A big worry of opponents of the bill is that employers will have the power to coerce employees into taking comp time instead of having to pay them overtime wages. When confronted with this possibility, the bill’s sponsor, Rep. Martha Roby (R-AL), told the Sirius radio show The Morning Briefing with Tim Farley that employees will be able to turn to existing worker protections against coercion under the Fair Labor Standards Act (FLSA):
The employee absolutely can pick up the phone and call the Department of Labor and report their employer because that is not allowed. The anti-coercion and discrimination provisions in this bill are very clear, that an employer cannot not use compensatory time in any way to coerce or discriminate or force an employee to take compensatory time… All of the protections that are currently under the Fair Labor Standards Act exist under this bill as well for the employee to make sure the employer does not take advantage of the employee.
But workers may not be as well protected as Roby indicated. While the bill does give workers the right to sue, George Zornick reports at The Nation that they are denied the use of a faster and cheaper avenue through the Department of Labor. On top of this, it doesn’t give the Department of Labor any extra funds to investigate or enforce the anti-coercion provisions. This means that workers who experience intimidation may have to hire their own lawyer and shell out lots of money to bring a case.
Meanwhile, the balance of power often rests with employers. Workers are fighting wage theft, or employers violating FLSA overtime laws, at huge rates. A 2009 survey reported that two-thirds of low-income employees had experienced a wage law violation in the previous week alone. The problem has been on the rise, with actions filed in federal court alleging wage and hour violations increasing by 400% between 2000 and 2011. Many employers are already failing to follow the FLSA’s rules.
Opponents have other concerns with the legislation. The FLSA requires overtime pay for work over 40 hours a week, which provides a big disincentive to ask employees to work long hours. That could diminish if employers can offer comp time instead. Employers may also be able to deny requests to use the comp time if they can claim it “unduly disrupts the operations of the employer” or that the request didn’t come in “within a reasonable period.”
In the radio interview, Roby also pointed to the fact that public sector workers have had this arrangement since 1985. But as Alex Seitz-Wald reports at Salon, “that move was to cut costs for government, not provide workers with more freedom,” plus government employees generally have a union to help them fight employer violations.
In fact, this is an old idea that has had trouble gaining traction over the years. Seitz-Wald points out that Republicans introduced similar legislation in 1996, 1997, and 2003. If Republicans are looking for policies that can help today’s working families, they could consider paid family and medical leave, paid sick days, and protections for workers who request flexible working conditions.