House approves comp time instead of OT pay

The House of Representatives on May 2 voted to allow most employers to offer compensatory time off in lieu of overtime pay when nonexempt employees work more than 40 hours in a week. The Working Families Flexibility Act of 2017 would not require comp time, but would make the option available for both employers and employees.

Under the legislation, employees of organizations choosing to offer comp time would have a choice: either voluntarily bank one-and-a-half hours of unpaid leave or take the usual time-and-a-half overtime pay.

Read the text of H.B. 1180, which would amend the Fair Labor Standards Act, at www.congress.gov/bill/115th-congress/house-bill/1180.

The bill now moves on to the Senate, where Majority Leader Mitch McConnell has yet to schedule action. When similar legislation circulated in 2013, McConnell voiced his support.

Public employers have been able to offer comp time since 1985.

Payroll Handbook D

Supporters of the legislation say it would give hourly workers more flexibility to handle work and family responsibilities, as exempt employees can. Detractors fear employers will coerce workers into accepting comp time instead of overtime pay.

The bill seeks to address that concern by allowing employees to cash out banked comp time. Employers would have 30 days following an employee’s request to pay out the value of banked leave.

Employers would have to carry the value of accrued comp time on their ledgers.

The bill would let employees bank up to 160 hours of comp time. However, employers would be allowed to require employees to accept overtime pay after they have accumulated 80 hours of comp time. Employees could carry over a previous year’s comp time until Jan. 31. After then, employers would pay out the value of the leave.

Language in the legislation bans employers from “intimidating, threatening, or coercing or attempting to intimidate, threaten, or coerce an employee” to accept comp time instead of overtime pay.

Working Families Flexibility Act of 2017: The text of the bill

Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) is amended by adding at the end the following:

  “(s) Compensatory Time Off for Private Employees.–
          “(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.

“(2) Conditions.–An employer may provide compensatory time to employees under paragraph (1) only if such time is provided in accordance with–

“(A) applicable provisions of a collective bargaining agreement between the employer and the labor organization that has been certified or recognized as the representative of the employees under applicable law; or

“(B) in the case of an employee who is not represented by a labor organization that has been certified or recognized as the representative of such employee under applicable law, an agreement arrived at between the employer and employee before the performance of the work and affirmed by a written or otherwise verifiable record maintained in accordance with section 11(c)–

“(i) in which the employer has offered and the employee has chosen to receive compensatory time in lieu of monetary overtime compensation; and “(ii) entered into knowingly and voluntarily by such employee and not as a condition of employment.

No employee may receive or agree to receive compensatory time off under this subsection unless the employee has worked at least 1,000 hours for the employee’s employer during a period of continuous employment with the employer in the 12-month period before the date of agreement or receipt of compensatory time off.

“(3) Hour limit.–

“(A) Maximum hours.–An employee may accrue not more than 160 hours of compensatory time.

“(B) Compensation date.–Not later than January 31 of each calendar year, the employee’s employer shall provide monetary compensation for any unused compensatory time off accrued during the preceding calendar year that was not used prior to December 31 of the preceding year at the rate prescribed by paragraph

(6). An employer may designate and communicate to the employer’s employees a 12-month period other than the calendar year, in which case such compensation shall be provided not later than 31 days after the end of such 12-month period.

“(C) Excess of 80 hours.–The employer may provide monetary compensation for an employee’s unused compensatory time in excess of 80 hours at any time after giving the employee at least 30 days notice. Such compensation shall be provided at the rate prescribed by paragraph (6).

“(D) Policy.–Except where a collective bargaining agreement provides otherwise, an employer that has adopted a policy offering compensatory time to employees may discontinue such policy upon giving employees 30 days notice.

“(E) Written request.–An employee may withdraw an agreement described in paragraph (2)(B) at any time. An employee may also request in writing that monetary compensation be provided, at any time, for all compensatory time accrued that has not yet been used. Within 30 days of receiving the written request, the employer shall provide the employee the monetary compensation due in accordance with paragraph (6).         

“(4) Private employer actions.–An employer that provides compensatory time under paragraph (1) to an employee shall not directly or indirectly intimidate, threaten, or coerce or attempt to intimidate, threaten, or coerce any employee for the purpose of–                 

“(A) interfering with such employee’s rights under this subsection to request or not request compensatory time off in lieu of payment of monetary overtime  compensation for overtime hours; or                 

“(B) requiring any employee to use such compensatory time.         

“(5) Termination of employment.–An employee who has accrued compensatory time off authorized to be provided under paragraph

(1) shall, upon the voluntary or involuntary termination of employment, be paid for the unused compensatory time in accordance with paragraph (6).

“(6) Rate of compensation.–

“(A) General rule.–If compensation is to be paid to an employee for accrued compensatory time off, such compensation shall be paid at a rate of compensation not less than–

“(i) the regular rate earned by such employee when the compensatory time was accrued; or

“(ii) the regular rate earned by such employee at the time such employee received payment of such compensation whichever is higher.

“(B) Consideration of payment.–Any payment owed to an employee under this subsection for unused compensatory time shall be considered unpaid overtime compensation.         

“(7) Use of time.–An employee–

“(A) who has accrued compensatory time off authorized to be provided under paragraph (1); and

“(B) who has requested the use of such compensatory time, 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.

“(8) Definitions.–For purposes of this subsection–

“(A) the term `employee’ does not include an employee of a public agency; and

“(B) the terms `overtime compensation’ and `compensatory time’ shall have the meanings given such terms by subsection (o)(7).”.

SEC. 3. REMEDIES.

 Section 16 of the Fair Labor Standards Act of 1938 (29 U.S.C. 216) is amended–
          (1) in subsection (b), by striking “(b) Any employer” and inserting “(b) Except as provided in subsection (f), any employer”; and

          (2) by adding at the end the following

“(f) An employer that violates section 7(s)(4) shall be liable to the employee affected in the amount of the rate of compensation (determined in accordance with section 7(s)(6)(A)) for each hour of compensatory time accrued by the employee and in an additional equal amount as liquidated damages reduced by the amount of such rate of compensation for each hour of compensatory time used by such  employee.”.

SUNSET. This Act and the amendments made by this Act shall cease to be in effect on the date that is 5 years after the date of enactment of this Act.

 

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