May 03, 2017
A Washington Post article on a bill passed by the House, which would allow employers to give workers time-and-a-half credit for overtime hours, instead of time-and-a-half pay, likely misled many readers on the substance of the bill. The very first sentence told readers the bill:
“…would allow private-sector employees to exchange overtime pay for ‘compensatory time’ off.”
This is not true. The bill does not give the employee the right to say they would prefer compensatory time for working overtime, it gives this right to the employer. In principle, the worker is supposed to have the option to refuse the offer and say that they would instead prefer their overtime pay. However, the piece further misleads readers in the second paragraph:
“It [the bill] seeks to take a similar provision that has been available to government workers since 1985 and extend it to private-sector employees, making it legal for them to choose between an hour and a half of paid comp time and time-and-a-half pay when they work additional hours.”
There is a big difference between public employees and private sector employees. Public sector employees cannot be fired at will, while private sector employees can be, unless they are covered by a union contract. While this legislation, in principle, protects private sector employees from being coerced into accepting time off in lieu of overtime pay, it is difficult to see how this could be enforced.
An employer can fire anyone for almost any reason at any time. While the bill does prohibit an employer from firing someone for refusing to take comp time, an employer can legally fire someone because their last name begins with the letter “B.” This means that a worker who refuses to accept comp time can be fired over the first letter in their last name.
This could be contested in court, where the worker would argue that the actual reason was their refusal to accept comp time. Perhaps they could prove this, but the damages, even when doubled as required in the bill, would almost certainly not cover the cost of hiring a lawyer. This means that almost no one would use the legal system to protect their rights. If an employer fired one worker over this issue, the rest would quickly get the message.
If the Republicans actually wanted to make the prohibition on firing an enforceable right, the bill would require the employer to pay legal fees, if they lost a case. This requirement for civil rights cases is what makes enforcement of the civil rights laws possible.
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