The Family Time Flexibility Act will not work for Wisconsin’s working families. (The first of two parts.)
Flexibility for whom?
The members of Milwaukee’s 9to5, along with the thousands of women and men who call the organization’s toll-free hotline, are desperate for more time with their families and more control over their daily schedules.
That is why 9to5 opposes the misnamed federal Family Time Flexibility Act. If it passes, this law will 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 limit on how much employers could require employees to work in a week, and set a price for hours exceeding that amount. The overtime provision was meant to make it more difficult for employers to 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 the nurses aides I know at a Milwaukee nursing home, face mandatory overtime. Because their job site is far from the central city and most of the workers do not have cars, they travel to the job in a company van. When the supervisor wants them to work a double shift, the van sometimes does not arrive until that shift has ended.
The Family Time Flexibility Act, 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 for employers to require 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 is not enforced, why should we feel confident that this provision will not be abused as well, particularly at a time when funding for employment law enforcement is being scaled back?
This bill also will not 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 laments that, but her low pay doesn’t cover the bills without the extra time. She fears a switch to comp time. Her foreman chooses who gets those overtime assignments, and Denise knows she will not be chosen if she does not agree to time off instead of pay. The bill pretends to anticipate such discrimination, but 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 protections.
Many workers who already have comp time complain about not being able to take it when they need it. Lisa, a paralegal, 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. She never sees most of her accrued comp time.
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 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 would be owed all the pay they are entitled to for unused comp time. This is a particular danger in the small, thinly capitalized businesses increasingly present in this economy.
By penalizing employers who required excessive hours from their employees at exploitative wages, the Federal Labor Standards Act 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 law’s overtime protections work more than twice as many overtime hours as those who are non-exempt. A full 44 percent of workers exempt from the premium pay requirement work more than 40 hours per week, while only 20 percent 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 passes it.
(Part II will be posted next week and will focus on worker-friendly alternatives to the Family Time Flexibility Act.)
April 27, 2003
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Ellen Bravo lives in Milwaukee, is director of 9to5, and is a FightingBob.com contributing editor.