees request comp time, they essentially become lenders to employers. For example, a worker earning $12 an hour and banking the maximum amount of hours (160) would be giving an interest-free loan of $1,920 to his or her employer.” [AFLCIO]
If we pick the thread in #4, in which the comp-time is scheduled at the convenience of the employer, and the employer is getting the services of the employee at NO EXTRA CHARGE, then those 160 hours of accrued time become a form of freebie loan to the employer.
The Republicans in Congress appear to take some pride in saying they are “pro-business,” and that they promote “pro-business” policies — you can’t get much more pro-business than assaulting the requirement of the 40 hour work week, or the eight hour day, or the notion that employees should “donate” their time to their employer. What’s next? By GOP lights should families have the “flexibility” to send their 10 year old kids into the factories? Only in the burbling boiling cauldron of crazy — does H.R. 1406 constitute a “pro-family, pro-worker” act.
Representatives Horsford (D-NV) and Titus (D-NV) had the good sense to vote against this patently pro-sweatshop bit of legislative stew.