LEGAL: Senate Aims at More Flexible Workplace

“The Senate bill does not give workers absolute discretion in picking their days off. An owner or supervisor can override an employee choice that ‘unduly disrupts the operation of the employer.’ Some employers are committed to respecting employees' time by, among other things, making sure workers take off the time they have earned. This can take the form of use-or-lose vacation policies.”

Motherhood, apple pie and … flexibility. Seemingly worthy ideals, right?

Parents and children, company owners and employees. Who doesn't want more flexibility at home or at work? But some workers may need to “flex” somewhat more than their employers are “able.”

The Workplace Flexibility Act, which now is pending in the U.S. Senate, will promote flexibility, supporters say. The bill, S.624, sponsored by Senator Judd Gregg, R-N.H., would give employers the right to pay for overtime by substituting compensatory time-off for cash compensation.

Irene M. (not her real name), who handles accounts receivable and other office duties at a mid-sized waste hauler, says she would value the time away from work even more than the money. “I want more time during the week with my three-year-old granddaughter, she says. “My son tragically lost his wife last year, and he's running all over the place keeping his business going and being a single parent.”

Meantime, Charles E. (also a pseudonym), who is currently a customer support services specialist for a waste equipment manufacturer, is worried about the new options his employer might have. “[Through] the years … my overtime pay became a necessity,” he says. “My wife works, too, and we both relied heavily on overtime for the cash we needed for family expenses and especially for sending one of our children to a special needs school.”

The bill would amend the Fair Labor Standards Act by allowing a worker who has been on the job for at least a year to sign a statement where he could waive cash payment for overtime and choose comp time instead. As the measure now stands, the formula would be an hour and a half of comp time for each hour worked. An employee could accrue no more than 160 comp hours. A similar measure, H.R. 1982, was introduced in the House in May 2001.

Similar legislation has been proposed in the past several years, but was not approved. Nevertheless, Republicans and business groups are aligning in hopes of passing the measure. Meanwhile, labor organizations oppose it.

Is the bill family-friendly? That depends on whether you ask time-minded workers like Irene or cash-hungry wage-earners like Charles. He and other opponents of the bill worry about losing income if employers strong-arm workers into signing agreements and consents, although the bill forbids high-pressure tactics. Additionally, opponents suspect that, for the most part, employers will finagle with operations and work schedules to benefit the company. For instance, documentation and recordkeeping for comp time in many organizations isn't always businesslike. It's a situation that will have to change. Also, workers don't always get the time they need when they need it. An employee might not be able to schedule a doctor's appointment for a particular Tuesday afternoon. He may not get the time for weeks.

If an employee cannot take earned comp time when he needs and it goes unused, eventually the employer must pay cash for the time. This is an employer-friendly delayed payment for extra work, opponents say.

Even supporters like Irene are not completely satisfied. The Senate bill does not give workers absolute discretion in picking their days off. An owner or supervisor can override an employee choice that “unduly disrupts the operation of the employer.”

Some employers are committed to respecting employees' time by, among other things, making sure workers take off the time they have earned. This can take the form of use-or-lose vacation policies. When such policies impose a hardship, however, employers can bend the rules. Two nonunion drivers at a Midwestern hauling firm stood to lose accrued vacation time when a natural disaster had them working almost daily for a three-week period that included previously booked vacation time. Besides paying the drivers their overtime wages, the company raised the limit on carry-over vacation time.

To read additional legal articles, visit www.wasteage.com.

Barry Shanoff is Waste Age's legal editor based in Washington, D.C.