FLEXIBILITY IN THE WORKPLACE:

DOES THE FAIR LABOR STANDARDS ACT 

ACCOMMODATE TODAY’S WORKERS?

HEARING

BEFORE THE 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

OF THE 

COMMITTEE ON EDUCATION AND 

THE WORKFORCE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION 

HEARING HELD IN WASHINGTON, DC, MARCH 6, 2002 

Serial No. 107-48 

Printed for the use of the Committee on Education 

and the Workforce

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 2002

82-590 pdf 

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

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

 FAX: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 
ii

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN A. BOEHNER, Ohio, Chairman 

THOMAS E. PETRI, Wisconsin GEORGE MILLER, California 

MARGE ROUKEMA, New Jersey DALE E. KILDEE, Michigan 

CASS BALLENGER, North Carolina MAJOR R. OWENS, New York 

PETER HOEKSTRA, Michigan DONALD M. PAYNE, New Jersey 

HOWARD P. “BUCK” McKEON, California PATSY MINK, Hawaii 

MICHAEL N. CASTLE, Delaware ROBERT E. ANDREWS, New Jersey 

SAM JOHNSON, Texas TIM ROEMER, Indiana 

JAMES C. GREENWOOD, Pennsylvania ROBERT C. “BOBBY” SCOTT, Virginia 

LINDSEY O. GRAHAM, South Carolina LYNN C. WOOLSEY, California 

MARK E. SOUDER, Indiana LYNN N. RIVERS, Michigan 

CHARLIE W. NORWOOD, JR., Georgia RUBEN HINOJOSA, Texas 

BOB SCHAFFER, Colorado CAROLYN McCARTHY, New York 

FRED UPTON, Michigan JOHN F. TIERNEY, Massachusetts 

VAN HILLEARY, Tennessee RON KIND, Wisconsin 

VERNON J. EHLERS, Michigan LORETTA SANCHEZ, California 

THOMAS G. TANCREDO, Colorado HAROLD E. FORD, JR., Tennessee 

ERNEST L. FLETCHER, Kentucky DENNIS KUCINICH, Ohio 

JIM DeMINT, South Carolina DAVID WU, Oregon 

JOHNNY ISAKSON, Georgia RUSH D. HOLT, New Jersey 

BOB GOODLATTE, Virginia HILDA L. SOLIS, California 

JUDY BIGGERT, Illinois SUSAN DAVIS, California 

TODD RUSSELL PLATTS, Pennsylvania BETTY McCOLLUM, Minnesota 

PATRICK J. TIBERI, Ohio 

 RIC KELLER, Florida 

 TOM OSBORNE, Nebraska 

 JOHN ABNEY CULBERSON, Texas 

Paula Nowakowski, Chief of Staff 

 John Lawrence, Minority Staff Director

 SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

 CHARLIE NORWOOD, Georgia, Chairman

JUDY BIGGERT, Illinois, Vice Chairman MAJOR R. OWENS, New York

CASS BALLENGER, North Carolina DENNIS KUCINICH, Ohio 

LINDSEY O. GRAHAM, South Carolina PATSY T. MINK, Hawaii 

JOHNNY ISAKSON, Georgia LYNN C. WOOLSEY, California 

BOB GOODLATTE, Virginia LORETTA SANCHEZ, California 

RIC KELLER, Florida HILDA L. SOLIS, California 

JOHN ABNEY CULBERSON, Texas 
iii

Table of Contents 

OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, SUBCOMMITTEE ON 

WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE

........................................................................................................................................................ 2

OPENING STATEMENT OF CONGRESSWOMAN JUDY BIGGERT, SUBCOMMITTEE 

ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE 

WORKFORCE ............................................................................................................................... 3

OPENING STATEMENT OF RANKING MEMBER MAJOR R. OWENS, SUBCOMMITTEE 

ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE 

WORKFORCE ............................................................................................................................... 4

STATEMENT OF RONALD BIRD, CHIEF ECONOMIST, EMPLOYMENT POLICY 

FOUNDATION, WASHINGTON, D.C......................................................................................... 5

STATEMENT OF CARL E. VAN HORN, PROFESSOR AND DIRECTOR, JOHN J. 

HELDRICH CENTER FOR WORKFORCE DEVELOPMENT, RUTGERS, THE STATE 

UNIVERSITY OF NEW JERSEY, NEW BRUNSWICK, NJ ...................................................... 7

STATEMENT OF WILLIAM J. KILBERG, SENIOR PARTNER, GIBSON, DUNN & 

CRUTCHER, LLP, WASHINGTON, D.C., TESTIFYING ON BEHALF OF THE UNITED 

STATES CHAMBER OF COMMERCE..................................................................................... 10

STATEMENT OF JUDITH M. CONTI, CO-FOUNDER AND DIRECTOR, LEGAL 

SERVICES AND ADMINISTRATION, D.C. EMPLOYMENT JUSTICE CENTER, 

WASHINGTON, D.C................................................................................................................... 12

APPENDIX A - OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION 

AND THE WORKFORCE........................................................................................................... 25

APPENDIX B - WRITTEN STATEMENT OF CONGRESSWOMAN JUDY BIGGERT, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION 

AND THE WORKFORCE........................................................................................................... 29

APPENDIX C - WRITTEN STATEMENT OF RONALD BIRD, CHIEF ECONOMIST, 

EMPLOYMENT POLICY FOUNDATION, WASHINGTON, D.C. ......................................... 33
iv

APPENDIX D - WRITTEN STATEMENT OF CARL E. VAN HORN, PROGESSOR AND 

DIRECTOR, JOHN J. HELDRICH CENTER FOR WORKFORCE DEVELOPMENT, 

RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, NEW BRUNSWICK, NJ.......... 69

APPENDIX E - WRITTEN STATEMENT OF WILLIAM J. KILBERG, SENIOR PARTNER, 

GIBSON, DUNN & CRUTCHER, LLP, WASHINGTON, D.C., TESTIFYING ON BEHALF 

OF THE UNITED STATES CHAMBER OF COMMERCE ...................................................... 75

APPENDIX F - WRITTEN STATEMENT OF JUDITH M. CONTI, CO-FOUNDER AND 

DIRECTOR, LEGAL SERVICES & ADMINISTRATION, D.C. EMPLOYMENT JUSTICE 

CENTER, WASHINGTON, D.C. ................................................................................................ 85

APPENDIX G – SUBMITTED FOR THE RECORD, STATEMENT OF CONGRESSMAN 

DENNIS KUCINICH, COMMITTEE ON EDUCATION AND THE WORKFORCE.............. 99

APPENDIX H – SUBMITTED FOR THE RECORD, LETTER FROM WILLIAM J. 

KILBERG, P.C., TO CHAIRMAN CHARLIE NORWOOD, MARCH 18, 2002 .................... 105

Table of Indexes.......................................................................................................................... 110

 Table of Contents for May 15, 2002 Hearing...........................................................113 

 Table of Indexes for May 15, 2002 Hearing.............................................................183 
FLEXIBILITY IN THE WORKPLACE: DOES THE FAIR LABOR STANDARDS ACT 

ACCOMMODATE TODAY'S WORKERS? 

___________________

Wednesday, March 6, 2002 

Subcommittee on Workforce Protections 

Committee on Education and the Workforce 

U.S. House of Representatives 

Washington, D.C. 

 The Subcommittee met, pursuant to notice, at 2:02 p.m., in Room 2175, Rayburn House 

Office Building, the Honorable Charlie Norwood, Chairman of the Subcommittee, presiding. 

 Present: Representatives Norwood, Biggert, Ballenger, Isakson, Culberson, Owens, 

Kucinich and Mink. 

 Staff present: Molly McLaughlin Salmi, Professional Staff Member; Victoria Lipnic, 

Workforce Policy Counsel; Christine Roth, Professional Staff Member; Ed Gilroy, Director of 

Workforce Policy; Greg Maurer, Professional Staff Member; Travis McCoy, Legislative Assistant; 

Kevin Smith, Senior Communications Counselor; Scott Galupo, Communications Specialist; 

Patrick Lyden, Professional Staff Member; and Deborah L. Samantar, Committee Clerk/Intern 

Coordinator.

Peter Rutledge, Minority Senior Legislative Associate/Labor; Michele Varnhagen, Minority 

Labor Counsel/Coordinator; and, Dan Rawlins, Minority Staff Assistant/Labor. 

Chairman Norwood. The Subcommittee on Workforce Protections will now come to order. 

 Under Committee Rule 12(b), opening statements for the hearing are limited to the 

Chairman and Ranking Minority Member of the Subcommittee. If other Members have statements, 

they will be included in the hearing record. With that, I ask unanimous consent for the hearing 
2

record to remain open for 14 days to allow Member statements and other materials referenced 

during the hearing to be submitted for the record. 

 The focus of today's hearing is on flexibility in the workplace, specifically regarding the 

ability of the Fair Labor Standards Act to accommodate the needs of today's workers. I would like 

to take a moment to extend a very warm welcome to our witnesses. We are grateful for your time 

and willingness to come. We very much appreciate your being part of this process, and we look 

forward to your testimony. I have just a short statement and then I will yield the remainder of my 

time to my colleague and Vice Chair of the Subcommittee, Judy Biggert. 

OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE 

 We will first hear about the demographic changes that have occurred in the workplace over 

the past several decades. The composition of the workforce has changed dramatically, and the 

nature of work has moved away from manufacturing-based industries to service-based industries. 

What we will hear is that today's workforce is vastly different from that of 1938, when the Fair 

Labor Standards Act was put into place. 

 We will also hear about what matters most to workers today. Workers want the ability to 

balance work and family. Not surprisingly, for many workers the ability to balance work and 

family has become the most important aspect of a job, outranking all other job-related issues.

Given the opportunity, most Americans want flexible work options in order to spend more time 

with their families or pursue interests outside of work such as starting small businesses. 

 Likewise, helping workers balance work and family can be a useful tool for employers in 

attracting and retaining qualified employees. Companies can improve business results by 

implementing practices that help employees balance their work and personal responsibilities.

Providing employees with more control over their hours and more flexibility in how work gets 

done can go a long way toward boosting employee morale and enhancing productivity. 

 Finally, we will hear from our legal experts about the problems that employers face under 

current law when they attempt to respond to employee demands for greater flexibility. I am very 

mindful that the Fair Labor Standards Act provides important protections for workers. I am also 

mindful that it may be unnecessarily rigid in keeping up with the flexibility demanded by today's 

workers.

 I would now like to yield the remainder of my time to my colleague, Judy Biggert, for her 

opening remarks. 

OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, SUBCOMMITTEE ON 

WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE 
3

SEE APPENDIX A 

OPENING STATEMENT OF CONGRESSWOMAN JUDY BIGGERT, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE 

Thank you very much, Mr. Chairman. I commend you for holding this important hearing, 

for as you have noted, there have been some very dramatic changes in the past 60 years in the 

composition and character and demands of the workplace. 

 What was once a manufacturing-based economy with a primarily male workforce has 

evolved into a fast-paced global economy based on services and technology with nearly equal 

numbers of men and women in the workforce. Of course, one of the most dramatic changes has 

been the increased number of women in the workforce, particularly those with young children. 

 In 1969, some 38 percent of married women with children worked for pay, while in 1996, 

68 percent did so. The reality of today's workforce is that both parents are working or a single 

parent is balancing all of the household needs. And these changes highlight the demand for greater 

flexibility in work schedules. 

 Today, more than ever before, workers face a difficult dilemma: how to balance the 

demands of work and still have enough time for family and personal commitments. While this 

conflict weighs most heavily on working mothers, recent surveys have shown that younger 

workers, particularly young men, are more willing to make sacrifices in their jobs, careers and 

education, in order to achieve more balance in their personal lives. 

 Providing workingmen and women with increased control over their work schedules may 

sound relatively simple. But private sector employers and their workers are constrained by the Fair 

Labor Standards Act, which does not permit a great deal of flexibility. The testimony today will 

show that the law was designed for a different workforce with different needs. 

 As we in Congress consider how to make flexible work schedules available to more 

Americans, no doubt some will say that there are already a variety of ways to give workers 

additional time off under current law. Yet the options available under current law, for example, do 

not permit employees to work additional hours in order to accrue paid time off to be used at a later 

date. Furthermore, flexibility between workweeks is limited as the law discourages employers 

from allowing workers to increase their hours in one week in order to account for time taken during 

a subsequent week. 

 Most workers simply want additional flexibility in the workplace and more choices than are 

currently available. For employers, addressing work and family concerns can lead to greater 

employee satisfaction, which in turn, means more productive work practices and a better business 

result. I, too, want to thank our witnesses for being here today, and I look forward to your 

testimony. Thank you, Mr. Chairman. 
4

WRITTEN STATEMENT OF CONGRESSWOMAN JUDY BIGGERT, SUBCOMMITTEE ON 

WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE 

SEE APPENDIX B 

Chairman Norwood. I yield to the distinguished Ranking Minority Member from New York, Mr. 

Owens, for whatever opening statement he wishes to make. 

OPENING STATEMENT OF RANKING MEMBER MAJOR R. OWENS, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE 

Thank you, Mr. Chairman and Madam Vice Chairwoman. I want to welcome today's 

witnesses and express my appreciation for your willingness to take the time and effort to be here 

this afternoon. And since there are going to be votes, your time and effort is going to be a little 

longer than expected. 

 Today's hearing is to examine the issue of flexibility in the workplace and the extent to 

which the Fair Labor Standards Act, particularly the requirement to pay time and a half for hours 

worked in excess of 40 hours a week, affects that issue. As many recall, this is an issue we debated 

extensively in the 104th Congress and the 105th Congress when Republicans unsuccessfully sought 

to enact comp time legislation. That was bad legislation then. It deserved to be defeated then and 

it deserves to be defeated now. 

 I remember I was willing to compromise to the point on the floor of the House when I 

offered that the legislation should apply only to people who are making above minimum wage. 

The other folks needed the cash. And even that was not accepted. 

 If the intent today is to resurrect that fight, then let me say at the outset that I believe that 

the 40-hour week is the most family-friendly legislation this Congress has ever enacted.

Weakening the 40-hour week may make it easier for employers to require workers to work longer 

hours, but it will not enhance worker flexibility and will not make it easier for workers to balance 

demands of work and family. 

 There are, of course, many things that Congress can do that would improve the ability of 

workers to balance work and family needs. We can provide workers with the right to refuse to 

work excessive overtime without jeopardizing their job. We can guarantee a right to paid leave for 

workers facing family and medical emergencies. More basically, we can provide a right to unpaid 

family and medical leave to all workers. Even more basic than that, we can raise the minimum 

wage.

Chairman Norwood, in the event it is your intent to achieve any of these goals, I am more 

than willing to work with you. Let's combine all those goals with the goal of more flexibility. I 
5

think we can achieve more flexibility if we follow that course. 

 I yield back the balance of my time. 

Chairman Norwood. Thank you very much, Mr. Owens. And I would ask your indulgence of the 

witnesses. We have a vote. We're going to recess as quickly as we can and go vote. And I would 

ask all Members to return as fast as they can. 

 We are now in recess, subject to the call of the chair. 

[Recess.]

Chairman Norwood. The Committee will come to order. We will now proceed with our panel of 

witnesses.

 Our witnesses today are Dr. Ronald Bird, Chief Economist with the Employment Policy 

Foundation; Dr. Carl E. Van Horn, Professor and Director of the John Heldrich Center for 

Workforce Development at Rutgers State University of New Jersey; Mr. William Kilberg, Senior 

Partner with Gibson, Dunn & Crutcher, testifying on behalf of the U.S. Chamber of Commerce; 

and Mrs. Judith Conti, Co-founder and Director of Legal Services and Administration with the 

D.C. Employment Justice Center. 

 Before we begin, I would like to remind the Committee Members that we will ask questions 

after the entire panel has testified. In addition, Committee Rule 2 imposes a five- minute limit on 

questions.

Dr. Bird, if you would please begin. 

STATEMENT OF RONALD BIRD, CHIEF ECONOMIST, EMPLOYMENT 

POLICY FOUNDATION, WASHINGTON, D.C. 

Thank you, sir. As Congress reviews the effectiveness of employment policies and assesses 

the need for change, I think it is important that decision-makers be aware of the realities of 

workplace demographics. Effective policies reflect the facts of the population that policies are 

intended to serve and of the economic structure in which they operate. Policies built on erroneous 

assumptions risk unintended consequences, at best doing no good, and at worst actually harming 

more than they help. 

 Much of today's employment policy framework was constructed over half a century ago, 

reflecting the experience of the Great Depression. Today's American workplace is dramatically 

different and more complex than the workplace of two generations ago. The important workplace 

changes of the past 50 years reflect at least five dimensions of change that affect policy. 

 Now, I've given you my written testimony. And what I'm going to do today is summarize 

five salient features from it, and I'm just going to mention five of the charts that I attached. 
6

 First of all, job availability is an important consideration. Figure 1, that I have given you, 

illustrates an important point about that. We have moved from an era in which workers were 

plentiful and job opportunities were scarce to one that is just the opposite. Qualified workers are 

scarce in today's job market, and job opportunities are in fact plentiful, especially for those who 

have the skills and the education that the modern economy demands. Figure 1 shows the strong 

performance of the economy. 

 In the past 25 years, the American economy has produced 35 million new jobs net. 

Continuing this strong job creation trend is central to any successful employment policy approach. 

This past year, we've been in a recession. But still, job growth has continued in the areas that 

reflect the new economy, the new technologies and the expanding role of America in a competitive 

economy, in a competitive world. 

 Unemployment, which has gone up in the last year during this recession is still well below 

the peaks reached in previous business cycles. Maintaining a growing labor force to fill new jobs 

created by growth and the vacant jobs that will occur from retirement of the baby boom generation 

will strain all the sources of labor supply. 

 The second major change that we are seeing is in industrial structure. We have moved from 

an era in which most jobs were in centralized mass production-oriented manufacturing enterprises 

to one in which most jobs, and indeed the best jobs, are in service industries. 

 In the global integrated economy, jobs in the high value-added areas of business 

management services, information, and other professional services are the fastest-growing 

segments, and that's where America's comparative advantage lies. Figure 9 in your packet shows 

that industrial change as the service sector has risen to become the dominant sector in the economy. 

 The third category of change that's very important from the standpoint of employment 

policy is occupational structure. We have moved from an era in which most jobs were in routine, 

low skill assembly and equipment operator occupations to one in which most jobs, and the fastestgrowing types of jobs, are in creative and knowledge-intensive professional, technical, and 

management-related fields. 

 Figure 10 in your packet highlights the effect of this change. As you see in the chart, 

management and professional occupations have now grown to be the single largest employment 

group. This structural change and the kinds of jobs created will exacerbate the already tight 

employment outlook for the future and have far-reaching implications for both education and 

employment policy. 

 Item number four is education. We have moved from an era in which most workers needed 

little formal education to one in which the workforce is highly educated and in which the demand 

for even higher educational attainment is increasing. 

 The change in the occupational and industrial structure of the American economy is also 

reflected in an increased demand for skills and training. And this is what Figure 12 in your packet 
7

highlights, the dramatic difference in job growth in relation to educational attainment. Over just 

the last five years, and the last five years really reflect a trend that has been going on for 30 years, 

job growth for jobs held by college graduates has increased more than eight times faster than job 

growth for all people with just a high school diploma or less. 

 Finally, item number five is the issue of diversity. We have moved from an era in which 

most workers came to the workplace with similar expectations and similar needs to one in which 

workers come to the workplace with complex and conflicting expectations and needs. And in the 

packet that I have provided for you, Figure 16 highlights that change in terms of the increasing 

prevalence of dual-earner married couple households. This change has important implications for 

the concerns about work and family balance. Another remarkable trend in Figure 16 is also the 

increase in households that are not family households, and single individuals living alone. Those 

are the two fastest-growing groups. 

 At the heart of the policy concerns raised by these trends and challenges is the fundamental 

mismatch between the realities of the 21st century and the assumptions about the workplace that 

underlie current employment policies. As a consequence, I think Congress really needs to reassess 

whether current employment laws and regulations are meeting employees' needs and preferences in 

the areas of flexible scheduling, innovative compensation, employment work structures, alternative 

employment arrangements, and employee involvement. 

 Thank you very much. I appreciate the opportunity to be here with you today. 

WRITTEN STATEMENT OF RONALD BIRD, CHIEF ECONOMIST, EMPLOYMENT 

POLICY FOUNDATION, WASHINGTON, D.C. – SEE APPENDIX C 

Chairman Norwood. Thank you very much, Dr. Bird. 

Dr. Van Horn, if you could please begin.

STATEMENT OF CARL E. VAN HORN, PROFESSOR AND DIRECTOR, 

JOHN J. HELDRICH CENTER FOR WORKFORCE DEVELOPMENT, 

RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, NEW 

BRUNSWICK, NJ

Thank you, Mr. Chairman, and thank you Members of the Committee for inviting me to be 

here today. I direct the John J. Heldrich Center for Workforce Development at Rutgers University.

The Heldrich Center is one of the nation's largest university-based research institutes 

dedicated to strengthening the workforce, improving education and governmental performance and 

workplace management. We identify best practices in the workplace. And since 1978, we have 

conducted quarterly surveys of the American workforce under a project that we call “Work Trends” 

which is done in partnership with our colleagues at the University of Connecticut Survey Research 
8

Center. During that time, we have interviewed over 10,000 American workers and employers 

about a wide range of issues affecting work in America. 

 In our work, we meet leaders from businesses of every size in our state and across the 

country, and I hear the same questions today that I have heard since the economic boom began in 

the mid 1990s. How can employers identify and recruit the best people? And once they have 

brought them on board, how can they keep them? 

 And while the economy has slowed down last year in most respects, the war for talent, as 

HR people call it, continues unabated. For employers, the importance of having a workforce with 

the knowledge, skills, and commitment to keep pace with global change remains a huge concern. 

In fact, in a survey we released just two weeks ago, employers are still facing a skills crunch.

Nearly half of them told us it was difficult to find qualified workers in the past year. 

 Our survey research, as well as other respected reports and studies, agree that productive 

companies that wish to hire and keep the best people need to understand their current and 

prospective employees' leading workplace concerns and be prepared with policies to address them. 

Balancing work and family and the need for continuing education are dominant concerns of 

American workers, and more importantly, they expect their employers to address these issues. 

 Almost all Americans are deeply concerned about balancing work and family, yet our data 

consistently show over the years that only half of U.S. workers feel that they are satisfied with how 

that is working out. Workers rate the ability to balance work and family as the most important 

aspect of their job. Ninety-seven percent, and I don't know what happened to the other 3 percent, 

said this is the most important issue. They rate this higher than job security, salary, quality of 

working environment, and relationships with co-workers. And while we have found that U.S. 

workers generally say they are satisfied with their jobs, these same working Americans say there is 

still something fundamentally wrong with the way they are working today, and they believe it can 

be changed for the better. 

 Now, how does this information, this frustration about work-family issues, express itself? 

Well, basically our data show that nearly all adults are concerned with spending more time with 

their immediate family. They are more concerned with having flexibility in their work schedules to 

take care of family needs. And they are experiencing a great deal of stress at work. 

 Now these figures, I think, dispel the common belief that balancing work and family is only 

a concern for employees with children. Thirty-three percent of American households have children 

at home. But as these findings show, far greater numbers are concerned about the issue of the 

lifetime crunch than just those with children. 

 With the growing elderly population and longer commutes and time-intensive medical 

treatments and technologies, the general complexity of American life, workers of every type of 

family group face new time and money pressures. What's more, Americans face ever-increasing 

demands to acquire continuing education and training. 
9

 The evidence is clear that today's workers know they need education and training beyond 

their formal schooling, and they know that it must be completed primarily on their own time and 

with their own resources. Federal data show that 60 million adults, almost half the workforce, Mr. 

Chairman, enrolled in one or more adult education programs during 1999. That's a 12 million 

person increase from 1991. 

 When “Work Trends” researchers asked Americans about the importance of upgrading their 

skills, almost all of them said they needed more specific training in a skill to get a better job. Yet 

only about half of them said they are getting enough needed education and training through their 

employers. So in short, I want to add that Americans are not just juggling work and family, but 

they are juggling work, family, and education, all three in a complex mix. 

In asking them what policies they would support in the workplace, we have found that 

there's a gap between what American workers strongly support and the number of employers who 

are offering these policies. This is summarized on the chart that's in the back of my testimony. 

While most U.S. workers agree that their employers care about balancing work and families, one in 

ten said that employers don't offer the benefits that are necessary, and the real gaps are between 

things like flexible scheduling of work, hours and days. There is a much greater congruence 

between what employers do with emergency time off and unpaid leave than there is in flexibility 

for hours and days. 

 The other area where there is a gap is between those who want on-site childcare. Fifty 

percent want that versus 12 percent who say their employers provide that. Tuition reimbursement 

is another area, although this may change with the tax law changes that occurred last year. Only 33 

percent of employers were said to offer this policy. 

 Our survey findings project some shifts in the way work is organized and conducted in the 

21st century. And in today's economy, a progressive, family-friendly, flexible policy is a very 

important emerging incentive for employers to get and retain the kind of qualified workers that I 

referred to earlier. The experiences of several large firms in our state, such as Johnson & Johnson, 

Schering-Plough, Merck, and Ford Motor Company show that progressive work-life policies are 

effective. These companies lead their industries in profitability, and they offer very innovative, 

generous, family-friendly policies. 

 As workers struggle to meet the demands of employers, and employers struggle to meet the 

demands of a fast-changing economy, the message to employers and policy-makers is clear. 

Policies promoting worker flexibility, strong families, and increased skill attainment have the 

potential to meet the needs of both workers and the companies that employ them. 

 Thank you, Mr. Chairman. 

WRITTEN STATEMENT OF CARL E. VAN HORN, PROGESSOR AND DIRECTOR, JOHN J. 

HELDRICH CENTER FOR WORKFORCE DEVELOPMENT, RUTGERS, THE STATE 

UNIVERSITY OF NEW JERSEY, NEW BRUNSWICK, NJ – SEE APPENDIX D 
10

Chairman Norwood. Thank you very much, Dr. Van Horn. 

Mr. Kilberg, you are now recognized, sir. 

STATEMENT OF WILLIAM J. KILBERG, SENIOR PARTNER, GIBSON, 

DUNN & CRUTCHER, LLP, WASHINGTON, D.C., TESTIFYING ON 

BEHALF OF THE UNITED STATES CHAMBER OF COMMERCE 

 Thank you, Mr. Chairman, and Members of the Subcommittee. I am pleased to appear 

today on behalf of the United States Chamber of Commerce. I have submitted written testimony 

for the record. 

 I speak from the perspective of one who has practiced labor and employment law for over 

32 years. I have also had the great privilege and honor to serve as Solicitor for the United States 

Department of Labor for four of those years. In that capacity, I was the chief legal officer for the 

agency charged with interpreting and enforcing the Fair Labor Standards Act. 

 The FLSA is one of the great labor protective statutes, but its regulatory structure has failed 

to keep pace with the rapidly evolving workplace. My co-panelists have detailed these changes. I 

won't repeat what they have said; I will only note that regulations that are gender-specific and make 

reference to promotion men, copy boys, and the like are in need of some serious updating. 

 I commend you, Mr. Chairman, and Representatives Biggert, Ballenger, Andrews, Graham, 

Petri and the other lawmakers who have introduced legislation aimed at updating this outdated 

legal regime in order to lessen the rigidity of the FLSA and recognize the realities of today's 

workplace. Areas where the FLSA is not accommodating to modern workers are not hard to 

identify. Let me address just two of them. The first is compensatory time. 

 The FLSA's overtime provisions prohibit compensatory and flex time arrangements outside 

a given work week for private sector, non-exempt employees. Public sector employees at the local, 

state and federal levels can contract to earn one and one-half hours of paid time off for each hour 

worked over 40 in a week and can use that time as they wish. It becomes a right that can be 

exercised within reason when they need to exercise it for reasons that do not have to be explained 

or proven. It is a way that many employees view as a form of forced savings, unlike cash overtime, 

which can be spent and is then not available to fill in the blanks in future workweeks when time off 

is desired.

Is this arrangement good for all employees at all times? No, of course it isn't. But should it 

be an option for private employees as it is for public employees? Absolutely, it should. 

 When Congress provided this benefit for state and local employees in 1985, it stated its 

view that public sector employees should have the freedom and flexibility provided by comp time 

arrangements. Private sector employees, too, should have that option. Now, some expressed the 
11

fear that employers will take advantage of such arrangements and coerce employees into 

detrimental agreements. 

Representative Biggert's bill, H.R. 1982, has at least five provisions that would help to 

ensure the rights of employees. It would prohibit employer coercion. It would mandate annual 

cashing out of comp time benefits. It would limit the total number of comp time hours accruable. 

It would allow employees to cancel comp time arrangements at any time in their sole discretion. 

And it would make it illegal for employers to intimidate employees or in any way to interfere with 

their right to take accrued time off. These protections ought to prevent and remedy any potential 

employer abuses. 

 Let me talk a little bit about the duties test under the Fair Labor Standards Act. I was 

Solicitor of Labor in 1975. The last time the dollar threshold for exempt employees was revised, 

we raised it up to $155 a week. If that threshold were $25,000 a year today or a little less than 

$500 a week, over 45 million workers would be non-exempt and provided all of the Act's overtime 

protections without question. If we rationally assumed that everyone earning over $75,000 a year 

were exempt from the overtime requirements of the Act, and that would be about 10 million 

workers, we could then concentrate on the 60 million workers earning between $25,001 and 

$74,999. Maybe then, too, we could simplify the duties tests. 

 Right now to be exempt, workers must be classified as professional, executive, or 

administrative employees. It sounds easy, but the tests are so convoluted as to be nearly impossible 

to apply by the average employer. Engineers and accountants, one would think, would be exempt 

professionals, but not always. If the engineer is not a licensed professional engineer and the 

accountant not a certified professional accountant, no amount of education will help them if they 

are deemed to be merely using skills as distinguished from exercising discretion and judgment. 

 For example, a federal district court found that instructors who train NASA space shuttle 

ground personnel were not exempt professionals because they relied on simulation scripts, material 

which would be incomprehensible to most, if not all of us, sitting in this room right now. Even 

computer professionals who have a separate exemption crafted, at least crafted when the Internet 

was still a Defense Department experiment, have changed so dramatically that those provisions no 

longer provide relief where they should. In my testimony, I talk further about the administrative 

exemption and the salary basis test, and I won't repeat those comments here. 

 My observations are neither new nor original to me. For over 20 years, the Department of 

Labor has publicly recognized the need to review its FLSA regulations. In 1981, the Department 

indefinitely stayed its last proposal to adjust the FLSA salary thresholds in response to public 

comment calling for a more comprehensive regulatory review. In 1985, the Department published 

an advance notice of proposed rulemaking. Ever since, in regular six-month intervals, the 

Department has identified FLSA reform as a regulatory priority in both Republican and Democratic 

administrations. Procrastination is no longer acceptable. 

 Thank you very much. 
12

WRITTEN STATEMENT OF WILLIAM J. KILBERG, SENIOR PARTNER, GIBSON, DUNN & 

CRUTCHER, LLP, WASHINGTON, D.C., TESTIFYING ON BEHALF OF THE UNITED 

STATES CHAMBER OF COMMERCE – SEE APPENDIX E 

Chairman Norwood. Thank you, Mr. Kilberg. 

Ms. Conti, you are now recognized for five minutes. 

STATEMENT OF JUDITH M. CONTI, CO-FOUNDER AND DIRECTOR, 

LEGAL SERVICES AND ADMINISTRATION, D.C. EMPLOYMENT 

JUSTICE CENTER, WASHINGTON, D.C. 

Thank you, Mr. Chairman and Members of the Subcommittee. My name is Judith Conti, 

and I appreciate the opportunity to speak to you today. I bring three perspectives to you. I am the 

co-founder of the D.C. Employment Justice Center, a nonprofit organization devoted to securing 

and enforcing workplace rights for low-wage workers. In addition to being a worker advocate, I 

am also an employer running a small organization where managing limited funds is a priority. 

Finally, in my previous job, I represented many middle and upper middle class workers in 

employment disputes. 

 I have had much experience with the FLSA. And one thing I have learned is that regardless 

of income level, all workers want to be paid a fair wage for a hard day's work. Thus, the concerns I 

raise today apply to all workers who are covered by the FLSA. I would like to take this 

opportunity to highlight a few of the most important points of my written testimony. 

We all agree that between the erosion of the 40-hour workweek and the rise of dual-income 

families, workers need more flexibility in the hours that they work. The question before us is how 

to best achieve that flexibility, taking into account both employers' legitimate considerations and 

the needs of working men and women. By and large working people do not want to earn less 

money in order to have more time off, and their reluctance is understandable. 

 Over the last 30 years, incomes are down, and the gap between the top fifth of families and 

everybody else continues to grow. H.R. 1982 will result in less money in the paychecks of working 

men and women, and that is not a tradeoff that they are even willing to consider in the absence of 

real flexibility that they can control, which brings me to my second point. 

 Workers want flexibility in their jobs not volatility and unpredictability. Allowing 

employers to substitute comp time frees them from the incentive to adhere to the 40-hour 

workweek and can only result in the increase of mandatory and unscheduled overtime. Workers 

need to know in advance what their hours of work will be in order to plan their lives and 

obligations, and in some cases to schedule other jobs. Thus, any legislation which increases the 

likelihood of unscheduled overtime, is not worker friendly, nor is it geared to providing greater 
13

worker flexibility. 

 In addition, under H.R. 1982, employers still retain substantial authority over when 

employees can use their comp time. Thus, when emergencies do come up, employees need 

immediate flexibility. It is quite possible that the employer will not grant a request on such short 

notice. In such a case, accrued comp time loses its value to the employee. Unlike cash overtime, 

the employee cannot use it at his or her own convenience. 

 My third point involves enforcement of the prohibitions against coercing employees to take 

comp time in lieu of overtime. Bills like H.R. 1982 assume a world in which employers and 

employees meet on equal terms. In the real world however, no bill, no matter how tightly drafted, 

can protect an individual worker from the pressure that is inherent in the workplace relationship.

An employer need not exercise much overt coercion in order to convince an employee to accede to 

terms and conditions of employment that are favorable to the employer. 

 How can workers remedy comp time violations? First of all, if a worker's request to take 

comp time is denied, and she thinks that denial is unreasonable, it will be virtually impossible to 

get a court to hear the matter in time to allow the worker to take the comp time as she wanted. And 

that is assuming that the worker can even find an attorney willing to take the case. 

 A significant amount of my time at the Employment Justice Center is spent trying to find 

pro bono or low-cost legal placements for our clients. Because of the economic reality of legal 

practices, it is my experience that if a wage case is not worth at least $10,000, it is next to 

impossible to place it on a contingency or low-cost basis. 

 By my calculations, under this legislation, then, a worker must have a minimum hourly 

wage of at least $31 and hit the max of 160 banked hours in order to make a comp time 

enforcement suit economically feasible. This translates into a yearly salary in excess of $60,000, 

which means no effective remedies for low-wage workers or a significant percentage of middle 

class workers either. 

 You may be thinking that if damages are that small, what's the harm. Well, for the EJC's 

clients, we often see wage cases of values between $500 and $1,000, which for our clients can 

mean the ability to feed one's children or pay the rent that month. But regardless of the amount of 

damages, Congress should not enact legislation that provides any sort of de facto safe haven for 

employers to coerce employees out of the wages that they have rightfully earned. 

 So how do we achieve real flexibility for today's working people? Contrary to the 

suggestions we've heard today, we don't need to amend the FLSA to do it. And I encourage you to 

read the legislative history of the FLSA that makes clear at the time that it was passed; it was done 

so contemplating a service economy as we have today. 

 Within the confines of the FLSA, employers are absolutely permitted to allow for flex time, 

compressed work weeks, adjusted hours within the week, telecommuting, split shifts, job sharing or 

the carryover of unused vacation and sick days from one fiscal year to the next. A 1995 Bureau of 

Labor Statistics' study demonstrated that only about one-fourth of all employers take advantage of 
14

the flexible work options which are entirely permissible under the FLSA. Moreover, of the 

employers who did allow such flexibility, the vast majority of workers who are allowed to take 

advantage of these schedules were executive and managerial employees not covered by the FLSA. 

 And if employers are so concerned with allowing employees to bank hours so that they can 

have more time off, why do only 13 percent allow employees to carry over unused vacation to the 

next year, and just over a third allow the carryover of sick days. The fact that employers are largely 

not using the flexible options already available to them strongly suggests that the motivation for 

this comp time legislation is less to help workers and more to reduce the wages that employers 

must pay out. 

 If we are truly committed to providing more flexibility for workers, we must build on 

flexibility that really works by expanding the Family and Medical Leave Act to cover more 

workers and provide more time off for more family needs. We also need to set higher standards for 

pay, not only increasing the minimum wage, but expanding and enforcing equal pay laws. And 

finally, we must take steps to stop the epidemic of employers misclassifying hourly workers as 

exempt salary workers or independent contractors. Misclassified workers are routinely forced to 

work large amounts of overtime without overtime pay. Thus, they lose both flexibility and income. 

To correct this problem, we must increase DOL enforcement resources and adjust for inflation the 

hopelessly outmoded salary levels that are used to determine exempt status. 

 Thank you for your careful consideration of these very important issues for working men 

and women of all income levels. 

WRITTEN STATEMENT OF JUDITH M. CONTI, CO-FOUNDER AND DIRECTOR, LEGAL 

SERVICES & ADMINISTRATION, D.C. EMPLOYMENT JUSTICE CENTER, 

WASHINGTON, D.C. – SEE APPENDIX F 

Chairman Norwood. Thank you very much, Ms. Conti. I will yield myself five minutes to ask a 

few questions. 

Ms. Conti, I am just curious, in your previous life when you were an attorney and you said 

you represented a lot of worker disputes, were those all labor union disputes? 

Ms. Conti. No, they were not, Mr. Norwood. A percentage of the practice involved labor and 

unions, but the firm that I worked for, in fact, wanted to build a significant employment practice 

aside from its labor union community and entrusted me with the responsibility to do that. So the 

workers that I represented in the FLSA context and various other contexts of employment law were 

mostly non-unionized workers including a large percentage of federal government workers and 

federal law enforcement officers who are prohibited from unionization. 

Chairman Norwood. But they would be unionized, wouldn't they? 
15

Ms. Conti. No. Federal law enforcement officers are prohibited from unionization by executive 

order.

Chairman Norwood. Okay. This is an interesting discussion that's going on here. Dr. Van Horn's 

research shows that 95 percent of working adults are concerned about spending more time with 

their immediate family. There is also a recent study from Radcliffe Public Policy Center that 

shows 64 percent of workers saying they would prefer to have more time rather than more money. 

Maybe even more noteworthy, is the finding that among households with an annual income under 

$25,000, workers are split with 49 percent choosing time and 50 percent choosing money. 

 Now you have testified that they are wrong, that basically workers don't want more time, 

they want to receive the money. And I want to know who is correct here. 

Ms. Conti. Mr. Norwood, actually, it's not quite as simple as that. What I have testified is that 

workers do not want to take a pay cut in order to have illusory flexibility. I think what we need to 

discuss first of all, though, is the reason for the increase in wanting more time at home, the increase 

in stress that people are showing in the workforce. It is because of the gradual and the continued 

erosion of the 40-hour workweek, something that the FLSA is designed to protect. So no matter 

what we do, our guiding principle should be to protect the 40-hour workweek for working men and 

women. 

Chairman Norwood. So they aren't wrong then? These studies are not wrong, that people would 

like to have, in a case like this, more time with their families than they would money? Those 

studies are correct? 

Ms. Conti. The studies are correct that people want to have more time for themselves, whether it is 

for their families or for their own lives. They want predictability in scheduling so that they can 

turn to their own lives. 

 However, there are significant populations of people that have jobs where regular overtime 

is part of their job; it is part of the regular compensation they receive and rely on to pay their bills.

And the point I am making, and I do not believe that it is inconsistent with those studies at all, is 

that those workers do not want to give up those extra wages that they regularly depend on and 

accept as part of their regular workweek. 

Chairman Norwood. Well, of course everyone wants to be paid more and work less. Me too. 

Everyone wants that. What I'm trying to get at is, are the studies right? When you ask a person out 

there, if you have a choice, would you rather have more time off to spend with your family than 

you would more money, then Dr. Van Horn is correct. That's basically what they're saying. 

 You are saying, as I understand it, you don't think employees should have to trade their pay 

for time off. I think that employees ought to be able to decide that. Ms. Biggert’s bill gives people 

options. I mean you don't have to do any of this. But surely somebody who is working out there 

would think this is a good idea, but they cannot even do it because we have not changed the law. It 

is my impression that about 11 percent of the workforce is unionized. That means 89 percent of 

our workforce is not unionized. Why don't we let them choose? You don't have to do it if you 
16

don't want to do it. If you don't want to do it, say no, not doing that, I want to do my hours or 

whatever or I want to be paid for overtime. Whatever. We want to give employees the choice. 

 I can appreciate your concern for those workers at the lowest end of the scale. I see where 

you are coming from there, but wouldn't you acknowledge to me that there are some employees out 

there that are perfectly capable of making this decision for themselves? 

Ms. Conti. Well, Mr. Chairman, as you no doubt know from my written testimony, there is a list of 

various protections that I believe are important if we are to have any sort of comp time legislation 

in order to make sure that we do truly preserve employee choice. 

 I would submit, however, that it is not quite as simple for workers that are on the lowest 

economic scale. For example, as a thirty-something lawyer in D.C., I have a number of friends and 

colleagues who are associates, junior associates at large law firms making well into the six figures. 

Chairman Norwood. You were the one who brought that up, that you were overly concerned or 

that you were extra concerned about people at the low end of the scale. I am just simply saying, 

why not give people a choice out there. They want it. 

Ms. Conti. Well, actually Mr. Chairman, I made clear that my testimony is representing all 

workers of all income levels. What I am saying is that it is not so simple as just income level. It is 

the amount of control over the flexibility and over the conditions of your work that you have. 

Chairman Norwood. Well, Ms. Biggert spent a lot of time talking to a lot of people about that 

before she introduced her bill. She worked on that too. And as Mr. Kilberg pointed out, there are 

great protections inside that bill because none of us want to walk on the rights of the workers. But 

what we are trying to do is do something for the workers that seem to be saying over and over 

again in the 21st century we need this. 

 My time has run out. I now yield to Mr. Owens. 

Mr. Owens. Thank you, Mr. Chairman. Perhaps I have not looked closely at the bill since Mrs. 

Biggert began to work on it. I recall, the last time I read it, the discretion for the scheduling of the 

time off is the employer's. The employer has the power to schedule the time off for the worker. 

The worker does not have that power. If there is any change in that, somebody should enlighten 

me. That's a very important factor. 

Dr. Bird and Mr. Kilberg, both of you stressed, or made some assumptions that I thoroughly 

agree with, that if you have the skills and education needed in this modern economy, there are 

demands for your services. You were talking about workers who were in demand because the new 

economy, the new e-technology, demands workers who have high value added. I'm using your 

language. I would agree with you if you were talking about professionals in the $60,000 and up 

category. Probably they would choose in some cases to take their chances on less cash and more 

flexibility. But if you get rid of the provisions in the FLSA, you are dealing with a large number of 

workers who don't even make minimum wage. And overwhelmingly, I don't know what the latest 

studies state, the studies that we had before showed that they preferred cash. They have to have the 
17

cash because they can't live without the cash. 

 Do you know what a person making minimum wage salary is? It's less than $11,000 a year. 

So am I correct that you are making assumptions that this should only apply to people who are 

professionals, who are in high demand in the new economy, information technology workers? 

Mr. Kilberg. No. No. No, not at all. 

Mr. Owens. Dr. Bird and Mr. Kilberg used the language, so I'm addressing this to them. They 

used the language of, you know, this is an economy which has people who are in demand, and that 

leads to certain assumptions you can make; am I correct? 

Mr. Kilberg. I don't see any reason to disallow lower-paid employees the same options that higherpaid employees would have. The assumption you have to make is that their employers will abuse 

lower-paid employees and the law will be violated, and the Department of Labor and the various 

state Departments of Labor will be unable to enforce the law. I don't think that's right. 

Mr. Owens. My apologies, Mr. Kilberg. Dr. Van Horn and Dr. Bird made those points. 

Mr. Kilberg. I'm sorry; I thought you were inviting me to comment. 

Mr. Owens. It was Dr. Van Horn and Dr. Bird who strongly made those points that professionals 

have choices, that value-added workers with high value had choices. You are not concerned with 

the lower income workers, the people making minimum wage? 

Dr. Van Horn. What I said is that there is a strong demand for highly skilled workers in today's 

economy, even though we've had a downturn in the economy. 

Mr. Owens. That leads to a new situation that requires a new FLSA. Those are the assumptions 

you were making, right? 

Dr. Van Horn. I didn't say that. I have not commented on the FLSA. My testimony doesn't speak 

to that. 

 I am reporting to you on research that is done reflecting the views of employers and 

workers. How that's achieved was not part of our research. So I'm not commenting on the 

applicability of the FLSA to their concerns. What I am saying is that they expressed a concern, and 

it was across all income levels, sir. The need for flexibility wasn't simply at the higher income 

levels. And we, in fact, looked at that kind of question. Of course, we have information on the 

demographics of the respondents, and there is a slightly higher concern about these issues of 

balancing work, family and education on the part of women, as you might expect, they being the 

primary caregivers in many families. But it is not that great a difference between men and women. 

It is actually fairly small. It's only about 10 percent. 
18

Mr. Owens. The surveys that you are referring to, were people clearly told that the employer will 

have the final word in scheduling their time off? 

Dr. Van Horn. No, we did not ask that question. 

Mr. Owens. You left that one off? 

Dr. Van Horn. No, that was not the focus of our research. 

Mr. Owens. But you don't think we need changes in FLSA? 

 Do you want to comment, please, Dr. Bird? 

Dr. Bird. Well, just two points I'd like to put in here. First of all, I think the discussion that we 

have heard here about whether people want the choice or don't want the choice reflects the 

increasing complexity, as the data shows, in the workforce. In fact, there are some people who 

would not choose compensatory time, and there are people who would choose it. Flexibility allows 

people to make choices that fulfill their needs the best. And we do have a more diverse workforce 

in terms of the needs that people have. Some people have needs for more cash. Other people have 

needs for more time. 

 Secondly, from my perspective, the trends in job growth are jobs requiring more education 

and more skills. 

Mr. Owens. Yes, we agreed on that. 

Dr. Bird. The reason I raised that, from my perspective, is because I am concerned about those 

who are least advantaged. And one of the ways to help the least advantaged among us the most, I 

think, is to give them more opportunities to acquire the skills, acquire the education and training, 

that they need to move up the ladder, rather than to just focus on protections that keep them trapped 

in a low wage dead end-type job. 

Mr. Owens. My time is up, but I think what you're not saying is they need the protection of 

overtime cash. The cash they get from overtime is the first protection. The other protections, I 

would agree, they need those, too. 

Dr. Bird. As I understand what's being described here, the individuals would have a choice of the 

cash or the time. Some people who would prefer the cash would get the cash. Those who prefer 

the time would get the time. And everybody would be better off than under a straightjacketed

policy.

Mr. Owens. People making less than minimum wage don't have a choice. 

Mrs. Biggert. [Presiding.] The gentleman's time has expired. 
19

 The gentleman from Georgia is recognized for five minutes. 

Mr. Isakson. I thank the gentlelady, and I apologize that I was in and out during the testimony. 

My first question, actually, is to the gentlelady who is our Chairperson to make sure I am on target 

about your legislation. As I understand from what I have heard, your legislation would provide for 

some flexibility under the old 1938 standards in an agreement that is between the employee and the 

employer, if the employer allowed it and if the employee wanted it. Is that correct? 

Mrs. Biggert. Yes, it would allow for more flexibility. This really is voluntary and the employee 

could make the determination whether they would like to have comp time or cash. 

Mr. Isakson. Thank you very much. 

Ms. Conti, I did hear part of your testimony. What is your objection to that? 

Ms. Conti. Mr. Congressman, the legislation as written does not have the proper protections to 

truly enforce the voluntary standard. In the workplace, the reality of the worker-employer 

relationship means that some things that might appear on the surface to be voluntary really aren't. 

With this legislation, the employee who opts for comp time instead of overtime ends up getting 

paid less money. It is not lost on them that the employer will pay less wages, and that that is 

something that is likely favorable to the employer. 

 It doesn't take much in the tone of an employer's voice to suggest what the answer would 

be. And the legislation, as it is drafted now, does not have the proper protections to truly ensure 

that it is voluntary or the appropriate remedies to enforce any type of coercion. 

Mr. Isakson. Without a long answer, give me an example of what a proper safeguard in your 

opinion would be. 

Ms. Conti. Well, Mr. Congressman, in my testimony on pages 11 and 12, there are actually 18 

points that I think are important for the proper kinds of protections, but, in particular, more 

enforcement by the Department of Labor to remedy wage and hour violations, greater penalties 

rather than just the hours lost and liquidated damages, including payments for comp time within 

regularly hour calculations of the week in terms of benefits, continuing to compute overtime. By 

raising these few issues, I don't mean to suggest that they are more important than the other 

protections that are listed here, but they are a few examples. 

Mr. Isakson. Quickly, Mr. Kilberg, would you comment on that? 

Mr. Kilberg. Yes. I have read Ms. Conti's testimony, and I believe that after she lists the 18 points 

she goes on to say, but even if those were adopted, it would not be acceptable. 

 There is an assumption here that all employers are scofflaws. If that were true, then the Fair 

Labor Standards Act is not protective, either. Why pay the minimum wage if you can get away 

with not paying the minimum wage? Why pay overtime if you can get away without paying? 
20

 I don't think that's really what goes on in the world. I think most employers do abide by the 

law. I think if you have a law that says the employer may not coerce an employee into entering 

into an agreement like this, that the overwhelming majority of employers will abide by it. And I 

think the protections that are set forth in H.R. 1982 are sufficient and will protect employees. 

Mr. Isakson. Well, my reason for focusing on that as I did here is because of my first job in 1960. 

I worked for someone and I remembered I still have the framed paycheck at home somewhere in 

the basement in a box. It was $1.10 an hour, which I presume, was 1960's minimum wage. 

In the last 22 years before I came to Congress, I was the employer of about a thousand 

people. The world has changed a lot since 1960. It's changed a whole lot since 1938. And I would 

just say I disagree but I understand there is always potential for coercion. In fact, organized labor, 

and a lot of the laws that we have today came about because business was not responsive either to 

child labor, or to individuals. There were problems, and that's why those laws and those 

movements came about. But we're in a totally different world. 

 I want to compliment the gentlelady for trying to find a way to give choices and opportunity 

to employees in concert with employers in a different world other than existed in 1938. It's also 

something to throw out any opportunity for flexibility that an employee wants, according to the 

testimony that's come from so many of them, because of what was suspect in the day and time of 

coercion without enforcement. I have a hard time subscribing to that. It would be like throwing 

out all (401) k’s because of Enron. That would be a pretty stupid thing to do. 

So it may be we need to do some perfecting, but I want to congratulate the gentlelady on 

doing something that I think is not only appropriate but in the best interest of employees. 

 My time has expired, so I will yield back. 

Mrs. Biggert. The gentleman yields back. The gentlewoman from Hawaii, Mrs. Mink, is 

recognized for five minutes. 

Mrs. Mink. Thank you very much. This is a repeat of several hearings that this Committee has 

had on this important issue. The point that you make, Dr. Van Horn, about the interest of the 

worker having flexibility I think is something that most of us do not disagree with. I think workers 

would like to have a lot more flexibility. My question to you is where, in the Fair Labor Standards 

Act, is flexibility prohibited? 

Dr. Van Horn. As I suggested before, I am not an expert on the Fair Labor Standards Act. I wasn't 

asked to comment on that, so I would yield that to the other panelists who are. I am not a lawyer. 

Mrs. Mink. The response is really to the point that I was seeking, because in looking at your chart 

here of the all the desirable characteristics that workers are interested in, flexible work hours and 

flexible work days, and so forth and so on, all are within the permitted parameters of the Fair Labor 

Standards Act. So your findings really do not support the notion that we need to reform the Fair 

Labor Standards Act or the workers' interests in having some of these things would not be met, 

because as I understand it, flexible work hours and flexible days and all those kinds of things are 
21

quite permitted. 

 What is not permitted is requiring a worker to work overtime without compensation at time 

and a half. That is not flexibility that is a question of compensation. And so I think that the points 

that Ms. Conti raises are very valid. 

 I have a question for Mr. Kilberg of the Chamber. Supposing you could wave a magic 

wand and Congress enacted all 18 points that Ms. Conti raised in her paper, would you support this 

legislation? 

Mr. Kilberg. I think I would support some of the points. I would have to go back through them; I 

don't have them in front of me at the moment. But as I recall, some of them would undercut the 

flexibility of what H.R.1982 is trying to do. 

Mrs. Mink. Which flexibility? I don't look at the legislation that is before us as an item of 

flexibility. It's an item to decline due compensation for work already performed by the worker. 

Mr. Kilberg. No, not at all. An employee, as you say, can now earn overtime and take that money, 

put it in his pocket, and then a month later take time out and compensate himself with the money 

from his own pocket. But some employees prefer to have a kind of a forced savings account.

That's really what it is. You have the same option in the public sector. We provide that to state and 

local employees, to federal employees. Why shouldn't private sector employees have exactly the 

same freedom to contract to earn overtime in terms of future time off rather than cash, if they 

choose? 

Mrs. Mink. I like that idea of a forced savings. Is this actual money from which the employer then 

calculates the workers' benefits as though it were money in the savings bank and that money was 

paid actually for the employment? 

Mr. Kilberg. Not any more than the employer would use overtime compensation for purposes of 

benefit calculation. In most instances, overtime compensation is excluded from pension benefit 

calculations. 

Mrs. Mink. Do you have any statistics or reports to indicate that overtime compensation is not 

credited by employers for the purposes of calculating benefits, social security entitlement, charges 

that they have to pay for Medicare and so forth? It is my assumption that all of the overtime 

compensation is wages. And what is the big deficit of this legislation is not the question of 

flexibility; it is the question of this so-called work that has been performed not being credited with 

any sort of a cash payment. There's no money in the bank. You call it a deferred savings account, 

but who is paying interest on it? And you never know whether you're going to get it or not. 

 I mean, I am not hostile to the idea of allowing workers to make this choice, but the choice 

is an empty basket. And I really defy you to answer all of these questions that have been put very 

well here by Ms. Conti to answer. Is there a time and one-half compensation guarantee if you work 

in this bill under these voluntary circumstances? 
22

Mr. Kilberg. Yes. Yes. In H.R.1982, yes, absolutely. And the employee can cash it out. 

Mrs. Mink. So any employee can cash it out at any time? That's not the way I read the bill. It is 

an employer decision as to whether it can be cashed out and when. 

Mr. Kilberg. Well, that's not as I understand H.R. 1982. 

Mrs. Mink. That's how I understand the bill. And I am very worried. 

Mrs. Biggert. The gentlewoman's time has expired. 

Mrs. Mink. And I am very worried about the absence of money in terms of your deferred savings 

account.

Mrs. Biggert. I recognize myself for five minutes. 

Mr. Kilberg, Ms. Conti has said that employers already have the flexibility under the law.

If that's the case, why aren't more employers not already offering this? 

Mr. Kilberg. Because it would be illegal. 

Mrs. Biggert. So there really isn't the flexibility? 

Mr. Kilberg. No. The Fair Labor Standards Act is a very rigid, wooden statute, and the 

regulations and interpretations under it are equally wooden and rigid. 

Mrs. Biggert. Comp time is already available in the public sector. And the statement has been 

made that public sector employers are unique and face different situations than private sector 

employees. In your experience working with employers, and as the former Solicitor of Labor, do 

you think that the public sector and private sector employers are so different as to make comp time 

unworkable in the private sector? 

Mr. Kilberg. No, I really don't. I don't think that any of the differences that have been identified 

are relevant quite frankly. 

Mrs. Biggert. It seems as if there is a question of whether comp time really is payment for 

services. Are employees losing cash? Is comp time really making them lose money? Do you see 

that there's a difference? Which is correct? 

Mr. Kilberg. I don't believe there is. Again, it would be a voluntary approach under your 

legislation. It is simply the opportunity to buy future time off after having earned overtime now. I 

think that the so-called losses are really quite minimal. 

Mrs. Biggert. Even in the private sector today, someone could, within a seven-day work period, 

ask their employer if they could take time off to go, let's say, to a child's play or take them to the 

dentist or to the doctor. And as long as they had put in the extra hours within that seven-day 
23

period, that would be okay under the Fair Labor Standards Act? 

Mr. Kilberg. Yes. And you would have the same economic consequences that Representative 

Mink identified. 

Mrs. Biggert. The problem arises for example when something comes up on a Friday and an 

employee needs to take their child to the doctor. They don't have any comp time, so that would not 

carry over to the next week. It would be illegal for that employer then, to grant that time off to an 

employee, correct? 

Mr. Kilberg. That's correct. That's because the statute insists that everything be measured within a 

single 40-hour workweek. 

Mrs. Biggert. And yet, under the current law, that’s okay if it's just within the seven-day period.

Mr. Kilberg. That's right. 

Mrs. Biggert. Could you explain how comp time would work? The employer comes to the 

employee and says I'd like you to take comp time? 

Mr. Kilberg. I think it works quite the opposite way. The employee would come to the employer 

and suggest that he or she have the opportunity to transfer otherwise compensable overtime into a 

comp time bank to be used at a later point in time. 

Mrs. Biggert. And the employer would not have to provide comp time, right? 

Mr. Kilberg. Right. It really would have to be a voluntary agreement between employer and 

employee. 

Mrs. Biggert. Would an employee have to take comp time in lieu of cash for overtime work? 

Mr. Kilberg. No. It would be an agreement. 

Mrs. Biggert. And if they felt that they were being coerced into taking comp time? 

Mr. Kilberg. The bill makes it very clear that this would be a violation. Obviously, that means 

that if a complaint were filed with the Wage and Hour Division of the Department of Labor, they 

could enforce the Act against the employer. 

Mrs. Biggert. And how would they do that? What would be the procedure? 

Mr. Kilberg. Well, generally, there would be an investigation by the Wage and Hour Division, and 

they would seek either the employer's agreement to injunct the relief, or they would turn it over to 

the Solicitor's Office and the employer would be prosecuted. 
24

Mrs. Biggert. Has that been done in the public sector? Do you know of any cases that have been 

brought for coercion? 

Mr. Kilberg. I don't know the number of cases that have been brought in the public sector for that 

specific kind of violation. 

Mrs. Biggert. Do you know of any cases in the public sector in which someone was denied the 

comp time when they asked for it? 

Mr. Kilberg. I don't know what the history of compliance in the public sector has been. 

Mrs. Biggert. Do you have any idea about how many public sector employees take comp time 

versus cash? 

Mr. Kilberg. My understanding is quite a few. It is deemed to be a very popular option indeed. 

The reason that the Fair Labor Standards Act was amended in 1985 was because the public sector 

had not been covered under the FLSA. And when the Supreme Court handed down the Garcia 

decision, there was concern on the behalf of public sector employees as well as employers that one 

of the things that would be lost by coverage under the federal law was voluntary compensatory 

time arrangements. 

Mrs. Biggert. Wouldn’t you agree that H.R. 1982 has more safeguards for private sector 

employees than what is provided under the current law for public sector employees? 

Mr. Kilberg. I agree. I think it has greater safeguards. 

Mrs. Biggert. Thank you. I see my time has expired. 

 I would like to thank the witnesses again for taking the time to testify before this 

Subcommittee. If there is no further business, the Subcommittee stands adjourned. 

Whereupon, at 3:25 p.m., the Subcommittee was adjourned 
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Table of Indexes 

Chairman Norwood, 1, 4, 5, 7, 10, 12, 14, 15, 16 

Mr. Bird, 5, 16, 18 

Mr. Isakson, 19, 20 

Mr. Kilberg, 10, 17, 19, 21, 22, 23, 24 

Mr. Owens, 16, 17, 18 

Mr. Van Horn, 17, 18, 20 

Mrs. Biggert, 18, 19, 20, 22, 23, 24 

Mrs. Mink, 20, 21, 22 

Ms. Conti, 12, 14, 15, 16, 19 
WORKPLACE FLEXIBILITY:

OPTIONS FOR PUBLIC SECTOR WORKERS

HEARING

BEFORE THE 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

OF THE 

COMMITTEE ON EDUCATION AND 

THE WORKFORCE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

HEARING HELD IN WASHINGTON, DC, MAY 15, 2002 

Serial No. 107-48 

Printed for the use of the Committee on Education 

and the Workforce

82-590 pdf 

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

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

 FAX: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
112

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN A. BOEHNER, Ohio, Chairman 

THOMAS E. PETRI, Wisconsin GEORGE MILLER, California 

MARGE ROUKEMA, New Jersey DALE E. KILDEE, Michigan 

CASS BALLENGER, North Carolina MAJOR R. OWENS, New York 

PETER HOEKSTRA, Michigan DONALD M. PAYNE, New Jersey 

HOWARD P. “BUCK” McKEON, California PATSY MINK, Hawaii 

MICHAEL N. CASTLE, Delaware ROBERT E. ANDREWS, New Jersey 

SAM JOHNSON, Texas TIM ROEMER, Indiana 

JAMES C. GREENWOOD, Pennsylvania ROBERT C. “BOBBY” SCOTT, Virginia 

LINDSEY O. GRAHAM, South Carolina LYNN C. WOOLSEY, California 

MARK E. SOUDER, Indiana LYNN N. RIVERS, Michigan 

CHARLIE W. NORWOOD, JR., Georgia RUBEN HINOJOSA, Texas 

BOB SCHAFFER, Colorado CAROLYN McCARTHY, New York 

FRED UPTON, Michigan JOHN F. TIERNEY, Massachusetts 

VAN HILLEARY, Tennessee RON KIND, Wisconsin 

VERNON J. EHLERS, Michigan LORETTA SANCHEZ, California 

THOMAS G. TANCREDO, Colorado HAROLD E. FORD, JR., Tennessee 

JIM DeMINT, South Carolina DENNIS KUCINICH, Ohio 

JOHNNY ISAKSON, Georgia DAVID WU, Oregon 

BOB GOODLATTE, Virginia RUSH D. HOLT, New Jersey 

JUDY BIGGERT, Illinois HILDA L. SOLIS, California 

TODD RUSSELL PLATTS, Pennsylvania SUSAN DAVIS, California 

PATRICK J. TIBERI, Ohio BETTY McCOLLUM, Minnesota 

 RIC KELLER, Florida 

 TOM OSBORNE, Nebraska 

 JOHN ABNEY CULBERSON, Texas 

JOE WILSON, South Carolina 

 Paula Nowakowski, Chief of Staff 

 John Lawrence, Minority Staff Director

 SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

 CHARLIE NORWOOD, Georgia, Chairman

JUDY BIGGERT, Illinois, Vice Chairman MAJOR R. OWENS, New York

CASS BALLENGER, North Carolina DENNIS KUCINICH, Ohio 

LINDSEY O. GRAHAM, South Carolina PATSY T. MINK, Hawaii 

JOHNNY ISAKSON, Georgia LYNN C. WOOLSEY, California 

BOB GOODLATTE, Virginia LORETTA SANCHEZ, California 

RIC KELLER, Florida HILDA L. SOLIS, California 

JOHN ABNEY CULBERSON, Texas 
113

Table of Contents 

OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, SUBCOMMITTEE ON 

WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE

.................................................................................................................................................... 116

OPENING STATEMENT OF VICE CHAIR JUDY BIGGERT, SUBCOMMITTEE ON 

WORKFORCE PROTECTIONS, COMMITTEE ON EUDCATION AND THE WORKFORCE

.................................................................................................................................................... 117

OPENING STATEMENT OF RANKING MEMBER MAJOR R. OWENS, SUBCOMMITTEE 

ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE 

WORKFORCE ........................................................................................................................... 118

STATEMENT OF DONALD J. WINSTEAD, ACTING ASSOCIATE DIRECTOR FOR 

WORKFORCE COMPENSATION AND PERFORMANCE, U. S. OFFICE OF PERSONNEL 

MANAGEMENT, WASHINGTON, D.C.................................................................................. 120

STATEMENT OF ANDY BRANTLEY, ASSOCIATE VICE PRESIDENT FOR HUMAN 

RESOURCES, UNIVERSITY OF GEORGIA, ATHENS, GA, TESTIFYING ON BEHALF OF 

THE COLLEGE AND UNIVERSITY PROFESSIONAL ASSOCIATION FOR HUMAN 

RESOURCES (CUPA-HR) ........................................................................................................ 122

STATEMENT OF THOMAS M. ANDERSON, JD, SPHR, HUMAN RESOURCES 

DIRECTOR, FORT BEND COUNTY, ROSENBERG, TX, TESTIFYING ON BEHALF OF 

THE SOCIETY FOR HUMAN RESOURCE MANAGEMENT (SHRM) ............................... 124

STATEMENT OF DENNIS SLOCUMB, EXECUTIVE VICE PRESIDENT AND 

LEGISLATIVE DIRECTOR, THE INTERNATIONAL UNION OF POLICE 

ASSOCIATIONS, AFL-CIO, (I.U.P.A.), ALEXANDRIA, VA................................................ 127

APPENDIX A - WRITTEN OPENING STATEMENT OF CHAIRMAN CHARLIE 

NORWOOD, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE................................................................................. 143

APPENDIX B - WRITTEN OPENING STATEMENT OF VICE CHAIR JUDY BIGGERT, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION 

AND THE WORKFORCE......................................................................................................... 147

APPENDIX C - WRITTEN STATEMENT OF DONALD J. WINSTEAD, ACTING 

ASSOCIATE DIRECTOR FOR WORKFORCE COMPENSATION AND PERFORMANCE, 

U.S. OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C............................. 151
114

APPENDIX D - WRITTEN STATEMENT OF ANDY BRANTLEY, ASSOCIATE VICE 

PRESIDENT FOR HUMAN RESOURCES, UNIVERSITY OF GEORGIA, ATHENS, GA, 

TESTIFYING ON BEHALF OF THE COLLEGE AND UNIVERSITY PROFESSIONAL 

ASSOCIATION FOR HUMAN RESOURCES (CUPA-HR).................................................... 157

APPENDIX E - WRITTEN STATEMENT OF THOMAS M. ANDERSON, JD, SPHR, 

HUMAN RESOURCES DIRECTOR, FORT BEND COUNTY, ROSENBERG, TX, 

TESTIFYING ON BEHALF OF THE SOCIETY FOR HUMAN RESOURCE 

MANAGEMENT (SHRM)......................................................................................................... 163

APPENDIX F - WRITTEN STATEMENT OF DENNIS SLOCUMB, EXECUTIVE VICE 

PRESIDENT AND LEGISLATIVE DIRECTOR, THE INTERNATIONAL UNION OF 

POLICE ASSOCIATIONS, AFL-CIO, (I.U.P.A.), ALEXANDRIA, VA................................. 173

Table of Indexes.......................................................................................................................... 183 
115

WORKPLACE FLEXIBILITY: 

OPTIONS FOR PUBLIC SECTOR WORKERS 

____________________

Wednesday, May 15, 2002 

Subcommittee on Workforce Protections 

Committee on Education and the Workforce 

U.S. House of Representatives 

Washington, D.C. 

 The Subcommittee met, pursuant to notice, at 11:33 a.m., in Room 2175, Rayburn House 

Office Building, Hon. Charlie Norwood, Chairman of the Subcommittee, presiding. 

 Present: Representatives Norwood, Biggert, Isakson, Owens, and Kucinich. 

 Staff present: Molly McLaughlin Salmi, Professional Staff Member; Christine Roth, 

Professional Staff Member; Travis McCoy, Legislative Assistant; Ed Gilroy, Director of 

Workforce Policy; Greg Maurer, Coalitions Director for Workforce Policy; Kevin Smith, Senior 

Communications Counselor; Heather Valentine, Press Secretary; Patrick Lyden, Professional Staff 

Member; and, Deborah L. Samantar, Committee Clerk/Intern Coordinator. 

Peter Rutledge, Minority Senior Legislative Associate/Labor; Maria Cupril, Minority Legislative 

Associate/Labor; and, Dan Rawlins, Minority Staff Assistant/Labor.

Chairman Norwood. A quorum being present, the Subcommittee on Workforce Protections will 

come to order. The Subcommittee is meeting today to hear testimony on the issue of workplace 

flexibility for employees in the public sector. 
116

 Under Rule 12(b) of the Committee rules, any oral opening statements at hearings are 

limited to the Chairman and the Ranking Minority Member of the Subcommittee. If other 

Members have statements, they will be included in the record of the hearing. With that, I ask 

unanimous consent for the hearing record to remain open for 14 days to allow statements and other 

extraneous material referenced during the hearing to be submitted for the official hearing record. 

 As I said, the Subcommittee has convened today to examine flexibility in the workplace, 

specifically to look at options that are available to employees of federal, state, and local 

governments. I'm going to make a few brief remarks, and then yield the balance of my time to my 

colleague and Vice Chair of the Subcommittee, Judy Biggert. 

 I would like first of all to welcome today's witnesses. Some of you have traveled quite a 

distance to share your views and expertise with the Subcommittee and we truly appreciate your 

willingness to participate in this process. I would like to take just a moment to recognize one of 

our panelists, Andy Brantley, who hails from the fine state of Georgia. Andy, we're delighted 

you're here. 

OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE 

 Today's hearing is the second in a series of hearings on workplace flexibility. The 

Subcommittee has already held one in March of this year. The testimony presented at that hearing 

focused on three important issues. 

 First, there have been dramatic demographic changes that have occurred in the workplace 

over the past several decades. Not only has the composition of the workforce changed to include a 

wider range of workers with more diverse needs, but also the nature and the structure of the jobs. 

 Second, what matters most to workers today is the ability to balance work and family. 

There have been several recent studies showing that a significant percentage of working adults are 

very concerned about being able to spend more time with their families. In fact, many workers 

would prefer time to money. Workers want options that will allow them to make choices about 

spending more time with their families or pursuing interests outside of work. 

 Third, we heard from experts about the legal problems that private sector employees face 

when they attempt to respond to employee demands for greater flexibility. Clearly, the Fair Labor 

Standards Act, which is the primary federal law governing hours of work, fails to provide private 

sector workers with what they need and expect to have in terms of workplace flexibility. This may 

or may not be as significant an issue for those in the public sector, particularly those in the Federal 

Government, because as we will hear from our witnesses today, current law already allows for 

increased flexibility in the public sector. 
117

 I would now like to yield the balance of my time to my colleague, Judy Biggert, for any 

remarks that she might wish to make. 

WRITTEN OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND 

THE WORKFORCE – SEE APPENDIX A 

OPENING STATEMENT OF VICE CHAIR JUDY BIGGERT, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EUDCATION AND THE WORKFORCE

Thank you, Mr. Chairman. Thanks so much for yielding me the time, and many thanks for 

revisiting an issue that means a lot to the working men and working women of America. 

 At the first hearing on workplace flexibility, we heard about the changes in job structure, 

workforce diversity, and education that have significant implications for workplace policies. 

 As the Chairman noted, workers today have different needs and want more flexibility and 

choices in their work schedule. Without question, one of the most important changes has been the 

increase in the number of women, especially mothers, who work outside the home. With all of 

these changes has come an increased pressure that many working parents feel in trying to balance 

the needs and demands of their family and their work. 

 We'll hear today about the public sector's lengthy track record with respect to comp time 

and other flexible work schedules. Since 1978, the Federal Government has had a variety of 

options for the federal workforce. In addition, we now have nearly two decades of experience with 

state and local government use of compensatory time. 

 I think that our witnesses will attest to the popularity of programs such as comp time that 

allow for some degree of workplace flexibility. Of course, the concept behind comp time is simple. 

If workers have to work overtime, they should be allowed to choose how they want to be 

compensated - with more money or more time off. For some, time can be more valuable than 

money and most workers just want to be able to make the choices for themselves. 

 So thank you, Mr. Chairman, and I look forward to working with you and others to ensure 

that private sector workers are permitted the same degree of flexibility under the law as their public 

sector counterparts. 

WRITTEN OPENING STATEMENT OF VICE CHAIR JUDY BIGGERT, SUBCOMMITTEE 

ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE 

WORKFORCE – SEE APPENDIX B 
118

Chairman Norwood. Thank you, Mrs. Biggert. 

 It is now my pleasure to yield to the distinguished Ranking Minority Member, Mr. Owens, 

for whatever opening statement he may wish to make. Mr. Owens. 

OPENING STATEMENT OF RANKING MEMBER MAJOR R. OWENS, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE 

Thank you, Mr. Chairman. I, too, want to extend my welcome to the witnesses. I look 

forward to your testimony. 

 Proponents of comp time legislation have long contended that, because comp time works 

well in the public sector, it should be extended to the private sector workers. It is important to note, 

however, that the Congress did not extend comp time for the benefit of public employees, but to 

reduce overtime costs for state and local governments. 

 Reducing overtime costs in the private sector results in the scheduling of more overtime and 

the hiring of fewer workers. As a consequence, the proponents of extending comp time are arguing 

that we do so not on the basis of saving cost to private sector employers, but to benefit private 

sector employees. 

 While comp time generally works well in the public sector, the areas of litigation that have 

arisen around public sector comp time raise serious concerns about extending comp time to the 

private sector. For example, if comp time is to be equivalent to overtime, then earned comp time 

should belong to employees to be used at their discretion. Much of the litigation around public 

sector comp time, however, has been concerned with the extent to which employers may require 

employees to use comp time, which the courts have said they generally may do, or prevent 

employees from using comp time, which the courts have said they generally may not do. 

 In the private sector, which is much less regulated, and where an employer stands to 

directly profit depending on how comp time is used, protecting the ability of workers to control 

their comp time is potentially a much more difficult proposition. As importantly, there are obvious 

structural differences between the public sector and the private sector indicating that it may be 

substantially harder to fairly operate a comp time system in the private sector. 

 First, the public sector is much more highly organized. Unions represent more than 40 

percent of public sector workers, while less than 15 percent of private sector workers are 

represented by unions. Even where unions do not represent public employees, Civil Service laws 

that provide just cause standards of discharge and discipline often protect them. 
119

 By contrast, more than 85 percent of private sector employees are at-will employees who 

may be discharged or disciplined for almost any reason, or no reason at all. In addition, unlike a 

private sector employer, public managers are unlikely to directly personally profit by evading their 

employees' overtime pay requirements and public employers are far less likely to go into 

bankruptcy.

 I do not mean to imply that this is not an important hearing. We are responsible for the 

comp time laws in relation to state and local workers, and it is important that we understand how 

those laws are working. I'm also not certain that there are not lessons to be drawn from the public 

sector experience. However, I strongly disagree with the simplistic notion that because comp time 

works in the public sector, it will automatically work in the private sector. The differences between 

the public and private sector are real and they are significant. 

 Far from benefiting workers, extending comp time to the private sector is likely to 

undermine overtime pay, increase overtime violations, and result in workers working longer hours 

for less money and with less time off. 

 I yield back the balance of my time. 

Chairman Norwood. Thank you very much, Mr. Owens. 

 I'd like to introduce our panel of witnesses now. 

 We will begin this morning with Mr. Donald Winstead, the Acting Associate Director for 

Compensation Administration at the U. S. Office of Personnel Management. Thank you for being 

here. Secondly, Mr. Andy Brantley, Associate Vice President for Human Resources, the 

University of Georgia. I was going to say, Andy, that at least the two of us know where Bogart, 

Georgia is, but I see Mr. Isakson has arrived, so now I know that there are three of us here who 

know where Bogart, Georgia is. Next, we're happy to have with us Mr. Thomas Anderson, Human 

Resources Director for Fort Bend County, Texas. We appreciate your long trip to spend time with 

us, Mr. Anderson. And finally we have Mr. Dennis Slocumb, Executive Vice President, 

International Union of Police Associations, AFL-CIO. Mr. Slocumb, thank you, sir, for spending 

your time with us this morning. 

 Before the witnesses begin, I would like to remind the Members of the Subcommittee that 

questioning the witnesses will be permitted after the entire panel has testified. In addition, 

Committee Rule 2 imposes a five-minute limit on all questions. However, it doesn't impose how 

many rounds we can have, so we'll decide on that as we go. 

 In front of you is a timer with lights. It shows you the green, caution, and red. We would 

ask that if you can, try to stay within the time limit. I'm not too heavy on the gavel with witnesses, 

only with Members of Congress, but if you can stay with that time frame, we would appreciate it. 

 Mr. Winstead, we would like to start with you, please. 
120

STATEMENT OF DONALD J. WINSTEAD, ACTING ASSOCIATE 

DIRECTOR FOR WORKFORCE COMPENSATION AND PERFORMANCE, 

U. S. OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C. 

Mr. Chairman and Members of the Subcommittee, good morning. My name is Don 

Winstead. I am the Acting Associate Director for Workforce Compensation and Performance for 

the Office of Personnel Management. Among my duties is management of the Federal 

Government's pay and leave administration programs, including flexible and compressed work 

schedules.

 I appreciate the opportunity to appear before you today to discuss two important work 

scheduling options available in the federal workplace -- flexible work schedules and compressed 

work schedules. Under Title V, United States Code, a “flexible work schedule” includes designated 

core hours and days when an employee must be present for work, and designated hours during 

which an employee may elect to work in order to complete the employee's basic non-overtime 

work requirement. A “compressed work schedule” is a schedule under which an employee's basic 

work requirement for each two-week pay period is scheduled by the agency for fewer than 10 

workdays. Compressed work schedules are always fixed schedules. These two options are often 

jointly referred to as alternative work schedules, or AWS. 

 I will first provide a short legislative history of these options, and then discuss the extent to 

which they are actually being used in the federal workplace. I will conclude by discussing a few of 

the nuts and bolts about how these programs are implemented. 

 The genesis of the AWS program goes back to 1974, when the General Accounting Office 

recommended that the hours of work and premium pay provisions of Title V and the Fair Labor 

Standards Act be amended to permit alternatives to the basic eight-hour workday and 40-hour 

workweek.

 In 1978, Congress enacted the Flexible and Compressed Work Schedules Act. The threeyear experiment established by this Act eventually included more than 1,500 organizations with 

over 325,000 employees. It covered the entire spectrum of federal agencies and activities. 

Generally, the experiments were well received by employees and produced positive results. 

 In 1982, Congress extended AWS experiments for three more years. This legislation 

provided that agencies would have 90 days to review and terminate existing schedules that had an 

“adverse agency impact.” This was defined as a reduction in productivity, a drop in services to the 

public, or increased agency costs. In addition, the law provided that employees in a bargaining unit 

would be covered by AWS programs, only to the extent expressly provided for under a collective 

bargaining agreement. These AWS programs were made permanent in 1985. 

Today, AWS programs are widely used and are an important fixture in the federal 

workplace. A 1998 survey conducted by OPM found that 92 percent of federal agencies reported 

offering flexible work schedules, and 79 percent reported offering compressed work schedules. 

Seventeen percent of federal employees reported using flexible work schedules, and another 17 
121

percent reported using compressed work schedules. 

 Under current law and regulation, the option to establish an AWS program is at the 

discretion of the agency. This discretion is subject to the obligation to negotiate with the exclusive 

representatives of bargaining unit employees. The authority to suspend the premium pay and 

scheduling provisions of Title V, United States Code, and the overtime provisions of the FLSA, 

applies only to organizational units participating in an AWS program. All other provisions of Title 

V and the FLSA remain in effect for non-participating organizations. 

 For employees under flexible work schedule programs, overtime hours are all hours of work 

in excess of eight hours in a day or 40 hours in a week, which are officially ordered in advance by 

management. The requirement that overtime hours be officially ordered in advance also applies to 

non-exempt employees under the FLSA. Agency AWS plans may also provide for “compensatory 

time off.” This is time off on an hour-for-hour basis in lieu of overtime pay. 

 For employees under flexible work schedules, the overtime hours of work may be regularly 

scheduled or irregular or occasional. Under a flexible work schedule, any agency may grant 

compensatory time off in lieu of overtime pay at the request of the employee, including prevailing 

rate employees and FLSA non-exempt employees. Compensatory time off in lieu of overtime pay 

may not be required for any prevailing rate employee, any FLSA non-exempt employee, or any 

FLSA exempt employee whose rate of basic pay is equal to or less than the maximum rate for 

Grade 10 of the General Schedule. 

 That, in a nutshell, is how alternative work schedules are administered in the Federal 

Government. The AWS program generally is considered to be a successful program, and is a key 

component of the Federal Government's strategic rewards environment. 

 This concludes my remarks, and I would be happy to answer any questions. 

WRITTEN STATEMENT OF DONALD J. WINSTEAD, ACTING ASSOCIATE DIRECTOR 

FOR WORKFORCE COMPENSATION AND PERFORMANCE, U.S. OFFICE OF 

PERSONNEL MANAGEMENT, WASHINGTON, D.C. – SEE APPENDIX C 

Chairman Norwood. Thank you very much, Mr. Winstead. 

Mr. Brantley, you are recognized now for five minutes. 
122

STATEMENT OF ANDY BRANTLEY, ASSOCIATE VICE PRESIDENT FOR 

HUMAN RESOURCES, UNIVERSITY OF GEORGIA, ATHENS, GA, 

TESTIFYING ON BEHALF OF THE COLLEGE AND UNIVERSITY 

PROFESSIONAL ASSOCIATION FOR HUMAN RESOURCES (CUPA-HR) 

Good morning, Mr. Chairman and Members of the Subcommittee. Thanks for allowing me 

the opportunity to be here. 

 Before my arrival at the University of Georgia in January of 2001, I was the Assistant Vice 

President for Business Administration and Director of Human Resources at Davidson College, a 

private liberal arts college just outside of Charlotte, North Carolina. I am here today on behalf of 

the College and University Professional Association for Human Resources (CUPA-HR). 

 CUPA-HR is the professional association representing nearly 6,500 human resource 

professionals at public and private universities and colleges across the country. The Association 

works and is committed to the development of high-quality professional human resources programs 

on our college and university campuses. I am currently the Immediate Past President of the 

Association. 

 Representing both public and private colleges and universities, CUPA-HR is in a unique 

position to discuss the use of compensatory time in the public sector and its possible application for 

use in the private sector. We applaud the Chairman and the Committee for holding this hearing and 

also applaud the leadership of Vice Chair Judy Biggert, Chairman Charlie Norwood, and other 

Members of the Committee. 

 As an entity, higher education institutions are extremely complex organizations. They may 

be comprised of teaching hospitals, research facilities, agricultural operations, and more, all of 

which complement extensive, diverse academic program offerings. As a result, colleges and 

universities are not only the largest employers in many communities, but frequently the largest 

employers in states, and also employ a wide diversity of workforce skills among faculty and staff. 

To meet the diverse needs of our colleges and universities, we strive to offer competitive 

benefits to our employees, and we also sponsor a number of work-life programs. Being very 

comprehensive organizations, colleges and universities realize that we need to be flexible and that 

we need to provide workplaces that are flexible for our employees. 

 The University of Georgia was chartered in 1785 and has an enrollment of over 32,000 

students. As a comprehensive land grant and sea-grant institution, we offer numerous 

baccalaureate, masters, doctoral, and professional degrees. More than 17,000 faculty, staff, and 

students are run through our payroll on any given month. Our workforce, as I mentioned, is very 

diverse and our employees have diverse needs. We are most definitely the largest employer in 

Athens, Georgia and one of the largest employers in the state of Georgia. 

 As UGA's chief Human Resources Officer, I am pleased that we offer the option of comp 

time for our employees. As a public employer, the University of Georgia has the opportunity to 
123

provide compensatory time for any of our employees that choose to work overtime during a given 

week. According to university staff, compensatory time is very, very valued on our campus. 

 While employees have used comp time in the past to deal with such issues as family crises, 

more often than not, our non-exempt employees at the university use comp time to meet everyday 

challenges presented in balancing work and family issues. One employee on our campus who 

works in the College of Veterinary Medicine provided a recent example of how she uses comp time 

to meet her needs. The employee uses comp time to run little errands and do things that help her 

meet the needs of her young child. Although a visit to the doctor's office can be brief, there are 

also times when this employee would prefer to preserve her leave time and utilize the comp time 

for those one-to-two hours where she's away from the office. 

 In 1996, the city of Atlanta hosted the Olympics. Several Olympic events were held in 

Athens, Georgia. Many of our employees, unfortunately, had to spend several days where they 

were not allowed to work. Through the work of our staff counsel and executives across the 

campus, we utilized the ability to accumulate comp time so that our employees could utilize that 

time during the Olympics when the campus was closed, a very, very valuable benefit to our 

employees. 

 While these demonstrate our flexibility at the University of Georgia, when I was at 

Davidson College, it was a different story. Examples include our admissions office staff, which 

frequently works significant numbers of hours during December and January with no hope of 

compensatory time during the slow times in late spring. We gladly paid those individuals 

overtime. However, comp time was an issue that they valued more. 

During calendar year 2000, an extremely hard-working employee at Davidson College was 

diagnosed with terminal cancer. Had he been allowed to accumulate comp time in his very busy 

job, he would have been allowed to remain in a full pay status for a much longer period of time 

than he was able to do as he fought his illness. These are just a sampling of situations that occur on 

private college campuses every week. 

 As Associate VP for HR at UGA, offering employees the choice of comp time is something 

that we value very much. It is not without its issues. Keeping track of comp time is not always an 

easy task, but it's one that we feel is essential in providing this flexibility to our employees. 

Mr. Chairman, thank you again for the opportunity. I look forward to answering any 

questions from the Committee. 

WRITTEN STATEMENT OF ANDY BRANTLEY, ASSOCIATE VICE PRESIDENT FOR 

HUMAN RESOURCES, UNIVERSITY OF GEORGIA, ATHENS, GA, TESTIFYING ON 

BEHALF OF THE COLLEGE AND UNIVERSITY PROFESSIONAL ASSOCIATION FOR 

HUMAN RESOURCES (CUPA-HR) – SEE APPENDIX D 
124

Chairman Norwood. Thank you, Mr. Brantley, very much. 

Mr. Anderson, you are now recognized for five minutes. 

STATEMENT OF THOMAS M. ANDERSON, JD, SPHR, HUMAN 

RESOURCES DIRECTOR, FORT BEND COUNTY, ROSENBERG, TX, 

TESTIFYING ON BEHALF OF THE SOCIETY FOR HUMAN RESOURCE 

MANAGEMENT (SHRM) 

Thank you. Good morning, Chairman Norwood and distinguished Members of the 

Subcommittee. I appreciate the opportunity to speak with the Committee today. 

 My name is Tom Anderson. I'm the Human Resources Director for Fort Bend County in 

the State of Texas. I'm testifying this morning on behalf of the Society for Human Resource 

Management, an organization of over 165,000 HR professionals. 

 I have served the human resource profession for over 25 years, in both the public and 

private sector. I'm also a certified mediator, attorney, and I'm proud to share with the 

Subcommittee that Governor Perry has recently appointed me as a Commissioner to the Texas 

Commission on Human Rights. Given that I have served both the public and the private sectors of 

our nation's workforce, I believe that I will provide the Subcommittee with a unique perspective on 

today's topic. 

 In 1978, Congress passed the Federal Employees Flexible and Compressed Work Schedules 

Act, acknowledging the fact that the flexible work schedules would provide an essential benefit for 

federal employees by allowing a choice between compensatory time off and overtime pay. This 

program was made permanent in 1985 and extended to state and local agencies and their 

employees. 

 It is troubling that the Federal Government has not extended this same benefit to hardworking private sector employees who contribute equally to this nation's workforce and economy. 

In light of the Federal Government's inaction, two states, Michigan and Washington, have 

recognized the importance of granting compensatory time off not only to public sector employees 

but also to those working in private industry. The state of Rhode Island currently has a proposal 

pending before its state legislature. 

 SHRM commends Representative Judy Biggert for reintroducing the Working Families 

Flexibility Act as H.R. 1982. This legislation amends the Fair Labor Standards Act to allow 

employers to offer voluntary compensatory time off programs to their non-exempt employees. As 

the composition of our workforce continues to change and as the desires or needs of the American 

family continue to change, now more than ever working men and women require flexibility to 
125

manage work/family responsibilities. H.R. 1982 is the vehicle that will provide it. 

 There is no reasonable explanation why the Federal Government has, for nearly 20 years, 

denied private sector employees the right to voluntarily accrue compensatory time off. Mr. 

Chairman, I'd like to specifically comment on the structure of the Fort Bend County compensatory 

time off program and share with you some of the benefits in administering the program, such as 

what we have in our workplace. 

 It is the policy of Fort Bend County that non-exempt employees are eligible to accrue 

compensatory time off in lieu of overtime pay. There are, however, some job functions for which 

the policy makes exemptions and allows those employees working within those specific job 

classifications to either choose overtime pay or compensatory time off. There are still other nonexempt employees that receive only overtime pay at a rate of time-and-a-half their regular rate of 

pay for overtime hours worked. 

 Most non-exempt employees of Fort Bend County are eligible to accrue up to 240 hours of 

comp time. Should an employee accrue more than 240 hours, he or she will then be compensated 

at one-and-a-half times their regular rate of pay. As the Fair Labor Standards Act specifies, law 

enforcement officials may accrue up to 480 hours of comp time. This policy has been in place for 

seven years, and continues to be widely accepted and considered a pro-active benefit among most 

of the employees of Fort Bend County. Accrual of comp time has been very positive for county 

employees because it allows employees and managers to work out time off in a regular and 

reasonable manner, just like any other scheduled time off vacation and certain scheduled sick leave, 

sick time. 

 Although there is no immediate up front cost to the employer, there is a possibility of 

unfunded liability. Unfunded liability could occur at a point when the employee terminates 

employment with the employer. Under the FLSA, any unused comp time is then cashed out at the 

wage level in which the employee was being compensated upon termination, or the average of the 

previous three years' wages, whichever is higher. This is problematic in a situation in which an 

employee accrued comp time at a lower hourly rate but may be compensated at one-and-a-half 

times their ending rate of pay, which may be higher. However, comp time cash out provision can 

be handled like overtime payments. Thus, an employer should be able to account for compensatory 

time off accruals in his budgets, based on what is legally permissible. 

 In general, my observation is that comp time provides for a governmental entity and what it 

could do for private sector employers is that it is a consistent and effective means by which an 

employer can provide the flexibility in the workplace necessary to assist their employees with 

work/life balance. Comp time is a benefit to employees for employees. For example, an employee 

who has 24 hours of banked comp time and would like to utilize eight hours of that time has the 

flexibility and the option to use that comp time as a paid time off to attend a child's school activity, 

close on a home, tend to sick relatives, or other personal activities. Those are examples of things 

that have happened even in Fort Bend County. 

 On the other hand, there may be occasions where the employee opts for overtime pay. The 

point is, at the present time, public employees have that choice and private sector employees do not 
126

have the same or similar options. While it is true that employers ultimately decide when an 

employee may take time off from work, these situations exist. They exist already, whether it 

involves any missed work from vacation request or rescheduling of work hours. 

 There will be, for example, incidents where an employee requests to use comp time while 

one employee is off work sick, another is on vacation. In a small department, this is likely to be 

considered a circumstance where the request for taking comp time would unduly disrupt the 

workplace and consequently, denial of the time off would be appropriate. However, from my 

experience, most employees understand that scenario and would not contest the supervisor's denial 

of the comp time request. Most situations of comp time requests made by employees have been 

satisfactorily resolved within a reasonable period between employees and their supervisors, using 

seniority or other neutral criteria. 

 Now more than ever, employees are in need of increased flexibility. Comp time goes a long 

way in making this necessity a reality for many public sector employees. For private sector 

employees, it serves to complement benefits offered under other federal laws, such as FLMA. 

 Finally, I cannot speak for all employees or employers, but I have found that many private 

sector employees are perplexed by the fact that they do not have the same options to choose 

between compensatory time off and overtime pay. The fact that many employers are supportive of 

the comp time provision only adds to this misunderstanding. 

 The Federal Government should permit private sector employees to make responsible 

decisions in electing between paid time off or cash payments for overtime work. Employees 

should be allowed to make work/life choices that make sense to themselves as employees and that 

make sense to their families. It is a question of freedom to choose at no cost to the employer -- an 

employee's choice, Mr. Chairman. 

Mr. Chairman, this concludes my formal remarks to the Subcommittee. Thank you for the 

opportunity to appear before you today, and I'll be pleased to answer any questions that you or the 

other Members of the Subcommittee may have for me. Thank you. 

WRITTEN STATEMENT OF THOMAS M. ANDERSON, JD, SPHR, HUMAN RESOURCES 

DIRECTOR, FORT BEND COUNTY, ROSENBERG, TX, TESTIFYING ON BEHALF OF THE 

SOCIETY FOR HUMAN RESOURCE MANAGEMENT (SHRM) – SEE APPENDIX E 

Chairman Norwood. Mr. Slocumb, you are now recognized, sir. 
127

STATEMENT OF DENNIS SLOCUMB, EXECUTIVE VICE PRESIDENT 

AND LEGISLATIVE DIRECTOR, THE INTERNATIONAL UNION OF 

POLICE ASSOCIATIONS, AFL-CIO, (I.U.P.A.), ALEXANDRIA, VA 

Thank you, Mr. Chairman and Subcommittee Members. I'm Dennis Slocumb, the 

Executive Vice President of the International Union of Police Associations. I'm glad to be here 

today to talk about the use of compensatory time in the law enforcement arena. It's an extremely 

important issue, both to the law enforcement officers and to the agencies that employ them. 

 I'm here today after 32 years of service in the Los Angeles County Sheriff's Department. 

During that time, I worked virtually every job, from a patrol officer in south central Los Angeles to 

a criminal investigator and kidnap specialist. I retired from the Sheriff's Department, after 32 years 

of service, as a Detective Lieutenant. 

 Our organization, I.U.P.A., is the fastest-growing and most active law enforcement 

association in the United States. Our affiliates represent law enforcement in many of the largest 

departments in the country -- Los Angeles, Houston, Dallas, Boston, Milwaukee; and here in 

Washington, D.C., we represent the Uniform Secret Service officers as well as the police at 

National and Dulles Airports. 

 Law enforcement is a stress-filled job. One of the many problems facing working police 

officers today is the need for some control over their personal schedules. The pressure of more 

police working longer hours on rotating shifts in undermanned departments is intense. The job is 

underpaid and it's rough on family life. Many of our officers are working two jobs to get by. They 

work hard, often alone, and whether they're responding to two men in body armor spraying a 

neighborhood in North Hollywood with machine guns or running into a tower full of fire or jet fuel 

and Americans, they are our very last line of defense. They die, sometimes young, in heroic 

efforts, but frequently, quietly and alone, a few years into a long-anticipated retirement. 

 The University of Iowa conducted a study in 1998 published in the Journal of Occupational 

and Environmental Medicine which found that public safety officers have more than twice the risk 

for heart disease, hypertension, stroke, and other cardiovascular ailments. 

 Our department members want and need and appreciate the comp time provisions of the 

FLSA. It allows them time for family, relief of stress, a PTA meeting, or a ball game with their 

kids. It's important to their survival. As you support law enforcement professionals, it could not be 

more important that the provisions of the FLSA allowing compensatory time be maintained, 

improved, and rigorously enforced. 

 One of the most important programs I.U.P.A. provides is the monitoring and enforcement 

of the provisions of the Fair Labor Standards Act. In the documents that I provided to the 

Committee, we explain our auditing procedures and enforcement system. Our general counsel, 

Mike Leibig, appeared and argued each of the three public sector cases heard by the Supreme Court 

since 1985. We've provided counsel in over 28 federal cases to ensure that where problems are 
128

found, enforcement action follows. 

 But in contrast with all of that auditing and court cases, more than 90 percent of the 

employing agencies with whom we have members are in compliance with the FLSA comp time 

provisions, which makes one thing quite clear. Our members need compensatory time, and the 

agencies that employ them benefit. Where problems have arisen, the Department of Labor and the 

courts have been open to enforcement. 

 During the 1985 Fair Labor Standards Act hearings on public sector amendments, the final 

version of comp time was supported by the National Association of Counties, National Public 

Employer Relations Association, U.S. Conference of Mayors, National League of Cities, National 

Conference of State Legislatures, our organization, NAPO, the firefighters, and the AFL-CIO. It 

was popular then and it's valuable and popular today. 

 All of this is not to say that there are no problems in the use of compensatory time in the 

public sector, but these problems have been limited, in large part to three issues. They're detailed 

in my written testimony, but they include employer forced time off; employer refusal to allow 

access to the use of accrued compensatory time; and ambiguity about the appropriate remedy when 

an employer has been found to have violated compensatory time provisions. Any effort to expand 

the availability of compensatory time to the private sector would need to correct the problems that 

have arisen in the public sector and some others specific to the private sector, which are in my 

written testimony. 

 However, the use of compensatory time in the private sector seems still to be substantially a 

different consideration. Public employees have contractual, Constitutional, and Civil Service 

protections not generally afforded private employees. We can challenge abuses within the context 

of those protections, whereas private employees who are employed at will cannot. 

 In 1985, then Governor Ashcroft recognized that state and local governments are 

qualitatively different in structure and function from private business and that public employees 

serve under exceptional circumstances. He defined the most significant characteristic of that as the 

protection that public employees receive because they work for the government. 

 Thank you very much, sir. 

WRITTEN STATEMENT OF DENNIS SLOCUMB, EXECUTIVE VICE PRESIDENT AND 

LEGISLATIVE DIRECTOR, THE INTERNATIONAL UNION OF POLICE ASSOCIATIONS, 

AFL-CIO, (I.U.P.A.), ALEXANDRIA, VA – SEE APPENDIX F 

Chairman Norwood. Thank you, Mr. Slocumb. I appreciate your comments. It crossed my mind, 

as you gave your testimony, that I suppose if NAFTA continues, everybody will be a public 

employee before we know it, and we'll solve this problem that way. 
129

 I'd like to start my questions with my friend from the University of Georgia. Mr. Brantley, 

why did the University of Georgia come to the realization that it was in everyone's best interest to 

offer comp time, to have a comp time policy? What caused that? 

Mr. Brantley. The University has had a compensatory time policy for a number of years. When 

the policy was first implemented, it was to provide a balance, as I discussed earlier, and a way for 

the University to give employees the option of receiving overtime or utilizing that time to preserve 

leave.

 One of the things you may be aware of is, with the University of Georgia system, 

accumulated sick leave also counts towards service credit. So giving employees the option of 

utilizing comp time for minor errands or things like that also preserves the sick leave balance, 

which affects the employees' retirement. 

Chairman Norwood. So in your case, and I think most cases, the employee has a choice here? 

Mr. Brantley. That is correct. 

Chairman Norwood. Do the University officials say you must take time off or you may/may not 

receive time-and-a-half pay? Explain to me the process that the employee has to go through to 

actually make this election? Do they do it weekly? Do they do it monthly? How does that work? 

Mr. Brantley. We do have a process in place whereby the employee makes it known to the 

supervisor that he or she would prefer to receive comp time instead of overtime. That allows the 

employee to accumulate a maximum of 60 hours of compensatory time. 

Chairman Norwood. Do they make that selection once a year? How does that work? 

Mr. Brantley. It's made until the person revokes it, so it's in effect until that employee indicates 

otherwise to the supervisor. 

Chairman Norwood. Can you revoke it one week and go back to comp time a month later? 

Mr. Brantley. I guess theoretically you could, but I do not have experience with employees 

making those frequent choices. 

Chairman Norwood. So employees decide for themselves whether they want time-and-a-half pay 

or they need more time off; a sick mother, whatever? 

Mr. Brantley. That is correct. 

Chairman Norwood. How many employees at the University of Georgia take advantage of comp 

time? What percent? 

Mr. Brantley. The comp time policy is distributed among the departments. As I mentioned before, 

there are over 17,000 employees, and over 10,000 of these are benefit-eligible, so the actual 
130

administration of the compensatory time policy is handled at the department level. I'm not sure of 

the exact number of employees that choose that. 

Chairman Norwood. You don't know exactly how many? Well, just out of curiosity, what would 

you guess? 

Mr. Brantley. I would guess 30 to 40 percent. 

Chairman Norwood. And employees at the University of Georgia are very comfortable, and don't 

have any doubts that this is their decision to choose? 

Mr. Brantley. Most definitely. 

Chairman Norwood. And they're happy that they have a choice? 

Mr. Brantley. That is my opinion. 

Chairman Norwood. I think the needs of state employees, as Mr. Slocumb mentioned, and private 

sector employees are not different. Perhaps this choice would be just as needed by a workforce in 

the nursing profession, for example, that's under a great deal of difficulty and stress, too. 

 Andy, do you think this policy that the University of Georgia has helps you retain the most 

highly talented, qualified people we can possibly get at the University of Georgia? 

Mr. Brantley. In my opinion, it does. One of the things that is important for me as the chief 

human resources officer at the University of Georgia is in years where the state government in 

Georgia is struggling budgetarily, the provision of benefits like compensatory time, like flexible 

schedules, or working with employees to look at different options for their work/life needs is a way 

of recruiting and retaining qualified, highly skilled employees. 

Chairman Norwood. What do you think employees do when they don't have this option, but 

absolutely must take some time off? 

Mr. Brantley. They either utilize their sick leave and whittle away at the time that they've 

accumulated for serious illness, or they have to use their vacation leave to accomplish the things 

they need to do. 

Chairman Norwood. So without a good flex-time/comp time program, people, in my opinion are 

put in a bad situation where sometimes they have to fudge a little bit because something has come 

up that is so critical they must take off, but can't afford to lose their jobs. 

Mr. Brantley. I agree. 

Chairman Norwood. Major Owens, it is your turn. 
131

Mr. Owens. Are there any limits placed on when Fort Bend County employees may use their comp 

time? 

Mr. Anderson. Yes, sir. It's like any other leave provision. It does need to be coordinated with the 

individual department's supervisors. 

Mr. Owens. Is that negotiated or coordinated? 

Mr. Anderson. Well, they're non-union. They're not represented employees in Fort Bend County, 

so those decisions are handled pretty much like any other leave period that may be asked for such 

as vacation, or scheduled sick leave as a result of an operation. 

Mr. Owens. Is there a cut-off point at which accumulated leave must be utilized? 

Mr. Anderson. Yes, the Fair Labor Standards Act requirement is 240 hours and 480 hours for law 

enforcement employees. There are some departments that I mentioned in my testimony that only 

get paid for overtime, and there are one or two other departments that do have a choice. 

Mr. Owens. Mr. Brantley, at the University of Georgia, are there requirements that workers must 

use accumulated overtime? 

Mr. Brantley. Our policy indicates that a person may accumulate no more than 60 hours of 

compensatory time. If that time is not utilized by the end of the subsequent quarter in which that 

time is accumulated, they must be paid overtime. So as you see, we're much more conservative 

then the current law allows. 

Mr. Owens. Does the employee have some choice in negotiating? 

Mr. Brantley. Yes. I mean, obviously, business needs have to be considered. Someone in the 

registrar's office probably would not be allowed to use comp time the day before graduation. 

Mr. Owens. Mr. Winstead, you stated that comp time is only provided at the choice of the 

employee. How is employee choice protected? Is it union protected? What allows the employee 

to have that choice? 

Mr. Winstead. In the Federal Government, compensatory time is the choice of the employee for 

those who are below a certain grade level or those who are covered by the overtime pay provisions 

of the Fair Labor Standards Act. Those employees do have an opportunity to choose whether they 

will receive overtime or compensatory time off. 

 For certain higher-graded employees, or employees who are not covered by the Fair Labor 

Standards Act, the agency does have the authority to pay compensatory time off in lieu of overtime 

pay at the agency's discretion. 

Mr. Owens. While employees are supposed to be protected from being required to take comp time 

instead of overtime pay, I’ve heard complaints from federal workers that their supervisors will only 
132

assign overtime to workers who agree to take comp time instead of pay. Such practices would 

undermine choice. 

 Is this lawful, and if so, how common is this? If it isn’t lawful, what is done to make 

certain that such practices don't occur? 

Mr. Winstead. As I mentioned, for certain higher-graded employees and for employees not 

covered by the Fair Labor Standards Act, the agency does have the authority to compensate the 

employee through compensatory time off instead of overtime pay. 

 We have not heard complaints from federal employees at the Office of Personnel 

Management about agencies' practices regarding the use of compensatory time off under those 

circumstances for higher-graded employees. The lower-graded employees do have the choice as to 

whether they use compensatory time off or overtime pay. 

Mr. Owens. I have one last question. Is it true that the employees above GS-10 who earn 

additional pay for overtime work are not necessarily compensated at the same 1.5 of their regular 

pay? 

Mr. Winstead. That's correct. Under the federal overtime pay law that applies to higher-graded 

employees who are not covered by the Fair Labor Standards Act, the overtime pay is limited to 1.5 

times the rate for a GS-10 Step 1, and for employees above the top rate for a GS-10 and at the 

higher grades, in many cases, they perform overtime work and receive less than 1.5 times their 

regular rate of pay for that work. 

Mr. Owens. Who sets the rate? 

Mr. Winstead. The Congress set the rate in the statute that governs overtime pay for federal 

employees. 

Mr. Owens. Thank you. 

Chairman Norwood. Thank you, Mr. Owens. 

Mrs. Biggert, you are now recognized. 

Mrs. Biggert. Thank you, Mr. Chairman. 

Mr. Winstead, in your testimony you noted that 17 percent of federal employees reported 

using a compressed work schedule and 17 percent reported using a flexible work schedule. Has 

OPM conducted any employee satisfaction surveys on the alternative work schedules? 

Mr. Winstead. In that same survey that was conducted in 1998, which reported the percentages 

that you referred to here, we did ask employees about their satisfaction with those programs, and by 

and large, employees said that they were very satisfied with those flexible and compressed work 
133

schedules programs. 

Mrs. Biggert. You also mentioned that under current law and regulation, the option to establish the 

alternative work schedule is at the discretion of the employer, or the agency head. Do you know 

how many agencies have made a decision not to offer comp time or flexible schedule? 

Mr. Winstead. In terms of the actual number of agencies, I don't know that. The same study that 

we did back in 1998 indicated that 92 percent of federal agencies have used or are using flexible 

work schedules and 79 percent are using compressed work schedules. 

Mrs. Biggert. Can an agency decide to offer certain divisions those opportunities, and not other 

divisions? 

Mr. Winstead. Yes, it can be approved for certain organizational units of an agency and not others. 

Mrs. Biggert. Going back to something that Mr. Owens said about the hour-for-hour instead of an 

hour-and-a-half for each hour of overtime worked, do employees take advantage of the option, 

even though it's hour-for-hour rather than the hour-and-a-half? 

Mr. Winstead. Yes, they do. In fact, the compensatory time provisions that apply to federal 

employees pre-date the Flexible and Compressed Work Schedules Act of 1978. The current 

provisions go all the way back to 1946. So those provisions have been in effect in the federal 

workforce for many, many years, and federal employees have used them extensively. I don't 

happen to have with me any statistics regarding the use of compensatory time off, but I do know 

that it is a widely used program. 

Mrs. Biggert. Thank you. 

Mr. Slocumb, I assume that there are collective bargaining groups within the police 

I.U.P.A.? 

Mr. Slocumb. Yes, ma'am. 

Mrs. Biggert. Is the flexible time schedule or any alternative within the bargaining agreement, or is 

this just because it's provided by statute? 

Mr. Slocumb. Well, the Fair Labor Standards Act provides it. There are compressed schedules 

and those types of things that are subject to collective bargaining in those venues that have 

collective bargaining. 

Mrs. Biggert. So someone in that unit would not have it unless it was collectively bargained for 

even though it's in the statute? 

Mr. Slocumb. No, that's not correct. Everyone would have the protections of the Fair Labor 

Standards Act, whether they have collective bargaining or not. 
134

Mrs. Biggert. Okay. Do you think that it has improved the morale of the police officers? 

Mr. Slocumb. Absolutely. 

Mrs. Biggert. Okay. You said in your testimony that you were concerned that comp time in the 

private sector could be used to avoid the overtime premiums. Could you explain that? 

Mr. Slocumb. Yes. The issue of comp time, even in the public sector, was never an issue of 

money or hours; it was an issue of an option for compensation. There still are probably, even in the 

department I came from, people who drive around the provisions of the Fair Labor Standards Act 

by having what they call drawer time. It’s occurs in those places where people work a substantial 

amount of overtime and the budget doesn't allow for them to be paid for it. So if they work late 

tonight they come in late tomorrow, and nothing is written down. 

 It's an effort agreed upon probably by both parties. Likely it’s not because it's the price of 

working at some of the more sought-after units, that people won't put in for overtime, but the 

payoff is that management won't watch hours that closely. 

Mrs. Biggert. My time is up. Thank you, Mr. Chairman. 

Chairman Norwood. Thank you, Mrs. Biggert. 

 That sounds to me like comp time that's not official. 

Mr. Slocumb. Well, that's correct. 

Chairman Norwood. I mean that's what they're doing. 

Mr. Slocumb. In a way, except there's no option. The option isn't you get time-and-a-half on the 

books or paid. The option is you work it and you just come in late tomorrow. 

Chairman Norwood. Do any of you think there are many people in America today working over 

40 hours in a week that are not receiving time-and-a-half? 

Mr. Winstead, is that a major problem in the workplace today? 

Mr. Winstead. We have heard some complaints from federal employees at higher-grade levels 

who receive less than time-and-a-half overtime pay. 

Chairman Norwood. They don't qualify, do they? 

Mr. Winstead. They don't quality for time-and-a-half overtime under the Fair Labor Standards 

Act, that's correct. 
135

Chairman Norwood. But what about those who qualify under the Fair Labor Standards Act? Do 

you think that is a major problem in America today? 

Mr. Winstead. In the federal workforce, no, it would not be. Employees who are covered by the 

Fair Labor Standards Act certainly are entitled to time-and-a-half overtime pay. 

Chairman Norwood. What do people do if they are forced or asked or made to work 48 hours a 

week and the employer won't pay them time-and-a-half for those eight hours? I wonder what 

people do about that today? 

Mr. Winstead. In the federal workforce, they can file a claim. 

Chairman Norwood. Well what do they do about that in the private sector? 

Mr. Winstead. I'm not in a position to address what happens in the private sector. 

Chairman Norwood. Has anybody got a thought about that? Mr. Brantley, you were in the private 

workforce.

Mr. Brantley. I was at Davidson College for six-and-a-half years as the director of HR.

Employees there were very meticulous about maintaining time and ensuring that all hours worked 

were reported. However, my personal feeling is that if we had not accurately reported hours for an 

employee, that person would have contacted the Department of Labor. 

Chairman Norwood. How about it, Mr. Anderson? What do you think? You worked in the 

private sector too, didn't you? 

Mr. Anderson. Yes, I did, but I worked for employers that had organized employees that were 

unionized, and union officials very meticulously made sure that those things did not occur. 

 We did have some exempt employees that were also permitted to have overtime, but that 

was a company decision. I'm not aware of any employer that permits employees to work over 40 

hours and not get compensated at time-and-a-half. 

Chairman Norwood. Mr. Slocumb? 

Mr. Slocumb. We currently have a lawsuit pending in federal court in South Carolina, and our 

allegation concerns state troopers there are forced to work overtime without compensation. 

Chairman Norwood. But that's not the private sector, though. That would be state employees. 

Mr. Slocumb. Correct. 

Chairman Norwood. I was in the private sector, too, and I made payroll for 25 years. It's my 

observation there are not many Americans out there today that aren't aware that if they work over 

40 hours and aren't compensated with time-and-a-half, that they have to just accept it. They can go 
136

to the Labor Department. 

 My point in all of this is, if we allow people in the private sector to choose comp time, they 

would still be aware of the ways to resolve a comp time problem. I am not overly concerned that 

Americans wouldn't know what to do if they felt they were being cheated in some way, and most 

employers I know wouldn't need the aggravation. It is easier to pay the time-and-a-half than it is to 

mess with the Labor Department. At least, that's been my observation. 

Mr. Anderson, what caused Fort Bend to come up with the comp time program? How did 

you make that decision? 

Mr. Anderson. I've only been with Fort Bend County for a couple of years, and this was instituted 

before I got there. I don't know the entire process, other than the fact that the Fair Labor Standards 

Act allowed the public employers to do it. But they also came up with some variations in a couple 

of departments, which I mentioned in my presentation, that were applicable to emergency workers. 

That would be road and bridge, drainage, and EMS. There are some different provisions for them. 

 We also permit, with the department's concurrence, some exempt employees at one hour for 

one hour to accumulate comp time. It's more than a de minimus amount of time. It's got to be 

something substantial. But that's up to individual departments, and that is choice. 

Chairman Norwood. Which costs the most, gentleman? I'm talking about your speculations 

regarding the private sector. Would it cost more to manage this system than it does to actually pay 

time-and-a-half? Is it somewhat burdensome for the employer to even want to do this, and/or to 

employ another person to keep up with who's working what hours and so forth? 

Mr. Brantley, what do you think about that? 

Mr. Brantley. There's no doubt at the University of Georgia that maintaining comp time from a 

payroll standpoint and also from a departmental standpoint is something that takes time and effort. 

Whether or not it's a cost that's greater than overtime or less so, I really don't know that I could 

respond to that. But it's something that does take time, and does take effort. 

Chairman Norwood. I'll conclude and turn to Mr. Owens. 

However, my point is that it isn't easy for an employer to decide that they want to offer a 

comp time/flex time system. They have to devote resources to it. My own personal experience is 

that the reason you do that is because you have happier, more satisfied employees who would love 

to have the ability to choose. “If I'm going to work overtime, I want time-and-a-half because I have 

a sick child,” or, “I need some time off, because I have a sick mother.” I trust the American people 

to make those decisions. 

 Mr. Owens, you're now recognized, sir. 
137

Mr. Owens. Mr. Chairman, I'm going to forego a second round, because I have a very important 

meeting to go to. 

Chairman Norwood. I understand. We are delighted that you could spend some time with us. 

Thank you very much. 

Mrs. Biggert. 

Mrs. Biggert. Thank you, Mr. Chairman. 

Mr. Anderson, in your testimony, you noted special demands on women in the workplace. 

Based on your observations, how has comp time enabled women to better meet those demands? 

Mr. Anderson. Well, certainly, the demographics of the American workforce have changed from 

the time I was a young Marine Corps officer till I went into the private sector, and now the public 

sector. For example, more and more women are getting into manufacturing. In my previous job in 

the private sector, the changes in the workforce composition were dramatic in the period of time 

that I was in the manufacturing arena. 

 Women do have special needs. There are some who are single parents, who have 

responsibility for children. That's an issue. As the workforce ages, in some cases both males and 

females have older parents, and there are issues involved with taking care of the elderly in their 

family. Sometimes in that regard, whether it's something that they want or not, women end up 

taking the responsibility for care, perhaps more often than the males. 

 But it is important to be able to accommodate those work/life balances, and to take care of 

those needs. Certainly these responsibilities have fallen significantly on the female workforce, and 

continue to be the case in the public sector also. 

Mrs. Biggert. In your experience, what kinds of things are considered unduly disruptive in the 

workplace that would prevent employers from granting comp time? 

Mr. Anderson. We have 78 departments in Fort Bend County, and some are very large like the 

sheriff’s that has 400 or 500 employees, and some are very small with one or two employees. So 

the smaller departments, where you might have somebody out sick or out for some other reason, 

would basically shut down. You can't shut down a particular department just because there aren’t 

enough employees to cover it. 

 Then there are some special skills that are needed, and if the department doesn't have any of 

those people there, then that department would in fact shut down, and couldn't provide service to 

the citizens. 

Mrs. Biggert. Thank you. 
138

If you had the opportunity to change the public sector what would be the biggest problem in 

adding increased flexibility? What would you do? Maybe all of you could briefly respond? 

Mr. Winstead? 

Mr. Winstead. I'm not really in a position to speak for the administration on that kind of issue. We 

do look at the programs periodically to see how they are working, and this month we are 

conducting a government-wide survey of federal employees that will explore a wide variety of 

issues and gauge their views on many issues, not just this one. We look at those kinds of results 

and then make decisions about what kinds of changes might be needed, but at the moment, I 

couldn't speak to that particular question. 

Mrs. Biggert. Well, we'll look forward to your report. 

Mr. Brantley. In my opinion, the comp time issues that are currently available for public sector 

employees are already pretty generous. The 240-hour provision is quite generous. 

 I think the issue would be clarifying the types of opportunities for our employees in terms 

of utilizing comp time. Sometimes that issue between employer/employee is not clear, and 

providing that protection for employees and that clarity, if you will, for employees to understand 

the types of circumstances that comp time can be used for, I think will be beneficial. 

Mrs. Biggert. Thank you. 

Mr. Anderson? 

Mr. Anderson. I think that the reasonable period of time is troubling, to some extent. Obviously, 

employees and supervisors will sometimes differ as to what is a reasonable time to allow the comp 

time to be taken. 

 As I said in my testimony, I think most employees understand that. Small departments and 

large departments don't have the same issues. I guess maybe in the departments that are kind of in 

between the big ones and a small ones, it would be also troubling, as far as the employees and the 

supervisors determining what would be unduly disruptive. So those are the two areas I think that 

may need some attention. 

Mrs. Biggert. Mr. Slocumb? 

Mr. Slocumb. There are probably three things. 

 One is the employer forcing the employee to take compensatory or accrued time off when 

it's not convenient for the employee. 

Chairman Norwood. Mr. Slocumb? 
139

Mr. Slocumb. Yes, sir. 

Chairman Norwood. May I interrupt you on that point right there? 

Mrs. Biggert, does your bill allow for the employer to force the employee to take 

compensatory or accrued time off when it’s not convenient for the employee? 

Mrs. Biggert. No, no, it does not allow that. 

Chairman Norwood. Does it speak to that? 

Mrs. Biggert. Yes, it does. 

Chairman Norwood. So if they did that, it would be illegal? 

Mrs. Biggert. Yes. 

Mr. Slocumb. Currently, it is not illegal, sir. 

Chairman Norwood. In Mrs. Biggert’s bill, where we're trying to allow comp time and flex time, 

if an employer did that, it would be no larger or smaller a crime than not paying time-and-a-half, 

for which the employee can go to the Labor Department and “raise cain.” 

Mr. Slocumb. We applaud that provision. 

Chairman Norwood. Could you support Mrs. Biggert's bill? 

Mr. Slocumb. I haven't read the bill in its entirety and been able to study it, but I would certainly 

support that provision in it. 

Chairman Norwood. Well, we would really love to hear from you about supporting the bill, 

because, I sense strongly that you represent people that value this greatly, and all we're trying to do 

is to get it to the other 90 percent of the workforce. 

Mr. Slocumb. I understand. 

Chairman Norwood. Excuse me for interrupting you, but that was important. 

Mr. Slocumb. That's quite all right. 

 As I was saying, regarding the issue of unduly disruptive, we have a Department of Labor 

ruling and several court rulings where employers are required to give compensatory time off to an 

employee, even if it means hiring someone else to work for overtime to replace them. 

 That's probably the most misunderstood part of it in the law enforcement arena. The 

department from which I came would deny compensatory time off if they had to hire someone for 
140

overtime, and minimum staffing levels were such that they wouldn't do it. The bulk of our lawsuits 

have had to do with that notion and the inability of officers to get time off when they needed it. 

 Believe me, law enforcement and public safety officers do not want time off when anything 

is going on. I mean, we had policemen arresting firemen at Ground Zero, and in public safety, 

certainly in law enforcement, the issue is generally trying to get people to leave a scene when 

they're no longer needed than it is ever to get them there. 

Chairman Norwood. There isn't a Member on this Committee that doesn't recognize, appreciate 

and are grateful to our men and women in blue that do that very thing. 

Mrs. Biggert, do you have any other questions? 

Mrs. Biggert. Was there one more issue? 

Mr. Slocumb. Well, the last one was the ambiguity about remedies, when an employer has been 

found to violate the provisions of the compensatory section of the FLSA. 

Mrs. Biggert. Thank you. 

 Thank you, Mr. Chairman. 

Chairman Norwood. I have two last thoughts, but I want to ask Mr. Anderson about Harris 

County. You mentioned that in your testimony, I believe. In your experience, have you noticed or 

do you believe it's common for an employer to demand of an employee that they use comp time 

versus time-and-a-half? 

Mr. Anderson. Well, Harris County is our big brother to the north and I don't have any firsthand 

knowledge of the county, other than some of my associates from the county. 

 There may be a time when that’s appropriate, but I think that needs to be measured. I know 

in Representative Biggert's bill, it is not a factor. It's voluntary between the employee and 

employer. That seems to be reasonable. But in the public sector there may be other demands. 

When you're talking about taxpayer dollars, there is a need to go ahead and force the employees to 

take some time off, but that's just my opinion. 

Chairman Norwood. Let me summarize this thing. 

 I have attended I don't know how many hearings on this issue over the last five years, and I 

have never heard from a public sector witness that came before us that this was a bad idea, even if 

it was going to cause additional paperwork, additional employees, and so forth. What I have 

noticed, though, over the last five years, is that everybody who is against this is some way or 

another connected with the unions, which is 10 percent of the workforce. 

 Now, my view is that a lot of our workforce is mom-and-pop, and you don't have an 

adversarial relationship with yourself and four employees. You can't. You have to get along to 
141

make a little business like that work. 

 What do you think if we simply applied this law to everybody but unions, and let them do 

what they wanted to do? If they feel that this is such a terrible thing, they ought not to have to do 

it. Let the other 90 percent of the workforce, the employer and the employee, decide if they want 

time-and-a-half cash, or they want to have time off? 

 Does anybody have any thoughts about that? 

Mr. Winstead. Mr. Chairman, I would just make the observation that in the Federal Government, 

in fact, there must be a collective bargaining agreement with the union, who have established a 

compressed work schedule already, under the current law. 

Chairman Norwood. And we wouldn't interfere with that. They could do whatever they needed to 

do.

Mr. Winstead. I understand. 

Chairman Norwood. They can have their collective bargaining, but we would allow the momand-pops, the small business owners of the country, and the 90 percent of the people that aren't 

necessarily unionized to have a break. 

Mr. Slocumb, do you have any thoughts about that? 

Mr. Slocumb. Only that I would think, coming from the AFL-CIO, that you're describing probably 

the weakest employees, or the employees with the least access to the courts or the Department of 

Labor and those types of things. 

 The lawsuits that we've brought in the public sector were suits where we discovered 

irregularities in comp time systems that many of the employers didn't even realize were 

irregularities, so it becomes a matter of education and a matter of access to the courts, and to the 

Department of Labor. 

 I would guess a mom-and-pop employee would not have a clue how to access the 

Department of Labor or to articulate violations of the Fair Labor Standards Act. We've had it since 

1985, and I can assure you many of our members were not aware of some of the restrictions or 

some of the benefits that they had under it. 

Chairman Norwood. I agree with you, they probably wouldn't know how to necessarily go hire a 

lawyer. That was the point I tried to make earlier. All of them know if they work 48 hours a week 

that they're due time-and-a-half, and in every community, you pick up the telephone and you call 

the Labor Department. At that point you don't need to know anything else, because the Labor 

Department picks it up and runs with it. If they know about time-and-a-half, it won't be long before 

everybody knows that they have comp or flex-time available to them, too, and if they're mistreated, 

they make a local telephone call. 
142

Mr. Anderson, do you have any thoughts about not involving the unions, and doing what 

the other 90 percent of the country wants, and giving them some flex-time and comp time? What 

do you think? 

Mr. Anderson. I certainly support that position. I think that the unions are sophisticated. They can 

make those arguments, whether their membership wants that flexibility or not. 

 With the small departments, I don't think there's any system that we could devise and I think 

Representative Biggert's bill goes a long way towards being a good system. But I don't think any 

system is going to be perfect, and there's going to be problems, but you work out those issues. 

Chairman Norwood. Part of this hearing today is for us to learn from you who work with comp 

time and flex-time in the public sector, what you have experienced over the years having this 

available to your employees, and what we can put into a bill for public employees to make sure we 

don't have problems. 

Mr. Anderson. When I was in the private sector, there were many occasions when employees 

wished they had the flexibility; the non-exempt employees wished they had the flexibility to access 

comp time. 

Chairman Norwood. Andy, there is nothing a Congressman likes better than to please everybody.

I mean we just love it if we can make everybody happy. Now, if the unions don't want this, let's 

make them happy and not give it to them. Let's give it to the rest of the country, the 90 percent 

who have testified here again and again over the last five years that do want it. 

 What do you think? 

Mr. Brantley. Mr. Chairman, my first position out of graduate school was as a labor relations 

representative for the Chrysler Corporation. My role every day was to work with union and 

management interpreting and understanding union contacts. I can tell you unequivocally, if union 

membership wanted this benefit, it would be negotiated as part of their contract. 

Chairman Norwood. Right. That's my point. They can get it anyway. What we're doing as the 

Federal Government is saying to the 90 percent of the workforce, “Sorry, our law won't allow you 

even the possibility of having it.” 

 Well, it's been an interesting hearing. You know, hearings are for us to learn, and the four 

of you have been very generous with your time and very helpful to us simply trying to figure out 

what's the right thing to do. 

 I want to thank you all for your travel time and your efforts to be with us today, and unless 

any of you have one last comment, this Subcommittee now stands adjourned. Thank you, 

gentlemen. 

Whereupon, at 12:42 p.m., the Subcommittee was adjourned.
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Table of Indexes 

Chairman Norwood, 115, 118, 119, 121, 124, 126, 128, 129, 130, 132, 134, 135, 136, 137, 138, 

139, 140, 141, 142 

Mr. Anderson, 124, 131, 135, 136, 137, 138, 140, 142 

Mr. Brantley, 129, 130, 131, 135, 136, 138, 142 

Mr. Owens, 131, 132, 137 

Mr. Slocumb, 133, 134, 135, 138, 139, 140, 141 

Mr. Winstead, 131, 132, 133, 134, 135, 138, 141 

Mrs. Biggert, 132, 133, 134, 137, 138, 139, 140