The Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., is the federal statute that governs minimum wage and overtime compensation for many employers around the country. Its overtime provisions have endured, more or less unchanged, since Congress enacted the statute in 1938. A bill currently pending in Congress, however, could change the nature of overtime compensation for workers all over the U.S. H.R. 1180, known as the Working Families Flexibility Act (WFFA) of 2017, would give employees and employers the option of compensatory time off from work, or “comp time,” instead of overtime compensation. Advocates of the bill say that this would only apply in cases of voluntary agreements between employers and employees. Critics, however, contend that the bill would result in less flexibility for workers’ schedules and less money for workers who might depend on overtime compensation. The House of Representatives passed the WFFA in May 2017. Its Senate counterpart, S. 801, is pending in committee.
Overtime compensation is currently required under the FLSA for all non-exempt employees of covered employers. For any amount of work in excess of 40 hours in a workweek, the employer must pay one-and-a-half times the employee’s regular hourly rate. 29 U.S.C. § 207(a). Employees who are exempt from overtime requirements include individuals “employed in a bona fide executive, administrative, or professional capacity;” outside salespersons; and workers in certain agricultural jobs. Id. at § 213(a). The FLSA currently only provides for comp time, instead of overtime, for employees of government agencies. Id. at § 207(o).
The WFFA largely takes the FLSA’s provisions regarding comp time for public employees, found in § 207(o), and applies them to all workers covered by the overtime rules. The bill would add a new subsection (s) to § 207 entitled “Compensatory Time Off For Private Employees.” The new subsection would state that an employee “may receive,…in lieu of monetary overtime compensation, compensatory time off at a rate not less than one and one-half hours” for every hour covered by overtime requirements.
Employers may only provide comp time instead of overtime pay under the WFFA if it is part of a valid collective bargaining agreement, or if the employee has consented in “a written or otherwise verifiable record.” The employee must have worked at least 1,000 hours for the employer during the preceding 12 months before they can agree to comp time.
The bill sets a maximum limit of 160 hours of accrued comp time per employee. It allows an employer to provide “monetary compensation” for accrued comp time in excess of 80 hours at the employee’s regular rate either when the hours were accrued or at the time the employer makes the payment. In neither case is the employer obligated to pay time-and-a-half. The employer must compensate the employee for unused comp time, according to the same rate provisions, upon termination of employment.
Employers are prohibited from interfering with employees’ use of comp time, as well as coercing any employee into using comp time. Supporters of the WFFA point to the provisions requiring a contractual agreement and prohibiting coercion, while opponents note that employers have near-total control over employees’ accrued comp time, including the right to terminate a comp time program at any time.
If you need to speak to an overtime lawyer in New Jersey or New York about a dispute with an employer, contact the Resnick Law Group today online, at 973-781-1204, or at 646-867-7997.
More Blog Posts:
Placement of Comma Determines Appellate Court Decision in Overtime Wage Dispute, The New Jersey Employment Law Firm Blog, June 16, 2017
Federal Appellate Court Expands Definition of “Joint Employer” Under the FLSA, The New Jersey Employment Law Firm Blog, May 8, 2017
When Does Commuting Time Count as “Work” in New Jersey? The New Jersey Employment Law Firm Blog, March 31, 2017