When ‘Flex Time’ Means Ripping Off Workers

The Working Families Flexibility Act is actually a business-friendly Trojan horse

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Flexibility is a slippery word.

To advocates of family-friendly work policy, it means having the ability to have some choice in how you work, where you work and when you work — without putting your job or your career prospects in jeopardy.

For the fortunate, generally white collar and well-educated workers who have access to this sort of flexibility, it means being able to work from home, take time off for parent-teacher conferences or perhaps temporarily cut back to a reduced workweek.

For low-wage workers, however, flexibility all too often means being at the beck and call of employers. These workers can be — and often are — sent home on a moment’s notice (and without pay) when business is slow. They are told to cancel long-scheduled personal days if business picks up, and are sometimes threatened with immediate firing if they can’t stay late at work for last-minute overtime because they need to get home to their families.

(MORE: Will Family Issues Finally Get Addressed?)

This confusion of meaning was clearly what House Republicans were counting on when they chose the Working Families Flexibility Act as the name of legislation that aims to free businesses from the necessity of providing workers with overtime pay when they labor extra hours.

The treacherously named bill, which was introduced early last month by Alabama Republican Congresswoman Martha Roby, with the enthusiastic support of House majority leader Eric Cantor, would allow private-sector employers to compensate workers with time off when they put in more than 40 hours a week instead of paying them the time-and-a-half overtime wages now required by the Fair Labor Standards Act. Cantor, eager to woo female voters who abandoned the party last fall, has hailed this new deal as a boon for American families — a way to allow mothers and fathers to “participate in the lives of their children,” as he put it, in a memorandum to House Republicans, early last month. “All too often working parents find there just isn’t enough time at home with their kids,” he wrote. “Too many parents have to weigh whether they can afford to miss work even for half a day to see their child off on the first day of school or attend a parent-teacher conference.”

(MORE: Yahoo’s Work-at-Home Ban: Why It’s a Working-Dad Issue Too)

The problem with this lovely sounding legislation is that few employees these days can “afford” to give up overtime pay, which for many — those in low-wage jobs in particular — is just the extra bit of money that keeps food on the table. These same employees generally can’t afford to refuse what’s asked of them by their employers. And there’s every reason to assume that, if they can legally do it, employers will rush to request that employees take their extra compensation in time off instead of expensive overtime pay. As Eileen Appelbaum, a senior economist at the Center for Economic and Policy Research in Washington, D.C., has neatly put it, overtime really adds up — and if employers can keep the money, rather than putting it in the pocket of those who earn it, they can make out like bandits.

“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,” Appelbaum explained recently in the Huffington Post. “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 workweek, the employer incurs no financial cost at the time the extra hours are worked.”

(MORE: The Promise of More: Why We Should Raise the Minimum Wage)

And as far as that much vaunted time for family goes, the employer holds all the cards about when and how an employee takes it. Employees have the right to their free time within a “reasonable period after making a request” and are allowed to take it only if their use of the time does not “unduly disrupt” the operations of the employers. In other words, they can have “their” time when and if the employer feels like granting it — and not, necessarily, when the employee wants and needs it.

It’s a raw deal for working families — which is why the bill is being opposed by legislators like Carolyn Maloney, a Democratic Congresswoman from New York with a solid track record of supporting real family-friendly legislation, like last year’s very different Working Families Flexibility Act, which would allow employees to request changes to their work hours, times and location of work, require employers to give their workers a considered response, and protect those employees from retaliation. For this act of principle, Maloney and 19 other Democrats were targeted this week by a new digital ad campaign paid for by the National Republican Congressional Committee. The campaign, which is being featured on more than 100 “mommy blogs” and other female-reader-heavy websites like MarthaStewart.comaccuses the legislators of being unwilling to “stand up for working moms.”

(MORE: More Ways Women Sabotage Themselves)

One hopes that reasonable undecided legislators won’t fall for this “family friendly” Trojan horse. And that voters won’t be taken in by its warm-and-fuzzy name. This is business-friendly legislation of the baldest kind. Republican lawmakers have said for years that they won’t sign on to any remotely real family-friendly legislation (like broadening the reach of the Family and Medical Leave Act to the 40% of Americans who now aren’t covered by it) unless this probusiness comp-time bill is passed. It remains to be seen whether Democrats will be willing to deal away workers’ most basic and minimal control of their work hours and wages as a way to advance their own legislative priorities.

In the longer term, however, advocates of family-friendly workplace changes will have to confront the fact that flexibility is simply not a terribly useful term — it means too many things to too many people, and for a lot of people it means nothing at all. It’s the kind of term that’s been appealing in the past precisely because its slipperiness has fed hopes of drawing together unlikely allies and finding common ground. But when flexibility just means bending the truth, there simply is no common ground possible.

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30 comments
lazarus00000
lazarus00000 like.author.displayName 1 Like

I was cheated out of hundreds of hours of pay because of the flex system. My job was fluid and often required me to work long, unscheduled hours... children's lives depended on it. But unless I strictly followed the directives (Sometimes not possible), or unless the flex was the next day, (Sometimes not possible), ofr unless my supervisor would not allow me to take off (very often), Then the hours worked where I should have had overtime was not paid at all.

social worker in Texas

hrned
hrned

Both the article and comments are ridiculous. I'm used to Republicans fear-mongering, but the statements made here are just wrong.

First, by law, employees who are non-exempt (that is, not exempt from wage and hour laws) earn overtime at either 1.5 or 2 times the regular wage rate. If comp time is allowed (in some cases a limited amount is allowed), it must be paid out at the actual rate earned. That means that if 2 overtime hours earned at 1.5 times the normal rate, the employee would receive 3 hours of comp time.

Second, employees classified as EXEMPT do not normally receive overtime pay. The poster who talked about exempt employees receiving 3/4 pay is deluded.

Third, some employees would prefer more flexibility and time off than more pay (for example, a parent in a dual income family). Current law doesn't allow this.

Fourth, case law typically does not allow businesses to eliminate a "vested benefit" such as earned vacation or comp time. If an employee is fired before using that vested benefit, they would be entitled to pay in lieu of the benefit.

Last, I haven't read the Republican proposal, yet I believe they've made mouth noises that there are protections for employees. My experience leads me to believe that most Republican proposals are written by lobbyists, or for their wealthy patrons - and do not seek to serve the needs of the vast majority of Americans. However, as a long-time corporate HR manager, I've seen plenty of people who would have preferred comp time to overtime pay. Legislation to make this easier - with appropriate employee protections - need not be a rip-off of workers.


joeaverager
joeaverager

Friends I have that work for a state agency I know get neither of these. One - low level staff - gets comp time but never any money. Another - an engineer - gets neither overtime money nor comp time. Good place to work but they argue you have to get out on time and be unavailable afterhours or the work/life balance is a mess b/c that makes it too easy for the workplace to invade your free time. The one employee says he accrues weeks of comp time and it is difficult to get time off to use it. 

Rio
Rio like.author.displayName 1 Like

@hrned   The interesting part is "appropriate employee protections" : what doe that really mean?

AhrenMcLaren
AhrenMcLaren like.author.displayName 1 Like

What I see is a way to not have to EVER pay out on that "comp time." If the fire me before I can use the "comp time" I have accrued, do they have to pay me for it, or does it get to be happily overlooked and I work overtime for nothing....

Travon
Travon

What is the use of Diploma and your scholarly achievements if you would have a job that is using you and taking advantage of you? I read this article with a lot of interest because I am currently reading a very interesting book on Goodreads called THE 5-STAR BUSINESS NETWORKS by Vivek Sood This book helped me realize that to be able to be like ZUCKERBERG I need to build my own EMPIRE. my own BUSINESS. who wouldn't want to be the BOSS?

o2bwiser
o2bwiser like.author.displayName 1 Like

Just another way to keep the least among us chained to the lowest rungs.  When will we stop using power to subjugate and enslave the least among us

gl1954
gl1954 like.author.displayName 1 Like

I question the rate at which comp/flex time will be proferred - will it be equal to the time-and-a-half rate of overtime?  For instance, if you work four extra hours that would otherwise be overtime, will you receive six hours of compensatory time?

JohnZ
JohnZ

No, you would receive hour for hour--no more.

dboyadzhyan
dboyadzhyan

@JohnZ‘(1) GENERAL RULE- An employee may receive, in accordance with this subsection and in lieu of monetary overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required by this section. 

It is time and a half; read the actual bill before you believe crap like this from your "trustworthy" news media. 

ronajrny
ronajrny like.author.displayName 1 Like

Worker exploitation will not stop until the workers themselves put a stop to it. Many courageous men and women have died in this nations history by standing together and saying " I will NOT take this anymore." This they did while they watched their families go hungry and suffer, daily risking their lives and dying for what they believed.

When American workers are willing to make whatever sacrifices they need to make to begin the process of turning this criminal abuse around things will start to change. It will not be easy or bloodlesss, nothing worth fighting for ever is. It will become more difficult to effectively fight with any hope of winning every passing day as our congress, senate, courts and other legislative bodies continue to be bought and paid for by corporate greed.

Dedicated, organized groups fighting for what is right are what built and protected this country. Organizing and fighting is an essential undertaking if American workers are to be able to sustain themselves in the face of this continuing onslaught by the business world and their stooges.

Fight for yourselves, for other workers, for your families future and our nations future. This fight will not be won if approached as anything short of a war for the survival of the masses. We must pick up the gauntlet and fight like there is no tomorrow because if we do not, there will be no tomorrow for the American worker or the USA.

Hadrewsky
Hadrewsky

@ronajrny 


There are more workers than jobs... the jerks who employ you can replace you with little hassle

you have no power and we are all screwed

mandycat
mandycat like.author.displayName 1 Like

Businesses have been using flex time to rip off their exempt employees for years now.  The ability to work at home just means you now have the flexibility to work all day at the office and half the night at home in your PJ's.  I wondered how long it would take those business-loving right wingers to figure out how to screw over non-exampt employees.  I'm actually surprised it took this long.  

John
John

I worked for one company back in the 70s that would pay you 3/4 time if you had to work past 40 hours to get the work done, and then it had to be scheduled by management to even get paid.  I guess it was their way of coercing you to get the work done in 40 hours, because you either did it gratis, or you took the penalty of 3/4 time.  This was for exempt employees only - they couldn't get away with it for non-exempt employees.

Onepatriot
Onepatriot like.author.displayName 1 Like

I've worked where they have "flex time".  Ha.  The way they are portraying this bill "to allow you time to devote to family functions when needed" is just a ruse to get you to work o.t in order to have it.  Reality is that you are giving up your family time by doing the o. t. when they need you at work.  They get the work done at savings to them and your family can wait on you till they have time to let you go.

bigtroublet
bigtroublet like.author.displayName 1 Like

The only way I would be able to support a bill like this was if instead of leaving the decision of 1.5x pay of time off was left up to the employee, not the employer. If they structured the bill that way it would meet all of the goals they claim to want. They definitely bring up some good points, and changes do need to be made, but the bill in its current form is not the answer.

MartiWilliams
MartiWilliams like.author.displayName 1 Like

Yeah...I almost got caught in this boondoggle...The pay was time and half, but the flex time was hour for hour....guess who took the money. I may be crazy( I worked in a state psych hospital) but I ain't stupid. Workers need to stand up to employers when they try this sneaky way to get around not paying for over time, or just as bad...not hiring enough people to do the job correctly in the first place.

joeaverager
joeaverager

@MartiWilliams I worked at a place where salaried employs got nothing - neither comp time nor money until their work hours exceeded 60 hrs per week. Guess what? It was quite typical for the work weeks to almost reach 60 hrs per week. Allowed them to hire fewer engineers... I left for greener pastures which are not perfect but far-far better.

gl1954
gl1954

@MartiWilliams Is this bill structured the same way?

MartiWilliams
MartiWilliams

@gl1954 @MartiWilliams I don't know...but most people who work overtime need the money and to make working people who make minimum wage is unreasonable when they may not be able to make their 2nd job, or even be able to afford the cost to keep their child in day care longer.

DeweySayenoff
DeweySayenoff like.author.displayName like.author.displayName like.author.displayName like.author.displayName 4 Like

What I see:

The Stock Market is hitting record highs.

The wealthy have long since recovered their losses from 2007 and are accumulating even greater wealth today.

The luxury goods markets are booming.

The average American is still struggling to get back to pre-2007 levels.

The job market is being very slowly opened with low-wage jobs, minimum wage jobs and entry-level jobs - all of which will fall under this bill's scope and very few of which will provide a one-job liveable income.

In red states, union-busting is going on apace, with companies given blank checks (as in low or no taxes) to relocate under business-favorable labor laws (like this one) and abuse the workers in those states.

It would seem the Republicans are doubling down on their policies for a reason.  If they deviate from the plan, they'll be out of business entirely and then their masters won't get the master/slave state of the United States they want.  As it is, they've already gerrymandered themselves into a dictatorship in most Red states where dislodging them democratically will be next to impossible because they've undermined the democratic process by doing that.  They've used the social agenda smokescreen to keep their most loyal followers and believers behind them all the while making sure the average American gets screwed, blued and tattooed in order to serve the wealthy under laws like the one proposed.

Is it time for the pitchforks and torches YET, Dr.Guillotine?  Or will the people of America wake up from their zombie-like trance and realize just how evil the GOP is for the average citizen of our country?

SwiftrightRight
SwiftrightRight like.author.displayName like.author.displayName like.author.displayName 3 Like

I had a job once that exploited my states "fair employment" and "right to work" laws to "ask" technicians to stay on during high demand. It was the only job I have ever walked out of. They started losing contracts due to poor quality of their product and all the owner could do was blame his workers for being lazy stupid and having no loyalty. 

DeweySayenoff
DeweySayenoff like.author.displayName like.author.displayName 2 Like

@SwiftrightRight Yeah, it's so easy to have loyalty to companies who treat their workers like wage slaves.

joeaverager
joeaverager

@DeweySayenoff @SwiftrightRight Sometimes an employee needs to have loyalty to their employer to pay their bills until the employee can get to a point where they can afford to look for other work. You know, those employees who have mortgages and car payments where a month or two out of work might leave the employee bankrupt?

kmswann
kmswann like.author.displayName like.author.displayName like.author.displayName 3 Like

As a previous federal employee on flex time, I only became aware of the dangers of the schedule through my caring supervisor, who elucidated the loop holes within it. He was opposed to the schedule specifically because it would take money out of his crew's collective pocket as well as because it would (and did) prevent us from doing the time sensitive field work we needed to do once our weekly hours were met because "overtime" was not allowed. If we did work "overtime", we would have to count those hours as "credit hours" - which can be used in place of annual leave hours. Basically, if by day 3 we had worked 40 hours already, we weren't allowed to come in for day 4 of work. Not so bad, unless that interfered with our field work's integrity. Poor data = poor statistical analysis = poor ecological health in this case. 

In addition, we were on a schedule of 4 days on at 10 hours a day (again, to help with the time sensitive work - although really we should have been working 12 hour days). If I was sick one day, according to the flex schedule, I only would be allowed 8 hours of sick leave for the day - meaning I would have to make up 2 hours somehow (which becomes complicated when you work based on a crew's schedule, not your own), or I would have to take 2 hours of annual leave/credit hours to make the schedule work correctly. Generally, you try to use your credit hours because (unlike annual leave) at the end of the season you don't get reimbursed for them, they just disappear. 

All in all, this was not a productive schedule in a crew setting, and provided more headaches than solutions. 

NamecNassianer
NamecNassianer like.author.displayName 1 Like

Great article, Judith!

Those devilishly clever Republicans; what will they think of next?

So an employee accumulates 30 days of "flex time" (assuming the employer even keeps track of it). Then the employee gets fired.  So what happens to all that "flex time"?

Or an employee accumulates 30 days of "flex time", and every day the sales are slow, the employer sends the employee home and forces the employee to use "flex time" to fill out the rest of the 8-hour day.

Another win/win for the employer, and another loss for the worker.