Comp Time Bill Faces Senate Fight

Legislation giving time off for overtime passes House with no Democratic support

By Stephen Miller, CEBS May 3, 2017
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​The U.S. House of Representatives voted to approve legislation that would allow private-sector employers to offer compensable or "comp" time programs. This approach, now barred for private-sector employers by the Fair Labor Standards Act (FLSA), would give hourly and salaried nonexempt workers the choice to take paid time off for overtime hours worked or to be paid at a rate of time-and-a-half, as they currently are.

But the measure, supported by the Society for Human Resource Management (SHRM), could face a Democratic filibuster if moved forward by the Senate.

The House approved H.R. 1180, the Working Families Flexibility Act of 2017, on May 2 by a vote of 229 to 197, with no Democrats voting in favor. The bill now moves to the Senate for deliberation.

"SHRM is pleased with this vote by the House to advance H.R. 1180 to give private sector employees and employers the choice of offering and receiving comp time," said Lisa Horn, SHRM's director of congressional affairs. "It seems only fair to extend this benefit to the private sector since the public sector has enjoyed this option for more than 30 years. While it's unclear when the Senate might take up companion legislation—S. 801, introduced by Sen. Mike Lee, R-Utah—SHRM will continue to advocate for action on this bill to provide organizations and employees with another workflex option."

Last month, two SHRM A-Team members testified before the House Subcommittee on Workforce Protections in support of H.R. 1180. 

"SHRM has a long record of supporting efforts to extend comp time to the private sector," said Patrick Brady, SHRM senior advisor, government relations. 

Many U.S. employers have sought the right to offer workers a choice of paid time off equivalent to time-and-a-half pay for overtime hours worked, and many private-sector workers favor having that choice. The Working Families Flexibility Act would amend the FLSA to allow employers to provide employees with a time-off-for-overtime option.

"This compensatory time, or 'comp time,' would be completely voluntary for the employer and employee with strong worker protections to prohibit coercion," said lead sponsor Rep. Martha Roby, R-Ala., during debate on the bill. "Comp time is already widely used by government employees. As a working mom, I understand all too well the challenges that working parents face in juggling a career and managing a family. … Congress can't legislate another hour into the day, but we can give working parents more choices over how they use their time."

Employees would have "the opportunity to build a bank of time that they can use to take paid time off when they need it, provided the time off does not unduly disrupt the business operations of the employer," said Mike Aitken, SHRM's vice president for government affairs.

But as the vote suggests, congressional Democrats and their interest-group allies oppose the measure. Unlike House proposals, Senate bills (except for tax and budget-related measures) can be filibustered—or kept from an up-or-down vote—by opponents. It takes 60 votes in the 100-member Senate to break a filibuster, and Republicans hold only 52 seats.

"Despite the bill's misleading name, it would offer working people less flexibility, less pay and less time," said Debra Ness, president pf the National Partnership for Women & Families, a liberal advocacy group. "This bill would give all employers a license to demand extra hours and deny people control over their schedules. Congress should instead prioritize higher wages and truly family friendly measures, such as paid sick days, paid family and medical leave, fair pay and schedules, and protections for pregnant workers."

[SHRM members-only HR Q&A: Is compensatory time allowed in the private sector?]

Worker Protections at Issue

Supporters of the bill point out protections to ensure employers do not force employees to take time off in place of overtime pay. The bill would:

  • Allow employers to offer employees a choice between cash wages and accruing comp time for overtime hours worked.
  • Require that the employer and the employee complete a written agreement to use comp time, entered into knowingly and voluntarily by the employee.
  • Retain all existing employee protections in current law, including the 40-hour workweek and overtime compensation accrual requirements.
  • Allow employees to accrue up to 160 hours of comp time each year. An employer would be required to pay cash wages for any unused time at the end of the year. Workers would be free to "cash out" their accrued comp time whenever they choose to do so.
  • Prohibit employers from intimidating, coercing or forcing employees to accept comp time instead of cash wages. Violators would have to pay employees double the amount of wages owed.
  • Require the nonpartisan Government Accountability Office to report to Congress on the extent private-sector employers and employees are using comp time, as well as the number of complaints filed with and enforcement actions taken by the U.S. Department of Labor.

The bill's worker protections are "even stronger than those that currently exist in the public sector," said House Education and the Workforce Committee Chairwoman Virginia Fox, R-N.C.

But Rep. Bobby Scott, D-Va., the committee's highest-ranking Democrat, said that although the law currently allows public-sector employers to substitute comp time for overtime pay, government entities "don't have the same incentive to underpay workers that the private sector has."

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