Progress made to revising the FLSA to reflect today’s reality

A new bill passed in the House will allow workers the opportunity to take some of their overtime pay as comp time.

The House of Representatives has taken a step to revise one of the provisions of the Fair Labor Standards Act which has frustrated employers and employees for years. It is a step toward making the FLSA more reflective of the way the workplace works today.

Comp time

Comp time, or compensatory time, currently under the FLSA is illegal for nonexempt employees in the private sector. Government employees can be paid in compensatory time but not private sector employees. The FLSA requires that any overtime has to be paid in “cash”. This has been a violation for many a company which may have been cash strapped or for employees who would have preferred to get extra time off. Well the House has done something about it and they passed the Working Families Flexibility Act of 2017 (H.R. 1180). This bill allows employers and employees to have a comp time alternative to overtime that does not exist today.

Provisions of the bill

There are numerous provisions to the bill. These include:

  • “Comp time” would only be allowed for employees who have worked at least 1,000 hours for the employer during a period of continuous employment with the employer in the 12-month period before the date of agreement or receipt of “comp time.”
  • An employee cannot accrue not more than 160 hours of “comp time.”
  • An employee who has accrued “comp time” must be allowed to use such time within a reasonable period after requesting to do so, provided the time off does not “unduly disrupt the operations of the employer.”
  • An employee who has agreed to receive “comp time” can withdraw the agreement at any time.
  • Within 30 days of an employee’s request, the employer must cash out all accrued but unused “comp time.”
  • The employer can cash out an employee’s accrued but unused “comp time” in excess of 80 hours at any time, on 30 days’ notice to the employee.
  • On or before January 31 of each year, the employer must cash out any accrued but unused “comp time” from the prior year. (The employer has the right to choose a different 12-month period—for example, its fiscal year—and cash out the unused “comp time” within 31 days after the end of such 12-month period.)
  • Upon termination of employment for any reason, an employee must be cashed out for accrued but unused “comp time.”
  • Except where a collective bargaining agreement provides otherwise, an employer that has adopted a policy offering “comp time” to employees can discontinue the policy on 30 days’ notice.
  • An employer that offers “comp time” is prohibited from directly or indirectly intimidating, threatening, or coercing (or attempting to intimidate, threaten, or coerce) any employee for the purpose of interfering with the employee’s right to request or not request “comp time” or requiring the employee to use accrued “comp time.”

Borrowed from Allan Bloom of Proskauer.
There seem to be ample safeguards in the bill to stop abuse of this overtime, at least as much as in the FLSA to begin with.

Democrats hate it

As you can imagine, in the very divisive political atmosphere we have today, the Democrat side of the House hates this bill. They see it as a way to cheat workers out of the money earned for overtime. Despite the provisions in the bill that prohibit this they think that employers will intimidate workers in to working overtime for comp time and not money then cheat them out of the pay. Indeed they may, there are employers who violate the FLSA right now. That however, would not be the norm. This bill would allow flexibility in working schedules for many workers who have situations that require more time than money. Getting paid extra does not give you the time to go to a school function, it just gives you more money.

Will it pass?

The chances of this bill becoming law are greater than it was last year, but are not yet a certainty. The Senate is more evenly divided between the Republicans and the Democrats and there may not be enough votes to overcome the promised filibuster by the Democrats. We will have to wait and see.

It is time

I am glad to see this move. It is more than past time to revise the FLSA to reflect the realities of the workplace today. With gig workers, independent contractors, ROWE workplaces and the desire for a smoother intermixing of work and personal life it is time for the FLSA to be revised. This is a good first step.

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