At the end of a House Committee on Education and the Workforce markup session, the committee voted 23 to 14 along party lines to approve a slightly amended version of the Working Families Flexibility Act (H.R. 1406). Introduced last week, the bill would allow non-exempt private sector employees to opt for paid time off in lieu of payment for overtime hours worked. Employees would earn compensatory time off (“comp time”) at a rate of at least one-and-one-half hours per hour of overtime worked, up to 160 hours per year, and would be able to cash out at any time. An employer would cash out any unused, accrued comp time at the end of each year.

In order to take advantage of this benefit, employees and employers would be required to enter into a written agreement to do so. Unionized employers would have to negotiate and include the provision for comp time in any collective bargaining agreement.

Bill sponsor Rep. Martha Roby (R-AL) explained that the latest version of the measure makes minor technical corrections and consolidates into one section the definitions contained in the bill.

In his opening statement, Committee Chairman John Kline (R-MN) said that the measure

does not alter the 40-hour workweek or change how overtime pay is calculated. . . . workers choose whether to accept comp time; workers choose when and why they withdraw from a comp time agreement; workers choose when to cash out their accrued comp time; and workers choose when to use their paid time off so long as they follow the same guidelines public employees do.

During the markup session, Rep. Roby stated that denying private sector workers the same right enjoyed by federal workers “is highly hypocritical, and it is highly unfair.”

Rep. George Miller (D-CA), however, opposed the bill, claiming it “would provide significant harm to American families” by asking employees to work extra hours to provide employers with interest-free loans. He and other Democratic members on the committee argued that the bill, as written, lacks sufficient employee protections, and is a “misguided attack on the 40-hour workweek.”

Rep. Robert Andrews (D-NJ) acknowledged that “this is an issue where there is common ground,” but expressed disagreement with the underlying bill. He pointed out that during a subcommittee meeting to consider this legislation, Rep. Roby claimed that her bill includes additional worker protections than those included in prior versions of this legislation. Rep. Andrews stated, however, that the current bill is “substantively identical” to the version considered in 2003. One of the biggest concerns for Andrews was that he believed employees could be implicitly coerced into choosing comp time instead of cash wages, and that the bill does not adequately define “coercion” or explain what evidence is needed to prove coercion. Rep. Kline said this determination would be made on the facts of a particular case. Andrews responded that this fact-specific inquiry renders the bill a “litigation breeder.”

Rep. Roby reiterated that employees would be afforded the same protections as those offered under the Fair Labor Standards Act.

A number of Democratic members of the committee offered amendments to the bill, all of which were ultimately rejected. One amendment offered by Rep. Joe Courtney (D-CT) would have substituted the House version of the Health Families Act (H.R. 1286), which would establish a paid sick leave standard, for the text of H.R. 1406. In opposing this amendment, Rep. Roby said that mandating paid sick leave would have an immediate and detrimental effect on the economy, and constitutes an intrusion of the federal government on private sector benefits. Her bill, she stated, “provides far more flexibility without imposing a mandate.”

Rep. Suzanne Bonamici (D-OR) offered an amendment that would have required that interest accrue on the employee comp time, while Rep. Timothy Bishop’s (D-NY) amendment would have afforded private sector employees the same protections enjoyed by members of the public sector, including a just cause standard for termination and First Amendment protections.

As expected, none of these amendments were approved. The bill now passes to the House floor for a vote, where it is expected to pass. The legislation will face a tougher audience in the Democrat-controlled Senate.

More information on this bill can be found here.