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Is the Working Families Flexibility Act really flexible?

If we lived in a perfect world, doughnuts would be vegetables, Matthew McConaughey would have my abs and I would have his, and work would be a high-paying activity that involved naps.

Also in a perfect world, a thing called The Working Families Flexibility Act of 2013 would be a good idea. This is not, however, a perfect world, as evidenced by my non-McConaughey-like abs.

And I fear that this enticingly named piece of legislation, awaiting a vote in the U.S. House of Representatives, is not a good idea.

The act, introduced by Rep. Martha Roby, a Republican from Alabama, would allow private-sector employers to offer workers comp time in place of overtime pay, ostensibly giving them greater flexibility in scheduling their busy lives. Public-sector employers have been allowed to offer comp time since 1985, but the Fair Labor Standards Act still mandates that private-sector employees be paid for overtime work.

According to the bill, it would be up to individual employers whether to offer option for comp time, and then it would be up to individual employees to choose time or pay. And, yes, the comp time would accrue as time-and-a-half.

"It's voluntary from the beginning for the employer and the employee," said Todd Stacy, Roby's spokesman. "And if it doesn't go right, there's a cash-out provision. Within 30 days you get to cash out if it's not working out. There are sort of built-in safety valves."

The problem with built-in safety valves is they don't always work, and then the whole thing blows up. And that's why a number of worker advocacy groups oppose Roby's bill.

"It should be called the Employer Flexibility Act, because at every turn here, the employer gets to decide," said Judith Lichtman, senior adviser for the National Partnership for Women & Families. "It pretends to provide a set of options to employees. But even if they elect to take the comp time instead of wages, when they can take it is fully at the discretion of the employer. You have no ability to take that leave when you need it. The employer can decide."

I read the bill and agree with this interpretation. Though it calls for an in-writing agreement between the employer and employee, it says the employee can use comp 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."

So if you stockpile some comp time and want to take a half-day to go to your child's T-ball game, it's not simply a matter of saying, "I'm taking that comp time, see ya." It has to be approved — and can easily be denied.

Similar versions of this bill have been proposed in previous sessions of Congress.

"The reason it has not succeeded is because it's not a good law," said Jac Cotiguala, a Chicago labor and employment attorney. "Despite the clever name, it is not in the best interest of working people to have anything remotely like this pass."

One of the biggest concerns is how these rules would be enforced.

Stacy, the congresswoman's spokesman, said, "You've got to remember that the protections that already exist under the Fair Labor Standards Act and the enforcement mechanisms that exist for all complaints or issues (about overtime) will exist for this as well."

Fair enough, but Department of Labor enforcement of overtime laws has not halted violations.

"Many, many, many of the current lawsuits are for unrecorded work time, undocumented work time," Cotiguala said. "Time for when somebody has spent time on work for which they weren't actually paid. This bill would encourage employers to take lousy record keeping to another level of chicanery."

Lichtman added: "There's no real enforcement mechanism, and there's no money for the Labor Department to enforce this provision. They already have a backlog, so how are they going to enforce this? The only thing you could do is go yourself and sue, and hourly wage workers don't usually have the disposable income to do that."

Stacy confirmed there's no money attached to the bill to increase enforcement.

"This doesn't assume that it will add additional costs," he said. "I don't think we should just assume it's going to cause a lot of problems."

That's exactly what we should assume. This bill presents comp time as optional, but what's to keep an employer eager to save money on overtime costs from pressuring employees to accept comp time, particularly when many workers are clinging to their jobs for dear life?

And what happens if your employer tries to deny you the hours you have accrued? The bill technically prohibits that, but for those of us living in an imperfect world, you know it's going to happen.

For those who think I'm being too cynical about employers playing fast and loose with hourly wage laws, consider this: I pulled data from the Department of Labor and found that companies in Rep. Roby's home state of Alabama have, since fiscal 2007, paid more than $50 million in back wages stemming from cases in which the Fair Labor Standards Act overtime rules were violated.

And that's coming from a Labor Department that already can't keep up with the claims.

I encourage you to read the bill and consider both sides, and then talk to your representative and tell her or him whether it's something you want to see passed.

I'm all for giving workers more options. But this strikes me as a risky way of going about it, particularly in a world where few things are as good as they sound.

TALK TO REX: Ask workplace questions — anonymously or by name — and share stories with Rex Huppke at ijustworkhere@tribune.com, like Rex on Facebook at facebook.com/rexworkshere, and find more at chicagotribune.com/ijustworkhere.

Copyright © 2014, The Baltimore Sun
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