House passes comp time bill; White House voices support

The U.S. House of Representatives has passed a bill that would allow private employers to offer workers compensatory time off in lieu of overtime pay.

The Working Families Flexibility Act of 2017 will now go to the Senate. However, despite having the White House’s support, the bill could face obstacles.

The bill

H.R. 1180 would amend the Fair Labor Standards Act (FLSA) so that employers could offer workers the option of banking paid time off instead of receiving 1½ times their regular rate for hours worked over 40 in a workweek.

The parties would have to agree to the arrangement in advance, and employees could accrue no more than 160 hours of comp time. Employers would have to allow workers to use their comp time within a “reasonable period” after making a request but could deny a request if it would “unduly disrupt” operations. Also, employers would have to cash out comp time banks every year.

The public sector already has that option available, and Republicans say private businesses should have it as well. Because the bill incentivizes the program for employers, it will encourage more businesses to allow workers to take time off as needed, supporters say. In written testimony, a representative of the Society for Human Resource Management (SHRM) told Congress that the bill would result in more employers offering more time off because they’ll receive predictability and certainty in exchange.

Democrats and worker advocates, however, say the bill merely amounts to an interest-free loan for employers and includes no guarantee that employees would be able to take time off when they want. They also say the program will cause employers to offer overtime hours to employees who agree to accept comp time first, denying extra pay to employees who need it most.

David S. Fortney, a founder of Fortney & Scott and an editor of Federal Employment Law Insider, believes the bill properly addresses those concerns and said the program will benefit both employees and employers: Workers will have improved access to time off, and employers will gain consistency in paying workers.

Next steps

The House has passed similar bills before, but they have always died in the Senate, which means H.R. 1180 carries some baggage, Fortney said. The most recent bill passed the House 229-197 almost along party lines. It’s possible that the Senate could pass the bill, Fortney added, but if the Senate votes in a similar manner, the measure could face a filibuster there.

The White House offered its support for the bill on May 2, saying in a statement that the administration believes the bill would help workers balance the competing demands of family and work. The administration also said it believes the bill contains satisfactory protections to ensure that employers won’t coerce workers into accepting comp time instead of overtime pay.

“If H.R. 1180 were presented to the President in its current form, his advisors would recommend that he sign the bill into law,” the White House said.

If the bill doesn’t pass the Senate, it could at least serve as a springboard to continue a national discussion on workplace flexibility, Fortney said. Noting that the FLSA was designed for the workforce of the 1930s, he said comp time may be just one component in a series of broad updates that could include things like flexible scheduling. Regardless of whether comp time is approved for private-sector use, “we need to develop workplace rules that meet the needs of today’s workforce,” Fortney said.

About Kate McGovern Tornone:
Kate Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, coauthored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a bachelor of arts in media studies. Kate can be reached at ktornone@blr.com.
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