Congress Considers FLSA Amendment That Could Provide Flexible Overtime Options

01 May 2017 Labor & Employment Law Perspectives Blog

Employers are generally well aware that they must comply with the main pillars of the Fair Labor Standards Act (FLSA), requiring that (1) employees be paid at least minimum wage and (2) employees be paid at a rate of one-and-a-half times their hourly wage for all hours worked in excess of 40 in a week. However, if some members of Congress have their way, this longstanding doctrine may be upended.

In the latest wave of new proposed legislation, the House Rules Committee announced that it will meet during the first week of May to discuss the possibility of debate over a Republican-sponsored bill that would add a new wrinkle to the FLSA. The bill, dubbed the Working Families Flexibility Act would permit employers to offer paid time off as an alternative to time-and-a-half overtime wages. Last week, just before the House Rules Committee announced its plan to meet, the House Education and Workforce Committee approved the bill via a vote that fell strictly along party lines.

If the Act, which would amend the FLSA, becomes law, an option would be created whereby employers and employees could voluntarily agree to one-and-a-half hours of paid time off for every overtime hour worked. The bill proposes capping the number of leave hours under the amendment at 160. Under the current version of the bill, all requested time off would be subject to employer approval.

Republican proponents of the bill laud it as providing flexibility to workers at a time when rigid schedules make workers’ ability to meet all of their personal obligations more difficult. Democrats who oppose the bill, however, expressed concern that providing such an option would permit employers to coerce their workers into choosing paid time off over increased pay for overtime hours.

A version of the bill currently in the Senate was recently referred to the Senate Health, Education, Labor and Pensions Committee, with further action to follow in the coming weeks. Notwithstanding these developments, employers should remain mindful of their standing obligations to comply with the requirements of the FLSA as it currently exists, as it remains the law of the land. However, we will continue to track the progress of this bill through Congress and provide appropriate updates accordingly.

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