The Working Families Flexibility Act and How It Will Affect You: A Report From Your Atlanta Employment Attorney

The Working Families Flexibility Act is a piece of federal legislation that was passed by the U.S. House of Representatives on May 8. The Act would amend the Fair Labor Standards Act (“FLSA”), and would give private sector workers the same type of “comp time” options that are available for public sector workers. Introduced by Republican U.S. Representative Martha Roby of Alabama, the bill passed with the support of many members of Congress, as well as the U.S. Chamber of Commerce and other major industry groups. However, prior to its passage, the National Employment Lawyers Association, along with 160 other national and state bases organizations wrote a letter to the House members opposing the bill.

As your Atlanta employment attorney can advise you, current federal law prohibits private sector employers from offering their employees paid time off or “comp time” instead of overtime cash wages. The Act would remove this prohibition, but would ensure that any comp time option would be voluntary on the part of the employee. In other words, an employee would have the freedom to choose between comp time and overtime pay for hours worked beyond a standard 40-hour work week.

In order to safeguard the voluntary nature of any comp time arrangement, an employee would have to knowingly and voluntarily enter into a written agreement with the employer in order to exercise the comp time option. A worker could not be forced by an employer to take comp time in lieu of overtime pay; similarly, an employer could be forced by an employee to offer comp time in lieu of overtime pay. However, those who oppose the bill, warn that employees who refuse to use comp time over overtime pay run the risk of being discriminated against, as there the bill does not include any enforcement provisions. If an employee is represented by a union, then the comp time agreement must be part of the collective bargaining agreement.

As your Atlanta employment attorney understands it, comp time would accrue at the same rate as overtime pay. In other words, one hour of overtime worked would be equivalent to one hour and a half of comp time, just the same as an employee would be paid at a “time and a half” rate for overtime work. Employees would be permitted to accrue up to 160 hours of comp time per year. An employer would be required to pay an employee wages for any accrued comp time remaining at the end of the year that the employee has not used.

While public sector employees have enjoyed the benefits of comp time for over 25 years, the Act could substantially change overtime benefits for private sector workers. Although the Act could bring about changes that would benefit workers, it also could lead to unwanted overtime hours for some workers. Plus, there is no guarantee that employees would be free to take comp time when they actually need to take it. Presumably the employee would only be able to use the comp time when approved by the employer, not when family emergencies or other issues that necessitate leaving work arise. In this sense, then, the Act may create some problems for workers, as well. Furthermore, the converted comp time isnot protected in the event that an employer goes out of business or enters bankruptcy.

Currently, the bill is pending in the Senate Committee on Health, Education, Labor & Pensions, although no action is expected. In any case, it will be important for your Atlanta employment attorney to continue to follow this legislation and monitor any changes or developments. If you have any questions or concerns about overtime pay in your workplace, contact our office today, and let us give you the knowledge and education that you need.

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