Nov 1, 2013

By Michael J. Lotito

With Senate Majority Leader Harry Reid expected to bring the Fair Minimum Wage Act of 2013 (H.R. 1010; S. 460) up for consideration in the remaining legislative weeks of 2013, Republican lawmakers are countering with their own workplace proposals.

This week, On Wednesday, Sen. Mitch McConnell, R-Kentucky, was one of two Senators to introduce legislation that would allow exempt private sector employees to opt for paid time off in lieu of payment for overtime hours worked.

The Family Friendly and Workplace Flexibility Act (S. 1626) would amend the Fair Labor Standards Act to allow employers to offer comp time to employees at a rate of 1.5 hours for every hour of overtime work.

A flexible credit-hour program

The process would be voluntary and, according to a press release on the measure, would create a flexible credit-hour program, under which the employer and employee can enter into agreements that allow the employee to work excess hours beyond the typical number of hours he or she is typically required to work in order to accrue hours to be taken off at a later time.

This option is for employees who do not get the opportunity to work overtime, but still want a way to build up hours to use as paid leave.

Sen. Mike Lee, R-Utah introduced virtually identical legislation (S.1623) the same day. Both measures are companions to the bill (H.R. 1406) the House of Representatives passed in May of this year.

In  a press release, Sen. McConnell said:

The Family Friendly and Workplace Flexibility Act will help provide America’s workers with the flexible work arrangements they need. Countless Americans have become increasingly familiar over the past several years with the same reality: more and more to do, with less and less time to do it. And while Congress can’t legislate another hour in the day, we can help working Americans better balance the demands of work and family … My legislation is a commonsense measure Congress can take to help alleviate that burden for millions of families by providing greater flexibility in managing their time”

GOP support for worker-friendly legislation

Although this comp time bill is not likely to garner much Democratic support, it could be seen as a way for Republican lawmakers to show that they support worker-friendly legislation.

The rise in flash mob strikes and worker center-driven demonstrations to increase the federal minimum wage have given momentum to the Fair Minimum Wage Act, which would raise the minimum federal hourly rate from $7.25 to $10.10, in $.95 increments, over a three-year period. After three years, the bill would tie any increases in the minimum wage to cost of living adjustments.

The legislation would also increase the hourly wage rate for tipped workers from $2.13 to $3.00 during the first year, and then increase this base amount by either $.95 or an amount necessary to raise the rate to 70 percent of the minimum wage, whichever is less.

In July, the Senate Committee on Health, Education, Labor and Pensions held a hearing to debate the merits of raising the minimum wage. More recently, during a speech before the Center for American Progress, Labor Secretary Thomas Perez claimed that raising the minimum wage was “near the top” of President Obama’s economic agenda.

The battle over definition of a “full time” worker

There is some speculation that in advance of any consideration of a minimum wage increase, Republican senators would push for a vote not only on the Family Friendly and Workplace Flexibility Act, but also on the bipartisan Forty Hours is Full Time Act of 2013, (H.R. 2575, S. 1188) legislation that would increase from 30 to 40 the number of hours an employee would need to work to be considered “full time” under the Affordable Care Act .

Many in the business community – as well as several labor leaders – have criticized the current definition of a full-time employee as one who works 30 hours, claiming that it will lead many businesses to reduce part-time hours to below 30 and/or prevent part-time employees from taking additional shifts to keep employees from becoming “full time” under the ACA.

With less than two months left to this legislative term, it will be interesting to see which measures, if any, gain traction in the Senate.

This was originally published on Littler Mendelson’s D.C. Employment Law Update blog. © 2013 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.