Working Families Flexibility Act… Is It Actually Flexible?

The House of Representatives recently passed the Working Families Flexibility Act of 2017. Should the bill also pass in the Senate, the White House has announced that President Trump’s advisers plan to recommend he sign it into law.

What is the Working Families Flexibility Act?

If this bill becomes law, it will amend the Fair Labor Standards Act and change current rules regarding overtime pay in the private sector. In lieu of monetary overtime pay, under the bill, an employee can opt to receive compensatory time off equivalent to no less than one and one-half hours for each hour the employee works overtime. This option to receive paid time off has been available in the public sector for several years as a means of cutting costs.

The bill further provides that employees cannot accrue more than 160 hours of compensatory time. In order to opt for compensatory time, the employee must have worked at least 1,000 hours during a minimum 12-month period of continuous employment with the employer.

Would Working Families Truly Have “Flexibility” Under the Act?

According to proponents of the bill, families would have more flexibility and control over their work schedules. They could use their compensatory time any way they choose, and take time off to tend to personal and family matters. Advocates of the bill could argue it empowers working families who often find it difficult balancing work and home life.

But opponents of the bill question the “flexibility” the proposed law would supposedly give working families. The primary concern is that an employee’s boss has the final say as to when the employee can take time off. An employee might waive overtime pay, expecting to take compensation time later (such as for a child’s recital or scheduled family trip), but the reality is requests for specified time off could be declined. If time off (and when it can be taken) is ultimately in the hands of the boss, how much flexibility can really be provided to working families under the Act? There are times when employers may even require an employee work overtime. If overtime pay is waived, it goes back into the pockets of businesses. Yet, use of earned compensatory time, when the employee desires to take it, is subject to the boss’ approval.

Why is a Paid Time Off Option Feasible in the Public Sector, and Why is it Dangerous in the Private Sector?

The answer to this is simple: unions. Unions create a layer of protection that is not as readily available in the private sector. Under the bill, in order for an employee to select compensatory time in lieu of overtime pay, there must be a written agreement if the employee is not represented by a union. But what if the employee is not fully aware of the consequences of surrendering earned overtime pay? The purpose of a collective bargaining agreement set forth between unions and employers is to preserve employee rights, including overtime pay, and lay out well-established procedures for grievances. It is a formal, structured agreement designed to protect, not just one person, but a group of individuals from foreseeable employer misconduct. This systematic safeguard would not be available to an unrepresented employee in the private sector who enters into an agreement waiving overtime pay. At a minimum, the thought of this is alarming, and given the questionable benefit of “flexibility” proposed by the bill, this type of an agreement seems fraudulent. If this bill becomes law, hard-working–unrepresented–families across the country, struggling to make ends meet, would be surrendering their right to overtime pay.

There is a provision in the bill which prohibits an employer from coercing an employee into taking compensatory time, and the bill’s proponents might argue that allowing agreements between employers and employees provides a protective measure against such coercion. Regardless, the for-profit nature of the private sector would undoubtedly make coercion inevitable, and employees without proper representation would become vulnerable.

So as the bill sits in the Senate, it is worth pondering whether this proposed law truly helps working families, or hurts them by providing an option that, at the outset seems fair, but actually later strips them of hard earned money. Though flexibility via compensatory time seems like a nice option for employees, perhaps maintaining legally mandated overtime pay is the best option for protecting working families and minimizing their potential loss.