[Congressional Record Volume 143, Number 65 (Friday, May 16, 1997)]
[Senate]
[Pages S4649-S4652]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FAMILY FRIENDLY WORKPLACE ACT
Mr. WELLSTONE. Mr. President, I was working in my office on some
other matters, and it came to my attention that several of my
colleagues, I
[[Page S4650]]
think Senator Ashcroft and perhaps Senator McConnell of Kentucky, came
down to speak about the comptime-flextime bill that Senator Ashcroft
introduced, S. 4. I want to respond to some of what they had to say
because I think it is important that people in the country understand
this debate and how it affects their lives.
Mr. President, one of the arguments that was made was that
Democrats--it was a curious argument--by coming out on the floor, and I
was one that did so, and Senator Kennedy was out here and there were
others, that by speaking in opposition to S. 4, we did not want to
debate. The legislation was stopped. There were not enough votes to
proceed. So somehow we did not want to debate the bill.
Mr. President, we should be clear about the difference between trying
to get some legislation passed that will lead to an improvement in the
quality of lives of people, as opposed to bringing out legislation
which you know will never become law.
At the top of the issues I care most about is campaign finance
reform. I keep being told we do not have time to do it on the floor of
the Senate. We have core issues to debate. Mr. President, I disagree
sharply with my colleagues. I make the point that when you bring a bill
to the floor of the Senate which the President has already said he
would veto, when you bring a bill to the floor of the Senate, S. 4 in
the form it was brought to the floor, knowing full well that you will
have a significant number of Senators, certainly well over 40, in
opposition, this is hardly the way to pass legislation. You can score
political points. You can come to the floor today and try and score
political points, but that is not a substitute for a substantive
argument and debate.
Now, Mr. President, we should be clear about what we oppose because I
do not think it is a question of what I oppose, as the Senator from
Minnesota. I think it is a question of how people in the country may
view this.
S. 4 is an overreach. It did not go anywhere on the floor of the
Senate. It was to be vetoed by the President. It will never become the
law of the land because it is an overreach. It takes the Fair Labor
Standards Act--we are talking about 50 years of people's history, if
you will, with the idea being that when you work overtime you get
compensated at time and a half--and it turns it on its head. It goes to
an 80-hour work period so that an employee could end up working 60
hours one week, 20 hours the next week with no overtime pay.
Now, if you think in theory all employees will have the power to say
to employers, ``No, we do not want to work under these conditions,'' if
you are naive enough to believe that, believe it. If you do not know
much about the world of the workplace, believe it. But that is why we
have some protections for working people. We are not about to stand and
watch the 40-hour workweek overturned. We are not about to see fair
labor standards that have been so important to working families, so
important to their wage levels, so important to people being treated
with dignity and respect, overturned.
It is, as they say, a nonstarter. That is why that legislation, when
it came to the floor was a nonstarter. We had debate. I heard
colleagues say we did not want to debate. We had debate.
The second point, both the 80-hour 2-week framework and flextime at
hour for hour, where you get an hour off for an hour of overtime, but
no time and a half, these are, essentially, cuts in pay. So, get real.
We should talk about the purported goal of the bill that was
introduced and what should be our goal, which is to give employees more
flexibility. If, in fact, a woman or a man wants to bank time--now I am
talking about comptime--by working overtime 1 week and then saying,
``Look, I would like to take that as time off rather than getting paid
cash time and a half. Rather than getting an hour and a half in pay for
the hour I worked overtime, I would like to have an hour and a half in
paid time off. I could do some things with my family that would be
important to my family.'' Great. But make sure that is what the
legislation is. That is not the legislation that was on the floor of
the Senate. Two out of the three options, the flextime proposal and the
80-hour 2-week proposal, represent cuts in pay for people.
It represented an all-out assault on the Fair Labor Standards Act, an
all-out assault on the idea of decent jobs, overtime pay for overtime
work. So, now let's talk about where there could be common ground.
Before I do that, Mr. President, let me deal with a couple of other
arguments that were made that I think are really quite important. Mr.
President, one of the arguments that was made was that people do not
have, and I cannot believe my colleagues made this argument, that,
right now, because of the Fair Labor Standards Act and the laws we live
under, there is no way to have flexibility.
I am the ranking minority member of the subcommittee which has
considered this topic, with Senator DeWine, who has been an excellent
chair, by the way. We had people come in and testify about the existing
flexibility. There are people in the country who work four 10-hour days
and then they do not work on a Friday. There are people who work four
9-hour days and then they work half a day on Friday or Monday. There
are people that come in at 7 o'clock and work to until 3 o'clock or
come in and 10 o'clock and work until 6 o'clock, whatever the case
might be. There are all sorts of ways in which there can be flexibility
right now. The sad thing is a lot of companies do not provide that to
their employees, but we should not confuse the issue. That has nothing
to do with the Fair Labor Standards Act. That cannot be used as a
pretext for overturning the Fair Labor Standards Act. We are not going
to let that happen. To argue there is no flexibility or no way that
current law allows it is just simply not the case.
Now, Mr. President, the Senator from Missouri also claims that his
bill simply makes available to private-sector workers the same benefits
that Federal employees have. He is wrong. The Federal employee program
gives employees the right to choose whether to have flexible schedules.
S. 4 does not do that. The Senator also overlooks the many and
substantial job protections that Federal employees enjoy that do not
apply to the private sector workers.
By the way, when it comes to health care benefits and pension
benefits and much larger percentage of Federal employees being
unionized and having bargaining powers, I would be pleased to join with
my colleagues to achieve parity for people in the private sector. Mr.
President, first and foremost, Federal workers are covered by civil
service rules requiring good cause for discharge or discipline. That
is, Federal employees cannot be suspended, discharged, or disciplined
without notice of the charges and an opportunity to respond in a
hearing. Private employees, by contrast, are typically ``at will''
employees. An employer can discharge or discipline those employees for
any reason. It is completely different. People in the private sector do
not have the protection Federal employees have. Private employees can
be fired because the employer does not like the color of their hair.
They can be suspended because the employer does not like their
political beliefs. These workers have no redress. They cannot complain
to anyone. They have no right to a hearing, and they certainly do not
have the right to get their jobs back. Only if private employees are
covered by a collective bargaining agreement do they have the right to
a hearing before they can be fired, and only about 15 percent of the
private work force in this country is covered by such a contract.
Mr. President, these are critical differences between public and
private employees. They underscore how careful we must be before we
blindly apply Federal programs to the private sector. The possibility
for exploitation of private-sector employees is far greater than in the
public sector.
Let me give an example of something that happened in the Labor
Committee. We will see what happens when the bill returns to the floor.
I had an amendment that says we should give the employees real
flexibility. Now, if Mary Jones has banked 20 hours that she earned by
working overtime and she now wants to take that time off and she asks
for the hour and a half paid time off for each of those overtime hours
worked, if she wants to do it for reasons that are laid out in the
Family and Medical Leave Act, because a family member is ill, or a new
child has
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been born, she should be able to do it. She should not have to have
that approved. Those are her hours she banked, her earned compensation.
Give her the flexibility. Do not just leave it in the hand of the
employer to ultimately decide to sign off on everything. That amendment
was defeated. Mr. President, if we want to make sure that private
employees have flexibility, then we must have such a provision.
Mr. President, there are no sweatshops, my colleague mentioned, in
the Federal sector. The Department of Labor found that 50 percent of
garment shops failed to comply with minimum wage, overtime, or child
labor laws--50 percent. Yet the Republican bill would give employers in
the garment industry one more tool to abuse their employees. I had an
amendment that said we should exclude people that work in some of these
sectors of the work force that are already exploited because otherwise
you are giving employers another way of not paying people overtime.
That amendment was defeated. I repeat on the floor of the Senate, that
amendment was defeated. Very revealing. We offered an amendment in the
Labor Committee to exclude garment workers and other especially
vulnerable employees of the bill. It was defeated on a party-line vote.
The Senator from Missouri quoted a song very familiar to me on the
floor this week. I said, ``I know that song, Florence Reese wrote
that.'' I know that because my wife's family is from Appalachia and
this was about the coal mining struggles. Florence Reese was from
Harlan County, KY.
Mr. President, I think the vote to deny an exemption to garment
workers and other vulnerable employees shows pretty clearly which side
the Republicans are on in this debate. I think the vote not to provide
an exemption for those employees, who we already know are exploited--
the evidence is irrefutable and irreducible--shows clearly which side
too many of my Republican colleagues are on. And by the way, not the
side that Florence Reese was singing about, which is the side of
working people.
Mr. President, another important difference between the public and
private sector is that the Federal agencies do not go bankrupt.
Contrast this with private businesses. In 1995, 52,000 American
businesses filed for bankruptcy. The rate of business failures in the
garment industry is twice the national average. In construction, the
rate of bankruptcy is much higher than the national average. If an
employer goes bankrupt when an employee has comptime banked, the worker
loses all his or her time and money. Mr. President, under S. 4 comptime
hours do not count as wages in a bankruptcy proceeding, so the worker
who accepted comptime instead of paid overtime would be out of luck. We
had an amendment ready in the Labor Committee markup to fix this
problem but, it is not in the bill.
Mr. President, I see my colleague on the floor and I do not want to
take up so much time that he does not have an opportunity to speak but
let me make one of many other points I could make by way of correcting
the Record.
Mr. President, my colleague from Missouri said Democrats have not
read the bill. I read the bill. I can say, and I do no damage to the
truth, that this bill violates the 40-hour week and sets up an 80-hour
2-week framework, and people can work 50 hours or 60 hours one week and
they get no overtime pay if the employer decides the arrangement should
be such that the employee can choose to get some time off the next
week, but they do not get time and a half compensation as either cash
or time. I can safely say that there is no effort here to really
providing employees the flexibility to choose when to use comp time.
Mr. President, under the Ashcroft bill, flexible credit hours are
defined as hours that the employer and the employee jointly designate
for the employee to work so as to ``reduce the hours worked'' at a
later time. This is on page 19, lines 14 through 18 of the bill.
My colleague from Missouri claimed that the opponents of S. 4 would
support the legislation, if only we would read the bill. Mr. President,
I respectfully suggest that my colleague needs to take another look at
this legislation. It doesn't do what the proponents claim. The language
shows that.
Federal law defines ``credit hours'' as hours which the employee
elects to work. Let me repeat that. Federal law defines ``credit
hours'' as hours which the employee elects to work so as to vary the
length of the workweek or workday. Under the Ashcroft bill, you have to
have the employer and the employee together designating this. If the
employer doesn't want to go along with this--and the employers quite
often have the power--the employee doesn't get to make that decision.
So let's not say that this bill is going to give employees in the
private sector what employees in the Federal sector have. It is right
there in the bill on page 19, lines 14 to 18.
Mr. President, I think I have made my case. We have had some time to
debate this bill. The bill went nowhere because the bill, as opposed to
providing employees flexibility, ends up being a way in which too many
employers all across the country can basically cut the pay for workers.
It amounts to a paycheck cut for workers.
We are not going to let that happen. The President wouldn't let that
happen.
So I suggest that my colleagues, next time we have the debate, do not
come out on the floor and say that we have not read the bill. We read
the bill. That is why I oppose it. Don't come out on the floor and say
that we are going to give the private-sector employees the same
opportunities as the Federal-sector employees have. That is not the
case. Don't come out on the floor and say that this will provide
flexibility for employees. It doesn't.
Don't come out on the floor and pretend that you have not done damage
to the very cherished idea of a 40-hour workweek, and, that, by golly,
people should get the functional equivalent of overtime pay, paid time
off at time and a half, because this bill doesn't really provide real
guarantees that it will happen.
And don't come out here on the floor of the Senate and say that all
these great things are going to happen in the work force when we have
clear examples of people who work, such as in the garment industry, who
are already being exploited, and you don't want to provide them any
kind of exemption or any kind of special protection. The arguments just
simply don't carry the day.
Mr. President, I would suggest to my colleagues that I came out on
the floor to correct the Record, that there is a good reason why the
bill went nowhere, there is a good reason why the President is going to
veto it. I hope we will see some serious work that we will do together
to make some major corrections and have a really strong piece of
legislation that will provide working women and men with the
flexibility they need, and which will be family friendly.
And, by the way, I think Senator Murray has an excellent idea to
expand the Family Medical Leave Act for some additional hours off for a
family. There are a lot of things that we can do to really make this a
piece of legislation that is family friendly, that is worker friendly.
And that is what I think we will do.
Mr. DORGAN. Mr. President, will the Senator from Minnesota yield for
a question?
Mr. WELLSTONE. I actually have to leave the floor in a moment. I
would be pleased to yield.
Mr. DORGAN. Mr. President, I have listened with interest to the
description of the bill by my colleague from Minnesota. I think it is
safe to say there is no one in the Chamber who really doesn't subscribe
to the notion that there ought to be greater flexibility in the
workplace, and that there is merit to giving an employee the
opportunity to decide whether they want comptime as opposed to
overtime. I don't think there is much disagreement about that issue.
But I ask the Senator from Minnesota, is it the case that, when we
talk about overtime pay for American workers, 80 percent of the workers
in this country that are getting overtime pay are workers earning less
than $28,000 a year? Then therefore, by definition, these are workers
somewhere toward the lower end of the economic scale who get less than
$28,000 a year, and many of them rely on overtime pay. They need it. It
is very important to them.
To the extent that anybody opposes a bill that says let's provide
flexibility in
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the workplace in a manner that might threaten the opportunity for those
who want and need the overtime pay, especially those at the bottom of
the pay scale, boy, that is not moving in the right direction in terms
of providing flexibility.
Is it the case that the preponderance of people getting overtime in
the workplace are people below $28,000 a year?
Mr. WELLSTONE. Mr. President, my colleague from North Dakota is
absolutely correct. That is why I said earlier that I would want to
point to the critical distinction between coming out here on the floor
with a piece of legislation that you know threatens the labor standards
of working people, that you know doesn't provide the flexibility, that
you know is not going to get the votes to pass, that you know the
President is going to veto, and doing what should be done, if, in fact,
we care about working people and children, which is to come out with a
piece of legislation that really does provide the comptime, the
flexibility, without threatening people who really rely on that
overtime pay.
Mr. DORGAN. Isn't it the case that the bill that was brought to the
floor says to you, if you are an employer and you have somebody working
for you making $14,000 a year, working hard, working two 40-hour weeks,
``By the way, we will give you some flexibility; you can tell that
worker next week that they are going to work 60 hours, and that you can
let them work fewer hours the week after, so as long as it adds up to
80 hours, whatever the requirement of work for the first time?''
Mr. WELLSTONE. Absolutely. It takes the Fair Labor Standards Act,
which, as I said the other day, is based on a lot of sweat and tears of
a lot of working families, and turns the whole idea of fairness on its
head. That is absolutely right.
That is why that piece of legislation went nowhere on the floor of
the Senate, nor should it.
That is absolutely correct.
Mr. DORGAN. One additional question: There is a way to do what people
have said needs doing, and what, I think, needs doing; that is,
honestly provide greater flexibility. If people want to take comptime
instead of overtime, there certainly is a way to do that without
potentially hurting people at the lower end of the economic ladder.
Isn't that the case?
Mr. WELLSTONE. I would say to my colleague that he is correct. I
think the key issues are, when you have proposals in here, first, what
you do, if you are serious about passing a piece of legislation that is
going to help working families, is you take the extreme and harsh parts
out, like overturning the 40-hour week.
Second of all, you make sure you don't have a lot of coercion at the
workplace, and that employees really do have a choice, whether it be a
woman or a man. And, if so, they get either that at time-and-a-half pay
or they get that time-and-a-half off when they want and need to take
it.
If you can make sure that happens, if you make sure that you have the
important provisions to make sure that happens, and if you make sure
there isn't exploitation, then it is absolutely the right direction to
go.
That would be, I hope, the common ground.
Mr. President, I yield the floor.
Mr. DORGAN addressed the Chair.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Mr. President, I ask to be recognized to use the time
reserved for the leader.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DORGAN. Mr. President, I came to the floor, and was interested in
the comments offered by my colleague from Minnesota. I agree with his
comments. That has been the issue on the floor of the Senate for the
last couple of weeks. I expect we will have more debate on it. But I
came to talk about several other issues, and I would like to take the
time to make some points to my colleagues that are important to me, to
my home State of North Dakota, and to others.
So let me begin talking about the first of the three issues.
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