COMMENTARY

An Op-Ed by Professor Seth Harris
Originally published in The Los Angeles Times, June 1, 2003.

By Seth Harris

More than 2.5 million jobs have disappeared since President Bush took office. Most workers' real wages have stagnated or declined. Families' retirement savings have shrunk with the stock market indexes. Deflation lurks. Consumer confidence, our economy's levee against recession's floodwaters, teeters. Even a quick victory in Iraq has not changed the fact that the opening years of the 21st century have been an orange-coded, pink-slipped era of insecurity for the nation's middle-class families.

Many workers try to avoid sinking into the economic mire by putting in longer hours on the job. According to a 2001 International Labour Organization study, Americans now work almost a full week more per year than they did in 1990. The average workweek in most American industries exceeds 40 hours.

But instead of rewarding hard work, President Bush and the Republican congressional leadership are taking steps that would only compound workers' economic insecurity.

In March, the White House proposed new Labor Department regulations that would, according to the most conservative estimates, exclude 650,000 middle-class workers from receiving premium pay for overtime hours worked. The proposed regulations dramatically expand provisions in the Fair Labor Standards Act exempting white-collar workers from overtime protections.

Characteristically, the Republican leadership in the House has an even more extreme plan. Under a proposal to be considered this week, employers would no longer be required to pay workers time and a half for overtime. Instead, employers could give workers 1 1/2 hours of time off, so-called "comp time," for every overtime hour worked.

The Senate version would abolish the 40-hour workweek entirely. Employers would not be required to give workers any extra compensation — time or money — unless they worked more than 80 hours in two weeks, or 50 hours in one week.

If enacted, either proposal would deprive many middle-class families of the added earnings they need for their children's college tuition, their own retirement or even to meet their monthly bills.

Middle-class families are undeniably hard-pressed for time, but workers would not get greater flexibility in return for the money this proposal would take out of their pockets. Employers would decide when workers may take time off. As Justice Clarence Thomas said three years ago in a Supreme Court case interpreting similar rules governing public-sector workers, the law "grants significant control to the employer over accrued compensatory time." By comparison, existing overtime law is surprisingly flexible. In fact, every flexible work arrangement contemplated by the comp-time proposal is already legal under current law.

"Flextime," with workers starting and ending their days at varied times, does not require overtime pay. Neither do "split shifts" — working four hours in the morning and four hours at night, for example. Ten-, 12- or even 14-hour workdays do not trigger overtime liability. The same is true of work on weekends and holidays.

"Flexiplace" arrangements, with employees working at home, in their car or from other remote sites, do not fall under the overtime law. In fact, employers can combine flextime and flexiplace arrangements without paying overtime. A working mother could put in six hours at the office, leave to pick up her kids at school and then work two hours at home after the kids had gone to bed.

Under existing law, employers could also permit their employees to work 50 hours in one week and 30 hours in the next or give extra time off for every overtime hour worked. In these two circumstances, the only difference between the Republicans' proposal and current law is that the proposed overtime rules would authorize employers to cut workers' pay in return for these flexible arrangements.

Comp time has nothing to do with flexibility or befriending families. It's about who gets the money. In this era of economic insecurity, middle-class families should have the extra pay they are struggling to earn.


Seth Harris, a former senior policy advisor to both secretaries of Labor in the Clinton administration, teaches labor and employment law at New York Law School.