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.

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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.”

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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.”

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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.”

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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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