Family Time Flexibility Act?

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Posted by Sadie from ? ( on Tuesday, April 22, 2003 at 1:18PM :

Republican Representative Judy Biggert (R-IL) is trying to pass this bill by Mother's Day. I wonder if it's as good as she's making it out to be?

9to5 National Association of Working Women
Ellen Bravo, Director

9to5’s members, along with the thousands of women and men who call our toll free hotline, are desperate for more time with their families and more control over their schedules. That’s why we oppose the so-called Family Time Flexibility Act, which would make it harder for workers to gain either time or flexibility.

More than 50 years ago, after enormous struggle, workers won a family time flexibility bill. It was called the Fair Labor Standards Act. Because workers had been burdened by inordinate work hours, the new law put a 40-hour-a-week limit on how much employers could require employees to work and a price on hours over that amount. The overtime provision was meant to make it more difficult, and therefore less likely, that employers would force workers to take extra time away from their families. It was a disincentive to excessive hours.

Today reform is urgently needed. Too many workers, like nurses aides at a Milwaukee nursing home, face mandatory overtime. Because the site is far from the central city and most of the workers don’t have cars, they have to travel to the job on a company van. Sometimes when the supervisor wants them to work a double shift, the van simply doesn’t arrive until that shift has ended.

HR 1119 does nothing to address the problem of mandatory overtime. In fact, by making it possible for employers not to pay for overtime and instead offer comp time at some later date convenient for the employer, this bill provides an incentive to require workers to endure long hours on the job.

On its face, HR 1119 anticipates this problem by declaring that employees, not employers, can choose whether or not to take comp time or pay. This ignores the reality that most workers have no say in their hours or working conditions. A few years ago, a pro-employer research group estimated that employers were violating overtime law to the tune of $19 billion a year. Many Wal-Mart workers have claimed they were routinely forced to work “off the clock” – a problem we hear about on 9to5’s toll free hotline from workers at companies large and small. If current law isn’t being enforced, why should we feel confident that this provision won’t be abused as well – particularly at a time when funding for employment law enforcement is being scaled back.

This bill also won’t help workers who need to work overtime because they need the cash. Denise in Milwaukee, for example, works as many overtime hours as she can. Her children, ages 9 and 12, often spend time alone. Denise hates that reality – but her low pay doesn’t cover the bills without the extra time. She fears a switch to comp time. The foreman chooses who gets those overtime assignments – and if she doesn’t agree to time off instead of pay, Denise knows she simply won’t be chosen. Again, although HR 1119 appears to anticipate – and penalize – such discrimination, low-wage workers are not in a position to endure costly and protracted litigation, let alone the fear of additional reprisal, to vindicate their rights.

What Denise needs is a higher minimum wage – not an erosion of the Fair Labor Standards Act’s overtime pay protections .

Many workers who already have comp time complain about not being able to take it when they need it. Lisa, a paralegal in LA, for example, is asked to stay late nearly every night. But whenever she asks for the comp time, she’s told the firm is “too busy.” Come November, when her kids are in school and no one else is off, Lisa is told to take some time. Most of her accrued comp time she never sees.

Lack of Protections

Cash overtime is something an employee is free to use at will. Accrued comp time, on the other hand, loses its value to the employee whenever the employer retains discretion to deny the leave. Employees who bank significant amounts of comp time also depend on their employers to stay in business long enough either to cash them out or grant them leave to take time off. There are no bankruptcy protections in HR 1119 that would guarantee that employees will be owed all the pay they are entitled to for unused comp time. This is a particular danger in small, thinly capitalized businesses, which are present in increasing numbers in this economy.

By penalizing employers who required excessive hours from their employees at exploitative wages, the FLSA sought to take away the advantage of producing goods "under conditions detrimental to the maintenance of the minimum standards of living necessary for health and general well-being." As President Roosevelt said, these objectives are designed to "protect workers unable to protect themselves from excessively low wages and excessively long hours."

According to a recent study, those workers exempt from the FLSA’s overtime protections work over twice as many overtime hours as those who are non-exempt. A full 44% of workers exempt from the premium pay requirement (most executives and supervisors, certain administrative and professional employees, and outside salespeople) work in excess of 40 hours per week, while only 20% of those employees who are covered by the statute’s mandatory overtime pay provisions work longer than 40 hours.

During the debates six years ago on this same issue, the National Federation of Independent Businesses acknowledged that many small businesses supported a comp time bill because it gave them "something . . . [to] offer in exchange" for forced overtime. In many instances, employers can simply require co-workers to absorb the job responsibilities of the absent employee. Let’s name this bill what it is: the Employer Flexibility and Overtime Protection Act. Workers will have less time and less flexibility if Congress amends the FLSA to provide for comp time in lieu of overtime.

Flexibility Possible Under Current Law

Nothing stops employers from offering flexible schedules right now. Best practice employers know it makes sense if your child has a school play on Thursday to let you come in early or stay late the day before to make up the time. Also, workers who don’t need overtime pay can bank that and take unpaid time later off when they need it – paid for by the extra cash they stashed away.

Yet most employers do not offer flexible schedules – despite their supposed concern about their workers. According to the Bureau of Labor Standards statistics, only 28.8% of workers had schedules that allowed them to vary their work hours. However, managerial and professional employees -- those exempt from the FLSA’s overtime provisions -- are the primary beneficiaries of such schedules. In those categories, 42.6% had such flexibility, compared to a paltry 14.6% of "operators, fabricators, and laborers." Statistics about the provision of paid leave, sick time to care for oneself or for someone else, the carryover of various forms of leave from year to year, as well as estimates about the availability of such alternatives as compressed time, indicate that "there is little evidence . . . that employers are using the flexibility available to them under existing law in scheduling work without incurring overtime liability." (David J. Walsh, “FLSA/Comp Time Controversy: Fostering Flexibility or Diminishing Worker Rights,” 20 Berkeley Journal of Employment and Labor Law, 74, 94-97, 1999.)

The failure of employers to take advantage of the flexibility already available to them calls into serious question the real motivation for the push to substitute comp time for overtime pay.

What does this lack of allowable flexibility on the part of employers mean? It means that Tiffany in Milwaukee lost her job because she wanted to take her son for a test to allow him to enter kindergarten. It means that Andrea in Boston was suspended for a week without pay because she called her supervisor to say she was summoned to her son’s school when he got in trouble there. It means that more elementary school children are going to school sick because their parents aren’t allowed to stay home with them, and more high school students are missing school because they’re needed to stay home with a sick sibling or cousin.

Policies That Would Give More Time and Flexibility for Family Care

Legislators who want to support more time and flexibility for workers should support the following efforts:

Expansion of FMLA: Several years ago I was privileged to serve on the bipartisan Commission on Leave appointed by Congress to study the impact of the FMLA on employers and employees. Our study found that the FMLA has virtually no negative effects on employers, while it has clear benefits for workers and their families. Simply by lowering the coverage threshold to employers with 25 employees would add 13 million employees to the number covered by the Act. Giving employees just 24 hours a year to take their children or elderly parents to regular doctor’s appointments, or go to parent-teacher meeting, would give families meaningful flexibility that most do not have now. Other expansions, such as letting parents use their own sick leave to care for sick children, or allowing victims of domestic violence to use FMLA leave for making vital arrangements for legal protection or shelter, would also be significant steps toward giving families the flexibility they need.

Unfortunately, most families cannot afford to take full advantage of the unpaid leave that the FMLA now provides. In the long run, families need some form of paid leave -- some guarantee that flexibility will not come at so high a cost as to be meaningless. Our Commission found that one in five low-wage workers who took leave supported themselves by going on public assistance. When the study was updated in 2001, that figure went up to one in four. Nearly four in five workers who needed leave but didn’t take it cited lack of pay as the reason. Despite the enormous differences in opinions on that Commission, we unanimously agreed to encourage states to experiment with forms of wage replacement during leave.

Other measures that would help include:

Ø Limits on mandatory overtime

Ø A minimum number of paid sick days for routine illness, which workers may use to care for a personal illness or a sick family member.

Ø A higher minimum wage, indexed to inflation.

Ø The Fair Pay Act and Paycheck Fairness Act, which would remove gender and race discrimination as criteria in compensation.


Workers want more time with their families and more control over that time. HR 1119 would make it harder for them to have either. It would increase overtime hours by reducing the disincentives carefully placed into law more than 50 years ago.

Contrary to the claim that the overriding objective of this legislation is to provide flexibility for workers, it is employers who ultimately retain all relevant control. For workers, any supposed flexibility is more illusory than real. Employers decide, unilaterally, whether or not to require extra hours in the first place, and whether or not to offer a comp time option. Employers decide, unilaterally, whether to allow comp time when requested; if the employer says no when he should have said yes, the burden falls on his employees to file a lawsuit and prove the employer broke the law. Employers are free to cash out a worker's comp time, unilaterally; an employee who had planned on taking time off is powerless to stop the employer from liquidating the time.

Flexibility is meaningful only when it comes with control.

-- Sadie
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