The 'Flexibility' Is Just An Act: GOP Bill Wages Class War On Working Families

If, like me, you're a working parent or any other adult struggling to balance the demands of work and family, you know the two biggest challenges to pulling off that balancing act: Time and Money. We never have enough of either, and have precious little control over what we do have. Now, House Republicans have introduced a bill to make sure we have even less.

It's called the "Working Families Flexibility Act of 2013" (H.R. 1406), and it's as Orwellian as it sounds.

In fact, it fits this Wikipedia definition of "Orwellian" rather nicely: "Official encouragement of policies contributing to the socioeconomic disintegration of the family."

The bill is scheduled for a vote on the House floor tomorrow. It isn't any more likely to be signed into law than it was in 1997, 2003, or any of the other times Republicans introduced it in one form or another. In fact, it won't go any further than the House. If it did, working families would end up with even less time and less money, in exchange for the GOP's favorite variety of faux "flexibility."

It's (Not) Your Time

This "Working Family Flexibility Act" does not give workers the "flexibility" to take time off when they want. You have to ask for it, but you might not get it. According to the language of the bill, an employee "shall be permitted by the employee's employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the employer."

A few key phrases stand out.

"… shall be permitted …": Workers "shall be permitted" to use their comp time by their employers. In other words, an employer may allow you to use your comp time when you need it, but you don't have a right to use your comp time when you need it. You must ask permission to use your time, and then you must be allowed to use it.

Workers "shall be permitted" to use their comp time by their employers. In other words, an employer may allow you to use your comp time when you need it, but you don't have a right to use your comp time when you need it. You must ask permission to use your time, and then you must be allowed to use it. "… within a reasonable period …": What's a reasonable period of time? Who decides? The same people who decide whether you can use your time or not: your employer. Maybe it's a month, maybe two weeks, maybe you have until the end of the week. Actually, employers are the ones with all the flexibility here. They can decide to put all time over 40 hours into a "pot" to be used for future time off, over which they have complete control.

What's a reasonable period of time? Who decides? The same people who decide whether you can use your time or not: your employer. Maybe it's a month, maybe two weeks, maybe you have until the end of the week. Actually, employers are the ones with all the flexibility here. They can decide to put all time over 40 hours into a "pot" to be used for future time off, over which they have complete control. "… does not unduly disrupt …": What constitutes "unduly disruption" of your employers business? Who decides? Again, the same people who've made all the decisions so far: your employer.

Do you need to use your comp time to attend a critical parent/teacher conference at your child's school? Tough luck if your employer decides that your absence would be too much a "disruption." Getting that big order out the door, finishing that major report, or even just staffing the dinner rush trumps everything else — including family.

"It's your time," intones the TV spot for the bill. "You shouldn't have to choose between work or family." Well, it's not "your time." As far as this bill is concerned, "your time" belongs to your employer, to be doled out (or not) as they see fit. You can request it, sure. But, as we say where I come from, "Asking ain't getting." Your request can be denied.

As for "choosing between work and family," don't worry. You won't be the one making the choice. Your employer will decide, and will grant you use of "your time" if it doesn't disrupt their business or their bottom line.

It's (Not) Your Money

Every day thousands of Americans volunteer to work overtime, and even jump at the chance, because they need the money to pay for various family-related expenses. Sometimes, overtime pay can mean the difference between putting food on the table and keeping the lights on, or going hungry and sitting in the dark. Sometimes, it helps pay for medical expenses, or defrays the cost of putting kids through school.

Time-and-a-half pay can make a huge difference for working families. The "Working Family Flexibility Act" will insure that many working famines have even less money, by reducing take-home pay. Families will lose the supplemental income that overtime pay provides, and that money will end up in employers' hands instead.

An employer can not only decide to put all time exceeding 40 hours a week into a "pot" of time off to be doled out at a later date, but employers can also decide when that date will be. Employers can hold on to that "pot" until the end of the year. Employers can even designate "a 12-month period other than the calendar year," so long as they tell their employees.

Workers, then, are not paid for their overtime work during the current pay period. Instead, their overtime pay becomes an interest-free loan to the employer, to be paid back to the worker at the end of the year - or even later.

The flexibility in this comp time bill would have employees working unpaid overtime hours beyond the 40-hour workweek and accruing as many as 160 hours of compensatory time. A low-paid worker making $10 an hour who accrued that much comp time in lieu of overtime pay would effectively give his or her employer an interest-free loan of $1,600 - equal to a month's pay. That's a lot to ask of a worker making about $20,000 a year. Indeed, any worker who accrues 160 hours of comp time will in effect have loaned his or her employer a month's pay. This same arithmetic provides employers with a powerful incentive to increase workers' overtime hours. Instead of having to pay time-and-a-half wages when an hourly-paid employee works longer than the standard 40-hour work week, the employer incurs no financial cost at the time the extra hours are worked.

Even then, workers get extra days off, not the extra money overtime provided before it was transformed into comp time.

The bill includes a "safety valve" provision for workers to "cash out" of such agreements. But, as the Chicago Tribune's Rex Huppke pointed out, those safety valves would be fine in a perfect world, but they don't always work in the real world.

It's Not Your Choice

The bill presents the whole comp-time exchange as optional. Employers can choose to offer comp time instead of overtime, and employees can choose to enter into comp-time agreements with their employers. But Huppke asks "What happens if your employer tries to deny you the hours you have accrued?"

The bill explicitly prohibits that, but in the real world the interminable recession and the reality of working in a "no-quit" economy make it simple enough for an employer to make you "an offer you can't refuse."

In principle a worker's agreement to receive comp time instead of overtime pay is supposed to be voluntary. But anyone who has worked at a $10 an hour job understands what it is to get an offer from your employer that you can't refuse. Under the provisions of the bill, employers are not supposed to threaten, intimidate or coerce employees into agreeing to comp time in lieu of wages. But employers don't need to resort to such tactics. Everyone understands that in this economy, with unemployment still at recession levels, the employer holds all the cards. Workers who refuse to go along with an employer's request for comp time instead of wages know that their commitment to their employer will be questioned. They fear that in a crunch they will be vulnerable to having their hours cut or being let go. In a weak job market, very few hourly-paid workers can risk that. Without a union to protect their right to refuse to trade overtime pay for comp time, and with no funds in the bill for enforcement of these provisions, the voluntary nature of such agreements is highly suspect.

Faux "Flexibility"

When Republicans start touting "flexibility" working Americans and their families should make haste to their battle-stations, because it's an attack. If Republicans are offering your "flexibility" with one hand, they are usually taking away a lot more with the other hand. (For example, giving states more "flexibility" in administering Medicaid actually means slashing Medicaid's federal funding, and block-granting the remains to the states to administer as they please.)

In conservative doublespeak, "flexibility" stands in for "freedom," but for middle-class, working-class and low-income Americans, it means "freedom" to try and get by with a lot less. That's because the "Working Families Flexibility Act," doesn't actually give working family more flexibility. (The Healthy Families Act introduced by Sen. Tom Harkin (D-IA) and Rep. Rosa DeLauro, which would allow the 40 percent of private-sector American workers who have no access to paid sick days to accrue paid sick leave, does a much better job of this.) It takes flexibility away from our families and gives employers more flexibility to make their employers work longer and harder for less.

A quick comparison of organizations supporting the "Working Families Flexibility Act" and the organizations opposing it makes it clear that this bill is really about taking flexibility away from working families, and given employers even more flexibility to make their employees work harder and longer for less. On one side, we've got the U.S. Chamber of Commerce, the National Council of Chain Restaurants, the Retail Industry Leaders Association, and the International Foodservice Distributors Association, representing companies that employ many low-wage workers who rely on overtime, and have little enough "flexibility" already. On the other side, organizations like the Family Values At Work Coalition, the AFL-CIO, the Main Street Alliance, the National Employment Law Project, and the Service Employees International Union speak for the working families who would be harmed by this Republican-backed bill.

The National Partnership for Women and Families spells out exactly what's wrong with the "Family Flexibility Act."

The Working Families Flexibility Act offers a false choice between time and pay. The bill’s supporters claim H.R. 1406 would give hourly workers more flexibility and time with their loved ones by allowing them to choose paid time off, rather than time-and-a-half wages, as compensation for working more than 40 hours in one week (“comp time”). But the irony is that workers will only get more time with their families after they’ve spent long hours away at work. And there is nothing in H.R. 1406 that guarantees that workers will be able to use the comp time they have earned when they need it. The worker flexibility offered by H.R. 1406 is nothing more than a mirage. That’s because this proposal gives the employer, not the employee, the “flexibility” to decide when and even if comp time can be used. The bill permits the employer to deny the request entirely if the employee’s use of comp time would “unduly disrupt” operations or to grant leave on a day other than the day requested by the employee. This means that H.R. 1406 provides no guarantee that workers can use their earned time when a child falls ill, to attend a parent-teacher conference, or to help an aging parent settle in to a nursing home. Employers can veto an employee’s request to use comp time even in cases of urgent need. H.R. 1406 would put workers at very real risk and provides an interest-free loan to employers. An employee who does not accept comp time could be penalized with fewer hours, bad shifts and loss of overtime hours. And because it is cheaper to provide comp time than to pay overtime wages, there is a significant incentive for employers to hire fewer people and rely on overtime hours – paid for in future comp time – to get work done. It would permit employers to defer compensation for unused comp time for as long as 13 months, creating an interest-free loan for employers and hardships for workers.

Once again, Republicans are advancing policies that benefit the powerful at the expense of hard-working Americans, and selling it as "flexibility" instead of calling it was it really is — class warfare against working families.