Comp Time or Overtime? Which is Better for You?

Yesterday (4/9/03) the House Education and Workforce Committee approved HR 1119, the Family Time Flexibility Act, on a strictly party-line vote of 27-22. This bill, sponsored by Illinois Representative Judy Biggert, would allow hourly workers, through a voluntary agreement with their employer, to choose paid time off as compensation for working overtime hours. (See Biggert press release.) The bill, if passed, would amend the Fair Labor Standards Act, originally passed in 1938, to permit businesses to offer comp time instead of paid overtime.

The full House of Representatives is expected to act on HR 1119 in the next month, as committee leaders have called for passage by Mother’s Day. (See Reuters article and Committee press release.) A similar Senate bill, (S. 317, the Family Time and Workplace Flexibility Act has not yet been acted on by the Senate. The Senate version also includes a provision that would replace the 40-hour work week with an 80-hour fortnight, that would not allow workers overtime pay until they worked 80 hours over a two-week period.

According to Rep. Biggert, “[t]he law governing the private sector workforce has been frozen for more than 60 years, locked in a time when women worked in the home, most families had only one wage earner, and nobody went to kids’ soccer games,” and [t]his bill gives employees choice and flexibility – and that is what they want.” Is that really true? If so, why are the Democrats on the House committee so opposed to this proposal? Some of the criticisms of the proposal are as follows:

• 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. While 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. One purpose of the 40-hour work week is to keep employees from overworking current employees and failing to hire additional workers. In a time of economic stagnation, this measure discourages hiring new workers, and amounts to a pay cut for those who depend on time and a half overtime payment.

• HR 1119 won’t help workers who need to work overtime because they need the cash. Workers who need overtime assignments due to low pay on their jobs fear a switch to comp time. The employer chooses who gets overtime assignments and if workers don’t agree to time off instead of pay, it’s likely they won’t be chosen. Again, although HR 1119 appears to anticipate and penalize such discrimination, low-wage workers are not generally in a position to endure costly and protracted litigation, let alone the fear of additional reprisal, to vindicate their rights. What workers need is a higher minimum wage not an erosion of the Fair Labor Standards Act’s overtime pay protections.

• HR 1119 doesn’t guarantee that workers who have accumulated comp time will be able to use it when they most need it. Many workers who already have comp time complain about not being able to take it when they need it. The bill allows employers the right to refuse the employee’s use of comp time where the employee’s absence would “unduly disrupt the employer’s business operations”–a standard that is likely to be the subject of many legal disputes if the bill is passed. While the goal of the legislation, according to the sponsors, is to help “working men and women achieve a greater balance between family and work obligations and spend more time with their families,” this balance will not be achieved if workers, for example, are forced to use comp time at times other than during school vacations, teacher conferences, or when a family member is ill.

(For more information on the opposition to HR 1119, see the testimony of Ellen Bravo, Director of 9to5, National Association of Working Women, at the March 12 subcommittee hearing.)

Whether you support or oppose this bill depends in large part, on your own experience: your own needs, and your employer’s accommodation of these needs. Some people need paid overtime in order to make ends meet: the number of hours they work above 40 each week at time-and-a-half supplements the insufficient wages they receive for the first 40 hours. Some people need more flexibility built into the law, as their employers will not voluntarily accommodate their employees in any way the law does not require them to (and unfortunately for some, even when the law does require certain accommodations).

It does appear, however, that time is only an adequate substitute for money when money is plentiful; otherwise, extra time off is a luxury some people simply cannot afford. Surely no one would suggest that for someone who can barely pay for adequate food, housing, and medical care for their children, time off in lieu of additional pay erases all these financial strains. In a perfect world, the Family Time Flexibility Act might be a very good idea. But in a perfect world, employers would voluntarily offer flexible work arrangements to help their workers balance work and family life without needing a law to force them to do so. And in the imperfect world we live in, many workers who now benefit from current law–the most vulnerable ones who need legal protections–may suffer if this law is passed.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.