will Congress get rid of mandatory overtime pay?

usnewsCurrently, millions of employees in the United States are required to be paid overtime (time and a half) if they work more than 40 hours in a given week. But a new bill in Congress proposes changing that and allowing employees to receive comp time (extra paid time off) instead of overtime payments.

At U.S. News & World Report today, I talk about what the bill would do and why. You can read it here.

{ 361 comments… read them below or add one }

  1. Jade

    I would gladly take comp time instead. I just hope companies don’t start limiting their PTO packages in order to encourage people to get time off through overtime. It should be a bonus, not a primary source of PTO.

    Reply
    1. Becky

      I would rather have OT pay than comp time, but that is because I have fairly generous PTO already, as long as they don’t start reducing PTO and I don’t have to sign up for comp time instead, I don’t really have a problem with this.

      Reply
    2. Natalie

      That’s my main concern – that in some fields PTO as part of a compensation package will disappear, because you can “earn” it. It’s been hard enough to get some acceptance of the idea that people should have sick time as a rule, regardless of what field they’re in.

      Reply
    3. too many mason jars

      In some situations I would take comp time if it were “true” comp time – it doesn’t sound like there’s anything here preventing employers from being really manipulative and legalistic about the way this comp time can be applied (ie, forcing an employee to spread out 5hrs of comp time over the full week rather than taking it in one go and leaving early one day).

      Reply
      1. Chriama

        Sure, but the employee could turn around and say “if you’re not going to be flexible with me then pay it out as overtime please. The goal isn’t necessarily to give employees more (or any, according to federal law) PTO, but to allow for more schedule flexibility while still protecting their economic interests. I agree that it has several potential pitfalls and loopholes though.

        Reply
        1. MacAilbert

          What’s to stop the employer from just saying “No, you get what we say and that’s that?”. I work retail. That is EXACTLY what my company would do. A whole hell of a lot of people aren’t really in a position to negotiate with their employers.

          Reply
          1. MacAilbert

            *I mean, you can request the OT pay, but you will be suitably punished for that mistake in the end. Companies like mine are really, really good at retaliation.

            Reply
          2. Lab Monkey

            This is my concern too. I’m in CA, so I get OT based on my day – which is great, as I work per diem and routinely have 8+ hour days, but rarely 40+ weeks. My employer would LOVE to pay only comp time. I’d hope our union wouldn’t allow it, but they’re very ineffective.

            Reply
  2. Justme

    I tend to take comp time anyway, because I’m a single parent with an elementary school aged child and you never know what will happen. I don’t really know what I think of this bill.

    Reply
    1. fposte

      Currently, unless you work for the government, you can’t legally take comp time instead of overtime. It’s possible what you’re currently getting isn’t actually legal right now.

      Reply
      1. Lily in NYC

        Yup, my office had to give me $5000 in back overtime after HR illegally required me to do comp time instead. And we’re a government office!

        Reply
        1. Lurker

          A previous ex-employer (also government) did the same to me. They made it seem like I could only get comp time; when I found out I was actually entitled to OT pay unless I specifically requested comp time I was livid. Then I started requesting OT instead, and they conveniently never needed my help. Then I was told I wasn’t a team player because I never offered to help after hours. (I learned all about gas lighting at that place.) I knew they had to pay out my comp time when I resigned, so I didn’t pursue it more than that. I wish I would have but that place beat me down so much that I still get upset sometimes when I think about it, and it was nearly 10 years ago.

          Reply
          1. Lily in NYC

            Yeah, my former boss lied and told HR I requested to make comp time instead of overtime – I am so glad I saved that email. The same HR rep also violated my privacy when I went out on FMLA – she simply forwarded the email explanation to a temp agency; it included all of my private medical information. I wish I had done something about it but I didn’t (however, she did end up getting fired for always doing the exact opposite of what she should do).
            I’m sorry you never got your back pay – I’m sure I would still stew over it once in a while as well!

            Reply
            1. Just Jess

              This is why organizations need to get serious about hiring actual HR professionals and not just anyone because “anyone can do HR” …until they can’t (potentially costing big $) and are fired as in this example.

              Also, this thread caught my eye because I’m pretty sure that there’s something off about how comp time is being pushed at my public sector job. Previous job had a wonderful overtime/comp time policy and the job before that didn’t have one at all. So current job seems standard because it falls between the other two.

              Reply
      2. Jerry Vandesic

        Comp time is currently available for exempt employees. I have had situations where I worked a Saturday and then was able to take the following Friday off as a comp day. But I was exempt, so it was a perk that they didn’t have to offer; they could have simply required me to work Saturday with no comp day.

        Reply
        1. Frozen Ginger

          My workplace doesn’t have “comp time” but “modified time” and I think it’s good for all exempt employees.

          Reply
        2. LBK

          This doesn’t apply to exempt employees because they’re not eligible for overtime to begin with. Any “comp time” for an exempt employee is just a formalized flexible working arrangement between you and your manager, it doesn’t intersect with the law.

          Reply
        3. I Love Swedish Fish

          Not really. If you are exempt, you are not supposed to be given OT or comp time. If that happens, then you are not really an exempt employee and are misclassified. I fight this fight with my agency all the time.

          Reply
          1. LBK

            Well, wait, that’s not exactly right. You can voluntarily pay an exempt employee OT or create a comp time arrangement with them if you want; the FLSA only mandates that you have to pay an exempt employee at least as much as their salary, but it doesn’t bar you from paying more (I’ve had multiple positions deemed “exempt, overtime eligible” where I was paid my salary if I worked any amount up to 40 hours, then got OT for any hours over 40). Paying someone OT in and of itself isn’t one of the tests for exemption status, it’s one of the things you’re required to do for someone who is deemed non-exempt by the tests.

            And there’s no laws governing PTO – as long as it’s not being given in lieu of pay, employers can create whatever plan for accrual they want, including earning extra PTO as a reward for working extra hours.

            Reply
            1. Judy (since 2010)

              Not at any place I’ve worked, but several (exempt engineer) friends have mentioned that their companies require them to have banked comp time to cover their PTO. All unofficial of course. Before you take your first hour of PTO for the year, you have to have that amount of (unpaid) overtime for that year.

              I did work at a place that paid their exempt engineers at straight time overtime if they worked more than 50 hours in a week. So if you worked 49 hours, no OT, but 50 hours you got 10 hours of OT. They did that so that management would have accountability for project planning. If you planned a project in a way that required lots of OT, then the project’s budget took a hit.

              Reply
              1. Jen

                Yes. I work at an engineering firm. Everyone in my department is exempt. We make straight time for any hours over 40. It’s an amazing perk.

                Reply
          2. SystemsLady

            Nope! My job is one of the reasons salary exempt exists (sometimes lots of OT sometimes not too much work) and it’s common for companies in my industry to give comp time and overtime bonuses when hours are particularly high or you’re losing a weekend.

            They also tend to take into account if you’ve had a lot of slow weeks though.

            Reply
      3. Stranger than fiction

        I think there are some exceptions no? We do it here when occasionally an hourly employee has to travel to one of our seminars. They usually get a comp day upon returning from their trip, instead of the couple hours they work overtime the day of the seminar.

        Reply
        1. paul

          If I understand you right what you described as fine; it’s falling within the standard work week (which companies can define how they wish, but they have to be internally consistent). For example if your workweek is Sun-Sat, and they go to a seminar for 4 hours Sunday and you give them all that Friday off and pay for 40 hours, you’re OK because they worked less than 40 hours and got paid for 40 hours within the work week.

          What you can’t do is have them work that Sunday + their regular week, not pay them OT for that week, then give them the following Friday off.

          Reply
      4. LuvzALaugh

        It is legal, depending on state, as long as the comp time is taken in the same week the extrahours are worked it is not a FLSA violation.

        Reply
    2. Cookie

      I’m a government employee with no kids (who could always use extra money) and I always take the comp time too. Life is too short and you have to go out and live a little. It is so valuable to have the time off to refresh and relax. I took about 6 weeks of comp time off in the past 18 months (a week here, a few days there).

      Reply
  3. MegaMoose, Esq

    I wish I could articulate my concerns with this proposal more succinctly than saying I have a bad feeling about it, but I have a bad feeling about it. I believe that the current congress and administration have demonstrated that their number one priority is cutting costs for corporations and the tiny percentage of wealthy people who live off the profits of those corporations, and I simply have a hard time believing that this is really about the best interest of employees.

    That said, I do appreciate some of the protections provided, in particular the pay-out requirements. I do understand that people would like more flexibility in their schedules, and maybe our current system is out of date. I am concerned, however, that the perspective in these debates is often overly focused on the white-collar worker, and that this could have more serious implications for the people who need the protections of the FSLA the most.

    Reply
    1. fposte

      I’m with you, in that it’s one of those things that sounds promising but I fear some Greeks lurking inside :-). Certainly I think it will be easy to make it more pro forma and less optional than is suggested.

      Reply
    2. Allypopx

      Yeah I think if I read this coming from an individual state instead of coming from Congress, I’d feel better about it. I don’t trust anything coming out of Congress right now. But this has a lot more individual protections than I was anticipating whilst reading the headline – though I’m not convinced how enforceable those protections are.

      Reply
    3. Becky

      Agreed–on the surface it sounds reasonable and the explanation provided sounds like it has some protections in place, but I don’t know how it would change in committee and how it would end up looking once/if it passes.

      Reply
    4. Shadow

      Does it pay out at the current salary Or can employers pay it out at the salary that was effective when it was earned? In other words if earn comp, then get a raise are employers required to pay it out at the new salary?

      Reply
          1. CatCat (was LawCat)

            That’s not a reasonable excuse though. They can always cash it out to the employee before a pay raise. I’d be seriously side-eyeing an employer with that excuse (and if I worked for them, be seriously concerned about their continued financial stability).

            Reply
    5. That Would Be a Good Band Name

      It’s odd. I don’t feel good about it, but I also can’t quite say why. A lot of the concerns I had were addressed with the pay-out requirements and requiring the employee to agree in writing. I do worry that people will not be able to take the comp time, that “business needs” will prevent it from being used like it should.

      Reply
      1. paul

        for me, I don’t feel good but it’s basically pure cynicism about both large corporations and our government.

        Reply
        1. The Not Mad But Occasionally Irritable Scientist

          Is it really cynicism if you’ve been given a list of reasons to be incredibly distrustful that’s as long as my leg?

          Reply
          1. MegaMoose, Esq

            I can’t see it as cynical, and I think motive absolutely does matter in this case. As I said above, I’m very conflicted because, although I can see this being good for some people, when you have a proposal coming from a group with demonstrated and well-documented anti-labor tendencies it absolutely makes sense to be skeptical. “Employee flexibility” sounds an awful lot like a euphemism here. Kind of like “family values.”

            Reply
            1. Countess Boochie Flagrante

              Yep, this is where I am. I can see how this would potentially be good, useful, and helpful, but at the same time… I can’t not see it as ultimately meaning workers getting screwed over somehow.

              Reply
      2. Kyrielle

        I worried about that too – but then the employee can request they get the money instead, in writing, and the business has to pay. That’s a hit to the bottom line they won’t want. Plus there’s a cap of 160 hours…after which, presumably, the employee would be getting overtime pay.

        I’m wary of this because of the group of people in power right now – I keep expecting a “gotcha” to appear – and yet, protections against the ones I could think of appear to be (presently) baked in.

        Reply
        1. The Not Mad But Occasionally Irritable Scientist

          It’s still less of a bottom line hit than paying time and a half routinely, I’d imagine. Overtime would just be compensated as….well, time. Companies could just lean on workers to take the payout, saving 50% of their pay for overtime hours, and thereby remove one of the costs to working your employees to the bone.

          I admit, I’m looking for how this screws the worker because I’m convinced that this administration and Congress is singlemindedly dedicated to doing that.

          Reply
          1. Ask a Manager Post author

            We’re politics-free here. I know that labor issues are inherently political, but I ask people to avoid blatantly political comments like this one. (P.S. I sent an email to the address included with your comments last week; not sure if you saw it.)

            Reply
            1. The Not Mad But Occasionally Irritable Scientist

              I stand corrected, although I’m not personally sure where that line lies. Honestly, I’m not sure that I can discuss current legislative priorities without verging on or crossing the line into “blatantly political,” so I’ll bow out of this thread.

              And no, I didn’t receive an email last week.

              Reply
          2. Kyrielle

            Wait, how does it save them any money? It _does_ give them an interest free loan, but it doesn’t save them money other than that.

            They have to provide comp time *at time and a half*. So two extra hours one week means 3 hours of comp time banked. Paying that out at standard rate is the same amount as paying the two hours at overtime. (Just later…that is, as others have noted, an issue.)

            Reply
            1. MegaMoose, Esq

              Being able to control when you pay overtime seems like a pretty nice financial incentive to me, though, even if it isn’t strictly saving money. As it is, companies have to be able to pay for the extra time they require (or request) from their employees more-or-less at the time they require it. Under this system, they could hypothetically spread out those costs over the year.

              Reply
              1. Blue Anne

                I dunno, I feel like this is still going to tie up capital for a lot of companies. As an auditor, if a company was offering this I’d be checking how much comp time is accrued vs. how much cash is set aside for employees who might request that it gets paid out.

                Reply
                1. nonprofit manager

                  I am in California and we deal with this related to vacation time. It does tie up capital and you do have to carry it on your books. I have not read the proposed legislation for this, so I am not sure if it would work, but the smart way to use this is if your operations vary throughout the year. Have your employees work overtime when you need them to, then make them take the comp time later in the year. That will minimize the liability on the books.

              2. Stranger than fiction

                I think they’re banking on not all the comp time being used, and that’s how they’d save money.

                Reply
                1. Natalie

                  But if it isn’t used at the end of the year they have to pay it out, and at least from the write up it seems that’s an automatic payout rather than something the employee requests. And if the employee leaves they have to pay it out. So not using it just means the expense is put off until year end or separation.

                2. Zombii

                  I think they might be banking on the opposite. The one exploit I see clearly is if employers had a policy that comp time hours have to be used for time off before PTO hours can be used, and they don’t pay out PTO on separation with the company.

            2. kab

              I’ve never dealt with comp time. For an hour of overtime worked, do you get an hour in comp time or an hour-and-a-half in comp time? If it’s the former, the company saves on not having to pay the .5 part.

              Reply
            3. CrazyEngineerGirl

              But if an employee banks comp time and then actually uses it rather than cashing out at some point, it does kind of save the employer money, on paper anyway (not taking into consideration lost employee productivity.) They would lose time worked but the salary paid out would be less than with overtime. If an employee works 42 hours one week the employer pays for 40 hours and the employee banks 3 hours of comp time. Then the next week (or whenever) the employee takes the 3 hours of comp time, working 37 hours, and the employer pays out 40 hours. In the end the employer pays out for 80 hours of work rather than 83 making this cheaper for them in terms of numbers on a paper. But, of course, they only had the employee working for 79 hours instead of 82 hours in those hypothetical 2 weeks. Seems like the employer reaction to this and whether they would prefer to pay more in compensation and have people working more hours or have a more consistent compensation payout and but have fewer hours worked overall, will vary.

              Reply
              1. nonprofit manager

                And depending on the nature of the work, it might make a lot of sense in terms of productivity and finances to let employees accrue comp time when it’s busy, then (make them) take the comp time when it’s less busy. The employee’s full salary is likely budgeted for the entire year, so that’s no big deal. And if the employee would be at work surfing the web anyway, then there is no productivity loss.

                Reply
            4. nonprofit manager

              I see it as a definite money saver, especially for small organizations. Let’s say an employee is required to work overtime during a particularly busy season or to get a large project done. It’s totally possible that this same employee, due to the nature of the work, will be less busy at some other point. Then he or she takes the comp time. Even though the employee is taking time off with pay, the organization probably already budgeted the entire year’s salary, so this extra time off doesn’t cost them anything.

              Reply
      3. Shadow

        The part where I see problems is budgeting. I cant see employers being okay with not knowing whether they’ll need to pay it. No company is going to want to wonder whether they’ll get hit with having to pay out all unused OT each year and would probably rather force employees to be off rather than pay out.

        Reply
      4. INFJ

        I think that’s the part where it has potential to fall apart. Even though there are safeguards, the employer is basically promising to pay out overtime “within a reasonable period” in the form of comp time off. I could definitely see an employer claiming “business needs” repeatedly until the end of the year, in which case they get to pay out at a lesser rate (since they only have to pay out unused comp time at normal rate, whereas comp time payout would have been 1.5 hours/hour OT).

        Reply
          1. Mae North

            It’s like vacation, though; increasing an employee’s vacation by 1 week (in states where unused vacation does not have to be paid out) doesn’t increase a company’s cost for that employee because they will be paying out that extra week of vacation instead of a week of regular pay.
            1 year @ 2 weeks’ vacation = 50 weeks regular 2 weeks vacation
            1 year @ 3 weeks’ vacation = 49 weeks regular 3 weeks vacation
            = the employee is not receiving any more than 52 weeks’ worth of pay in either scenario.

            The same thing with the comp time – the employees have to use it it lieu of working, so 1 week of comp time *replaces* 1 week of regular time, it doesn’t *add* to that week’s pay.
            An employee works 50 hours 1 week, and is scheduled for 40 hours the next week
            If they were paid OT, they would get 55 hours’ worth of pay for week 1, and 40 hours’ worth of pay for week 2
            With comp time, that employee would get paid 40 hours for week 1, bank 2 days’ worth of comp time, and get paid for 40 hours in week 2.

            Whenever they use the comp time, be it in week 2 or at some future date, that comp time is replacing an equivalent amount of worked time, so the employee is breaking even rather than gaining anything.
            Even taking into account the additional 0.5x to keep the rate the same as overtime, that’s still a lower cost for companies than paying out the full overtime amount.

            Reply
            1. Kyrielle

              That’s if they use the comp time – they’re not required to, and they can request the company cash it out.

              But I still think employees are better off without this. The more I read this thread, the more I think:

              1. You could do this already, by having them work 50 hours (and get paid for 55) in week one, and having them work (and get paid for) 25 hours in week two. Same result….

              2. So what’s the advantage? The advantage is the comp time makes it explicit and maybe more likely the employee will take that time (during the off season presumably, when the business authorizes it) rather than just continuing to make more money.

              3. And of course, interest-free loan. If the business is such that cash tends to be low at peak work times, there’s an advantage to time-shifting the cost later when the payment for that work has come in.

              Reply
            2. sstabeler

              That’s sort of the entire point of comp time- you earn the same amount of money, but work less hours in total over the year for it. the point is it gives you the option to spend more time at home, rather than get more salary.

              or, to put it another way, in a minimum wage job:
              OT:
              you work 55 hours per week, every week, with 2 weeks off. You therefore receive payment for 2000 hours at your normal rate of pay (we’ll assume MW, so $7.25 per hour) totaling $14.5k per year. You also recieve payment for 750 hours at time-and-a-half, so 750X(1.5X7.25) for a total overtime pay of $8156.25
              Comp time:
              You work 55 hours one week, 17.5 hours the next week. This means you get a total of 1885 hours per year HOWEVER, you get paid for 2000.

              as such, taking it as overtime means you work about 900 more hours per year for 8k extra per year. The question then ends up being if you need the time more, or the money.

              Reply
          2. Shadow

            Is there anything to stop them from making you take the time off instead of paying it out at the end of the year?

            Reply
              1. Shadow

                I mean you agree to comp time, but then have some left over and instead of getting it paid out they make you take time off

                Reply
                1. Zombii

                  As in (example): You’ve banked 40 hours comp time. Your employer says take the last week of the year off and comp time will cover that part of the paycheck, so you get paid for 80 hours on that check instead of 120 hours (and probably have a less than ideal vacation since you didn’t have a lot of time to plan). Is that what you mean?

                  Like Alison said, it’s supposed to be agreed to by the employee, but yeah, I could imagine companies “strongly encouraging” people to “volunteer” to do this to help out the budget for that month/quarter.

                2. cataloger

                  The article says “If an employee provided a written request to be paid for all accrued comp time, an employer would be required to provide the payout within 30 days.”

              2. bob K.

                Please tell me how you are going to keep a company from pressuring an employee? Just because something is illegal doesn’t stop employers from wage theft. You are also assuming that the bill as proposed will be the one to be actually voted on. So many changes can be introduced to be more business friendly that it becomes the death of overtime.
                The intent of overtime pay was to encourage employers to hire more people during the depression rather than working what they had to death. The only way I would even think about this law is if the amount of overtime you can work in a week or day is limited.

                Reply
        1. Kyrielle

          But unused comp time is required to accrue at 1.5 hours per hour of overtime worked: “An employee may receive, in accordance with this subsection and in lieu of monetary overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required by this section.”

          So if they worked 40 hours of overtime that year, they accrued 60 hours of comp time…which then pays out at their regular rate, but based on 60, not 40.

          Reply
          1. INFJ

            Thanks for spelling that out. I was paying attention to what was happening on the back end and not the front! (Insert dirty pun.)

            Reply
        2. nonprofit manager

          There is really no incentive to not put it off. If anything, I think there is incentive to make employees take it within the same year if your operations are such that you have busy periods and slow periods. From my perspective (we’re budgeting right now), I see this as a great way to get overtime work during our busy season, then let people take time off when it slows.

          Reply
        3. wearing too many hats

          We have a cap on vacation time accruals (and then you stop accruing until you use some); I’m assuming the new law won’t prohibit these caps, so the non-exempt employee just loses those OT comp hours if they are at their cap? nice.

          Reply
      5. JM60

        I wonder what would happen when the cap of 160 hours (which is only about 3 hours a week) is hit? Does the employee stop accruing comp time when working overtime hours? I also wonder what exactly “within a reasonable period” as long as it wouldn’t “unduly disrupt the operations of the employer” will mean in practice. I’m also curious as to what magus will be in place (if any) to prevent employers from pressuring employees to take comp time, or them showing favoritism to employees who take it.

        I’m general, I wary of anything ‘voluntary’ when it comes to employer employee relations.

        Reply
        1. Zombii

          When the cap is reached, employees are paid for overtime at the overtime rate.

          “Within a reasonable period” seems to be a year, since that’s when any unspent comp time is required to be paid out. “Unduly disrupt” seems to be the same basic framework for PTO requests.

          I’m guessing nothing to prevent pressure, except employees who push back to say the employer is breaking the law (and then Employer goes “Nuh-uh, legal said this is fine because reasons” and/or “You’re not really being a team player here…”).

          Reply
    6. The Not Mad But Occasionally Irritable Scientist

      Here’s my concern: this basically lets companies off the hook for that time and a half rule for overtime pay, right? So if I understand the rules, companies which pay out a lot of overtime will be able to realize that as savings, whether it’s paid out or awarded as comp time.

      I know people who work lots of overtime to support kids and disabled spouses, and this does not stand to benefit them. It seems like a stalking horse for letting American companies reduce their labor costs.

      Reply
      1. Ask a Manager Post author

        It’s voluntary and optional; employees would have to agree to be paid in comp time. They could choose to continue to receive overtime pay instead.

        (There’s potentially an argument that employers would give the overtime hours to people who had chosen comp time, though.)

        Reply
        1. The Not Mad But Occasionally Irritable Scientist

          OK, I’d missed that. I do think your caveat there could be a loophole. And like I said, wearing my bias on my sleeve, I’m very, very skeptical of basically every piece of legislation we’re seeing right now.

          Reply
      2. Jessie the First (or second)

        I also worry that in addition, it will act as an incentive to companies to get rid of PTO benefits. PTO isn’t required in the US anyway and not every company offers any. But for those that do, they can dump it and have have workers “earn” their PTO through working overtime. You want time off? Work extra first.

        I would hope most companies wouldn’t go that route, but I just don’t ave a lot of warm fuzzy feelings about the state of the labor market at the moment.

        Reply
        1. LBK

          Oh, gross. I can totally see that happening. “Here’s our wonderful new PTO plan where you can earn extra PTO by working extra hours! Oh, and also we’re getting rid of all the free PTO you used to get.”

          Reply
          1. Zombii

            The only (slight) upshot to this is the 160 hour cap is 4 weeks of time off, which is a lot more than some companies give and the accrual rate isn’t the worst I’ve ever seen (work ~106.6 extra hours to get 160 hours).

            Caveat: PTO suddenly becomes not a benefit, but a quid pro quo situation and those sorts of things always go to the company favorites instead of being distributed evenly, so.

            Reply
        2. MegaMoose, Esq

          In addition to potentially losing PTO, what about the people who don’t have PTO in the first place? It’s interesting that this proposal is coming right at a time when we’re starting to see state and local movements requiring paid sick time for lower income workers. This strikes me as a way to head off those movements in a way that’s more business-friendly. After all, you could just opt for comp time if you want PTO, right?

          Reply
          1. Zombii

            Holy shit I think you got it. Calling this right here as How It Happens.

            “Paid sick time is unnecessary because we already made a new law to address it: now you can earn comp time, which you can spend freely, including when you’re sick.” (Forget part time workers, anyone whose company doesn’t allow them to work overtime, or anyone who isn’t physically or mentally able to work overtime, etc. They are given the option but don’t take advantage of it, which is their own fault.)

            Reply
      3. Natalie

        Even if it wasn’t voluntary, as Alison said, it has a provision that allows you to cash out your comp time with 30 days notice. So if you, say, elected for comp time and then something changed in your life that meant you needed the money, you could get it (although not super-quickly).

        Reply
        1. LBK

          The year-end payout for any unused comp time is also reassuring to me, so that if your employer keeps making excuses for why you can’t use your comp time, they end up compensating you for it in some way no matter what.

          Reply
          1. neverjaunty

            It’s not at all reassuring if you work for a business that may have closed its doors by year’s end, taking your comp time with it – restaurants and very small businesses.

            Reply
            1. LBK

              The law also specifies that comp time has to be paid out when you leave; I’d imagine that includes being laid off due to closure. If the company’s so financially insolvent that they can’t afford that payout, I’d be more concerned about them paying out my remaining salary, unless you have a ton of comp time stocked up (consider that if you get paid biweekly, you’d have to have 50 hours of comp time saved for it to equate to one normal paycheck).

              Reply
    7. Ann O'Nemity

      I’m nervous about it too.

      It reminds me of the first job my husband had after college. His employer would (illegally) force employees to flex their schedules to work exactly 80 hours in a two week period and then not pay overtime. My husband found it annoying because he would be required to work when needed (10-, 12-, or even 14-hour days), but then be forced to leave early on other days so the employer could avoid paying overtime. My husband never felt like the short days made up for the exhausting long days. He felt that he had little choice about it.

      It’s way too easy for me to imagine that if this bill passes, employers will force employees to sign the “voluntary” comp agreement. As summed up in this paragraph from the article:

      “On the other hand, labor advocates worry that employers would pressure employees to accept comp time when they really might prefer overtime pay. While the bill would require the comp time agreement to be entered into voluntarily, in reality the power disparity between employer and employee might mean that employees feel pressured regardless.”

      Reply
        1. Ann O'Nemity

          It was often over 40 in one week, but never over 80 during the 2-week pay period. It could be 60 one week and 20 the next. I don’t know if the employer didn’t understand overtime laws or willfully disregarded them.

          Reply
        2. Ann O'Nemity

          The big problem with my husband’s old situation (besides the illegality) was the unpredictable scheduling. I worry that this bill would make the same kind of thing legal.

          Reply
          1. Zombii

            There isn’t anything illegal about unpredictable scheduling. There are jobs that expect employees to check online to see if they work that day, and then check an hour before their shift starts to make sure they’re still scheduled, and never post a schedule further ahead than that one day, and schedule shifts anywhere from 3-10 hours, etc.

            It’s 100% crap but it’s legal.

            Reply
    8. LBK

      This is why it makes me nervous:

      If an employee asks to use her accrued comp time, the employer would be required to grant the request “within a reasonable period” as long as it wouldn’t “unduly disrupt the operations of the employer.”

      This is a wildly subjective standard that seems very easy for an employer to exploit. It does seem at least reasonably well-protected so that the employee will always end up receiving their due in some form, but to me, this is the equivalent of your employer keeping your overtime pay in a special bank account that you have to ask them to withdraw from when you want it, and it’s up to their discretion to say no if they feel like they can’t afford it at the time.

      I just don’t like compensation being paid in a form that the employer has so much more control over in terms of when and how it’s doled out. But I suppose it’s up to each employee to decide if they think they work for an employer that will actually honor and allow them to use comp time before they agree to receive it instead of overtime.

      Reply
      1. Ask a Manager Post author

        It’s tricky because how else would you write it? Otherwise you’d have employers legally required to let someone take comp time during their biggest sales day of the year, or whatever. I suppose you could say “must be allowed to use it within 30 days” or something like that.

        Reply
        1. LBK

          Yeah, I don’t think there’s an especially good way to require employers to let their employees use comp time without far overstepping into the operations of the business, but it still makes me uneasy. I think I’d feel better about it if I felt like there were a quick and easy means of recourse if an employer does abuse this subjectivity, but from everything I’ve heard about wage claims it’s rarely so simple.

          Reply
        2. esra

          I’d like to see some language like that. I worked for a terrible management set that didn’t value their employees, but also would throw up roadblocks whenever you tried to take some time off, especially if it was lieu time.

          Reply
    9. Anon42

      Since I work for government this is the way it’s been for us. Personally I would prefer overtime, but we’re made to flex it out, so no time and a half in comp either.

      Reply
    10. Hey Karma, Over here.

      I see a possible problem with interpreting “carried over over time” as simply “carried over time.:
      As in:
      “Oh, you worked 45 hours last week? Well, you can just work 35 hours this week and we will call it even.”

      Reply
      1. Natalie

        Good point – I wonder if this would increase the sort of chaotic and unpredictable scheduling we already see in retail and warehouse work.

        Reply
      2. Grey

        But with the proposed law, you wouldn’t be allowed to work those 5 extra hours until it was agreed, in writing, how much comp time you’d get.

        Reply
    11. Stranger than fiction

      My bad feeling is that at some employers, when the employee tries to use the time off, it will surely be an “undue hardship”.

      Reply
    12. Wakeen Teapots, Ltd.

      Literally what I came to say, “I have a bad feeling about this”.

      Personally, it will probably make my life easier, having another option to offer people. But we’re not the employer looking to pound blood out of a stone.

      Reply
      1. MegaMoose, Esq

        “As if millions of labor advocates suddenly cried out in terror, and were suddenly silenced.”

        Reply
      2. nonprofit manager

        I agree. I can see the benefits to this in theory, but the timing of it worries me.

        As a manager at an ethically-run nonprofit, I can see how this would benefit some departments and employees and it would be great to offer it as an option.

        Reply
    13. Rewind

      I’m an hourly, retail/service sector worker. This makes my shoulders go to my ears. Say I make $10/hr and work 45 hours in one week then 35 the next. (If I work OT I need the next schedule reduced by the equivalent hours over to recover and regenerate my fake nice because people.)

      Two weeks under the current system: 475 + 350 = 825

      Two weeks under the new optional system*: 400 + 325 = 725

      *assuming comp time is approved and taken in full immediately

      I’m more concerned how this works for part time employees for whom 40 hrs/week is an outlier. How is comp time be used in determining benefit eligibility based on hours worked? Does the company have a pattern of only assigning OT to those who elect for comp time or refusing to assign it to those request a payout after previously opting for it? Does the company strong arm employees into using comp time by eliminating PTO? It looks appealing in the plastic but once you unwrap it there’s an odor you can’t ignore.

      Reply
      1. BookishMiss

        THANK YOU for actually putting in numbers part of why I feel so uneasy about this.

        Also, I doubt this will stop any of the employers who encourage/require uncompensated overtime. Not that I work for one of those or anything…

        Reply
        1. Rewind

          I accidentally deleted the last step so the numbers are wrong as Zombii pointed out below. What I get for attempting math and writing/editing my comment while watching Netflix. I stand by my second paragraph, though.

          Reply
      2. Kiwi

        Isn’t it that in week 2 you work 35 hours and get paid for (35 + 7.5 hours)? Ie. those comp hours are paid, not just taken?

        So two weeks under the new optional system: 400 + 425 = 825

        which is the same pay as currently, just spread out more.

        Alison, could you please clarify?

        Reply
          1. Kiwi

            Thanks – and I’m not quite right. Your comment below is right – I’d get $400 each week and bank the extra $25 for some later time. Does mean the employer’s getting an interest-free loan.

            Reply
        1. Rewind

          I did week 2 at 32.5 hours because comp time is 1.5. I interpreted that as it takes 5 hours @$15/hr to make $75, so the equivalent in comp time is 7.5 hours @$10/hr. Essentially you made $75, you can either have the money or the equivalent time off equal to $75. I could certainly be wrong – wouldn’t be the first time.

          Reply
      3. Zombii

        Your math is off and you’re missing a step. :)

        Current system: 475 + 350 = 825
        New optional system: 400 + 325 350 = 750, + 50 (paid out for 5 hours of the banked comp time) = 800*

        *You still have 2.5 hours of banked comp time to use or get paid out later at your normal rate to cover the “missing” 25 in the new optional system.

        Reply
        1. Rewind

          I accidentally deleted the last step when going through multiple edits. I did it as 400 + 325 for hours worked (reduced by equivalent comp time, not straight hours) = 725 + 75 comp time = 800. So yes, you are correct. However I’m also not guaranteed 40 hours in a week so I’m nervous an employer would go “well she’s already taking some comp time and it’s slow so another 4-5 hours less won’t be a big deal.”

          Reply
    14. Hey Nonnie

      I agree, in the current political climate, this sounds like a “sounds too good to be true” situation. If the big print giveth, I’m wondering what the fine print taketh away.

      Maybe I read it wrong, but from the description in the article it sort of sounded like that if you had a written comp time agreement, if you wanted a payout for certain OT hours instead, you would only be paid straight time for that OT instead of time and a half. If so, I think that’s pretty crappy — I shouldn’t be penalized because my needs changed at a particular time.

      Reply
    15. neverjaunty

      Your bad feeling about it is entirely correct. And this is not about the interests of employees, let alone their best interests. This is about allowing businesses to get out of paying overtime in return for comp time whose terms the employer dictates.

      How often do we see letters here at AAM from people who aren’t able to – or allowed to – use PTO that they’ve accumulated, or punished (overtly or covertly) for doing so?

      Reply
  4. Howdy partner

    Interesting. I like how comp time would be paid out at 1.5x just like overtime. I would like to see it be even more flexible, in that you could change from comp to overtime on a week to week basis, but I agree that is should be agreed upon in advanced.

    Reply
    1. Chriama

      I’d like to see what the potentially covered scenarios are for employees asking for it to be paid out. I imagine someone banking comp time in order to go on a trip or something and then wanting to cash some of it out as overtime pay to supplement their funds. Employers would need to make sure to treat that comp time as an actual cost and not just assume it’s taken the place of overtime pay.

      Reply
    2. Joshua

      My impression from reading the article (not the bill itself) is that the company and employee might be able to work out an arrangement where part of the overtime is paid and part of the overtime is given as comp time. I work for a state government now and non-exempt employees have the option to take any overtime as either overtime pay, comp time or a mix of both. It’s the employee’s choice each pay period as they fill out their time sheet. I don’t see anything in the article that implies that if you voluntarily accept comp time that you’re required to get all overtime as comp time.

      Even if the company didn’t work out a mixed option, the employee can almost get the same result by going all comp time and then after using the comp time they want for leave, they could request to be paid for the rest. It’d take a while longer but they’d still split the overtime between comp time and overtime pay.

      Reply
    3. LCL

      We let our people decide when they work the OT shift if they want it to be comp, there is a box to check, otherwise it is regular OT. Once payroll has their system configured to allow comp time it is easy to do.

      Reply
  5. KHB

    “If an employee asks to use her accrued comp time, the employer would be required to grant the request “within a reasonable period” as long as it wouldn’t “unduly disrupt the operations of the employer.””

    I’m curious about how “reasonable” and “unduly” are defined here. I’m sure the employers who think everything’s an emergency are going to try to argue that everything’s an “undue disruption” too. And comp time is of no help if you never get to use it.

    Reply
    1. Just passing by

      I agree, and I’m worried this essentially boils down to deferred overtime pay.

      What’s to say that instead of paying you 1.5x on your paycheck for the month they credit you 1.5x hours, don’t let you use said hours, and just pay out once they’re legally required to? Further, what’s to stop a company from accruing a bunch of comp time before going bankrupt, declaring bankruptcy, and lacking the funds available to pay out the workers who have banked comp time?

      Reply
    2. Ask a Manager Post author

      It doesn’t seem to define it, and that’s probably an area ripe for abuse. However, if they were making it hard for you to use it, the safeguard is supposed to be that you could then just submit your written request for them to pay out the comp time instead.

      Reply
      1. Anon Anon

        I see this as an area where the companies that abuse these policies will have one more to abuse. And the ones that don’t won’t abuse this either. From my limited experience employers are either abusive about their policies or they generally are not.

        Reply
    3. ThursdaysGeek

      But it sounds like if they don’t allow you to take it, they have to end up paying for the overtime instead. So it doesn’t sound like it makes that part worse.

      Reply
      1. KHB

        But it sounds like they can still require you to work the hours you wanted to take as comp time, or risk losing your job or facing other consequences. So what it comes down to is, you’re giving your employer an interest-free loan in exchange for precisely zero flexibility if they don’t want to give you any.

        Reply
        1. Ask a Manager Post author

          They can require you to work the overtime hours now. That isn’t something that this would change. It just gives you the option of saying “pay me in comp time instead.”

          Reply
          1. Jessie the First (or second)

            But I think KHB is saying that under this bill, employees might have a hard time actually getting the comp time. So they work OT in exchange for comp time, but when it comes time to get the benefit of the bargain – the ability to use their comp time – they have to work instead (because “within a reasonable period” and “unduly disrupt” are vague and will take several years of court cases to decide, and in the meantime, employees won’t actually get to use their comp time). Whereas with OT pay, you just get your OT pay and it’s done.

            Reply
            1. CatCat (was LawCat)

              I think if people couldn’t actually use the comp time, they’d stop agreeing to comp time and cash out their accrued time.

              Reply
            2. KHB

              Pretty much this. To use a more concrete example:

              Say my* employer requires me to work a bunch of overtime in April. Knowing that I’d like to take a long weekend in May, I say, “Pay me in comp time.”

              May rolls around. I ask to take my comp time. They say, “No, that’s an undue disruption.” I say, “Well, cash out my comp time, at least,” at which point they’re required to pay me within 30 days.

              So I don’t get to take my long weekend, and I get all the same money as I do under the current system – except that I’m not getting paid until June for the overtime hours I worked in April. That’s a net loss for me.

              (*None of this actually applies to me, because I’m exempt and have a boss who’s reasonable about PTO. I’m asking on behalf of the people who aren’t and don’t.)

              Reply
              1. Chriama

                But at the same time, if your employer had a habit of doing that to you then presumably you’d stop agreeing to comp time and go back to just getting overtime pay, which has no lag. So an employer looking to abuse this would get away with it for a few instances and then word would get around and people would stop falling for it.

                Also to be technical, it’s not really a net loss for the employee. It’s deferred, which is annoying, but you don’t lose it. They can’t have been counting on the overtime pay if you were asking for it as comp time so it’s not as if any bills went unpaid because their employer forced them to work after having promised them the time off.

                Reply
                1. Zombii

                  It’s probably not an easily-quantifiable monetary loss but it’s a net loss in the sense that you could have used the money, potentially on time-sensitive things, but were prevented from doing so. Could have deposited it into a savings account, retirement account, investments, made a purchase that’s no longer available, etc.

                2. neverjaunty

                  Yes, it’s a net loss to the employee. Deferral isn’t just “annoying” – it’s your employer keeping and having use of your money, and you being deprived of the interest and value of that money.

                  And I think it is a bit optimistic to assume an employer could only do that in the short term. Look at how often we see letter-writers and commenters talking about putting up with broken promises from employers (raises, promotions, better working conditions) for months or years. Or finding out that favored co-workers are getting different treatment.

                3. Kate

                  Yeah, unless word gets around your workplace that people get punished or fired for asking for overtime. I had a friend whose workplace pulled these kinds of stunts all the time and got away with it because no one who worked there could afford to either quit or to get a lawyer and sue.

                  It was a retail job and even working more than 40 hrs at minimum wage in our area people were barely keeping a roof over their heads. And because of that they couldn’t afford to move away from where they had grown up either.

                  Quite frankly, having spent my first working years at the “no protections” end of the employment spectrum (to all intents and purposes), I see this as turning into a community store type of thing. “Oh you want money? Well too bad, here are some store credits, go buy low-quality, over-priced shoes or something you don’t really want instead of having money to save.”

                  Of course this wouldn’t apply to retail workers, but the principle is the same. As others have said, we read about abusive employers taking advantage of their employees all the time on this site.

            3. nonprofit manager

              I would actually be concerned that this would shift looking at overtime to a yearly thing instead of a weekly thing and people would lose out on overtime compensation entirely. Would depend on the business cycle, but I could see employers requiring overtime when it’s busy, then requiring use of comp time when it’s not. They get the benefit of overtime work with no hit to the budget. The employee gets extra paid time off and no extra money.

              Reply
                1. nonprofit manager

                  The scenario I am thinking of is when the employee agrees to the comp time arrangement and then the employer requires that all comp time is used during the year to avoid a payout. Because it sounds good on paper: Extra time off during the slow season and payout if the time is not used.

                  These same employers might also decide they don’t “need” those employees to work overtime who opt to continue to receive overtime compensation in the form of 1.5 wages as the overtime is incurred.

                  Will be interesting to see what happens if this goes anywhere.

              1. JB

                This is the best statement of the problem with this I’ve seen.

                It takes a business problem (busy and slack seasons) and makes it the workers’ problem.

                Zero chance companies that want to do this don’t find a way to make it effectively mandatory.

                Reply
                1. nonprofit manager

                  I personally think that is what this is designed for. Employers that are busy all year will just continue with business as usual, I think, because it does not benefit them to carry an extra liability on their books or juggle additional time off. I think this benefits business with definite busy and slow seasons.

    4. Retail HR Guy

      In theory the regulations written after the law passes clarify the definitions, but in reality it often takes many, many court rulings before the real rules are known. And HR people like me have to keep on top of it and adjust our PTO and attendance policies accordingly with each new ruling. And then we will have to police our managers who get fed up with us constantly changing things on them.

      Or… we will just not offer this option to any employees if there become too many legal potholes to avoid.

      Reply
  6. De Minimis

    I think it’s something that would be good in theory, but I feel like in practice the employees might end up getting the shaft. I know of people who work in jobs that currently allow comp time [government positions] and they have to fight with management to be allowed to take the comp time they’ve earned [usually they’re criticized for “not managing their time well enough” to where they end up with comp time.] I guess this would probably less likely to happen with hourly employees who work outside an office environment though.

    It just seems like with the current rules it’s tougher to weasel out of compensating employees for the extra time.

    Reply
    1. Ask a Manager Post author

      Interestingly, I think this has more protections than the current comp time system for government employees has, because you can make them pay out the comp time if they’re not letting you use it.

      Reply
      1. nonprofit manager

        I agree, and I think the annual pay out would be an incentive for employers to require that employees use up their comp time during the year when things might be slower. Employers have absolutely no incentive for not allowing the use of comp time and every incentive to make sure employees use every single minute before the year is up.

        Reply
    2. The IT Manager

      Presumably any empoyer who blames an employee’s time mismanagement as the reason for their comp time would feel the same about tir need for OT.

      I am a govt employee and haven’t had an issue with getting approved for comp time in advance. The only tricky part is that I usually want to work extra hours until the task is done and it’s hard to predict in advance if that’s 90 minutes, 2 hours, 3 hours, etc.

      Reply
  7. Mike C.

    So I presume this is HR 1180, “Working Families Flexibility Act of 2017”?

    Yeah, it’s certainly an interesting thing to discuss, but I don’t see the bill going anywhere. There were hearings on the 5th in committee but no vote since then, and the author/cosponsors (only two) are representatives that have very little seniority in the House. Given the current priorities in the House and Senate are directed elsewhere, I see this sort of bill stagnating for a long time.

    Is there perhaps a version of the bill moving in the Senate as well?

    Reply
      1. Mike C.

        I totally missed that, thanks!

        It interesting, there’s a lot more support on the senate side, but still no action out of the committee.

        Reply
    1. Pwyll

      It doesn’t appear so based on my brief reading. This bill would add a new subsection (s) to the Fair Labor Standards Act for private sector employers, but it doesn’t appear to amend the current provisions for government employees found in subsection (o).

      Reply
  8. Anon for this

    Unfortunately, the comp time bill (Working Families Flexibility Act) could potentially harm many low-income workers. One major goal of this site is ensuring that as many people as possible have good bosses, but the truth is that there are still lots of bad bosses and bad employers out there, and they’ll be able to exploit this provision to the detriment of their employees.
    Yes, in theory, the comp time option would only go to those workers who willingly sign a document saying they’ll accept the comp time in lieu of overtime pay, but in practice, many workers may feel pressured to sign the document in order to keep their job (even if it’s officially illegal to pressure them this way). Alternatively, in a workplace where some workers have signed the document and others have not, the employer might choose to give available hours to those who have signed for comp time, when those who opted to keep overtime pay might really need those hours in order to feed their family.
    Further, while the bill is pitched as giving workers “flexibility,” the truth is that the decision of when/whether the employee can use the comp time still rests with the employer. So if someone works overtime one week and then wants to take a day off to attend a family wedding a few weeks later – or even to recover from the flu — the employer would still have the power to deny that request. So the “flexibility” still rests with the employer, not the worker.
    And if the employee puts in a request for the comp time to be paid out as overtime after all, the employer has 30 days to comply. The employee has just given their employer an interest-free loan.
    This is a bad bill that’s masquerading as helpful to workers.
    Link to follow in another comment.

    Reply
    1. Anon for this

      (Regular readers might be able to figure out which commenter I am, but since I mentioned to my colleagues that Alison might have a pro-comp-time post later today, I’m leaving off my user name soas not to dox myself!)

      Reply
    2. Ask a Manager Post author

      Yep, that could happen. And it would also give flexibility to good managers, like the letter-writer in today’s column who wanted to help out one of her employees and couldn’t legally do it. It’s a mixed bag. It’s not all bad or all good.

      Reply
      1. Anon for this

        I agree that for employees with good managers, this could be great. But I don’t think employees should have to win the boss lottery to get good treatment.

        Reply
        1. Ask a Manager Post author

          Of course not. But I think there needs to be a more nuanced discussion of this issue, because right now loads of workers do feel frustrated that they can’t get the flexibility they want. This bill may not be the solution, but again, it’s not all bad and I think a nuanced discussion of it has to acknowledge that.

          Reply
          1. Anon for this

            I think that’s fair. What if there were a provision such that comp time was an option for people who earn at least two times the minimum wage, or perhaps just to workers in certain industries that tend to have fewer labor violations?

            Reply
          2. neverjaunty

            Respectfully, “it’s not all bad” is true of all kinds of terrible things. It doesn’t make them any less terrible, and it doesn’t mean a discussion pointing out they’re terrible lacks “nuance”.

            Reply
            1. Kate

              Exactly! Frankly protections need to be made with the assumption that a bad boss will try to twist them, they need to be geared towards protecting the most helpless, worst off worker, not for the worker with the good boss. The worker with the good boss will be fine no matter what, laws need to be made for the workers with bad bosses.

              The law states that workers are required to take breaks, whether they want to or not. They are not given a choice because otherwise unscrupulous employers will lie and say “Oh yes, my employees hate to take breaks, all of them, they really love working.” and it can’t be proven otherwise if the employees want to keep their jobs and avoid really sneaky retaliation, especially in an at-will state.

              And unfortunately at many businesses the employers get away with it anyway because the employee(s) can’t risk losing their health ins, homes, etc, for the length of time (years!) and amount of money a lawsuit would take, which might not succeed anyway!

              Reply
        2. animaniactoo

          To a large extent, that’s where they’re at now. PTO granted at the time you want it is up to having a good manager/HR dept who will work with you or company policies that ensure you get reasonable consideration/acceptance. On the flip side, there’s also plenty of being pressured to skip legally mandated lunch breaks, put in hours “off the books”, accept odd hours scheduling, etc.

          Given that the comp time pays out at 1.5 also, that there are limits to the amount of comp time that can be accrued per calendar year, etc. I don’t think this is really that much more ripe for abuse than what’s already happening with the current rules.

          Reply
          1. fposte

            Yeah, I think this is a consideration employees should have when choosing whether to take comp time or OT, but I think non-medical time off is always going to be subject to employer discretion.

            I also don’t agree the NPWF’s disapproval of the cap on accruing comp time. I think that’s a safeguard on both sides, and I also think that disapproval comes across a little bit as “this is awful, and there isn’t enough of it.”

            Reply
      2. Anon for this

        Incidentally, I used to work in a government job where I got comp time, and I personally liked it. I had good bosses who let me use time when I wanted. We did have a policy that said we needed to use our comp time before our vacation. One thing I would have liked even at this good employer, though, would have been for them to explain more clearly what I was signing when I signed to agree to get comp time. I didn’t realize that I was signing to say I would *always* take comp time rather than overtime pay. I thought I was signing to say that I’d be okay with comp time sometimes, and we’d discuss it on a case-by-case basis.

        Reply
      3. paul

        I rarely, if ever, hear about substantial changes to anything that are either all good or all bad. I mean, bad boss’s gonna bad boss regardless with stuff like this right? It isn’t like we *don’t* have bosses being asses about people taking time off for emergencies anyway.

        My biggest concern is that payout has a full year to occur if they don’t let you take it sooner. Id’ prefer a much more defined timeline (say a quarter maybe?)

        Reply
          1. Zombii

            True, but they could stall you on asking for a year while they play “Hey, are you sure you want to cash this out? If we have some slow time next month, you could probably take a week off…”

            Reply
    3. MegaMoose, Esq

      Yes, the control aspect is concerning. Under the current system, you are entitled to be paid immediately for your work. Once you’re agreed to comp time instead of OT (and I worry about coercion here, too) you’re in a position where the employer gets to hang onto the money that you have earned until you pro-actively request it, in which case they can either deny PTO based on business necessity, or sit on your cash for thirty days. Requiring a payout at the end of the year and when you leave is good, but that still could come out to a pretty significant interest-free loan for the company.

      Reply
      1. CatCat (was LawCat)

        But on the flip side, some employees might want that comp time to just sit there especially if the employer doesn’t cash out the comp time before giving pay raises.

        Reply
        1. MegaMoose, Esq

          That’s true, and it’s entirely possible I’m being overly paternalistic here. I just feel like the workers most likely to be taken advantage of here aren’t the ones who get things like raises and sick days, and that cash in hand *now* is going to be the better option for them.

          Reply
          1. Paxton

            I think this is what is making me weary. As we can see from many, many examples on this site this area of employee rights already confusing and ripe with shady/illegal application. This amendment makes it even more confusing by introducing multiple accrual options and delayed payout.

            Any area of business where you need a law degree to understand your rights is going to essentially benefit those who have corporate lawyers, not individuals.

            Reply
            1. LQ

              This is a great point and something I hadn’t quite been able to put my finger on. When employers are good this will give them another tool to be good. But when they are bad, and often they are bad for the people who need it most, it will be another way to be very very bad. If you could promise me today that all employers would be “good” and not push employees to break laws, not do things like lock employees into buildings full of fire hazards? Then great. But time and again employers lock the doors on employees who feel like they cannot speak up because then they will not have the job that lets them not be homeless and they are caught in fires. I don’t want more fires.

              Reply
              1. MegaMoose, Esq

                And these complicating issues are even more concerning (and I didn’t realize this until reading the link posted above) when you consider that the law doesn’t provide addition funding to the DoJ for enforcement/oversight, and that certain areas of the law (it looks like the retaliation provision specifically) can apparently only be enforced through private civil action and not through administrative proceedings.

                Reply
                1. neverjaunty

                  And by “private civil action”, keep in mind the resurgence of mandatory binding arbitration in employment. So not even the courts – if your employer cheats you out of comp time, now you have to pay out of pocket for a private arbitrator with no right of appeal. Oh, and that arbitrator has every incentive to find for your company, because it’s a source of repeat business and you aren’t.

    4. INFJ

      But how’s that any different from a bad boss making an employee work overtime “off the clock”? Bad bosses are going to break the rules regardless of what the rules are.

      Reply
      1. Anon for this

        Well, the employer making the employee work OT off the clock is breaking the law, so the DOL can impose penalties on the employer. If this bill passes, then an employer who refuses to let the employees use their comp time when they want to probably isn’t breaking the law, they’re just being bad bosses. So there’s a difference in terms of the recourse the employee has to fight back.

        Reply
        1. INFJ

          I was responding to the part about coercing an employee to sign to keep their job.

          I totally agree that the part that is most troubling is the power of “flexibility” lies within the discretion of the employer.

          Reply
  9. Brett

    The item I see missing here is a rule on PTO versus comp time usage. Since PTO is not required to be paid out and can be use it or lose it, I could see an employer putting a policy in place that requires the use of comp time before PTO. My last employer, a government employer, had this policy.
    The end result of the policy was that some employees never touched their PTO. They would keep constantly burning through their comp time and find themselves at the end of the year with full PTO, which they would then lose to end of year PTO caps.

    (There was actually a separate policy implemented during my last 2 years there requiring employees to use at least two weeks of PTO per year, so you had some employees who were taking off “December” or longer because they had to burn down their entire comp time and 2 weeks of PTO before end of year. Sounds great in theory, worked out awful for them in practice.)

    An employee could simply cash out their comp time to make sure they can use PTO instead of comp time, but it would be better if employers were required to allow employees to use PTO/vacation/sick pay before comp time at the employee’s option.

    Reply
    1. tigerlily

      If that’s an issue – using up all your comp time and never using PTO – then just don’t get it as comp time. You can still opt to have it paid as regular overtime pay.

      Reply
      1. Brett

        Then comp time becomes unusable, when so many of the rules seem to be built around avoiding a situation where comp time is unusable.

        Reply
      2. Zombii

        Then you’re just back to where we’re at, with employers not being flexible about approving extra hours because they don’t want to pay overtime rates. Employers who are okay with paying overtime to get things done aren’t the ones who are going to make employees use comp time before PTO to avoid paying out more than they have to.

        Reply
  10. CatCat (was LawCat)

    I was curious what the penalties would be for an employer intimidating, threatening, or coercing an employee to accept comp time. It is: “An employer that violates [the section that says employers shall not intimidate, threaten, or coerce employees into accepting comp time] shall be liable to the employee affected in the amount of the rate of compensation. . . for each hour of compensatory time accrued by the employee and in an additional equal amount as liquidated damages reduced by the amount of such rate of compensation for each hour of compensatory time used by such employee.”

    Reply
    1. Blue Anne

      So if they intimidate you into taking comp time, they have to give you the comp time AND the overtime pay?

      Reply
      1. CatCat (was LawCat)

        They have to pay you for the comp time x2 basically, but can offset it by any comp time actually taken.

        So if an employee is told to agree to comp time or be fired and accrues 100 hours of comp time, the employer owes compensation of the dollar value of 200 hours of comp time. If the employee has actually used 20 of the hours, it would be the dollar value of 180 hours. That’s how I read it, at any rate.

        Reply
        1. KellyK

          So, not only is there no DOL penalty, but the company’s liability is low enough that in a lot of cases, it won’t be worth suing. Especially if they require the use of comp time before PTO, or don’t offer PTO, or require you to use your comp time once you’ve accrued a certain amount.

          Reply
  11. Miso

    I’m so glad I can choose if I want comp time or get the overtime hours paid. Well, in theory I can, but with taxes and everything I’d get so little out of it, it’s really not worth it. More hours to take off on the other hand…! That’s especially useful since my hours over the week are very uneven. I’m totally fine with taking a vacation day for a 9,5 hours work day. I’d rather not take one for a 3,5 hours work day though…
    I’m honestly sad it’s so difficult to actually work overtime at my workplace ^^”

    Reply
    1. Zombii

      Overtime isn’t taxed at a higher rate. The only way you’re getting less money by making overtime is if your wage is set at a rate that working overtime puts you into a higher tax bracket (I’m guessing that’s why the yearly payout—government wants taxes paid on all hours worked that year, and the time has to be paid to be taxed).

      Reply
      1. Zombii

        * “getting less money” = “getting taxed more” (I know taxes only go up for the portion of money that’s over the line into the next bracket, and the money in the previous bracket is still taxed at the previous rate. yay, taxes)

        Reply
  12. Anon4thisherething

    Regular commenter anonymizing because this is too identifying.

    I work for a local government, we can now earn comp time only by prior agreement with our supervisors because one shop gamed the system.

    There is a shop with 4 employees working 4-10s. They don’t have a lot of slack, they are fully utilized – sounds bad to put it that way, can’t dredge up better working. So, they put in some extra time while one was out for a couple of days, earned comp time. So they took their comp time, and that created more overtime, taken as comp. They figured out that every time someone took time off, they could earn comp time, which generated time off that required earning more comp time at 1.5… Pretty soon, the shop never had more than 3 people working because someone was off on comp time. And they had to work over to cover the work. They created a system where they shared it equitably and were pretty much working 3-12s. And enjoying their mid week day off or their 4 day weekends.

    Now, if we work unexpected overtime, we get it paid out. Even if we preferred to get comp time.

    Reply
    1. LCL

      Yeah, we had the phenomenon you described within certain work groups. Subsequent negotiations did some tweaking so that was no longer possible. We do still pay comp, for those employees that request it.

      Reply
    2. not really a lurker anymore

      Yeah, a former employer (branch of local gov’t) was doing this when the budget was tight and they had to be open certain hours but couldn’t afford to pay OT and were staffing via volunteers. And then they couldn’t afford to let people use the CTU time. It eventually got resolved when the budget got better.

      I now work for a different branch of local gov’t and my manager seems to desperately want to get rid of my smallish stash of CTU time. I don’t have a use by date for it so it sits. If my manager offered to buy it out, I’d probably take her up on it. I have several pots of accrued time; the CTU is the last one I’d use if I needed time off.

      Reply
  13. JustCurious

    Are government agencies exempt from the current rules?

    I used to do some volunteer work at the local Sheriff’s office, and their employees were required to take comp time in lieu of overtime. They only got it paid out if they left the department.

    Reply
  14. Leatherwings

    Hm. Not to get too political but this worries me. It seems fine on its face, but I think in reality this would lead to more overtime and less flexibility overall – it doesn’t seem like the bill mandates that employers allow employees to actually use the comp time when they need.

    I don’t know, I just think there are better and more employee-friendly reforms to labor law like guaranteed sick time and expanded FMLA.

    Reply
      1. Leatherwings

        Yes, but for a family with small kids that’s a long time to wait for pay and time off when your kid is sick. That means less money and flexibility to plan for.

        I’m sure this would help some people some of the time, but I’m worried about the extent that it would actively hurt and exploit the people who need it the most.

        Reply
  15. paul

    What I don’t get:

    There is absolutely *nothing* stopping companies from doing what amounts to comp time now.

    Say someone works 50 hours in week A. pay them for the 50 hours, including 10 hours of 1.5x their hourly rate.

    Next week, you can have them work 15 fewer hours. Your payroll’s annual budget isn’t impacted, you did it by the letter of the law, and it works.

    We’ve done this at work a lot of times if something crops up over a weekend unexpectedly.

    Reply
    1. Anon for this

      But that’s not flexibility for the employee, right? They don’t get to choose when to use their comp time – you’re just forcing them to work fewer hours specifically the next week. If they worked 50 hours one week and asked you to let them work 15 fewer hours a week three months later when they wanted to take a four-day weekend, would you let them do that?
      (I mean, I oppose this bill anyway, but I don’t think the example you’re giving shows a similar provision.)

      Reply
      1. Retail HR Guy

        Just because his example isn’t exactly right doesn’t mean that his point doesn’t still stand. Let the employees pick when they want to take their 15 fewer hours and you’ve got an example showing that there is really no need for this law.

        Reply
    2. MegaMoose, Esq

      This isn’t going to work in jobs where every hour worked is pretty much equal to every other hour, though, like jobs where you’re being paid for coverage rather than output. In your hypothetical, the employer’s payroll may be the same, but the hours worked is five hours less.

      Reply
    3. LBK

      The difference is that this allows the employee to decide when they get paid for those extra 10 hours. I suppose technically the employee could just put that OT pay to the side and not use it until they decide to take those 10 hours unpaid, effectively paying themselves for that PTO. But this formalizes the system and also gives the employee protection if they decide to agree to it.

      Reply
    4. Blue Anne

      Well, no, because in that situation, my employer would be paying me for an extra five hours, and billing five fewer hours to my clients. They’d be out my overtime wages AND my billable time.

      Reply
  16. hbc

    I don’t like it. It doesn’t really give any advantage to the employee. In the case from earlier today, why would the employer agree to about 43 hours one week and 35 hours the next from the employee? They’re paying the same amount of money for less work, so they’re just as unlikely to do this as pay cash money for overtime. All it does is put more steps between employees getting money for extra work, and the more steps, the more likely there will be abuse. Oh, and hey, now that you have comp time, we can cut back on PTO since you can make it up.

    Reply
    1. Ask a Manager Post author

      I might be misunderstanding what you’re saying, but they wouldn’t be paying the same amount for less work. They’d be paying for the extra hours in week one with comp time, that’s then used in week 2.

      Reply
      1. animaniactoo

        It’s a math question on whether the overtime was actually needed.

        If the employee is putting in extra hours this week in order to take off 5 hours next week, the 1.5 payout means they only need to put in 2.5 hours this week to get their 5 next week. So that’s a loss to the employer of 2.5 hours of productivity for the same amount of actual cash payment.

        If the employer really needs the hours this week, but expects next week to be slow, that’s to the employer’s benefit. If the employer is going to have to get work coverage for the missing extra 2.5 hours of productivity, it’s not to their benefit and they’d likely deny a request to do it.

        Reply
      2. LBK

        I think what hbc is saying is that because the comp time credits at 1.5x, you lose hours of productivity; it’s pretty negligible in small amounts, but if someone manages to work 2 full days of OT, you lose them for an entire extra day’s worth of comp time more than they put in. But that seems in keeping with the principle of overtime being paid at 1.5x to begin with, which is both to a) discourage employers from requiring it too often since it costs them more, and b) provide a bonus to the employee for working over the standard number of hours. It’s meant to advantage the employee while acknowledging that sometimes overtime will be needed.

        Reply
    2. GermanGirl

      I totally get what you’re going for here. I’m in Germany and our rules are different. You can do overtime as long as it’s below 10h/day and 48h/week and then use those hours 1:1 to leave earlier some other day – or even to take a day off. Our company is very happy with this rule and allows us to accumulate and use the hours as we please. We have to get boss’s approval when we want to take a whole day of but other than that, no paperwork needed. So I can do 48 h one week and 32 h the next no problem. But if these proposed overtime rules were applied, I’d have to do a 28 h week in order to make up for the 48 h week – my company would never allow any overtime ever.

      Reply
  17. Chicklet

    Right now, I struggle to take all of my PTO (luckily, mine isn’t use or lose, but I do stop accruing at a certain point), so I’d rather have the money. I think this is definitely good for people with decent managers, but it could (like almost anything else) also go horribly awry.

    Reply
  18. Chriama

    I’m surprised by the cynicism of a lot of commenters, but I’m not American and haven’t been following politics since Trump was elected because it just makes me upset. But this bill sounds really good. There are a lot of worker protections built in, and I think this is better for both employees and employers. To those who have concerns, is there anything that you think is missing from this bill that would make it safer and less vulnerable to abuse?

    Reply
    1. Natalie

      I’d say to me, the missing piece can’t be rectified with this bill specifically – it’s more of an enforcement issue and just the general attitude that workers are not supplicants that I sometimes find to missing. Don’t really know what to do about those things!

      Reply
      1. Natalie

        Oh, also the PTO thing discussed in the very first comment thread. If this was passed concurrently with mandatory sick leave, at a minimum, I would feel better about it.

        Reply
        1. MegaMoose, Esq

          Yes! This seems like a great way to brush off concerns about employers not offering sick leave by framing it as the employee’s “choice” to receive cash instead.

          Reply
        2. paul

          I’d love some mandatory sick leave and PTO tbh. Even a relatively small amount would be a huge boon to a lot of workers

          Reply
    2. LadyKelvin

      The problem is that America, in general, does not have a good history of supporting the workers. Just look at how many states are now Right to Work states where there are no job protections and you can be fired without cause. The workers in the US have long had to fight for protections from companies who are looking to save a buck by exploiting their workers. Several commenters above have discussed ways that employees could be taken advantage of legally with this bill. The most obvious one that sticks out to me is that companies could selectively choose to only give/approve overtime to people who have signed up for comp time and then require their employees to use their comp time before their vacation time. Since companies are not required to payout vacation, they could effectively reduce their PTO offerings without actually reducing their advertised PTO package. Also, companies could use this as an excuse to completely eliminate PTO days, requiring workers to first work overtime in order to earn time off. It has a fair number of protections, but it also has plenty of loopholes. Right now companies are required to pay overtime, period, which while it reduces flexibility, ensures that companies have to treat all of their employees equally.

      Reply
      1. Natalie

        Right to Work states where there are no job protections and you can be fired without cause.

        “Right to work” is actually a different thing, about whether or not you can be required to pay agency fees to a union you aren’t a part of. You’re thinking of “at will” employment, which is in effect everywhere but Montana.

        Reply
      2. Chriama

        Ok, fair enough. I totally see concerns about PTO and not giving hours to people who refuse comp time. I’d like to see provisions for that written into the bill, although I’m not sure how. I wish there was a catch-all clause built into this. You know how certain actions can be found to be illegal if they were done with the intent of getting around a law, even if the actions themselves are legal? (An example someone gave me was that it’s not illegal to pull into a gas station by one ramp and then exit by another, but it’s illegal to do that to avoid a traffic light). I wish there was some clause like that in the law plus some sort of governing body to oversee violations.

        Reply
    3. Alton

      My main concern is that I feel like this could encourage employers to expect more overtime from workers. Some people are fine with having extra hours or are used to it, but in a lot of jobs it can be exploitative and unnecessary. I’m glad that in my current position, being non-exempt protects me from having to work outside of my usual hours.

      Reply
    4. LCL

      From my perspective (good job, great leave policy) the biggest issue for American workers is that employers aren’t required to offer any paid leave or sick leave. This bill is a back door way to make sure employees can get some paid time off.

      Reply
  19. L.

    Oh no no no. I can’t use “comp time” or “flexibility” to buy food or save for retirement or pay my bills. People work for money, that’s how this whole capitalism thing works — if I wanted less time at work for less money, I’d quit or find a different job. Only people I see benefiting from this are businesses who will be able to pay employees less for same amount of work– don’t let them convince you that chipping away at basic, longstanding protections will do anything but skimp on your pay.

    Reply
    1. Ask a Manager Post author

      Lots of people feel like you! And lots of people feel differently — we have letters all the time here (including just this morning) about people who want flexibility instead.

      Reply
      1. LCL

        When we started allowing comp time (government) we had the option of not allowing it by workgroup. I talked it over with the other scheduler, we both agreed that comp wouldn’t be that popular except with people that had small kids, and it would be a non issue because 99% of the group would want their money. We were SO WRONG, my worst business prediction ever.

        Reply
        1. KellyK

          Not everybody who’s non-exempt is in a situation that overtime pay is necessary to meet their basic needs. *Plus* sometimes time off when needed saves money in a way that’s worth the lost wages (e.g, an afternoon off to do a household repair might cost less than paying someone else to do it, getting yourself or your kid to the doctor when an illness starts is less expensive than waiting until it puts you in the hospital, etc.)

          The ideal is that the employee themselves gets to decide whether the time or the money matters more to them. The problem is that it’s really difficult to ensure that employers actually do that, rather than doing it in a way that only benefits them.

          Reply
    2. Professor Marvel

      So you don’t select comp time. I on the other hand would love to have more time. (I don’t have a problem taking my PTO.)

      Sometimes there is that big project that I need to power through this week. Next week would be a perfect slow week for my brain to relax on comp time. Right now my employer cannot let me flex my time. So, I have to work the 40 and the 40 and my pay is the same. With this bill I could work the 45 and then the 30 and my pay would still be the same but I would truly be able to relax.

      Reply
      1. GermanGirl

        But why should your employer let you do 45 and 30 = 75 when you could do 40 and 40 instead?
        I get that if your employer has a deadline to meet, they might prefer you doing 45+30, but in all other cases, they wont, so they won’t allow you to do overtime – right?
        If this is about the employee’s flexibility, then it’d have to be 1:1 overtime and comp time so the employer doesn’t have a good reason to refuse.

        Reply
        1. Professor Marvel

          Okay, not 30, but 32.5. It’s a 1 OT = 1.5. It’s still to my and my employer’s benefit. The ultimate pay is the same and I’ve been able to put in the hours to meet the deadline.

          I do admit that I like the concept mentioned by others of having a two week window to work the hours rather than current one week. There are projects, events, busy times, etc., that require all hands on deck one week. The next there is more flexibility. Right now neither the employers nor the employees have flexibility.

          Reply
  20. Retail HR Guy

    I can tell you that if this were to pass my company would just never offer comp time in lieu of overtime pay. It would require updating our computer systems, expose us to new legal troubles, require us to start documenting undue hardship whenever a manager denies someone vacation time, require us to revamp our policies about no planned time off during Christmas season, and in the end wouldn’t actually save the company any money because it gets paid out at time and a half just like regular overtime pay.

    Plus, there’s no real benefit to employees either, because right now they can just take the overtime pay and then ask for unpaid time off later (assuming they’re out of PTO). Pretty much the same effect as comp time.

    Reply
    1. WG

      There can be some downsides to that in relation to some benefits. Where I work, if I put in overtime that OT pay is not subject to earning PTO (which we earn based on regular hours worked), retirement contributions or the related employer match (which is very generous). Then when I take the unpaid time off in a subsequent week, I only have PTO earnings and retirement contributions based on regular hours worked.

      So if I work 50 hours one week, there are PTO earnings and retirement contributions/match on 40 regular hours, even if I’m paid OT for 10 hours. Next month, if I work a 30 hour week, I get paid for 30 hours and have PTO earnings and retirement contributions/match on 30 hours. So I worked a total of 80 hours, but only received PTO earnings and retirement on 70 hours.

      Reply
      1. Natalie

        I think that’s a pretty unusual set up, for what it’s worth. Most places take employee deductions of whatever your gross pay is, no matter what the specific pay code.

        Reply
          1. Retail HR Guy

            But WG’s aren’t based on hours worked. His/hers are based on regular hours worked only (not overtime). That’s just weird.

            Reply
            1. Natalie

              See, the vacation thing actually makes more sense to me, since the company has presumably calculated the accrual based on some total amount of days a year divided by 2080. It may not be their intention to let people earn 1.5 time plus extra vacation by working overtime.

              But employee deductions (retirement, HSA, etc) are almost always either a flat amount or a percentage of gross pay even if some of it is PTO, some OT, etc.

              Reply
              1. doreen

                The vacation thing makes sense to me , too. Employees at my agency accrue leave based on being paid for 7 full days of the 10 days in the pay period, no matter where the pay is coming from and no matter how many hours are worked and I’ve never had a job where working overtime meant earning more vacation time. I wouldn’t lose any time off by working 50 hours this week and taking 10 hours off unpaid next week, because I would still be paid 7 full days of the pay period. But if I worked 50 hours for three weeks and took thirty hours off unpaid in a fourth week , I wouldn’t earn any vacation time for that pay period because I’m not being paid for 7 full days ( I’m being paid for only one full day in the week I’m taking thirty unpaid hours off). I worked retail/food service type jobs back when part-timers were just starting to get any PTO. Only my last part time job gave part-timers PTO – and it was 2 days a year, whether you worked ten hours a week or thirty. I suspect that earning based on hours worked was meant to make up for that sort of inequity and is more common in jobs with a fair amount of part-timers.

                Reply
    2. CrazyEngineerGirl

      I don’t think my company would want to offer comp time either, at least not as it’s laid out here. I know the owners would love to be able to give that flexibility to people, but tbh, someone racking up and potentially using 160 hours of comp time a year wouldn’t fly. Yes, employees may not use all that time but they could also want to and the ‘undue disruption’ part could be tricky. Some of our blue collar, manufacturing labor employees work at least a few hours overtime weekly on a pretty regular basis. They would reach the 160 maximum hours by averaging 2-3 hours per week. The thing is, they work overtime fairly regularly because… well, we’re busy. (And for specialized labor like a welder, it doesn’t make sense to hire an additional employee to make up 4-6 hours of work most weeks.) While I don’t think most, if any of our shop laborers would choose comp time as they want the extra money from OT, someone could choose comp time and easily rack up 160 hours on top of regular PTO, and there’s just no way my company would be able to allow for that much time off. Not as it currently runs anyway. In jobs where number of hours worked and subsequent amount of production are what matters, some employers (like mine) may easily want to pay out the extra money than risk losing the additional time.

      Reply
    3. Brett

      I’m not sure if the new law allows this, but for local government there are often complicated policies involving overtime pay followed by unpaid time off that can make it beneficial to take comp time in certain situations.

      (To give a really complicated example, one police department near me requires sergeants only to work all days of the last week of the month if they earn any overtime during the month. If they take any PTO or unpaid days off, then they lose _all_ overtime pay earned that month. They are better off converting to comp time if they anticipate any time off later in the month. This has led to a nasty lawsuit after an officer lost five-figures in overtime pay after being shot in the line of duty during the last week of a month where he had worked a large amount of overtime.)

      Reply
      1. Brett

        (Not to mention various policies that impose penalties for non-FMLA unpaid time off, including termination.)

        Reply
  21. Rebecca

    My main concern is that companies will do away with vacation time and/or PTO time in lieu of comp time. I live in PA, and my company provides both, but we don’t have a law that says they have to provide it. It’s part of my benefits package. My work week is normally 40 hours, and I like it that way, as I have a good work/life balance. Perhaps I’m being selfish, but I really don’t want to have to work a string of 50+ hour weeks in order to take paid time off.

    Reply
    1. LabTech

      This is a good point. If people are working more hours and regularly have a “comp time” bank for time off, benefits such as vacation and sick leave will start to become redundant.

      Reply
  22. I Love Swedish Fish

    As someone who does payroll/HR and benefits admin at a nonprofit, this would be a nightmare.

    Reply
    1. Natalie

      The initial set up would be a bit of a pain, but this is something accounting or payroll software should be able to handle pretty easily. It’s not much different having a different pay rate for OT.

      Reply
      1. NylaW

        It’s very different. You’re talking about banking hours and tracking what the rate of payout for each hour is, and possibly flipping it on and off depending on what the employee wants. Maybe half the year they want comp time, then they change their mind.

        Reply
        1. LBK

          That’s all done in the system, though, probably even including the user maintaining whether they’re taking OT as pay or comp time. Unless your payroll is managed by a spreadsheet, this doesn’t sound like anything that’s far outside the capabilities of existing payroll and PTO systems, and comp time already exists for government employees so there’s a long-standing business requirement for it. I wouldn’t be surprised if most payroll systems only required minor updates to accommodate the specifics of the law.

          Reply
        2. Natalie

          No, it’s really not – you’re just setting up a different pay code for OT hours, and some employees will use it and others won’t. They’re being paid in PTO, but the underlying concept is the same.

          Government employees already get comp time, and their payroll system manages to keep track of it. Given my experience with government computing systems I’m guessing they’re not even using the latest and greatest software.

          Reply
          1. Natalie

            And as far as changing minds goes, people can change their 401K and HSA deductions every week, they join and drop health insurance as various things happen that allow them to make changes, they change their direct deposit distributions or file a new W4… dealing with things changing is part of payroll.

            Reply
      2. Jules

        Not if you have a really manual process and a really crappy system cobbled together. I work for a large organization that pays weekly. It’s going to be a giant pain and an audit nightmare.

        Reply
    2. NylaW

      As someone who does the same, I agree. I have no idea how to make this work in our current payroll system, especially the part where we track what hours of comp time are to be paid at what rate in the event of someone taking another job that pays slightly less (it happens all the time). Plus the tracking of who has signed up for comp time and who hasn’t, and when that gets turned on and off. Can someone just decided after a month that they don’t want comp time anymore? Can they wait another month and decide they do again? I feel like payroll systems would need upgrades all over the place and that would just further complicate everything.

      Reply
      1. KellyK

        Having different comp hours tracked at different rates could get really messy. I wonder if an automatic partial payout would work under the proposed law. That is, say I have 10 hours of comp time and I take a job where I make $0.17 an hour less than the previous one. On my first paycheck of the new job, if you tacked on an extra $1.70 comp time payout, then my existing comp hours would be worth the same as any new ones and wouldn’t need to be tracked separately.

        Reply
      2. Joshua

        I could see if a company didn’t want to deal with different rates for different jobs, they might just pay out all comp time when an employee transfers to the new job. Just as if the employee left the employer. Then they’d start brand new with 0 comp time hours at the higher (or lower) rate.

        Alternatively, since the comp time is required to be paid out at the end of every year, the company could just keep the higher rate for all comp time hours that year and then when the new year begins, have all the next year’s comp time hours paid at the new rate. This might cost the company a little more in terms of the end of year payout depending on the different rates, but that’s their choice if they don’t want to deal with the accounting.

        Reply
    3. KellyK

      My company offers comp time to exempt employees. if I work over 40 in a week, I can choose comp time or OT, both at my regular rate of pay. We use Deltek for our time sheets, and it’s set up to include comp time. You enter your extra hours as OT under the applicable charge code. If you want to bank comp time, you add a new line, pick the code for comp time, and enter it as a negative. It’s pretty straightforward.

      I haven’t looked at it from the payroll side, so I suppose it could be more involved there, and of course I don’t know how much customization this required in Deltek. The employee’s time sheet lists how much they worked and what should be banked as comp time versus paid as OT, so once it is set up, the payroll person gets the info they need right from the timesheet.

      If this becomes the law, I’m sure that time sheet systems that don’t handle it well or at all will start implementing it.

      Reply
      1. LBK

        If this becomes the law, I’m sure that time sheet systems that don’t handle it well or at all will start implementing it.

        I think they’d need to out of necessity; no one is going to buy a payroll system that can’t comply with the law.

        Reply
        1. KellyK

          As the proposed law is written, offering comp time in lieu of OT is voluntary for the company. So they could still comply with the law using a time sheet system that couldn’t handle the new rules for comp time–by just not offering it. But it would definitely be a selling point in favor of systems that do.

          Reply
          1. LBK

            Ah, true – more accurate, then, to say that no one who wants to do this will buy a payroll system that can’t. I’d imagine the big providers like ADP will be way out ahead of it.

            Reply
        2. Jules

          From my sad experience, system vendors builds it to allow for illegal things. I was rather surprised by it when I was working on a payroll project.

          Reply
  23. Dan

    The way AAM frames the introduction, I’d suggest that an easy solution is to allow flexibility in a pay period, which is typically two weeks. That way, if I work 45 hours in the first week of the pay period, I can work 35 the next. I get that this isn’t perfect, but I had a job that used to allow the later, and then went to the former. That’s right, instead of having to get 8 hours * number of days in the pay period, we went to 40 in a week. The impact was actually really big, and nobody liked it.

    Something like this adds a little flexibility without shaking up the overall dynamic. My fear, as with everybody, is that anytime that exceptions are permitted when an employee “voluntarily” agrees to something, well, how often is that truly voluntary? That type of thing is ripe for abuse, and I wouldn’t support it.

    Reply
    1. Natalie

      That’s an interesting idea. I think it would be good to put a cap on how much can be carried over in either of the weeks – I’m not sure I’d love it if the law allowed someone to work 80 hours one week and zero the next, because an 80 hour week is terrible. But if you had it capped at no more than 60 per week and 80 between the two, that seems more reasonable.

      Reply
      1. GermanGirl

        In Germany, this scheme is pretty common and the cap is 48 h/week and 10 h/day in most cases (the law makes some exceptions for being on call and such things). The pay period here is usually monthly and the company decides how many extra hours you can carry into the next pay period. Some companies also allow negative hours i.e. working the 35 week first and the 45 week second.

        Reply
    2. Anon for this

      It would also be important to make sure that the workers know in advance that this is going to happen so that they can plan their schedules. If employees have planned their childcare, personal appointments, etc., on the assumption that they’re working 40 hours each week, and then the employer spring on them that they’d like them to work 45 hours this week and just 35 the next, that’s a problem. (But I realize that’s kind of a separate issue from the subject of this post. This proposed law doesn’t address the problem of employers springing schedule changes on their employees.)

      Reply
      1. CrazyEngineerGirl

        But would employers be allowed to dictate when you have to use your comp time like that? It’s clear that they can deny a request to use them, but nothing said they could make you work 45 hours one week and then force you to use that comp time to only work 35 hours the next week. There is a big difference between gaining comp time you can use at will like normal PTO and a company being able to say you WILL work less hours next week and you WILL use your accrued comp time to cover it.

        Reply
        1. KellyK

          That’s part of existing employment law, though. The company gets to set your schedule, so there’s nothing to prevent them from requiring you to take specific days off. Normal PTO is actually the same way. If your company closes the office or just doesn’t schedule you, it doesn’t matter that you wanted that PTO for a vacation later on, if you want to get paid, you have to use it.

          Reply
    3. Detective Amy Santiago

      This would be far more useful, I think.

      I mean, at OldJob, I routinely worked 5-10 hours of OT each week. It was hard enough to schedule my PTO and there never would have been a good time to use comp time.

      At CurrentJob, I generally work 2.5 hours of OT each week, but I could use the flexibility when I actually take a vacation (which is much easier here).

      Reply
    4. LBK

      I like this – I think it’s pretty reflective of how informal schedule flexibility typically plays out for exempt employees, so it would create an official, protected system that effectively mimics that flexibility for non-exempt employees. I’d venture most people who want comp time want it for this purpose and not so much to stock up on long-term.

      Reply
    5. Anxa

      I’ve never really worked in jobs where overtime was a real issue, because I’ve only been full-time in seasonal jobs or things like food service.

      But I can say that there have been times when there was a special event and I really could have used some extra cash, and came nowhere near 40 hours most of the time, would have no use for time and a half, but just really would have appreciated some extra cash and a chance to work a full-work week (a reprieve from the I-shouldn’t-have-this-much-time-off-at-my-age guilt). The departments weren’t allowed to give any overtime hours so instead they paid people making 2x or more the wage than I did just to avoid going into ‘overtime’ that then grumbled about having to work shifts they didn’t want.

      I would like this method, now, only I don’t know if it would work for me, since I probably am not allowed to go over 30 hours for insurance reasons.

      But…my last job paid monthly. Not sure how to adapt this well for monthly.

      Reply
  24. GG

    Aside from all the concerns everyone else has expressed above, I have another bit I’d like to pick at – the thing about all comp time having to be paid out at year-end. Certainly, there needs to be limits so that an employee doesn’t accrue a huge amount that would then be an unreasonable burden for the employer to have to pay it out. But why not have the requirement be that comp time has to be paid out after it ages past a certain limit? With the year-end requirement, that means an employee effectively can’t choose to use their time early in the year, only later in the year.

    Reply
    1. LCL

      This aspect of the rule is really pro management/pro business. And it even benefits the worker, though not as much.

      This makes sure that employees don’t have too much comp time on the books. The end of the year is a hard deadline so easy to comply and easy to document if not complied with. And it is a single deadline for all employees. It is much easier to administer that way.

      I don’t understand why an employee can’t use comp early in the year. Employee works OT Jan 2, that comp is technically available Jan 3, though most places will probably have a lag of one pay period until it shows up.

      As to how it benefits the employee? I know someone who worked dozens of hours without compensation for the promise of comp to be taken later. The company closed on very short notice and his comp time money vanished into the ether.

      Reply
      1. GG

        You are right, of course, that with a single deadline for all employees, it is easier to administer. I’m sure that’s why they went with it.

        Note that I said employees *effectively* can’t use comp time early in the year. In your example yes, an employee can use their hours on January 3. But how many hours do they have at that point? Whereas if the year-end deadline weren’t in place, they could use however many hours they had managed to accrue since, say, June of the previous year.

        Reply
        1. Elsajeni

          Yeah, that’s a good point. I’m currently in a position where overtime is “paid” in comp time (I work for a state agency), and because I rarely have to work overtime, I don’t find my comp time very useful — I might accrue as much as an hour per month, and usually less. If I had to start from scratch every year, I’d always spend January-May or so just saving up enough comp time to take one afternoon off.

          Reply
      2. bob K.

        What happens to this comp time proposed if the company goes out of business? Do you lose it or will the government pay you for? I can see an employer who’s company is on the ropes trying desperate measures to keep it afloat by working a small staff to exhaustion.

        Reply
  25. Ask a Manager Post author

    So, given that the opinion here seems to be widely opposed, what would you do to improve the current law, with the goal of providing more flexibility to non-exempt workers, if this isn’t it? (Maybe this should even be a separate post at some point?)

    Reply
    1. MegaMoose, Esq

      To be honest, I think this law mainly benefits a group of workers that are doing relatively okay right now, while potentially harming those who are the most vulnerable. I think we need to empower that second group of workers first by requiring a living wage, mandatory sick leave, and classifying non-exempt employees at a much higher rate than is currently the case. I recognize that’s pie in the sky, but there actually is some movement in the former two areas right now, and I could see this law used to de-fang movements calling for mandatory paid sick leave in particular, and that alone I find concerning enough to potentially cancel out the potential benefits.

      Reply
      1. Lizzle

        I agree. This law might work out well for me personally, but why is it being prioritized when we still don’t have those more basic protections for workers? That fact alone casts doubt on the idea that any part of the motivation here is to benefit the employee.

        Reply
      2. Allypopx

        Agreed. I also have been in the position of wanting flexibility vs. pay (to the point of trying to dig my claws in as hard as possible into my exempt status when it looked like the December law was going to pass) but I’m also not a vulnerable worker. My nice-to-haves and minor frustrations aren’t more important than protections and provisions to improve the quality of life for people who are being disadvantaged by the system.

        Reply
      3. Manders

        I agree with you. Being able to get comp time on top of the current system I have for PTO would actually work out quite nicely for me, but I strongly suspect that if this law went into effect, the small business I work for would be tempted to cut our current PTO system and switch to only allowing comp time for people who want to take time off.

        I want to believe in good bosses and good companies, but I worry that this would be easy to abuse, and that in this political climate it could set even more of a precedent for rolling back worker protections.

        Reply
      4. Kerr

        Agreed on the limited benefits. OT pay is a basic protection for workers who often have little bartering power. It’s one of the nice things about being non-exempt, and it’s a very black & white issue if your employer happens to be bad and objects. (Or if they’re good but clueless.) It’s also a deterrent to working crazy hours that comp time probably wouldn’t be.

        For reasons others have outlined, the law as proposed seems ripe for abuse, of limited benefit, and potentially open to loopholes. With a LOT of safeguards, maybe a version of this could work at some point? But maybe those non-exempt workers who need flexibility should just get a little more PTO, instead. (Or, in the case of some jobs, any PTO.) This seems like a patch for other issues that could rip at the surrounding fabric.

        Reply
    2. Detective Amy Santiago

      I think Dan’s suggestion to allow flexibility within a pay period is far more reasonable.

      Reply
      1. Kinsley M.

        What about when a company’s pay period isn’t bi-weekly though? My company pays weekly. I’ve seen others that pay bi-monthly or monthly. The solution can’t be to mandate that every company ever pay bi-weekly so it fits within a flexible pay period.

        Reply
      2. Patrick

        I think that plan tends to help more white collar nonexempt workers (who generally have much more regular/set schedules) vs people working in retail, etc. I struggle with it being OK to work someone with a more physically demanding job 60 hours a week as long as you balance it out the next week (I’ve worked 60 hour weeks in retail before and it took a toll on my body, and I would put that work on the lower end of “physically demanding.”)

        Reply
        1. CrazyEngineerGirl

          I agree that it seems to have been designed with white collar non-exempt workers in mind. These are likely the (majority of) workers looking for this kind of benefit/flexibility and the ones that would benefit from it the most. Perhaps there is a need to have more than one class of non-exempt workers? I’m not sure what that would look like or how it would play out. But you’re right, there are so many jobs and types of work where this just doesn’t make sense. And many were it does.

          Reply
    3. NylaW

      A living wage, or minimum wage increase at the federal level, mandatory paid sick leave that is separate from vacation time (1 week? 5 days?), a portion of FMLA time that is paid (6 weeks? 4 weeks?), a provision that comp time can’t be a substitute for PTO so that employees are not forced to use comp time first before PTO or are screwed out of PTO by getting comp time. A provision that employees can revoke their choice at any time and choose the other option. An adjustment to the exempt wage test like we were supposed to have last year but perhaps lower than the almost 50K figure that was proposed.

      As an exempt person who has a lot of flexibility in her schedule, this does nothing for me. But it does a heap for my non-exempt husband who works OT somewhat regularly but who also uses a lot of PTO because of how he is scheduled. This would sort of pad his PTO and give us more options for when he can take time off.

      Reply
      1. NylaW

        Also flexing with in a pay period of two weeks, with a cap at 55 or 60 hours each week at which point OT/Comp time has to be given.

        Reply
        1. MegaMoose, Esq

          Yeah, I also like this idea. I think comp time isn’t in and of itself exploitative, but I don’t trust it to be implemented fairly without a lot of other protections in place. It’s a complicated proposal with lots of unknown implications. Opening up the OT cap to bi-weekly (with a per-week limit) goes straight to the proposed benefit (flexibility) while ideally not creating a bunch of new grey areas for the unscrupulous to exploit.

          Reply
          1. CrazyEngineerGirl

            Yes, this. Because I bet most people looking for something like this are thinking how it just be really nice to flex a couple of hours here and there. Not build up weeks and weeks of extra time off.

            Reply
    4. KellyK

      Personally, I would just make a few tweaks to the bill.

      -Stiffer penalties for companies coercing employees to use comp time, and include making perks or OT only available to those who sign up for comp time as a form of coercion
      -Companies can only offer this if they already provide a certain amount of paid time off and can’t use comp time to reduce paid time off or count them toward the same cap. Requiring employees to use comp time first is fine. (Ideally, minimum sick and vacation time rules would be separate, but unless that happens, not allowing companies to replace vacation with it seems like the only way to ensure that the law doesn’t actually result in *less* time off for some employees.)

      Shortening the amount of time in which unused comp time must be paid out might also be helpful, but I’m not sure what a reasonable timeframe is. I would think you could have your timesheet system set up to make “comp time payout” a line item and pay it out with the regular paycheck. Fifteen or twenty days would probably be doable.

      Reply
      1. fposte

        I like NPWF’s idea about recourse for breach being available through the DOL rather than just through the courts, too.

        Reply
      2. MegaMoose, Esq

        I like the idea of requiring companies who offer comp time to also provide a basic PTO package. I’d also be curious about requiring companies to maintain a certain minimum amount of funding to pay for outstanding comp time.

        Reply
        1. CrazyEngineerGirl

          The funding for end-of-year payout is particularly concerning I think. Especially for smaller companies. Can’t you just imagine the scenarios where Company A (whether through choice or coercion) has a bunch of employees request comp time instead of OT, then the employees either don’t use much of or Company A denies a lot of the request for time off, such that at the end of the year they have some significant amount of employees that have maxed out on the comp time. Not many (smaller) companies could afford to pay all of their employees regular salaries and then pay out an additional 4 weeks to a bunch of them all in December. And I know, I know, companies should plan for this and have money set aside should they need to pay out. But come on, enough won’t that it will surely be a problem.

          Reply
      3. NylaW

        100% agree. This should be an additional method of providing employees a benefit and flexibility for companies who are already providing something and in theory doing right by their employees. I could see something like this working very well where I work and it’s been asked for, but we’re not allowed, obviously. For exempt people, your PTO doesn’t change and your general flexibility probably doesn’t change. But now some hourly people get the benefit too.

        Reply
      4. LizB

        I like this, especially the second bullet point. I’d also love to see mandatory sick time for all workers like MegaMoose and others suggested. If only the AAM comment section ran the country. :)

        Reply
    5. Anon for this

      To address the flexibility part, pass a law (like the Schedules that Work Act) that gives everyone the right to request scheduling accommodations without fear of retaliation, and that guarantees that workers who are going to school, have caregiving needs, or have chronic medical conditions the right to *receive* scheduling accommodations, as long as it’s not an undue burden on the employer.
      Anecdotal example: at one event I went to, there was a McDonald’s employee who asked to have a certain evening off so that she could go to class, and her boss said, “You can either go to school or work. You can’t do both.” That contradicts the supposedly shared American value of pulling yourself up by your bootstraps — this woman was trying to get an education soas to improve her career prospects, but her work was preventing her from doing that. So we need something to make sure people like her, who are working hard to better themselves, can get accommodations at work.

      Reply
    6. Retail HR Guy

      I think it’s company culture driving most of the inflexibility, as seen by exempt employees who also need their butts in their seats from 8-5 M-F. There are plenty of ways for managers to work with employees now who need flexibility that are not being utilized, and the blame ends up unfairly on the FLSA. I generally stand by non-exempt, employees working over 40 hours per week needing to be paid overtime, even if they want to voluntarily waive it somehow (because “voluntary” in such a power dynamic isn’t so clear cut).

      However, I am for allowing employees to voluntarily work overtime at regular wage (i.e. not 1.5x) only to make up unpaid time off already taken which had been requested by the employee at the time. So, did you have to stay home due to babysitter issues one day last week? That’s cool, you can pick up a shift and get 48 hours the next week to make up for it. It seems less prone to abuse because it is entirely optional by both parties.

      Reply
    7. LBK

      One of the phrases a lot of people are using in dissenting is “interest-free loan,” so…what if there was a form of interest? I’m struggling to work through the specifics in a way that employers would ever agree to, but something like the forced year-end payout being at 2x your normal rate instead of 1.5x. That would discourage employers from delaying comp time requests for too long without micromanaging business’ schedules.

      Of course, if someone doesn’t need the OT pay or the extra PTO throughout the year, they could just bank up all their comp time and get a nice little x.5 bonus on it, so there’d have to be some provision for that.

      Reply
      1. Manders

        Now that I think about it, the end of the year payout could also cause some companies to do away with their current holiday bonuses, on the expectation that the payout would be the bonus (or because short-sighted business owners wouldn’t put enough money aside during the year and could get stuck with no cash leftover for bonuses).

        In theory, I’d love to have comp time as an option. But in practice, I can see this changing aspects of work culture in unpleasant ways if it’s enacted en mass across the country.

        Reply
        1. LBK

          Well, remember that this is money the business is currently spending anyway because they don’t have an option; if they decide to slash their OT budget on the assumption that everyone will take it as comp time going forward, that’s kind of their own fault.

          Reply
          1. Manders

            Oh yeah, I absolutely agree with you that it’s their own fault if they don’t budget wisely. But I can see a whole lot of short-sighted business owners painting themselves into a corner where they’re scrambling to come up with enough cash for the lump payouts, or they save enough for the payouts but not enough for bonuses.

            Reply
    8. KHB

      I don’t know if this would work, but I’d like to see some kind of quantitative rules for when an employer can deny an employee’s request to use accrued comp time (or accrued vacation time, while we’re at it). Something like: You can have up to 10 blackout days per year when nobody can take time off (except for illness and emergencies), you can require up to 80% of your regular staff to be present on any given day, and you can require up to X days notice for a Y-day-long absence, but apart from that, all requests for accrued time off must be approved. Obviously the numbers would have to be adapted for businesses where not everyone works the same hours, but I’m sure that someone smarter than me can figure out how to do that.

      Reply
      1. KellyK

        I think businesses are too varied for any single formula to work. There are industries like tax preparation that have blackout periods of a month or two. Meanwhile, at my job, any blackout period would have to be project-specific and job-specific, because we can have major deadlines at any point in the year, and job responsibilities determine when an individual’s “busy period” is for that deadline. How many people you need to function is also wildly variable. Schools and medical facilities have minimum staffing required by law, which is per patient or student, rather than as a percentage of employees.

        Unfortunately, I think it makes more sense to apply a reasonable person standard than set numbers.

        Reply
    9. LQ

      I’d be interested in another post at some point. But I think part of this is that you have two opposite problems. One is employers who really are trying to do their best and not take advantage of their employees, who want a workforce that is going to work well for them (good employers) vs employers who consider employees disposable or who have zero interest in a strong workforce because they can’t see that being for their advantage (bad employers). You spend all your time legislating the bad employers to keep them from locking employees into a room on fire, and sometimes you’re going to catch up the good employers in that. But I feel like those will always be at odds and if people are talking about opposite things (protecting employees from bad employers or helping good employers have more leeway that would be valuable to their employees) I think it might create conflict in the conversation where it lacks nuance.

      I hope that made sense.

      Reply
      1. Ask a Manager Post author

        I think that’s exactly it. Which is one reason I like KellyK’s idea that companies can only offer this if they already provide a certain amount of paid time off and can’t use comp time to reduce paid time off or count them toward the same cap.

        Reply
      2. Anon for this

        This could be an argument for having different laws in place for different groups of employees (well, much like exempt vs. non-exempt). You could pass laws that only apply to workers making less than $x per hour/year, or only apply to workers in low-road industries (those where, as you say, employers tend to consider employees disposable).

        Reply
    10. LabTech

      I feel like, as a whole, our society is working much more for much less. This bill is recognizing the fact that many people have to work over 40 hours a week, which simultaneously institutionalizes that work load. I guess the problem isn’t that employees need more flexible ways to not get paid overtime, but that employers need to be less stingy with paying overtime. More generally, employers need to just pay more, period. That’s at the root of the problem – our society works too much for too little, and this legislation isn’t working towards fixing that.

      I myself am currently at work, and will be until around ~10:30 pm (waiting for an instrument to finish its run – so not procrastinating by writing this). Yet I only get paid for 37.5 hours per week, and will be disciplined if I go over that amount. This discrepancy is the problem in a nutshell.

      The flexibility should be on the employers end with respect to pay. Overtime shouldn’t be a dirty word, and employers need to stop bending over backwards to not pay it while putting employees in roles with a workload exceeding 40 hrs/week.

      With all that said… I can’t think of a legislative mechanism that encourage or enforce employers pay overtime more fairly. If we were to, say, require employers pay out a certain amount of overtime, that would just force some people to work more who haven’t had to before. If we required employers to hire one full-time employee (or part-time employees equivalent to full-time) per 40 hours of work cumulatively worked by a company, the numbers would just be stretched and fudged to the benefit of the less scrupulous employers who would be the very ones who necessitated such a law.

      All of that’s my long-winded way of saying, I don’t know, because the law seems to be addressing the wrong problem.

      Reply
    11. AcademiaNut

      I see two potential big weaknesses. One is employers pressuring people to take comp time instead of overtime (this would be easy – only offer extra hours to those who have ‘voluntarily’ agreed to take comp time). The second using this instead of PTO, with the expectation that employees will work overtime in order to bank sick leave and vacation.

      One option would be to allow this flexibility, but only over one or two pay periods, and to have a cap on the number of hours per week or per day that can be accrued (like Germany’s policy mentioned elsewhere). That mimics some of the flexibility of an exempt employee without creating large banks of time that you’ve worked, but haven’t yet been compensated for.

      And yeah, I agree that basic protections and benefits for lower level employees would probably do more good – mandatory minimums for PTO, and better enforced (and higher salary) limits for declaring someone exempt. Paying someone $24,000 a year for unlimited hours with no overtime and no paid time off is not something that should be allowed to happen. Also greater protections for employees working for small businesses.

      Reply
  26. Jeanne

    This is just one step to taking away all rights of workers. I heard a statement (don’t remember if Trump or a Congressman or Cabinet member) that WPA workers just took the job, any job, and didn’t ask what it paid. The whole statement implied we are terrible for demanding things like minimum wage or a living wage. I think if overtime pay goes then it”s just the first step to no minimum wage.

    So you get comp time instead. Then you try to take your comp time and your boss says you can’t because there’s too much work to do. How are you going to get what you are owed? OT is paid pretty much right away.

    Reply
  27. RoseTyler

    I wonder about the tax implications of this. Millions of workers taking millions of hours of standard-pay comp time in lieu of receiving a paycheck at 1.5x hourly rate with standard taxes applied.

    Reply
    1. Manders

      That’s actually a great point. I have no idea what the tax implications of this might be.

      I’m also curious about how this would work in fields like tax prep and tech where it’s normal to have crunch periods that run for months–would you then essentially have a bunch of part-time employees getting paid and taxed like full-timers for the rest of the year?

      Reply
    2. Natalie

      Unless I’m misunderstanding what you’re suggesting, this shouldn’t have any tax effects for a worker. Taxes paid is a function of total wages earned in the year, whether you receive them parcelled out as OT every two weeks, or in a lump sum at the end of the year. The lump sum check might have withholding at a higher rate (because of how withholding is calculated) but any overage would be refunded when the employee does their taxes.

      Reply
      1. RoseTyler

        No, I meant tax implications for local, state, and federal governments, which are working off already crunched budgets (and also meant regular taxes taken out of paychecks, not end-of-year filings).

        Reply
        1. Natalie

          Ah, sure.

          I think it’s hard to tell what the effect would actually be, because we have no way of knowing how people would actually behave under the law – how many people are actually going to sign up for comp time in lieu, how many switch back to wages when they’ve amassed a reasonable amount of comp time, how many industries truly have the flexibility to cut hours significantly for part of the year to keep wages even.

          (I’m not sure what distinction you’re drawing between taxes deducted from checks and end-of-year filings – those are largely the same thing for the average US worker.)

          Reply
      2. Manders

        I think RoseTyler is suggesting that incomes would go down for some people; instead of getting thousands of dollars extra because of overtime, they now have the option of switching to comp time and having more time off but a lower income on paper. It would be nice to have that option, but if millions of people switched over all at once, it could have a big impact on state and federal programs that are funded by income taxes.

        Reply
        1. LBK

          But that comp time gets converted into income at some point no matter what: either the employee uses it and it’s cashed out into their paycheck for that pay period, or they don’t use it and the company auto-cashes it out at the end of the year.

          Reply
          1. Natalie

            If I’m understanding correctly, the thesis is that some employers will significantly reduce hours worked during slack seasons, so the employees’ annual total income will decrease.

            That said, I note that plenty of employers significantly cut hours during slack time already, so I’m having a hard time imaging this having a noticeable impact on taxes paid and thus budgets.

            Reply
    3. LBK

      The comp time is accrued at 1.5x the rate of hours worked, so the multiplier is still in effect, and you get taxed on it when you cash the comp time in to take off of work. If you normally get paid $1000 to work 40 hours and you replace that with 32 hours of work + 8 hours of comp time, your income for that week is still $1000 and you get taxed accordingly – withholding still applies to wages paid for PTO as opposed to hours worked.

      Reply
      1. LaterKate

        Yeah, but the difference is that if you would have normally worked 10 hours of overtime and gotten paid for that, and still worked a full 40 next week, that would amass more taxes than if you did 45 one week (but paid for 40) and 32.5 plus 7.5 hrs comp time next week, because the first example is 80 hrs plus 10 hrs paid at 1.5x, and the second example is 80 hrs of taxable income only.

        I think if you cashed out your comp time the tax implications would be the same as if you were paid OT, but if you use it for time off you’re paying in less taxes, which means less tax revenue.

        Reply
        1. LBK

          Ah, you’re right, sorry. The math gets messed up because the multiplier is on the hours accrued rather than on the wage paid when the hours are cashed in. So the employee actually loses money because OT pays out on top of your salary, whereas when you use the comp time it will only take you up to the level of your salary. Even though you get more of it than you worked, you can still only use it to replace straight hours.

          Reply
  28. Stop That Goat

    I’m not a fan. It seems to me like an interest free loan of my compensation while management controls when I eventually get that compensation. No thanks.

    Reply
    1. Allypopx

      I get why it might feel that way but I think that overlooks some of the basic protections being written in (ability to demand to be allowed to use your comp time, end of year payout, etc)

      Reply
        1. Blue Anne

          So don’t opt in. This is purely giving employees more options. Your employer isn’t allowed to force you to take the time rather than the money.

          Reply
          1. Stop That Goat

            Sure…provided that there isn’t some sort of retaliation. You know some businesses can slide this right into hiring paperwork. I know that it says it’s not allowed but businesses do plenty of things that aren’t allowed. It doesn’t matter if it has no teeth to enforce the rules.

            Reply
  29. voyager1

    Not feeling this. Sounds like instead of giving. me money, my employer will be giving me a gift card and then then telling me when I can redeem it. No thanks. I work for money, if you don’t want me working overtime hire more people to do the work.

    Reply
    1. Natalie

      I mean, under the law as drafted it’s opt-in, so if you prefer the money just don’t sign up for the comp time scheme.

      Reply
    2. Blue Anne

      Well, but you can tell them you just want the money, and even if you say “Hey the gift card would be nice”, they have to pay you for it if you haven’t used it by the end of the year, so…

      Reply
  30. Student

    The real questions we should be asking are:

    (1) How much money does the bill appropriate for enforcement?
    (2) What are the penalties for non-compliance?

    If there’s no money for enforcement, and the penalty for non-compliance is lower than time-and-a-half for everybody who gets stiffed, then companies are just going to break the rule and pay the fine out while making folks work longer. Keep in mind that they’ve been steadily raising the bar on requirements for class-action lawsuits over the last several years – that’s the kind of lawsuit that many low-wage workers looking for a small but non-zero payout after being stiffed on overtime might file.

    Reply
    1. Student

      Should add, if the penalty is the same as the cost of time-and-a-half or not much higher, then companies are going to bet that their workers won’t always complain and stiff them and likely come out ahead on labor costs.

      Reply
    2. MegaMoose, Esq

      I do not believe it includes any funding for enforcement. There are penalties for non-compliance, but it sounds like at least some can only be enforced via civil lawsuit, not administrative action.

      Reply
      1. paul

        Isn’t that the case with a lot of employee protections? Honestly that’s probably the biggest problem for workers in the US, or at least it’s up there. The onus is on you as an employee to police your employer and report to a labor board or sue in court (depending on the infraction).

        Reply
  31. Anne of Green Tables

    So basically the bill allows comp time where previously there was not and changes the rules about when an employee can get paid for overtime so that a company does not have to pay it during the current/next pay cycle. How is this good for most employees?

    Good employers already let employees take the time they need off. Sometimes employees would rather work different hours so as not to take their vacation or PTO time, but your employer (at least in California following specific rules) can already create a company-wide policy of pre-approved make-up time to provide this flexibility. No federal bill needed.

    This bill seems like it would end up hurting more people than helping and really is more for the employers’ benefit than anything else. Let’s be honest: when an employer wants an employee to work overtime, that usually happens or that employee knows they will be viewed as “not a team player” and likely on the cut list. So the employee works and gets paid…sometime. Not great.

    So companies have a motivation to require more hours from employees. They can pay up at their convenience and they do not have to hire more people because it is now easier to work the ones they have harder. Good employers wouldn’t flog their employees, but history and the comments sections here shows that not all employers are stellar. This bill seems like fewer people working more hours for more employer benefit. An employee has no guarantee of getting time off when it is actually wanted either. The employee may end up giving their premium time for not-as-valuable time with no choice in the matter.

    And as at least one commenter noted, the “need” for some of the overtime often disappears when overtime pay is involved. Oftentimes the work suddenly is able to fit into regular working hours. If the immediacy of that payout is removed, then what is the motivation to plan? I do not want to be a bank for my employer to borrow time or money from.

    Reply
  32. Becky

    There are pros and cons to this bill as it stands, and depending on the employer/manager it could be beneficial or harmful to workers (all as discussed above).

    But all that is assuming that the bill remains as is with no changes through committee and both the house and the senate. How likely is it that the current wording will be unchanged?

    Reply
    1. Natalie

      This is a really good point. Pretty small changes to this would shift it from an adequate bill to a terrible one (from the employee standpoint).

      Reply
  33. Anon4This

    I may be an outlier, but employees taking comp time would actually hurt my business model, I think. I work in professional services, and my employees are all revenue-generating billers. If they take time off, they’re not billing. Their pay rate is less than their bill rate, so we typically make more money paying them to work OT than giving the time off. (This, of course, assumes that we are paid for a substantial portion of the time worked at bill rate, which is not always the case, but I make more money with people working than taking comp time.)

    We have a comp time policy in place, the problem is that it is hard for people to take that time off and also meet all deadlines. I actually mentioned this to HR last week because it’s causing a lack of parity with certain people who can/cannot make use of the comp time offered. We are staffed to the high-middle of the peaks and valleys of our unpredictable work cycles, so there are times when we do need people here and working longer hours to meet immovable deadlines. In some areas, there is not a time that taking comp time, on top of the fairly generous PTO package, which is budgeted into staffing, would not be burdensome.

    Reply
  34. Sarah

    I oppose this law.

    I’ve been a government employee who used credit hours (another type of comp time) and routinely flexed my schedule within a pay period. I loved it. But I set my own schedule to work for me, and no-one applied pressure.

    My brother works in the trades in an industry that has periods of 60 hour weeks and periods of less work. As he is a full time employee they guarantee him 40 hours of work a week, and he makes overtime for any extra. If this law passed I guarantee they would make him take time off in the slower periods, and it would amount to a pay cut that could be as much as 1/3 of his yearly income.

    Reply
  35. uh

    I think I am the only one to say I loathe comp time. NOT all time is created equal to me – working on holidays is NOWHERE NEAR equal to giving me some random Tuesday off because it is agreeable to the department.

    Reply
  36. FiveWheels

    The concern seems to be that a change in law would result in employees being forced to take comp time instead of overtime… But as it stands, they’re forced to take overtime instead of comp. So it seems to me that all it does is introduce more choice.

    Can someone clarify – is comp time paid or unpaid leave? If paid, then presumably you still get the same pay so long as you use the comp time in the same pay period.

    Reply
    1. MegaMoose, Esq

      I think the main concern is that, unlike OT which operates on a fairly straight-forward, currently understood model, comp time introduces a number of new grey areas (many discussed above) where vulnerable employees could be taken advantage of. Under the OT system an employer must pay out OT immediately and automatically – under the comp system, the employer has a lot more control and wiggle room. I don’t personally think that comp time is inherently bad, but I don’t trust that it can be fairly implemented in the US’s current employment system. If nothing else, I think introducing a lot of complexity to the law without allocating funding for administering and overseeing those changes is deeply concerning.

      As for your question, my understanding is that comp time is paid leave at your standard rate that you accumulate at the 1.5 “OT” rate. So you work 1 hour “OT” in April, you receive 1.5 hours comp time, then next week or month or whenever (if your employer allows it), you can take 1.5 hours leave at your standard rate.

      Reply
  37. Anonymous 40

    My concern is with this part:

    Employees couldn’t accrue more than 160 hours of comp time per year, and any comp time not used by the end of the year would be paid out at the employee’s regular rate, no later than 31 days after the end of the year.

    This says pretty clearly that the end-of-year mandatory payout is at the employee’s regular rate, not their overtime rate. Say an employee “agrees” to comp time. The no coercion rule seems very hard to enforce. The employee works overtime, which is recorded as comp time. Through the remainder of the year, the employer’s “too busy” for the employee to use their comp time. At the end of the year, the comp time is paid out at the employee’s regular rate, so the employee’s lost out on all overtime benefits.

    Or picture this scenario in industries like retail that have their busiest periods at the end of the year. Employees could work a lot of extra hours between Thanksgiving and New Year’s. The employer’s clearly going to be too busy for the employee to take the comp time before the end of the year, so the employer pays it out…at the employee’s regular rate. Again, the employee loses any benefit for the overtime they worked.

    If this is correct, this sounds like a system that could potentially get employers out of paying overtime for up to 160 hours per employee per year.

    Reply
    1. Anonymous 40

      Ugh. Never mind – I just realized the hole in my logic. The comp time was accrued at 1.5x, so paying it at regular time is equal to paying for the time worked at the overtime rate.

      Reply
  38. Slippy

    I’m rather curious as to how the companies would carry the overtime owed on their books. Does it count as wages or as a benefit? If is on the books as a benefit how is it taxed?

    Reply

Leave a Comment

Before you comment: Please be kind, stay on-topic, and follow the site's commenting rules.
You can report an ad, tech, or typo issue here.

Subscribe to all comments on this post by RSS