Speaker of the House John Boehner has promised to pass Martha Roby’s Working Families Flexibility Act. (AP Photo/J. Scott Applewhite.)
House Republicans are launching their first concerted effort to win back female voters on Tuesday with the Working Families Flexibility Act of 2013, a bill that’s being packaged as a lifeline to working moms across the country.
Unfortunately, the legislation is a particularly cruel hoax—a slick attempt to give employers more power, and hourly workers much less.
At first blush, the idea sounds good. The bill would allow hourly workers to convert overtime pay into time off: in other words, instead of getting paid for extra hours, they could stockpile additional vacation time. The pitch here is that working parents could have more flexibility in their schedule and an enhanced ability to balance work and family. “This week, we’ll pass [Representative] Martha Roby’s bill to help working moms and dads better balance their lives between work and their responsibilities as parents,” House Speaker John Boehner said Tuesday.
The GOP is specifically invested in convincing women this bill is for them. The GOP spent $20,000 last week on a digital ad campaign focusing on so-called “mommy blogs,” like Ikeafans.com and MarthaStewart.com, and geo-targeting Democrats in swing districts. “Will Rep. Collin Peterson stand up for working moms?” one iteration of the ad asked.
A fawning National Review profile of Roby, the bill’s sponsor, explains how she wasn’t sure she could handle a run for Congress in 2009 because of concerns about taking care of her children while running for a House seat and potentially becoming a member of Congress—and how those concerns have now inspired her to push this important legislation.
But it’s not too hard to see how pernicious this legislation truly is. “Flexibility” is a word that should make hourly workers check for their wallets—employers hold most of the power in the relationship with hourly workers, which is all the more true if they are not unionized. So “flexibility” to decide if you want to get paid for overtime work, instead of getting fewer hours later on, can quickly become a way for employers to withhold payment for overtime work while also cutting your hours down the road.
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Over 160 labor unions and women’s groups sent a letter to members of Congress on Monday, protesting that the Working Families Flexibility Act is “a smoke-and-mirrors bill that offers a pay cut for workers without any guaranteed flexibility or time off to care for their families or themselves.”
Republicans say this isn’t true, and that there are safeguards in the bill that would prevent employers from muscling their employees into surrendering overtime pay. “It is illegal for them to do that. There are enforcement mechanisms in the bill,” Eric Cantor said in February.
But this is where they’re being really tricky—the bill does give workers the right to sue over such intimidation, but denies them the right to use much quicker, and cheaper, administrative remedies through the Department of Labor. It also gives the Department of Labor no additional funds to investigate nor enforce provisions of the act.
So if hourly workers get intimidated into giving up overtime pay in exchange for working even fewer hours down the road, they’re more than welcome to hire a lawyer and sue—a rather improbable outcome given how expensive that might be. Otherwise, tough luck.
There also isn’t quite as much flexibility in the act as it seems. As the National Partnership for Women and Families points out, while the bill does allow hourly workers to turn overtime pay into as much as 160 hours of comp time, it gives them no right to decide when they can use that time—even if there’s a family emergency. That’s still entirely up to employers.
Further hampering workers’ flexibility is that once they bank more than eighty hours in comp time, employers can unilaterally decide to cash out any additional hours. Also, workers who decide later that they need to cash out the comp time they’ve earned can do so—but employers have thirty days to cut the check, which could certainly be a problem for hourly workers on a tight budget.
Moreover, this isn’t even a new idea. Republicans proposed this same bill ten years ago, prompting the late Molly Ivins to remark “the slick marketing and smoke on this one are a wonder to behold.”
The legislation, simply, is a straightforward boon to big employers. “It pretends to offer time off but actually asks [employees] to work overtime hours without being paid,” Judy Lichtman of the NPWF told reporters on a conference call Monday. She added that it’s simply a “no-cost, no-interest loan to the employer.”
House Democrats will be nearly, if not entirely, unified in opposition. “The Working Families Flexibility Act sounds good, but it is a sham and we are going to call it out for what it is. It would cause more harm than good and we are going to reject it,” Representative Rose DeLauro said yesterday during the same conference call.
Due to the Republican majority in the House, the bill is likely to pass on Tuesday, but Senate passage seems dubious at best, and the White House has already issued a veto threat.
Of course, if Republicans are indeed interested in providing extra flexibility to help hourly workers balance family concerns with their jobs, they could pass paid family leave legislation. Only 11 percent of all private industry workers have access to paid family leave, and the United States is the only high-income country in the world not to mandate it. Unlike the Working Families Flexibility Act, paid family leave is generally something the employee has the unilateral ability to exercise.
Unfortunately, that’s something Congressional Republicans are deeply opposed to enacting. They blocked a proposal from President Obama in 2011 that would have created a $1.5 billion fund to push paid family and medical leave programs at the state level, and several similar efforts to enact such laws at the federal level.
In 1993, when Congress considered and ultimately passed the Family and Medical Leave Act—which mandates only twelve weeks of unpaid family time off—Republicans were apoplectic. One House member from North Carolina called it “nothing short of Europeanization—a polite term for socialism.” A young John Boehner, years from becoming House Speaker, said the legislation would “be the demise of some [businesses].
“And as that occurs,” he said, “the light of freedom will grow dimmer.”
Additional reporting by Nation DC intern Anna Simonton.
UPDATE: The final vote on the Working Families Flexibility Act of 2013 has been pushed back to Wednesday.
Also, it's worth knocking down a particular Republican talking point on the bill, as expressed by Eric Cantor's communications director to me over Twitter, among many other places. They argue that, since federal workers already enjoy the ability to trade overtime pay for extra time off, workers in the private sector should enjoy the same rights.
The problem with this argument is that the federal government is not a profit-driven employer likely to muscle workers into giving up overtime pay in return for reduced hours. If that did happen, federal workers are unionized and enjoy many employment protections that Walmart workers, for example, do not.
It's important to note here that, during the mark-up for this bill last month, Representative Timothy Bishop, a Democrat from New York, offered an amendment that would make the Working Families Flexibility Act apply "only if the employer enters into an employment contract with the employee that provides employment protections substantially similar to those provided to Federal, State or local employees under civil services laws."
Every Republican voted against it, and the measure was defeated.*
*A prior version of this story said four Democrats also voted against the Bishop amendment, but they were just not present for the vote.
UPDATE 2: The House passed the Working Families Flexibility Act on Wednesday afternoon, 223-204.
For better news, read George Zornick on Obama’s promising pick for FHFA director.
