Will Griffis analyzes proposed Federal overtime changes
A bill to change overtime compensation laws is still going through the Congress, but businesses need to be aware of what choices they have if it does become law.
It’s also too soon to say if the proposed law will be good for employers and employees, said Lubbock attorney Will C. Griffis of the McCleskey Law Firm, who advises businesses on labor and employment matters.
“The bill still has to pass the Senate and could be revised before then,” said Griffis, whose areas of practice include business and commercial litigation and labor and employment law. “And then it needs to get signed by President Trump.”
According to the Working Families Flexibility Act (authored by Alabama GOP Rep. Martha Roby, and passed 229-197 by the House in early May), private-sector employees who work overtime could opt for “compensatory time” off (aka, comp time) rather than overtime salary, generally paid at time-and-a-half.
Lubbock Congressman Jodey Arrington voted in favor of the bill.
He told us: “For working families across America, one of the most valuable forms of compensation can be extra time at home with their kids. The Working Families Flexibility Act allows private sector employers the opportunity to offer their employees paid time off or “comp time,” instead of cash wages for working overtime. For almost 30 years, the public sector has enjoyed this benefit, and it only makes sense that the private sector benefits from the same flexibility. This is a common sense reform that provides reasonable flexibility in the workplace where there is employee-employer consent.”
It’s up to an employer to decide whether to offer such an option, and up to an employee to accept it.
Because the ball starts in the employer’s court, Griffis said, “Employees should not expect comp time as an option unless employers choose to offer it.”
If an employer does choose to offer comp time, and an employee accepts, “there would need to be a written plan in place that spells out the terms and is agreed to by employee and employer, prior to the earning of comp time,” he explained. “And if the employee later quits or is fired, the employer must issue compensation for accrued time worked.”
Moreover, the employer cannot “reasonably interfere” with an employee’s right to use that time, he said. “There are penalties if they do,” he said.
And the matter of accrued time will need to be carefully managed, he recommends, if it becomes law.
“If the comp time is not taken during that pay period or soon after,” he said, “you run the risk someone running up hundreds of hours of comp time, and then quitting and wanting a payout.”
Congressional supporters of the bill – which has been proposed several times over the past two decades, in various forms – say it would add flexibility to workers’ schedules, allowing them to spend more time with their families, while opponents believe it could lead to fewer worker protections.
Griffis says there are concerns on both sides.
“There is some fear that, under the new law, employers will interfere with employee’s rights when it comes to overtime compensation,” Griffis said. “On the other hand, some employees might want to elect comp time instead of time and a half, and some employers think that may lead to their employees being gone more often.
“So if this bill passes, there will need to be a written plan in place with each employer that chooses to offer it, and individual agreements with each employee who chooses to accept it. Right now the bill has a 50-50 chance of passing, so we will need to see if it passes, and in what form, before any employer or employee knows how to proceed.”