[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

[[Page S4651]]

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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