Republican Congressman and House Majority Leader Eric Cantor and others in his party have recently been promoting an idea that conservatives have long shied away from — government-mandated workplace flexibility. Republicans have made it clear for decades that the idea of flex-time and other ideas to promote flexibility should be left up to employers and that the federal government should have no role in dictating to businesses how to best manage their employees. But after losing the presidential election in 2012, the GOP has become more focused on winning back women voters in 2016, so conservatives recently have been highlighting their own version of a workplace flexibility act.
With two different bills with the same name — the Working Families Flexibility Act — what’s the difference between the Republican version and the Democratic version?
Interestingly, while the GOP has been more focused in the past on employers being in charge of whether to allow flexible work arrangements, rather than Uncle Sam, Republicans were first to coin the name Working Families Flexibility Act in 1997. That bill, very similar to the present day legislation, could not get past the Senate. The GOP version has been called the “More Work, Less Pay Act,” because it would allow hourly employees (those non-exempt to the wage and hour laws) to agree not to be paid for overtime hours, and instead receive the time-and-half as “comp time.” The biggest objection to this plan is that employees would have no control over when they could use their accrued comp time, meaning that the bill would offer no real flexibility to workers. A point of contention both in 1997 and today is whether employees might feel pressured to accept comp time instead of overtime pay. Under the GOP measure, an employee could sue if an employer unreasonably pressured him or her to agree to comp time, but realistically, an individual would not likely incur enough damages to attract a lawyer to bring a claim.
First introduced in 2007, the Democratic Working Families Flexibility Act has been reintroduced in every Congressional session since then, except for the current session. It has never made it out of the House of Representatives. Originally co-sponsored by Senators Edward Kennedy, Hillary Clinton and then-Senator Barack Obama, the bill was modeled after similar successful laws in the U.K. and other European nations. It would require employers to consider all workers’ requests – not just those by hourly employees – for reduced or flexible hours, or telecommuting. (California and a few other states already require state agencies to offer “reduced work time” to “the extent feasible,” and guarantee part time workers pro rata pay and benefits.) If an employer rejects an employee’s request, the employer must provide a written explanation of the reasons why. Employees would have no further recourse, except if the employer retaliated against the employee for making the request. Unlike the Republican bill, enforcement would be by the Labor Department, which would provide better protection for employees.
The reluctance from the business community over either version is fear of the cost of responding to employee requests. In Great Britain, a 2005 survey of all requests, not just those protected by law, found that in the preceding two years fourteen percent of employees requested flexible working, with women asking at a much higher rate than men. In spite of their power to say “no,” employers accepted more than eighty percent of requests. This means that on average, employers could have been required to respond to flexible working requests from fewer than three percent of their employees, or less than 1.5 percent per year.
What can we predict from comparing the two bills? It would be nice to think that with bills on this topic being promoted by both Republican and Democrats, what working families could hope to see some movement on the issue soon. Sadly, what we will most likely get is congressional stalemate and no flexible scheduling help for working families.
Contributor Robert Waring, the grandson of a suffragist, writes about the interplay between feminism and public policy, including how current policies affect women, and how policies that empower women can improve society for everyone. His essays on part-time work have been featured in the New York Times. His also writes about the First Amendment, the privacy of mental health information, and how films portray law, lawyers and the legal system. He was a founding editor of Picturing Justice: The Online Journal of Law & Popular Culture. As an attorney he has worked with California’s judiciary and legislature crafting laws, and has been court-appointed counsel for thousands of children in foster care, where he has seen parents at their best and their worst. Follow him on Twitter @upsidedownbook or at www.upsidedownbook.net. He is the author of Upside Down: The Paradoxes of Gender in the Twenty-first Century.