Proposed Legislation Would Allow Comp Time Accrual for Overtime Worked

The U.S. Senate is considering a bill that would allow private sector employers to offer compensable time in lieu of paying non-exempt employees overtime.  The bill, the “Working Families Flexibility Act of 2017” or H.R. 1180, passed the U.S. House of Representatives in a vote of 229 to 197, on May 2.
If passed, the Working Families Flexibility Act would amend the Fair Labor Standards Act (FLSA) to give non-exempt employees working in the private sector the choice between receiving overtime compensation or compensable time off for all hours worked over forty in a workweek.  Non-exempt employees working in the public sector have been able to take comp time in lieu of overtime for years under existing law.
Before participating in a compensable time program, the bill would require that a non-exempt employee enter into a written agreement with the employer stating that the employee knowingly and voluntarily agrees to receive one and a half hours of compensable time for each overtime hour worked.  Instead of entering into individual agreements with the employer, employees who are union members would be subject to any bargaining agreement provision that is negotiated to allow for the use of compensable time in lieu of cash overtime payments.
The bill would limit the amount of compensable time an employee may accrue to 160 hours each year, and would require an employer to pay cash wages at the time and a half rate for any accrued and unused overtime that remains at year’s end.  It also allows employees to “cash out” their compensable time at any time before the end of the year if they so choose.
The Senate received the bill from the House on May 3, and there has been no further action on it to date.  If what transpired in the House, where no Democrat voted in favor of the bill, is any indication, Senate Republicans may have a long road ahead in getting the bill passed.  Democrats have taken the position that the bill would offer workers less pay and allow employers to dictate if and when they can use the comp time that they have accrued.  This view is in stark contrast with the opinion among Republicans that the bill supports working families by giving them more flexibility to care for their children, parents or attend to personal needs.