Comp-time is a common practice in the public sector and has been regularly used by public sector employees since the FLSA was amended in 1985. It is available in the private sector too, but the requirements in place for an employer to do it right make it nearly impossible to use. Which is why private sector employers who want to follow the law don’t often try to use it.
An effort is taking place in Congress to amend the FLSA. The Working Families Flexibility Act (H.R. 1180, S. 801) would to permit employers and workers to voluntarily agree to 1.5 hours of compensatory time for each hour of overtime worked, up to 160 hours of leave per year. Requested time off would require employer approval. The bill also permits employees to cash out their comp time when they leave the job.
The House passed the bill on a vote of 229-197. It now moves to the Senate. President Trump has said he will sign the bill if it reaches his desk. It would need Democratic support in the Senate to get there and that seems unlikely, given the reaction of House Democrats, one of whom referred to it as a “cruel joke on workers.”
Rep. Pramila Jayapal, from Washington, said “[i]t gives employers flexibility to not pay for time worked. It’s a smoke-and-mirrors promise that ultimately helps employers but hurts workers. The choice between overtime pay and comp time is a false choice for workers. We know what happens in the reality of the workplace. The vague promise of time off in the future is often never realized and many hourly workers may feel compelled by employers to forfeit their overtime pay to accept comp time.”
This is not the first time that comp time legislation for private sector employees has been introduced. It has been a pretty regular thing since the 1990’s. In 2013, a similar bill passed the House with three Democrats voting in favor of it, but it got nowhere in the Senate.
Putting aside politics (which is of course impossible in this day and age), comp time can actually be a real benefit to both employees and employers. Not every Republican effort is a boot on the throat of the people. The fact that the rules are different for public and private employers is particularly irksome.
The FLSA is an early 20th century law trying to be applied in a 21st century world. There should be thoughtful consideration of the way in which changes could be made to the law that will benefit both employees and employers. It will be interesting to see how new Labor Secretary Acosta addresses some of those issues.