Federal Regulation of Working Hours: An Overview Through the 105th Congress
CRS Report for Congress
Federal Regulation of Working Hours:
An Overview Through the 105 Congress
Updated May 24, 1999
Specialist in Labor Economics
Domestic Social Policy Division
Congressional Research Service The Library of Congress
Through nearly two centuries, American workers and their employers have been concerned
with the structure and regulation of workhours. Early humane concerns gave way, during the
1920s and 1930s, to economic factors: i.e., spreading available work to the jobless. Since
the 1960s, attention has focused upon alternative work patterns: an effort to balance work
with family responsibilities and other concerns. This report presents a brief introduction toth
the workhours issue and, then, traces the legislative history of this question through the 104th
and 105 Congresses. It will not be updated further.
Federal Regulation of Working Hours: An Overview
Through the 105th Congress
Through much of the 19th century and well into the 20th, reformers sought to
reduce the length of the workday and workweek to relieve workers from excessively
long hours of toil. Such extended hours of work were deemed hazardous to an
employee’s physical and moral health, depriving him (or her) of opportunity for
education, rearing of children, and participation in the democratic process. And,
during periods of economic decline, there was concern that work be shared among
those seeking it. For these reasons, it was held that hours of work should be reduced.
Through the years, local, state and federal government had attempted to regulate
hours of work. The Walsh-Healey Act (1936) provided an 8-hour day and a 40-hour
workweek in certain federal contract procurement. In 1938, the federal Fair Labor
Standards Act (FLSA) was adopted, ultimately establishing a 40-hour workweek with
overtime pay for hours worked in excess of 40 per week. Then, the quest for
workhours reduction gradually came to a halt.
By mid-century, a new generation that lacked personal experience with the
conditions that had sparked the earlier wage/hour legislation was entering the
workforce. In the 1960s, a drive commenced for alternative work scheduling. In
1978, Congress passed the Federal Employees Flexible and Compressed Work
Schedules Act, modifying the structure of workhours for employees of the federal
government. In the mid-1980s, the 8-hour provision of Walsh-Healey was repealed
and, during that same period, a compensatory (comp) time option was provided under
the FLSA for employees of state and local governments.
By the 1990s, interest was being shown in extending alternative scheduling in the
private sector. In the 104th Congress, hearings on this issue were conducted the
House and Senate. Presidential interest was expressed concerning the issue. During
mid-1996, the House passed H.R. 2391 (Ballenger), extending the public sector compth
time option to the private sector. New legislation has been introduced in the 105
Congress: H.R. 1 (Ballenger), dealing specifically with comp time and, S. 4
(Ashcroft), providing a broader restructuring of overtime and workhours regulation.
Hearings were conducted in the House and Senate during February. On March 5, the
House Committee on Education and the Workforce voted to report H.R. 1; on March
19, 1997, the bill passed the House in amended form. On March 18, the Senate
Committee on Labor and Human Resources voted to report S. 4. Debate commenced
in the Senate on May 1. Cloture votes on May 15 and June 4 failed: the legislationth
died at the close of the 105 Congress.
Some changes in overtime regulation could lead to a more family friendly
workplace, but others might lead to an unfriendly working environment and further
complicate efforts to balance work with family responsibilities. A key issue is the
extent of worker choice with respect to flexible work hours decisions and with respect
to the use of compensatory or flexible hours once they have been earned.
The Shaping of Federal Policy......................................3
Alternative Work Scheduling: The 1970s and Beyond....................6
Riva Poor and Walsh-Healey...................................6
Alternative Work Patterns for Federal Employees...................8
Yet Another Look at Walsh-Healey..............................9
Comp Time for State and Local Government Employees.............13
Congress Provides a Compromise..........................14
Concerns and Reservations................................15
Expanding Compressed Scheduling and Comp Time to the Private Sector: an
The Wallop Proposal Introduced...........................18
Concerns and Implications................................18
Overtime Pay and Comp Time Concerns in the 104th Congress.............20
The Ashcroft Proposal.......................................21
The 40-Hour Workweek.................................23
A New Workplace Flexibility?.............................23
Compliance and Administration............................25
The Ballenger Proposal......................................27
The Clinton Proposal........................................29
President Clinton Enters the Fray...........................29
What President Clinton Proposed...........................33
Some Additional Aspects.................................37
Overtime Pay and Comp Time Concerns in the 105th Congress.............37
The New Ballenger Bill......................................38
H.R. 1 as Reported......................................39
Floor Debate and House Passage...........................42
The New Ashcroft Bill.......................................45
Provisions of the Ashcroft Bill.............................45
Committee Action on S. 4................................49
Floor Action in the Senate................................51th
Related Initiatives of the 105 Congress......................58
Conclusion ................................................... 59
Federal Regulation of Working Hours:
An Overview Through the 105 Congress
Speaking generally, the Fair Labor Standards Act (FLSA) of 1938, as amended
through the years, requires that a worker receive not less than one-and-one-half times
his/her regular rate of pay (time-and-a-half) for hours worked in excess of 40 per
week. Within a 40-hour workweek, there is complete flexibility. Any configuration
of hours is permitted within the 40-hour weekly pattern (e.g., 5 days of 8 hours, 4
days of 10 hours, 2 days of 20 hours) so long as the total hours worked do not exceed
40 in a single week. By the early 1990s, just over 76 million nonsupervisory
employees were covered by the overtime pay provisions of the Act.1
Workhours legislation received committee and floor consideration during thethth
104 and 105 Congresses. For the most current information about pending
legislation, please consult the Legislative Information System (LIS) at
During the 104th Congress, interest developed in altering the role of the federal
government in the regulation of hours of work. This resurgence of interest in the
structure of work hours may have a number of origins. Some are concerned with
deregulation of labor standards, i.e., to allow the operation of the free market with
minimal interference from government. This is sometimes expressed in terms of a
generalized desire to let managers manage. There has also been a desire, most
vigorously expressed during the 1960s and 1970s, for creation of a “family friendly”
working environment with various forms of alternative or flexible scheduling and
work arrangements. Proposals for change in labor standards, however, usually come
under close scrutiny by labor interests and others who are concerned with possibly
diluting hard-won protections for workers.
In its 1990s context, change in work hours regulation is most frequently urged
on behalf of enhanced opportunity for workers: flexibility in balancing family and
workplace requirements — childcare, eldercare, education, etc. Others, however,
have suggested narrower modification of overtime pay constraints: for example, to
allow workers wider options to volunteer for uncompensated work, to serve in
uniquely structured positions such as houseparents in residential childcare facilities,
1U.S. Department of Labor. Employment Standards Administration. Minimum Wage
and Maximum Hours Standards under the Fair Labor Standards Act (Section 4(d)(1)
Report). Washington, 1993. p. 25. For the Fair Labor Standards Act, see 29 U.S.C. 201
to combine different types of work for a single employer (teaching and non-teaching
work for a community college) when the total hours worked exceed 40, and for other
It may not be entirely clear, however, how the putative beneficiaries of such
changes in work scheduling regard the various proposals. For some firms, flexible
scheduling may work well, increasing efficiency and satisfying employees. For others,
it may inhibit productivity, frustrate effective management, and result in burdensome
recordkeeping. Some workers may find a new freedom in flexible and compressed
workhours; but others, especially those with family responsibilities, may find it
difficult to mesh workplace flexibility with inflexible non-work-related schedules —
for example, meeting the closing deadline at a childcare center. Alternative
scheduling may result in a family friendly workplace; but, that may not necessarily be
The campaign for a shorter workday and workweek has been, both in purpose
and constituency, different from that for flexible and compressed scheduling.2
Reducing workhours has generally been a goal of workers, of many social reformers,
and, institutionally, of organized labor. Where there has been public regulation of the
length of the workday or workweek, it has generally included an overtime pay
provision. The original purpose of such a penalty was not to enrich workers (though
workers have come to view it as income enhancement) but, rather, to discourage
employers from scheduling hours deemed by policymakers to be excessive and,
conversely, to encourage the spreading of work as a means for increasing
The movement for flexible and compressed work hours, speaking generally, does
not address the number of hours worked but, rather, attempts to reconfigure
worktime in a manner that is more convenient for workers who may have
outside/non-work-related responsibilities. Or, some workers may prefer alternative
working hours in order to have larger blocks of leisure time (a 3-day weekend, for
example). Although some trade unions (notably in the public sector) and some
employers have endorsed the concept of alternative work patterns, the initiative in
this area seems generally to have come from organizations concerned with the needs
of working women. There has also been support from workers with special needs:
students, the handicapped, long-distance commuters, and the like. Ordinarily, the
2Under the concept of compressed scheduling, total daily hours of work are rearranged
to allow for longer workdays compressed into fewer days of work per 40 hour workweek.
Thus, a worker might have a 4-day weekly schedule of work with 3 days off duty while still
not exceeding a 40-hour workweek. This is allowed under current law. In the federal sector,
such compression can extend through an 80-hour biweekly period: e.g., 60 hours of work in
one week and 20 hours of work the second.
3For a discussion of the motivating philosophy of the shorter workhours movement, see:
The Shorter Work Week: Papers Delivered at the Conference on Shorter Hours of Work
Sponsored by the American Federation of Labor and Congress of Industrial Organizations.
Washington, Public Affairs Press, 1957. 96 p. A slightly different perspective is presented
in Sar A. Levitan and Richard S. Belous, Shorter Hours, Shorter Weeks: Spreading the Work
to Reduce Unemployment. Baltimore, The Johns Hopkins University Press, 1977. 94 p.
decision to institute an alternative scheduling arrangement rests with the employer.
While these systems may produce a more family friendly work environment, they may
also satisfy a business/production need of the employer.
As one reviews the evolution of workhours regulation through the 20th century,
it may be useful to keep a number of questions in mind. If long hours of work are
considered harmful when they result from business necessity, should they be
considered any less harmful when urged by workers as compressed scheduling?
Should work hours be flexible or compressible only when it is convenient for workers
or in the interest of workers? Conversely, should employers have a parallel option of
flexibility: to change daily and weekly hours of work when it meets their production
needs? And, should either party have a protected right to abstain from flexibility?
Here, the evolution of the reduced worktime and flexible hours movements is
sketched: the motivation of workers, the development of public policy, and pressures
through the past several decades for modification of that policy. Finally, there is a
brief review of certain overtime-related legislation that was considered by the 104th
and 105th Congresses.
The Shaping of Federal Policy
The length of the workday and workweek has been a matter of contention atth
least since the early 19 century. Federal policy with respect to hours of work and
overtime pay requirements falls into a series of general periods — but with
considerable overlap from one to another.
First. During the 19th and early 20th centuries, various worker/trade
union/reform groups campaigned first for the 10-hour workday and then for an 8-hour
workday.4 These demands were voiced largely (though by no means exclusively) in
humane terms: to provide an opportunity for the worker to develop physically,
intellectually and spiritually; to share in the good things his talents and energies had
produced; to nurture and to educate his children; to participate in the democratic
process; and to shoulder, responsibly, the obligations of citizenship in a free society.
Long hours of work in factory, mine and field were regarded as often physically,
mentally and psychologically debilitating, leaving workers broken in health and spirit
— and, by extension, similarly affecting succeeding generations.5
4“American labor, organized and unorganized,” wrote Marion C. Cahill in his study,
Shorter Hours: A Study of the Movement Since the Civil War (New York, Columbia
University Press, 1932, p. 137), “has had two primary objectives: higher wages and shorter
hours. While to the individual laborer the order of importance is that given, the leaders of the
labor movement have stressed hours.” He explains: “The individual laborer has been
influenced by a very natural but short-run point of view. The emphasis of labor leaders on
hours has been the result of their ability to view the question more broadly...”
5Organized labor’s approach to work hours reduction is set forth in McNeill, George
E. The Eight Hour Primer: The Fact, Theory and the Argument. Washington, American
Federation of Labor, 1899); and in Gompers, Samuel. The Eight-Hour Workday: Its
Second. Following World War I and, increasingly, during the Great Depression,
the impetus for hours reduction seems to have shifted. While social and humane
considerations continued to be motivating elements for trade unionists and reformers,
economic considerations took on greater weight. High levels of Depression-era
unemployment made some measure of work sharing, achieved through restraints upon
the hours of work (e.g., overtime pay requirements), seem more desirable to many.6
During the early 1930s, Congress had under active consideration legislation to
establish by statute a 30-hour workweek, an initiative associated with Senator Hugo
Black.7 In 1933, the 30-hour bill was set aside and the New Deal’s National Industrial
Recovery Act (NIRA) was passed instead. Under the NIRA, codes of fair
competition (with fair labor standards) were adopted for individual industries. These
normally included restraints upon the number of hours to be worked each day or
week. In 1935, the NIRA was declared unconstitutional and replaced, in the labor
standards area, by two new laws: the Walsh-Healey Public Contracts Act (1936) and
the Fair Labor Standards Act (FLSA, 1938). Walsh-Healey, dealing with the contract
purchase of goods by the federal government, set an 8-hour day and a 40-hour
workweek for such contract work.8 In the FLSA, Congress dropped the concept of
daily hours restraints and opted, instead, for what would become a 40-hour standard
workweek with overtime pay for hours worked by covered workers in excess of 409
Inauguration, Enforcement and Influences. 9 p. Washington, American Federation of Labor,
undated, published in pamphlet form at the turn-of-the-century. See also: Kelly, Matthew A.
Early Federal Regulation of Hours of Labor in the United States. Industrial and Labor
Relations Review, April 1950. P. 362-374; and Fine, Sidney. The Eight-Hour Day Movement
in the United States, 1888-1891. The Mississippi Valley Historical Review, December 1953.
6See Brandeis, Elizabeth and Irma Hockstein. An Eight Hour Law in Every State. The
Painter and Decorator, March 1931. pp. 8-13.
7In reporting the 30-hour bill early in 1933, the House Committee on Labor affirmed:
“...either we must provide, through some governmental agency, for the maintenance of several
millions of American industrial workers who are unable and will continue to be unable to
secure profitable employment or we must by legislation so restrict the hours of labor that all
American industrial workers will be provided with opportunities of employment.” See U.S.
Congress. House. Committee on Labor. Prevent Interstate Commerce in Industrial
Activities in Which Persons Are Employed More than Five Days per Week or Six Hours perndnd
Day. Report to Accompany H.R. 14518. House Report No. 72-1999, 72 Cong., 2 Sess.
Washington, U.S. Govt. Print Off., 1933. p. 1.
8In P.L. 99-145 (1985), the 8-hour provision of Walsh-Healey was deleted, leaving only
the 40-hour weekly standard.
9Elizabeth Brandeis summarizes the New Deal experience in her essay, Organized
Labor and Protective Labor Legislation, in Derber, Milton and Edwin Young (eds.). Labor
and the New Deal (Madison, The University of Wisconsin Press, 1961). pp. 193-237. Two
more recent studies review the evolution of work hours to the end of the New Deal. See:
Hunnicutt, Benjamin Kline. Work Without End: Abandoning Shorter Hours for the Right
to Work. Philadelphia, Temple University Press, 1988. 404 p., and Roediger, David R. and
Third. The 40-hour workweek seems to have become the standard in the wake
of World War II. Periodically, organized labor has suggested that “working hours
should be reduced gradually, with no reduction in take-home pay, as technological
change accelerates and productivity rises.”10 In the late 1970s, Representative John
Conyers proposed legislation to reduce the workweek and to provide double-time for
hours worked in excess of a new statutory limit (ultimately, ca. 32 hours). Although
hearings were conducted in 1979 on the Conyers proposals, no new hours legislation
was adopted.11 Since then, despite some academic interest in the issue, legislation to
reduce the statutory workweek has largely disappeared from the public policy
The thrust of the overtime pay provisions of the various federal statutes had not
been to enrich workers. Rather, the imposition of overtime rates (time-and-a-half)
was viewed as a penalty imposed upon employers who engaged workers through
what was viewed by many as excessively long hours with a deleterious impact for
worker health and well-being. But, as a parallel consideration (and strongly so during
periods of economic downturn), there was concern, both by workers and by the public
policy community, to reduce hours to spread employment.
By the late 1960s, a new consideration had developed. Even where work hours
may not have been excessively long, a desire developed for shorter hours for more
personal reasons: to cope with family responsibilities, to pursue education or,
perhaps, just to permit enjoyment of a more fulfilling lifestyle. For employers, there
was concern with rationalization of the work process.
Philip S. Foner Our Own Time: A History of American Labor and the Working Day.
Westport, Conn., Greenwood Press, 1989. 380 p.
10Fink, Gary (ed.). AFL-CIO Executive Council Statements and Reports, 1956-1975.
Westport, Conn., Greenwood Press, 1977, v. 2. P. 768. See also pp. 986-988. On the
productivity impact of workhours, see: U.S. Department of Labor, Bureau of Labor Statistics.
Hours of Work and Output. Bulletin No. 917. Washington, May 21, 1947. 160 p.
11The Conyers proposals were introduced in various forms through several years. See
McGaughey, Jr., William. A Shorter Workweek in the 1980s. White Bear Lake, Minn.:
Thistlerose Publications, 1981. 308 p. The economic issues raised by the Conyers proposals
are discussed in Ehrenberg, Ronald G. and Paul L. Schumann. Longer Hours or More Jobs?
An Investigation of Amending Hours Legislation To Create Employment. Ithaca, New York
State School of Industrial and Labor Relations, 1982. 177 p.
12More recently, concern with respect to hours of work and related employment issues
has been voiced in Schor, Juliet B. The Overworked American: The Unexpected Decline of
Leisure. New York, Basic Books, 1991. 247 p.; and Rifkin, Jeremy. The End of Work: The
Decline of the Global Labor Force and the Dawn of the Post-Market Era. New York: G.
P. Putnam’s Sons, 1995. 350 p.
Alternative Work Scheduling: The 1970s and Beyond
At least by the late 1960s, a campaign had begun for an alternative approach to
the world of work. Some writers have suggested that the student activism of the
measure, spread to the workplace. Women were entering the workplace in growing
numbers, while at the same time maintaining their role as the primary caregiver at
home. Most of these new entrants to the workforce had not experienced the struggles
of the pre-World War II decades for basic labor standards; therefore, they may have
been more willing to trade them for other options that they perceived as beneficial.
And, there persisted within the business community a certain anti-regulatory
disposition which inspired a move for repeal of certain New Deal enactments.
Riva Poor and Walsh-Healey
In 1970, Riva Poor, a Cambridge, MA, management consultant, published a
collection of essays, 4 Days, 40 Hours,14 and initiated a public relations campaign that
called for a restructuring of work schedules: notably, creation of a compressed
workweek. Poor suggested the potential virtues of an altered pattern of worktime:
longer weekends, happier workers and, for industry, a more efficient ordering of
A “groundswell” of support for the concept developed, touting the benefits of
new ways to work. Some, however, questioned the depth of that support, how
informed it was, and what had motivated it. At whose initiative, they asked, would
compressed scheduling be instituted? Would workers who found the arrangement
inconvenient have an effective option for dissent without damage to their careers?
Was the system suitable for all (or most) workplaces? What impact would longer
daily hours of work have for persons with childcare responsibilities? For students?
For the handicapped? What were the implications for households in which both
husband and wife worked outside the home? Would workers really want to work
longer daily hours without overtime pay in exchange for longer periods of time away
from work? And, would the longer workdays exact a toll? Would workers embrace
compressed scheduling week after week, through summer and winter alike? The
answers to such questions were not immediately apparent.
Two separate but interrelated efforts in behalf of the compressed workweek
(each anchored in the work of Riva Poor) commenced during the summer of 1971.
First, legislation was introduced in the Congress to amend the Walsh-Healey Act (and
13For example, see: Sheppard, Harold L. and Neal Q. Herrick. Where Have All the
Robots Gone? Worker Dissatisfaction in the ‘70s. New York, The Free Press, 1972. 222
p. A frequently cited example from the period was the case of the Vega plant at Lordstown,
Ohio, where worker discontent led to a disruption of work processes.
14Poor, Riva. 4 Days, 40 Hours: Reporting a Revolution in Work and Leisure.
Cambridge, Bursk and Poor Publishing, 1970. 175 p.
related statutes) in order to permit experimentation with compressed scheduling.15
While the several bills died at the close of the 92nd Congress, similar legislation would
be reintroduced as the decade progressed. Second, a series of hearings, conducted
by the Department of Labor (DOL), reviewed the wisdom of setting aside the 8-hour
provisions of the Walsh-Healey Act. In time, the two efforts overlapped.
On September 7, 1971, DOL (under Secretary James Hodgson of the Nixon
Administration) opened 3 days of hearings devoted, essentially, to issues raised in the
then-pending legislation. In an opening statement, a DOL spokesperson noted that
the primary reason for the hearing was “the problem facing Government contractors
who want to adopt a four-day, 40-hour work week and still avoid the payment of
overtime after eight hours.”16 Ms. Poor, a witness, suggested that compressed
scheduling might improve productivity and noted that “... it strikes me that the main
issue is, does the government want to encourage innovation or not at this very critical17
time in the development of our economy.”
Industry, long critical of restrictive labor standards legislation, tended to support
the compressed workweek initiative — though its views were mixed. Organized labor,
voicing its traditional opposition to relaxing labor standards, argued that “more than
eight hours of work per day is harmful to the moral, social and intellectual
development of the worker.” Observing that the compressed workweek was being
advanced by non-worker elements as a pro-worker option, a trade union
spokesperson stated: “Long ago, we ... learned to be suspicious of management’s
sudden interest in the well-being of the workers.”18 The only labor witness not taking
this perspective was a local officer of the American Federation of Government
Employees, a public employee union representing, in this instance, federal19
With the hearings complete, the Secretary took no further action. By 1973,
DOL interest in amendment of the Walsh-Healey Act seemed, at least for the time, to
15Through the years, various federal statutes had dealt with overtime pay and safety
standards. In 1969, several of these statutes were merged into the Contract Work Hours and
Safety Standards Act (CWHSSA). Efforts to amend the overtime pay provisions of Walsh-
Healey have normally been accompanied by an attempt to modify, similarly, the CWHSSA.
16U.S. Department of Labor, Employment Standards Administration, Wage and Hour
Division. In the Matter of: Proposed Adoption of a Four-Day, Forty-Hour Workweek,
Without Payment of Time and One-Half Overtime Compensation for Work Days Exceeding
Eight Hours, Official Transcript of Proceedings. Hearings. September 7, 8, and 9, 1971.
pp. 5-6. (Hereafter cited as DOL/WH Hearings.)
17DOL/WH Hearings, pp. 16-18.
18DOL/WH Hearings, pp. 106-109.
19DOL/WH Hearings, pp. 269-272.
Alternative Work Patterns for Federal Employees
In the 93rd Congress (1973-1974), concern with hours of work shifted away from
work hours reduction to more flexible approaches to work: alternative work patterns
or new ways to work — i.e., compressed workweek, flexible hours, “flexiplace”
employment and/or telecommuting, job sharing, etc. The initial thrust of the
movement for alternative work arrangements appears to have come very largely from
consultants and academicians associated, broadly, with the women’s movement.20
The initial constituency for alternative work scheduling (AWS) appears to have been
professional women in search of a way to juggle family and workplace responsibilities.
With time, that constituency appears to have broadened substantially.
Legislation to allow greater work hours flexibility for federal employees was
introduced by Senator John Tunney in June 1973. Although the measure died at therd
close of the 93 Congress, it was reintroduced in a variety of forms through the next
several Congresses with support from Representatives Bella Abzug, Yvonne Burke,
Patricia Schroeder, Stephen Solarz, and Senator Gaylord Nelson, among many others.
While the movement concerned itself both with public and private employment,
the immediate legislative focus was upon federal employees. The various legislative
proposals dealt with direct federal workers, but they constituted an important
precedent. First, the proposals would set aside the various federal statutes that might
conflict with establishment of compressed work hours for federal employees.
Second, and far more significant, they signaled a willingness of some organized
workers and reform groups to abandon the principle of the 8-hour workday and 40-
hour workweek and to accept a 10-hour or 12-hour workday when it seemed to be
in their immediate interests to do so.
As suggested in the DOL hearings of 1971, a division developed within the trade
union community with respect to compressed work schedules. Some, with an eye to
history, were skeptical about any breach of the 8-hour/40-hour standard. Others
looked forward to the potential flexibility of “comp days” and long weekends.
Among public employee unions, some supported the concept; others did not.
J. Gene Raymond, speaking for the National Federation of Federal Employees, argued
that a compressed work schedule (the 4-day week) would “allow the government to
serve the public during evening hours when most taxpayers are off work.” He pointed
to energy savings, improved employee efficiency and morale, reduced cost for
transportation and services, etc.21 Spokespersons for the Public Employee
Department, AFL-CIO, and for the federation at large were sharply critical. George
Poulin of the International Association of Machinists, having explored such
20During the 1970s, advocacy for the restructuring of work centered in Washington,
D.C., in a non-profit interest group, The National Council for Alternative Work Patterns, Inc.
A group of similar thrust, New Ways To Work, was formed in California. Others followed
producing numerous books, articles, newsletters, networks, etc.
21U.S. Congress. Senate. Committee on Governmental Affairs. Flexitime and Part-
Time Legislation. Hearings, 95th Cong., 2nd Sess., June 29, 1978. Washington, U.S. Govt.
Print. Off., 1978. p. 64.
arrangements in Europe, pointed out: “A protracted schedule consisting of week after
week of ten-hour days left many members, especially those who were older,
increasingly fatigued.” The long-term reaction to compressed scheduling, he
suggested, was “less idyllic” than its proponents suggested. And, he noted further,
the arrangement is probably “not applicable to most blue collar occupations.”22
Refined and modified, the Federal Employees’ Flexible and Compressed Work
Schedules Act was passed by the Congress and, on September 30, 1978, signed into
law by President Jimmy Carter (P.L. 95-390). It set aside the 40-hour workweek to
the extent that it allowed for flexible compression of work hours on any daily
configuration within an 80-hour biweekly period.23 Initially, the Act was
experimental: to expire after 3 years unless extended by the Congress. In December
Yet Another Look at Walsh-Healey
With federal employees’ compressed scheduling legislation moving toward
approval (1977-1978), Representative William Armstrong, Senator Henry Bellmon,
and others renewed efforts to amend Walsh-Healey. Senator Bellmon declared
himself mindful “of the lengthy struggle which organized labor undertook to establish
the 8-hour day” but argued that “circumstances change, and this country is no longer
faced with the inhuman daily hours of work it once had.” He added: “It does not
seem likely that a very strong argument can be made against the 4-day workweek on
the basis of endangering workers’ health and safety.”25 The arguments raised against
the work hours restrictions of Walsh-Healey closely paralleled those made in behalf
of the federal employees’ measure.
Walsh-Healey legislation was introduced in the 95th and 96th Congresses, with
no action being taken. In the 97th Congress (1981), then-Senator Armstrong
reintroduced Walsh-Healey legislation, and Senator Don Nickles, chairman of the
22U.S. Congress. House. Subcommittee on Employee Ethics and Utilization,
Committee on Post Office and Civil Service. Part-Time Employment and Flexible Work
Hours. Hearings, 95th Cong., 1st Sess., May 24, 26, June 29, July 8, and October 4, 1977.
Washington, U.S. Govt. Print. Off., 1977. pp. 95-97.
23P.L. 95-390 read in part: “(1) the term `compressed schedule’ means — (A) in the
case of a full-time employee, an 80-hour biweekly basic work requirement which is scheduled
for less than 10 workdays, and (B) in the case of a part-time employee, a biweekly basic work
requirement of less than 80 hours which is scheduled for less than 10 workdays; and (2) the
term `overtime hours’ means any hours in excess of those specified hours which constitute the
compressed schedule.” See Title II, Section 201, of the Act.
24While the experiment progressed, impact analysis were to have been conducted; but,
in practice, little official analysis seems to have taken place. How widely such systems can
usefully be implemented, their contribution to efficiency and productivity, the toll upon or
benefit to workers engaged through extended hours, etc., seems, at least within the context of
the federal program, to remain a subject for exploration.
25Congressional Record, February 24, 1977, p. S2956. Conversely, others believed
that workers were no longer “faced with inhuman daily hours of work” because statutes such
as Walsh-Healey and the FLSA were in place.
Senate Subcommittee on Labor, arranged a hearing on the proposal. “This bill is
needed to bring the laws governing federal contractors into conformity with current
overtime provisions and flexibility in work schedules provided for private sector
employees [under the Fair Labor Standards Act] and, ironically,” Senator Armstrong
added, “to federal employees themselves.”26
The hearing revealed a clear division between labor and industry. With the
public employee unions absent, AFL-CIO staff economist John Zalusky testified
against compressed scheduling, pointed to a potentially negative impact upon
productivity in the long-term, noted that problems of health and safety could be
expected to arise, and suggested that it could have an adverse impact upon home and
family life. Further, he noted that compressed scheduling would be optional for
employers but not necessarily so for employees. Zalusky questioned surveys
purporting to demonstrate widespread employee support for compressed scheduling
as more reflective of employer persuasiveness than of worker choice. “It seems like
the boss comes out and says, ‘how do you like your job?’ and the fellow says, ‘I love
Industry and employer witnesses tended to endorse the concept. The Armstrong
bill allowed compression only up to 10 hours a day. Robert Thompson, speaking for
the U.S. Chamber of Commerce, affirmed that the bill was “a good start” but urged
the Subcommittee to improve it by striking any daily pre-overtime hours restriction.
When Senator Nickles suggested that such a proposal might lead to abuse, Thompson
responded that fatigue and personnel problems would largely prevent establishment
of working hours longer than workers could (or would) stand and still maintain their
productivity. “I am convinced,” Thompson argued, “that there are very, very few
employers, if any, left around who are just going out of their way to abuse workers28
When the Armstrong bill died at the close of the 97th Congress, the issue was
reintroduced in the 98th Congress (1983-1984) by the Senator and, in the House, by
Representative John Erlenborn. Invoking the spirit of the federal employees’
legislation, Representative Erlenborn noted that flexible hours had “proven highly
popular with federal employees, particularly women,” and argued that “... it makes no
sense, on the one hand, to recognize the benefits of innovative scheduling for women
in the federal work force while, on the other hand, acquiescing to outdated federal
contracting rules that deny those benefits for women in the private work force.”29
26U.S. Congress. Senate. Subcommittee on Labor, Committee on Labor and Human
Resources. Walsh-Healey Act/Contract Work Hours Standards Act Amendments, 1981.thst
Hearings, 97 Cong., 1 Sess., March 10, 1981. pp. 10-19. Under the FLSA, overtime pay
is required for hours worked by covered employees in excess of 40 hours per week but, within
the 40-hour workweek, there is total flexibility.
27Senate Labor Subcommittee, Hearings, 1981. pp. 56-60.
28Senate Labor Subcommittee, Hearings, 1981. pp. 60-65.
29Congressional Record, April 27, 1983. pp. E1895-E1896.
Senator Armstrong emphasized consistency: “... it is only fair for federal contractors
to have the same advantages that private sector and government employees do.”30
The legislation died at the close of the 98th Congress; but, in the 99th Congress,
new Walsh-Healey legislation was introduced by Representatives James Quillen) and
Thomas Kindness. While presented as being in the interest of workers, the trade
unions opposed it. In contrast, the concept had “strong support” from “the Business
Roundtable, U.S. Chamber of Commerce, National Association of Manufacturers,
Associated General Contractors of America [AGC], and Associated Builders and
Contractors.”31 The AGC National Newsletter noted approvingly that if the
legislation were to pass, “[c]ontractors could implement flexible work schedules on32
federal projects without paying overtime to their construction workers.” The
Laborer, a trade union journal, noted that the Walsh-Healey Act “is recognized by
many labor leaders as the main protection against unreasonably long workdays that
workers had to endure until the last few decades.”33
On May 6, 1985, during consideration of a budget resolution (S.Con.Res. 32,
99th Congress), Senator Nickles offered an amendment providing that it was “the
sense of Congress” that the overtime pay requirements of Walsh-Healey and the
Contract Work Hours and Safety Standards Act (CWHSSA) should be made to
conform with those of the FLSA “and it is further assumed that the resulting outlay
reductions shall be utilized to achieve the previously agreed-upon program and outlay
savings.” Based upon CBO estimates, Senator Nickles pointed to significant savings
to be achieved from these changes. “The effect of this is to say that you can do work
for the federal government under the same rules that you can do work in the private
sector; and, as a result, you can save a lot of money.”34 In support, Senator
Armstrong observed that such action would “not only save money, but ... make life
more interesting and better for employees, make it possible for employees throughout
the country to be more productive.”35 Senator Edward Kennedy questioned the
extent of any putative savings but agreed to work with Senator Nickles in the
Committee on Labor and Human Resources to develop appropriate legislation.36 Two
30Congressional Record, March 21, 1983. pp. S3525-S3526.
31Bureau of National Affairs. Legislation Introduced To Amend Daily Overtime
Payments by Federal Contractors. Daily Labor Report. April 4, 1985. p. A11.
32National Newsletter, Addendum, Associated General Contractors, April 4, 1985. The
CWHSSA, which applies primarily to Federal construction work and related projects, is
separate from the Walsh-Healey Act. See Kalet, Joseph E. Primer on FLSA & Other Wage
& Hour Laws. Washington, Bureau of National Affairs, 1994. p. 143-151.
33The Laborer, May-June 1985. P. 8.
34Congressional Record, May 6, 1985. pp. S5450-S-5451.
35Congressional Record, May 6, 1985. p. S5451.
36Congressional Record, May 6, 1985. p. S5452.
days later, Senator Armstrong again introduced the Walsh-Healey measure37 and
Senator Nickles promptly scheduled hearings.38
At this point, however, the focus fell upon another vehicle. On April 3, 1985,
Senator Phil Gramm had introduced legislation (the “Department of Defense
Efficiency and Economy Act of 1985" ), which modified the manner in which Walsh-
Healey, the CWHSSA and the Davis-Bacon Act applied to Defense Department39
procurement. Referred to the Committee on Armed Services, a modified form of
the Gramm proposal was added to the National Defense Authorization Act for
FY1986.40 When taken up on the floor, debate seems to have focused upon the
Davis-Bacon provision rather than on the CWHSSA or Walsh-Healey. As approved
by the Senate, the Gramm/Committee package applied only to Department of Defense
The conference report on the DOD Authorization deleted the Davis-Bacon
language (leaving that statute in place) but broadened the language dealing with
Walsh-Healey and the CWHSSA: dropping all reference to daily overtime pay
requirements and leaving only the 40-hour workweek, a standard basically the same
as that of the FLSA.42 And, further, the conference report applied this change to all
federal procurement, not just to DOD purchases. The Daily Labor Report
summarized the issue in the following manner.
Jay Power, a lobbyist for the AFL-CIO, said that the Gramm amendment would
have exempted 95% of military contracts from the prevailing wage requirement.
As negotiations among the conferees continued, Power said, it “simply became
clear” that the only way to defeat the Davis-Bacon amendment was to compromise
on the Walsh-Healey issue. “While we didn’t seek the deal, we felt we did not43
have any choice.”
Thus, a compromise was reached in which the 8-hour provisions of Walsh-Healey and
the CWHSSA were dropped apparently to protect the Davis-Bacon Act.
37Congressional Record, May 8, 1985. pp. S5682-S5683. Senator Armstrong noted
that the bill would allow “contractors the option of alternative work schedules” and mean “less
government interference in the private sector.”
38Congressional Record, May 9, 1985. p. S5976.
39Congressional Record, April 3, 1985. p. S4018.
40Bureau of National Affairs. Davis-Bacon, Walsh-Healey Should Not Apply to
Defense Contracts, Senate Panel Decides. Daily Labor Report, April 8, 1985. pp. A12-A13.
41Congressional Record, June 4, 1985, pp. S7313-S7325 and June 5, 1985, pp. S7523
42Congressional Record, July 29, 1985, pp. H6653-H6654, and July 30, 1985, p.
S10338. See also, Bureau of National Affairs. House-Senate Conferees Drop Davis-Bacon,
Add Walsh-Healey Amendments to Defense Bill. Daily Labor Report, July 29, 1985. pp.
43Bureau of National Affairs. House-Senate Conferees Drop Davis-Bacon, Add Walsh-
Healey Amendments to Defense Bill. Daily Labor Report, July 29, 1985. p. A10. See also
Congressional Record, November 7, 1985. pp. S15000-S15002.
The conference report having been approved, the DOD Authorization was
signed by President Reagan on November 8, 1985 (P.L. 99-145). The separate
Walsh-Healey/CWHSSA overtime pay standard gave way to the overtime pay
requirement of the FLSA: the 40-hour workweek. At almost the same time, Congress
passed and President Reagan signed (December 23, 1985) a permanent extension of
the Federal Employees Flexible and Compressed Work Schedules Act (P.L. 99-196).
Comp Time for State and Local Government Employees
The original Fair Labor Standards Act of 1938, crafted through legislative
compromise, had left large numbers of workers uncovered: among them persons
employed by state and local governments. Gradually, the scope of the Act was
widened to extend coverage to this large body of workers.
In 1966, the concept of “enterprise” (for defining coverage) was broadened to
include certain hospitals, schools, transportation systems, etc. — enterprises that were
also state and local governmental entities. In Maryland v. Wirtz [392 U.S. 183
(1968)], the Supreme Court upheld this extension of coverage. In 1974, Congress
extended the Act to most other employees of state and local governments. Again,
litigation followed and, in National League of Cities v. Usery [426 U.S. 833 (1976),
the Court overturned Wirtz, holding that both the 1966 and 1974 FLSA amendments
“were unconstitutional to the extent that they interfered with the integral or traditional
governmental functions of states and their political subdivisions.” Schools, hospitals,
fire protection, sanitation, etc., were viewed as traditional functions of states and local
governments and, thus, exempt. The distinction between traditional (exempt) and
non-traditional (non-exempt) proved difficult to sustain in practice. In Garcia v. San
Antonio Metropolitan Transit Authority [469 U.S. 528 (1985)], the Court overruled
National League of Cities and brought the body of state and local government
employees under the Act.44
The Garcia decision sparked concern on the part of the state and local
governments (employers) that compliance with basic labor standards already in effect
in the private sector would be unduly costly. Although a variety of issues emerged
during hearings on a possible legislative response, it seems clear that it was the issue
of the potential costs (for which local officials were accountable to taxpayers), rather
than any social concern, which appears to have motivated the local governmental
employers. Appeals to Congress for relief were followed by extensive negotiations
with interested parties, public hearings, and enactment of the 1985 FLSA
amendments. The latter (P.L. 99-150) established the terms under which the FLSA
would be applied to state and local governments.45
44Expansion of FLSA coverage to state and local government entities is summarized in
U.S. Congress. House. Fair Labor Standards Amendments of 1985. Report to Accompanythst
H.R. 3530. House Report No. 99-331, 99 Cong., 1 Sess. Washington, U.S. Govt. Print.
Off., 1985. pp. 5-8.
45Responsibility for labor standards protections has, traditionally, rested both with state
and local governments and with the federal government. Each is free to act, with the higher
standard (that most protective of the worker) normally taking precedent. Thus, higher state
Congress Provides a Compromise. In P.L. 99-150, Congress added a new
Section 7(o) to the FLSA.46 It provides that employees “of a public agency which is
a State, a political subdivision of a State, or an interstate governmental agency” may
receive compensatory time off (comp time) in lieu of regular overtime compensation.
However, Congress did not intend by this new section that the overtime pay
provisions of the FLSA simply be set aside. Thus, Congress carefully delimited the
comp time provisions of law and the option was not to be free of costs to the
Institution of a comp time arrangement under Section 7(o) must be in conformity
with a collective bargaining agreement (where such is in effect) or, where there is not
a collective bargaining agreement, through an “understanding” between the employee
and employer arrived at “before the performance of work.”
Comp time actually worked is to be calculated “at a rate not less than one and
one-half hours for each hour of employment for which overtime compensation is
required.” (Emphasis added.) Allowance is made for the banking of comp time
(accrual of credit hours) but within strict limits. For employees engaged in “a public
safety activity, an emergency response activity, or a seasonal activity,” not more then
than 240 hours may be accrued. Once the accrual limits for credit hours have been
reached, extra hours worked must be compensated on a paid time (time-and-a-half)
basis. There is a cash out requirement. If a worker ceases his employment, he is to
be compensated for accrued comp time “at a rate of compensation not less than (A)
the average regular rate received by such employee during the last 3 years of the
employee’s employment, or (B) the final regular rate received by such employee,
whichever is higher.”
The agency is expected to make a reasonable effort to allow the employee to
utilize comp time at his or her convenience and desire: i.e., “within a reasonable
period after making the request if the use of the compensatory time does not unduly
disrupt the operations of the public agency.” Comp time is not free time for the
employing agency. For the convenience of having a worker engaged through extra
hours (more than 40 per week), the agency must allow 90 minutes of paid leave for48
each 60 minutes of overtime worked.
and local standards may supersede the requirements of the FLSA.
46The provisions of P.L. 99-150 [the new Section 7(o) of the FLSA] are discussed here
at some length because they provide a policy foundation for subsequent proposals for
extension of the Act’s comp time provisions to workers in the private sector.
47The caps upon the accrual of comp time are not annual limits but, rather, limits upon
the number of credit hours an employee can have in the “bank” at any given time. As comp
time is drawn down, the account can be credited with new credit hours. Within the cap, one
is still speaking of 6 and 12 weeks, respectively, of comp time or overtime work each year.
48This is a summary of the provisions of Section 7(o). For a precise explanation of the
operation of these provisions, one should consult the statute and the appropriate administrative
Concerns and Reservations. The use of comp time, it was argued while the
1985 FLSA amendments were under consideration, could be an effective means
through which to reduce taxpayer costs. And, it could facilitate efforts of state and
local governments in dealing with various unexpected or seasonal crises: a public
safety emergency, for example, or another seasonal activity of a short duration for
which employment of extra staff would not be reasonable.
But, in amending a basic worker protective statute, Congress sought to
anticipate areas of possible adverse effect or abuse and to build into the new
provisions a system of safeguards. Even with these safeguards in place (and
recognizing that public agencies do not go out of business, operate under legislated
or administrative regulations, and are subject to general public supervision), concerns
were raised about the Section 7(o) option.
A fundamental purpose of the overtime provisions of the FLSA was protection
of workers from excessively long hours of work. There was concern that some
employers (even public employers) can be inconsiderate and abusive; public work can
be as enervating and hazardous as private sector work. There was also concern that
if long hours of toil in the private sector carry negative implications for workers and
for the public, so may those in the public sector.
A secondary element of the overtime provisions of the FLSA had been to
encourage, reasonably, a sharing of available work. Some argued that the use of
comp time might frustrate this essential purpose. Overtime pay was designed to
encourage employers, precisely because of the cost involved, to reduce excess hours
of work and to employ more people where the volume of work supported it. To
allow “the widespread use of non-premium compensatory time” on the plea that to
do otherwise was too costly, some argued, would remove the employment incentive
and frustrate the purpose of the Act.
One justification for institution of a comp time arrangement (which includes
some measure of flexible and compressed scheduling) has been that it provides
employees with flexibility and creates a family friendly workplace. But, critics
worried that, in the absence of precise conditions, flexible scheduling would not
necessarily be family friendly and may, depending upon the manner in which it is
administered, be decidedly unfriendly. Overtime hours (even offset by comp time)
could constitute a significant burden for persons who, outside of the workplace,
operate on a fixed schedule: i.e., employees who have family and child care
responsibilities, who are enrolled in educational programs, or who may have a second
job (including self-employment as in a family farm situation).49
Prior employee concurrence through a collective bargaining agreement or an
“understanding arrived at between the employer and employee” is necessary before
regulations. See 29 U.S.C. 207(o) and 29 C.F.R. 553.
49House Report 99-331, op. cit. p. 21, notes that the intent of the comp time provision
is “the preservation of regular past practices that have proved mutually beneficial to
employees and employers.”
a comp time arrangement can be entered into under Section 7(o). But, some question
whether the employee is effectively free to decline to extra hours. Acceptance of the
comp time option, for example, might become a prior condition for employment.
Misused, such an “understanding” between a public employer and a public employee
could become a factor in promotions and a measure of a worker’s cooperation and
seriousness about his work.
The statute directs that the employee will be permitted to utilize accrued comp
time “within a reasonable period” and “if the use of compensatory time does not
unduly disrupt the operations of the public agency.” (Emphasis added.) While the
Department of Labor, through regulations, has attempted to define these concepts,
there is still significant latitude for subjective interpretation. Considerable legislative
attention was devoted to the limits placed upon comp time accumulation: in Section
7(o), 480 hours for a public safety activity and 240 hours for those engaged in other
unspecified work. Was this too restrictive or too generous?50
The statute does not require that comp time be cashed-out until employment is
terminated. Thus, an agency could carry up to 12 weeks (3 months) of employee
earnings for an indefinite period. Where one employee is involved, the total of such
deferred earnings may be inconsequential. Where several hundred (or several
thousand) workers are involved, the amount of forgone interest to the employees
could be substantial, which has led to several questions. What happens to the return
on these deferred earnings or credit hours ultimately converted to cash? Further,
might a staff shortage be created if a number of workers chose to “cash out” at one
The emphases upon seasonality in Section 7(o), it could be argued, had less to
do with managing emergency services that were unanticipated than with reducing the
cost of employing public workers to perform routine functions, both seasonal and of
a nonseasonal nature. This concern was raised in the report of the Committee on
50House Report 99-331, op. cit., p. 21, explains: The concern for abuse was noted by
the committee when it stated, pp. 21-22: “The Committee does not expect to find that after
the enactment of these amendments local government employees are suddenly reclassified with
additional designations as emergency personnel. Similarly, the Committee assumes that local
government administrators will resist the temptation to assign their clerical employees or their
support staff to an afternoon of shoveling snow on the courthouse steps or a day with the
ambulance crew simply to bump the compensatory time cap to the higher level.”
Education and Labor.51 Further, the definition of seasonality provides the basis for
determining the cap on comp time accrual.
In reporting the 1985 FLSA amendments, the House Committee on Education
and Labor affirmed that “compensatory time is not envisioned as a means to avoid
overtime compensation.”52 However, as noted above, reducing the cost of providing
public services was a central issue while the 1985 FLSA amendments were before the
Congress. Inevitably, some might argue, that would lead to having public employees
work extended hours, perhaps with some regularity, without having to pay them time-
and-a-half as would ordinarily be required in the private sector.
Expanding Compressed Scheduling and Comp Time to the Private
Sector: an Early Initiative
By the end of 1985, three different arrangements were in effect for dealing with53
extended hours of work. For covered employment in the private sector, the 40-hour
workweek, prior to payment of overtime, was largely the norm. But, within a 40-
hour workweek, any configuration of workhours was permitted without the payment
of overtime.54 In addition, as discussed above, special overtime structures were
allowed for employees of state and local governments under the 1985 FLSA
amendments [Section 7(o)]. And, under the federal employees flexible and
compressed work schedules legislation, alternative work schedules beyond the 40-
hour workweek were permitted for certain federal employees.
With these latter exemptions in place, under the FLSA, the question arose:
Should these options, comp time and compressed scheduling, be extended to the
51House Report 99-331, op. cit., p. 22, notes: “Seasonal activity is not limited strictly
to those operations that are very susceptible to changes in the weather. Obviously, parks and
recreation activity in general are primarily seasonal since they experience peak demand during
fair weather seasons or other sport seasons and largely dormant periods at other times. Road
crews, while not necessarily seasonal workers, may nevertheless have significant periods of
peak demand, for instance during the snow plowing or road construction season. In such an
instance the snow plow operator/road crew employee would be able to accrue compensatory
time to the higher cap, while other employees of the same department who do not have lengthy
periods of peak seasonal demand would remain under the lower cap.... Mere periods of short
but intense activity do not make an employee’s job seasonal in nature; therefore, clerical
employees working increased hours for several weeks on a city budget or processing insurance
forms or tax notices would not need the higher compensatory time cap since the limited
periods of increased activity could be accommodated within the lower limit.”
52House Report 99-331, op. cit., p. 23.
53In additional to the various federal overtime pay requirements, many of the states have
introduced their own workhours standards. Conversely, some workers are protected by none
of these arrangements, neither federal nor state.
54As variously noted, exceptions to the 40-hour workweek formula have been built into
the FLSA. Thus, the system is not as rigid as it might appear at first glance. See, for
example 29 U.S.C. 213.
The Wallop Proposal Introduced. In March 1985 (the 99th Congress), while
Congress still had under consideration the federal employees’ compressed work
schedules legislation and the Walsh-Healey and CWHSSA modifications, Senator
Malcolm Wallop proposed legislation that would have allowed the 40-hour FLSA
standard to be set aside in order to replace it with a comp time option. Under the
Wallop proposal, persons employed more than 40 hours a week would have been
allowed to bank hours (defer earnings) on a straight-time basis. The banked
hours/comp time would then have been used by employees during slack employment
periods, as the Senator explained it, with payment being made at the time the banked
hours were used.55
Senator Wallop reintroduced the legislation in the 100th and 101st Congresses (S.
2196 and S. 515, respectively) without action being taken. In an introductory
statement in March 1989, the Senator explained that the Wyoming firm that had
inspired the legislation was normally beset with “strong seasonal fluctuations.” He
observed: “During the peaks, the employees would work well over the normal 40-
hour work week, but in the troughs, their hours were well below that standard.” The
Senator suggested that both workers and management viewed the arrangement as
“one solution to ensuring steady wages throughout the year.” The Senator pointed
out that the option might be especially helpful to working women with children who
might use the comp time during school vacations.56
Essentially, this proposal would have set aside Section 7 of the FLSA without
actually repealing it. While the legislation was viewed by its sponsor (and those
advocating its introduction) as family friendly and “a sensible solution” for dealing
with irregular time demands,57 some believed that it clashed with the purposes of the
FLSA. The proposed legislation, however, seems to have sparked little public
discussion, either pro nor con. Yet, as an early initiative in the area of private sector
comp time arrangements, the legislation warrants examination.
Concerns and Implications. If enacted, the Wallop bill (S. 515) would have
allowed employers to engage employees for an unlimited number of hours per week
without payment of overtime rates. By mutual agreement between a worker and his
employer, the two would have been allowed to set aside the overtime pay
requirements of the FLSA and to operate, basically, without any overtime pay
constraints on a simple one-for-one comp time arrangement. With comp time
calculated on a straight-time basis, the employer would have saved 50% of his wage
costs for each overtime hour worked, but these savings would have been realized at
the expense of employee take-home pay.
Institution of the comp time system was to have been allowed “pursuant to a
contract made between the employer and the employee individually or an agreement
55Congressional Record (permanent edition), March 28, 1985. p. 6691. See S. 798,
referred to the Committee on Labor and Human Resources.
56Congressional Record (permanent edition), March 6, 1989. pp. 3526-3527. See also
Congressional Record (permanent edition), March 18, 1988. p. 4439.
57Congressional Record (permanent edition), March 18, 1988. p. 4439.
made as a result of collective bargaining.” Where a collectively bargained agreement
permitted the arrangement, workers could be expected to have some protection and
a voice in structuring the system. Otherwise, there was no specific requirement that
an agreement between an individual worker and his/her employer be voluntary or that
it not be a condition for securing employment or remaining employed. Control of the
comp time accrued by employees was left in the hands of the employer. Thus, the
system was flexible for the employer but not necessarily so for the worker.58
As was discussed above, one purpose of the overtime provisions of the FLSA
is to deter employers from engaging their employees through excessively long hours
and, instead, to hire additional workers. With the overtime pay penalty set aside, the
disincentive with respect to overtime work (and, conversely, the incentive to create
additional employment opportunities) would have been removed. Job creation,
however, was not the only concern that sparked enactment of the overtime section of
the FLSA. A collateral purpose was to provide a shield for workers against
potentially negative impacts of long hours of toil and, as well, from any accompanying
costs in terms of health and safety hazards, fatigue, or inconvenience. Many
observers thought that shield might have disappeared under the proposal.
As introduced,59 the comp time option would have applied to any employer:
public or private, large or small, stable or newly established. Under the FLSA, labor
standards are applied differently to different work environments, in part because
public and private sector employers operate in different cultures and under different
58On April 12, 1989, Senator Wallop proposed the substance of S. 515 as an
amendment to then-pending legislation, noting: “...all we are doing is permitting voluntary
agreements between labor and management to utilize a flexible comp time program.”
(Emphasis added.) The assumption was that the arrangement would be voluntary for each of
the parties. Senator Kennedy took exception to that assumption, observing:
What the Senator from Wyoming is basically saying is when that person
comes in and gets that employment, he indicates that they sign a contract to permit
this kind of compensatory time off.
The problem with that, as we all know, is that the bargaining position
between an employer and a single employee at the time when they come on in to
work is not one of great equity.
We know very well that any employee when they go to the job the employer
may well say `You’ve got the job; just sign here,’ which says we do not have to
compensate you [with overtime pay] for any time over 40 hours a week.
See Congressional Record (permanent edition), April 12, 1989, p. 6154. The issue related
to the effective right of an employee to decline to enter into an agreement to allow comp time
use when to decline is clearly contrary to the wishes of his current or prospective employer.
59Senator Wallop later affirmed that the issue was one that he had “pushed for most of
this decade.” With S. 515 resting in committee, he “redrafted” its substance as an amendment
to the general 1989 FLSA amendments. His proposal, tabled by a vote of 66 to 33, sparked
a floor debate between Senators Wallop, Kennedy, Metzenbaum, and Mitchell that
summarized the issues, pro and con, concerning private sector use of comp time for hours
worked in excess of 40 per week. See Congressional Record (permanent edition), April 5,
rules. The public employer normally is an ongoing concern governed by established
and uniform personnel regulations and under general public supervision. Private
sector firms are diverse in their labor-management relationships and have greater
freedom to merge or, simply, to go out of business. In some sectors of the private
economy, instability is common: for example, in the garment industry and in some
segments of construction. Responsible firms, of course, would honor their obligations
for payment of deferred earnings (the cash-out value of comp time). Less responsible
firms might not. Where a bankruptcy proceeding was involved, workers might secure
their back pay where there were assets to be attached; but, that could involve
litigation beyond the resources of many workers — especially those in the low-income
group. Even for a firm with the best of intentions, an employer could fall upon hard
times and end-up in default. In some cases, a closing might be more informal, leaving
workers without recourse.
Payment of comp time earnings (accrued on a straight-time basis) would have
been deferred until the workweek in which the comp time was actually used. No cap
was to have been imposed upon the number of hours accruable under the system and
no date was set by which such deferred earnings would have needed to be paid to the
workers: just “in a subsequent workweek.”60 The employer, under S. 515, would
have had control over (and use of) the deferred wages through an indefinite interim
period. No provision was made for payment of interest on what some, arguably, may
have viewed as an interest-free loan from the workers to their employer.
Enforcement of wage/hour standards, even under current law, is difficult. In a
firm with a significant number of employees, working through different time periods
and degrees of flexibility and hours compression, and accruing deferred income
through comp time, the task could be very complex. What level of compliance
machinery would be necessary to determine that comp time was accurately awarded,
to insure that an employer would be able to make payment when called upon to do
so, and to secure payment of these back wages were an employer either unable or
unwilling, voluntarily, to pay them?
Overtime Pay and Comp Time Concerns in the 104th
The FLSA, in 1938, was a product of legislative compromise. While it set
general minimum wage and overtime pay standards, exceptions were built into the
statute. Through the years, the pattern of exceptions has become increasingly
complex as Congress, in response to appeals from various interests, has sought to
expand the coverage of the statute or to define certain categories of workers (or
industries) as outside the Act’s requirements. Most such legislative adjustments have
60Reference, here, is to S. 515. However, see also comments by Senator Wallop, April
12, 1989, Congressional Record (permanent edition), April 12, 1989, pp. 6156-1657. As
part of the Senator’s remarks, there is a letter from James A. Helzer, Unicover Corp.,
Cheyenne, Wyoming, explaining his firm’s experiment with a comp time option (subsequently
found to have been in conflict with the FLSA).
been followed by complex and, normally, more detailed and technical regulations
developed by DOL in an effort to apply the changes mandated by Congress.
In the 104th Congress, more than two dozen bills were introduced urging
amendment of the FLSA.61 Several of those proposals dealt specifically with the 40-
hour workweek, flexible and compressed scheduling, and overtime pay: S. 1129
(Ashcroft), with a similar measure in the House, H.R. 2723 (Doolittle); and H.R.
The Ashcroft Proposal
On August 7, 1995, declaring that America’s “workplace laws reflect the needs
of a bygone era” and are “[h]opelessly outdated,” Senator Ashcroft introduced S.
1129, the “Work and Family Integration Act.”62 “It is incomprehensible,” Senator
Ashcroft suggested, “that workplace law in this country is predominated by a
workplace statute that was passed almost 60 years ago.” Suggesting the need for
adjustment of the 40-hour workweek principle, the Senator stated that such “rigid and
inflexible provisions have paralyzed those it was meant to help. The FLSA,” he
continued, “now deprives employees of the right to order their daily lives on and off
the job to meet the responsibilities of work and home.”63 Senator Ashcroft urged
greater overtime pay flexibility as a family friendly issue.
S. 1129, adding a new subsection to Section 13 (exemptions) of the FLSA, was
both simple and complex. First, it would have allowed an employer to set aside the
standard 40-hour workweek and replace it with a 160-hour basic work requirement:
i.e., 160 workhours, “over a 4-week period, that is scheduled for less than 20
workdays.”64 Second, within the 4-week (160-hour) period or as a separate flexible
scheduling arrangement, an employer would have been allowed the option of
61Early in the 104th Congress, the FLSA was extended to legislative branch employees
(P.L. 104-1, signed January 23, 1995). Later, Congress adopted legislation to exempt official
court reporters with state and local court systems, under certain conditions, from the overtime
pay provisions of the Act (P.L. 104-26, signed September 6, 1995), to modify child labor
practice under the Act with respect to certain hazardous types of work (P.L. 104-174, signed
August 6, 1996), and more general amendments dealing with the federal minimum wage and
related issues (P.L. 104-188, signed August 20, 1996.).
62S. 1129 was referred to the Senate Committee on Labor and Human Resources. On
February 27, 1996, a general hearing was conducted on issues raised by the proposed
legislation. On December 6, 1995, companion legislation (H.R. 2723) was introduced in the
House by Representative Doolittle and referred to the Committee on Economic and
63Congressional Record, August 7, 1995. p. S11788.
64The initiative for instituting a flexible or compressed workhours program under S.
1129 rested with the employer. Once that initial decision had been made, the employer would
have been allowed to invite his employees to participate in the program. His employees would
have had the choice of participating or not. If they agreed to participate, the employer would
then have been free to schedule them for more than 40 hours in a workweek without paying
overtime rates. If the employee chose not to participate, then the employer would have been
required to pay him time-and-a-half for hours worked in excess of 40 in a single workweek.
restructuring workhours: that is, any configuration of hours so long as the total for
the 4-week period did not exceed 160 workhours. Within the 4-week/160-hour
period, no overtime pay would be required. Third, if an employer found it
appropriate to schedule in excess of 160 hours in a 4-week period, then each
employee could have worked up to 48 hours more than the regular 160 hours —
carrying over the excess 48 hours “to a succeeding 4-week” period as “credit
hours.”65 Fourth, hours worked in excess of 160 in a 4-week period (credit hours)
would have been credited to the employee at a straight-time rate. “Section 7 and any
other provision of law that relates to premium pay for overtime work shall not apply
to the hours that constitute such a compressed schedule.” It appears that time-and-a-
half pay would not have been required until an employee had worked 208 hours in a
4-week period (i.e., 160 regular work hours plus 48 credit hours).66 Fifth, an
employer would have been allowed to initiate a program of flexible schedules within
the new 160-hour workmonth and invite the participation of his employees. Such a
flexible schedule could include “designated hours and days during which an employee67
on such a schedule must be present for work” and other specified conditions. Sixth,
no employee would have been “required to participate” in the flexible and compressed
scheduling program and any threat, intimidation or coercion on the part of the
employer was prohibited.68
Under this proposal, workers and workplaces would have been divided into two
separate groups. First, there are those covered by a collective bargaining agreement
(union workers), in which case that agreement would govern implementation of the
flexible and compressed workhours arrangement. Second, there are those workers
not covered by a collective bargaining agreement (for the most part, non-union
workers), in which case the program drawn up by (or authorized by) management
would be controlling.69
65There may have been some ambiguity about the wording of the credit hour provision
of S. 1129. Only 48 credit hours could be accumulated during a single 4-week period and
only 48 credit hours could be drawn down by the employee in “a succeeding 4-week period
for credit to the basic work requirement for such period.” However, as introduced, the
legislation did not appear to impose a cap, per se, upon the number of credit hours that a
worker could accumulate while he or she participated in the flexible scheduling program.
66As introduced, S. 1129 provided for (a) a compressed scheduling option (i.e.,
flexibility within a 160-hour work/4-week workperiod), (b) flexible workhours within a
workperiod, however defined, and (c) a “credit hours” option. While the compressed and
flexible scheduling arrangements may be free-standing, it would appear that they might also
have been used jointly as flexible and compressed schedules with a “credit hours” option.
Structuring these arrangements as part of a single program appeared to allow a maximum
67Under the Federal Employees Flexible and Compressed Work Schedules Act, periods
are usually set aside during which employees must be present (“core time”) in order to permit
scheduling of meetings or other activities involving a full working group.
68The bill specifically prohibited coercion of employees in order to get them to
participate in a program of flexible and/or compressed scheduling.
69In addition to its general flexible and compressed work scheduling provisions, S. 1129
The 40-Hour Workweek. S. 1129, according to an explanation released by the
Senator’s office, “does not change the 40-hour work week standard” but, rather,
“simply adds an additional provision to the Fair Labor Standards Act ... which creates
an exception to the 40-hour workweek.”70 But, the Senator pointed out: “... the bill
would alter the FLSA’s rigid 40-hour maximum workweek provision.”71
Under the proposal, the 40-hour workweek could have been replaced with two
other patterns taking its place: first, the 160-hour 4-week work period; and, second,
the 48 credit hour balance. Overtime pay would have been triggered after 208 hours
had been worked: 160 regular workhours with up to 48 credit hours. Assuming a
cap at 48 on the number of credit hours that could be accumulated, then no further
credit hours could be earned until some part of the 48 banked hours had been drawn
down. In many operations, this combination of scheduling options arguably might
have eliminated the need for overtime pay in the traditional sense that the term is used
under the FLSA. While the 40-hour workweek would not have been repealed, the
more flexible scheduling option could have become the norm.
A New Workplace Flexibility? “This legislation,” Senator Ashcroft affirmed
in his statement introducing S. 1129, “will put work schedule decision making back
in the hands of employees.” Later, he pointed out that “employees would be able to
request — and employers could provide” compensatory time off instead of being paid
overtime rates for overtime hours worked.72
S. 1129 provided that an “employer may establish” programs of flexible and
compressed work schedules. All scheduling arrangements under such programs
— arrangement of hours and days of work, the degree of the compression,
designation of core time (when an employee must be present for work), etc. — appear
to have rested with the employer except where there is a collective bargaining
agreement.73 Production processes and business necessity likely would have been
major factors an employer would have taken into account when determining whether
(and when) to grant an employee’s request for compensatory time off, hours
dealt with other issues. It allowed for the priority rehiring of former employees, under certain
conditions, without incurring penalties of law: i.e., civil rights, discrimination, seniority,
pension requirements, etc. It would have modified Section 13(a)(1) of the FLSA with respect
to leave and overtime pay policies for salaried workers — an issue that has been in contention
for several years. And, it would have brought the Federal Employees Flexible and
Compressed Work Schedules Act into conformity with the 160-hour 4-week formula.
70Senator Ashcroft’s office has prepared a fact sheet, undated, concerning S. 1129, from
which this report draws.
71Congressional Record, August 7, 1995. p. S11789.
72Congressional Record, August 7, 1995, pp. S11788-S11789. There would appear
to have been some uncertainty about the computation of overtime/comp time rates, giving the
wording of the proposed legislation and some of the related documentation.
73Normally, it is the employer’s option to establish the sequence of workhours: starting
times, shift structures, etc. Flexibility in scheduling, both under current practice and as
projected under S. 1129, is essentially an employer decision.
flexibility, and the like. The bill did not contain language comparable to the “within
a reasonable period” and “if the use of compensatory time does not unduly disrupt the
operations” of the establishment as is a part of Section 7(o) that deals with comp time74
utilization in the public sector.
Section 7(o) of the FLSA, as it relates to comp time for state and local
government employees, requires (in the absence of a collective bargaining agreement)
that participation in a comp time program be preceded by “an agreement or
understanding arrived at between the employer and employee before the performance
of the work.”75 S. 1129 provided:
... the employer may, on request of the employee, grant the employee
compensatory time off in lieu of payment for such overtime hours, whether or not
irregular or occasional in nature and notwithstanding Section 7 [the overtime pay
provisions of the FLSA] or any other provision of law ... (Emphasis added.)
There was no requirement that such a request be written and, thus, were it not
required by the implementing regulations, it would appear that a “request of the
employee” could have been either oral or written. If the request had been oral,
worker agreement or refusal might have been difficult to document were litigation to
follow; and, indeed, many employers might have sought protection by securing an
employee’s agreement in written form.
This, however, may have raised other concerns since the several workhours
options were to be initiated and, in the absence of a collective bargaining agreement,
structured at the discretion of the employer. The form, format and timing of an
employee request to participate in such programs were left to be defined in
regulations, if at all.
Assuming that an employee request to participate in an alternative workhours
program under S. 1129 would be written, then content and timing could be important.
For example, could a prospective worker be handed a request form when applying for
employment? If so, would an applicant be free to decline to sign without endangering
his likelihood of being hired? While H.R. 2391, as reported, included a provision that
a private sector employee may only be provided compensatory time off “if such
agreement or understanding was not a condition of employment,” S. 1129 did not.
While S. 1129 would have prohibited an attempt by an employer “directly or
indirectly” to “intimidate, threaten, or coerce,” it was not specified how this would
74Some might argue that control of such programs could hardly rest with anyone other
than the employer, especially where work processes are closely integrated with one employee
dependent upon another or where there are tight production deadlines.
75See 29 U.S.C. 207(o)(2)(A)(ii). This provision also appeared in H.R. 2391 (the
Ballenger proposal of the 104th Congress, discussed below), as reported by the Committee on
Economic and Educational Opportunities. H.R. 2391 also required that such an agreement
or understanding be “entered into knowingly and voluntarily by such employee” and, in the
case of private sector employees, that it be “a written or otherwise verifiable statement.”
Some were concerned that flexibility for the employer, under pressure to meet
production deadlines, could result in an employee being required to work a
compressed schedule that would be inconsistent with his or her non-work
responsibilities (childcare, school or other training program, etc.). That could occur
under current law; but, at the end of 40 hours in a single week, any additional hours
of work would trigger an overtime pay penalty of time-and-a-half. Under S. 1129,
employer flexibility could have extended to 208 overtime free hours in a single month,
arranged to meet the requirements of the employer and of the production process.
In the absence of a general request from an employee to participate in alternative
scheduling, it is not clear that a separate request would have been required on each76
occasion in which weekly hours of work extended beyond 40. Would a consistent
refusal by a worker to work a compressed schedule (160 hours structured through 4
weeks) and/or to accept straight-time pay for overtime (credit hours) rather than
insisting upon time-and-a-half have affected that employee’s status and opportunities?
The proposed legislation would have applied equally to workplaces that are
comfortable and collegial, and to those that are characterized by a high-pressure
production-oriented culture. Whether S. 1129 would have assured that flexibility was
a two-way street was not immediately clear.
Compliance and Administration. The Federal Employees Flexible and
Compressed Work Schedules Act applies only to employers that are more or less
permanent: that is, to federal agencies. And, the implementation of the option is
carefully scrutinized by the Office of Personnel Management and, more distantly, by
the Congress. The 1985 FLSA amendments created a comp time option for
employees of state and local governments. There, the employers are ongoing entities
operating under public supervision. S. 1129 proposed extension of the flexible and
compressed workhours option to “an employer” — that is, to any employer covered
under the overtime pay provisions of the FLSA, public or private, large or small,
Under current law for covered employees, the general requirement is that any
hours worked in excess of 40 per week require payment at the rate of time-and-a-half:
a straight forward standard. S. 1129 would have authorized a variety of new
workhours arrangements. Some workers might remain on straight time; others, on
alternative scheduling with credit hours. Some workers might move in and out of the
system allowed by S. 1129, depending upon their non-work responsibilities.
S. 1129 imposed no cash-out deadline for credit hours so long as one remained
in the program. Carrying credit hours on the books through an extended period
would add some complexity to the compliance burden. For some small firms, the
alternative scheduling option could prove difficult to administer. However, any
initiative which expanded comp time and related options would likely engender such
difficulty in some measure.
76Questions arose as to how much flexibility an employer would have been allowed in
designing an alternative scheduling program.
During consideration of the legislation providing flexible and compressed
scheduling for federal employees (a process that spanned more than a decade), many
of these same issues were raised. Even allowing for the differences between public
and private sector employment, enforcement and/or compliance problems suggested
by S. 1129 would not necessarily be overwhelming, but would add complexity beyond
the current program.
Alternative Scheduling and the Family Friendly Workplace. Alternative work
scheduling, through the past several decades, has often been considered a positive
step in the creation of a family friendly workplace. The growing trend of both
husband and wife working outside the home has made more difficult the juggling of
work and family responsibilities. Flexible hours with time off to care for family
matters could, proponents say, make workers happier, less stressed, and more
When S. 1129, “Work and Family Integration Act,” was introduced, it was
pointed out that a worker, wishing “to work 45 hours one week in exchange for
working only 35 the following week so he or she can attend their child’s baseball
game, parent-teacher conference, or doctor’s appointment, must first have an
employer willing to pay him or her five hours of overtime pay for the 45-hour week.”
S. 1129 is “an effort to make the Fair Labor Standards Act conform to the realities
of the current workplace.”77
A central issue, here, may be the matter of control. When flexible and
compressed scheduling is utilized to enhance the quality of worklife and where
workers are able to match flexible schedules to their family needs, the system should
work well — at least for the employee. But, that flexibility and match may not always
Clearly, flexible and compressed scheduling is not an option for all employers —
nor for all employees. For an establishment with a cooperative labor-management
relationship and where the work processes allow it, flexible scheduling may be a win-
win situation. But, where production depends upon workforce stability (as in a
factory setting), where customer hours need to be maintained, or where employees
work closely as a team, an absence of an employee could be damaging. And, though
the individual workers may feel less stressed, productivity may suffer. That flexible
scheduling results in increased efficiency and productivity does not appear to have
been demonstrated conclusively. Under some circumstances, flexible and compressed
77Congressional Record, August 7, 1995, p. S11788. Under current law, if an
employee works a flexible schedule within the 40-hour week, takes the 5 hours off and works
an additional 5 hours, there would be no need for overtime pay. Under the FLSA, flexibility
is allowable within a single workweek. If, however, a need for time off arose on the final
workday of the week, that option would not be available; he would have to use vacation time,
personal days, family leave days, etc.
78If one assumes, as appears to be normally true, that the employer establishes the
schedule of workhours, then the issue becomes primarily one of the mode of payment: i.e.,
overtime pay in cash on a time-and-a-half basis or credit hours drawn down on a straight-
time basis. In either case, control over workhours would appear to rest with the employer.
schedules may benefit both the employer and employee; but, under different
circumstances, they may not necessarily benefit either.
The Ballenger Proposal
During the early months of the 104th Congress, the House Subcommittee on
Workforce Protection, chaired by Representative Ballenger, conducted oversight on
certain aspects of the FLSA — among them, the issues of comp time and compressed
scheduling. On September 21, 1995, Mr. Ballenger introduced the “Compensatory
Time for All Workers Act of 1995" (H.R. 2391). Following further hearings and
mark-up, the bill was sent back to the full Committee on Economic and Educational
On July 11, 1996, the full Committee reported the legislation by a vote of 20
yeas to 16 nays: Republicans supporting the bill; Democrats, in opposition. On July
No further action was taken on the legislation during the 104th Congress.
In general, the Ballenger bill would have allowed employers to offer
compensatory time off to their employees in place of the more traditional overtime
pay in cash. The choice of whether to offer the option was left to the employer.
Where there was a collective bargaining agreement, implementation of the option
would have been subject to negotiation. Where no such agreement (or worker
representation) was involved, an arrangement was to have been worked out between
each employee and his or her employer.
Once management had determined to offer comp time and had developed a
program for its implementation, the worker would have been given the option of
participating in the program or remaining on a traditional cash overtime pay basis. An
agreement or understanding “in a written or otherwise verifiable” form would then
have been entered into between the parties. A ceiling of 240 hours of comp time was
to have been set (or, less, depending upon the individual program), with a mandatory
cash-out of accrued hours at least once each year.
Proponents of the legislation have affirmed that workers would be free to choose
with respect to participation — free from coercion on the part of their employers.
Further, once a worker had become a participant, he still had the option of opting out
of the program with appropriate notice to his employer. Conversely, the employer
would be free to terminate the program with appropriate notice to his employees.
The legislation called for sanctions and penalties in case of violations of law.
Concern about the legislation was voiced from several perspectives. Some
argued that extended (and, in their view, excessive) hours of work might be as
hazardous and debilitating for workers in the 1990s as they had been in the 1930s:
i.e., that a 40-hour workweek was long enough and that overtime work should be
discouraged. The substitution of comp time for regular cash overtime would involve
a trade of some cash earnings by the employee for time off at a later date.79 Further,
comp time would be the equivalent of wages; but, these wages (accrued hours) would
be deferred income, held and used by the employer on an interim basis.
A significant concern appears to have been the issue of effective choice on the
part of the worker. Some questioned whether a worker really would be free to
decline to participate in the comp time program if he or she knew that the
arrangement was preferred by his or her employer? If a job applicant were offered the
option of comp time in place of cash overtime, could that become an implicit
condition of employment, even were the employer carefully to refrain from making
it an explicit condition? Could an employer assign overtime work only (or largely)
to employees who agreed to accept comp time rather than cash?
Finally, there was the matter of effective worker choice in the use of comp time
already earned. The employee could request the use of his or her comp time and the
employer could approve that request “within a reasonable period” and when the
absence of the employee “does not unduly disrupt” the operation of the firm.
Definition of “a reasonable period” and “unduly disrupt” would be left either to
implementing regulations or to the discretion of the employer. While the employer
could approve an employee request, it could also deny the request. Under this bill,
the employer would have been allowed to buy back the accrued hours at his (the
employer’s) discretion, compensating the worker in cash. Thus, accrued comp time
(banked hours) might not be available to a worker when a need for workhours
The Ballenger bill was characterized as family friendly legislation and as an aide
to workers (especially, to working women) in their effort to balance work with family
concerns. In general, H.R. 2391 was supported by industry and by employer or
business-oriented groups (the Labor Policy Association, the National Federation of
Independent Business, etc.) and opposed by the trade union movement and certain
79If an employee who is regularly employed throughout the year works overtime hours
and is paid in cash, he receives his regular wage, augmented by his overtime pay for the extra
hours worked. If that employee were, instead, to take comp time, he would be permitted to
take paid leave (90 minutes of leave for 60 minutes worked overtime) at a later point. At
year’s end, the annual earnings for the worker who took the cash would combine his regular
wage plus his overtime pay. The worker who took comp time would have given up some
amount of overtime pay — but he would have had some extra hours of free time during the
year. There would be a trade-off of cash for free time.
women’s organizations.80 The final vote on H.R. 2391 was 225 yeas to 195 nays. No
action on the measure occurred in the Senate.81
The Clinton Proposal
By June 1996, comp time legislation had been under active legislative
consideration for more than a year. Marked-up and reported by the Workforce
Protections Subcommittee in mid-December 1995, a full Committee mark-up had
been scheduled for June 26, 1996. In the interim, backers of the legislation had
discussed alternative language which might offer further protection and assurances to
The Clinton Administration also had the issue of flexibility under consideration.
During the summer and fall of 1996, it began to shape a package of proposals.
Although they were never considered in legislative form, they provided additional
options for legislators and became an element in the workhours debate both in the
House and Senate into the 105th Congress.
President Clinton Enters the Fray. On June 21, the President directed a
memorandum to the heads of executive departments and agencies urging
implementation of federal family friendly work arrangements. “The federal
government must continue to set the pace in transforming the culture of the American
workplace so that it supports employees who are devoted to their families.” He
directed the agency and department heads to “develop a plan of action to utilize the
flexible policies already in place and, to the extent feasible,” to expand these
programs. Among the President’s areas of concern was:
... flexible hours that will enable employees to schedule their work and meet the
needs of their families. This includes encouragement to parents to attend school
functions and events essential to their children; ...
He called for an initial report from the departments and agencies within 120 days that
would include “an assessment of progress made toward specific goals and include82
innovative approaches and detailed success stories.”
80A variety of individuals, both from management and from the general workforce,
spoke in their own behalf with respect to the legislation. The division among women’s groups
over comp time became more apparent during the 105th Congress. Diana Furchtgott-Roth,
a resident fellow at the American Enterprise Institute and associated with the conservative
Independent Women’s Forum, testified in support of the concept. Helen Norton of the
Women’s Legal Defense Fund spoke against it, as did Karen Nussbaum, formerly head of the
Women’s Bureau, DOL, and now director of the Working Women’s Department, AFL-CIO.
81See: U.S. Congress. Committee on Economic and Educational Opportunities.
Working Families Flexibility Act of 1936. Report to Accompany H.R. 2391. House Reportthnd
104-670, 104 Cong., 2 Sess. Washington, U.S. Govt. Print Off., 1996; Congressional
Record, July 26, 1996, pp. H8563-H8573; and Congressional Record, July 30, 1996, pp.
82Clinton, William J. “Memorandum on Family Friendly Work Arrangements,” June 21,
The Nashville Statement (June 1996). On June 24, 1996, during his campaign
for reelection, President Clinton addressed the Family Re-Union V Conference in
Nashville, discussing a series of family-related issues. The President spoke about the
issue of time: an increased opportunity for parents, aside from their work
responsibilities, to address the needs of their children. He concluded by observing
that “there are two more changes we can make that would help the American
economy, not hurt business, and strengthen families.” First, he noted, would be an
expansion of the Family and Medical Leave Act, adopted by the 104th Congress. He
urged: “... we should pass a family leave II that would allow employees to take up
to 24 hours a year — that’s not a lot of time — for parent-teacher conferences or for
routine medical care for a child, a spouse, or a parent.” Second, “... we need to make
the workplace more family-friendly, especially where a lot of overtime is concerned,
and give people more flextime in taking overtime either in income or in time with their
families.” He proposed to “redefine compensation in a way that reflects the value of
family and community.”
While urging greater workhours flexibility, the President emphasized: “It’s
important that this be a choice for employees.” He acknowledged employer interest
in the proposal, but stressed that, in his opinion, “the employee has to make the
decision” and that “we have to write strong protections into the law.” At the same
time, he took note of existing abuses with respect to minimum wages and overtime
pay, adding that without appropriate safeguards, “it could simply open the door wide
for abuse of the overtime laws.”83
An Initial Response. The President’s message enjoyed a mixed reception.
Although the President had “avoided use of the term ‘comp time,’ which has negative
connotations for unions, and substituted the term ‘flextime,’”84 AFL-CIO President
John Sweeney commented: “Opening up overtime laws to potential abuse is not the
solution to families’ needs.”85 Christina Martin, deputy press secretary to Republican
Presidential Candidate Robert Dole, referred to the initiative as “stolen rhetoric.”86
Some reporters termed the proposal “an election-year appeal to Americans juggling87
job and family;” others suggested that the President’s proposal “marked another
instance in which he has co-opted a Republican idea, but not the actual Republican
83Clinton, William J. “Remarks to the Family Re-Union V Conference in Nashville,
Tennessee,” June 24, 1969. Weekly Compilation of Presidential Documents, Vol. 32, No.
84Daily Labor Report, June 25, 1996. pp. AA1-AA2.
85USA Today, June 25, 1996. p. A4.
86The New York Times, June 25, 1996. Section A, p. 19.
87St. Louis Post Dispatch, June 25, 1996. News Section, p. 5A.
88The New York Times, June 25, 1996. Section A, p. 19.
There was a similarly mixed reaction on the part of advocates of the Ballenger
bill — or of similar modification of the FLSA. Sandra Boyd of the Labor Policy
Association (and, later, chair of FLECS), stated: “Suddenly the administration
decides that it’s time to jump on the bandwagon,” adding: “I’d be very surprised to
see them pushing this proposal very far.”89 While expressing concern about certain
potential provisions of the Presidential package, Daniel V. Yager, then-chair of
FLECS, seemed to welcome the President’s interest in the issue: “We are especially
pleased that President Clinton has endorsed the concept of providing compensatory
time as payment for overtime,” he wrote to Chairman Goodling of the Committee on
Economic and Educational Opportunities.90 Optimism was expressed in
Representative Goodling’s opening remarks during full Committee mark-up of the
comp time legislation. “I’m pleased that the President, just a few days ago, agreed
that the Congress should pass legislation giving employees this option,” he observed.91
Some, however, viewed the President’s position as ambiguous. In May 1996,
the White House Chief of Staff had indicated that were comp time language added to
the then-pending minimum wage legislation, it would be viewed as “a poison pill” that
could result in a veto.92 Still, in the wake of the President’s Nashville statement,
Presidential adviser Gene Sperling reaffirmed that Mr. Clinton “strongly opposes” the93
bill. The National Federation of Independent Business (NFIB), a supporter of H.R.
2391, affirmed that comp time had not been a part of the minimum wage package
“because the White House shot it down.” Jack Faris, NFIB President, observed:
“The president’s flex-time proposal is a step in the right direction, but it’s a little late94
in coming ...” In a similar statement, the National Association of Manufacturers
(NAM) noted that “[t]he business community has endorsed” the comp time
legislation. “We urge the President to stand by his belief,” affirmed Paul Huard, NAM
senior vice president. “President Clinton must not let election year politics cause him
to turn his back on a proposal that even he has admitted would help American
89USA Today, June 25, 1996. p. 4A. Ms. Boyd would subsequently serve as chair of
FLECS (the Flexible Employment Compensation and Scheduling Coalition). See also, Maggi
Coil and Sandra J. Boyd, “Key Issues in Reforming the Fair Labor Standards Act,” in ACA
Journal, winter 1996, p. 37-38. Ms. Coil had testified for Motorola and for the Labor Policy
Association at the March 30, 1995, hearing before the House Subcommittee on Workforce
Protections, discussed above.
90Daniel V. Yager, Chair, FLECS, to Chairman William Goodling, Committee on
Economic and Educational Opportunities, June 26, 1996. Yager, who had formerly served
as minority counsel (Republican) to the House Committee on Education and Labor, was
identified early in 1996, as general counsel for the Labor Policy Association. See The Detroit
News, February 7, 1996.
91Statement, Chairman Bill Goodling, Full Committee Mark-up, The Working Families
Flexibility Act, June 26, 1996. p. 1-2.
92Congress Daily, May 14, 1996. p. 1.
93The New York Times, June 25, 1996. Section A, p. 19.
94NFIB Small Business News, press release of June 26, 1996.
families.”95 On June 26, two days after the Nashville statement (and coinciding with
full Committee mark-up), 10 Republican congresswomen urged the President to “put
aside partisan differences” and support the Ballenger bill.96
The Clinton proposals remained under discussion through the summer of 1996.
In his acceptance speech at the Democratic convention, the President said: “We
should pass a flextime law that allows employees to take their overtime pay in money97
or in time off, depending on what’s better for their family.” But, the White House
still indicated that a veto awaited the Ballenger bill. The Washington Post reported
in early September:
The veto promise comes at the strong urging of organized labor, which fears that
there are not enough protections in the proposal to prevent employers from
coercing workers into taking time off in lieu of overtime payments ...
Labor appears equally leery of the White House proposal, but union officials this
week did not seem prepared to make a public fuss about it during the election98
Karen Nussbaum, director of the Working Women’s Department, AFL-CIO, stated
the view that workers need the money earned through overtime pay and that they
have little confidence that they would actually have a choice between cash and time
off, even were the FLSA amended. She pointed out that with about 800 DOL Wage
and Hour inspectors responsible for compliance in some 6 million workplaces,
ensuring “full and free choice” might be difficult.99
Conversely, Dan Yager of the Labor Policy Association contended that “the vast
majority of employers” would not abuse the option. Sandra Boyd of FLECS (and the
LPA) argued that “there is clearly a disconnect between union members and union
leadership” on the comp time issue.100 While acknowledging that “organized labor is
95NAM: National Association of Manufacturers, News Alert. June 26, 1996. pp. 1-2.
96Daily Labor Report, July 1, 1996. P. A12. Signers of the letter to President Clinton
included Representatives Greene, Dunn, Pryce, Myrick, Fowler, Cubin, Johnson (Conn.),
Meyers, Vucanovich, and Molinari.
97Clinton, William J. “Remarks Accepting the Presidential Nomination at the
Democratic National Convention in Chicago,” August 29, 1996. Weekly Compilation of
Presidential Documents. Vol. 32, No. 26. p. 1577.
98The Washington Post, September 7, 1997. p. A9.
99Daily Labor Report, October 15, 1996. p. A7. Nussbaum pointed to a recent poll,
conducted by the AFL-CIO, and suggested that those who seemed inclined to opt for time-off
rather than paid overtime were already exempt employees: not subject to FLSA overtime pay
requirements and often more highly paid. Those who were less well paid (and covered under
the FLSA overtime pay requirements) seemed more likely to prefer cash overtime pay. Ms.
Nussbaum was formerly head of The Women’s Bureau at DOL.
100Swoboda, Frank, and Kirstin Downey Grimsley. “Clinton to Offer Legislation on
Compensatory Time, Expanded Family Leave.” The Washington Post, September 7, 1996.
dead-set against it,” LPA President Jeffrey McGuiness asserted that “[m]ost workers
want some sort of workplace flexibility.”101
What President Clinton Proposed. Under date of September 27, 1996,
President Clinton transmitted to Congress a draft for his “Family-Friendly Workplace
Act of 1996.” The proposal was essentially divided into two parts: section one,
dealing with comp time; and section two, expanding the Family and Medical Leave
A Comp Time Option. The President proposed adding a new subsection (r) to102th
Section 7 of the FLSA. Although the initiative was not acted upon during the 104
Congress and was not a subject of hearings, its provisions, summarized below,
became an element in legislative discussion of the issue and therefore is part of the
background for the current debate.
First. The concept of “employee” for purposes of the comp time option was defined
to exclude “a part-time, temporary, or seasonal” worker, an employee of a public
agency, an employee “of an employer in the garment industry,” and others
(“vulnerable employees”) excluded through regulations to be issued by the Secretary103
Second. Comp time would be calculated on a basis of 1-and-1/2-hours of paid leave
for each hour of overtime worked. In case of bankruptcy, comp time would be
treated as unpaid wages.
Third. The decision whether to offer comp time would rest initially with the
employer. If the employer decides to offer comp time, then he may do so pursuant
to a collective bargaining agreement, “memorandum of understanding or any other
written agreement between the employer and representative of such employees.”
Where no collective bargaining agreement exists and there is no representative of the
employees, then the option may be arranged through:
“... a plan adopted by the employer and provided in writing to its employees which
provides employees with a voluntary option to receive compensatory time off for
overtime work where there is an express, voluntary written request by the
individual employee for compensatory time off in lieu of overtime pay ...”
101Transcript, Morning Edition, National Public Radio, October 24, 1996. p. 7.
102The text of the President’s proposal, with explanatory information, appeared in the
Daily Labor Report, October 15, 1996. pp. E1-E7.
103Employees of state and local governments, of course, would continue to be covered
under Section 7(o) of the Act. Under Section 3(D) of the Clinton proposal, the Secretary
would be allowed to “issue regulations” defining classes of employees who would be excluded
from the comp time option, to limit the number of compensatory hours that participating
employees may accrue to less than otherwise applicable in the new subsection (r), and to
“require employers to provide such employees with monetary compensation for earned
compensatory time at more frequent intervals” than otherwise applicable under the new
The request must be submitted “prior to the performance of any overtime assignment”
and may not be “required as a condition of employment.”
Fourth. The comp time option must be available “to similarly-situated employees on
an equal basis.”
Fifth. The employee “may not earn more than a total of 80 hours of compensatory
time in any year or alternative 12-month period ...”104 The employee would be
“regularly” advised if the number of hours of comp time earned and of the total
accumulated (earned but unused).
Sixth. At the end of any 12-month period, the employer would be required to cash
out any comp time earned but unused at 1-and-1/2- times the rate of pay earned by
the employer when the overtime was worked or the rate at the time the hours were
cashed out, whichever is higher. “[W]ithin 15 days following the request” of an
employee, the employer would be required to make cash payment for comp time
earned.105 A monetary cash-out is also required where an employee either voluntarily
or involuntarily terminates his employment.
Seventh. The use of comp time by a terminated employee may not be counted to
diminish eligibility for unemployment compensation.106 In addition, payment for comp
time “shall be treated as compensation for hours worked for purposes of calculation
of entitlement to employment benefits.”
Eighth. The employee may utilize banked comp time with two weeks prior notice
to an employer unless such use “will cause substantial and grievous injury to the
employer’s operations” or, perhaps, within the two week period “unless use of the
compensatory time at that time will unduly disrupt the operations of the employer.”
Ninth. The employer may not require that an employee use accrued comp time.
However, the employer “may modify or terminate a compensatory time plan upon not
less than 60 days notice to employees.”
104The wording, “may earn not more than a total of 80 hours” in a 12-month period
would be a firm annual limit: not merely a limit to the number of hours of compensatory leave
that one might have on the books at any time (a ceiling). (Italics added.) With a ceiling, an
employee could work far more than 80 hours of overtime/comp time each year so long as no
more than 80 hours were accrued.
105Subsection (r)(3)(C) provides: “An employee may voluntarily, at the employee’s own
initiative, request in writing that such end-of-year payment of monetary compensation for
earned compensatory time be delayed for a period not to exceed three months.” Extending the
cash-out payment “shall have no effect on the limit on earned compensatory time” for the
following 12-month period.
106Subsection (r)(4) provides: “A terminated employee’s receipt of or eligibility to
receive monetary compensation for earned compensatory time shall not be used (A) by the
employer to oppose an employee’s application for unemployment compensation, or (B) by a
state to deny unemployment compensation or diminish an employee’s entitlement to
unemployment compensation benefits.”
Tenth. The employer may not substitute earned compensatory time “for any other
paid or unpaid leave or time off to which the employee otherwise is or would be
entitled or has or would earn, nor satisfy any legal obligation of the employer to the
employee pursuant to any law or contract.”107
Eleventh. Various employee safeguards were included. For example, the following
were defined as unlawful acts of discrimination by an employer.
“(A) to discharge or in any other manner penalize, discriminate against or interfere
with any employee because such employee may refuse or has refused to request or
accept compensatory time off in lieu of overtime pay, or because such employee
may request to use or has used compensatory time off in lieu of overtime pay; or
“(B) to request, directly or indirectly, that an employee accept compensatory time
off in lieu of overtime pay, to require an employee to request such compensatory
time as a condition of employment or as a condition of employment rights or
benefits, or to qualify the availability of work for which overtime compensation is
required uponan employee’s request for or acceptance of compensatory time off
in lieu of overtime compensation; or
“(C) to deny an employee the right to use or force an employee to use earned
compensatory time in violation of this subsection.”
Twelfth. A system of penalties for violation of the provisions of the comp time
option were provided, including the award of penalties, attorney’s fees, and other
Certain qualifications were built into the Clinton proposal. Among them were:
(a) It would define a part-time employee as anyone who worked less than 35 hours
per week: such person would not be eligible to participate in the program. (b)
Similarly, for purposes of exemption from the program, a seasonal person is defined
as one employed “for a season or other term of less than twelve months or is
otherwise treated by the employer as not a permanent employee of the employer.”
(c) Further, the excluded class was defined to include “an employee in the
construction industry, in agricultural employment ... or in any other industry which the
Secretary by regulation has determined is a seasonal industry.” (d) Finally, the
Secretary of Labor was directed, “as necessary and appropriate,” to develop
regulations “implementing record keeping requirements and prescribing the content
of plans and employee notification.”
The comp time program under the Clinton initiative, presented as an experiment,
was to expire (“sunset”) 4 years after enactment of the measure.
107The concern, here, appears to be that employers might diminish sick leave or annual
leave ordinarily granted to employees, since employees could use comp time for vacation and
certain other activities. Since vacation time and sick leave are not mandated by the FLSA,
it is not clear how such substitution could be prevented.
Other Provisions of the Clinton Plan. The Clinton proposal included additional
initiatives, largely independent from the comp time option, per se, each of which
would likely have raised additional areas of concern for interested parties.
A Commission on Workplace Flexibility. Assuming that the basic comp time
option were written into law, the Clinton initiative called for creation of a
“Commission on Workplace Flexibility.” The Commission would have been charged
with the conduct of:
... a comprehensive study of the impact of compensatory time on public and
private sector employees including, but not limited to, the impact of the law on
average earnings, hours of work, work schedules, and flexibility of scheduling
work to accommodate family needs, and on the ability of vulnerable employees or
other employees to obtain the compensation to which they are entitled.
The report, to be concluded within a 4-year period, was to be submitted to the
Secretary of Labor and to the appropriate committees of the Congress. It was to have
made recommendations as to whether the comp time option was to be modified or
extended “including a recommendation as to whether particular classes of employees
or industries should be exempted or otherwise given special treatment, and whether
additional protections should be given, including to employees of public agencies.”
Expanding the Family and Medical Leave Act. The Clinton proposal would
have expanded the Family and Medical Leave Act of 1993 (FMLA) to provide to an
eligible employee 24 hours of unpaid leave within a 12-month period.108 This time
away from work was to be used to:
(i) participate in school activities directly related to the educational advancement
of a son or daughter of the employee, such as parent-teacher conferences or
interviewing for a new school;
(ii) accompany the son or daughter of the employee to routine medical or dental
appointments, such as check-ups or vaccinations; and,
(iii) accompany an elderly relative of the employee to routine medical or dental
appointments or appointments for other professional services related to the elder’s
care, such as interviewing at nursing or group homes.
Options provided through changes in the FMLA would be outside the scope of comp
time legislation. While potentially utilized as a supplement to other alternative work
schedules, flexibility under the FMLA would be administered somewhat differently.
Leave for Civil Service Employees. The proposal would have added a new
Section 6383(f) to the United States Code, allowing public employees to enjoy 24
hours of unpaid annual leave for school, medical and eldercare purposes. This would
follow the pattern, noted above, for the private sector workforce.
108Concerning the Family and Medical Leave Act, see CRS Report 94-388, Family and
Medical Leave, by Leslie W. Gladstone, and CRS Issue Brief 97017, The Family and
Medical Leave Act: Proposed Amendments, by Leslie W. Gladstone.
Some Additional Aspects. A FACT SHEET accompanying the Clinton
proposal explained its implications. Emphasized are such concepts as flexibility,109
employee choice and worker protection.
The FACT SHEET appears to use the term “flex-time” when it would seem to
have meant comp time: the concepts are not necessarily inter-changeable.110
However, in dealing with the need for workplace flexibility, neither the FACT SHEET
nor the President in his transmittal statement takes note of the flexibility already a part
of the FLSA.
The Administration documents proclaim: “Under the President’s proposal,
employees choose: ...” But, in practice, the Clinton proposal, like H.R. 2391, puts
initial decisions about comp time with the employer. It takes note of the distinction
between workers employed under a collective bargaining agreement and those in a
non-union work setting — as does H.R. 2391 — and requires that requests for
participation in a comp time program be voluntary. Though structured somewhat
differently, the Clinton proposal assures worker freedom from abuse (pressure to
participate, to draw down accrued time, etc.) as would the amended Ballengerthth
proposal of the 104 Congress (and, later, of the 105 Congress). However, the
Clinton proposal explicitly assigns to DOL regulatory responsibility and other options
(i.e., designating vulnerable classes) to a degree exceeding that of H.R. 2391.
Finally, the Clinton proposal incorporates language that assures the worker the
right to utilize his banked comp time (already earned) unless it will “cause substantial
and grievous injury to the employer’s operations” or “unduly disrupt the operations
of the employer.” Again, as in H.R. 2391, the concepts of “substantial” and “unduly
disrupt” are left to the Secretary of Labor to define through the regulatory process.
Overtime Pay and Comp Time Concerns in the 105th
As preparations began for the 105th Congress, changes in overtime pay law
remained an issue. Receiving “top priority” among emerging labor issues, explained
Tim Shorrock of the Journal of Commerce, “is a Republican bill designed to make the
U.S. workplace more flexible” through the use of comp time. “That’s [flexibility] not
only good for employers,” observed Sandra Boyd of the industry-oriented Labor
Policy Association, “it’s good for the bottom line.” Peggy Taylor of the AFL-CIO
was less enthusiastic, suggesting (in Shorrock’s summary) that the initiatives “could
109Daily Labor Report, October 10, 1996. pp. E 1-E6. In addition to the text of the
Clinton proposal, the statement from President Clinton in transmitting the package, a section-
by-section analysis and a FACT SHEET were reprinted.
110Such concepts are still evolving and their precise definitions may not yet be entirely
set. However, in general, flextime refers to scheduling of work within a set period: normally,
the 40-hour workweek. This could include such matters as arrival and departure times, core
hours for work, etc. Comp time, the concept that seems to apply here, deals with the
substitution of time-off for overtime pay outside of a traditional 40-hour workweek.
gut the 40-hour week and make workers vulnerable to pressures from employers to
take time off instead of overtime pay.”111
Representative Goodling, chair of the full Committee on Education and the
Workforce, circulated a “Dear Colleague” letter dated December 17, 1996, inviting
Members to become co-sponsors of new comp time legislation that will be “the same
as H.R. 2391, as passed by the House on July 30, 1996.”112 A roughly parallel letter113
was dispatched on January 2, 1997, by Representatives Shays and Myrick. On
January 8, 1997, a “group of House Republican women ... endorsed what they called
‘family friendly’ legislation” to allow the use of comp time in place of overtime pay.
Meanwhile similar interest was rising in the Senate.114 By late January, The Wall
Street Journal was anticipating that “Republicans and business groups will be taking
their fight directly to the public,” which — a survey by “the pro-business Labor Policy
Association” suggests — supports the concept of flexibility overwhelmingly.115
In the House, the issue reappeared as H.R. 1 (Ballenger); in the Senate, as S. 4
(Ashcroft). Meanwhile, the Administration was considering alternative approaches
to workhours flexibility — generally within the context of the Family and Medical
Leave Act, adopted early in the 104th Congress.
The New Ballenger Bill
On January 7, 1997, Representative Ballenger introduced a new comp time bill,
the “Working Families Flexibility Act” (H.R. 1).116 The measure was referred to the
Subcommittee on Workforce Protections. On February 5, with Mr. Ballenger as
chair, the Subcommittee conducted hearings on the proposal. On March 5, the
Subcommittee was discharged from further responsibility for the legislation and the
full Committee on Education and the Workforce proceeded with mark-up. On a split
of 23 to 17 (Republicans in favor, Democrats opposed), the Committee voted to
report the Ballenger bill.117
111Shorrock, Tim. US Firms Prepare To Square Off with Labor on Work Laws.
Journal of Commerce, December 26, 1996. pp. A1 and A5.
112Dear Colleague Letter, Representative William Goodling, December 17, 1996. The
legislation, when introduced, would be structurally different from H.R. 2391 but substantively
113Dear Colleague Letter, Representatives Christopher Shays and Sue Myrick, January
114Daily Labor Report, January 9, 1997. pp. A1-A2. Those issuing the endorsement
included Representatives Molinari, Fowler, Dunn, Myrick, and Granger.
115The Wall Street Journal, January 28, 1997. p. A18.
116Congressional Record, January 7, 1997. pp. H66, E42-E43.
117 The Daily Labor Report for March 6, 1997, p. AA1, noted: “The vote was along
party lines and reflected the differences between the two parties over the GOP-sponsored
legislation that is backed by business groups and opposed by organized labor.”
H.R. 1 as Reported. Under date of March 12, 1997, House Report 105-21 was
filed. H.R. 1, as reported, differed in some respects from H.R. 2391 of the 104th
Congress. The earlier legislation had proposed restructuring Section 7(o) of the Act
(which now deals only with wage/hour coverage for state and local government
workers) to expand its provisions in a modified form to the private sector workforce.
In H.R. 1 of the 105th Congress, Section 7(o) was left unchanged and a new Section
The wording of the new bill varied somewhat from (though was largely the same
and roughly parallel to) that of H.R. 2391. The new bill, like its predecessor, would
allow employers to provide, at their initiative, the option of comp time in lieu of
monetary overtime compensation, at the rate of 1-and-1/2-hours of comp time for
each hour of overtime worked.118 Where a collective bargaining agreement was in
place or where a representative of the workers had been formally recognized, an
employer would have had to work within that context in shaping a comp time
program. Where there was no negotiated contract (and no recognized worker
representative), the employer and the individual employee would e allowed to enter
into “an agreement or understanding” with respect to comp time. The bill would have
required that such agreement (a) be arrived at “before the performance of the work,”
(b) that it be entered into “knowingly and voluntarily by such employee,” and (c) that
it is “not a condition of employment.” The agreement was also to have been affirmed
by “a written or otherwise verifiable” record.119 The employer would not allowed,
“directly or indirectly [, to] intimidate, threaten, or coerce or attempt to intimidate,
threaten, or coerce” any employee with respect to the comp time option.120
Employees would not have been allowed to accrue more than 240 hours of comp
time. If unused, such hours would need to be cashed-out at the end of a designated
12-month period. An employer would have been permitted, upon 30 days notice to
the employee, cash-out all hours banked in excess of 80. An employer could also
have discontinued the comp time option after giving 30 days notice to the employee;
the employee could have rescinded his agreement to participate in the comp time
program, giving a written notice, at any time. Within 30 days thereafter, the employee
would have been given monetary compensation for his banked hours. H.R. 1 made
clear that an employee who terminated his employment, “voluntarily or involuntarily,”
would have been paid for unused comp time.
118The worker would not have a right to comp time unless a program, under the new
Section 7(r), is instituted by the employer. Nor, in the absence of a collectively bargained
agreement, would the worker have a right to be consulted concerning the structure of the
option, its scope, and the restraints imposed upon its utilization.
119The verifiability of the agreement could be as much in the interest of an employer as
that of a worker, where liability and litigation are possible. Where industries are thinly
capitalized or where business failures are frequent, a written policy and a written agreement
could be of special value to the worker.
120The definition of coercion, etc., within the context of public sector employment where
there are civil service and other regulations, may not be a problem. Its definition in the private
sector where economic pressure (the need for employment) could be a subtle form of coercion,
may be more difficult.
Comp time, under H.R. 1, was to be used, upon request by a worker, “within a
reasonable period after making the request” when it “does not unduly disrupt the
operations of the employer” — language carried over from the House-passed bill ofth
the 104 Congress. H.R. 1, as reported, had language dealing with penalties and
House Report 105-21 noted that the comp time agreement had to be “mutual”
between the employer and employee. “If either ... does not so agree, then the
overtime pay must be in the form of cash compensation.”121 Further, it explained:
“H.R. 1 does not require that the same agreement be entered with every employee,
or that the employer agree to offer compensatory time to all employees.”122
The Report took note of concerns voiced by critics of the legislation, including
the assertion that low wage workers might be especially vulnerable to exploitation
were a private sector comp time option instituted. It suggested that the definition of
“low wage” might be somewhat ambiguous and that many workers who might be
classified as low wage workers might be benefitted from the comp time option
(“...some of the most forceful and compelling testimony ... in support of allowing
workers the option of paid compensatory time was given by a ‘low wage worker,’”).
Therefore, the Report noted: “The Committee sees no reason to deny certain
employees the option of compensatory time, based solely upon their level of income
or their occupation.”123
The Report explained as the Committee’s intent that “an employee who has
accrued compensatory time may generally use the time whenever he or she so desires.
The only limitations which the bill puts on the use of compensatory time,” it stated,
“is that the employee’s request to use compensatory time be made a reasonable time
in advance of using it, and that the employer may deny the employee’s request if the
employee’s use of the compensatory time would `unduly disrupt’” the employer’s
operations. The Report emphasized that interpretation of “unduly disrupt” should
follow the standard set forth by the Department of Labor and litigated through the
courts for state and local government workers. It concluded: “The employer’s right
to deny compensatory time off under H.R. 1 is very limited. But the employer must
have some ability to maintain the operations of the business.” It added: “If that is not
recognized in the law, then no employer will ever offer compensatory time as an124
121U.S. Congress. House. Committee on Education and the Workforce. Working
Families Flexibility Act of 1997. Report to Accompany H. R. 1. House Report No. 105-21,thst
105 Cong., 1 Sess. Washington, U.S. Govt. Print. Off., 1997. p. 9. (Hereafter cited as
House Report No. 105-21.)
122House Report No. 105-21. p. 10.
123House Report No. 105-21. p. 11. See the Clinton Administration proposals,
124House Report No. 105-21. p. 14-15.
The changes made to the FLSA through H.R. 1 (i.e., the comp time option), the
Report affirmed, “apply to the legislative branch” in conformity with the
Congressional Accountability Act (CAA).125
The vote to report H.R. 1 followed party lines; the Democratic Members filed
a dissenting report. “In our view,” they began, “the inevitable consequence of
enactment of H.R. 1 would be to require employees to work longer hours for less
pay.” They charged that the legislation, though presented as family friendly, has been
“deceptively titled” and actually “diminishes the flexibility of working families.” They
added: “This is a bill about employer flexibility and power, plain and simple.” And,
they pointed out that the legislation was opposed by organized labor and by women’s
groups such as the Women’s Legal Defense Fund, the American Nurses Association,
and Business and Professional Women, U.S.A.
Though they did not suggest “that all, or even a majority of employers” would
violate the rights of workers under H.R. 1, they argued: “...Federal labor law must
protect employees, indeed even law-abiding employers, from the illegal and ill-
begotten gain of unconscionable employers. In the real world,” they stated, “most
employees lack the bargaining position, wherewithal, and nerve to insist that their126
employers respect employee needs and rights.” Where the Majority stressed the
need for “mutual agreement” with respect to comp time, the Minority stated that
“many employees are reluctant or fearful to buck their employer’s wishes regarding
their terms and conditions of employment. This is especially true,” they added, “for
some 85% of the workforce who do not have the protections of collective bargaining
agreements.” The Minority argued that the legislation “gives the employer complete
discretion over whether to offer overtime at all, the option of offering or denying it
to any group or groups of employees, and the authority to withdraw the comp time127
plan at any time.”
The Minority suggested that there are major workplace differences between the
public and private sectors and that, in effect, a statute tailored to the needs of state
and local government workers could not, arbitrarily, be applied to the private sector.
The Majority cites various cases and regulations applicable to the public sector
standard for taking leave time. These precedents and regulations will not be
controlling to the comp time provisions of the bill. Further, public sector
employers operate in a substantially different setting than private sector employers.
Public sector employers don’t face the business cycles and competitive economic
pressure of private sector employers. Further, public sector employees are
generally organized and have substantial procedural protections to protect against128
arbitrary and capricious employer actions.
125House Report No. 105-21. p. 21.
126House Report No. 105-21. p. 35-36.
127House Report No. 105-21. p. 36-37.
128House Report No. 105-21. p. 38.
The Department of Labor would need to develop implementing regulations,
requirements for record retention, reporting, etc.; these would be expected to vary
from those governing the public sector.
The Minority argued that the worker protections built into the legislation were
inadequate: that even under current law, wage and hour standards were difficult to
enforce and violations were frequent. “H.R. 1 will engender more overtime
violations.” The proposed legislation, the Minority held, “increases the need for
resources” for enforcement and compliance on the part of the Department of Labor.
During Committee mark-up, the Minority had offered a series of proposals that
would, putatively, have strengthened worker protection under H.R. 1 and a more
extensive body of remedies with respect to violations. They were rejected on a series
of largely party-line votes.129
Finally, the Minority raised a series of objections with respect to manipulation
of the workweek to the detriment of the employee, the treatment of potentially
vulnerable employees under the proposed legislation, the practical relationship of
comp time to other paid leave, the status of comp time under a bankruptcy or informal
cessation of business, and other concerns. They also noted concerns voiced by the130
Clinton Administration with respect to H. R. 1.
Floor Debate and House Passage. The comp time legislation (H.R. 1) was
called up in the House on March 19, 1997. The arguments, pro and con, in general
terms, followed those of the 104th Congress. Representative Pryce, for example,
opened by charging that opponents of the legislation “have chosen to put politics
above sound policy” and argued that “it is time we stopped automatically thinking of
employer/employee relations in such adversarial terms.” With H.R. 1, she affirmed,
labor and management “can work together to meet each other’s needs ... at least the131
choice will be theirs, not Washington’s.” Conversely, Representative Moakley
argued that the legislation “helps the big people, but it does not do much for the
ordinary worker.” He asserted that the legislation would leave workers vulnerable
and often without protection. “In the real world, if your boss tells you to take time
off instead of getting extra pay, you either do what you are told or you start packing
Proponents of the legislation spoke in terms of an option for flexibility: of more
freedom for workers. Critics saw little option for workers and viewed the legislation,
rather, “as yet another attack on America’s workers.”133 Disagreement was voiced
about the provisions of the legislation, the motivation behind them, and the impact
they would have in the real world of the workplace.
129House Report No. 105-21. p. 39-40, 25-30.
130House Report No. 105-21. p. 40-45.
131Congressional Record, March 19, 1997. p. H1116.
132Congressional Record, March 19, 1997. p. H1116-H1117.
133Congressional Record, March 19, 1997. p. H1118.
The rule, allowing consideration of H.R. 1, was approved by a vote of 229 ayes
to 195 nays.134 It provided for a series of floor amendments.
The Goodling Amendments. As soon as the House commenced consideration
of the bill, Representative Goodling, chair of the full Committee, offered two
amendments en bloc. The first Goodling amendment read as follows:
No employee may receive or agree to receive compensatory time off under this
subsection unless the employee has worked at least 1000 hours for the employee’s
employer during a period of continuous employment with the employer in the 12
month period before the date of agreement or receipt of compensatory time off.
The second Goodling amendment reduced the number of hours of comp time that an135
employee could accrue from 240 hours to 160 hours.
Representative Clay, the Ranking Minority Member of the full Committee, while
speaking against H.R. 1 per se, agreed to accept the Goodling amendment (en bloc)136
“because it provides very minor improvements in the underlying bill.”
Representative Petri pointed to the “long debate” with respect to “[c]onstruction
workers and other seasonal employees” and their coverage under H.R. 1. With the
Goodling amendments, he noted, “it is unlikely these workers will ever be able to use
comptime” but, he observed: “Making comptime an option in industries where the
relationship between the employer and the employee is transitory may in fact make it
easier for unscrupulous employers to avoid paying overtime wages.” The
amendments, he suggested, strengthened the worker protections afforded by the
legislation by assuring “that an employee has a substantial relationship with an
employer before the option of earning paid compensatory time in lieu of overtime.”137
The concepts raised in the Goodling amendments did not appear to have been
dealt with during hearings on the legislation. The impact they might have upon
compliance activity on the part of the Department of Labor was not addressed; nor
was the potential complexity of requirements that DOL would need to devise for
implementation. The Goodling amendments were approved on a vote of 408 ayes to138
The Boyd Amendment. A third amendment was offered by Representative
Boyd. It provided that the “Working Families Flexibility Act of 1997" (H.R. 1) would
automatically terminate 5 years after the date of the enactment. “By putting in place
a 5-year sunset provision, the amendment ensures future congressional review of this
act,” Mr. Boyd affirmed. Several Members endorsed the amendment as a reasonable
method through which to try out the option and then assess its impact.
Representative Clay voiced continuing concern: “...sunsetting this bill is not the
134Congressional Record, March 19, 1997. pp. H1123-H1124.
135Congressional Record, March 19, 1997. p. H1138.
136Congressional Record, March 19, 1997. p. H1139.
137Congressional Record, March 19, 1997. p. H1139.
138Congressional Record, March 19, 1997. p. H1139-H1140.
problem or the answer. Enacting H.R. 1 would be a terrible mistake.” Although he
continued to oppose the legislation, Mr. Clay agreed that he would accept the
Unlike the Clinton Administration proposal, discussed above, the Boyd
amendment made no provision for a specific report to the Congress by the Secretary
on the utilization and impact of comp time. The House approved the Boyd140
amendment by a vote of 390 ayes to 36 nays.
The Owens Amendment. Concerns had been raised as to whether low wage
workers, generally nonunion, would have true freedom of choice with respect to the
proposed comp time option. Representative Owens, therefore, proposed exempting
from the option workers who earn less that 2.5 times the minimum wage. “We can
have a bill which allows the upper middle class people who want this to have it, and
[at] the same time let[s] us exempt three-quarters of the work force who earn $10 or
less, ...” He noted that with adoption of the Boyd amendment, Congress would need
to return to the issue in 5 years and, at that time, could expand the option if it is found
to work satisfactorily.141
Representative Ballenger objected that the Owens amendment would exempt
everyone who made less than about $23,000 from the option. He questioned why
such workers should “be barred by the law from making this choice?” Mr. Ballenger
added: “The Owens amendment is premised on the argument that lower income
workers are inevitably at the mercy of their employers and so cannot make a free and
voluntary choice about compensatory time.” Representative Mink, in support of the
exclusion, argued that the Owens amendment was trying “to make it possible for the
low wage worker not to be put under this pressure of having to work overtime for no
compensation at all, for that promise of time off sometime in the future.” Mrs. Mink
argued: “There is absolutely nothing in H.R. 1 which gives the employee the choice,
the free choice, or the decision to take this time when they need it.” Meanwhile,
Representative Greenwood termed the Owens amendment “insulting, patronizing, and
discriminating” — a view generally concurred in by Representative Goodling.142 After
further debate, the Owens amendment was defeated by a vote of 182 ayes to 237
The Miller (Calif.) Amendment. A final amendment to H.R. 1 was offered by
Representative Miller of California. The Miller amendment provided a substitute for
H.R. 1, striking all after the enacting clause and inserting a wholly new text. Its
provisions were quite different from the Ballenger proposal. It set a limit of 80 hours
of comp time that could be earned through any 12 month period. It provided a
variety of technical internal safeguards, more specific reporting, a stronger explicit
139Congressional Record, March 19, 1997. p. H1140-H1141.
140Congressional Record, March 19, 1997. p. H1141.
141Congressional Record, March 19, 1997. p. H1141.
142Congressional Record, March 19, 1997. p. H1141-H1143.
143Congressional Record, March 19, 1997. p. H1144.
role for the Secretary of Labor, exemption of certain categories of workers (the
vulnerable and/or low paid, seasonal, etc.) from participation in the option, a sunset
requirement after 4 years, creation of a Commission on Workplace Flexibility charged
with assessing the impact of comp time, and other provisions.
The Miller amendment sparked another round of discussion about H.R. 1 and
what it would or would not do — and added to that a similar discussion of the
implications of the Miller amendment itself. The issues, however, pro and con,
remained largely the same. After some debate, the Miller amendment was defeated
on a vote of 193 ayes to 237 nays.144
On passage of the bill as amended, the vote was 222 ayes to 210 nays. The
measure, having been approved, was forwarded to the Senate and referred to the
Committee on Labor and Human Resources.145
The New Ashcroft Bill
On January 21, 1997, Senator Ashcroft introduced S. 4, the “Family Friendly146
Workplace Act.” The measure was referred to the Subcommittee on Employment
and Training chaired by Senator DeWine, a co-sponsor of the legislation. On
February 4 and 13, the Subcommittee conducted general oversight hearings on the
FLSA, focusing upon the Ashcroft proposal.
During committee consideration, a general technical amendment offered by
Senator DeWine was accepted.147 A series of amendments that would have altered
the substance of S. 4, offered by Democratic Senators, were rejected; the votes split
along party lines. On March 18, 1997, the Committee voted to report the legislation.
That vote was also along party lines: Democrats in opposition, Republicans in favor.
See Senate Report No. 105-11 (April 2, 1997).
Provisions of the Ashcroft Bill. S. 4 was comprehensive, covering areas not
dealt with in H.R. 1. It set forth several workhours options. And, in addition, the bill
dealt with certain other aspects of existing law.148
Compensatory Time Off. Like H.R. 1, S. 4 began by adding a new subsection
(r) to Section 7 of the FLSA. Its provisions were similar to those of H.R. 1,
establishing the same general options and requirements.
144Congressional Record, March 19, 1997. pp. H1154-H1155.
145Congressional Record, March 19, 1997. pp. H1155-H1156.
146Congressional Record, January 21, 1997. p. S158.
147The DeWine amendment altered the technical structure of the measure, providing a
more consistent application of standards and implementation requirements.
148The text of S. 4 appears in the Congressional Record, January 21, 1997. pp. S222-
Biweekly Work Programs. Under S. 4, an employer, at his/her initiative, would
have been allowed to establish a 2-week 80-hour work period during which, without
incurring an overtime penalty, an employer could schedule work in any manner: 2
weeks of 40 hours each, 60 hours in one week and 20 hours in the other, etc. The
employer would not have been required to pay overtime rates (time-and-a-half) until
80 hours had been worked in 2 calendar weeks. For hours worked in excess of 80 in
a 2-week period, a worker would have been compensated either in cash or in paid
comp time — each at not less than a time-and-a-half basis.
Flexible Credit Hour Program. An employer would have been to establish, at
his initiative (but in conformity with a collective bargaining agreement, where there
is a trade union presence), a “flexible credit hour program.” Once the program had
been established, the employee would then have been allowed to elect to participate.
Where a worker chose to participate in a “flexible credit hour program,” he and his
employer would then “jointly designate hours for the employee to work that are in
excess of the basic work requirement149 of the employee so that the employee can
accumulate flexible credit hours to reduce the hours worked in a week or a day
subsequent to the day on which the flexible credit hours are worked.”
Compensation for “flexible credit hours” would have been on a straight time
basis. An employee would not have been allowed to “accumulate” more than 50
flexible credit hours. And, when an employee “is no longer subject to such a
program,” he would have been paid for his accumulated credit hours (up to 50) at a
straight time rate. In any event, accumulated credit hours would have been cashed-
out “[n]ot later than” at the end of each 12-month period. This could have allowed
a worker a significantly increased measure of workhours flexibility. But, it arguably
could have been subject to abuse, particularly if, by prior mutual consent, overtime
hours were to have been renamed flexible credit hours and compensated for at a
straight time rate rather than at time-and-a-half.
The bill stated that no employee “may be required to participate” in the flexible
credit hour program and, as in the comp time section, employers “may not directly or
indirectly intimidate, threaten, or coerce” employees with respect to the credit hours
option. Where there was “a valid collective bargaining agreement,” an employee
“may only be required to participate in such a program in accordance with the
Since the flexible credit hours initiative broke new ground and, had it been
adopted, it would have made the option available in hundreds of thousands of very
different work situations, implementation issues would likely have arisen.
The employer would have been allowed to establish the credit hours program
and, under the provisions of the legislation, would seem to have been allowed to
establish its operational procedures. It would have been a program under which “the
employer and the employee jointly designate hours” to be worked for credit. In
149It appears that the “basic work requirement” (one’s pre-overtime work period) would
be 40 hours or, if participating in a biweekly work program, 80 hours; there would appear to
be no reason why it could not be the latter.
practice, might a designation (consent form) have been provided to a worker when
hired; or, would such designation have been a recurring procedure, being renewed
each time flexible credit hours were to be worked? In S. 4, as introduced, there had
been no requirement for a written agreement between the worker and his employer
with respect to credit hours; in the bill as reported, provision for a written “or
otherwise verifiable statement that is made, kept and preserved” had been added —
the result of the DeWine amendment in committee.
The definition of “jointly designate” could have been significant. It could,
potentially, mean different things depending upon the culture of specific workplaces.
Would such designation operate on an ad hoc basis each time a need arose with a
specific number of hours specified. Or, could a worker and his employer jointly
designate a willingness to have the employee work overtime hours (“flexible credit
hours”) at the discretion of the employer whenever business necessity might require
— such hours to be compensated for on a straight time basis?
Under the comp time proposal, it was provided that a worker or an employer
could terminate the program at will: at any time, when a worker requested it; with 30
days notice when terminated by an employer. While no comparable provision
appeared to apply to the credit hours program of S. 4 as introduced, the DeWine
committee amendment made clear that the two programs, in that respect, would have
been basically subject to the same standard. There was an annual cash-out
requirement for the credit hours program. It is not clear that monetary compensation
for banked hours would necessarily have been paid at any time before the close of a
12-month period — though credit hours, for leave purposes, would have been utilized
in accordance with the agreement between employer and employee. Were an
employee to withdraw from the program and request in writing the conversion of his
banked credit hours to payment in cash, the employer would have been obligated to
provide monetary compensatory to the employee within 30 days. Flexibility was the
expressed intent of the legislative package.
While credit hours were to be cashed-out “[n]ot later than” at the end of each
12-month period, there would appear to have been no restriction against a more
frequent cashing-out of credit hours should it suit the interests of the parties.150 Under
150By removing the overtime pay requirement for flexible credit hours, the arrangement
would seem to favor the employer by reducing employment costs. The employee might be
affected in several ways. Where a worker has a significant and continuing need for workhours
flexibility (where an employer may have no overtime work that would allow for accrual of
comp time), trading work and hours off on a one-for-one basis could be in the interest of the
worker, allowing the worker to deal with family responsibilities without sacrificing earnings.
But the system could also have problematic aspects. Even where opting for credit hours
might not seem to be in a worker’s immediate interest (i.e., where credit hours might become
a surrogate for regular overtime), circumstances might lead a worker to accept that
arrangement. First, the worker may not fully understand the terms of the option or the
alternatives — especially so were he a new labor market entrant or unschooled in labor-
management practice. Second, where there is a high level of competition for available
employment, a worker might agree to the designation of overtime hours as credit hours out of
the flexible credit hours option, a worker could move in and out of the program with
some regularity. Thus, for example, a worker could enter the credit hours program
at the beginning of each pay period (or at intermittent periods), accumulate up to 50
credit hours (actually, overtime hours) at straight time, and then leave the program.
If he were paid for his accrued credit hours at the close of each period of
participation, it appeared that he could reenter the program and begin accruing new
credit hours, continuing the process in cyclical fashion.
As S. 4 moved through the legislative process, most attention seemed to focus
upon the question of comp time whereas the flexible credit hours component of the
measure could have been, in practice, of equal significance. Especially in a small
establishment, with a collegial culture and in the absence of abuse, it could have
provided for worker flexibility and employer flexibility at the same time. But, the use
of flexible credit hours could have substantially expanded the traditional 40-hour
workweek (or 80-hour biweekly work period) and could have done so at a straight
time wage. An employer, with the employee’s consent, might effectively have
circumvented the overtime pay requirements of the FLSA, paying straight time
(flexible credit hours) for what previously were classified as overtime hours.
In the comp time legislation, both H.R. 1 and S. 4, it was provided that an
employee might accrue not more than 240 hours of compensatory time. While the
concept of “accrue” might mean that not more than 240 hours of comp time could be
earned during the course of a 12-month period, it could also be a ceiling or restraint
against there being more than 240 hours of comp time in a worker’s account at any
given moment.151 With respect to “flexible credit hours,” the term used in S. 4 was
“accumulate.” Since there appeared to be no prohibition against an employee
participating in more than one program at a time, it appeared that an employer (were
the employee to agree to it) could have scheduled an 80-hour biweekly work period
at straight time, adding to that credit hours at straight time, offer a comp time option
in addition — and then cash-out the accumulated hours. The result couldhave been
a rolling work period that could, in its effect, largely have abridged the overtime pay
requirements imposed by the FLSA. This issue might have been addressed in
If the 40-hour workweek still is considered to be a socially and economically
desirable norm, the use of comp time and flexible credit hours could cause a worker’s
annual work time far to exceed that standard.
Salary Practices Relating to Exempt Employees. As currently administered,
the pay of a salaried worker may not be diminished (docked) when he or she is absent
from work for a partial day. If such docking takes place, Senator Jeffords explained
fear of offending the employer: i.e., in order to secure or to retain employment. Third, it
appears that an employer could make overtime work available solely on a credit hour basis
so that, where a worker needed the income, he might view the straight time wage of credit
hours as better than no overtime work at all.
151The Department of Labor advises that the latter interpretation applies where state and
local governments are concerned under Section 7(o) of the Act.
in a statement supportive of S. 4, “all the salaried employees [of the firm or agency]
may lose their exempt status under the FLSA. Thus,” he stated, “a policy that allows
for a partial day of unpaid leave can convert an exempt worker to a nonexempt one
who is then owed overtime, even if the worker has a six-figure income and is
employed at the highest levels of the company.”152
This issue relates only to salaried/exempt workers.153 Since they are executive,
administrative, or professional, they may be called upon to work extra hours beyond
a fixed schedule to complete a project — or, if not called upon to do so, may simply
decide to do so because they are responsible and professional. When a salaried
employee works extra hours, the employer (public or private) accepts that as the
normal course for a salaried employee: the work must be completed. However,
should that same employee need a few hours away from his work at some point, his
employer may see no injustice in docking the worker’s pay.
But, there is an obvious question of equity involved. It is hard to argue in both
directions at the same time: i.e., that the employee is overtime pay exempt as salaried
when he works extra hours, but an hourly (and dockable) employee when he absents
himself for a brief period. On the other hand, some employers point out that salaried
workers are normally highly paid and have argued that they don’t need the protection
of the overtime pay requirements of the FLSA. The issue has been variously before
the courts for a number of years and legislation dealing with this matter has been
introduced in several Congresses.154
By adding to the FLSA a new Section 13(m), S. 4 would have redefined the
conditions for overtime pay exemption as salaried workers under Section 13(a)(1) of
the Act. S. 4 read:
... the fact that the employee is subject to deductions in compensation for —
(i) absences of the employee from employment of less than a full workday; or
(ii) absences of the employee from employment of less than a full pay period, shall not be
considered in making such determination [exempt status].
The bill added other clarifying language, apparently intended to meet current
objections and to eliminate the need for further litigation.
Committee Action on S. 4. Introduced on January 21, 1997, S. 4 was referred
to the Subcommittee on Employment and Training, chaired by Senator DeWine.155
Hearings on the bill were held on February 4 and on February 13. Full Committee
152Congressional Record, January 21, 1997. p. S225.
153Section 13(a)(1) of the FLSA exempts both from the minimum wage and overtime
pay provisions of the Act “any employee employed in a bona fide executive, administrative,
or professional capacity...”
154CRS Report 92-761, The Overtime Pay Exemption for Salaried Employees: The
Salary Basis Test Issue, by Charles Ciccone.
155A summary of the hearings appears in CRS Report 97-532, Federal Regulation of
mark-up followed. Senator DeWine proposed an amendment restructuring the
measure without, it would seem, altering its content. The DeWine amendment was
approved on a straight party-line vote: Republicans, in favor; Democrats, in
opposition. The Democrats then proposed seven amendments to the legislation, each
defeated on straight party-line votes.156 The Committee subsequently voted to report
S. 4. Once again, the vote followed party lines: Republicans, in support; Democrats,
In Senate Report No. 105-11, filed on April 2, 1997, opinion was sharply
divided. The Republican majority emphasized the need for workhours flexibility in
order to meet the needs of the workforce of the 1990s. “S. 4 provides men and
women working in the private sector the opportunity to voluntarily choose
compensatory time off in lieu of overtime pay, as well as to voluntarily participate in
biweekly and flexible credit hour programs,” the report commenced, adding: “This
legislation will enable Americans to participate in flexible work schedules so that theyst157
can better cope with the challenges of the 21 century.” The majority report noted
that “many of today’s work force view certain of the FLSA’s provisions as harmful
rather than helpful” and observed: “Flexible work schedules would give employees
more control over their lives by giving them a better tool to balance their family and158
An extended dissenting comment reviewed the various reservations that critics
of the comp time/flexible workhours legislation had voiced through two Congresses.
There is “[n]o real employee choice,” it argued, and “[n]o guarantee that comp time
will be voluntary”.159 Further, the minority statement contended that there was “[n]o
right to use comp time when employees need it.”160 It pointed to the flexibility of
current law, noting: “If employers want to provide family-friendly work schedules,
Working Hours: Consideration of the Issues, by William G. Whittaker. pp. 42-45 and 49-
156Amendments proposed by Democratic Senators, in brief, included language in the
following areas: to link the comp time legislation with the Family and Medical Leave Act; to
expand coverage of the Family and Medical Leave Act; to mandate unpaid leave for parental
involvement in their children’s school activities; “to exclude part-time, seasonal, and
temporary employees and to exempt employers in the garment business” from participation
in the S. 4 options; to prohibit discrimination in the assignment of overtime work where
employees prefer cash wages to comp time; and to deal with related concerns.
157U.S. Congress. Committee on Labor and Human Resources. Family Friendly
Workplace Act. Report together with Additional and Minority Views to Accompany S. 4.
Senate Report No. 105-11, 105th Cong., 1st Sess., Washington, U.S. Govt. Print. Off., 1997.
158Senate Report No. 105-11. p. 11.
159Senate Report No. 105-11. pp. 37 and 43.
160Senate Report No. 105-11. p. 45.
they can do so today.”161 It reviewed, item by item, the concerns that had been voiced
about the legislation, explained the rationale for the various amendments that
Democratic Senators had offered during mark-up, and urged that the Senate oppose
S. 4. Appended to the minority views was a letter from Acting Secretary of Labor
Cynthia A. Metzler addressed to Committee Chairman Jeffords, outlining the position
of the Clinton Administration and threatening a veto of S. 4, if passed, unless
substantially modified. “Any comp time legislation,” Acting Secretary Metzler
affirmed, “must effectively and satisfactorily address three fundamental principles:
real choice for employees; real protection against employee abuse; and preservation
of basic worker rights, including the 40-hour workweek.”162
Floor Action in the Senate. Senate floor debate on S. 4 commenced on May
1, 1997, continuing intermittently into June as other issues were called up. The
arguments, pro and con, largely followed those presented during hearings and, where
comp time was concerned, in the floor debates in the House.
Debating the Issues. Senator Jeffords, Chair of the full Committee, commenced
discussion of S. 4 by suggesting that there is a need for workplace flexibility, affirming
that the legislation would give “employees the opportunity to choose” paid time off
instead of “cash compensation for overtime” hours worked, and noting that
employees would be free “to work out more flexible schedules with their employers
if it suits their needs.” The Senator noted that the legislation had early “met with
opposition” which he suggested “stems from the political positions of big labor unions
rather than the needs of working men and women.” He dismissed concerns voiced
by opponents of S. 4 as “misplaced.” Although the legislation had been being
opposed by a number of women’s organizations (some of whom were represented at
the various hearings), Senator Jeffords viewed the measure as a woman’s issue, noting
the increased participation of women in the workforce during recent years. He
concluded that S. 4 represented “true flexibility for workers and not the heavy hand
of the employer.”163
161Senate Report No. 105-11. p. 40.
162Senate Report No. 105-11. pp. 55-56. Acting Secretary Metzler’s letter was dated
February 26, 1997.
163Congressional Record, May 1, 1997. p. S3881-S3882. During hearings in early
1997 by the House Subcommittee on Workforce Protections and the Senate Subcommittee on
Employment and Training, representatives of several women’s groups testified concerning the
various workhours bills. Among them, Karen Nussbaum, Director, Working Women’s
Department, AFL-CIO, testified against the workhours legislation, as did Helen Norton and
Donna Lenhoff, both of the Women’s Legal Defense Fund. Testifying in support of
workhours legislation was Diana Furchtgott-Roth, a member of the Independent Women’s
Forum. Their testimony is summarized in CRS Report 97-532, cited above. See also a letter
to Senator Lott, May 30, 1997, in opposition to S. 4, from the following organizations: 9 to
5: National Association of Working Women; American Nurses Association; Business and
Professional Women; National Council of Jewish Women; National Women’s Law Center;
and the Women’s Legal Defense Fund. The letter appears in the Congressional Record, June
2, 1997. p. S5164p
Conversely, Senator Kennedy argued that S. 4 was fatally flawed. “The bill,” he
noted, “eliminates the guarantee of pay for overtime work for 65 million employees”
and responds to an appeal from the National Federation of Independent Business that
“[s]mall businesses can’t afford to pay overtime.” Further, he argued, it would have
the effect of abolishing the 40-hour workweek as a national standard. “Employers
could require employees to work up to 80 hours in a week without receiving overtime
pay.” The bill, he contended, “provides no employee choice” since “[t]he employer
chooses who works overtime and when an employee can use comptime.” He pointed
to a potential for discrimination in that the “employer can assign all overtime work to
employees who will accept comptime instead of overtime pay.” Ultimately, he
observed, “the employer is free to deny the request” of an employee for use of
comptime. Worker choice, he suggested, is not the motivation behind the proposal.
“Instead, it is designed to help employers cut workers’ wages.”164
Senator Wellstone, pointing to the flexibility of current law, disputed the need
for comp time legislation. He stated:
Right now, employers can give their employees this flexibility if they so desire.
The problem is, a lot of employers do not do that. But it has nothing to do with
the basic principle of the 40-hour week, and the principle that if an employee
works overtime, he or she should get time and a half pay. This legislation
Senator Wellstone contended that “most people in the country will be opposed to it
[S. 4] when they learn all the provisions in the legislation.” And, he concluded, the
issue with S. 4 was neither choice nor flexibility: “...what really is at issue here is you
essentially overturn portions of the Fair Labor Standards Act, you overturn the 40-
Floor debate was sharply divided. Senator DeWine acknowledged that the issues
raised by critics of S. 4 “are going to be points of contention as this debate continues
over the next few weeks,” but he dismissed them as irrelevant to “the bill I thought
we passed out of committee.” Senator DeWine stressed comp time as a woman’s
issue. He emphasized worker choice, flexibility and the need to bring labor standardsst
laws into conformity with the world of work of the 21 century. Referring to existing
wage/hour legislation as “antiquated,” he affirmed: “This is what this bill does. It
sweeps away some of these old laws that prohibit workers from doing what they want
to do.” He argued that the measure “would reduce some of the stress on America’s166
working families by making the American workplace more family friendly.”
Senator Hutchison of Texas reiterated arguments in support of S. 4, concluding: “My
only surprise is that we did not update this antiquated labor law earlier.”167
164Congressional Record, May 1, 1997. pp. S3885-S3886.
165Congressional Record, May 1, 1997. pp. S3886-S3887.
166Congressional Record, May 1, 1997. p. S3887-S3888.
167Congressional Record, May 1, 1997. p. S3888. See also statements by Senator
Ashcroft, pp. S3882-S3885, and S3894-S3895.
Senator Ashcroft made a brief presentation concerning S. 4 on May 12;168 more
extended debate commenced on May 13. Supporters of the legislation, each day,
reaffirmed their commitment to family friendliness; those critical of the legislation did
also. “But,” Senator Kennedy stated, “the concern that many of us have is that it
really gives the whip hand, so to speak, to the employers...” He added: “...it does
appear to many of us that this is really a subterfuge to permit employers to avoid
paying overtime.” He recalled that amendments had been offered in Committee that
would have provided for worker choice but that the amendments were rejected “along
straight party lines.” The “real issue” with respect to comp time, the Senator
suggested, “is who is going to make the decision.”169
Senator Ashcroft presented a different perspective. He found it “outrageous”
that Congress, through wage/hour legislation, should have deprived “the private
sector, hourly workers” of this country of the right “to cooperate with your [their]
employer[s] to make decisions about time off and about flexible working170
arrangements.” And, he declared himself “stunned when those organizations, which
purport to be helping American workers, began running television ads against this
legislation.” “These ads are a lie,” Senator Ashcroft affirmed. “I think it is shameful
that the AFL-CIO would seek to impair the ability of hourly workers in this country
to have the benefit.” His constituents, he noted, “resented the fact that the labor
lobby in Washington had abandoned their traditional promoting of workers’
interests.”171 Once again, the Senator reviewed the provisions of the proposed
legislation, affirming that the interests of workers are adequately protected therein.
Recalling that salaried employees and public sector employees are able to avail
themselves of flexible work scheduling (where workers and employers concur), he
concluded: “Flexible working arrangements would make it possible for people to
meet the needs of their families without taking a pay cut.”172
The debate continued at length. Senator Harkin presented an analysis of what
he suggested was the need for increased worker safeguards in the legislation,
reviewing amending language proposed by Democratic Senators during Committee
mark-up and explaining the workplace implications of the various provisions of S.
168Congressional Record, May 12, 1997. pp. S4291-S4293.
169Congressional Record, May 13, 1997. p. S4335.
170Congressional Record, May 13, 1997. p. S4339.
171Congressional Record, May 13, 1997. pp. 39-40. Senator Ashcroft read into the
Record the text of one anti-S.4 ad. “‘Big business is moving to gut a law protecting our right
to overtime pay. If they win, employers could pay workers with time off instead of money.’”
He declared this language to be “simply false” and pointed out that the employer would not
have “a unilateral right” in scheduling workhours under S. 4; that “it takes a request by the
employee in order for that to happen.” As the debate progressed, Senator Wellstone took note
of the stated concern about the AFL-CIO ads. “This is the first time I heard what those ads
have to say,” he stated, reading their text into the record as the Senator from Missouri had
done. But Senator Wellstone reached a different conclusion: of the statement in the ads, he
declared, “That is true. That is absolutely true.” Ibid., p. S4345.
172Congressional Record, May 13, 1997. p. S4342.
4.173 Senator Harkin took note of Senator Ashcroft’s concern that certain interests
“are ganging up” to defeat S. 4. He read into the Record a list of organizations he
identified as opposed to measure, stating: “The fact remains, Mr. President, that
every group that represents low-income workers is opposed to this bill ... those who
understand what real life is about and who understand what these low-income
workers have to go through, they are opposed to this bill.” With respect to “the
bottom line,” he observed that “[T]his proposal before us appears to be neither
worker friendly nor family friendly, and the result of this enactment would require
employees to work longer hours for less pay.”174 Senator Harkin argued that S. 4 “is
another one of the very bad ideas that periodically come up through the Senate. It
sounds good. What’s it called? The Family Friendly Workplace Act? Ridiculous ...175
Nothing could be farther from the truth.”
Senator Wellstone suggested that two elements were essential for making the
legislation what its proponents have argued that it is: family friendly. “First, it must
be truly voluntary; second, employees must really get to use their accumulated
comptime when they want and need to use it.” S. 4, he stated, “fails both tests.”176
S. 4 as written is family-unfriendly. It is a thinly disguised effort to reduce pay
and to help employers avoid paying overtime. That is not just rhetoric. That is the
bill. I wonder how many families will consider this bill to represent a friendly
gesture when we strip it of its happy-face packaging and expose it for what it is:
an effort to reduce pay and to help employers avoid paying overtime?
He continued: “Plenty of employers do try to avoid paying overtime already under
current law. And far too many succeed...” With respect to S. 4, he concluded: “We
don’t need to provide encouragement to cut more pay and avoid paying more
Senator Cochran protested that “[t]oday’s work rules are too inflexible and this
legislation [S. 4] changes that to meet the needs of today’s working families.” He
urged support for “giving working families the opportunity to balance their work and
family obligations by supporting this legislation.”178 Senator Hutchison of Texas
concurred. With S. 4, she argued, “we are trying to bring our labor laws into the 21st
century to reflect the changing face of working America and to meet the growing
173Congressional Record, May 13, 1997. pp. S4342-S4344.
174Congressional Record, May 13, 1997. p. S4344. Senator Harkin identified the
following groups as being among those opposed to S. 4: The League of Women Voters,
American Association of University Women, National Council of Senior Citizens, the
NAACP, the National Council of La Raza, the Disability Rights Education and Defense Fund,
the Union of American Hebrew Congregations, the Southern Christian Leadership Conference,
and the National Council of Churches.
175Congressional Record, May 13, 1997. p. S4345.
176Congressional Record, May 13, 1997. p. S4347.
177Congressional Record, May 13, 1996. pp. S4347-S4348.
178Congressional Record, May 13, 1997. p. S4345.
demands of work and family.” Like other proponents of S. 4, she stressed its
potential impact for women. “We realize that two-thirds of the working women in
this country have school-age children, and that what they need most is a little relief
from the stress caused by being both the provider at work and the caretaker at
Concerning the issue of choice, Senator Hutchison illustrated both sides of the
issue. Pointing to the case of a working mother who would not be able to attend a
special school event “`because Federal law won’t allow me to do it,’” she affirmed
that this restraint would be changed by S. 4.180 But, under S. 4, Senator Hutchison
pointed out, workers would have no absolute right of choice with respect to
workhours flexibility. She observed:
...neither the employee or the employer has the ability to dictate whether the other
chooses to participate in a comptime or flextime option. Either side can say, “No
thank you.” If the employer says on Friday, “I need you to work 2 extra hours
today,” the employee then has the right to say, “That’s fine, and I will take that in
overtime pay,” or “That’s fine, and I would like to bank that at a time-and-a-half
rate to take later on as free time.” Likewise, if an employee goes to the employer
and says, “I would like to work 2 overtime hours this Friday and take those off
with pay next Monday,” the employer has the right to say, “I’m sorry, but it
doesn’t work into the schedule this week.”
Thus, under S. 4, the soccer mom unexpectedly confronted with the need to attend
a child’s Friday afternoon game (or to use a few banked hours for other purposes)
could have, potentially, an inflexible situation. Senator Hutchison emphasized that,
even under S. 4, the employee could not simply walk into an employer’s office and
demand the right to draw down comp time that afternoon, noting the qualification of
a “reasonable notice to the employer” and that an absence “does not unduly disrupt
the operations of the business.” She explained:
If the standard were otherwise, Mr. President, scant few employers would even
want to offer comptime or flextime, for fear that it might shut down their business
if too many employees left at some critical time.... For my colleagues on the other
side of the aisle to argue that employees should have the absolute, unfettered right
to take time off whenever they choose for other than serious health or family needs
is disingenuous. They know that doing so is unreasonable and would prevent
workers from having any flexibility because most employers would not be able to181
offer a comptime or flextime program.
179Congressional Record, May 13, 1997. p. S4348.
180Congressional Record, May 13, 1997. p. S4348.
181Congressional Record, May 13, 1997. pp. S4348-S4349. Later, as discussion of
employee choice continued, Senator Hutchison affirmed: “...of course the employer is running
the business. Many times it is the small business man or woman that has gone out and
borrowed the money, that works 80 hours a week trying to make it go, to contribute to our
economy. It is not easy being in business in America with all of the taxes and regulations and
litigation that a person in business must face. So, of course, they are running the operation.”
Congressional Record, May 15, 1997. p. S4508.
However necessary the “reasonable notice” and “does not unduly disrupt”
provisions may have been, some might argue that they would not necessarily have
helped the working mother in all situations: i.e., the freedom of a worker, on a Friday182
afternoon, to use comptime for an unexpected or unplanned-for event. Senator
Hutchison, however, was not especially concerned as to “whether the employer or the
employee have the upper hand legally speaking” but, rather, that they work together.
The only reason an employee would want to take comptime or flextime is so that
they can restore some measure of control and sanity to their workweek. The only
reason an employer would want to offer comptime or flextime is so that his or her
employees will be more engaged, fulfilled, and ultimately more productive at their
The Senator observed: “This bill truly will create millions of win-win arrangements
throughout this country, where both employer and employee walk away happy.”183
Altering the Reported Legislation. Debate on S. 4 would continue,
intermittently, into early June with arguments, pro and con, being reiterated:
sometimes, as ad hominem statements; on other occasions, by way of rebuttal to the
assertions of other speakers.184 Through the weeks during which the measure was
before the Senate, numerous refinements were proposed with respect to the
On May 13, at the close of the first full debate on S. 4, Senator DeWine rose to
explain certain modifications under a Committee substitute. Among them were the
following. First. The concept of union recognition was expanded to include “all
employees who are members of unions” and, thus, to allow them to secure flexibility
through their collective bargaining agreements. Second. Critics of the legislation had
suggested that certain groups of workers (e.g., part-time, seasonal, and temporary
workers, those in the garment industry, and those in certain other industries that the
Secretary of Labor might determine to be especially vulnerable to exploitation) should
be excluded from participation in the options of S. 4. Senator DeWine, in the
182“We hear, What if you want Friday off?,” Senator Kennedy observed. He then
proceeded to explain the various flexible options already a part of the FLSA, noting that,
according to BLS statistics, “... only 10 percent of hourly employees use the flexible
schedules.” And, he explained: “The current law offers a host of family friendly flexible
schedules today, yet ... few employers provide them.”
Senator Kennedy concluded: “A working mother may want a particular day off so that
she can accompany her child to a school event or a doctor’s appointment. Nothing in this
legislation requires the employer to give her the day off she requests. The employer decides
when it is convenient for her to use her accrued comptime. There is no freedom of choice for
workers.” Congressional Record, May 13, 1997. p. S4337-S4338.
183Congressional Record, May 13, 1997. p. S4349.
184See Congressional Record, May 15, 1997. P. S4508-S4515; May 16, 1997. pp.
S4628-S4633; S4645-S4647, S4649-S4652, S4656-S4657; May 19, 1997. P. S4665-S4667;
June 2, 1997. P. S5158-S5172; June 3, 1997. P. S5218-S5348, S5265-S5268; and June 4,
Committee substitute, now proposed a different solution: “...before an employee is
eligible for a flexible work option, or before an employer can offer a flexible work
option, the employee must work for the employer for 12 months and 1,250 hours
within 1 year — ensuring that a stable relationship exists between the employer and
the employee.”185 Third. Senator DeWine proposed strengthening of the penalty
structure with respect to the S. 4 options. Fourth. The substitute would “require the
Department of Labor to revise its Fair Labor Standards Act posting requirements so
employees are on notice of their rights and remedies under the biweekly and flextime
options as well as the comptime option.”186
In addition, numerous other potential amendments were filed. These dealt with
amendment of the Family and Medical Leave Act, the definition of “unduly disrupt,”
the treatment of accrued hours within the context of a bankruptcy proceeding,
application of flexible scheduling to the legislative branch under the Congressional
Accountability Act, the liability and penalty structure of the proposed legislation,
creation of a Commission on Workplace Flexibility, and more comprehensive
substitute language.187 A vote on these amendments, as on the legislation per se, was
blocked by parliamentary processes.
Voting on Cloture and the Immediate Aftermath. Debate on flexible
workhours legislation had been intermittent, other issues being called up so that only
a part of the Senate’s daily work schedule was devoted to the issue. On May 13, after188
just over 2 hours of debate on the issue, Senator Lott introduced a cloture motion,
providing for a vote to end debate.189 The first cloture vote was taken on May 15 and
failed; the vote was 53 for cloture and 47 against, an insufficient majority. Two
Republicans joined the Democrats in opposition to cloture.190
On June 2, Senator Lott again announced the filing of a cloture motion.191 While
Senator Hutchison charged that the legislation was “being filibustered on the other
side,” Senator Kennedy noted that the Senate had conducted “no more than 4 or 6192
hours of debate” on the issue. Recalling the first cloture vote, Senate Kennedy
185Some may view this requirement as safeguarding workers against exploitation, but
it would also add a further complication to be dealt with the DOL in its compliance effort,
together with additional recordkeeping and certification burdens.
186Congressional Record, May 13, 1997. pp. S4353-S4354.
187The number of potential amendments is extensive and they are technical in nature.
They can be found in the Congressional Record, however, beginning from May 13, 1997.
188Congressional Record, May 16, 1997. p. S4656. Senator Kennedy protested: “This
bill would fundamentally alter the Fair Labor Standards Act, a law that has been on the books
for almost 60 years. Three hours of debate simply is not enough time for adequate discussion
of changes in so basic a protection for the Nation’s workers.”
189Congressional Record, May 13, 1997. p. S4350.
190Congressional Record, May 15, 1997. p. S4514.
191Congressional Record, June 2, 1997. p. S5157.
192Congressional Record, June 2, 1997. p. S5161.
noted that it had failed “badly.”193 Two days later, June 4, the second cloture vote
was taken. Again, it failed to secure a sufficient majority. The vote was 51 yeas, 47
nays; three Republicans joined the Democrats in opposition.194
A post-mortem discussion of the legislation occurred on June 9, 1997. Senator
Thomas argued that the reluctance of the White House to endorse the legislation “was
largely as a result of the labor unions to which the White House is so sensitive.”
Recalling the experience of a Wyoming firm that had, for many years, sought to
circumvent the overtime pay requirements of the FLSA and citing various polls,
Senator Thomas concluded that concerns about S. 4 are “simply a political opposition
brought on by the opposition of the labor unions.”195
Senator Coverdell, affirming that alteration of the 40-hour workweek and the
overtime pay requirements of the FLSA were really in the interest of workers,
declared himself “absolutely baffled” by the opposition to the measure.196 “...I do not
understand why the Democrats and labor unions are standing in the way of bringing
choice and flexibility to the American workplace,” declared Senator Domenici. He
charged those opposing S. 4 with “misleading the people about this bill,” adding:
“The Democrats, and for some reason the labor unions, falsely claim that this bill will197
end the 40-hour workweek.”
After the second cloture vote on June 4, further consideration of S. 4 largely
ceased. The bill died at the close of the 105th Congress.
Related Initiatives of the 105th Congress. As discussion of workhours
legislation had evolved, there had been interest in adding language to expand the
Family and Medical Leave Act of 1993. As discussed above, such a linkage was
urged by President Clinton late in the 104th Congress.
Senator Dodd, on January 22, 1997, introduced S. 183.198 The Dodd bill would
have reduced the threshold for coverage under the Family and Medical Leave Act
from firms with 50 employees (as under current law) to include firms with as few as
25 employees. The bill was referred to the Committee on Labor and Human
Senator Murray, on February 5, 1997, introduced S. 280.199 The Murray bill, to
be cited as the “Time for Schools Act of 1997,” would have expanded expand the
Family and Medical Leave Act by adding:
193Congressional Record, June 2, 1997. p. S5162.
194Congressional Record, June 4, 1997. p. S5291.
195Congressional Record, June 9, 1997. pp. S5406-S5407.
196Congressional Record, June 9, 1997. pp. S5406 and S5408.
197Congressional Record, June 9, 1997. pp. S5408-S5409.
198Congressional Record, January 22, 1997. pp. S641-S642.
199Congressional Record, February 5, 1997. p. S1027.
... an eligible employee shall be entitled to a total of 24 hours of leave during any
12-month period to participate in an activity of a school of a son or daughter of the
employee, such as a parent-teacher conference or an interview for a school, of to
participate in literacy training under a family literacy program.
The bill, which was referred to the Committee on Labor and Human Resources,
defined the conditions under which such leave would have been be granted and the
types of activities that would have justified such leave.
In the House, Representative Clay proposed legislation (H.R. 109) to amend the
Family and Medical Leave Act. The Clay bill would have reduced the number of
employees that would trigger coverage under the Act to 25: coverage is now
required for firms with 50 employees or more. An eligible employee would have been
entitled to 24 hours of leave during any 12-month period (beyond current200
requirements of the Act) for certain education-related and eldercare purposes.
Through the years, employee perspectives toward hours of work have changed
—depending upon the experience of individual workers, general economic conditions,
and distance from the adverse conditions that obtained late in the 19th century and
through the Depression years. Some have pointed to positive developments in theth
area of labor standards and labor-management relations during the middle 20 century
and have suggested that it may be anachronistic for the rules governing the workplace
to be rooted in 1930s’ experience and enactments.201 Conversely, others believe that
the basic protections and safeguards provided by laws such as the Davis-Bacon and
Walsh-Healey Acts, the National Labor Relations Act and the Fair Labor Standards
Act are the bases of these post-Depression era workplace improvements and that,
without them, conditions would likely regress.
The Federal Employees’ Flexible and Compressed Work Schedules Act (1978)
was promoted and shaped by a generation not directly affected by labor conditions of
the late 19th and early 20th centuries. The constituency for flexible and compressed
work hours appears to have been younger and largely in the public sector. Among
organized workers within the trade union movement, there appears to have been a
difference of opinion: public employee unions, for the most part, coming to favor the
legislation; the more traditional private sector unions, expressing doubts and outright
opposition.202 Since its enactment, flexible and compressed scheduling in the federal
sector appears to have gained support elsewhere in the public sector as well as in the
200Congressional Record, January 9, 1997. p. H142.
201Congressional Record, August 7, 1995. p. S11788.
202To the extent that public and private sector trade unionists held different views with
respect to alternative work scheduling, this may have been in some measure a reflection of the
differing workplace cultures of the private and public sectors.
The alternative scheduling option may have eroded support for the traditional
40-hour workweek. Further erosion of the principle of federal workhours regulation
may have occurred with amendment of the Walsh-Healey Act and the CWHSSA in
the mid-1980s. With the 1985 FLSA amendments and establishment of a comp time
option for state and local government employment, the traditional approach to
working hours regulation was again altered.
Given the use of flexible and compressed scheduling in the public sector, it is
increasingly being considered as an option for the private sector. Some argue,
however, that public employment is different from private sector employment: in
terms of purposes, management, workplace culture, and public oversight and control.
It has also been argued that labor standards compliance activity could be substantially
more complicated were each employer free, in effect, to establish his own rules with
respect to overtime, deferral of income, comp time, etc. But, the precedent set in the
public sector (and the presentation of working hours deregulation as a step toward
a family friendly workplace), with the apparent popularity of alternative work
scheduling among public employees, may make it increasingly difficult to object to the
establishment of similar policies for private employment.
As Congress considers options for alternative workhours scheduling and comp
time for the private sector, a number of questions are likely to be raised. For example,
are alternative work schedules and modification of overtime pay standards in the
interest of workers? Or, are they an effort, effectively, to set aside the 40-hour
workweek and, thus, to nullify the overtime pay provisions of the FLSA? “I really
think this flexibility argument is about money,” suggested Maria Echaveste, then
administrator of DOL’s Wage and Hour Division, speaking generally about the issue.
“It’s about employers wanting to schedule people in such a way so as to minimize203
their overtime.” Senator Ashcroft presented the issue from a totally different
perspective. “Today, parents face severe time shortages attempting to fit all work and
family responsibilities into an inflexible and demanding workweek,” he observed,
adding that concerns voiced about a private sector comp time option “are nothing204
more than scare-mongering.”
Alternative work scheduling may not be an option for all employers, nor for all
workers. Questions remain as to whether the pending legislation would create a more
worker friendly workplace. Labor is concerned that the initiative “would hurt
working families” and that “the real beneficiaries” will be “employers who will get
more work for less money.”205 Others believe that this approach will assist in
establishing a more family friendly workplace and represents a new and more efficient
way of working: better for workers and better for employers as well.
203Bureau of National Affairs. Republican Lawmakers Weighing Proposals to Change
Overtime Law. Daily Labor Report, August 8, 1995. p. C1.
204Op-Ed column by Senator John Ashcroft, Relief for American Families, in The
Washington Times, May 6, 1996, p. A21.
205Say Good Bye to the 40-Hour Work Week and Overtime. AFL-CIO Legislative Fact
Sheet, November 28, 1995. p. 1.