Progressive Pragmatism: Working Harder for Less

Work sucks / I know.

The last decade has not exactly been a paradise for labor rights activists and the millions of working Americans they represent. Clinton and his Republican Greek chorus in Congress managed to do quite a bit of damage to American workers’ rights during their tenure. Whether relaxing trade barriers with foreign nations that employ prison or child labor, signing over America’s sovereign power to make its own trade decisions to a trans-national body that holds no accountability to voters in any of its member countries, or simply eliminating the welfare safety net while allowing the minimum wage to stagnate, the Clinton/Gingrich team sure knew how to have a good time off the sweat of the American worker.

But in spite of all their blissful success, there is one sacred cow that they did not dare to attack, a basic American right for which thousands of our forebears fought courageously, some giving up their families and reputations, some even giving up their lives. The Clinton/Gingrich consortium left the 40-hour work week alone.

Thank God the Republican majority in the 108th Congress is prepared to compensate for this flagrant omission!

HR 1119, the “Family Time Flexibility Act,” advances noble intentions but bases them on flimsy legalese. The core matter of the FTFA is adequate compensation for overtime, something at the heart of our nation’s legislation on labor issues since 1938. As current law stands, private employers are required to pay time-and-a-half for overtime hours, defined as any hours that go above and beyond forty in a given week. FTFA would give employers the option of offering time off instead as compensation for extra hours worked.

In and of itself, the idea of rewarding overworked employees with time off is not a bad one. We are among the most overworked people on the planet. Americans work an average of 350 more hours per year than our European friends, according to ABC News. We work 70 more hours per year than our nose-to-the-grindstone, no-nonsense Japanese competitors. We get less vacation time and suffer from more stress related illnesses.

It would seem that under these conditions, American workers would be in desperate need of the break that FTFA provides. Work a few more hours this week and then take next week off and actually get to see the kids, catch up on some reading — maybe even sit down for once.

Government employees have had a similar system in place for years. Many state and federal employees have reaped the benefits of trading their overtime pay for time away from the office. Indeed, the most cogent and persuasive argument that House Republicans have made for the bill is that they are trying to create an opportunity in the private sector that already exists in the public sector. If it were that simple, it would be just what Rep. Judy Biggert (R-Ill) who introduced the legislation has labeled it, “a no-brainer.”

The problem lies in the details, or lack thereof. The act specifies that employees must enter into a voluntary agreement with their employers in order to receive comp time rather than money. But the bill does not specify whether or not employees will continue to receive their regular salaries during their time away. By omission, that decision is left up to the employers.

Compensatory time off, like sick leave or vacation leave, is of no use if it does not come attached with the promise that there will be no break in salary. Simply having permission to stay home from work is not helpful to the American workforce, no matter how tired and stressed they may be. They still need to eat, even on the days they don’t come into the office.

Likewise, the bill does have language to ensure that workers receive payment for any comp time hours that they don’t use in the course of a given year. But again the bill turns over the decision making power to the employer, allowing the employer to determine what rate of pay can be expected for those hours, charging only that the rate be “not less than the regular rate received by such employee when the compensatory time was earned.” This clause could allow employers to skirt overtime pay entirely, empowering them to pay their employees an ordinary salary for extraordinary work.

Ms. Biggert insists that “this bill in no way affects the sanctity, the primacy, or the inviolability of the 40-hour work week.” However, a legally shrewd and nefarious employer could use this legislation to avoid paying extra for overtime hours. Equally possible is a scenario in which workers are asked to do 80 hours one week and then take the next week off for no pay.

Either way, the spirit and intent of the legal safeguards forged by the labor movement of the early 20th century — legislation which Ms. Biggert refers to as “archaic” — would be violated by FTFA. That is undoubtedly why the biggest supporters of this legislation have been chambers of commerce and other business lobbyists.

More disturbing than the ramifications of this bill is the lack of attention being paid to it. The media has afforded virtually no coverage to this matter, save for a few hearings aired on C-SPAN. It is much easier and perhaps more profitable to fixate on Martha Stewart as if she were Baroness Schraeder.

Then again, the media can’t take all of the blame. Advocacy groups have also been absent from the debate, save for the National Organization for Women, which issued a scathing, albeit oversimplified, indictment of the bill. This is despite the fact that there are some major organizations, like the AFL/CIO and other unions, who would suffer severe adversity were this legislation to pass as written.

Major American media in the United States, much like major party politics, is governed by the interests of large corporations which stand to gain from FTFA’s enactment. If advocacy groups do not bring light to these issues and put pressure on the media and the politicians to take action, it is likely that this bill will pass without the American public ever being invited into the debate. Workers won’t know about this legislation until they are blindsided by it.

Despite the severe consequences of this legislation, it is unlikely that Ms. Biggert and her House Republican colleagues are attempting the same kind of blatant attack on labor rights that we saw under Clinton/Gingrich. After all, the legislation does have a relatively positive goal: Increased flexibility for the American worker.

Nevertheless, the gaping loopholes in the legislation reveal all the usual sins associated with big money politics. All the good intentions in the world don’t erase the fact that American workers will be screwed by this.

The Democrats have been predictably silent about this legislation, presumably because they’re beholden to the same business lobbies that influenced the Republicans to write the bill so vaguely in the first place. But a few House Democrats, most notably progressive presidential candidate Dennis Kucinich (D-OH) and Minority Whip Steny Hoyer (D-MD), have raised their eyebrows in protest.

It is unlikely that these few would be able to defeat the bill once it reaches the floor for a vote. But they might be able to fix the measure before it leaves the House chambers. Kucinich, Hoyer, and others should offer amendments that cut out the loopholes, forcing employers to pay at least time and a half for unused comp hours and specifying that employees receive their normal pay checks during their time away.

The potential exists for this bill to be turned from a labor nightmare into a labor windfall. What remains to be seen is whether advocacy groups and House Democrats will be willing to take up the fight.

Update: HR 1119 never came up for a vote in the House, so the bill died.

Article © 2003 by Jonathan Ratican