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Jodie Levin-Epstein Headshot

"Comp-Time" in a Real-time World

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As Congressional Republicans seek a "softer focus" in how they define themselves after the 2012 election, the everyday needs of families are moving center stage. House Majority Leader Eric Cantor is now talking about the importance of parental time away-from-work. Legislation is in the offing. Cantor hopes the bill will foster his party's family policy cred. He even coined a poetic hashtag to prove it: #MakingLifeWork. Whether the Twitter feeds will help the bill's proponents overcome their drubbing in the last presidential election depends on whether the public and policy-makers dive deeper than the 140 character shout-outs.

"The Working Families Flexibility Act of 2013" would allow employers to substitute comp time for overtime payments earned by hourly, non-exempt workers. The Fair Labor Standards Act currently requires employers to pay at least a 50 percent premium above the regular wage rates of non-exempt workers on those hours that exceed 40 hours in a week. The extra payment for working beyond the ordinary week serves a dual purpose: it compensates workers with extra income for extra effort, and it is designed to deter employers from imposing too much work. Overtime pay is not just to be kind to workers. It also counteracts the absence of a federal statute that sets a ceiling on weekly work hours. What's to keep an employer from routinely asking for 70 hours and firing employees if they refuse? A sure check on that imbalance is overtime payments. In contrast, European Union nations operate with a maximum work week that includes overtime hours applicable to all workers, not just non-exempt employees.

While the bill's title hits all the right soft spots it comes up short on the realities of how workers' time -- particularly low-wage workers' time -- is currently treated.

While many employers abide the law and pay workers their due, too many avoid the existing wage law and escape its consequences. One study of low-wage workers in three cities found that more than 3 of every 4 workers who should have received overtime pay in the prior week did not get it. This is dubbed "wage theft" since the employer is keeping wages that, under the law, belong to the worker. The reason that wage theft happens so much is that employers can do so with limited impunity: scarce resources curtail government enforcement. The average employer has a .001 percent chance of being investigated; struggling workers are hard-pressed -- almost powerless -- to point a finger when the employer has the wherewithal to avoid the back payment and to fire the worker.

The idea that workers should have a choice in balancing time and money is welcome. As Majority Leader Eric Cantor notes: "If you're a working parent, you know there's hardly ever enough time at home to be with the kids. 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."

Despite the optics of the bill, however, it does not ensure that parents who agree to comp time in lieu of overtime will actually be able to take the half day to see their child off on the first day of school. The measure, instead, gives the employer the upper hand in determining when the employee can use the time, even if the comp time is needed to address a health or family issue. So, for example, if a pregnant woman worked over-time to secure comp time so she could stay home to bond with and breastfeed her newborn baby, there is no guarantee the employer will follow through with comp time; indeed, employers can unilaterally decide to switch back a portion of the comp time to pay. The good news is that if the switch were to happen, the new mom would not lose out on pay; the bad news is that her breastfeeding and bonding time would go out the window and instead she would need to report to work.

The "Working Families Flexibility Act" fails to address what many hourly workers want and need most urgently; namely, paid days off for when the flu strikes and paid family medical leave for serious illness or the arrival of a new child. Majority Leader Cantor knows how important the first day of school can be; if you're a working parent without paid leave (40 percent of low-wage working parents have no leave whatsoever -- no vacation, no sick days, no personal days), you know that if your child gets sick you must weigh whether you can afford to miss a day's wages or even lose your job in order to fulfill the primary duty of all parents -- taking care of your child. That's a real-time necessity. Congress should focus on what comes first, the basics of paid leave.