U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

24–882 PDF 2017

H.R. 1180, WORKING FAMILIES 

FLEXIBILITY ACT OF 2017 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

HEARING HELD IN WASHINGTON, DC, APRIL 5, 2017 

Serial No. 115–13 

Printed for the use of the Committee on Education and the Workforce 

( 

Available via the World Wide Web: 

www.gpo.gov/fdsys/browse/committee.action?chamber=house&committee=education 

or 

Committee address: http://edworkforce.house.gov 

CEWDOCROOM with DISTILLER

(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

VIRGINIA FOXX, North Carolina, Chairwoman 

Joe Wilson, South Carolina 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn ‘‘GT’’ Thompson, Pennsylvania 

Tim Walberg, Michigan 

Brett Guthrie, Kentucky 

Todd Rokita, Indiana 

Lou Barletta, Pennsylvania 

Luke Messer, Indiana 

Bradley Byrne, Alabama 

David Brat, Virginia 

Glenn Grothman, Wisconsin 

Steve Russell, Oklahoma 

Elise Stefanik, New York 

Rick W. Allen, Georgia 

Jason Lewis, Minnesota 

Francis Rooney, Florida 

Paul Mitchell, Michigan 

Tom Garrett, Jr., Virginia 

Lloyd K. Smucker, Pennsylvania 

A. Drew Ferguson, IV, Georgia 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Ranking Member 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Joe Courtney, Connecticut 

Marcia L. Fudge, Ohio 

Jared Polis, Colorado 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Frederica S. Wilson, Florida 

Suzanne Bonamici, Oregon 

Mark Takano, California 

Alma S. Adams, North Carolina 

Mark DeSaulnier, California 

Donald Norcross, New Jersey 

Lisa Blunt Rochester, Delaware 

Raja Krishnamoorthi, Illinois 

Carol Shea-Porter, New Hampshire 

Adriano Espaillat, New York 

Brandon Renz, Staff Director 

Denise Forte, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

BRADLEY BYRNE, Alabama, Chairman 

Joe Wilson, South Carolina 

Duncan Hunter, California 

David Brat, Virginia 

Glenn Grothman, Wisconsin 

Elise Stefanik, New York 

Francis Rooney, Florida 

A. Drew Ferguson, IV, Georgia 

Mark Takano, California, 

Ranking Member 

Rau ́l M. Grijalva, Arizona 

Alma S. Adams, North Carolina 

Mark DeSaulnier, California 

Donald Norcross, New Jersey 

Raja Krishnamoorthi, Illinois 

Carol Shea-Porter, New Hampshire 

CEWDOCROOM with DISTILLER

(III) 

C O N T E N T S 

Page 

Hearing held on April 5, 2017 ................................................................................ 1 

Statement of Members: 

Byrne, Hon. Bradley, Chairman, Subcommittee on Workforce Protections 1 

Prepared statement of ............................................................................... 3 

Takano, Hon. Mark, Ranking Member, Subcommittee on Workforce Protections ........................................................................................................... 4 

Prepared statement of ............................................................................... 6 

Statement of Witnesses: 

Christ, Ms. Leslie-Jo, Chief Resource Officer, WellStone Behavioral 

Health, Huntsville, AL ................................................................................. 8 

Prepared statement of ............................................................................... 10 

Court, Mr. Leonard, Director, Crowe and Dunlevy, Oklahoma, City, OK ... 47 

Prepared statement of ............................................................................... 49 

Frey, Ms. Crystal, Vice President of Human Resources, Continental Realty Corporation, Baltimore, MD .................................................................... 17 

Prepared statement of ............................................................................... 20 

Shabo, Ms. Victoria S., National Partnership for Women and Families, 

Washington, DC ............................................................................................ 29 

Prepared statement of ............................................................................... 31 

Additional Submissions: 

Chairman Byrne: 

Letter dated April 5, 2017, from College and University Professional 

Association for Human Resources (cupa-hr) ........................................ 76 

Letter dated April 5, 2017, from Retail Industry Leaders Association 

(RILA) ..................................................................................................... 77 

Foxx, Hon. Virginia, a Representative in Congress from the State of 

North Carolina, question submitted for the record .................................... 94 

Scott, Hon. Robert C. ‘‘Bobby’’, a Representative in Congress from the 

State of Virginia: 

Letter dated April 4, 2017, from American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME) ........................... 79 

Letter dated May 6, 2013, from National Organizations ....................... 81 

Mr. Takano: 

Report from the Economic Policy Institute entitled ‘‘False choice for 

workers–Flexibility or overtime pay’’ ................................................... 89 

Ms. Shabo’s response to question submitted for the record .......................... 96 

CEWDOCROOM with DISTILLER

CEWDOCROOM with DISTILLER

(1) 

H.R. 1180, WORKING FAMILIES FLEXIBILITY 

ACT OF 2017 

Wednesday, April 5, 2017 

U.S. House of Representatives 

Committee on Education and the Workforce 

Subcommittee on Workforce Protections 

Washington, D.C. 

The subcommittee met, pursuant to call, at 10:00 a.m., in Room 

2175, Rayburn House Office Building, Hon. Bradley Byrne [chairman of the subcommittee] presiding. 

Present: Representatives Byrne, Grothman, Stefanik, Ferguson, 

Takano, DeSaulnier, Norcross, and Shea-Porter. 

Also Present: Representatives Foxx, Scott, and Bonamici. 

Staff Present: Bethany Aronhalt, Press Secretary; Andrew 

Banducci, Workforce Policy Counsel; Ed Gilroy, Director of Workforce Policy; Jessica Goodman, Legislative Assistant; Callie Harman, Legislative Assistant; Nancy Locke, Chief Clerk; John Martin, Professional Staff Member; Dominique McKay, Deputy Press 

Secretary; James Mullen, Director of Information Technology; 

Krisann Pearce, General Counsel; Lauren Reddington, Deputy 

Press Secretary; Molly McLaughlin Salmi, Deputy Director of 

Workforce Policy; Alissa Strawcutter, Deputy Clerk; Olivia Voslow, 

Staff Assistant; Joseph Wheeler, Professional Staff Member; 

Tylease Alli, Minority Clerk/Intern and Fellow Coordinator; Denise 

Forte, Minority Staff Director; Christine Godinez, Minority Staff 

Assistant; Eunice Ikene, Minority Labor Policy Advisor; Stephanie 

Lalle, Minority Press Assistant; Kevin McDermott, Minority Senior 

Labor Policy Advisor; Richard Miller, Minority Labor Policy Advisor; Veronique Pluviose, Minority General Counsel; and Elizabeth 

Watson, Minority Director of Labor Policy. 

Chairman BYRNE. Good morning, everyone. A quorum being 

present, the subcommittee will come to order. 

I would like to begin by welcoming our witnesses. Some of you 

have traveled from across the country, including one from my home 

State of Alabama, to be here today. Welcome, and thank you for 

joining us. 

As I said at our first subcommittee hearing of the 115th Congress, the rules and regulations surrounding the Fair Labor Standards Act are simply outdated. We live in the twenty-first century, 

yet many of the rules governing America’s workplaces were designed by those who lived during the Great Depression. 

CEWDOCROOM with DISTILLER

2 

It goes without saying that a lot has changed since then. 

Millennials now represent the majority of the workforce. Hard for 

me to believe, but that is true. In nearly half of two-parent households, both mom and dad work full time. That is up from roughly 

30 percent in 1970. Meanwhile, technological advances continue to 

rapidly change the very nature of how we work and stay connected 

to work. 

As a result, men and women today face a different set of challenges when it comes to balancing demands of their professional 

lives and their personal lives. There simply are not enough hours 

in the day. I hear that a lot from people. It is something I hear 

so often as I talk to neighbors and families in my district. 

As our colleague, Representative Martha Roby, once put it, ‘‘We 

cannot legislate another hour in the day.’’ That is true, but we can 

do our part to ensure the Federal Government is not making life 

more difficult for workers and their families. 

That is why Representative Roby introduced the Working Families Flexibility Act, this commonsense proposal, would improve the 

quality of life of many hardworking men and women by removing 

outdated Federal restrictions imposed solely on the private sector. 

You see, for decades, public sector employers have been able to 

offer workers the choice between paid time off and cash wages for 

working overtime. That is because in 1985, Congress amended the 

Fair Labor Standards Act to give public sector employees greater 

flexibility. 

In fact, in a report filed by this very committee more than 30 

years ago, our Democrat colleagues wrote that this change in law 

recognized the ‘‘mutual benefits’’ of comp time for State and local 

governments and their employees. The Democrat Committee report 

even refers to the ‘‘freedom and flexibility’’ comp time would offer 

public sector workers. 

But under Federal law, it is still illegal to extend the same benefits to private sector employees who are eligible for overtime pay. 

This is not right and it is not fair. Private sector workers should 

be afforded the same freedom to do what is best for themselves and 

their families. 

For many Americans working paycheck to paycheck, earning 

some additional income is the choice that is best for them, but the 

Federal Government should not assume that is the best choice for 

everyone. 

Many individuals would welcome the opportunity to put in a few 

extra hours if it meant having more paid time off to catch a child’s 

baseball game or dance recital. Others are in desperate need of 

greater flexibility to care for an aging relative, juggle work and 

parenting while a spouse is deployed overseas, or complete another 

semester of college while working full-time, something Mr. Takano 

and I have talked a lot about, helping people that are trying to go 

back to school. 

Every worker has a different story, but they all deserve the 

choice between more time and more money in the bank. They all 

deserve to choose the best option that meets their personal needs. 

Unfortunately, union leaders and special interest groups have 

tried desperately over the years to deny workers the freedom to 

make their choice. They have used no shortage of false and misCEWDOCROOM with DISTILLER

3 

leading rhetoric in the process, so allow me to briefly explain what 

this bill actually does. 

This bill preserves the 40-hour work week and existing overtime 

protections. I will say it again. This bill preserves the 40-hour work 

week and existing overtime protections. For workers who elect to 

receive paid time off, for workers who elect to receive paid time off, 

their leave would accrue at the same rate, time-and-a-half, as 

wages. 

The bill includes strong protections to ensure the use of comp 

time is completely voluntary. Workers can switch back to receiving 

cash wages whenever they choose, and they are allowed to cash out 

their comp time for any reason at any time. 

Additionally, it is up to the employee to decide when to use his 

or her time off, so long as reasonable notice is provided and the request is not overly disruptive. This is the same commonsense 

standard that exists in the public sector, and I suspect it is the 

same standard that is applied in most of our congressional offices. 

This bill also includes important protections to prevent employers from intimidating or coercing employees into receiving paid 

leave in lieu of cash wages, and the Department of Labor would 

have full authority to enforce those protections. 

This legislation is ultimately about freedom, choice, and fairness. 

An antiquated Federal law should not limit the ability of private 

sector employees to better balance work and family. 

Democrats and Republicans came together more than 30 years 

ago to amend the law to provide more choices for public sector 

workers, and it is time we did the same thing for workers in the 

private sector. 

This is not a new or radical idea either. In fact, President Bill 

Clinton had his own comp time proposal during his presidency. 

I want to thank Representative Roby for leading this effort. Improving workplace flexibility is one step we can take to make a 

positive difference in the lives of American families, and it does not 

require another government program, another Federal mandate, or 

onerous regulations that burden small businesses. That is why I 

support the Working Families Flexibility Act, and I urge all of my 

colleagues to do the same. 

I look forward to our discussion today, and I will now yield to the 

ranking member, Mr. Takano, for his opening remarks. 

[The statement of Chairman Byrne follows:] 

Prepared Statement of Hon. Bradley Byrne, Chairman, Subcommittee on 

Workforce Protections 

Good morning everyone. I’d like to begin by welcoming our witnesses. Some of you 

have traveled across the country—including from my home state of Alabama—to be 

here today. Welcome, and thank you for joining us. 

As I said at our first subcommittee hearing of the 115th Congress, ‘‘the rules and 

regulations surrounding the Fair Labor Standards Act are simply outdated.’’ We live 

in the 21st century, yet many of the rules governing America’s workplaces were designed by those who lived during the Great Depression. 

It goes without saying that a lot has changed since then. Millennials now represent the majority of the workforce. In nearly half of two-parent households, both 

mom and dad work full time. That’s up from roughly 30 percent in 1970. Meanwhile, technological advances continue to rapidly change the very nature of how we 

work and stay connected to work. 

As a result, men and women today face a different set of challenges when it comes 

to balancing the demands of their professional lives and personal lives. ‘‘There simCEWDOCROOM with DISTILLER

4 

ply aren’t enough hours in the day.’’ It’s something I hear often as I talk to neighbors and families in my district. As our colleague, Representative Martha Roby, once 

put it, ‘‘We can’t legislate another hour in the day.’’ That’s true, but we can do our 

part to ensure the federal government isn’t making life more difficult for workers 

and their families. 

That’s why Representative Roby introduced the Working Families Flexibility Act. 

This commonsense proposal would improve the quality of life of many hardworking 

men and women by removing outdated federal restrictions imposed solely on the private sector. 

For decades, public-sector employers have been able to offer workers the choice 

between paid time off and cash wages for working overtime. That’s because in 1985, 

Congress amended the Fair Labor Standards Act to give public-sector employees 

greater flexibility. In fact, in a report filed by this very committee more than 30 

years ago, our Democrat colleagues wrote that this change in the law recognized the 

‘‘mutual benefits’’ of comp time for state and local governments and their employees. 

The Democrat committee report even refers to the ‘‘freedom and flexibility’’ comp 

time would offer public-sector workers. 

But under federal law, it is still illegal to extend the same benefits to privatesector employees who are eligible for overtime pay. This isn’t right, and it isn’t fair. 

Private-sector workers should be afforded the same freedom to do what’s best for 

themselves and their families. For many Americans working paycheck to paycheck, 

earning some additional income is the choice that’s best for them. But the federal 

government shouldn’t assume that’s the best choice for everyone. 

Many individuals would welcome the opportunity to put in a few extra hours, if 

it meant having more paid time off to catch a child’s baseball game or dance recital. 

Others are in desperate need of greater flexibility to care for an aging relative, juggle work and parenting while a spouse is deployed overseas, or complete another 

semester of college while working full-time. 

Every worker has a different story. But they all deserve the choice between more 

time and more money in the bank. They all deserve to choose the best option that 

meets their personal needs. 

Unfortunately, union leaders and special interest groups have tried desperately 

over the years to deny workers the freedom to make that choice. They’ve used no 

shortage of false and misleading rhetoric in the process, so allow me to briefly explain what this bill actually does. 

This bill preserves the 40-hour work week and existing overtime protections. For 

workers who elect to receive paid time off, their leave would accrue at the same 

rate—time-and-a-half—as wages. 

The bill includes strong protections to ensure the use of comp time is completely 

voluntary. Workers can switch back to receiving cash wages whenever they choose, 

and they are allowed to cash out their comp time for any reason at any time. 

Additionally, it is up to the employee to decide when to use his or her time off, 

so long as reasonable notice is provided and the request is not overly disruptive. 

This is the same commonsense standard that exists in the public sector, and I suspect it’s the same standard that is applied in most of our congressional offices. 

This bill also includes important protections to prevent employers from intimidating or coercing employees into receiving paid leave in lieu of cash wages, and 

the Department of Labor would have full authority to enforce those protections. 

This legislation is ultimately about freedom, choice, and fairness. An antiquated 

federal law shouldn’t limit the ability of private-sector employees to better balance 

work and family. Democrats and Republicans came together more than 30 years ago 

to amend the law to provide more choices for public-sector workers, and it’s time 

we did the same for workers in the private sector. This isn’t a new or radical idea 

either. In fact, President Bill Clinton had his own comp time proposal during his 

presidency. 

I want to thank Representative Roby for leading this effort. Improving workplace 

flexibility is one step we can take to make a positive difference in the lives of American families—and it doesn’t require another government program, a federal mandate, or onerous regulations that burden small businesses. That is why I support 

the Working Families Flexibility Act, and I urge all of my colleagues to do the same. 

I look forward to our discussion today, and I will now yield to Ranking Member 

Takano for his opening remarks. 

Mr. TAKANO. Well, thank you, Chairman Byrne. With all due respect, H.R. 1180 needs to be renamed ‘‘The Betrayal of Working 

Families Act.’’ It creates new rights for employers to withhold 

CEWDOCROOM with DISTILLER

5 

workers’ hard-earned overtime pay, but really no new rights for 

employees. 

Right now, an employee who takes time off from work can use 

her overtime pay to cover her expenses while she is out. She can 

put her overtime pay in the bank where it will earn interest, and 

take time off from work later, using that paycheck plus the interest 

to cover her expenses. It is that simple. Nothing is as fungible or 

as convenient as cash. 

The Betrayal of Working Families Act makes things much more 

complicated. If instead of getting overtime pay, she accepts her employer’s offer of comp time, she will not get a paycheck for her overtime. She will get an IOU. Many workers will feel compelled to accept comp time given the power differential between nonunion employees and their employers. 

By accepting comp time, she would forfeit her overtime pay and 

the interest she would have earned if she put that paycheck in the 

bank. Instead of paying her for the overtime when she earned it, 

at some point in the future, which could be more than a year later, 

her employer may let her take comp time, returning her withheld 

wages, minus any interest the employer earned while holding on to 

her paycheck. 

She has essentially given her employer an interest-free loan repayable only when the employer decides it is convenient, not when 

she needs the money or the time off from work. 

I have a slide here that shows how this could play out across a 

company. Now ACME Inc., a hypothetical company, could get 160 

free comp time hours from each of its 200,000 FLSA-covered employees at $7.25 an hour from each employee. That is $232 million 

ACME Inc. would not have to pay to its workers for about a year 

after they earned it. To get an equivalent loan from a bank, ACME 

Inc. would have to pay roughly 6 percent interest. ACME Inc. saves 

$14 million by relying on comp time to take out an interest-free 

loan from its employees instead. 

As this example illustrates, the Betrayal of Working Families Act 

is simply another attempt by congressional Republicans to give 

every advantage to corporations and special interests, and take, 

take, take from families who have the least to spare. 

Since January, President Trump and congressional Republicans 

have broken promise after promise to working people. President 

Trump said in his inaugural address, ‘‘To all Americans, in every 

city near and far, small and large, from mountain to mountain and 

from ocean to ocean, hear these words: you will never be ignored 

again. Your voice, your hopes, and your dreams will define our 

American destiny.’’ 

This could not be further from the truth. The majority’s plan to 

repeal the ACA has threatened 24 million Americans’ access to 

healthcare. Their attack on rules to protect retirement security has 

undercut millions of Americans’ ability to save for old age, and they 

fought the overtime rule which would give millions of hardworking 

Americans a raise. Up next, President Trump wants tax breaks for 

the wealthy and to gut programs like workforce training that 

would help people get good-paying jobs. 

CEWDOCROOM with DISTILLER

6 

Instead of rigging the economy in favor of the rich and powerful, 

it is time to rewrite the rules to make the economy work for everyday Americans. 

Hardworking Americans made our Nation’s productivity rise by 

more than 70 percent over the past four decades. Yet, it is CEOs’ 

pay that has risen by nearly 1,000 percent during that same period 

while workers’ wages barely grow. Special interests do not need 

more leverage and power. It is hardworking Americans’ turn to finally get a break. 

Instead of bringing up legislation that diminishes people’s ability 

to provide for and to care for their families, this Committee should 

bring up legislation that strengthens the Fair Labor Standards Act 

by raising the minimum wage, restoring the overtime salary 

threshold, ensuring equal pay, providing truly flexible and predictable schedules and paid leave, as well as strengthening workers’ 

ability to bargain for a better life. These solutions are clear and, 

unfortunately, H.R. 1180 is not among them. 

Thank you. I yield back, Mr. Chairman. 

[The statement of Mr. Takano follows:] 

Prepared Statement of Hon. Mark Takano, Ranking Member, Subcommittee 

on Workforce Protections 

Thank you, Chairman Byrne. H.R. 1180 should be renamed the Betrayal of Working Families Act. It creates new rights for employers to withhold workers’ hardearned overtime pay, but no new rights for employees. 

Right now, an employee who takes time off from work can use her overtime pay 

to cover her expenses while she’s out. She can put her overtime pay in the bank 

where it will earn interest, and take time off from work later—using that paycheck, 

plus the interest to cover her expenses. 

It’s that simple. Nothing is as fungible or as convenient as cash. 

The Betrayal of Working Families Act makes things much more complicated. If, 

instead of getting overtime pay, she accepts her employer’s offer of comp time – she 

won’t get a paycheck for her overtime, she’ll get an IOU. And many workers will 

feel compelled to accept comp time, given the power differential between non-union 

employees and their employers. 

By accepting comp time, she would forfeit her overtime pay and the interest she 

would have earned if she put that paycheck in the bank. Instead of paying her for 

the overtime when she earned it, at some point in the future—which could be more 

than a year later, her employer may let her take comp time, returning her withheld 

wages—minus any interest the employer earned while holding onto her paycheck. 

She has essentially given her employer an interest-free loan repayable only when 

the employer decides it’s convenient–not when she needs the money or the time off 

from work. 

I have a slide here that shows how this could play out across a company. 

ACME Inc., a hypothetical company, could get 160 free comp time hours from 

each of its 200,000 FLSA-covered employees at $7.25 an hour from each employee. 

That’s $232 million dollars ACME, Inc. wouldn’t have to pay to its workers for 

about a year after they earned it. To get an equivalent loan from a bank, ACME, 

Inc. would have to pay roughly 6% interest. 

ACME, Inc. saves $14 million dollars by relying on comp time to take out an interest-free loan from its employees instead. 

As this example illustrates, the Betrayal of Working Families Act is simply another attempt by Congressional Republicans to give every advantage to corporations 

and special interests, and take, take, take from families who have the least to spare. 

Since January, President Trump and congressional Republicans have broken 

promise after promise to working people. President Trump said in his inaugural address: ‘‘to all Americans, in every city near and far, small and large, from mountain 

to mountain, and from ocean to ocean, hear these words: You will never be ignored 

again. Your voice, your hopes, and your dreams will define our American destiny.’’ 

This could not be farther from the truth. The Majority’s plan to repeal the ACA 

has threatened 24 million Americans’ access to health care, their attack on rules to 

protect retirement security has undercut millions of Americans’ ability to save for 

CEWDOCROOM with DISTILLER

7 

old age, and they’ve fought the overtime rule which would give millions of hardworking Americans a raise. Up next, President Trump wants tax breaks for the 

wealthy and to gut programs like workforce training that would help people get 

good-paying jobs. 

Instead of rigging the economy in favor of the rich and powerful, it’s time to rewrite the rules to make the economy work for everyday Americans. 

Hardworking Americans made our nation’s productivity rise by more than 70 percent over the past four decades. And yet it is CEOs’ pay that has risen by nearly 

1000 percent during that same period, while workers’ wages barely grow. 

Special interests don’t need more leverage and power—it’s hardworking Americans’ turn to finally get a break. 

Instead of bringing up legislation that diminishes people’s ability to provide for 

and care for their families, this committee should bring up legislation that strengthens the Fair Labor Standards Act by raising the minimum wage, restoring the overtime salary threshold, ensuring equal pay, providing truly flexible and predictable 

schedules and paid leave, as well as strengthening workers’ ability to bargain for 

a better life. The solutions are very clear—and H.R. 1180 is not among them. 

Chairman BYRNE. Thank you, Mr. Takano. Pursuant to Committee Rule 7(c), all subcommittee members will be permitted to 

submit written statements to be included in the permanent hearing 

record, and without objection, the hearing record will remain open 

for 14 days to allow statements, questions for the record, and other 

extraneous material referenced during the hearing to be submitted 

in the official hearing record. 

It is now my pleasure to introduce today’s witnesses. Ms. LeslieJo Boyd Christ serves as chief resource officer at WellStone Behavioral Health in Huntsville, Alabama. 

Ms. Crystal Frey is vice president of human resources at Continental Realty Corporation, Baltimore, Maryland, and is testifying 

on behalf of the Society for Human Resource Management, or 

SHRM. 

Ms. Vicki Shabo is vice president at the National Partnership for 

Women & Families here in Washington, D.C. 

Mr. Leonard Court is a director at Crowe & Dunlevy in Oklahoma City, Oklahoma, and is testifying on behalf of the U.S. 

Chamber of Commerce. 

I will now ask our witnesses to raise your right hand. 

[Witnesses sworn.] 

Chairman BYRNE. Let the record reflect the witnesses answered 

in the affirmative. Before I recognize you to provide your testimony, let me explain our lighting system. 

You each will have five minutes to present your testimony. When 

you begin, the light in front of you will turn green. When one 

minute is left, the light will turn yellow. When your time has expired, the light will turn red. At that point, I will ask you to wrap 

up your remarks as best as you are able. After you have testified, 

members will each have five minutes to ask questions. 

I am not real heavy with the gavel, so I am not going to right 

at five minutes just whack you right down. That is the time to really kind of wrap it up. If you would, please, try to keep as close to 

that as you can. Are we clear on that? Okay. 

Let’s start with our first witness. That will be you, Ms. Christ. 

CEWDOCROOM with DISTILLER

8 

TESTIMONY OF LESLIE–JO BOYD CHRIST, CHIEF RESOURCE 

OFFICER, WELLSTONE BEHAVIORAL HEALTH, HUNTSVILLE, 

ALABAMA 

Ms. CHRIST. Chairman Byrne, Ranking Member Takano, and 

members of the Committee, it’s an honor to be here with you today 

to discuss comp time. 

I serve as the chief resource officer at WellStone Behavioral 

Health, a public nonprofit community mental health center in 

Huntsville, Alabama, where I have worked for the past 18 years. 

Prior to my H.R. career, I proudly served our country for 24 years, 

including service in Operation Iraqi Freedom. 

At WellStone, we strive to restore hope and healthy living to our 

clients. To fulfill this mission, our 300 employees provide services 

to patients with serious emotional disturbances and mental illnesses. In 2016, our dedicated employees served 9,000 clients, logging nearly 200,000 service hours. 

As a healthcare facility, we’re not only dedicated to patient care, 

but we’re also committed to the wellbeing of our employees. We 

offer many programs and benefits, including generous paid leave 

and flexible work options, to support our employees’ diverse work/ 

life needs. 

Our benefits, which are outlined in greater detail in my written 

statement, have helped us achieve several awards and are critical 

to our employee and family friendly culture. 

Mr. Chairman, because our employees provide critical mental 

health services to members of the community during times of crisis, 

I personally work with many employees to address their own specific work/life needs, which is why I’m here today. 

I believe many of my employees would benefit from having the 

choice of comp time, especially since 63 percent of our workforce 

are nonexempt, and women account for 72 percent of our total 

workforce. 

Allow me to give you three recent examples of where I believe 

comp time would have been helpful to WellStone employees. 

Just after starting at WellStone, one of our clerical staff members learned she was pregnant, but not yet eligible for paid leave 

under our short-term disability plan. While working on a major 

project, she incurred significant overtime, and asked if we could 

just waive the overtime and credit her that time, so she could take 

off and receive pay during her maternity leave. It was difficult telling this single mom-to-be that this arrangement was not an option 

under the current law. 

My son, he’s an on-call WellStone employee in our acute care setting, and he often earns overtime pay. Like any other 18-year-old 

living at home, he tends to spend his overtime pay when he earns 

it, but if he were allowed to choose comp time, he’s told me he 

would rather take the comp time to have a leave savings plan, 

where he could build a bank of leave, and if he needed to use the 

leave, he could use it or he could get a lump sum pay out at the 

end of the year. 

Many employees work side by side with the Huntsville Police Department at my organization, who you know benefit from receiving 

overtime pay or comp time. It is not uncommon for the officers to 

discuss their comp time arrangements with my employees, who 

CEWDOCROOM with DISTILLER

9 

then come to me on a regular basis asking why we don’t offer comp 

time as an option for staff members. 

These employees believe it’s WellStone denying them of this option, until I explain it’s the Federal law, the Fair Labor Standards 

Act, to be exact, that prohibits comp time for the private sector, yet 

allows it for the public sector. 

Mr. Chairman, these are just a few examples that demonstrate 

WellStone’s interest in comp time. There have been many others, 

and I expect there will be more in the future, as our employees 

seek choices in navigating their work/life obligations. 

That’s why I strongly support H.R. 1180, the Working Families 

Flexibility Act, introduced by my home State Representative, Martha Roby. This bill would give both employers and employees 

choices. 

Under the legislation, employers decide whether they even offer 

the comp time arrangement, and if an employer does offer it, each 

employee can decide whether to participate in the comp time program, and we know comp time works. After all, it’s been a success 

in the public sector for decades. 

Updating FLSA to give all employers and employees this option, 

to me, frankly, is a no-brainer. After all, Mr. Chairman, employers 

like WellStone are always looking for ways to assist employees in 

their work/life needs, to drive recruitment, retention, and engagement. 

Since no two workplaces are the same, it is important for employers to have many opportunities and options as possible to support the needs unique to their workforce and their employees. 

Therefore, I hope Congress will advance this reasonable legislation, and I thank you for this opportunity, and I’m happy to answer 

any questions you might have. 

[The statement of Ms. Christ follows:] 

CEWDOCROOM with DISTILLER

10 

CEWDOCROOM with DISTILLER


Insert offset folio 1 here 24882.001

Introduction 

Statement of 

Leslie Christ, RBA, SHRM-CP, PHR 

Chief Resource Officer 

WellStone Behavioral Health 

Huntsville, AL 

Submitted to the 

U.S. House Education and the Workforce Committee 

Subcommittee on Workforce Protections 

Hearing on 

"H.R. 1180, Working Families Flexibility Act" 

April 5, 2017 

Good morning Chairman Byrne, Ranking Member Takano and distinguished 

members of the Committee. My name is Leslie Christ, and I serve as the Chief Resource 

Officer at Well Stone Behavioral Health, where I have worked for the last 18 years. I am 

honored to be here today to share my thoughts on H.R. 1180, the Working Families 

Flexibility Act, including how it would benefit my employees at WellStone. 

By way of introduction, I have over 25 years of experience in human resources 

(HR) and have been a member of the Society for Human Resource Management (SHRM) 

for 12 years. I have earned the SHRM Certified Professional certification along with 

numerous other industry certifications. 

Prior to my career in HR, I served our country as a logistics officer in the United 

States Army Reserves and the Alabama National Guard. During my 24 years of military 

service, I was additionally trained in mortuary affairs, achieving the rank of major and 

serving in Operation Iraqi Freedom in Kuwait as the Theater Mortuary Affairs Officer, 

for which I was awarded the Bronze Star Medal and the Global War on Terrorism 

Service Medal. 

In my testimony, I will share details about WellStone Behavioral Health's 

services, mission and benefits. I will also discuss our committed workforce and how I 

believe my organization and our employees would benefit from compensatory, or 

"comp," time as outlined in the Working Families Flexibility Act. 

About WeiiStone Behavioral Health 

WellStone Behavioral Health is the doing business name ofthe Huntsville 

Madison County Mental Health Board located in Huntsville, Alabama, which held its 

first meeting in April of 1969. The organization's creation was a direct result of the 
11 

CEWDOCROOM with DISTILLER


Insert offset folio 2 here 24882.002

Alabama Legislature passing Act 310, which authorized the formation of regional mental 

health boards across the state. 

WeiiStone is a public non-profit community mental health center with 300 

employees. In 2016, we served over 9,000 clients with over 197,000 service hours from 

our employees. In terms of our workforce, roughly 63 percent of our staff are nonexempt, hourly employees; women make up the majority of our workforce, accounting 

for 72 percent of our total employee population; and 3 7 percent of our staff are under the 

ageof37. 

Our organization treats clients with serious emotional disturbances, mental 

illnesses and/or substance use issues. Our mission is to restore hope and healthy living by 

providing comprehensive behavioral health services in the community. To achieve our 

mission, we provide a pre-school day treatment program, school-based services, outreach 

services, outpatient clinical and medical care for both children and adults, as well as 

Adult Residential and Acute Care programs. 

Group Homes for Adults are also available, and living arrangements are staffed 

by Wel!Stone's clinical support personnel24 hours a day, 7 days a week, 365 days a year 

to assist with issues related to the residents' behavioral health conditions. These 

dedicated professionals assist our clients with basic living skills needed to move to more 

independent living situations. Our Acute Care facilities, which also operate every hour of 

every day, assist with stabilization of behavioral health crisis conditions that require 

inpatient treatment. 

WellStone Benefits and Work-Life Programs 

As you can see, our dedicated employees provide critical mental health services to 

members of our community during times of crisis. Because we are a health care facility, 

we are particularly cognizant of our employees' health and well-being and firmly believe 

it is essential to take care of oneself in order to take care of others. As such, Well Stone 

offers many benefits, including paid leave and flexibility offerings, to support our 

employees and their diverse work-life needs. Below, I have outlined a few of the benefits 

and programs that have resulted in Well Stone receiving the "Family Friendly Business 

Award" from the National Children's Advocacy Center and being nominated several 

times as a "Best Place to Work." 

Flexible Work Arrangements- One way we assist our employees in navigating their 

work and family needs is by offering flexible work arrangements, including compressed 

work weeks, alternative or flexible work hours, and a time-off plan. Under this program, 

an employee who needs time off but doesn't have enough leave to cover the absence may 

work more hours on other days within the pay week to cover the absence. For example, 

an employee who normally works 8:00a.m. to 5:00p.m. Monday through Friday but 

needs to take Friday off could shorten his or her lunch breaks or come in early or stay 

later Monday through Thursday to cover the time off on Friday. In addition, some of our 

Group Home staff members who may desire time off but do not have enough leave to 

2 
12 

CEWDOCROOM with DISTILLER


Insert offset folio 3 here 24882.003

cover the absences may swap shifts with other employees. Well Stone works with each 

employee by being creative in ensuring employees may take time off from work to care 

for their families and themselves while being paid. 

Paid-Time-Off(PTO) Program- In 2015, we moved away from offering traditional 

paid sick leave and paid annual leave to offer a PTO program to provide our employees 

with a more flexible approach to time off rather than restricting the use of paid leave to 

specific categories. Employees who work 30 hours or more each week earn PTO at a rate 

determined by both the number of hours worked and length of service. For example, an 

employee working 40 hours per week for the first 5 years earns 3 weeks of paid leave; 4 

weeks is provided for employees working 40 hours per week who have been employed 

between 6 and I 0 years; and employees working 40 hours per week with more than 10 

years of service receive 5 weeks of paid leave. WellStone also has no cap on PTO 

balances, so an employee is permitted to continue to accrue leave instead of having to 

"use it or lose it." This is valuable to many of our employees who have families abroad 

and use the accrued leave to take a month or two off to travel. 

Other Paid Leave Options- WellStone also provides both short- and long-termdisability plans; up to 3 days of paid bereavement leave; the difference between military 

employees' military pay and civilian pay for a period of21 days; and 9 paid holidays. 

Health Care and Other Benefits- WeliStone pays 90 percent of the premium cost of 

health insurance for our employees. We also provide employees supplemental accident, 

cancer and critical illness plans with built-in wellness benefits, plus cafeteria/flexible 

benefit plans for dependent care, medical reimbursement and outside supplemental plans 

for premium reimbursements, as well as clinical/medical licensure reimbursement, 

clinical supervision for licensure and professional development opportunities. 

Retirement Benefits- We provide a defined benefit pension plan for employees in 

which employees are vested after I 0 years. We also provide a 457(b) I 40l(a) retirement 

plan in which our organization matches a portion of each employee's retirement 

contributions and the employee is completely vested after 5 years of employment. 

In addition to the programs outlined above, WellStone has an annual event to 

recognize employee tenure and longevity with the organization, providing both monetary 

bonus awards and gifts to employees reaching milestones of continuous employment. 

Staff retreats, luncheons and family activities throughout the year help us promote 

teamwork, collaboration and "fun" time. 

WeliStone's Workforce 

After working at WeliStone for over 18 years, I can tell you that our employees 

are not at WellStone for the pay; rather, they are there because they have a passion for 

their work and our overall mission. In fact, the average salary of our workforce is 

between $30,000 and $32,000 per year. Our top-notch benefits and employee/familyfriendly culture are vital to recruiting and retaining quality team members. In fact, we 

3 
13 

CEWDOCROOM with DISTILLER


Insert offset folio 4 here 24882.004

have a high percentage of employees who left the organization over the years to pursue 

higher compensation but returned because ofWellStone's commitment to its workforce, 

both in terms of the benefits offered and our willingness to work with every employee to 

support their specific work-life needs. 

Earlier in my statement, I quoted WeiiStone's mission statement to "restore hope 

and healthy living" to our clients, and, Mr. Chairman, this philosophy extends to our staff 

as well. Our core values shape how we behave and are known as the "3 Cs": We are 

CARING and compassionate toward those impacted by behavioral health disorders. We 

are COMMITTED and dedicated to one another through collaboration and teamwork. 

Lastly, we exhibit a CAN-DO attitude as optimistic problem-solvers who do what it takes 

to get the job done. 

For example, it is not unusual for some of our employees to work on weekends, 

going to clients' homes to ensure that they take their medications or responding to calls 

from local law enforcement to assess a community member who may need mental health 

assistance. Our employees routinely fill in for shifts when needed in the Group Homes, 

which often means addressing a crisis that extends their workday. I am proud to say that 

WellStone employees go above and beyond in fulfilling client and community needs, 

oftentimes putting client needs before their own. 

Compensable ("Comp") Time and H.R. 1180 

In the early 1990s, I worked for the Alabama Department of Industrial Relations, 

where I first encountered state employees who could use compensable, or "comp," time. 

This option, which has been available to federal, state and local government employees 

for almost 40 years, allows employees the choice to receive overtime pay for more than 

40 hours worked in a week or to "bank" paid leave and use it at a later date. Just as each 

hour of work over 40 hours is paid at a rate of one and a halftimes the employee's 

regular rate of pay, paid time off accrues at a rate of one and a half hours for each hour of 

overtime worked. While I was a temporary employee at the time and did not earn leave, I 

witnessed the added flexibility comp time afforded these state employees who could 

decide for themselves whether to bank paid leave to fit their work-life needs or to receive 

the overtime pay. 

Since coming to WellStone many years ago, I have often reflected on the above 

experience with comp time and contemplated how beneficial this option would be for 

many Wel!Stone employees, especially since overtime is a regular occurrence in our 

Group Homes and Acute Care settings, given that they must be staffed every hour of 

every day. Overtime is also prevalent in other departments, whether in janitorial services, 

clerical or technology, where we have staff shortages or "planned overtime" when we 

need to finish a major computer project. Below, I provide three examples of recent 

situations where I am confident Wel!Stone employees would have benefited from the 

voluntary option of having access to comp time. 

4 
14 

CEWDOCROOM with DISTILLER


Insert offset folio 5 here 24882.005

!.) Clerical Staff- Recently, we had a major computer endeavor where we 

needed to reconfigure payor sources in our electronic medical records to 

maximize insurance payments. One of our dedicated clerical staff, who was 

relatively new to the organization at the time and learned she was pregnant 

shortly after starting at WellStone, volunteered to work on this project. It was 

clear that given her recent hire date and the date of the child's anticipated 

birth, she would not have enough leave accrued to cover her 6-week absence 

from work, as our short-term disability for new mothers requires at least 6 

months' tenure to be eligible. While working on this project, she incurred 

significant overtime and asked me if she could "waive" the overtime to 

"credit" her that time so she could receive pay during her maternity leave. I 

had to explain to her that we were unable to do so because it was against the 

law. It was difficult conveying this message to this single-mom-to-be, who 

felt she should be allowed the option to choose for herself whether to take the 

overtime pay or paid leave when her child was born. 

2.) Acute Care Employee- My son, who works as an on-call employee at our 

Acute Care facility and therefore is not eligible for WellStone's PTO program, 

attends a local college and is studying to become a nurse. During school 

breaks, he sometimes works for multiple staff and therefore earns overtime 

pay. When he earns overtime pay, like any 18-year-old living at home, he 

spends it. If he were provided the option to choose comp time, my son has 

told me he would take it to have a leave "savings plan," where he could 

accumulate this time and a half and receive a lump sum at the end of year ifhe 

did not need the paid time off. Knowing that he could choose to no longer 

participate in the comp time plan, as outlined in H.R. 1180, should he need the 

overtime pay at some point is another reason this comp time option is 

attractive to my son. 

3.) WeiiStone Staff Who Interact with State Employees- Many WellStone 

employees work side by side with Huntsville Police Department officers, who 

do benefit from the option of receiving overtime pay or comp time. In fact, we 

have Huntsville police officers that work part time at our facility, so it is not 

uncommon for the officers to discuss this comp time arrangement with our 

staff. Therefore, WellStone employees come to me on a regular basis asking 

why we do not offer comp time as an option for staff members. These 

employees believe it is an organizational decision not to offer this flexibility, 

until I explain to them that the Fair Labor Standards Act prohibits this option 

for private-sector employers and employees, yet it is available for employees 

of federal, state and local governments. It is difficult for employees to 

understand why the rules are different for public or governmental agencies 

when they work so hard for our community. 

Mr. Chairman, these are just a few recent examples that demonstrate WeiiStone 

employee interest in comp time, but there have been others and I expect there to be more 

inquiries going forward-and I suspect we are not alone. Every workplace is unique and 

5 
15 

CEWDOCROOM with DISTILLER


Insert offset folio 6 here 24882.006

every workforce is diverse, and WeliStone is no exception. Therefore, it is important that 

we have the ability to offer the same workplace flexibility options at my non-profit 

organization that are afforded to government employers. 

I appreciate that Representative Martha Roby, from my home state of Alabama, 

has introduced H.R. 1180, the Working Families Flexibility Act, to allow all employers, 

including Well Stone, the option of offering comp time to non-exempt employees. This 

reasonable legislation is voluntary for both employers and employees. While WeliStone 

would certainly be interested in offering comp time if this bill were enacted, other 

organizations may not. Moreover, while I believe many ofWeliStone's hourly workers 

would choose to participate in a comp time program, it is important that this bill provides 

employees the choice of whether to take paid leave or cash wages for overtime hours 

worked. If an employee opted to participate in a comp time arrangement but later realized 

that overtime pay was a greater need, the employee would have the right to discontinue 

participation in the comp time program after giving written notice. This bill includes 

other important employee protections, including a requirement that an employer cash out 

any unused comp time at year's end at the higher of either the regular time-and-a-half 

rate at which time was earned or the final regular rate. 

Conclusion 

Mr. Chairman, as I noted above, WellStone employees are committed to the 

mission of improving the health and well-being of our clients. Our employees are not 

driven by high salaries, but their time is very valuable to them. In fact, many of our 

employees live paycheck to paycheck. Employees are not guaranteed overtime weekly; 

therefore, our employees are not dependent on overtime as regular income. Currently in 

our Group Homes when there are shifts open, employees volunteer to work additional 

shifts, with some earning overtime and some receiving regular pay depending on the 

number of hours they worked that pay week. As previously stated, our culture of Caring, 

Commitment and Can-Do is important to us. 

Imagine in January, an employee earns 30 hours of overtime and is paid the time 

and a half. Since the employee's budget is based on her regular pay, she has some "extra" 

money and spends it. In March, the same employee gets ill and ends up in the hqspital for 

over three weeks. Because this was unexpected and she doesn't have enough leave, the 

employee goes without a full paycheck-or without a paycheck at all. How will she pay 

the rent, the hospital co-pay or her prescription drug expenses? This scenario could be 

avoided if the employee had the option of banking paid time off that could be used for 

emergencies like this or for any other reason. Similar scenarios have happened at 

WellStone. 

My Chairman, employers like Well Stone are always looking for ways to assist 

employees with their work-life fit and to drive recruitment, retention, engagement and 

productivity. Since no two workplaces are the same, it is important that employers have 

as many options as possible to support their unique workforces. 

6 
16 

CEWDOCROOM with DISTILLER


Insert offset folio 7 here 24882.007

It would be helpful if our laws did not restrict our ability to offer flexible work 

options, including comp time, especially since it is an option that has worked well in the 

public sector for so many years. Congress has an opportunity to level the playing field for 

all employers and employees by advancing H.R. 1180 to give all a choice to offer and 

receive comp time. 

Again, thank you for the opportunity to participate in today's hearing. I am happy 

to answer any questions you may have. 

7 
17 

Chairman BYRNE. Thank you, Ms. Christ. Ms. Frey? 

TESTIMONY OF CRYSTAL FREY, VICE PRESIDENT OF HUMAN 

RESOURCES, CONTINENTAL REALTY CORPORATION, BALTIMORE, MARYLAND, ON BEHALF OF THE SOCIETY FOR 

HUMAN RESOURCE MANAGEMENT 

Ms. FREY. Good morning, Chairman Byrne, Ranking Member 

Takano, and members of the Committee. I am Crystal Frey, the 

vice president of human resources at Continental Realty Corporation, or CRC, located in Baltimore, Maryland. 

I appear before you today on behalf of the Society for Human Resource Management, or SHRM, of which I’ve been a member for 21 

years. 

I appreciate the opportunity to provide input into H.R. 1180, the 

Working Families Flexibility Act, a bill to allow private sector employers the opportunity to provide paid leave for overtime hours 

worked. 

Mr. Chairman, as you know, comp time has been an option for 

nonexempt employees in the public sector for more than three decades, so the concept of giving employees the choice to select paid 

time off for overtime hours worked is nothing new. 

The FLSA was enacted in the 1930s, and it reflects the realities 

of the industrial workplace, not the workplace of the twenty-first 

century. It’s time to amend this outdated statute to extend the benefit to the private sector. 

The increased diversity and complexity of the twenty-first century is driving the need for more workplace flexibility, including 

paid leave and flexible work options. 

Fifty-six percent of parents struggle to balance work and family 

responsibilities, 50 percent of fathers say they spend too little time 

with their children, and 40 percent of mothers say they always feel 

rushed. Because employees are juggling more responsibilities between work and home, public policy should encourage or allow employers to offer voluntary workplace flexibility options that would 

help employees meet their work/life obligations. 

That’s why I’m pleased to join SHRM in supporting H.R. 1180. 

This bill would amend the FLSA to permit the private sector to 

offer employees the voluntary choice of taking overtime and cash 

payments, as they do today, or in the form of paid time off from 

work. Paid time off would accrue at a rate of 1.5 hours for each 

hour of overtime worked, allowing employees to accrue up to 160 

hours of comp time per year. 

An employer, however, could choose to cash out the comp time 

after 80 hours after providing the employee with 30 days’ written 

notice, and all comp time would have to cash out at year end. 

The bill also includes several important employee protections. In 

the ever-changing real estate industry, offering workplace flexibility is key to recruiting and retaining top talent. This is especially true in my company, which competes for talent in the Washington, D.C., metro area, where many Federal workers can use 

comp time. 

CRC is committed to the success of our employees at work and 

at home, which is why we have a retention rate of over 80 percent 

and our average tenure is seven years’ employment. CRC has reCEWDOCROOM with DISTILLER

18 

ceived numerous awards, which speaks to our culture, but, more 

importantly, they demonstrate our commitment to our employees. 

CRC is invested in its workforce and is always looking for additional opportunities to provide employees with flexibility. Many 

CRC employees have inquired about comp time, and I can tell you 

it’s incredibly difficult to explain to employees why they can’t 

choose for themselves whether to take overtime pay or paid time 

off for hours worked over 40 in a week. 

Many CRC employees would benefit from having the option of 

comp time, particularly those who work at our commercial properties. Often these employees work overtime to respond to situations created by inclement weather or maintenance related issues. 

The ability to bank paid time off would give these employees a 

sense of reassurance knowing they could take time off when they 

need it most and receive pay. 

Mr. Chairman, all the workplace flexibility practices outlined in 

my written statement are voluntary. We don’t have to offer these 

benefits, but we do, because they work well for our employees, and 

help us attract and retain the best people. 

The choice of offering comp time arrangements to employees 

would provide us with another workplace flexibility tool to support 

our employees and their diverse needs. 

That’s why H.R. 1180’s voluntary approach to comp time for employers and employees is so important. If enacted, this bill would 

give employers the option of offering a comp time program and employees the choice of whether to participate in a comp time arrangement. 

SHRM strongly supports comp time as outlined in H.R. 1180 because it meets our core workplace flexibility principles, for flexibility to be effective, it must work for the employers and the employees. While advancing this bill is a step in the right direction, 

SHRM also welcomes a broader conversation on additional ways 

that public policy can facilitate greater voluntary adoption of workplace flexibility programs. 

Thank you so much for your time, and I look forward to your 

questions. 

CEWDOCROOM with DISTILLER

19 

[The statement of Ms. Frey follows:] 

CEWDOCROOM with DISTILLER

20 

CEWDOCROOM with DISTILLER


Insert offset folio 8 here 24882.008

SOCIETY FOR HUMAN 

RESOURCE MANAGEMENT 

Statement of Crystal Frey, SHRM-SCP, CCP, SPHR 

Vice President, Human Resources 

Continental Realty Corporation 

Baltimore, Maryland 

On Behalf of The 

Society for Human Resource Management 

Submitted to The 

U.S. House Education and Workforce Committee 

Subcommittee on Workforce Protections 

Hearing On 

"H.R. 1180, The Working Families Flexibility Act" 

April 5, 2017 
21 

CEWDOCROOM with DISTILLER


Insert offset folio 9 here 24882.009

Introduction 

Good morning Chairman Byrne, Ranking Member Takano and 

distinguished members of the Committee. My name is Crystal Frey, and I am 

Vice President of Human Resources at Continental Realty Corporation located in 

Baltimore, Maryland. I have over 20 years' experience in HR, having worked for a 

federal government contractor, a real estate company and a special events 

planning company and in both union and non-union environments. Thank you for 

this opportunity to testify before the Subcommittee on H.R. 1180, the Working 

Families Flexibility Act of 2017. 

I am pleased to appear before you today on behalf of the Society for 

Human Resource Management (SHRM}, of which I have been a member for 21 

years. I am also a member of my local SHRM chapter, the Chesapeake Human 

Resources Association. 

SHRM is the world's largest human resource (HR} professional society, 

representing 285,000 members in more than 165 countries. For nearly seven 

decades, the Society has been the leading provider of resources serving the 

needs of HR professionals and advancing the practice of human resource 

management. SHRM has more than 575 affiliated chapters within the United 

States and subsidiary offices in China, India and United Arab Emirates. 

Continental Realty Corporation (CRC), founded in 1960, is a threegeneration, family-owned company. CRC has earned a reputation for excellence 

and has grown into one of the most respected real estate investors and operators 

in the Mid-Atlantic and Southeast. Our diverse real estate portfolio comprises 

shopping centers, apartment communities, flex space, office parks, restaurants, 

undeveloped land and warehouse buildings. We have diverse in-house 

resources specializing in acquisitions, financing, asset management, property 

management, leasing, construction, information technology, marketing and legal. 

In my testimony, I will share more about my business; outline my strong 

support for H.R. 1180, the Working Families Flexibility Act of 2017; share with 

you some workplace flexibility practices at my company; and offer SHRM's 

workplace flexibility policy recommendations for Congress. 

AboutCRC 

Many of CRC's 300 employees celebrate milestones of 10, 15, 20 and 25 

years with the company each year. Approximately 200 members of our workforce 

are non-exempt employees who work at our various properties overseeing 

operations daily. Another 80 employees serve in our corporate office in Baltimore 

working in asset management, acquisitions, legal, IT, marketing, human 

resources, accounting, construction and financing. 

2 
22 

CEWDOCROOM with DISTILLER


Insert offset folio 10 here 24882.010

I am proud to say that CRC takes its commitment to be a good corporate 

citizen seriously, providing many opportunities in the neighborhoods where we 

operate. We focus on hiring individuals from the local market and have 

developed a corporate university to provide training to employees so that they 

can develop skills for their current positions as well as develop themselves for 

future career growth. Our diverse workforce reflects the makeup of the 

communities around us and includes non-traditional students, single parents, 

grandparents who are caregivers and Millennials starting their careers. This 

means our employees also have diverse needs, many of which do not always fit 

neatly into our standard policies, procedures, or a one-size-fits-all government 

mandate. 

CRC's unparalleled dedication to being the best in the business is 

evidenced by the awards we continue to receive. We have been recognized for 

our continuing education efforts, customer satisfaction, community service and 

commitment to personal health. CRC was honored as one of the "Top 

Workplaces in Baltimore" for several years; received the WorldatWork Seal of 

Distinction in 2017, as well as SmartCEO magazine's Healthiest Company Award 

in 2015; and was named a Healthiest Employer in the Washington Business 

Journal for three straight years. These accolades and recognition certainly 

strengthen our recruitment and retention efforts, but, more importantly, they 

demonstrate our commitment to and investment in our employees. 

Because the real estate environment is ever-changing, our company and 

team members are flexible and adaptable. At CRC, we implement strategies to 

support employees' work-life needs, help improve engagement and morale, 

increase productivity, retain top performers, and, ultimately, improve our 

business performance. It is also worth noting that CRC competes for talent in the 

Washington, D.C., metro area, which has a significant federal employee 

presence. Federal employees have access to the type of flexibility we are 

discussing today: compensatory, or "comp," time. As a private employer, CRC is 

unable to offer this option to our workforce. 

I believe a key to recruiting and retaining top talent is the ability to have a 

flexible workplace policy that meets the needs of our employees and the 

business imperatives of CRC. We are invested in our workforce, and at CRC we 

are always looking for additional opportunities to provide employees with 

flexibility. The bill we are here to discuss today would do just that. 

Background on Compensatory Time 

In 1938, Congress passed the Fair Labor Standards Act (FLSA). Among 

the act's provisions was the requirement that hours of work by non-exempt 

employees beyond 40 hours in a seven-day period must be compensated at a 

rate of one and a half times the employee's regular rate of pay. In 1978, 

Congress passed a temporary bill, the Federal Employees Flexible and 

3 
23 

CEWDOCROOM with DISTILLER


Insert offset folio 11 here 24882.011

Compressed Work Schedules Act, which changed the FLSA, authorizing comp 

time for federal employees. In 1985, the Federal Employees Flexible and 

Compressed Work Schedules Act was reauthorized and made permanent. At the 

same time, Congress amended the FLSA to expand overtime coverage 

requirements and protections to state and local agencies and their employees. 

During that same year, the choice to select paid leave or overtime compensation 

was expanded to state and local agencies and their employees. 

As you can see, the concept of giving employees the choice to select paid 

time off for overtime hours worked is nothing new-it has been an option widely 

available to federal and public-sector employees for nearly 40 years, and, by all 

accounts, it has worked well. While the U.S. House of Representatives has 

considered legislation to allow for comp time in the private sector several times, 

dating back to the 1 06th Congress, it is troubling that Congress has not yet 

extended this same benefit to hardworking private-sector employees. In the 21st 

century workplace, it's time to give private-sector non-exempt employees the 

opportunity to choose for themselves whether to receive cash wages or paid time 

off for working overtime. 

Need for Compensatory Time 

The FLSA was enacted toward the end of the Great Depression and 

reflects the realities of the industrial workplace of the 1930s, not the workplace of 

the 21st century. The act itself has remained relatively unchanged in the nearly 

80 years since its enactment, despite the dramatic changes that have occurred in 

where, when and how work is done. 

The increased diversity and complexity within the American workforcecombined with global competition in a 24/7 economy-is driving the need for 

more workplace flexibility, to include both paid leave and flexible work options. 

According to national data, 99 percent of employers with 50 or more employees 

have some form of time off with pay for their full-time employees 1. Research 

further demonstrates that employees value workplace flexibility. Employees rate 

workplace flexibility among the top three benefits offered by an employer that are 

very important to their job satisfaction. 2 

Yet work-family conflict continues to be an issue for most working 

Americans, among both male and female employees. Working parents (56 

percent) say that it is difficult for them to balance work and family responsibilities. 

In addition, 50 percent of fathers say they spend too little time with their children 

and 40 percent of mothers say they always feel rushed. 

Given these statistics, there is no doubt that employees today are juggling 

ever more responsibilities between work and home, which is why many 

1 Paid Time Off, Vacations, Sick Days and Short-term Caregiving in the United States (2015). 2 Employee Benefits research report (2016). Society for Human Resource Management. 

4 
24 

CEWDOCROOM with DISTILLER


Insert offset folio 12 here 24882.012

employees are requesting more flexibility at work. In fact, a recent study found 

that adults who are employed or looking for work value flexibility as much as they 

value having paid family or medicalleave3. Therefore, public policy proposals 

that encourage or allow employers to offer more voluntary flexible work options 

are welcomed. 

H.R. 1180, the Working Families Flexibility Act of 2017 

SHRM commends Representative Martha Roby (R-AL) for introducing 

H.R. 1180, the Working Families Flexibility Act of 2017, which would modernize 

the application of the FLSA to the private sector by permitting employers to offer 

their employees the voluntary choice of taking overtime in cash payments, as 

they do today, or in the form of paid time off from work. 

Just as with overtime payments, paid time off would accrue at a rate of 

one and a half hours for each hour of overtime worked. Employees would be able 

to accrue up to 160 hours of camp time per year, although an employer could 

choose to "cash out" the camp time after 80 hours after providing the employee 

with 30 days of notice. An employer would also be required to cash out any 

unused comp time at year's end at the higher of either the regular time-and-a-half 

rate at which time was earned or the final regular rate. 

The Working Families Flexibility Act also includes important employee 

protections. For example, employees can choose whether to participate in a 

comp time arrangement, giving employees choice and control. Under the bill, an 

employee must voluntarily enter into a written comp time arrangement with the 

employer. Any employer coercion is prohibited, as is conditioning employment 

based on participation in a comp time program. These rights may be enforced in 

the same way as other rights and protections of the FLSA. It is also important to 

note that this legislation does not affect the 40-hour workweek or change the way 

overtime is calculated. 

Providing this comp time option would allow employees the opportunity to 

build a bank of time that they can use to take paid time off when they need it, 

provided the time off does not unduly disrupt the business operations of the 

employer. Importantly, this is the same standard for using comp time that is 

already included in federal statute that allows public-sector employees to access 

camp time. Also, if the employee chooses a comp time arrangement but later 

prefers to receive cash wages for overtime hours worked, the employee can 

discontinue the comp time program by giving the employer written notice. Camp 

time off as a workplace option gives non-exempt employees more control over 

their time and can improve employee morale and job satisfaction and increase 

productivity by giving employees the option of increased flexibility. 

3 Americans Widely Support Paid Family and Medical Leave, but Differ Over Specific Policies 

(2017). Pew Research Center. 

5 
25 

CEWDOCROOM with DISTILLER


Insert offset folio 13 here 24882.013

On a personal note, I can tell you that many of CRC's employees have 

inquired about the possibility of using comp time to pursue personal goals. As an 

employer that is invested in our workforce, it is incredibly difficult to explain to 

employees why they cannot choose for themselves whether to take overtime pay 

or paid time off for any hours worked over 40 in a week. Therefore, I am pleased 

to join SHRM and its 285,000 members in strong support of H. R. 1180 to make 

this choice available to private-sector employers and employees. 

CRC Invests in Employees and Workplace Flexibility 

As I mentioned above, CRC is committed to the success of our employees 

at work and at home, which has helped us achieve a retention rate of over 80 

percent-considerably higher than the industry standard of 70 percent or less. 

Our average tenure is 7 years of employment. We were proud to be named to 

The Baltimore Sun's "Top Workplaces" list for the past three years, particularly as 

this is determined solely on the basis of employee survey responses. 

A core value at CRC is to build the best team, and we recognize that 

healthy and fit employees who have an optimal work-life fit are mentally and 

physically prepared to perform at high levels each and every day. This is one 

reason we maintain our award-winning wellness program. Key elements of the 

program include flexible scheduling, adjusted summer hours and discounted gym 

memberships, as well elder care and child care referrals through our employee 

assistance program. In addition, voluntary quarterly wellness initiatives focus on 

health education, healthy eating, exercise, financial wellness and emotional 

wellness. We also support our employees in their career growth through tuition 

reimbursement programs and by offering best-in-class, industry-specific training 

programs. 

In addition to the above-mentioned wellness initiatives, CRC provides a 

full range of health and paid-leave benefits to attract and retain the best talent, 

including 3 to 4 weeks of vacation based on tenure, 3 personal days and 6 paid 

sick days annually, paid bereavement and jury leave, and 9 paid holidays. Shortand long-term-disability insurance is fully paid by the company to provide some 

income replacement when an employee experiences a non-work-related injury or 

illness. Additionally, CRC maintains an unpaid leave of absence policy for 

employees who experience an emergency that does not qualify for leave under 

the Family and Medical Leave Act (FMLA). While employees may use their 

current paid leave in conjunction with this policy, the availability of comp time 

would further complement this policy. 

CRC continually strives to ensure that our employees' work-life needs are 

met by implementing innovative solutions. As mentioned above, CRC maintains 

flexible work schedules, a very popular option for the Washington, D.C., area to 

recruit and attract employees. Employees may establish a schedule beginning at 

7:30a.m., 8:00a.m., 8:30a.m. or 9:00a.m. provided that business unit goals are 

6 
26 

CEWDOCROOM with DISTILLER


Insert offset folio 14 here 24882.014

being met. This option is an arrangement that allows employees to make choices 

about when and how long work is performed. Additionally, our summer work 

schedule includes closing the office at 4:30 p.m. every Friday between Memorial 

Day and Labor Day. CRC continues to pay the rate for a full eight-hour day on 

Fridays during this time. We also close our offices early the day prior to any 

company holiday (usually by 1:00 p.m.) and pay all employees (exempt and nonexempt) through the end of the day to provide them with an opportunity to get an 

early start with their families on the holidays. 

In addition to these voluntary practices, we make other accommodations 

to meet employee needs. For example, I was recently approached by a nonexempt leasing consultant who was facing numerous life-changing events at one 

time, including the birth of her child, her upcoming marriage and the completion 

of her college degree. She requested an alternative schedule to accelerate the 

pace of her education to graduate prior to her due date. While the employee 

normally worked Monday through Friday from 9:30a.m. until 6:00 p.m., we 

supported her request for schedule flexibility, allowing her to work 35 hours in 

order to leave early on certain days to attend class. 

I am pleased to report that the employee finished the degree program in 

December and returned from FMLA leave just two weeks ago after having the 

opportunity to spend time with her newborn child. CRC was happy to support our 

employee's goal of finishing her degree prior to the birth of her child, and if comp 

time had been an option available to her, I believe it would have given her even 

more access to paid leave. 

Many of our employees would benefit from having the option of comp 

time, particularly those who work at our commercial properties. Often, these 

employees work overtime to respond to emergency situations created by 

inclement weather or maintenance-related issues. The ability to bank paid time 

off would give these hardworking employees a tremendous sense of 

reassurance, knowing they could take time off when they need it most and 

receive pay. 

Consider the case of one of our groundskeepers who is originally from 

Vietnam. He needed to take a leave of absence of about a month to attend 

extensive marital rites focused on the temple and area near his birthplace. 

Similarly, one of our maintenance technicians required a leave of absence to 

attend extensive funeral rites for his father in his village located in an African 

nation. Many of these life events and associated customs do not fall precisely 

within the leave procedures established by most private sector employers in the 

United States. 

Both of the employees mentioned above could use CRC's unpaid leave of 

absence policy that I mentioned earlier. Under this policy, an employee who does 

not otherwise qualify for leave under the FMLA may request an unpaid leave of 

7 
27 

CEWDOCROOM with DISTILLER


Insert offset folio 15 here 24882.015

absence for other serious or urgent reasons. We developed this policy because 

of the diversity of urgent situations that may arise for good employees who need 

time off. Again, if comp time were an option, a portion of or all of these unpaid 

leaves could have been paid as employees could use the comp time banked in 

conjunction with these leaves. 

Having the ability to design our workplace practices in ways that support 

our mission and values, and that develop and fulfill our employees, is critical to 

us. CRC and employers like us want to be able to continue to manage our 

workplaces in ways that work for us and that provide us these mutually beneficial 

outcomes. In the examples mentioned above and countless others, we were 

happy to accommodate these requests for valued employees who needed 

flexibility to meet all their obligations and achieve their goals. The choice of 

offering comp time arrangements to our employees would provide us with yet 

another workplace flexibility tool to support our employees and their diverse 

needs. 

Mr. Chairman, these workplace flexibility practices that CRC has 

implemented are voluntary. We don't have to offer these benefits, but we do 

because they work well for our employees and help us attract and retain the best 

people. However, if forced onto another employer in Baltimore, or across the 

state or the country, these benefits might not work as well for them given that 

every workforce is unique. 

That's why this bill's (H.R. 1180) voluntary approach to compensatory time 

for employers and employees is so important. If enacted, this bill would give 

employers the option of offering a comp time program and employees the 

choice of whether to participate in the comp time arrangement. Under current 

law, private-sector employers and employees are without this option and this 

choice-an option and choice that their government counterparts have enjoyed 

for nearly 40 years. SHRM strongly supports comp time as outlined in H.R. 1180 

because it meets our core workplace flexibility principle-that for flexibility to be 

effective, it must work for both employers and employees. 

SHRM's Recommendations for a Workplace Flexibility Policy 

HR professionals like me are on the front lines of devising workplace 

strategies to create effective and flexible organizations. As such, SHRM and its 

members have given careful consideration to the role public policy can play in 

advancing the adoption of workplace flexibility. 

It is our strong belief that public policy must meet the needs of employees 

and employers alike. Rather than government mandates prescribing a specific 

solution, policy proposals should accommodate varying work environments, 

employee needs, industries and organizational sizes, while fostering innovation 

and a competitive economy. 

8 
28 

CEWDOCROOM with DISTILLER


Insert offset folio 16 here 24882.016

A 21st century policy should incentivize employers to voluntarily offer a 

minimum threshold of paid leave and flexible work options to all employees. In 

exchange, employers would receive predictability and certainty in offering a 

uniform workplace flexibility program, rather than the current patchwork of state 

and local requirements employers currently encounter. While SHRM is pleased 

to support H.R. 1180 because it is a voluntary, workable policy for both 

employers and employees, a more comprehensive solution that encompasses 

the above elements is warranted. SHRM looks forward to continuing to work with 

members of the House and this Committee on this proposal. 

Conclusion 

In a 21st century workplace, flexibility policies help both multinational 

corporations and small businesses meet the needs of their employees. At its 

core, workplace flexibility is about improving business results by providing 

employees with more control over how, when and where work gets done. H.R. 

1180 would give private-sector non-exempt employees more control by giving 

them the option of paid time off for overtime hours worked. 

As I outlined in this testimony, my company and employers across the 

country would appreciate the option of allowing for comp time as a way to help 

employees better meet their work-life needs. Comp time has been a success for 

federal and public-sector employees for nearly 40 years. It's now time to extend 

this benefit choice to employees in the private sector. 

Thank you. I am happy to answer any questions you may have. 

9 
29 

Chairman BYRNE. Thank you, Ms. Frey. Ms. Shabo? 

TESTIMONY OF VICTORIA S. SHABO, VICE PRESIDENT, NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES, WASHINGTON, DC 

Ms. SHABO. Good morning, Mr. Chairman and Ranking Member. 

I’m Vicki Shabo, vice president at the National Partnership for 

Women & Families, which is a nonprofit, nonpartisan advocacy organization here in Washington, D.C. 

For more than 45 years, we have fought for every major Federal 

policy advance that has helped women and families. It’s been said 

here many times, most of us hold jobs, both women and men, in 

order to support ourselves and our families. 

Most of us also provide care to loved ones. Seventy percent of 

children live in households where all parents work. Tens of millions 

of people provide unpaid care to older adults in their families each 

year and hold paying jobs at the same time. 

In short, work/family challenges connect us all, but workplace 

policies too often fall short by failing to provide fair wages, predictable schedules, and paid time to recover from illness and care for 

our loved ones. 

The employees at Ms. Christ’s company and Ms. Frey’s are quite 

lucky compared to millions of workers across the country who don’t 

have even these benefits that you all provide, and I’m so grateful 

that you do. 

Even SHRM’s own research released earlier last month shows 

that practices are not getting better for most workers in this country. America’s working people haven’t reaped the benefits of a 

growing economy. Over the past four decades, workforce productivity has increased by more than 70 percent, while hourly compensation has increased by just about 11 percent. 

This has meant more stress and less opportunity for workers 

across the country, in rural areas and small towns and in big cities 

alike, and it’s meant less predictability, less security, and less independence for those families now and in the future. 

This isn’t the America that your constituents or any of us deserve. There’s no question that lawmakers must update our workplace policies to meet the needs of 21st century families, but H.R. 

1180 would be a giant step in the wrong direction. Instead of investing in and empowering people with higher wages, this so-called 

‘‘flexibility bill’’ offers forced choices and false promises. Instead of 

building on the success of State and local policies and leading private sector practices, it gives workers a pay cut without the guarantee of time off when they need it most. 

It sets up a false dichotomy between time and money, when people urgently need both. The FLSA allows both, and research shows 

that employers benefit from both. 

Let me briefly outline five key problems. First, 1180 purports to 

require an agreement by an employee to accept comp time, but the 

employees I reference in my opening statement—Suzanna, who is 

a clerical worker with three children and an elderly mother and an 

unpredictable schedule; Janice, a nurse, who has seen the value of 

her wages decline dramatically; and Allyson, who says that overtime pay means the difference between meatloaf for supper instead 

CEWDOCROOM with DISTILLER

30 

of rice and beans—these women could easily feel obligated to agree 

to comp time, even though money would be more valuable, because 

for them, they would fear that refusing comp time, even if it’s supposed to be voluntary, could mean fewer hours, subpar shifts, and 

the loss of being offered overtime opportunities in the future. It 

would also mean for them greater scheduling instability, higher 

child care expenses, and lower wages in the short term. 

Second, this bill should be called the ‘‘Employer Flexibility Act,’’ 

because it makes it cheaper, again, in the short term, for employers 

to provide comp time than to pay overtime wages. They’ll have 

every reason to hire fewer people, relying on them to work more 

hours, which means more time away from their families, with the 

promise of future comp time. And as you well know, you can’t pay 

the rent or buy groceries with comp time. 

Third, it would provide an interest-free loan to employers by permitting them to defer payment for as long as 13 months. 

Fourth, it would give employers, not employees, the flexibility to 

decide when and even if comp time can be used or offered, and then 

to decide whether to cash it out, tossing employees well-constructed 

plans to use their accrued comp time. 

Finally and fifth, it offers no remedy to workers when employers 

deny a request to use comp time, except to ask that the time be 

cashed out. And even then, the employer need not provide those 

valuable wages for another 30 days. 

Experiences with comp time in the public sector illustrate these 

challenges all too clearly. There is a lot of case law on this. And 

let’s not pretend that benevolence motivated that public sector use 

of comp time. It was a cost savings measure. 

We urge you to reject 1180. At a time when the Nation urgently 

needs workplaces that are more fair and family friendly, this bill 

is an empty promise, a cruel hoax, that would take the country in 

the wrong direction. Instead, working families need a suite of policies, and let me tell you about a few. 

First, the Healthy Families Act, which makes paid sick days 

available to millions of workers and builds on laws in 7 States and 

32 localities. The FAMILY Act, which would create a national paid 

family and medical leave fund modeled on successful, responsible, 

and self-sustaining programs in California, Rhode Island, New Jersey, and soon New York and D.C. 

Expanded access to the FMLA, a gradual increase in the minimum wage to $15, and the elimination of the tipped minimum 

wage, the Paycheck Fairness Act to help close the gender-based 

wage gap, which by the way, in one year could pay for an entire 

course of community college for a woman or her child. The Schedules That Work Act, to encourage fairer and more predictable 

schedules. 

The Nation needs these advances. America’s people across regional and political views support these advances, and businesses 

do, too, even smaller businesses. There’s data on this. 

So, thank you for the opportunity to testify here today. I apologize for going over my time, but look forward to answering your 

questions. 

[The statement of Ms. Shabo follows:] 

CEWDOCROOM with DISTILLER

31 

CEWDOCROOM with DISTILLER


Insert offset folio 17 here 24882.017

_,.--~ 

national partnership 

for women & families Because actions soeuk ioudcr than words . 

. ........._./ 

Written Statement of Victoria S. Shabo 

National Partnership for Women & Families 

Submitted to the U.S. House Committee on Education and the Workforce 

Subcommittee on Workforce Protections 

Hearing on H.R. 1180, the Working Families Flexibility Act 

April 5, 2017 

Good morning, Chairman Byrne, Ranking Member Takano, members of the 

Committee and my fellow panelists. I appreciate the opportunity to testifY before 

you today on H.R. 1180. 

I am Vicki Shabo, Vice President at the National Partnership for Women & 

Families, a nonprofit, nonpartisan advocacy organization. For more than 45 years, 

we have fought for every major federal policy advance that has helped women and 

families. We promote fairness in the workplace, access to quality, affordable health 

care, reproductive health and rights, and policies that help women and men meet 

the dual demands of work and family. Our goal is to create a society that is free, fair 

and just, where nobody has to experience discrimination, all workplaces are family 

friendly, and every person has access to quality, affordable health care and real 

economic security. 

The National Partnership is proud to have drafted the Family and Medical Leave 

Act (FMLA) and led the coalition that fought to make it law. Since the FMLA's 

adoption in 1993, women and men have used the law more than 200 million times 

to care for themselves or their loved ones. More recently, to build on the FMLA and 

expand economic opportunities for America's families more broadly, the National 

Partnership has helped win dozens of new federal, state and local workplace policies 

and private sector innovations to increase workers' access to paid sick days, paid 

family and medical leave and fair schedules, raise wages and advance fair pay. 

Experience shows that when working people can both care and provide for 

themselves and their families, everyone benefits. 

1875 connecticut avenue, nw N suite 650 N washington, de 20009 N phone: 202.986.2600 N fax: 202.986.2539 

email: info@nationalpartnership.org N web: www.nationalpartnership.org 
32 

CEWDOCROOM with DISTILLER


Insert offset folio 18 here 24882.018

H.R. 1180 Offers a False Choice between Time and Pay- Eroding Bedrock Protections at a 

Time When Congress Should Focus on Improving Them 

I am here today to speak in opposition to H.R. 1180, the so-called Working Families 

Flexibility Act, which will harm rather than help America's working families. 

People today are struggling to meet their job and family obligations, to make ends 

meet and to save for the future. For most people, there is no "either-or choice" to be 

made between time and money. Both are absolutely critical to survival, security and 

the pursuit of better opportunities. 

Most of us - women and men- hold jobs in order to make a living and support 

ourselves and our families, and many also provide needed care to loved ones. Nearly 

seventy percent of children live in households where all parents work.! Women 

make up nearly half of the U.S. workforce, and mothers are key breadwinners in 

nearly two-thirds of families.2 Mothers of color play an especially critical role as 

breadwinners for their families.a At the same time, women remain primary 

caregivers in most families, even as men- and especially younger men - want to 

and are taking on more caregiving responsibilities. 

Work-family care obligations are not limited to parents of minor children. Between 

2014 and 2015, an estimated 34.2 million adults provided informal care to adults 

age 50 and older, most commonly to relatives; most of these family caregivers held 

paying jobs, and more than half of those working family caregivers worked full 

time.<~ Demographic trends show that care obligations will only increase in the years 

ahead. 

Higher wages are also essential to families' economic security. Yet despite a slow, 

but steady increase in employment since the depths of the recession and a recent 

slight increase in average wages,5 too many of America's workers and families are 

struggling. Over the past four decades, workforce productivity has increased by 73.4 

percent, but hourly compensation has increased by only 11.1 percent.6 Nearly half of 

1 U.S. Census Bureau. (2016). American Community Survey J-YearEstimates2015. Table DPo3:SelectedEconomic 

Characteristics. Retrieved 31 March 2017, from 

https://factfinder .census.gov/faces/tableservices/jsf/pages/productview .xhtml?pid=ACS_15_1 YR_DP03&prodType=table 

2 Glynn, S.J. (2014, June). Breadwinning Mothers, Then and Now. Center for American Progress Publication, Retrieved 31 

March 2017, from http://cdn.americanprogress.org/wp·contentJuploads/20 14/06/Glynn· Breadwinners· report· FINAL. pdf 

3 Anderson, J. (2016, September), Breadwinner AfotheJ'l~ by Race!E'thnicity and State. Institute for Women's Policy Research 

Publication. Retrieved 31 March 2017, from https:/fiwpr.org/publications/breadwinner·mothers·by·raceethnicity·and·state/ 

cli\.RP Public Policy Institute and National Alliance for Caregiving. (2015, .June). Caregivers of Older Adults: A Focused Look 

at Those Cal'ing for Someone 50+. Retrieved 1 April2017, from http://www.aarp.org/contentldam/aarp/ppi/2015/caregivers·of· 

o lder·adults·focused ·look. pdf 

~Center on Budget and Policy Priorities. (2017, March). Chart Book: The Legacy of the Great Recession. Retrieved 31 March 

2017, from_ http :fJwww .cbpp.org/research/economy/chart· book-the·legacy·of·the·great·recession 

6 Economic Policy Institute. (2016, August), The Pay-Productivity Gap. Retrieved 1 April2017, from 

http://www.epi.org/productivity·pay·gap/ 

2 
33 

CEWDOCROOM with DISTILLER


Insert offset folio 19 here 24882.019

adults in 2015 said they would not be able to afford a $400 emergency expense, 

according to the Federal Reserve.? 

This means too many people are worried about their finances and have reason to 

fear that, when family challenges arise, they will be unable to hold on to their jobs, 

meet their financial obligations and maintain their economic independence. Many 

people also contend with work schedules that are unpredictable, inflexible and 

unstable- diminishing or eliminating their ability to find stable child care, further 

their education, or hold multiple jobs, and creating substantial uncertainty about 

their take-home pay on a week-to-week or month-to-month basis. While a growing 

share of workers can only find part-time work, others are forced into mandatory 

overtime.s People who face mandatory overtime demands tend to have less 

flexibility to take time off during the work day or change their starting and ending 

times,9 which can make it difficult or impossible to meet personal or family 

obligations. 

There is no question that America's working people and families need updated 

workplace policies and higher wages. And, in some cities and states, successful 

policies are in place to offer just that. Unfortunately, H.R. 1180 would do the 

opposite. This legislation is based on smoke and mirrors. It pretends to offer the 

time off people need when they need it but, in fact, it offers a pay cut for workers 

without any attendant guarantee of time. It also sets up a dangerous, false 

dichotomy between time and money when, in fact, working families need both. 

Quite simply, H.R. 1180 would be a step in the wrong direction for approximately 59 

million hourly, full-time workers as well as for salaried, non-exempt workers who 

are eligible for overtime pay.1o Instead of providing working people and their 

families with the time off and the financial stability they need to care for 

themselves and their loved ones, this "flexibility" bill offers forced choices and false 

promises. 

H.R. 1180 has been introduced multiple times, in virtually identical form, since the 

late 1990s. Fortunately for the nation's workers, it has not become law. That is good 

news because this bill would undermine the very purposes of the Fair Labor 

Standards Act (FLSA), which for nearly 80 years has helped protect the working 

hours and paychecks of covered employees. The FLSA's requirement that non7 Board of Governors of the Federal Reserve System. (2016, May). Report on the Economic Well·BeingofU.& Households in 

2015. Retrieved 31 March 2017, from https://www.federalreserve.gov/2015·report·economic·well·being·us·households· 

201605.pdf 

s Golden, L. (20 15, April). Irregular Wo1·k Schedules and Its Consequences. Economic Policy Institute Publication. Retrieved 1 

April 2017, from http://www.epi.org/publication/irregular·work·scheduling·and·its·consequences/ 

»>bid. 

w Shicrholz, H. (2017, April. Personal communication. Senior Economist and Director of Policy, Economic Policy Institute) 

3 
34 

CEWDOCROOM with DISTILLER


Insert offset folio 20 here 24882.020

exempt employees be paid time-and-a-half for every hour of work in excess of 40 

hours per week was intended to spread job opportunities to more workers and 

create disincentives for overwork, giving working women and men the ability to 

spend time with their loved ones. For public sector workers- whose guaranteed 

right to overtime pay was eliminated in the 1980s as a way to conserve state and 

local revenues - comp time has been used as an excuse for underpayments and 

wage theft. We must not create those same challenges for private sector workers. 

H.R. 1180 would provide workers with neither the pay nor the time they need to 

make their lives work. Let me tell you about a woman the National Partnership and 

our colleague organization, Family Values@ Work, met a few years ago. 

Susannah, a clerical aide in Los Angeles, had a 20-year-old son, a 19-year-old 

daughter, a 5-year-old daughter and a 73-year-old mother with health problems.11 

She said her hours had been cut from 40 per week to 30, but her workload had not 

decreased. "We put in a lot of'voluntary' time," she explained. "We get told things 

like, 'If you can't handle it or it's too much work for you, maybe we can find someone 

else."' Despite family obligations that required her to be home in the evenings, 

Susannah felt constant pressure from her supervisor to work extra hours on short 

notice. "If I need to work overtime, I do it to keep my job," she explained, even 

though those extra hours often created child- or elder-care problems and extra 

expenses. At the same time, Susannah said her employer treated her with suspicion 

when she needed to take a day off to care for her sick child. She said she sometimes 

went to work sick for fear that taking a day off would mean losing her job. 

Susannah is just one of the many workers whose experiences put a face on data 

from the U.S. Bureau of Labor Statistics and major national surveys that show the 

tremendous control that employers exert over employees' lives, including whether 

they are permitted to take time offfor family and medical needs, whether and when 

workers must report to- or be available for- work, and fears of termination that 

prevent people from asserting their rights. It also illustrates the family demands 

that workers face, and how hard it can be to care for children and parents at the 

same time, especially without paid time off and enough income to cover unexpected 

expenses. 

Susannah's situation may be better now than when we met her because of new paid 

sick days laws and a higher minimum wage where she lives. But there are people 

with similar stories all over the country. Their experiences shine a bright light on 

why H.R. 1180 is so deeply flawed. It would give workers less control over both their 

n National Partnership for Women & Families and Family Values@ Work. (2011, February). Los Angeles Workers~',]Jeak: 

The Employee Case for Flexibility in How·~v., Lower Wage Jobs. Retrieved 31 March 2017, from 

http://www .nationalpartnership.org/site/DocServer/W _F _ Workflex_LA_ Workers_ Voice.pdf?dociD=8241 

4 
35 

CEWDOCROOM with DISTILLER


Insert offset folio 21 here 24882.021

time and their paychecks. It fails to guarantee the time off that workers need, 

regardless of their opportunity or ability to work overtime hours. And for the 

growing segment of workers whose challenges stem from the opposite problemworking fewer hours than they would like with unpredictable schedules and little 

notice or control- this proposal would do absolutely nothing to assure access to the 

pay, stability or the paid time off they need to meet their family responsibilities or 

deal with medical needs.12 

Camp time, accepted freely and fairly and available on demand for non-vulnerable 

workers, may have a place in a suite of policy solutions to help workers and 

families. But H.R. 1180's brand of comp time is designed to benefit employers who 

want to take a low road by providing them the option of interest-free loans at their 

employees' expense. It does not offer any greater flexibility to employers who 

genuinely want their employees to have time off. It does not offer any of the 

protections workers need. It is utterly tone-deaf to what people experience at their 

jobs. 

The following are our specific concerns about H.R. 1180: 

H.R. 1180 Magnifies the Power Imbalance between Employees and Employers 

H.R. 1180 would place significant power in the hands of employers, while limiting 

the ability of employees to earn the wages they need to support their families. It 

would permit employers to offer camp time in lieu of overtime to one, some or all 

eligible workers. And although it requires an "agreement" between employers and 

employees, it does not give an employee wishing to remain in her or his employer's 

good graces any true "choice," especially in fast-growing industries like food service 

and retail, where multiple workers may have the same job responsibilities and may 

be perceived by employers as interchangeable. As a Florida worker explained in a 

focus group commissioned by the National Council of La Raza, "[T)he employer can 

abuse you, can use you because you're scared to lose your job. You lose your job, 

they fire you, they'll get somebody else or two other people."13 

Their precarious position may force workers into accepting camp time instead of pay 

for fear oflosing their livelihoods, even when overtime pay may mean the difference 

between "having rice and beans for dinner or having meatloaf," as Allyson, a 

12 Golden, L. (2016, December). Still falling short on houl's and pay: Pa1·t·time wo1·k becoming new normal Economic Policy 

Institute Publication. Retrieved 31 March 2017, from http://www.epi.org/files!pdf/114028.pdf. Lambert, S. J, Fugiel, P. J., & 

Henly, J. R. (2014, August). Precarious Work Schedules among Ear~v·Career Employees in the US: A National Snapshot. 

University of Chicago Employment Instability, Family Well·Being, and Social Policy Network Publication. Retrieved 31 

March 2017, from https:f/ssascholars. uchicago.edu/sites/defaultJfiles/work ·scheduling· 

study/files/lambert.fugiel.henly_.precarious_work_schedules.august2014_0.pdf 

!3 Lake Research Partners. (21 September, 2012). Focus GJ'oups among Lower! nco me Latinos in .F'lol'l·da. 

5 
36 

CEWDOCROOM with DISTILLER


Insert offset folio 22 here 24882.022

MomsRising member and mom from New Mexico, said recently.I4 And, as I'll 

discuss in a moment, the comp time offered here may not even be available when 

workers need it, rendering this proposal a true wolf in sheep's clothing. 

H.R. 1180 would put workers at very real risk. An employee who does not accept 

comp time could find herself penalized with fewer hours, non-preferred shifts and 

loss of overtime work. The employee's "choice," then, would be to accept comp time 

instead of needed pay or, if she reasonably asks for pay for overtime work and faces 

retaliation, to try to fight it in court. That is an unrealistic expectation for workers 

who fear losing their jobs and have no resources with which to litigate. 

H.R. 7180 Would Mean Less Work for Some and More Work- and Extra Expenses- for 

Others 

H.R. 1180 undermines the central tenets of Section 7 of the FLSA: creating 

reasonable work hours for all, and work and job opportunities for many. Because it 

is cheaper for employers to provide comp time than to pay overtime wages, there is 

a significant incentive for employers to hire fewer people and rely on overtime hours 

-paid for in future comp time- to get work done. H.R. 1180 could translate into 

fewer jobs at a time when millions of people are looking for work. And it would 

mean greater scheduling instability, uncertainty and unpredictability for workers 

who are asked to work overtime hours; potentially greater child care and 

transportation expenses; and, at the same time, fewer dollars in workers' pockets to 

meet the additional costs and inconveniences that more overtime work would bring. 

H.R. 1180 Means Less Paycheck Security for Employees and an Interest-Free Loan for 

Employers 

H.R. 1180 would permit employers to defer compensation- in money or time- to 

employees for as long as 13 months. In essence, comp time creates an interest-free 

loan for employers because employees who work overtime today may not see the 

value of that overtime for more than a year. 

The legislation would allow employers to retain and earn interest on the wages they 

would otherwise have been obligated to pay. Although it is true that an employee 

can trade banked comp time for overtime pay, employers have 30 days to grant the 

request. That means that an employee who needs the overtime pay for an 

emergency expense may have to wait a full month for it. 

14 Martin, R. (2017, March 3L Personal communication. National Director: Workplace Justice Campaigns, MomsRising.org) 

6 
37 

CEWDOCROOM with DISTILLER


Insert offset folio 23 here 24882.023

H.R. 1180 Fails to Provide the Time that Working People Need 

The worker flexibility offered by H.R. 1180 is nothing more than a mirage. That's 

because this proposal would give the employer, not the employee, the "flexibility" to 

decide when and even if camp time can be used. The plain language of the bill 

requires an employee to make a request in advance to use the camp time he or she 

has earned, gives the employer a "reasonable period" after the request is made to 

say yes or no, and permits the employer to deny the request entirely if the 

employee's use of camp time would "unduly disrupt" operations. 

This means that a mother who asks to take camp time to stay home with her 

toddler because her child care provider is sick would have no guarantee that she'll 

be able to use the time she's earned and banked. And there is no guarantee that a 

son's request to use a week of comp time to help his aging parent relocate to a 

nursing home would be granted. 

If an employee's request is arbitrarily or unfairly delayed or denied, H.R. 1180 

provides no recourse. There is no remedy under this proposal for an employee who 

is unable to use accrued camp time, except to ask that the time be cashed out. This 

is far from the kind of family friendly policies workers need. 

H.R. 7180 Jeopardizes Employees' Wages When Firms Die or Go Bankrupt 

All of this assumes the employer remains in business and employees can eventually 

use the time they've banked, or receive the cash equivalent when banked time is 

paid out. But H.R. 1180 would provide no protections to employees when firms 

collapse or go bankrupt. Between January 2013 and January 2016, 2.3 million 

workers lost their jobs when their employer closed or moved.J5 In the third quarter 

of 2015 alone, 704,000 jobs were lost at 207,000 establishments that experienced 

firm deaths.16 

Firm death or bankruptcy means workers could lose the value of unused comp time 

up to 160 hours per employee, or nearly $2,400 for a typical hourly worker.11 

Imagine that sum aggregated across an entire workforce or a community where a 

large employer goes bankrupt or a factory closes. Workers deprived of unpaid wages 

they have earned would have less to spend and some would be forced to rely more 

15 U.S. Bureau of Labor Statistics. (2016, August). Worker Displacement, 2013-2015(Table 8). Retrieved 1 Apri12017, from 

https://www .bls.gov/news.release/pdf/disp.pdf 

16 U.S. Bureau of Labor Statistics. (2017, January). Business Employ-mont D.vnamics--Sccond Quarter 2016. Revised(Table 

8). Retrieved 1 April2017, from https:/fwww.bls.gov/news.release/pdflcewbd.pdf 

17 Based on the median hourly wage of$14.91 for an hourly worker aged 25+ in 2015, as reported in U.S. Bureau of Labor 

Statistics. (2016, November). Highlights of Women's Earnings in 201/f. Retrieved 31 March 2017, from 

https://www.bls.gov/opub/reports/womens·earnings/2015/pdf/home.pdf 

7 
38 

CEWDOCROOM with DISTILLER


Insert offset folio 24 here 24882.024

on public services and supports to get by. Unpaid comp time could also impair 

workers' eligibility for unemployment compensation. 

H.R. 1180 Fails to Provide Affordable Remedies to Workers or Resources to the U.S. 

Department of Labor (DOL) 

Even under current wage and overtime law, unscrupulous employers regularly 

violate employees' rights to earn overtime payments because the benefits of noncompliance outweigh the financial liabilities. H.R. 1180 would increase employers' 

incentives to ignore the FLSA's wage and overtime provisions. It does not provide 

administrative remedies for employees who have been coerced into accepting comp 

time or whose rights to freely choose comp time versus overtime payments have 

been violated. Instead, employees' only recourse would be through the courts. But 

few low-wage workers have the resources to sue. And, as noted above, employees 

would have no right at all to use accrued comp time when they need it. 

In addition, H.R. 1180 would add significant new provisions to the FLSA and create 

a new imperative for employee and employer outreach while providing no additional 

funds for the education and enforcement efforts its new provisions require. The U.S. 

Department of Labor's Wage and Hour Division already struggles to enforce the 

FLSA with too few investigators and too small a budget. If the president's proposed 

budget is enacted, DOL's resources will be even more substantially diminished. 

For each of these reasons- and because employees simply should not have to put in 

extra time beyond a 40-hour week and forgo pay in order to scrape together selffunded paid sick days, paid family and medical leave or other personal time off- we 

ask you to reject H.R. 1180. It is a deeply flawed proposal that would cause massive 

harm to workers. It offers a false, flawed choice that would make times even 

tougher for working people and their families. It would be a giant step in the wrong 

direction for the country. We can- we must- do better. 

Toward a More Family Friendly and Prosperous Nation: Public Policy Solutions that 

Workers and Families Need 

What the United States needs is a suite of policies that will raise wages, promote 

fair pay, improve access to paid time to care for loved ones and ensure more 

predictable work schedules. Our progress and prosperity are stymied by the status 

quo and changes are long overdue. 

8 
39 

CEWDOCROOM with DISTILLER


Insert offset folio 25 here 24882.025

Widely Discredited Myths Impede Our Progress 

For too long, a number of widely discredited myths have stood in the way of 

progress. The organized business lobby and other opponents have perpetuated the 

unsupportable falsehoods that fair wage laws and family friendly policies are zerosum, expensive and marginal to working families' economic stability and well-being. 

A growing body of evidence demonstrates that the opposite is true. Employees, 

families, businesses, taxpayers and governments all have a stake in creating more 

family friendly workplaces and increasing the economic security of working 

families. 

The most egregious myth is that fair pay and expanded work-family policies harm 

employers. In reality, these policies benefit business through improved retention, 

reduced turnover costs and a consumer base with more income to spend.1s In fact, 

studies show that businesses support these policies. Even the Council of State 

Chambers, a national association of state chambers of commerce CEOs and 

executive leaders, has found that members and prospective members of state 

chambers are overwhelmingly supportive of a suite of policies, including a higher 

minimum wage (80 percent), increased maternity leave and mandated or increased 

paternity leave (72 and 82 percent, respectively), fair work schedules (78 percent) 

and paid sick time (73 percent).19 

A second, related myth is that fair pay and expanded work-family policies are too 

costly for taxpayers. In reality, these policies provide cost-savings to governmentsand, without question, the status quo carries terrible costs- to workers, families, 

the public health, businesses, our economy and our country. In fact, workers' lack of 

access to paid family and medical leave deprives America's families of nearly $21 

billion each year.zo A study released by Pew Research Center last month found that, 

among workers who received no pay or insufficient pay during a recent family or 

medical leave, 17 percent used public assistance programs and one-third or more 

took on debt (37 percent) or put off paying their bills (33 percent); among low-wage 

workers who took an unpaid or insufficiently paid parental leave, a whopping 48 

percent turned to public assistance.21 The status quo not only robs people of their 

18 National Partnership for Women & Families. (2015, March). Paid Family and ltfedical Leave: Good for Business. Retrieved 

31 March 2017, from http://www .nationalpartnership.org/research ·library/work·family/paid·leave/paid·Ieave·good -for 

business.pdf 

m Luntz Global. (2016, January). Survey of 1,000 business executives commissioned by the Council of State Chambers, 

December 29, 2015. Retrieved 31 March 2017, from https://www.scribd.com/doc/306913089/Council·of·State·Chambers·Topline 

20 Glynn, S. ,J., & Corley, D. (2016, September). The Cost ofWork-FamJ~V PohCy Inaction. Center for American Progress 

Publication. Retrieved 31 March 2017, from https://www.americanprogress.org/issues/womenlreports/2016/09/22/143877/the· 

cost-of· inaction/ 

21 Horowitz, J., Parker, K, Graf, N., & Livingston, G. (2017, March). AmenCans Widely Support Paid Fam1ly and Medical 

Leave, but Differ Over Specific Policies. Pew Research Center Publication. Retrieved 31 March 2017, from 

h ttp:/Jassets. pewresearch.org/wp·content/uploadslsites/3/20 17/03/22152556/Paid · Leave·Report·3·17·17· FINAL. pdf 

9 
40 

CEWDOCROOM with DISTILLER


Insert offset folio 26 here 24882.026

financial security and economic autonomy, but shifts costs to others, including to 

government and taxpayers. 

In contrast, common-sense leave policies will benefit us all. If all workers had paid 

sick days, 1.3 million emergency room visits could be prevented each year in the 

United States, saving $1.1 billion annually. More than half of these savings $517 

million- would accrue to taxpayer-funded health insurance programs such as 

Medicare and the State Children's Health Insurance Program.22 In addition, both 

women and men who take paid leave after a child's birth are significantly less likely 

to use public assistance or Supplemental Nutrition Assistance Program (SNAP) 

benefits in the following year.23 And women who take paid leave are more likely to 

be working nine to 12 months after a child's birth and to have higher earnings than 

women without leave.21 Like other policies that promote higher wages and economic 

opportunity, paid leave helps grow the economy and the tax base while reducing 

reliance on public services. 

It is time to reject these absurd myths, which have been disproven time and again, 

and instead work together to adopt innovations that are long overdue. We do not 

need to require workers to forgo wages to subsidize their own time off, as H.R.ll80 

proposes. Instead, we need to adopt national policy solutions patterned on those 

working well in states and cities across the country that guarantee fairer wages and 

adequate time to care for serious personal and family needs. 

The policies I'll discuss have strong popular support across the political spectrum. 

In a poll commissioned by the National Partnership last November, 82 percent of 

voters said it is important for Congress and the president to consider new laws to 

help keep working families economically secure, including ensuring workers the 

right to earn paid sick days and creating a system of paid family and medical leave 

insurance.25 Policies that would provide wage protections in the form of a higher 

minimum wage and fair pay for women have similarly strong support. 

tz Miller, K., Williams, C., & Yi, Y. (2011, October 31), Paid Sick Days and Health: Cost Savings from Reduced Emergency 

Department VJ~o;its. Institute for Women's Policy Research Publication. Retrieved 31 March 2017, from 

http://www .iwpr.org/publicationslpubs/paid ·sick·days·and· health ·cost·savings·from ·reduced ·emergency-department-visits 

:.:;>Houser, L., & Varatanian, T. (2012, January). Pay Matters: The Positive Economic Impacts of Paid Fanuly Leave for 

Families, Businesses and the Public. Rutgers Center for Women and Work Publication, Retrieved 31 March 2017, from 

http://www.nationalpartnership.org/research·library/work·family/other/pay-matters.pdf 

24lbid. 

25 National survey of 1,200 voters conducted November 6·8, 2016 by Lake Research Partners and The Tarrance Group on 

behalf of the National Partnership for Women & Families. Retrieved 1 April2017, from 

http://www.nationalpartnership.org/research·library/work·family/lake·research·partners·election·eve·night·omnibus·survey· 

results·on·issues·of·importance·to·working·families.pdf 

10 
41 

CEWDOCROOM with DISTILLER


Insert offset folio 27 here 24882.027

Families, Businesses and the Economy Will Benefit When Workers Are Paid Fair Wages 

It is a huge problem for our country that the value of workers' wages has not kept 

pace with the cost of living. That makes overtime pay even more important for 

workers who are able to work overtime. As Janice Stanton, a MomsRising member 

from Oregon with more than 25 years of experience as a registered nurse, put it 

recently, "My income and benefits have progressively declined .... As a single adult 

who lives alone, it is often a challenge to meet my increasing expenses. Anything 

extra has to be paid for mostly via overtime labor. Allowing [employers] to shortchange their underpaid employees further, by denying them overtime pay simply 

makes a vastly unjust system even more so. If an employee is choosing to work 

overtime, s/he wants that extra money."zs 

H.R. 1180 would literally take money out of workers' paychecks at a time when 

Janice and millions of working women and men like her need common-sense policies 

to improve their financial security through higher, fairer wages. 

First, the recent modernization of the overtime eligibility threshold for non-exempt 

salaried workers must be sustained. The updated rule- raising the salary threshold 

from $455 to $913 per week (in 2015 dollars) would improve economic security 

and/or restore reasonable work hours to an estimated 12.5 million workers, more 

than half of whom are women and one-third of whom are parents of minor 

children.z7 

In addition, gradually raising the minimum wage to $15.00 and eliminating the tipped 

minimum wage would mean increased wages for tens of millions of workers, nearly 

55 percent of whom are women and more than one-third of whom are Black or 

Latino.2s A rise in the minimum wage to $15.00 would provide food security for an 

estimated 1.2 million people, increase consumer spending and stimulate the 

economy.29 

It is also imperative that we ensure fair pay for women. Yesterday was Equal Pay 

Day, a symbolic day that marks how far into the year women who hold full-time, 

year-round jobs must work to catch up to what men were paid in the prior year. The 

zn Martin, R (2017, March. Personal communication. National Director: Workplace Justice Campaigns, MomsRising.org). 

21 Eisenbrey, R. & Kimball, W. (2016, May 17). The new overtime rule will directly benefit 12.5 million working people. 

Economic Policy Institute Publication. Retrieved 1 April2017, from http://www.epi.org/publicationlwho-benefits·from·new· 

overtime-threshold/ 

2.s Huizar, L. & Gebreselassie, T. (2016, December). What a $IS Minimum Wage A1eans for Women and Workers of Color. 

National Employment Law Project Publication. Retrieved 1 April2017, from http://www.nclp.org/contentfuploads/Policy·Brief· 

15·Minimum·Wage·Women·Workers·of·Color.pdf 

29 Ibid; Rodgers III, W. {2016). The Impact of a $15 Minimum Wage on Hunger in America. The Century Foundation 

Publication. Retrieved 1 April2017, from https:l/tcf.org/contentlreportlthe·impact·ofa·l5·minimum·wage·on·hungerin· 

america/ 

11 
42 

CEWDOCROOM with DISTILLER


Insert offset folio 28 here 24882.028

gender-based wage gap is pervasive and unrelenting. Over the course of a year, 

women who work full time, year-round are paid just 80 cents for every dollar paid to 

men, amounting to a typical annual gap of $10,470. That money could buy 78 weeks 

of food or cover nearly a year of rent.ao There is an even larger disparity in the 

wages paid to Black women, Latinas, white women and some ethnic subgroups of 

Asian women when compared not to men overall, but to white, non-Hispanic men. 

For many women who experience gender discrimination in wages, overtime pay can 

help bolster financial stability, but H.R. 1180 would threaten their ability to receive 

pay for the overtime work they do. In contrast, the Paycheck Fairness Act would 

increase women's financial stability by promoting fair pay practices. It would help 

women challenge and eliminate discriminatory pay practices, limit employers' use 

of prior salary history in hiring and compensation decisions, help train women and 

girls in salary negotiation, support government collection of critical wage data and 

reward employers that have good pay practices. 

Employees Must be Able to Earn Paid Sick Days to Protect Their Health and Economic 

Security 

Everyone gets sick and needs medical care for themselves or their families at some 

point. While H.R. 1180 would do nothing to assure that workers have the paid sick 

days they need, the Healthy Families Act (H.R. 1516/S. 636) would ensure that most of 

the 41 million workers who do not have any paid sick time could start to earn it.a1 

The Healthy Families Act would allow workers to earn up to seven paid sick days 

annually to use to recover from short-term illness, care for a sick family member, 

seek routine medical care or obtain assistance related to domestic violence, sexual 

assault or stalking. Employers that already provide this type ofleave would not 

have to provide additional paid sick time. 

The Healthy Families Act is a much more effective solution than H.R. 1180 in 

providing workers with the time they need to care for their loved ones and . 

themselves. It guarantees employees the ability to usc the sick time they have 

earned and builds on best practices from laws that are now or will soon be in place 

in seven U.S. states and 32 localities.3z At a time when more than half of parents do 

not have even a few paid sick days they can use to care for an ill childaa and tens of 

:ro National Partnership for Women & Families. (2017, ApriD. America's Women and the Wage> Gap, Retrieved 31 March 2017, 

from http://www .nationalpartnership .org/research·library/workplace·fairness/fair-pay/americas·women·and·the·wage·gap.pdf 

'll U.S. Bureau of Labor Statistics. (2016, March). Leave benefits: Access, private industry workers, National Compensation 

Survey(Table 32). Retrieved 31 March 2017, from https://www.bls.gov/ncs/ehs/benefits/2016/ebb10059.pdf 

·u National Partnership for Women & Families. (2016, November). Current Pa1d Sick Days Laws. Retrieved 1 April2017, from 

www.nationalpartnership.org/psd1aws 

:J:l Smith, K., & Schaefer, A (2012, June). Who Cares tOr the Sick Kids? Parents' Access to Paid Time to Care fOr a Sick Child. 

Carsey Institute at the University of New Hampshire publication. Retrieved 31 March 2017, from 

http://scholars. unh.edu/cgilviewcontent.cgi?article=ll70&context=carsey 

12 
43 

CEWDOCROOM with DISTILLER


Insert offset folio 29 here 24882.029

millions of workers have elder care responsibilities,s4 working families need the 

paid sick time the Healthy Families Act would provide and not the false, elusive 

promise of comp time offered by the Working Families Flexibility Act. 

Workers Need Poid Family and Medical Leave and Expanded FMLA Protections during the 

Best and Worst of Times 

In addition to paid sick days to cover short-term needs, nearly all working men and 

women will need time away from their jobs at some point to care for a new child, a 

seriously ill loved one or to address their own serious health condition. Despite this 

universal need, only 14 percent of U.S. workers have designated paid family leave 

through their employers and less than 40 percent have personal short-term 

disability insurance through an employer-sponsored plan.3s For lower-wage 

workers, access to paid family and medical leave is even more rare. 

Tens of millions of workers cannot afford to take the time they need without some 

wage replacement,3G and H.R. 1180 would do nothing to address this pervasive 

problem. It does not offer a guarantee that an expecting parent who planned 

carefully for time away from work to welcome a new child to the family- or a sister 

who wants to help a sibling through cancer treatment- would be able to take 

banked comp time to meet those needs. Despite rhetoric to the contrary, H.R. 1180 

would not even guarantee that a parent who wanted to use banked comp time to 

attend a parent-teacher conference would have that leave request granted. 

It is time for the United States to adopt a national system of paid family and 

medical leave insurance and to expand unpaid, job-protected FMLA leave to cover 

more workers who need leave for more reasons. 

The Family And Medical Insurance Leave (FAMILY) Act (H.R. 947/S. 337) would create a 

national paid family and medical leave insurance program, modeled on successful 

programs in California, New Jersey, Rhode Island and, soon, New York and the 

District of Columbia. The FAMILY Act would create a self-sustaining program that 

would provide up to 12 weeks of paid leave to workers welcoming a new child, 

caring for a seriously ill or injured close relative, addressing their own serious 

a~ MetLife Mature Market Institute. (2011, .June). MetLife StudyofCaregiving Costs to Working Caregivers: Double Jeopardy 

for Baby BoomeJ'S Caring for Their Parents. Retrieved 31 March 2017, from 

https:/fwww.metlife.com/assets/cao/mmi/publications/studies/20111Caregiving-Costs·to·Working·Caregivers.pdf 

35 U.S. Bureau of Labor Statistics. (2016, March). Leave benefits: Access, private industry workeJ'S, National Compensation 

Survey(Tables !6 & 32). Retrieved 31 March 2017, from https:l/www.bls.gov/ncs/ebslbenefits/2016/ebbl0059.pdf 

:m Horowitz, 1J., Parker, K., Graf, N., & Livingston, G. (2017, March). Americans Wide~vSupport Paid Family and Medical 

Leave, hut Differ Over Specific Policies. Pew Research Center Publication. Retrieved 31 March 2017, from 

http://assets.pewresearch.org/wp·contentluploads/sites/3/20 17/03/22152556/Paid-Leave-Report-3-17·17· FINAL. pdf. Abt 

Associates Inc. (2012, September 6). Family and Medical Leave in 2012: Technical Report. Retrieved 31 March 2017, from 

https=//www.dol.gov/asp/evaluation/fm1a/FMLA·2012·Technical·Report.pdf 

13 
44 

CEWDOCROOM with DISTILLER


Insert offset folio 30 here 24882.030

health condition or dealing with certain circumstances of a military service 

member's deployment. The FAMILY Act has the support of 78 percent of voters, 

including 66 percent of Republicans and 77 percent of independents.37 It also has 

the support of 70 percent of small businesses surveyed nationwide,3s and it is the 

recommended approach of a working group of small business owners convened last 

year.39 

Paid leave has been shown to increase families' financial stability; promote better 

health outcomes for children, older adults and caregivers; generate new tax 

revenues; and reduce burdens on the social safety net. In the year following a birth, 

new mothers who take paid leave are 54 percent more likely to report wage 

increases and 39 percent less likely to need public assistance than mothers who do 

not. Fathers who take paid leave are also less likely to need public assistance.4o 

Paid leave safeguards the income and retirement security of workers with elder care 

responsibilities who might otherwise have to drop out of the workforce. On average, 

a worker who is 50 years of age or older who leaves the workforce to take care of a 

parent will lose more than $300,000 in wages and retirement income.41 

In addition to paid leave, the FMLA should be updated. America's workers need 

better access to job-protected leave in a broader range of circumstances. According 

to the most recent Department of Labor data, slightly less than 60 percent of the 

workforce is eligible for FMLA leave, leaving tens of millions of workers vulnerable 

to job loss when family or personal needs arise.42 The comp time offered by H.R. 

llSO would not fill this gap. 

Complaints that most small businesses cannot handle job-protected leave are 

baseless. It's past time we extend FMLA protections to employees in smaller 

businesses. Indeed, new Small Business Majority data shows that 71 percent of 

:n National survey of 1,200 voters conducted November 6·8, 2016 by Lake Research Partners and The Tarrance Group on 

behalf of the National Partnership for Women & Families. Retrieved 1 April2017, from 

http://www .nationalpartnership.org/research ·library/work·family/lake·research·partners·election·eve·night·omnibus·survey· 

results·on·issues·of·importance·to·working·families.pdf 

M Small Business Majority and Centel' for American Progress. (2017, March). Opinion Poll: Small Businesses Support Paid 

Leave Programs. Retrieved 31 March 2017, from http://www.smallbusinessmajority.org/sites/default/fileslresearch· 

reports/033017-paid·leave·poll.pdf 

:m Main Street Alliance. (20 17). Paid Fam11v and Medical Leave: A Proposal for Small Business Success. Retrieved 31 March 

2017, from http:J/www .mainstreetalhance.~rg/small_business_owners_support_family _act 

40 Houser, L., & Varatanian, T. (2012, January). Pay Matters: The Positive Economic Impacts ofPmd Family Leave fbr 

Fam1lies, Businesses and the Public. Rutgers Center for Women and Work Publication. Retrieved 31 March 2017, from 

http :J/www .nationalpartnership.org/research-library/work·family/other/pay·matters.pdf 

41 MetLife Mature Market Institute. (2011, June). The MetLife Study of Care giving Costs to Working Caregivers: Double 

Jeopardy for Baby Boomers Caring for Their Parents. Retrieved 31 March 2017, from 

https://www.metlife .com/assets/cao/mmi/publications/studies/20 11/Carcgiving·Costs·to· Working·Caregivers.pdf 

·12 Abt Associates Inc. (2012, September 6). Fam1Jy and MedicHI LeiJVe in20J2: Technical Report. Retrieved 31 March 2017, 

from https://www.dol.gov/asp/evaluationlfmla/FMLA-2012·Technical·Report.pdf 

14 
45 

CEWDOCROOM with DISTILLER


Insert offset folio 31 here 24882.031

small business owners surveyed nationwide would support dropping the FMLA 

business size threshold to 20 employees from its current level of 50.43 

The definition of"family member" should be updated beyond parents, spouses and 

minor children to allow workers to take FMLA leave to care for a domestic partner, 

parent-in-law, adult child, sibling, grandchild or grandparent. 

The FMLA's promise of job protection should also be extended to include part-time 

workers and to address more circumstances. We commend members of the House in 

both parties for supporting an FMLA expansion for certain bereavement leaves 

(H.R. 1560/S. 528), but believe that proposal should also extend to grieving spouses 

as well as adult children grieving the death of a parent. The death of a close relative 

often comes with substantial legal and practical challenges as well as emotional 

strain, and too often people are forced to return to their jobs in the midst of the 

turmoil created by a loved one's death. 

In addition, H.R. 1180's lead sponsor and others have talked about comp time as the 

solution to a parent's need to attend a parent-teacher conference. A much more 

useful policy solution, and one that would help many more parents and children, is 

a "small necessities" expansion of the FMLA, which would allow workers to take up 

to 24 hours per year to attend school meetings, parent-teacher conferences and 

other essential educational activities. Finally, survivors of domestic violence and 

sexual assault should be able to use FMLA leave to seek legal, medical and 

relocation services. 

True Flexibility Would Reflect Employees' Needs for Predictability, Notice and Fluidity in 

Scheduling 

H.R. 1180 has the word "flexibility" in its title, but the flexibility it offers workers is 

an empty promise. A growing body of research shows that true flexibility and 

predictability - the ability to vary work schedules and to have advance notice of 

scheduling, for example -provide benefits for workers and cost-savings for 

employers. Nothing in the FLSA prohibits these best practices. 

The Schedules That Work Act would create a right for workers to request schedule 

adjustments and incentives for employers to implement fair scheduling practices. 

This would limit the use of"just in time" scheduling and call-in shifts, which hold 

workers back, impede their productivity on the job, interfere with their caregiving 

-1:1 Small Business Majority and Center for American Progress. (2017, March). Opinion PoJJ: Small Businesses Support Paid 

Leave Programs. Retrieved 31 March 2017. from http:ffwww.smallbusinessmajority.org/sites/default/files/research· 

reports/033017-paid-leave·poll.pdf 

15 
46 

CEWDOCROOM with DISTILLER


Insert offset folio 32 here 24882.032

responsibilities at home and create extra child care and transportation expenses. In 

addition, DOL should be funded adequately to allow it to educate employers about 

the flexibility available under the FLSA and the benefits that flexibility provides. 

Conclusion 

At a time when our nation's working families urgently need public policies that 

make our workplaces more fair and family friendly, H.R. 1180 is an empty promise 

-a cruel hoax that would take the country in the wrong direction. It would make 

life appreciably harder for families that are already struggling. No amount of 

misleading or deceptive rhetoric can soften the blow. For many workers, H.R. 1180 

would bring less pay, less flexibility and workplaces that are even less family 

friendly. 

Instead of wasting time on smoke and mirrors to try to hide the real impact of this 

bill- which will cause grievous injury to the millions of people across the country 

who are looking for hope and opportunity, economic security and higher wages- I 

urge you instead to support updates to the minimum wage and overtime protections 

for eligible workers, promote fair pay through the Paycheck Fairness Act, extend 

access to time to care through the Healthy Families Act, the FAMILY Act and 

FMLA expansions, and promote scheduling predictability through the Schedules 

That Work Act. These are the advances the nation needs and the public wants. 

These are the initiatives that would help our nation's workers and their families, 

employers, communities and our economy. 

Chairman Byrne, Ranking Member Taka no and members of the Committee, thank 

you for the opportunity to testify here today. With our many allies, and on behalf of 

America's workers, the National Partnership for Women & Families hopes to work 

with you to advance policies that are truly fair and family friendly. 

16 
47 

Chairman BYRNE. Thank you, Ms. Shabo. Mr. Court? 

TESTIMONY OF LEONARD COURT, DIRECTOR, CROWE & 

DUNLEVY, OKLAHOMA CITY, OKLAHOMA, ON BEHALF OF 

THE U.S. CHAMBER OF COMMERCE 

Mr. COURT. Thank you, Mr. Chairman. I’m honored to appear before the Committee on behalf of the U.S. Chamber of Commerce to 

discuss H.R. 1180, the Working Families Flexibility Act of 2017. 

As you know, the U.S. Chamber is the world’s largest business 

federation. My firm, Crowe & Dunlevy, in Oklahoma City, is a 

long-time member of the Chamber, and I chair the Chamber’s 

Wage, Hour, and Leave Subcommittee. 

I want to talk to you today about the act because it presents options for the employees. The bill would harmonize for private sector 

employees the same benefits that have been available for public 

sector employees, including some of your own staffs, since 1985. 

The bill has been carefully drafted to ensure that employees are 

given the choice of whether to participate in the program, how long 

they want to participate in the program, when they seek the option 

to cash out in the program, and to give them protections against 

the kind of hypothetical force or coercion that has been discussed 

earlier today. 

Prior witnesses from SHRM have talked to you about the benefits of the Act, and of course, this is not the first time this Act has 

been discussed before the Committee or this concept, so I want to 

talk to you about some of the arguments that are being advanced 

against the act. 

My paper has a more extensive discussion of these, so I want to 

limit my remarks to three or four specific points. 

First, opponents of the bill try to claim that it will undermine the 

protection for low-wage workers because employers will coerce employees into taking comp time, and we’ve already heard comments 

to that effect this morning. 

Let’s be clear, the decision to participate in the program and the 

decision of whether or not to take this comp time is a voluntary decision based upon the employee’s choice. 

In Section (e)(4) of the bill, there is protection that prohibits an 

employer from intimidating, threatening, or coercing an employee 

in terms of whether they participate in this program, and when 

they decide to voluntarily take its benefits. 

Second, a variation of that is that the bill will weaken protections for Americans by reducing the cost of overtime. Now, this argument in many respects assumes that this is not paid leave. In 

fact, not only will you have to pay as an employer the same costs 

that you would if you had paid the overtime during the pay period, 

which you could very well be paying more because the Act requires 

that when the overtime is cashed in, it is cashed in at the higher 

hourly rate. 

So, taking the hypothetical that was given earlier, if I get comp 

time in January at $7.25, but I get a pay raise in July to $9, my 

comp time, if I cash it out after that point in time or at the end 

of the year is going to be paid at the $9 rate, not the $7.25. So, 

in fact, it could cost employers more, not less, under this program. 

CEWDOCROOM with DISTILLER

48 

Third, upon its claim that too much control is given to the employer in this regard, I think that ignores the clear wording of the 

bill. 

The use of comp time, the ability to cash it in, is dependent upon 

only two things. One, that the employee give reasonable notice to 

the employer, and two, that comp time that’s going to be taken will 

not unduly disrupt the business operation. 

Now, this is not a hypothetical standard. We have this standard 

already for public employees. We have 20 years of case law showing that this standard is a difficult standard for the employer to 

prove in court and to beat. 

Fourth, there’s the unfounded argument that the employer could 

refuse to hire individuals if they will not agree to comp time. The 

provisions of the bill simply do not allow that. They have the same 

protection as covers Federal employees in the use of flex time, and, 

in fact, to even be eligible, you must have worked 1,000 hours for 

that employer within the previous 12 months. 

Last and certainly not least, opponents of the bill say that employers may force employees to cash out comp time against their 

will. The protections of the bill clearly do not allow that. The employer can require an individual to cash out only comp time over 

80 hours, which is a better protection than is given to those in the 

public sector, and the employee, on the other hand, can request to 

cash out comp time only within a 30-day notice. 

So, let me, if I quickly can, apply these rules to the hypothetical 

that’s been given. A company has 200,000 covered employees who 

are opting into the program. That would seem to indicate they 

want to be in that program because it is their choice, not the employer’s. 

Over the course of the year, not one of them chooses to take the 

cash instead of the comp time. Again, that would seem to indicate 

that they want the benefit that has been given. Last and certainly 

not least, it can, as I indicated to you, increase the cost to the employer because several of those 200,000 employees would probably 

have been given pay raises during the course of that year. 

It is time to bring the private sector on a footing that is equal 

to the public sector, to harmonize the benefits. Therefore, on behalf 

of the U.S. Chamber and employers everywhere, we urge you to 

pass this bill. Thank you. 

[The statement of Mr. Court follows:] 

CEWDOCROOM with DISTILLER

49 

CEWDOCROOM with DISTILLER


Insert offset folio 33 here 24882.033

Statement of the U.S. Chamber of Commerce 

ON: Reviewing H.R. 1180, the Working Families Flexibility 

Act of 2017 

TO: U.S. House of Representatives Committee 

Subcommittee on Workforce Protections of the 

Committee on Education and the Workforce 

DATE: April 5, 2017 

BY: Leonard Court, Senior Partner, Crowe & Dunlevy 

1615 H Street NW I Washington, DC I 20062 

The Chamber's mission is to advance human progress through an economic, 

political and social system based on individual freedom, 

incentive, initiative, opportunity and responsibility. 
50 

CEWDOCROOM with DISTILLER


Insert offset folio 34 here 24882.034

The U.S. Chamber of Commerce is the world's largest business federation 

representing the interests of more than 3 million businesses of all sizes, sectors, 

and regions, as well as state and local chambers and industry associations. The 

Chamber is dedicated to promoting, protecting, and defending America's free 

enterprise system. 

More than 96% of Chamber member companies have fewer than 100 

employees, and many of the nation's largest companies are also active members. 

We are therefore cognizant not only of the challenges facing smaller businesses, 

but also those facing the business community at large. 

Besides representing a cross-section of the American business community 

with respect to the number of employees, major classifications of American 

business-e.g., manufacturing, retailing, services, construction, wholesalers, and 

finance-are represented. The Chamber has membership in all 50 states. 

The Chamber's international reach is substantial as well. We believe that 

global interdependence provides opportunities, not threats. In addition to the 

American Chambers of Commerce abroad, an increasing number of our members 

engage in the export and import of both goods and services and have ongoing 

investment activities. The Chamber favors strengthened international 

competitiveness and opposes artificial U.S. and foreign barriers to international 

business. 

Positions on issues are developed by Chamber members serving on 

committees, subcommittees, councils, and task forces. Nearly 1,900 

businesspeople participate in this process. 
51 

CEWDOCROOM with DISTILLER


Insert offset folio 35 here 24882.035

STATEMENT OF LEONARD COURT 

SENIOR PARTNER, CROWE & DUNLEVY, A PROFESSIONAL CORPORATION 

BEFORE THE SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

HOUSE COMMITTEE ON EDUCATION AND THE WORKFORCE 

Reviewing the Working Families Flexibility Act of2017 

April5,2017 

Mr. Chairman and Members of the Subcommittee: 

I am honored to appear today on behalf of the U.S. Chamber of Commerce to 

express our support for H.R. 1180, the Working Families Flexibility Act of2017. My law firm, 

Crowe & Dunlevy is one of the two largest firms in Oklahoma, and, is a member of the 

Chamber's Labor Relations Committee where I serve as the Chairman of the Subcommittee on 

Wage, Hour and Leave issues. 

The Working Families Flexibility Act of2017, like its predecessors, would allow 

employers to offer employees the option to choose to take their overtime compensation as paid 

time off instead of just direct compensation. Employees who chose this would thus be getting 

the same amount of extra income by getting paid time off at the rate of 1.5 hours for each hour of 

overtime worked. The bill would harmonize the private sector with the public sector where this 

option is already available and has been used without problems. 

The bill is carefully drafted to ensure that employees retain maximum flexibility in being 

able to choose whether to take the comp time option, whether to continue exercising it, when 

they may seek a cash out of their banked time, and to protect them from any coercion or undue 

influence from the employer as to whether they exercise the comp time option. 

Because this bill has been introduced and considered by this committee several times 

before, there is little new that can be said about it. Other witnesses this morning have discussed 

their views on the merits of the legislation and I would like to use my remarks to refute various 

arguments we know opponents of this bill will raise. Many of these are based on a misreading of 

the bill, and others are based on a view that employers simply do not treat their employees 

properly. 

Among the attacks opponents like to raise is that by promoting this bill, Republicans are 

undermining the 40-hour workweek and jeopardizing overtime pay. The Fair Labor Standards 

Act's (FLSA) 40-hour workweek as the threshold for earning overtime compensation remains 

totally untouched. Ironically, Obamacare's definition of a full time employee being 30 hours a 

week averaged over the course of a month represents a direct challenge to the 40-hour workweek 

and may make it harder for some employees to earn overtime. The FLSA 40-hour workweek 

remains the threshold necessary to earn overtime, and thus compensatory time under this bill. 

Opponents argue that the bill will undermine protections for low wage workers because 

employers will coerce employees into taking comp time instead oftraditional overtime 

2 
52 

CEWDOCROOM with DISTILLER


Insert offset folio 36 here 24882.036

compensation. The decision to opt for comp time always rests with the employee, not the 

employer. The bill explicitly prohibits employers from trying to "intimidate, threaten, or coerce" 

any employee regarding their rights to choose or not to choose to take the comp time option, or 

their right to use banked comp time. The bill provides that employers who violate these 

protections are subject to specific penalties. Finally, this argument seems based on the 

misreading of the bill that comp time is unpaid, as opposed to the fact that it is paid time off. 

The only incentive an employer would have to coerce an employee into taking comp time would 

be if the leave was unpaid. 

A variation on that assertion is that the bill will weaken overtime protections for working 

Americans by significantly reducing the cost of overtime to employers. This argument only 

works if the bill converted overtime compensation into unpaid leave. But under the bill, comp 

time is paid time off and will accrue at the rate of one-and-one-half paid hours for each hour of 

overtime worked. The cost to employers is the same. In addition, the employer must pay the 

employee for accrued, unused comp time at the highest rate received by the employee during the 

time in which the comp time was accrued. 

We have also heard opponents claim that employers are only interested in offering comp 

time because it will mean they can hold onto the employee's earnings and use those funds for 

their own purposes. In fact, employers must carry the liability for the employee's earnings 

thereby tying up those funds. Further, given that an employee can request a pay out of their 

accrued earnings at any time and the employer must comply within 30 days, employers will need 

to ensure that sufficient funds are obligated to cover these amounts. Employers who would 

choose to offer the comp time option would do so because their employees are interested in 

having the choice. 

Similarly, some opponents have suggested that private sector employers cannot be trusted 

like public sector employers because they are in business to make a profit. Private sector 

employers must abide by the various laws that protect employees' interests, including all the 

other provisions of the FLSA. To suggest they cannot be trusted to responsibly implement this 

provision is to suggest that they cannot be trusted with any new law. Furthermore, that same 

profit motive means private sector employers must respond to market forces and be vigilant that 

they remain a desirable employer. Offering comp time would be one way a private sector 

employer could distinguish itself from its competitors. 

Opponents also fear that the employer maintains too much control over when the 

employee may use the comp time. Under the bill, the timing and use of comp time is up to the 

employee- subject only to the employee giving reasonable notice to the employer of the intent 

to use comp time, and the employer's limited right to limit the employee's use based on whether 

the employee's absence would unduly disrupt the business operations. These conditions are 

identical to those that apply to the use of comp time in the public sector and similar to the limits 

on use of leave under the Family and Medical Leave Act (FMLA). They are also similar to basic 

leave request procedures used by employers outside the context of these laws. 

Another unfounded argument raised against the bill is that an employer could refuse to 

hire an employee or give overtime based upon whether the worker will take comp time. This is 

3 
53 

CEWDOCROOM with DISTILLER


Insert offset folio 37 here 24882.037

rebutted by specific language in the bill prohibiting an employer from coercing or attempting to 

coerce an employee into taking comp time in lieu of cash overtime. The language of the bill 

prohibiting coercion is the same language that covers federal employees in the use of flex time (5 

USC 6132). Furthermore, under the bill, willingness or unwillingness to take comp time cannot 

be a condition of employment. The bill allows workers the option of comp time, while 

protecting those workers who do not want comp time but prefer traditional cash overtime wages. 

Consistent with their view that employers will find ways to coerce their employees, 

notwithstanding the prohibitions such actions, opponents argue that the penalties for coercion in 

the bill are too weak. In fact, the penalties in the bill for coercion are the same as those for 

unpaid overtime under the FLSA, and comparable to those in other labor laws such as the 

FMLA. The employee receives the amount of pay owed plus an equal amount in liquidated 

damages (plus attorney's fees and costs). If the employee has already used and been paid for the 

comp time, then that amount is deducted from the award (since they have already received the 

overtime pay), but he or she may still receive the liquidated damages. In addition, the other 

remedies, including civil and criminal penalties and injunctive relief, under the FLSA apply. 

The employee can seek redress through a private right of action, or the Department of Labor may 

sue on behalf of the employee. 

Opponents also believe an employer may force an employee to cash out comp time 

against his or her will. The bill allows the employer to cash out accrued comp time after giving 

30 days' notice to the employee and restricts this option to accrued hours over 80, unless the 

employee requests the cash out. The employee can request a cash out at any time, and the 

employer must comply in 30 days. These provisions are in recognition that either party may, for 

a variety of reasons, change their mind and prefer to cash out the comp time and pay the accrued 

overtime wages. 

Another fallacious argument is that employees who earn comp time should receive credit 

for those hours for purposes of health and pension benefits. Comp time is given for overtime 

hours, which are hours for which the employee has worked and is "entitled to pay" and are 

therefore considered "hours of service" under ERISA (29 C.F.R. Sec. 2530.200b-2). There 

would be no change in the hours of service with which an employee would be credited for 

purposes of accrual, participation, and vesting under ERISA. 

Likewise, opponents seem to think that when an employee takes comp time, that time 

should be considered hours worked for purposes of additional overtime pay. The standard for 

calculating "hours worked" has been in place under the FLSA since the 1930's. The only hours 

which may be counted in the calculation of overtime pay are hours which the employee has 

actually worked. Comp time would be treated the same as vacation leave, sick leave, and leave 

under the FMLA, none of which are considered "hours worked" under the FLSA. Similarly, 

comp time in the public sector has not been considered "hours worked." 

Some on the other side worry that an employee who is terminated with comp time 

eligibility may suffer a loss of unemployment compensation because of the comp time 

entitlement. The bill requires the employer to cash out all accrued comp time upon termination 

of employment, whether voluntary or involuntary. Depending upon state laws, such payments 

4 
54 

CEWDOCROOM with DISTILLER


Insert offset folio 38 here 24882.038

might be netted out against the initial week or weeks' unemployment benefits, in the same way 

as severance pay is when that is provided. The employee's unemployment benefits are thus 

deferred not lost for the employee. In other words, the employee would be eligible for the same 

amount of unemployment benefits whether or not he or she receives cashed out comp time, but if 

the comp time is cashed out, the unemployment benefits will last longer. 

One of the most creative opposition arguments is that allowing comp time banks of up to 

160 hours 'may encourage' employers to go out of business to escape liability. The 160 hours is 

a maximum. The employer or the employee may insist on a lower limit, and an employee may 

choose not to take comp time at all. The bill also requires an annual cash out of accrued comp 

time, and allows the employee to request a cash out of his or her accrued comp time at any time. 

Finally, the notion that an employer would voluntarily go out of business to avoid paying out 

accrued comp time is absurd. 

Opponents also worry that the bill has no protections for employees if an employer goes 

bankrupt. But, the bill explicitly says that accrued comp time is given the same status as unpaid 

wages, and thus given the same priority as any other wages owed to workers in the event of 

bankruptcy. 

Ironically, those opposed to the bill believe that a union could bow to pressure from the 

management, to specify that accrued comp time must be used by employees during a period of 

slow work, such as during a model change-over in an automobile plant. However, a collective 

bargaining agreement cannot preempt the parameters on comp time that are spelled out in the 

bill. Thus, an employee may use comp time whenever he or she wishes, subject to the 

requirements for reasonable notice the employee's absence not being "unduly disrupt[ive]" to 

the operations of the employer. This applies even if the agreement to accept comp time is 

negotiated by the union; the union may not waive this right of the employee who owns the comp 

time. The employee is also protected by the prohibitions against employer coercion. 

Finally, the other side worries that the bill fails to require an employer to notify 

employees of their rights under the Act. Section 4 of the bill explicitly provides for notification 

to employees through the FLSA poster that employers must display in the workplace. 

This bill has been introduced and debated many times. All of the arguments opposing it 

have been answered and rebutted. It is now time to enact the Working Families Flexibility Act 

of2017. 

5 
55 

Chairman BYRNE. Thank you, Mr. Court. Now, we get to the part 

of the hearing where we get to ask questions. I will call on myself 

for the first questions. 

Ms. Christ, you mentioned your experience working for the State 

of Alabama, where a comp time policy was in place. You also know 

that many of your employees work closely with police officers who 

are able to choose comp time instead of overtime pay. 

As an HR professional with a nonprofit community mental health 

center, do you believe your employees would benefit from the option of choosing comp time in the same way State and local government employees have benefited from the comp time option? 

Ms. CHRIST. Mr. Chairman, 100 percent, yes. I did work at the 

Department of Industrial Relations and, also, we do work closely 

with the Huntsville Police Department. 

The way we operate, 24 hours a day, 365 days a year, we do have 

opportunities or situations where crises occur, and our employees 

are there to do the job to help our community, so thereby, being 

able to choose an option to take time off later, if they happened to 

have had overtime that week, would benefit them, but they would 

have that choice. 

I believe that’s why I’m a proponent, because I know our employees would like that choice. 

Chairman BYRNE. Thank you. Mr. Court, under the bill, an employer would only be permitted to deny an employee’s request to 

use accrued comp time if it would ‘‘unduly disrupt’’ the business operations. There are some who have suggested this would allow employers total control over scheduling when comp time can be taken. 

Could you elaborate on whether or not that is an accurate characterization of the bill’s language? 

Mr. COURT. Mr. Chairman, I believe that would be a very inaccurate characterization. We have over 20 years of legal precedent 

under cases in the public sector which use exactly that same standard. The burden of proof is on the employer. The courts have consistently held that financial cost alone is not enough to beat that 

standard. 

For instance, if I want to refuse your ability to take comp time 

because it’s going to cost me more to bring in another person and 

pay them overtime, the courts have consistently held that does not 

meet the standard. 

So, there is a clear protection there for employees. It’s a standard 

that’s used and has been used for 20 years in the public sector. I 

have every reason to believe it can work in the private sector also. 

Chairman BYRNE. Thank you. Ms. Frey, your written testimony 

discusses the role public policy can play in advancing the adoption 

of workplace flexibility. The bill we are discussing today is certainly one of those options, and I thank you for conveying SHRM’s 

strong support for H.R. 1180. 

What other policies could, as you note in your written testimony, 

accommodate the increased diversity and complexity within the 

American workforce? 

Ms. FREY. Thank you, Chairman. Certainly, comp time would be 

a step in the right direction, but we believe that policies that would 

broaden the capability of employers to expand and encourage them 

to expand paid leave options, as well as workplace flexibility, would 

CEWDOCROOM with DISTILLER

56 

be something that we would want to dialogue on, and certainly 

something we would want to work with this subcommittee on. 

Thank you. 

Chairman BYRNE. Ms. Shabo, I was listening to your testimony, 

and you alluded to the fact that the sort of benefits that are provided by Ms. Christ’s company and Ms. Frey’s company are not 

necessarily available to everybody, so you may have employees in 

different situations. 

Does this bill not provide the sort of flexibility that would allow 

them to do what they want to do, at the same time, not coercing 

others to do it if they do not want to do it? 

Ms. SHABO. Well, I think the FLSA currently provides this flexibility, if you want to call it that, which is that they are currently 

obligated to provide their employees with overtime pay for overtime 

hours worked. Those employees can save that money. They can invest it on their own. They can earn interest. Ms. Christ’s son can 

put that money in the bank and start to watch returns on his 

money as well. 

Chairman BYRNE. But they cannot get comp time. 

Ms. SHABO. There is nothing preventing these employers from 

saying you worked 20 extra hours last week, why don’t you take 

20 hours this week or take 10 hours? Take the time you need this 

week to deal with your family situation, we’re not going to penalize 

you for not showing up for work tomorrow. There’s nothing that 

prevents that. 

Chairman BYRNE. Let me ask Mr. Court to respond to that. 

Mr. COURT. I think the example that’s being used is one that is 

allowed only in the same pay period, so if I work the extra 20 hours 

a week in the first week of April, and my granddaughter, who happens to be a pretty good tennis player, has a tournament at the end 

of April, I’m not going to get that 20 hours a week off at the end 

of April. 

So, the flexibility that’s talked about under the current FLSA is 

very limited to two week periods of time. The flexibility under this 

bill is much different and much more beneficial. 

Chairman BYRNE. Thank you. Mr. Takano? 

Mr. TAKANO. Thank you, Mr. Chairman. Ms. Shabo, do you care 

to respond to that, what he just said? 

Ms. SHABO. Yeah, I mean, there is nothing that would prevent 

the employee from going to their employer in that situation and 

saying, hey, my daughter has a tennis tournament at the end of 

April, you know, thank you for offering me this time off next week, 

but actually, would you mind if I just waited until the end of the 

month and took the time then? An employer that wants to make 

their employees happy, wants to make sure their employees’ morale is good, will say yes. 

Mr. TAKANO. Thank you. Because of the overtime salary threshold where workers are automatically eligible for overtime pay has 

not been updated in a very, very long time, today, it is possible for 

employers to demand very long hours for many of their employees, 

without paying them a cent for hours worked beyond 40 hours a 

week. 

CEWDOCROOM with DISTILLER

57 

H.R. 1180 gives employers yet another tool to deny workers overtime pay, at the very moment their overtime rights ought to be 

strengthened. 

Ms. Shabo, would you tell this Committee about the extent to 

which the number of employees covered by overtime rules has fallen since the 1970s as a result of the failure to update the threshold? 

Ms. SHABO. Yes, absolutely. I think you’re talking about the salary rule for overtime. 

Mr. TAKANO. Yes. 

Ms. SHABO. So, back in the 1970s, 1975, about 60 percent of the 

workforce that were covered under the salary threshold for being 

able to earn overtime pay. We’re down to 8 percent. Unfortunately, 

the rule that would have increased the salary threshold to $47,000 

is held up in court, but that is something that we very much want 

to see increased. 

It would cover the new rule, if the Obama administration rule 

were put into effect, it would cover around 12.5 million more workers, more of half of whom are women, many of whom are parents. 

Mr. TAKANO. In 1979, nearly 12 million salaried workers had 

overtime protections, but today, with a 50 percent larger workforce, 

only 3.5 million salaried workers are automatically protected. That 

is a real decline. That is just stunning to learn that. 

I have a report here from the Economic Policy Institute that 

highlights the false choice between flexibility and overtime. I ask 

unanimous consent to enter it into the record. 

Chairman BYRNE. Without objection. 

Mr. TAKANO. Ms. Shabo, by making overtime cheaper, wouldn’t 

H.R. 1180 incentivize employers to assign mandatory overtime 

rather than letting employees go home to their families? 

Ms. SHABO. I’m afraid that it would. I mean, say you have six 

employees that are all cashiers, some of them choose to accept 

comp time, some of them want their overtime pay because they 

need to pay bills. 

The implicit incentive for that employer is to award the overtime 

hours to the workers that are planning to use comp time, which 

means they’re getting more labor from those folks. It also means 

less hours for those other workers who very much are relying on 

their overtime pay to make ends meet. 

Mr. TAKANO. For people with family commitments, being forced 

to stay late at work can mean children do not get picked up from 

a child care center or met at the bus stop. Would you tell us about 

the extent to which workers are already being forced to work mandatory overtime and its impact on their lives? 

Ms. SHABO. Yes. So, there’s some really great research based on 

national survey data that anybody can get access to, that asks 

about required overtime. More than a quarter of workers that are 

forced to work overtime now or asked to work overtime are being 

forced to work overtime by their employers. 

That’s a lot of people who don’t have any say over their schedules, who aren’t able to meet those obligations, and in an economy 

that is still needing to produce more jobs and better quality jobs, 

the incentive to offer overtime and to take overtime is pretty great 

for folks. 

CEWDOCROOM with DISTILLER

58 

The other thing, just to link to your prior question, there’s also research showing that folks that are just above that $23,000 salary 

threshold are more likely to be asked to work overtime. They are 

also less likely to have control over starting and working hours or 

other sort of pieces of flexibility that allows them to make their 

lives work and to have control. 

Mr. TAKANO. So, is this legislation likely to make this problem 

worse? 

Ms. SHABO. Yes, I absolutely believe that for many, many, many 

workers, the Working Families Flexibility Act would make lives 

worse. It would give them less control, less wages, and a lot more 

uncertainty. 

Mr. TAKANO. So, really, what we are talking about here is less 

choices for workers and more leverage for the employers, more convenience for the employers. As I said in my opening statement, I 

do not believe there is anything that is convenient or as fungible 

as cash. We are taking that fungibility, that convenience, away 

from employees. 

So, thank you for your testimony. I appreciate it. I yield back. 

Chairman BYRNE. The chair now calls on the distinguished 

Ranking Member of the Committee, the gentleman from Virginia, 

Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Chairman, this bill 

really purports to provide flexibility for workers, but in reality, the 

only real flexibility is for employers. It provides employers with 

flexibility to avoid paying time-and-a-half overtime that the Fair 

Labor Standards Act requires. By making overtime hours cheaper, 

H.R. 1180 would create a perverse incentive for employers to encourage their employees to work excessive hours. 

Let me ask Ms. Shabo a couple of questions. Is there any prohibition against an employer choosing employees for overtime that 

would accept comp time rather than overtime? 

Ms. SHABO. No, sir. 

Mr. SCOTT. You had talked about kind of the real choice, and if 

you do not change the law, there is nothing in present law to prevent someone from working overtime, getting paid time-and-a-half, 

and then subsequently just taking those hours off with an agreement with the employer. 

How would that work, and is that different from present law? 

Ms. SHABO. Well, under current law, an employee could work 

overtime, say there is a factory that needs to meet a demand, 

they’re a subcontractor, and they need to meet a demand. I know 

in Alabama, there are a lot of car manufacturers that have car suppliers, and they have their employees working 12-hour shifts for 

seven days to meet demand. 

Those employees would be paid for their time, and if the employer wants to make sure their employees are having the time 

they need with their families, there’s nothing preventing them in 

current law from giving those employees time off, whether that’s 

paid or unpaid time off. There’s nothing that prevents them under 

current law from allowing their employees to shift their start or 

end times or to work a split shift, or to work four 10-hour days instead of eight 5-hour days. Nothing at all. The current law already 

provides that flexibility. 

CEWDOCROOM with DISTILLER

59 

Mr. SCOTT. If they took time off, say they worked four hours, got 

time-and-a-half, got six hours, then a few weeks later, took six 

hours off, they would lose pay for those six hours, and essentially, 

they would be right back where the bill would put you. 

Ms. SHABO. Right. 

Mr. SCOTT. That would be really a choice of the employee, not of 

the employer. Is that right? 

Ms. SHABO. Yes. 

Mr. SCOTT. A suggestion was made that when the employee selects the time for the comp time, and it is unreasonably delayed, 

that all they have to do is file a lawsuit. Can you say a word about 

how practical that is as a remedy? 

Ms. SHABO. Sure. We already know a couple of things. One, filing 

litigation is a pretty onerous task, particularly for a worker who 

doesn’t have a lot of leverage in their workplace, who doesn’t have 

any protections against being fired other than antiretaliation language that exists in current law. Pursuing a lawsuit for something 

like this is very difficult. 

We already know there are vast Wage and Hour Division violations, wage and hour law violations. DOL is pursuing those. I’m 

very worried that under the President’s budget, DOL is seeing a 21 

percent decrease in their budget if the President’s budget is approved. There are no administrative remedies in this bill. 

There are very few worker protections, and I worry in that situation that you’ve just described that workers will really be left on 

their own without much power and without the ability to recover 

the wages that they are owed. 

Mr. SCOTT. After an employer says no, the attorney fees for the 

lawsuit would probably exceed whatever you would get. Is that 

right? 

Ms. SHABO. Yes, I would imagine so. A good illustration of this 

is say that a woman works several extra hours, earns overtime 

pay, and she has banked it as comp time under this proposal. Her 

mother then needs surgery, and she asks her employer to use her 

banked comp time so that she can be there with her mother at surgery. 

Now, the case law from the public sector would say in some cases 

you don’t actually get to take your time on the day you want it if 

it will disrupt the employer’s operations. The employer just needs 

to give you that time within a reasonable period. 

So, say you want your day on Tuesday, so you can be with your 

mother, but your employer says Tuesday is really not a good day, 

we have a big demand, and I’m not going to be able to fill that. 

Why don’t you take Thursday instead? That leaves the person both 

with the inability to be there with her mother, but also without the 

ability to get those wages to pay a caregiver to be there with her 

mother at that time. 

In that case, she has really nothing of value at the moment that 

she needs it, whereas, something like the Healthy Families Act 

would provide an earned paid sick day at that same time. 

Mr. SCOTT. Thank you. Mr. Chairman, I ask unanimous consent 

that a letter from AFSCME be entered into the record in opposition 

to the bill. 

Chairman BYRNE. Without objection, so ordered. 

CEWDOCROOM with DISTILLER

60 

The chair now recognizes the distinguished Chairwoman of the 

full Committee, the gentlewoman from North Carolina, Dr. Foxx. 

Mrs. FOXX. Thank you very much, Mr. Chairman. Ms. Frey, Continental Realty Corporation seems to be doing all the right things 

when it comes to implementing workplace flexibility practices, contrary to what some of my Democrat colleagues claim by and large. 

I think most employers do the right thing by employees. 

You were pretty clear about the need for policies to encourage or 

allow employers to offer voluntary options, and that includes having a voluntary approach to comp time. Can you elaborate on why 

it is so important for policymakers to avoid crafting one-size-fitsall requirements for employers with respect to flexible work options? 

Ms. FREY. Thank you. Yes, ma’am. So, with the one-size-fits-all 

mandate, unfortunately, all employers and all workplaces are not 

the same. I can draw from my own experience as to competition for 

top talent, especially here in the metro D.C. area, and really having the flexibility to be able to maintain, retain, and keep our top 

talent is extremely important to us. 

It’s far less disruptive to provide something like that rather than 

to lose some of the people that we consider high performers, that 

we need to keep and retain and develop. Thank you. 

Mrs. FOXX. Thank you. Ms. Christ, you described several flexible 

arrangements for workers at WellStone. How would offering the 

comp time option enhance your ability to provide employees the 

personalized work options many of them are seeking, and would 

comp time fit well with the other flexible work arrangements you 

offer? 

Ms. CHRIST. Thank you very much. Yes, having comp time would 

actually be another asset for our employees. We do compressed 

work weeks. We have flexible schedules, but also in our group 

homes, our employees can work with other employees to swap 

shifts. 

That still doesn’t take into effect if they want leave three months 

from now to take a family vacation, although we do provide generous leave policies, if they don’t have enough leave to cover it, 

they’re going to be on leave without pay. We’re going to allow them 

to be off, but if they chose to save their comp time or their overtime 

and just convert it to comp time, that would be their choice. 

So, I think that’s why I advocate for our employees because although we do offer generous leave and flexible schedules, this is 

just another addendum or another option for them. 

Mrs. FOXX. By the way, I want to thank all of you for being here 

today. Mr. Court, I think the arguments you have made for this 

legislation are excellent. Do you know any reason why private sector workers should not have the same opportunities and choices in 

workplaces afforded to public sector workers? 

Mr. COURT. I do not. 

Mrs. FOXX. Thank you. Mr. Chairman, I would just make one 

quick comment. I do not understand why it is better for people who 

work in the public sector to have this option and other people not 

to have it. We often get accused of the laws not applying to us that 

apply to everybody else. 

CEWDOCROOM with DISTILLER

61 

I think it is time that we outlined the benefits that public service 

employees get that the private sector is not allowed to have. I just 

do not think most of the public understands this, as Ms. Christ outlined in her comments. She has to explain to the employees there 

that public sector people can get this, but private sector people cannot because of Federal legislation. 

It just does not make any sense. Thank you, Mr. Chairman. I 

yield back. 

Chairman BYRNE. Thank you, Dr. Foxx. The chair now recognizes the gentleman from New Jersey, Mr. Norcross. 

Mr. NORCROSS. Thank you, Chairman, appreciate it. To our distinguished Chairwoman, I believe most employers try to do what 

is right. I do not think there is any real distinction on that, but 

obviously, there are employers that do not. 

What we are trying to look at here is a win for both employers 

and employees. A happy employee makes for a better workplace, 

generally more profitable and more productive. 

So, following that, when I first started my career, I was a single 

dad. In this case of comp time, if I worked the first eight to 10 

weeks in the year an extra five or 10 hours a day, that is great, 

I would build up this comp time if I wanted that. The difference 

is if I wanted it in my paycheck, I would not have any choice in 

that under this bill that we are looking at today. 

Correct, Ms. Christ? You would not have the choice whether you 

want comp time or overtime, correct? The employee. 

Ms. CHRIST. With H.R. 1180, if you went into a written agreement with your employer saying I would prefer the comp time instead of overtime, you would have that choice. 

Mr. NORCROSS. No, let me be very specific here. The employee 

does not have that choice unless they sign off on it. You, as the employer, could make that employee take comp time versus overtime, 

correct? 

Ms. CHRIST. We would make them take the overtime? If that employee did not choose comp time, if we offered it— 

Mr. NORCROSS. That is what you do. Under the law, if this bill 

were to pass, you would have the ability to impose comp time, correct? 

Ms. CHRIST. No. 

Mr. NORCROSS. That is not correct? 

Ms. CHRIST. That is not correct, sir. 

Mr. NORCROSS. Okay, then maybe I got some different information. 

Ms. SHABO. I am happy to jump in. The plain language of the 

statute, of the bill, says there has to be a written agreement between an employer and an employee for the employee to accept and 

for the employer to provide comp time in lieu of overtime pay. 

I don’t know what job you had at the time, perhaps you had leverage, perhaps you were a unique employee and your employer 

wanted to make you happy, and they would give you whichever of 

those two you wanted. 

I think the concern is that where there are hourly workers, 

where there are workers who are really for all purposes interchangeable in terms of their ability to do the job, the preference 

that an employer would have, whether knowingly or implicitly, 

CEWDOCROOM with DISTILLER

62 

would be to give the employees who would bank comp time the 

overtime hours rather than giving the overtime pay in the current 

period to the employees that wanted the overtime pay. 

Mr. NORCROSS. So, compare what we are talking about today to 

the existing law for public employees, and give me some of the differences. 

Ms. SHABO. The public employees—in 1985, the Supreme Court 

ruled in the Garcia case that the Fair Labor Standards Act applied 

to public employees, and States and localities were employers for 

the purposes of the Fair Labor Standards Act. That was counter 

to a lot of the ways that public employers had been operating, and 

they had been providing comp time already. 

They were very, very worried. The National Association of Counties and the League of Cities were really worried that this was 

going to create very tight budgets, especially as their emergency 

workers were working overtime hours. 

So, Congress and President Reagan crafted an exception for public employees, so they would be able to receive comp time in lieu 

of overtime pay, which had been the practice up to that point. 

But there are very real differences between public employers and 

private employers. There’s a profit motive in the private sector that 

doesn’t exist in the public sector. There are often due process protections for public sector employees, whether outright or through 

collective bargaining agreements. There is less likelihood, not so 

much anymore, but less likelihood that employers will go bankrupt 

or go out of business leaving their employees holding the bag for 

unpaid comp time, which can influence their ability to receive unemployment insurance. 

There are a lot of differences that make these two situations 

quite in opposite to each other. 

Mr. NORCROSS. Under this provision, you would not have to pay, 

if they chose to not take the comp time but take the overtime, you 

would not have to pay that until the following year, is that correct? 

By the end of January the following year? 

Ms. SHABO. It would depend on if the employee wanted to use 

their comp time and the employer agreed they could use their comp 

time, they would receive the comp time and it would be paid when 

they used the comp time. 

For employees that has banked their comp time, the bill would 

allow the employer to hold on to the value of that banked comp 

time until January 31 of the next year. 

Mr. NORCROSS. So, that income would be deferred to the next 

year, is that correct? 

Ms. SHABO. It would be an interest-free loan to employers until 

the next year. 

Mr. NORCROSS. It would be on next year’s income, not on the 

year they earned it? 

Ms. SHABO. Correct. 

Mr. NORCROSS. So, they get to defer that. Thank you. I yield back 

my time. 

Chairman BYRNE. Thank you. The chair now recognizes the distinguished Mr. Ferguson from Georgia. Mr. Ferguson is one of our 

new members. We welcome you and recognize you for questions. 

CEWDOCROOM with DISTILLER

63 

Mr. FERGUSON. Thank you, Mr. Byrne, and thanks to each of you 

for taking time to be here. It is interesting to listen to the banter 

back and forth. There seems to be many times an assumption that 

employers are the bad guys and they are going to purposely try to 

box their employees out or do harm to their employees. 

One of the things I would like, Ms. Christ and Ms. Frey, if you 

would speak to, as a small business owner myself, I tried to provide 

as many flexible options as I could to my employees. It is something that they wanted. 

We are entering a period of economic growth right now. We are 

going to have a real challenge with skilled employees and recruiting those skilled employees. Tell us how this would help you in recruitment of employees in the 21st century economy, and how your 

employees would want this as an option. 

Ms. CHRIST. We have workers that deal with mental illness, of 

course, 24/7, strong behaviors, and they’re highly trained. We train 

them, but we want to keep them. So, in order to keep them, to reduce turnover, we have to be flexible and offer creative solutions 

to them in order to help that work/life balance. 

So, being a nonprofit, our pay scales aren’t high, but our benefits 

and flexibility to promote our workforce culture of caring is foremost, so this bill would definitely help in our cause for recruitment 

and retention. 

Ms. FREY. Thank you for asking that question. I think it’s an excellent question. My organization’s interest in something like this 

would be to provide flexibility. We’re already providing a number 

of paid leave benefits, but the truth of the matter is that employees 

ask for this flexibility. 

I can share any number of stories about employees who come to 

us either wanting a transitional schedule after returning from maternity leave or wanting a compressed schedule, or wanting an adjusted schedule so they can return to school. We really try to balance the employer’s needs and the employee needs, and work on effective solutions together. I find that when we come together and 

provide those creative solutions together, we have a very committed workforce, we have great morale, and these individuals turn 

out being very high performers. 

So, I can give you any number of instances where we’ve made accommodations like that, and that person has turned around, and 

in my opinion, really awarded us tenfold by just being such a great 

employee and a motivated employee. 

Mr. FERGUSON. I agree with both of you that if you can create 

flexibility in the workplace and give your employees options, they 

are going to be much more productive, much more loyal. 

One of the things I took great pride in as an employer was having the environment where the average tenure of an employee with 

me was well over 10 years. That is something that is important, 

and over and over again, what we found is many times employees 

wanted time away from the office to take care of their personal 

needs, their family, whatever it may have been, and we found that 

we were more productive because employees knew they had the 

flexibility to take the time when they needed it. 

CEWDOCROOM with DISTILLER

64 

So, I think most really good businesses really kind of view employees as their greatest asset, and we have to be innovative in this 

Nation, in this 21st century economy. 

I think we have to stay away from the view that business is 

there to punish or to hurt employees. We want our employees 

happy. We want them productive. It is one of the greatest things 

we can do as employers is to make sure that we have a healthy, 

happy, functioning workforce that operates at a high level. 

So, Mr. Chairman, I yield back. Thank you. 

Chairman BYRNE. Thank you, Mr. Ferguson. The chair now recognizes the gentlewoman from New Hampshire, Ms. Shea-Porter. 

Ms. SHEA–PORTER. Thank you, and thank you all for being here. 

It is a very interesting discussion for me because I was raised by 

parents who each had small businesses. I was an essential part of 

their labor force, and protected, as the family. We grew things together. So, I do understand what it is like when somebody does not 

show up, the stresses and strains on small businesses. 

However, I also worked in a number of jobs that were not glamorous when I was going through school, including factories and restaurants, and as a chambermaid. And yeah I was exploited there. 

I had some great employers and I had some that were just awful 

and I felt like there were no protections. 

I think what we are talking about is a country that has mixed 

businesses and attitudes towards the employer and attitudes toward the employees. I believe our goal here is to try to protect everybody here. 

I just have a couple of yes or no questions that I would like answered by each one of you, please, and just yes or no. Employees 

cannot count on using time when they actually need it, so employees cannot necessarily save up for, say, a birth or a surgery. Yes? 

Ms. CHRIST. No, ma’am. 

Ms. SHEA–PORTER. You believe under this bill they can count on 

using that time, guaranteed the time they need, the date they 

need? 

Ms. CHRIST. Yes, ma’am. For my organization— 

Ms. SHEA–PORTER. No, I am talking about under this bill. 

Ms. CHRIST. In this bill, yes, ma’am, unless it unduly disrupts 

business operations. 

Ms. SHEA–PORTER. See, that is an important part, because babies 

always disrupt. They arrive at a certain time. So, I just wanted to 

get that from you, each one of you, please. 

Ms. FREY. I would agree, I believe employees can use the time 

when they need it. 

Ms. SHEA–PORTER. Okay. That is not how the bill is written. 

Ms. SHABO. No, they can’t use the time when they need it as an 

absolute guarantee under this bill. 

Ms. SHEA–PORTER. Right. Mr. Court? 

Mr. COURT. Yes, they can, subject to the unduly restrictive test. 

Ms. SHEA–PORTER. It is that ‘‘subject’’ part that is really always 

difficult, is it not? What happens is, I know from the small businesses, there is never a good time for anybody not to show up. I 

get that. The reality is they cannot be certain they are going to get 

it. 

CEWDOCROOM with DISTILLER

65 

Second question. An employer can cash out. So, if the employee 

was saving it for a birth or a vacation or school break or whatever, 

they could lose it, right? Because the employer can decide after 80 

hours to say, I am not going to do the comp time. 

Ms. CHRIST. Yes, with notice to the employee. 

Ms. SHEA–PORTER. The point is if I am saving for say a birth, 

then the notice is not going to change my circumstances. Yes? No? 

Ms. FREY. Yes, with notice, we would receive the compensation 

at time-and-a-half. 

Ms. SHEA–PORTER. Okay. Again, I am saving for the birth of a 

baby, and the employer can come to me and say, sorry, you are not 

going to get paid because it is not good for the business at this 

time. It may be legitimate in terms of the business schedule, but 

I am just talking about there are no ironclad guarantees. Ms. 

Shabo? 

Ms. SHABO. There are no guarantees. 

Ms. SHEA–PORTER. Mr. Court? 

Mr. COURT. The employer can cash out in excess of 80 hours, you 

would still have the 80 hours’ comp time pay. 

Ms. SHEA–PORTER. My understanding is they can cash out, an 

employer can then say, I have decided not to do the comp time. I 

have checked this, but Ms. Shabo, is that your understanding as 

well? 

Ms. SHABO. That’s my understanding. 

Ms. SHEA–PORTER. That is mine. I have checked it. So, how 

about a compromise? If they held the money, if the company held 

the money for 80 hours, say, and then decided to cash out, right, 

for the employee, because that could extend over many months, 

then would anybody be willing to pay interest on the money they 

held that belonged to the employee, if the employer was the one 

who changed the deal? 

If the employer says after 80 hours, I am not going to give you 

comp time, I have decided I would rather cash out, do you think 

it would be fair to pay the employee interest for the money that 

they held during that time? It is holding hours. 

Ms. FREY. I think that is something that I would need to study 

in more detail. 

Ms. SHEA–PORTER. We want to be fair here. The other 

part is could we say to a company that you have to guarantee 

at least 75 percent of the request you honor in terms of the scheduling. In other words, they cannot have a 100 percent record of saying, no, that is inconvenient, and we could just maybe set a time 

that the company has to honor 75 percent of the request, understanding that 25 percent, you have to be flexible for a business, 

just so we know they are adhering to the spirit of the rule, as well 

as the actual rule. 

Would that go well with everybody here? 

Chairman BYRNE. Mr. Court, do you have an answer? If you 

could give it very quickly because we are getting out of time here. 

Mr. COURT. I’m not in favor of a hard percentage limit. I think 

the unduly burdensome test and the 20 years of history that we 

have in the public sector says that works well enough right now. 

CEWDOCROOM with DISTILLER

66 

Ms. SHEA–PORTER. You would be okay if they did set a test to 

make sure that companies were adhering most of the time to the 

requests for comp time? 

Chairman BYRNE. The gentlewoman’s time has expired. I am 

going to allow the witness to answer very quickly. 

Ms. SHEA–PORTER. Thank you. 

Mr. COURT. No, that’s not what I meant to imply. I think the current test in the bill is good enough. 

Ms. SHEA–PORTER. All right. Thank you. I yield back. 

Chairman BYRNE. The gentlewoman’s time has expired. The gentlewoman from New York, Ms. Stefanik, is recognized. 

Ms. STEFANIK. Thank you, Mr. Chairman. Ms. Christ, I noticed 

in your testimony that a majority of WellStone’s employees are 

women and many are younger workers. Based on your experience 

with that workforce, how important are flexible work arrangements 

to employees, and do younger workers have different priorities 

than older workers? 

Ms. CHRIST. Thank you for your question. Our workforce with 

women as the majority, it’s very essential that they have time off, 

especially because many of our employees are single parents. So, 

they take care of not only maybe their own children, but also their 

other family members, maybe parents, elderly parents, or extended 

family. So, it would be important. 

Our younger workers, they have many times different needs, but 

one of the things I’ve noticed with our workers, they like the flexibility. They want it in their hands. They don’t want to be in a box 

and contained to an 8:00 to 5:00. So, it’s nice to be flexible and give 

them the choice. 

Ms. STEFANIK. Thank you. I think it is important to note that 

with technology and iPhones, we are in a 21st century workforce. 

You talked about the demographics at WellStone. I think that is 

representative of much of the change in demographics, there are 14 

million single parents in the workplace, and 85 percent of workers 

value workplace flexibility when considering a new job. 

This is a good thing, providing more balance and flexibility, so 

thank you for your answers, and I would like to yield the balance 

of my time to the chairman. 

Chairman BYRNE. Thank you, Ms. Stefanik. Mr. Court, let me 

ask you a follow-up question. What is the remedy that an employee 

has against an employer if he or she is not compensated for accrued comp time, and is that different from the remedy which he 

or she would have when an employee has a claim for unpaid 

wages? 

Mr. COURT. Mr. Chairman, it is the same remedy under the Fair 

Labor Standards Act. You not only get the value of what you have 

lost, but twice that much, liquidated damages, if it is considered to 

be willful. 

To address Representative Scott’s concern concerning attorney 

fees eating up that award, if the company loses, they pay the attorney fees for the employee under the Fair Labor Standards Act. In 

addition, since this is a bill that falls under the jurisdiction of the 

Department of Labor, you may not have to bring a lawsuit. You 

may be able to file a charge with the Department of Labor, who 

CEWDOCROOM with DISTILLER

67 

can investigate as they do other wage and hour claims, and that 

doesn’t cost you a dime. 

Chairman BYRNE. Back to you, Mr. Court. The opponents of this 

bill suggested, in previous debates at least, that the bill would encourage employers to demand excessive hours by making overtime 

less expensive, thus undermining the 40-hour work week protections against excessive hours. 

Will this bill reduce overtime costs for employers? In other 

words, does comp time allow an employer to avoid paying overtime 

premiums? 

Mr. COURT. The comp time certainly does not allow the employer 

to avoid paying the overtime premiums, as I said in response to an 

earlier question. It, in fact, could increase the cost if the individual 

receives a pay raise over the course of the year after they have already banked the comp time. 

Chairman BYRNE. One of the things that I am hearing is there 

is some incentive in this bill for employers to essentially game the 

system and take advantage of employees, to rob them of either 

their pay or their accrued comp time. 

Is that possible under the bill, that an employer could do that, 

and would there not be some remedy by the employee against that? 

Mr. COURT. No, Mr. Chairman, it is not. The bill very specifically 

has remedies, has prohibitions against coercion, threatening employees, so the employee is going to get the benefit of the paycheck 

if they want it because they’re not forced to enter the program, or 

if they want to bank the comp time, then they have the guarantee 

of the ability to use it, unlike the example that Ms. Shabo was giving, where you are depending upon the employer to agree to let you 

have time off. This is a right you would have under the statute. 

Chairman BYRNE. As one lawyer to another, I have not had to 

defend these before, but if you get one of these things either from 

an employee or Department of Labor, it is no fun. There is every 

incentive in the world to avoid having anything close to this. Would 

you agree with that? 

Mr. COURT. Absolutely. 

Chairman BYRNE. Thank you. The chair now recognizes the gentleman from California, Mr. DeSaulnier. 

Mr. DESAULNIER. Thank you, Mr. Chairman. I do want to follow 

up with a couple of comments. Having spent 35 years as an owner 

and manager of restaurants, that most employers want to do the 

right thing, but the framework for doing the right thing is part of 

what we are talking about here. 

It sounds as if from all of the employer representative witnesses 

that this is a zero-sum game from your viewpoint for the employees. Is that the way you look at it? If they take the comp time, it 

is a zero-sum game for them? 

Ms. CHRIST. If they choose the comp time, they’re still going to 

get that time-and-a-half, which is really paid leave or paid time off, 

the same as if they chose to get the overtime, sir. 

Mr. DESAULNIER. Okay. Is that the way you view it, Ms. Frey? 

Ms. FREY. I would agree with Ms. Christ. I think it’s a choice on 

the part of the employee, and it’s a choice they can make and they 

can elect by agreement, and they can also opt out of the agreement 

at any time. 

CEWDOCROOM with DISTILLER

68 

Mr. DESAULNIER. Mr. Court? 

Mr. COURT. Yes, I would agree with the two previous witnesses’ 

answers, plus I think our experience in the public sector where we 

have had this for a long time would tend to indicate that. 

Mr. DESAULNIER. Ms. Shabo, I want to go to you, because some 

of the confusion that I am still trying to figure out with your response and Ms. Christ’s response is that they take the comp time, 

but they do not get paid for some indeterminate period of time. 

In California, you are required or it used to be, you had five 

working days to pay your employees, including their time-and-ahalf. So, if my employees decided to do comp time, when do they 

get compensated for that time-and-a-half? Is it five days after the 

work period, in their paycheck, or is it a year from then? 

Ms. SHABO. So, they would take the comp time when their employer allows them, when they request it and their employer allows 

them to take it. If they want to cash out for the value of their comp 

time, it would be within 30 days of their request, or if they don’t 

make a request, and it is still on the employer’s books, the 31st of 

January of the next year. 

Mr. DESAULNIER. So, it is not a zero-sum game to the employee? 

Ms. SHABO. No, the value of the employee’s wages is sitting with 

the employer for some period of time until they take the time. I 

think the other thing that’s missing in this conversation, if I could 

just interject, is we’re talking about a very small segment of the 

workforce that is actually working more than 40 hours a week to 

be able to even get the value of this time. 

Often, we are looking at people who have too few hours, and also 

don’t have any paid leave, so I don’t think it’s reasonable to think 

about these two proposals, the Working Families Flexibility Act or 

something like the Healthy Families Act, which provides paid sick 

days, which you have in California and in Oregon, or paid family 

leave, which you have in California and in several other States. 

Those are things that are guaranteed for people who need the 

time no matter how many hours they’re working or who they are 

working for. Whereas, this bill really only applies to a narrow slice 

of folks, and only to those employees lucky enough to work for fair 

employers, like it sounds like you all are, who will administer this 

new comp time benefit fairly. 

Mr. DESAULNIER. So, in California, we have those benefits, as 

you say, provided by law, but we also protect the eight hour workday in addition to the 40-hour work week. We had many hearings 

when I was in the legislature about changing the flexible work permits. 

Employers can easily do that by a majority vote of their employees. I think the threshold is like five employees, so it captures most 

of the workforce. We want that in California because of the social 

model, the pressures on families, long commutes, but we want to 

make sure the base level is paid, and it is a zero-sum game. 

So, I think when we talk about innovation, we have to sort of 

look at it both ways. I always struggle with this, and the Chairman 

has heard me before, coming from a high cost of doing business 

area, as a business person, you want to lift all boats. 

So, while I agree we should have flexibility, it sometimes drove 

me crazy as a restaurant owner in California that I had to pay 

CEWDOCROOM with DISTILLER

69 

time-and-a-half for split shifts, which required my employees sometimes to drive a long time back and forth, but it was fine with me 

as long as all my competitors had to do the same thing. 

So, I struggle with the hollowing out of the American middle 

class, not to blame this law for that, but as a potential contributor 

to that, that if it is going to be innovative, and it is zero-sum. It 

really is zero-sum. 

The last point, the enforcement mechanism. I am one who believes that a private right of action is not the most effective. As the 

Chairman said, nobody likes a visit from regulators. However, it 

can be much more efficient. 

Ms. Shabo, can you talk about that a little bit, both from the employer and employee standpoint, about the mechanism to enforce 

this small percentage of people who actually would choose this? 

Ms. SHABO. Sure. I mean, the law provides private right of action, as you said. I don’t read it as providing a particularly good 

administrative remedy for folks here, if any administrative remedy 

at all. 

You know, I think it’s important to look at wage-and-hour violations, which have increased to the tune of millions of dollars, including in the districts of folks who are sitting here today. 

I don’t think we want to increase litigation here, but what we are 

potentially setting up through this so-called ‘‘Working Families 

Flexibility Act’’ is actually increasing uncertainty about what employees must have, what employers must do, and the real potential 

for a lot more disputes about what money is owed to whom and 

when. 

Mr. DESAULNIER. Thank you. Thank you, Mr. Chairman. 

Chairman BYRNE. Thank you. The chair now recognizes the gentlewoman from Oregon, Ms. Bonamici. 

Ms. BONAMICI. Thank you very much, Mr. Chairman. I thank 

you for allowing me to join your subcommittee. I really appreciate 

the conversation. 

Ms. Shabo, there has been a suggestion that this bill, H.R. 1180, 

is needed so employers can provide flexibility, but is there anything 

in the Fair Labor Standards Act right now that prevents employers 

from providing flexibility now to, for example, paid or unpaid leave, 

or flexible predicable schedules, without giving up their right to 

overtime pay? 

Ms. SHABO. No, there’s not. 

Ms. BONAMICI. Thank you. I agree with my colleague from California, there are a lot of people now who are facing a great deal 

of economic insecurity and anxiety. There are people who are worried about whether they can pay their rent or find housing, 

healthcare costs, balancing family responsibilities, saving for retirement, saving for kids to go to college, the whole long list. 

People are concerned that maybe their kids will not have the opportunities they had, and we are seeing that across the country, 

people working longer hours, sometimes more than one job. Our 

workforce also looks drastically different than it did, say, 50 years 

ago. 

The Democrats have put forth a working families agenda: several 

pieces of legislation that would keep workers in the workforce, provide scheduling flexibility, which there is a lot of technology that 

CEWDOCROOM with DISTILLER

70 

helps with that, as we know, to allow workers to care for themselves and their families, and raise stagnant wages. 

As you mentioned, the Oregon legislature recently not only 

passed paid sick day policy, but also increased the minimum wage. 

We have a tiered system, it depends on urban areas, rural areas. 

They are currently also debating legislation to create paid family 

leave, like the rest of the world provides. 

Can you talk about how these types of workplace policies affect 

workforce participation and our country’s economic prosperity, and 

how would this bill, H.R. 1180, affect our sort of larger goal of preparing the workforce to meet the 21st century economy? 

I do want to mention, because Ms. Shea-Porter mentioned and 

others have mentioned, small businesses. I met with many small 

businesses in Oregon who are providing these policies, and they are 

finding that not only do they have a happier, healthier workforce, 

they also have less challenge with recruitment and great retention, 

because they found that if they provide these policies to their workforce, they stay, they are happier, and these are small businesses. 

People are concerned that this does not work with small businesses, but we have many examples to show that it does. 

Ms. SHABO. That’s right, and thank you for your question. Actually, one of the arguments that’s often used is some of what’s come 

up here, which is that it should be up to employers to decide what 

they want to do because it makes for better recruitment and retention, and it gives them a leg up. 

What we actually find when we look at the data is small businesses—a study commissioned by Small Business Majority that 

was released just last week shows that 70 percent of businesses nationwide, which is based on a scientific sample of small businesses, 

support the Family Act, which would create a national paid family 

and medical leave standard. 

Seventy percent, and most of that sample was not Democrats, it 

was Republicans and Independents. Across the board with the public, close to 80 percent of people support a national paid family and 

medical leave insurance program similar to what exists in California, New Jersey, Rhode Island, maybe soon in Oregon, certainly 

soon in New York, and here in D.C. 

Ms. BONAMICI. Basically any industrialized country. 

Ms. SHABO. Yes. We have an opportunity here in the U.S. to 

leapfrog in some way some of those other countries by creating a 

leave that is of reasonable length, that has adequate wage replacement, that applies equally to women and men, and for all purposes, 

not just parental leave, but also to address the explosion in aging 

of the population and elder care. 

We know when workers have paid family leave, women in particular, they are more likely to return to work within a year of giving birth. They are likely to earn higher wages. They are less likely 

to rely on programs like public assistance and food stamps; same 

with new dads. Women and men are both more likely to have hundreds of thousands of dollars of additional income and retirement 

savings when they are— 

Ms. BONAMICI. I do not mean to interrupt, but I also want to ask, 

yesterday was Equal Pay Day. I want to ask about that, too. A day 

when women’s wages finally catch up with what men made last 

CEWDOCROOM with DISTILLER

71 

year. The Paycheck Fairness Act would put some teeth into that 

and strengthen that. What would this bill, H.R. 1180, do for women 

and equal pay? 

Ms. SHABO. At best, nothing. At worse, it would create a pay cut, 

and we know that two-thirds of minimum wage workers are 

women, the vast majority of tipped workers are women, and this 

does nothing to raise wages for folks. In fact, it takes money out 

of workers’ pockets at the time when they need it most. 

Ms. BONAMICI. When we look at the challenges facing workers 

right now, this is the wrong direction. I just wanted to also mention when we were talking about family leave, about 25 percent of 

women go back to work within two weeks of having a child in this 

country. For those of us who have had children, we know how challenging that must be. 

Thank you. I yield back the balance of my time. 

Chairman BYRNE. Thank you, Ms. Bonamici. The chair now recognizes the gentleman from Wisconsin, Mr. Grothman. 

Mr. GROTHMAN. A couple of questions here. I will start out with 

Ms. Frey. There is an article in the National Review, and I do not 

know if it has been referred to yet, kind of talking about the difference of who is on the side of the worker, who is not here. 

The National Review’s assessment is the Republicans are in 

favor of giving workers an option of doing whatever they want with 

their overtime pay, and the Democrats oppose it. Do you agree with 

that assessment, that the Republicans are kind of more in favor of 

freedom and allowing people to do what they want as opposed to 

the Democrats are saying you have to use your overtime this way? 

Ms. FREY. Honestly, sir, I couldn’t answer that. I could only answer what our organization would be in favor of, which would be 

certainly giving employees the option to make those choices, whether to receive that compensation as overtime pay at the time or to 

use comp time. 

Mr. GROTHMAN. Okay. I will ask Ms. Shabo a question, kind of 

along the same lines. I recently ran into an employer who at his 

surprise—he was a minimum wage employer, but he was trying to 

find a way to incentivize his employees to be more productive in 

a factory. 

To his surprise, his employees preferred getting another 3 or 4 

hours off rather than a cash bonus. This is something that was a 

surprise to him because he felt clearly he would have taken the 

cash if he was in their position. 

It does show particularly that many young people today would 

rather have Friday off or Friday afternoon off or something like 

that. 

Now, in the mix, we put a situation where some women do not 

consider money as important, and would rather have the time off 

to spend with their children or family. 

Do you not feel it is a little bit philosophically wrong, following 

up on your last answer here, to tell that woman or man that you 

do not have a choice in the matter? If you accumulate overtime, 

you have to use it, you have to take the money, the money should 

be the most important thing for you. And if you would rather have 

another, whatever, 120 hours a week or 120 hours a year, whatever, off to spend with your children, that is against the law. 

CEWDOCROOM with DISTILLER

72 

Do you not feel it is wrong for you to put yourself in the position 

of the employee and tell them they have to value money more? 

Ms. SHABO. But in your hypothetical, there’s nothing that is stopping that worker from going to her employer and saying, I’d really 

like to take a month off, and, you know, I’ve earned the overtime 

pay, I’m putting it in the bank, I have money saved up to go take 

my vacation. May I please have some extra time off? If that employer values the employee and wants the employee to be happy, 

they will say yes. If they want to, they will say yes. An employee 

can use their bargaining power if they have it to be able to ask for 

that time off. 

You know, I don’t think all employers are bad at all. I just moderated a really excellent roundtable of employers last week out in 

California, who all had different practices and all had similar philosophies about doing the right thing for their employees. 

But what we’re talking about here is putting employees in a situation where maybe they don’t have the ability to leverage that time 

off later, they need the value of their wages, and what we’re doing 

here is providing an out for employers who don’t want to take the 

high road to pay their employees the money that they are owed at 

the time they are owed it. 

Mr. GROTHMAN. Well, what we are doing here is creating flexibility. I think the whole purpose of the Fair Labor Standards Act— it was put together by people who do not necessarily trust employers to do the best thing for their employees. Otherwise, we would 

not have the law in the first place. 

I think what it does is it forces employers to give employees an 

option. And I think a lot of employees, if my experience in talking 

to employers is any indication, value that time off. They value that 

family time. 

You are creating a situation here in which, in some cases, the 

employees who bank that money are forbidden from using that 

time with their family and have to take the cash, which you kind 

of implied in your response with the congresswoman before. And 

there are some women who are going to say, I do not mind if I do 

not make any money, I would rather take the time off. 

Now, at the end of the year when the professors do the study and 

they show women are not making as much money at that company 

because they have opted to take time off, but is it up to us to weigh 

in and say, you cannot value your family more than additional 

cash? 

Ms. SHABO. But in that case, that woman would already have 

worked extra hours away from her family to be able to even have 

the option of having comp time or overtime. So, I guess I’m not 

sure I’m following the hypothetical. 

Mr. GROTHMAN. There may be times where you want more family time than other times. Maybe that person—could be a man, 

too—depending on when his spouse works, he would rather or she 

would rather spend time with their children than have an outside 

caregiver, that sort of thing. 

Ms. SHABO. Sure. 

Mr. GROTHMAN. Maybe they have another child, a younger child, 

and they want to spend time with the younger child. It seems to 

me that rather than having us people in Washington tell them 

CEWDOCROOM with DISTILLER

73 

what is best for them, would it not be better to allow the employee 

to determine what is in their best interest and best interest of their 

family? 

It is true that some people, if they do not have this option, are 

just going to keep working and earn more money. For people who 

think the be all and end all in life is how much money you make, 

and we have to worship those statistics saying you have a more 

satisfactory life when you are making more money, I can see why 

to oppose this bill. 

For those of us who do not think the most important thing in life 

is how much money you are making, why do you not allow them 

that option if the employer will not? 

Chairman BYRNE. Ms. Shabo, his time has expired, but let me 

give you a chance to very quickly respond to that. 

Ms. SHABO. Sure. I think my basic answer is if an employee is 

in a position where they want that time, there’s nothing that is 

preventing them from asking their employer to give them that time 

now. 

In terms of people building up as much money, I think about the 

30 million women who are heads of household and live in poverty 

right now who need those wages. 

Chairman BYRNE. Thank you. The gentleman’s time has expired. 

I would like to thank our witnesses for taking the time to testify 

before the subcommittee today. I am going to turn now to Mr. 

Takano and ask if he has any closing remarks. 

Mr. TAKANO. Thank you, Mr. Chairman. Let me just say in response, I still say there is nothing as convenient or as fungible as 

cash. That leverage really should be left to the employee, as far as 

cash or time. 

I want to thank all of our witnesses for their testimony today. 

It is clear from this hearing that what I would like to call the ‘‘Betrayal of Working Families Act,’’ provides employers with flexibility 

to deny workers their overtime pay, while giving employees nothing 

in return really. 

We heard that employers can unilaterally decide that they do not 

want to allow employees to take comp time they have earned and 

cash them out instead, cancelling the doctor’s appointment, recovering from surgery, or elder care that the employee might have 

planned. 

We heard that the Betrayal of Working Families Act would make 

it more likely that employers would force employees to work longer 

hours and deprive them of time-and-a-half pay for doing so. Workers desperately need more time with their families and more 

money. 

Today, most low-wage workers do not have access to a single 

paid sick day, and far too many workers earn poverty level wages 

since Congress has not raised the minimum wage in nearly a decade. 

This legislation plays a cruel trick on cash-strapped and timestrapped workers by forcing them to give up time with their families and pay in exchange for the hope that they might eventually 

be able to take a day off, if it is convenient to their employer. This 

is really about more leverage for the employer, not convenience for 

the employee. 

CEWDOCROOM with DISTILLER

74 

H.R. 1180 is entirely consistent with congressional Republicans’ 

agenda to rig the rules of our economy in favor of special interests 

and against everyday Americans. 

In the first two months of the 115th Congress, House Republicans filed 40 Congressional Review Act Joint Resolutions to roll 

back rules designed to make Americans safe on the job, prevent 

discrimination, ensure educational equity, and clean air and clean 

water. The President has already signed many of these into law. 

This betrayal of working families has got to stop. Congressional 

Republicans should not be trying to hoodwink working families into 

handing over their overtime pay. The American people deserve real 

solutions they can count on. They need paid sick days and family 

leave, and strengthened rights to overtime pay. 

The pretty packaging of this legislation as so-called ‘‘flexibility’’ 

for working families should fool no one. This is just another attempt to take money out of workers’ paychecks. We should reject 

this once and for all. 

I yield back, Mr. Chairman. 

Chairman BYRNE. Thank you, Mr. Takano. This law, the Fair 

Labor Standards Act, was passed in the 1930s. Let us remember 

what the workplace of the 1930s looked like. First of all, the vast 

majority of mothers with children under 18 were not in the workplace. Today, it is almost 71 percent. 

One of those women in the workplace in the 1930s was my 

grandmother, because my grandfather had been killed and she had 

to work. She had the typical job at the time, an 8:00 to 5:00 job, 

so she was not there in the afternoons when my mother or my uncles had things at school. My Uncle Bill had a severe disease that 

affected his legs, eventually crippled him. There were times where 

she would have to take off work. It was tough on her to be able 

to be there for his treatments. 

Now, we have nearly three-quarters of our mothers in the workplace, and for them, money is not a good substitute for being there 

with the kids, rather it is a school play, an athletic event, a school 

trip, or whether they have somebody sick or who has a serious injury or illness, like my Uncle Bill. 

So, the whole idea is we are going to try to get Federal law in 

sync with what is really happening in the real lives of American 

workers. Ms. Christ and Ms. Frey told us what the real lives of 

American workers are like. A lot of them want that freedom to be 

able to trade out and get that comp time, so they can go on that 

field trip 2 months down the road, or they know they have a cancer 

treatment with an elderly parent that is coming up and they need 

to be able to bank that time to be with them, or do a myriad of 

other things that are impinging upon their lives. 

So, all this is trying to do is give them that flexibility, give them 

that option, which is just in keeping with what the new workplace 

looks like. 

I was sitting here watching Ms. Stefanik. She pulled out her cell 

phone. There is more computing power in that cell phone than 

there was in this whole building worth of computers when I was 

coming through college 40 years ago. 

We can do so much more from our homes and other places and 

be able to make work. Now, I know there are some concerns that 

CEWDOCROOM with DISTILLER

75 

there are some bad actors out there in the private sector that are 

going to take this law and do bad things to people. 

Well, first of all, I think that is an absolutely inaccurate presumption. Most employers are just exactly like Ms. Christ and Ms. 

Frey here, they are looking for ways to give their employees a better workplace. 

If there are bad actors out here, here is what the bill says under 

remedies. It says, ‘‘An employer that violates Section 7(a)(4) shall 

be liable to the employee, affecting the amount of the rate of compensation for each hour of compensatory time accrued by the employee and any additional equal amount as liquidated damages,’’ so 

it is twice, and attorney fees. 

Now, if you are an employer and you have any sense about you, 

that is not a very good economic decision, and you cannot just sit 

there, they are not going to want to bring this action. I think anybody with any common sense in business is going to presume that 

is going to happen, and they are not going to make that economic 

decision. 

That is why it is put in here it is twice the amount of pay plus 

attorney fees. By the way, and I do not mean this in any way derogatory to you, Mr. Court, or to me when I was a labor attorney, 

those attorney fees can be substantial. They are almost as big a 

reason not to do it as anything else here. 

So, the remedies provided in here are pretty good, they are pretty effective in telling an employer do not violate the protections in 

this law to keep employees from being taken advantage of here. 

So, I really appreciate the testimony we have had today. It has 

flushed a lot of good issues. There was good back and forth. I think 

we know what some points and counterpoints are that will inform 

other members of this committee when this bill comes up for markup in the full committee, and inform the entire House when it 

comes before the House. 

I do think there is one thing we can all agree upon. We should 

be doing everything we can to help those working mothers, those 

working dads, and other people, to have the sort of flexibility that 

we can provide them in the workplace of the 21st century. Maybe 

it is time to get away from a 1930s law to do that. 

[Additional submissions by Mr. Byrne follow:] 

CEWDOCROOM with DISTILLER

76 

CEWDOCROOM with DISTILLER


Insert offset folio 39 here 24882.039

College and University Professional 

Association for Human Resources 

April5, 2017 

Chairman Bradley Byrne 

Education and Workforce Subcommittee on 

Workforce Protections 

Washington, DC 20515 

Dear Chairman Byrne and Ranking Member Takano: 

Ranking Member Mark Takano 

Education and Workforce Subcommittee on 

Workforce Protections 

Washington, DC 20515 

On behalf of the College and University Professional Association for Human Resources (CUPA-HR), I 

write in strong support ofH.R. 1180, the Working Families Flexibility Act of2017, and to thank the 

subcommittee for holding this important hearing. CUPA-HR serves as the voice of human resources in 

higher education, representing more than 23,000 human resources professionals and other campus leaders 

at almost 2,000 colleges and universities across the country. Higher education employs over 3.9 million 

workers nationwide, with colleges and universities in all 50 states. 

H.R. 1180 would amend the Fair Labor Standards Act to allow private employers, including private 

colleges and universities, the opportunity to offer non-exempt employees who have worked overtime 

hours the choice between paid time off(known as compensatory time or comp time) or overtime pay. 

Under current federal law, public-sector employers, including public-sector colleges and universities, may 

offer this benefit, but private-sector employers may not. 

On Aprilll, 2013, CUPA-HR President and CEO Andy Brantley appeared before this subcommittee to 

testify on the benefits of compensatory time. Drawing on his experience as associate vice president for 

human resources at a large public university, Mr. Brantley provided several examples of instances where 

employees benefitted from compensatory time even though the university provided a wide range of 

generous paid leave policies to all employees. Mr. Brantley lamented that compensatory time was not an 

available benefit when he served in a prior position as director of human resources at a private institution. 

Representing both public and private colleges and universities, CUPA-HR believes employers at private 

universities should be afforded the opportunity to provide the same flexibility to employees as public 

universities. We applaud the Chairman and the Subcommittee for holding this hearing and the leadership 

of Rep. Martha Roby of Alabama for introducing the Working Families Flexibility Act of2017. 

Thank you for convening today's hearing and for the opportunity to submit this letter for the record. 

Respectfully Submitted, 

Joshua A. Ulman 

Chief Government Relations Officer 

College and University Professional Association for Human Resources 

1811 Commons Point Drive, Knoxville TN 37932 I Tel: 865.637.7673 I Fax: 865.637.7674 I www.cupahr.org 
77 

CEWDOCROOM with DISTILLER


Insert offset folio 40 here 24882.040

RILA 

AETAILlNDUST!IYL£!1otHSAS$(K!AT!ON 

Educate. Collaborate.Advocate. 

AprilS, 2017 

The Honorable Bradley Byrne 

Chairman 

Subcommittee on Workforce Protections 

119 Cannon House Office Building 

Washington, D.C. 20515 

The Honorable Mark Takano 

Ranking Member 

Subcommittee on Workforce Protections 

1507 Longworth House Office Building 

Washington, D.C. 20515 

Dear Chainnan Byrne and Ranking Member Takano: 

1700 North Moore Street, Suite 2250, Arlington, VA 22209 

On behalf of the Retail Industry Leaders Association (RILA), I write in support ofH.R. 1180, the Working 

Families Flexibility Act of20 17. RILA commends the Committee on Education and the Workforce 

Subcommittee on Workforce Protections for holding a hearing on this legislation, and urges all Committee 

members to support it. 

By way of background, RILA is the trade association of the world's largest and most innovative retail 

companies. RILA members include more than 200 retailers, product manufacturers, and service suppliers, 

which together account for more than $1.5 trillion in annual sales, millions of American jobs and more than 

l 00,000 stores, manufacturer facilities and distribution centers domestically and abroad. 

As the employers of millions of Americans, our members fully support flexible workplace policies as our 

employees are constantly faced with the significant challenge ofbalancing the demands of work, family, and 

persona! responsibilities. For this reason, RILA members are increasingly interested in policies that will 

provide more options for employees to better manage their work~ life balance. 

Specifically, H.R. 1180 would allow employers to offer employees the choice of overtime compensation in the 

fonn of monetary payment or in the fonn of compensatory time off, or "comp time." Employees would then 

have the chance to accrue additional time off for up to 160 hours per year. It is important to note that the bill 

also includes several provisions offering employee protections for workers who choose to take advantage of 

the comp time option, such as an automatic payout to the employee for time not used. Because this option is 

voluntary, it allows the employees to decide which form of compensation best suit their personal needs. 

Employees and employers alike have made it very clear that they prefer innovative workforce policies--

including the use of a flexible comp time option. As the voice of the world's largest and most innovative 

retailers, RILA appreciates the Committee's leadership in advancing a comprehensive agenda that enhances 

rather than inhibits flexibility in the workplace. For this reason, RILA strongly urges the Subcommittee to 

review and advance the Working Families Flexibility Act of2017 to the full Committee to ensure that 

employees and employers can meet the needs of working families. 

Sincerely, 

/s/ 

Evan Annstrong 

Vice President, Government Affairs 
78 

[Additional submissions by Mr. Scott follow:] 

CEWDOCROOM with DISTILLER

79 

CEWDOCROOM with DISTILLER


Insert offset folio 41 here 24882.041

L.eeS~md..,. 

P.>tM~i>! 

ElllE~ Mo:&r!de 

\'"'"'"'"~' '"''"'!'~' 

ViceP"'Jh:fet~ts 

Se'Adorn K.S...,...n 

M«J•n\p·.ng>.rl 

l\!~hardLC2p<:m1 

/'ltnf.,.•gil . . ~A 

StacyClllomberlaln 

Pwnk.c.<, tl~ 

ConneDen 

Ail''"'"'''~~~. Nf·1 

G0110tvenwx 

Oly~'l'aWft 

Oa~~~~~~~a:'ln 

Oavld/1. FoQmln 

Ht•m<'>~;.P1 

He~7,~~~.::~o 

J9""nn•Puii0Hflter \.;nL•q,o (,\ 

Nicholuj t.aMQrre 

CN•m,"c>;r-:v 

Salwtonaludano 

:O,e>"!l':;·m.fT 

~hnA..L)"'Il 

>Ynn)!,~gt<t~ OH 

K:;nhrynlybuger 

Oel•i•J•>a Ci\ 

Ro~ra.L)'Titll 

C'.·c~r· •t 

Cl!rlsl~trM:Ibt 

WcHt"""" Oh 

GkimrdS.MiddletOI'ISr. 

il.M·~· <c,M~• 

VoetomE.M•'tt'-d r, .. ·L·'<f-.1 

DoupiMoonJr. ~,,,, (l.et• '"A 

F~,~~_, 

HlonryNocllcfu 

?!•,·~6<•P•<> ~A 

l.a"""'rn;eA..R~rrc 

i~r·>·~;; J"h 

jo5ephf'R"'oQI 

(•),r•h·' 0•; 

fllotSUltc 

s~~''' l<f'J , f.1N 

AIVl F.Sha.mh~n 

l•>i.4<>ge'~s ( i\ 

!.'~~:~~~~!. 

M~,!;,~~~;an 

SnuUoTorru 

IG:; i1~1~ fil. 

April4,2017 

Subcommittee on Workforce Protections of the 

Committee on Education and the Workforce 

U.S. House ofRepresentatives 

Washington, D.C. 20515 

Dear Representative: 

On behalf of the 1.6 million members of the American Federation of State, 

County and Municipal Employees (AFSCME), I urge you to oppose H.R. II 80, the 

Working Families Flexibility Act of2017. H.R. 1180 claims to help American 

workers better balance the needs of family and the workplace by allowing employers 

to offer private-sector employees the choice of paid time off in lieu of cash wages for 

overtime hours worked. But contrary to its stated purposes, the proposed law will 

result in more overtime hours for employees for less money and without any 

guarantee of compensatory time when needed. 

For over 80 years and counting, the Federal Labor Standards Act (FLSA) 

establishes the basic requirements for wage and hour protections including overtime 

compensation. Under FLSA, overtime compensation must be provided for covered 

employees working more than the maximum period of 40 hours per week. However, 

H.R. II 80 provides no guaranteed right for an employee to use banked compensatory 

time when needed, even in the case of a personal or family emergency. Instead, this 

legislation gives discretion to the employer to permit use of compensatory time only 

"within a reasonable period after making the request if the use of the compensatory 

time does not unduly disrupt the operations of the employer." 

This legislation calls for an irresponsible change to the FLSA that will 

negatively impact worker's actual take home pay, and the valued time spent with 

their family when both are needed for workers' financial stability and to address 

family obligations. Also, if an employee's request to use comp time is denied 

because the employer unilaterally decides it is "unduly disruptive", the Jaw provides 

no recourse. And then, even when provided the compensatory time, the use of that 

time is controlled solely by the employer. In short, employees can be denied overtime 

pay, and effectively be prevented from meeting their family needs. 

Our experience in the public sector has revealed that employers' control over 

the use of compensatory time inflicts very real hardships on the public employees 

entitled to compensatory time for their overtime work. Employees request specific 

dates for valid reasons. Employees need the earned time off for milestones such as 

children's birthdays, family and friends' weddings, funerals, scheduled vacations and 

other date-specific activities. 

American Federation of State, County and Municipal Employees, AFL-CIO TEL (202) <J29-IOOO FAX (202) -429-1293 TDD (202) 659·0+46 WEB afs(me.org 1625 I. Street. NW. Washington, OC 20036·5687 
80 

CEWDOCROOM with DISTILLER


Insert offset folio 42 here 24882.042

Giving the employer veto power has been burdensome and abused by 

employers in the public sector and it has been cause for litigation. In theory, 

employees may take compensatory time within a reasonable period after making the 

request. In practice, it creates problems for employees denied the time when they 

need it and the language of the law becomes a false promise. 

Balancing the demands of family and the workplace are already a challenge 

for far too many workers. At a time in our country when our priority should be 

investing in stable jobs with good wages and benefits, our attention should not be on 

legislation that would further hurt workers who are already subjected to very little 

formality with respect to an agreement to take compensatory time off in lieu of 

overtime pay. 

Nothing in the current compensatory time-off application of the FLSA 

prevents employers from giving leave to employees who work long hours. Neither 

does the new proposal offer the critical protections workers need in the 21" century. 

Workers need solutions that actually help them manage work and family 

responsibilities; not a law that will provide less flexibility to a workforce under the 

gnise of providing more. 

H.~. 1180 attacks workers' paychecks, time off and flexibility; and AFSCME 

strongly opposes this bill. 

Sincerely, 

/5e:A1~ Scott Frey 

Director of Federal Govermnent Affairs 

SF:KLS:mc 
81 

CEWDOCROOM with DISTILLER


Insert offset folio 43 here 24882.043

May 6, 2013 

Dear Member of Congress: 

We, the undersigned organizations, urge you to oppose the so-called Working Families 

Flexibility Act of 2013 (H.R. 1406), a smoke-and-mirrors bill that offers a pay cut for 

workers without any guaranteed flexibility or time off to care for their families or 

themselves. As members of Congress on both sides of the aisle have acknowledged, people 

today are struggling to meet the demands of job and family, as well as to make ends meet. 

Americans urgently need lawmakers to take the next step on the road to a family friendly 

nation. But H.R. 1406 is not what the nation needs. It is, at best, an empty promise and it 

would cause considerably more harm than good. 

The Working Families Flexibility Act offers a false choice between time and pay. The bill's 

supporters claim H.R. 1406 would give hourly workers more flexibility and time with their 

loved ones by allowing them to choose paid time off, rather than time-and-a-half wages, as 

compensation for working more than 40 hours in one week ("comp time"). But the irony is 

that workers will only get more time with their families after they've spent long hours away 

at work. And there is nothing in H.R. 1406 that guarantees that workers will be able to use 

the comp time they have earned when they need it. 

The worker flexibility offered by H.R. 1406 is nothing more than a mirage. That's because 

this proposal gives the employer, not the employee, the "flexibility" to decide when and even 

if comp time can be used. The bill permits the employer to deny the request entirely if the 

employee's use of comp time would "unduly disrupt" operations or to grant leave on a day 

other than the day requested by the employee. This means that H.R. 1406 provides no 

guarantee that workers can use their earned time when a child falls ill, to attend a parentteacher conference, or to help an aging parent settle in to a nursing home. Employers can 

veto an employee's request to use comp time even in cases of urgent need. 

H.R. 1406 would put workers at very real risk and provides an interest-free loan to 

employers. An employee who does not accept comp time could be penalized with fewer 

hours, bad shifts and loss of overtime hours. And because it is cheaper to provide comp time 

than to pay overtime wages, there is a significant incentive for employers to hire fewer 

people and rely on overtime hours- paid for in future comp time -to get work done. It 

would permit employers to defer compensation for unused comp time for as long as 13 

months, creating an interest-free loan for employers and hardships for workers. 

H.R. 1406 provides few protections for workers and no additional resources to the U.S. 

Department of Labor for education, investigations and enforcement. While this bill adds 

significant new provisions to the Fair Labor Standards Act (FLSA), it provides no 

additional funds for the education and enforcement efforts the new provisions will require. 

Workers would have few remedies in cases of employer misconduct or bankruptcy. The 

problem of wage theft (the non-payment or underpayment of wages for hours worked) 

would be exacerbated by making it easier for employers to avoid overtime compensation 

obligations. 

1 
82 

CEWDOCROOM with DISTILLER


Insert offset folio 44 here 24882.044

The Fair Labor Standards Act (FLSA) currently allows employers to provide workers with 

flexibility and time off without compromising their right to be paid fairly for the hours 

they work. The types of flexibility allowable under the FLSA include alternative start and 

end times, compressed or variable work hours within a week, split shifts, work at multiple 

locations and paid or unpaid time off. The proponents ofH.R. 1406 set up a false dichotomy 

that would force workers to choose between flexibility and overtime pay when, in reality, 

the FLSA does nothing to prevent employers from offering both. 

Instead of wasting time on smoke and mirrors, Congress should focus on policy solutions 

that have been proven to work. We urge Congress to adopt policies that will provide 

families with the economic security and the time that they need: 

• The Healthy Families Act (H.R. 1286/S. 631), which makes earned paid sick days 

available to millions of workers; 

• Paid family and medical leave insurance modeled on successful state programs in 

California and New Jersey; 

Expanded access to the FMLA for more workers for more reasons, and so parents 

could, in fact, have the time they need to attend parent-teacher conferences without 

risking their jobs; 

• The Fair Minimum Wage Act (H.R. 1010/S. 460) which brings the minimum wage 

back to a reasonable level and, in so doing, provides businesses with customers, 

improves our economy, and help locals communities thrive; 

• The Paycheck Fairness Act (H.R. 377/S. 84), which helps close the gender-based 

wage gap; and 

• Measures to encourage fairer and more predictable work hours and prohibit 

mandatory overtime. 

Workers simply should not have to put in extra time beyond a 40-hour week and forgo 

pay to earn time to care for themselves or their loved ones. We urge Congress to reject 

H.R. 1406 and instead adopt family friendly policies that provide true flexibility for working 

families, not an empty promise that would make life appreciably harder for families that 

are already struggling. 

Sincerely, 

National Organizations 

National Partnership for Women & Families 

9to5 

A Better Balance: The Work and Family Legal Center 

African American Ministers In Action (AAMIA) 

African American Ministers Leadership Council (AAMLC) 

American Association of University Women (AAUW) 

American Federation of Government Employees (AFGE) 

AFL-CIO 

American Federation of State, County and Municipal Employees (AFSCME) 

American Federation of Teachers, AFL-CIO 

2 
83 

CEWDOCROOM with DISTILLER


Insert offset folio 45 here 24882.045

The Arc 

Business and Professional Women's Foundation 

Campaign for Community Change 

Center for Law and Social Policy (CLASP) 

Coalition of Labor Union Women 

Coalition on Human Needs 

Demos 

Direct Care Alliance 

Equal Rights Advocates 

The Every Child Matters Education Fund 

Family Equality Council 

Family Values@ Work Consortium 

Feminist Majority 

Food Chain Workers Alliance 

Friends Committee on National Legislation 

Half in Ten 

HIV Prevention Justice Alliance 

Human Rights Campaign 

Interfaith Worker Justice 

Jewish Women International 

Jobs with Justice/American Rights at Work 

Labor Council for Latin American Advancement 

Labor Project for Working Families 

Leadership Center for the Common Good 

The Leadership Conference on Civil and Human Rights 

Legal Momentum 

LULAC 

Main Street Alliance 

Maternity Care Coalition 

MomsRising 

NAACP 

National Action Network 

National Association of Social Workers 

National Consumers League 

National Council of Jewish Women 

National Council of La Raza (NCLR) 

National Council of Women's Organizations 

National Domestic Workers Alliance 

National Employment Law Project 

National Employment Lawyers Association (NELA) 

National Hispanic Council on Aging 

National Latina Institute for Reproductive Health (NLIRH) 

National Organization for Women (NOW) 

National Primitive Baptist Convention, USA, Inc. 

National Research Center for Women & Families 

National Women's Law Center 

NETWORK, A National Catholic Social Justice Lobby 

Partnership for Working Families 

3 
84 

CEWDOCROOM with DISTILLER


Insert offset folio 46 here 24882.046

People For the American Way 

PICO National Network 

Progressive National Baptist Convention, Inc. (PNBC) 

Progressive States Network 

Restaurant Opportunities Centers United 

RESULTS 

Service Employees International Union (SEIU) 

United Steelworkers (USW) 

USAction 

VESSELS 

Wider Opportunities for Women 

Women Employed 

Working America 

State and Local Organizations 

Arkansas 

Little Rock National Organization for Women 

Northwest Arkansas Workers' Justice Center 

Arizona 

Sun City/West Valley National Organization for Women 

California 

9to5 California 

Center on Policy Initiatives 

Legal Aid Society-Employment Law Center 

Colorado 

9to5 Colorado 

Colorado Fiscal Institute 

Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR) 

Colorado Progressive Coalition 

FRESC: Good Jobs, Strong Communities 

Interfaith Worker Justice Committee of Colorado 

NAACP Colorado/Montana/Wyoming State Conference 

Connecticut 

Connecticut Working Families Party 

District of Columbia 

D.C. Employment Justice Center 

Florida 

Broward County Chapter of the National Organization for Women 

Farmworker Association of Florida 

4 
85 

CEWDOCROOM with DISTILLER


Insert offset folio 47 here 24882.047

Florida National Organization for Women 

Organize Now 

Palm Beach County National Organization for Women 

Pasco National Organization for Women 

Tampa Chapter of the National Organization for Women 

Georgia 

9to5 Atlanta 

Victory for the World Church 

Illinois 

AIDS Foundation of Chicago 

Chicago Chapter Coalition of Labor Union Women 

Human Action Community Organization (HACO) 

Illinois State CLUW 

SEIU HealthCare Illinois & Indiana 

Indiana 

Central Indiana CLUW Chapter 

Central Indiana Labor Council 

Community, Faith & Labor Coalition 

Maine 

Maine Women's Lobby 

Maryland 

Baltimore National Organization for Women 

Job Opportunities Task Force 

Public Justice Center 

Massachusetts 

Jewish Alliance for Law & Social Action 

Massachusetts Paid Leave Coalition 

St. Paul A.M.E. Church 

Michigan 

Wayne County Chapter of National Organization for Women 

Minnesota 

Uptown National Organization for Women 

Mississippi 

The Mississippi Workers' Center for Human Rights 

New Hampshire 

NH Sisters of Solidarity 

NH National Alliance for Direct Support Professionals 

5 
86 

CEWDOCROOM with DISTILLER


Insert offset folio 48 here 24882.048

New Jersey 

Grace Cathedral Family Worship Center, Inc. 

Greater New Jersey CLUW Chapter 

Hope House Family Life Ministry 

New Jersey Citizen Action 

New Jersey Tenants Organization 

Northern NJ Chapter of National Organization for Women 

New York 

Catalyst 

Gay Men's Health Crisis (GMHC) 

New York Paid Leave Coalition 

New York State Nurses Association 

Progressive States Network 

Rockland County Chapter of National Organization for Women 

North Carolina 

Fayetteville National Organization for Women 

North Carolina Justice Center 

Ohio 

Akron Area National Organization for Women 

National Organization for Women, Greater Cleveland Chapter 

Ohio National Organization for Women 

Southeast Seventh-day Adventist Church 

Toledo Chapter, National Organization for Women 

Woodland Christian Church (Disciples of Christ) 

Zion Hill Missionary Baptist Church 

Oregon 

Central Oregon Coast National Organization for Women 

Family Forward Oregon 

Pennsylvania 

Micah Leadership Council 

New Hope Baptist Church 

Ni-ta-nee National Organization for Women 

Northeast Williamsport National Organization for Women 

PathWays PA 

Pennsylvania Association of Staff Nurses & Allied Professionals (PASNAP) 

Pennsylvania Council of Churches 

Philadelphia Coalition of Labor Union Women 

Pittsburgh UNITED 

Women's Law Project 

Texas 

6 
87 

CEWDOCROOM with DISTILLER


Insert offset folio 49 here 24882.049

Equal Justice Center 

North Dallas National Organization for Women 

Workers Defense Project 

Vermont 

Voices for Vermont's Children 

Virginia 

Charlottesville Chapter of the National Organization for Women (CNOW) 

NoVA National Organization for Women 

Vienna Area National Organization for Women 

Virginia National Organization for Women 

Washington 

Puget Sound Advocates for Retirement Action 

Thurston County Chapter, National Organization for Women 

WA State National Organization for Women 

Wisconsin 

9to5 Milwaukee 

SEIU Health Care Wisconsin 

Wisconsin National Organization for Women 

Workers' Rights Center 

7 
88 

[Additional submission by Mr. Takano follows:] 

CEWDOCROOM with DISTILLER

89 

CEWDOCROOM with DISTILLER


Insert offset folio 50 here 24882.050

Economic 

Policy 

Institute 

False choice for 

workers-Flexibility or 

overtime pay 

Policy Memo • By Ross Eisenbrey and Celine McNicholas • April 3, 2017 

Tho Working Families Flexibility Act (H.R. 1180), introduced February 16, 2017, by Rep. Martha Roby (R-Aia.}, 

would further erode overtime protections for American workers. Millions of workers are working overtime 

but are not getting paid for it1 This is, in part, the result of outdated overtime rules governing workers' 

eligibility for overtime pay. The erosion of overtime protections has led to workers earning less money 

while working longer hours. and has created a generally overworked middle class. The way to address this 

issue is to strengthen overtime protections-not, as H.R. 1180 does, create a new employer right to avoid 

paying workers overtime. 

Background 

The Fair Labor Standards Act (FLSA) requires employers to pay certain employees time-and-a-half (or 1.5 

times} their regular pay rate for each hour of work per week beyond 40 hours. For nearly 80 years, this 

system has struck a successful balance by giving employers a way to get work done at a fair price while 

protecting employees' time with their families. Most hourly workers are guaranteed the right to overtime 

pay, while salaried workers' eligibility is based on their pay and the nature of their duties. Most salaried 

workers who earn less than $455 per week ($23,660 annually) are automatically eligible for overtime pay, 

regardless of their job duties. Salaried workers who earn $455 per week or more may be exempt from 

guaranteed overtime if their job duties fall into one of three categories: professional, administrative, 

or executive. The duties associated with these categories involve supervisory responsibilities or a high 

degree of control over their time and tasks because these exemptions from guaranteed overtime were 

intended to apply to only a small segment of workers who perform relatively high-level work with a salary 

that reflects this. 

However, the salary threshold has been updated only once since the 1970s-in 2004, when it was set too 

low As a result. the share of the salaried workforce that earns less than the threshold has shrunk 

significantly. Consider that in 1979 nearly 12 million salaried workers had overtime protections. But today. 

J<;conomic Policy Institute · Washington, DC View this policy memo at epi.org/125639 
90 

CEWDOCROOM with DISTILLER


Insert offset folio 51 here 24882.051

with a 50 percent larger workforce, only 3.5 million salaried workers are automatically 

protected.2 Workers who have lost overtime protection based on an outdated salary 

threshold have lost not only the right to be paid time-and-a-half for their overtime-they 

have lost the right to be paid for it at all. And now that overtime hours do not cost 

employers extra money, they are more likely to require workers to work longer hours. No 

wonder so many workers feel that they need "flexibility" to balance family responsibilities. 

Employers have no incentive not to require those workers to work extra hours. 

Ohunta-era rule 

The deterioration of overtime protections led to the promulgation of a Department of 

Labor rule to restore the salary threshold to a meaningful leveL The rule-scheduled to 

take effect on December 1. 2016, but blocked by an injunction that is on appeal in the U.S. 

Court of Appeals for the Fifth Circuit-raised the threshold from $455 to $913 per week (or 

from $23,660 to $47,476 for a year-round worker). The rule would directly benefit a wide 

range of workers including 6.4 million women and 4.2 million parents.3 

Working Families Flexibility Act 

The Working Families Flexibility Act would amend the FLSA to allow private-sector 

employers to "compensate" hourly workers with compensatory time off in lieu of overtime 

pay. Contrary to proponents' claims, the bill does not create employee rights. it takes them 

away. It does create a new employer right-the right to delay paying any wages for 

overtime work for as long as 13 months. The legislation forces workers to compromise 

their paychecks for the possibility-but not the guarantee-that they will get time off from 

work when they need it. 

Congressional Republicans have introduced versions of this legislation for the past 20 

years: 

• H.R. 1, the Working Families Flexibility Act of 1997, which sought to amend the FLSA to 

extend camp time to the private sector. 

• H.R. 1119, the Family Time Flexibility Act, which proposed extending comp time to the 

private sector in 2003. 

• H.R. 6025, the Family Friendly Workplace Act, a nearly identical comp-time bill 

introduced in 2008. 

• HR. 933, a reintroduction of the Family Friendly Workplace Act in 2009. 

Despite the marketing, none of these bills would have resulted in greater flexibility for 

workers. Instead, they would have simply allowed employers to avoid paying overtime. 

Workers depend on the wage and overtime protections in the FLSA. They should not have 

to sacrifice earned wages to have flexibility. 

Economic Policy Institute 2 
91 

CEWDOCROOM with DISTILLER


Insert offset folio 52 here 24882.052

FLSA already provides flexibility 

The FLSA is the original family-friendly law. It permits a wide range of flexible work 

schedules. For example, under current law. public and private employers may choose to 

allow their workers to vary the start or end of their workday, including on an ad-hoc basis. 

Employers may also choose to permit employees to schedule four 10-hour days with one 

workday off. or armnge nlne~hour workdays with a day off every other week. All of these 

arrangements are permissible under the FLSA. Employers can and should take advantage 

of the flexibility the current law already provides. 

Perhaps most revealing, under the FLSA. an employer may pay an employee for overtime 

worked in a given week and then, to reward the employee for putting in extra time, may 

schedule future unpaid time off. The result would be that the total annual hours worked 

and income received would be the same as under Rep. Roby's comp time in lieu of 

overtime proposal, but workers would not have to wait for up to 13 months to be paid for 

the overtime hours. In other words, everything the camp time bill purports to provide for 

workers is actually available under the FLSA. 

The bill will reduce worker 

income 

The Working Families Flexibility Act would result in 

less money in employees' paychecks, even when 

they do work overtime. Many employees rely on 

overtime pay to earn enough money to make ends 

meet every month-but this bill would allow 

employers to avoid paying overtime premiums when 

employees work extra hours, by giving them "comp 

time" to bank for future use instead. This means 

employees will still be working longer hours, but they 

will be receiving less in their paychecks at the time 

they work the longer hours. They will essentially be 

loaning their employer their overtime pay {at no 

interest} for as long as 13 months. 

The "flexible" 

arrangements of 

the comp time bill 

could be offered 

today, with no new 

employer rights, 

duties, paperwork, 

record keeping, 

causes of action, or 

oversight. 

Under the legislation, an employee may decline to accept comp time in lieu of overtime. It 

follows that employers will assign overtime preferentially to those who accept comp time, 

thereby depriving the workers who need the extra cash of opportunities for overtime work. 

So, not only will the employees who receive comp time instead of overtime pay earn less, 

so will the employees who refuse camp time and insist on being paid overtime pay. 

Economic Policy Institute 3 
92 

CEWDOCROOM with DISTILLER


Insert offset folio 53 here 24882.053

The bill would give employers-not 

employees-the right to control comp time 

Nothing in the bill guarantees a worker that she will be able to use accrued camp time 

hours when she needs to access them. Under the legislation, an employer may deny a 

worker's request for camp time if it "unduly disrupts the operations of the employer." This 

broad standard for denying overtime provides employers with enormous control over 

employees' access to camp time. 

Furthermore, because the bill provides inadequate penalties, there is little incentive for 

unscrupulous employers to provide meaningful access to camp time. (An employer is 

liable for only the wages owed as well as liquidated damages reduced by each hour of 

comp time used by the employee.) Instead of providing meaningful access to camp time. 

employers could simply assert undue disruption to their operations in response to a 

request for a comp time hour and deny a worker the requested time off and continue to 

avoid paying overtime wages. The bill does not require employers to pay employees 

interest on their comp time pay, which employees would receive if they put their overtime 

pay in the bank, so the employer gets to keep any interest earned on the wages held as 

well. 

The bill would lead to unpredictable schedules 

for workers 

• The comp time bill undermines the fundamental goal of the FLSA's overtime rules: to 

discourage employers from overworking employees by making it more expensive for 

them to do so. 

• Allowing employers to give "comp time" cheapens the use of overtime since 

employers don't have to pay out overtime premiums when the work is actually done. 

• The employer, not the employee, has the final 

say over when comp time can be used. 

Employers can deny an employee's request to 

use comp time hours if they feel it would "unduly 

disrupt" the employer's business. And 

employees are required to make a request in 

advance without any leeway in emergency 

situations. Accordingly, many employees will 

work a lot of overtime and find their leave banks 

full at the end of the year. If workers don't 

manage to use at least two-thirds of their banked 

comp time. they will actually have worked more 

hours during the year, not less. 

Economic Policy Institute 

Because this bill 

makes overtime 

work cheaper for 

the employer, 

employers will be 

more likely to 

schedule 

mandatory 

overtime more 

often. 

4 
93 

CEWDOCROOM with DISTILLER


Insert offset folio 54 here 24882.054

Why comp time won't work in the 

tlrivate sector 

Proponents of comp time in lieu of overtime pay argue that public-sector employees 

receive this benefit and it should be extended to private-sector workers. However, there is 

little information available on the use of and experience with camp time in state and local 

governments, making it impossible to determine whether workers are able to meaningfully 

access comp time under the system. Furthermore, there are important differences 

between the public-sector workforce and the private-sector workforce that make comp 

time riskier for private-sector workers. Public-sector workers can't be fired except for good 

cause, they have administrative appeal rights, and they have significantly higher rates of 

union representation. These considerations make them more likely to challenge an 

employer's decision denying them the use of cornp time and less likely to be coerced into 

agreeing to comp time in lieu of overtime pay, And, while nothing in this legislation 

provides any guarantee that a worker will ever be able to take the camp time that she 

accrues when she needs it, private-sector workers also face a real danger of losing camp 

time accrued in the event of a business failure. According to tt1e Small Business 

Administration, in 2013, over 400,000 small businesses closed 4 Nothing in the legislation 

provides workers whose employer goes out of business with a guarantee to receive 

payment for accrued comp time. The employer is not required to put sufficient money in 

escrow or to buy a bond to guarantee payment in case of closure or bankruptcy. 

Conclusion 

At no risk to the employee, the FLSA already allows an employer to grant time off to 

employees who work overtime. H.R. 1180 adds nothing but delay and risk to the 

employees' right to receive extra compensation when they work more than 40 hours in a 

week. 

~~ndnotes 

l Ross Eisenbrey and Lawrence Mlsl1el, The New Overtime So lory Threshold Would Directly Benefit 

13.5 Millton Workers. Economic Policy Institute report, August 2015. 

2. Ross E1senbrey. Testirrwny before the United States Senate Committee on Small Business and 

Entrepreneurship, May 11, 2016. Current statlst!cs referred to are as of 2014. 

3. Ross Elsenbrey and Will Kimball, The New Overtime RL1Ie Will Directly Benefit 12.5 Million Working 

People, Economic Policy Institute report, May 2016. 

4. U.S. Small Business Administration Office of Advocacy, "Frequently Asked Questions," June 2016. 

Economic Policy Institute 5 
94 

[Questions submitted for the record and their responses follow:] 

CEWDOCROOM with DISTILLER


Insert offset folio 55 here 24882.055

May 19,2017 

Ms. Vicki Shabo 

Vice President 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE U.S. HOUSE OF REPRESENTATIVES 

2176 RAYBURN HOUSE OFFICE BUILDING 

WASHINGTON, DC 20515-6100 

National Partnership for Women & Families 

1875 Connecticut Avenue NW 

Suite 650 

Washington, DC 20009 

Dear Ms. Shabo: 

ROBERT C. ·aOSBY'"SCOrT, \IIRGINIA, RtmliingMembtr 

SUSANA.OAVlS,CALII'ORNIA 

AAIJLM.GfUJAlVA.ARIZONA. 

JOE COURTNeY, CONNECTlCUT 

=~IA~t~~c~gk!'6o 

c:;:~~~~i:~:tsetAN· 

FREOlffiiCAS.WllSON,FlORIOA 

SUZANNE 80NAMICI, ORE~ON 

=~"'zt!lli=H~:CWuNA MARK OESol.utN!ER. CAUFORMA DONALP NORCROSS, NeN JERSEY USA BLUNT ROCHESTER. DELAWARE ~AJAKR!SHNAMOORTHI, IlLINOIS CAROL SHEA· PORTER. NI:.W HAMPSHIRE ADRIANO ES?AllLA T, NEW YORK 

Thauk you, again, for testifYing before the Subcommittee on Workforce Protections at a 

legislative hearing on H.R. 1180, Working Families Flexibility Act of201 7. I appreciate your 

participation. 

Please find enclosed additional questions submitted by a Committee member following the 

hearing. Please provide written responses no later than June 2, 2017, for inclusion in the official 

hearing record. Responses should be sent to Jessica Goodman of the Committee staff, who can 

be contacted at (202) 225-7101. 

We appreciate your continued contribution to the work of the Committee. 

Sincerely, 

Subcommittee 

Chairman ~~ on Workforce Protections 

Enclosure 

CC: The Honorable Mark Takano, Ranking Member, Subcommittee on Workforce Protections 
95 

CEWDOCROOM with DISTILLER


Insert offset folio 56 here 24882.056

Rep. Foxx (NC) 

1. Ms. Shabo, many workers employed by federal, state, and local governments are able to 

have additional flexibility in the workplace by utilizing compensatory time arrangements 

similar to that provided for private-sector workers under H.R. 1180. Given your 

arguments against this bill, do you favor repealing laws providing this flexibility to 

government workers? And, if not, please explain to the Committee why you believe 

ptivate-sector workers should be treated differently than public-sector workers. 
96 

[Ms. Shabo’s response to question submitted for the record follows:] 

CEWDOCROOM with DISTILLER


Insert offset folio 57 here 24882.057
97 

Thank you very much. This hearing is adjourned. 

[Whereupon, at 11:43 a.m., the subcommittee was adjourned.] 

Æ 

CEWDOCROOM with DISTILLER


Insert offset folio 58 here 24882.058

The "reasonable period" for notice requirement has been interpreted by some courts to mean that 

an employee must provide as much as a year's notice to their employer before taking leave.4 

The "reasonable period" requirement within which compensatory time requests must be granted 

has been interpreted to allow an employer to instruct an employee to take comp time on a day 

other than the day the employee requested, so long as it is within a "reasonable period" of the day 

requested by the employee.' 

Although "unduly disrupt" in the regulations means more than "mere inconvenience," employers 

have significant discretion to determine whether an employees' absence would "impose an 

unreasonable burden on the [employer's] ability to provide services of an acceptable quality and 

quantity for the public."' 

• The FLSA's public sector provisions allow public employers to compel employees' use of 

banked comp time when the employee has accrued too much time, negating an employees' 

interest in saving banked time.' 

Differences between public and private sector employment heighten the risks for private sector workers, 

making compensatory time an even less desirable proposition: 

Private sector workers lack civil service protections that public sector workers have. 

• A far smaller share of the private sector workforce is unionized, which further reduces protections 

available and limits workers' ability to negotiate different protective requirements. 

Wage and hour violations related to overtime are far more common in the private sector, which 

means that enforcement resources are already stretched and the risk that current violators will also 

shirk new wage and hour requirements is greater. 

• Private sector employers have a profit motive to limit payroll costs and forgo payments for 

overtime, instead preferring to take an employee's labor as a "loan" to be paid later in comp time. 

Private sector employers are more likely to go bankrupt, leaving employees more vulnerable to 

losing the value of their banked labor. 

Working people- whether in the public sector or the private sector- need fair wages and the guarantee of 

paid time to deal with personal and family issues. Comp time guarantees neither. At a time when our 

nation's working families urgently need public policies that make our workplaces more fair and family 

friendly, H.R. t 180 is an empty promise. Our nation's workers need stronger workplace protections and 

new policies that reflect their needs. H.R. 1180 is a step in the wrong direction. 

Vicki Shabo 

Vice President 

4 Mortensen v. Coumy of Sacramento, 368 F.3d 1082 (9th Cir. 2004). 5 Houston Police Officers Union v. City of Houston, 330 F.3d 298 (5th Cir. 2003) and Mortensen v. County qf 

Sacramento, 368 F .3d !082 (9th Cir. 2004). 

'Saunders v. City of New York and the Department of Education of the City of New York. 594 F.Supp 2d 346 

(S.D.N.Y. 2008). 7 Christensen v. Harris County, 529 US 576 (2000). 

2