[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 4 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                  S. 4

  To amend the Fair Labor Standards Act of 1938 to provide to private 
      sector employees the same opportunities for time-and-a-half 
compensatory time off, biweekly work programs, and flexible credit hour 
   programs as Federal employees currently enjoy to help balance the 
    demands and needs of work and family, to clarify the provisions 
 relating to exemptions of certain professionals from the minimum wage 
and overtime requirements of the Fair Labor Standards Act of 1938, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 21, 1997

 Mr. Ashcroft (for himself, Mrs. Hutchison, Mr. Lott, Mr. Nickles, Mr. 
Craig, Ms. Collins, Mr. DeWine, Mr. Allard, Mr. Brownback, Mr. Chafee, 
Mr. Coats, Mr. Domenici, Mr. Enzi, Mr. Faircloth, Mr. Gramm, Mr. Grams, 
Mr. Grassley, Mr. Hagel, Mr. Hatch, Mr. Helms, Mr. Hutchinson, Mr. Kyl, 
Mr. Murkowski, Mr. Roberts, Mr. Sessions, Mr. Thurmond, Mr. Warner, Mr. 
 Coverdell, and Mr. Jeffords) introduced the following bill; which was 
 read twice and referred to the Committee on Labor and Human Resources

_______________________________________________________________________

                                 A BILL


 
  To amend the Fair Labor Standards Act of 1938 to provide to private 
      sector employees the same opportunities for time-and-a-half 
compensatory time off, biweekly work programs, and flexible credit hour 
   programs as Federal employees currently enjoy to help balance the 
    demands and needs of work and family, to clarify the provisions 
 relating to exemptions of certain professionals from the minimum wage 
and overtime requirements of the Fair Labor Standards Act of 1938, and 
                          for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Family Friendly Workplace Act''.

SEC. 2. PURPOSES.

    The purposes of this Act are--
            (1) to assist working people in the United States;
            (2) to balance the demands of workplaces with the needs of 
        families;
            (3) to provide such assistance and balance such demands by 
        allowing employers to offer compensatory time off, which 
        employees may voluntarily elect to receive, and to establish 
        biweekly work programs and flexible credit hour programs, in 
        which employees may voluntarily participate; and
            (4) to give private sector employees the same benefits of 
        compensatory time off, biweekly work schedules, and flexible 
        credit hours as have been enjoyed by Federal Government 
        employees since 1978.

SEC. 3. WORKPLACE FLEXIBILITY OPTIONS.

    (a) Compensatory Time Off.--
            (1) In general.--Section 7 of the Fair Labor Standards Act 
        of 1938 (29 U.S.C. 207) is amended by adding at the end the 
        following:
    ``(r) Compensatory Time Off for Private Employees.--
            ``(1) General rule.--
                    ``(A) Compensatory time off.--An employee may 
                receive, in accordance with this subsection and in lieu 
                of monetary overtime compensation, compensatory time 
                off at a rate not less than one and one-half hours for 
                each hour of employment for which monetary overtime 
                compensation is required by this section.
                    ``(B) Definition.--For purposes of this subsection, 
                the term `employee' does not include an employee of a 
                public agency.
            ``(2) Conditions.--An employer may provide compensatory 
        time off to employees under paragraph (1)(A) only pursuant to 
        the following:
                    ``(A) Such time may be provided only in accordance 
                with--
                            ``(i) applicable provisions of a collective 
                        bargaining agreement between the employer and 
                        the representative of the employees recognized 
                        as provided in section 9(a) of the National 
                        Labor Relations Act (29 U.S.C. 159(a)); or
                            ``(ii) in the case of employees who are not 
                        represented by a labor organization recognized 
                        as provided in section 9(a) of the National 
                        Labor Relations Act, an agreement or 
                        understanding arrived at between the employer 
                        and employee before the performance of the work 
involved if such agreement or understanding was entered into knowingly 
and voluntarily by such employee and was not a condition of employment.
                    ``(B) If such employee has affirmed, in a written 
                or otherwise verifiable statement that is made, kept, 
                and preserved in accordance with section 11(c), that 
                the employee has chosen to receive compensatory time 
                off in lieu of monetary overtime compensation.
                    ``(C) If the employee has not accrued compensatory 
                time off in excess of the limit applicable to the 
                employee prescribed by paragraph (3).
            ``(3) Hour limit.--
                    ``(A) Maximum hours.--An employee may accrue not 
                more than 240 hours of compensatory time off.
                    ``(B) Compensation date.--Not later than January 31 
                of each calendar year, the employee's employer shall 
                provide monetary compensation for any unused 
                compensatory time off accrued during the preceding 
                calendar year that was not used prior to December 31 of 
                the preceding calendar year at the rate prescribed by 
                paragraph (6). An employer may designate and 
                communicate to the employees of the employer a 12-month 
                period other than the calendar year, in which case such 
                compensation shall be provided not later than 31 days 
                after the end of such 12-month period.
                    ``(C) Excess of 80 hours.--The employer may provide 
                monetary compensation for an employee's unused 
                compensatory time off in excess of 80 hours at any time 
                after giving the employee at least 30 days' notice. 
                Such compensation shall be provided at the rate 
                prescribed by paragraph (6).
                    ``(D) Policy.--An employer that has adopted a 
                policy offering compensatory time off to employees may 
                discontinue such policy upon giving employees 30 days' 
                notice.
                    ``(E) Written request.--An employee may withdraw an 
                agreement or understanding described in paragraph 
                (2)(A)(ii) at any time. An employee may also request in 
                writing that monetary compensation be provided, at any 
                time, for all compensatory time off accrued that has 
                not yet been used. Within 30 days after receiving the 
                written request, the employer shall provide the 
                employee the monetary compensation due in accordance 
                with paragraph (6).
            ``(4) Prohibition of coercion.--
                    ``(A) In general.--An employer that provides 
                compensatory time off under paragraph (1) to employees 
                shall not directly or indirectly intimidate, threaten, 
                or coerce, or attempt to intimidate, threaten, or 
                coerce, any employee for the purpose of--
                            ``(i) interfering with the rights of the 
                        employee under this subsection to request or 
                        not request compensatory time off in lieu of 
                        payment of monetary overtime compensation for 
                        overtime hours; or
                            ``(ii) requiring the employee to use such 
                        compensatory time off.
                    ``(B) Definition.--As used in subparagraph (A), the 
                term `intimidate, threaten, or coerce' has the meaning 
                given the term in section 13A(d)(3)(B).''.
            (2) Remedies and sanctions.--Section 16 of the Fair Labor 
        Standards Act of 1938 (29 U.S.C. 216) is amended--
                    (A) in subsection (b), by striking ``(b) Any 
                employer'' and inserting ``(b) Except as provided in 
                subsection (f), any employer''; and
                    (B) by adding at the end the following:
    ``(f)(1) An employer that violates section 7(r)(4) shall be liable 
to the employee affected in an amount equal to--
            ``(A) the product of--
                    ``(i) the rate of compensation (determined in 
                accordance with section 7(r)(6)(A)); and
                    ``(ii)(I) the number of hours of compensatory time 
                off involved in the violation that was initially 
                accrued by the employee; minus
                    ``(II) the number of such hours used by the 
                employee; and
            ``(B) as liquidated damages, the product of--
                    ``(i) such rate of compensation; and
                    ``(ii) the number of hours of compensatory time off 
                involved in the violation that was initially accrued by 
                the employee.
    ``(2) The employer shall be subject to such liability in addition 
to any other remedy available for such violation under this section or 
section 17, including a criminal penalty under subsection (a) and a 
civil penalty under subsection (e).''.
            (3) Calculations and special rules.--Section 7(r) of the 
        Fair Labor Standards Act of 1938 (29 U.S.C. 207(r)), as added 
        by paragraph (1), is amended by adding at the end the 
        following:
            ``(5) Termination of employment.--An employee who has 
        accrued compensatory time off authorized to be provided under 
        paragraph (1) shall, upon the voluntary or involuntary 
        termination of employment, be paid for the unused compensatory 
        time off in accordance with paragraph (6).
            ``(6) Rate of compensation for compensatory time off.--
                    ``(A) General rule.--If compensation is to be paid 
                to an employee for accrued compensatory time off, such 
                compensation shall be paid at a rate of compensation 
                not less than--
                            ``(i) the regular rate received by such 
                        employee when the compensatory time off was 
                        earned; or
                            ``(ii) the final regular rate received by 
                        such employee,
                whichever is higher.
                    ``(B) Consideration of payment.--Any payment owed 
                to an employee under this subsection for unused 
                compensatory time off shall be considered unpaid 
                monetary overtime compensation.
            ``(7) Use of time.--An employee--
                    ``(A) who has accrued compensatory time off 
                authorized to be provided under paragraph (1); and
                    ``(B) who has requested the use of such 
                compensatory time off,
        shall be permitted by the employer of the employee to use such 
        time within a reasonable period after making the request if the 
        use of the compensatory time off does not unduly disrupt the 
        operations of the employer.
            ``(8) Definitions.--The terms `monetary overtime 
        compensation' and `compensatory time off' shall have the 
        meanings given the terms `overtime compensation' and 
        `compensatory time', respectively, by subsection (o)(7).''.
            (4) Notice to employees.--Not later than 30 days after the 
        date of the enactment of this Act, the Secretary of Labor shall 
        revise the materials the Secretary provides, under regulations 
        published at 29 C.F.R. 516.4, to employers for purposes of a 
        notice explaining the Fair Labor Standards Act of 1938 to 
        employees so that such notice reflects the amendments made to 
        such Act by this subsection.
    (b) Biweekly Work Programs and Flexible Credit Hour Programs.--
            (1) In general.--The Fair Labor Standards Act of 1938 is 
        amended by inserting after section 13 (29 U.S.C. 213) the 
        following new section:

``SEC. 13A. BIWEEKLY WORK PROGRAMS AND FLEXIBLE CREDIT HOUR PROGRAMS.

    ``(a) Purposes.--The purposes of this section are--
            ``(1) to assist working people in the United States;
            ``(2) to balance the demands of workplaces with the needs 
        of families;
            ``(3) to provide such assistance and balance such demands 
        by allowing employers to establish biweekly work programs and 
        flexible credit hour programs, in which employees may 
        voluntarily participate; and
            ``(4) to give private sector employees the same benefits of 
        biweekly work schedules and flexible credit hours as have been 
        enjoyed by Federal Government employees since 1978.
    ``(b) Biweekly Work Programs.--
            ``(1) In general.--Notwithstanding any other provision of 
        law, an employer may establish biweekly work programs that 
        allow the use of a biweekly work schedule--
                    ``(A) that consists of a basic work requirement of 
                not more than 80 hours, over a 2-week period; and
                    ``(B) in which more than 40 hours of the work 
                requirement may occur in a week of the period.
            ``(2) Computation of overtime.--In the case of an employee 
        participating in such a biweekly work program, all hours worked 
        in excess of such a biweekly work schedule or in excess of 80 
        hours in the 2-week period, that are requested in advance by an 
        employer, shall be overtime hours.
            ``(3) Overtime compensation provision.--The employee shall 
        be compensated for each such overtime hour at a rate not less 
        than one and one-half times the regular rate at which the 
        employee is employed, in accordance with section 7(a)(1), or 
        receive compensatory time off in accordance with section 7(r) 
        for each such overtime hour.
            ``(4) Compensation for hours in schedule.--Notwithstanding 
        section 7 or any other provision of law that relates to premium 
        pay for overtime work, the employee shall be compensated for 
        each hour in such a biweekly work schedule at a rate not less 
        than the regular rate at which the employee is employed.
    ``(c) Flexible Credit Hour Programs.--
            ``(1) In general.--Notwithstanding any other provision of 
        law, an employer may establish flexible credit hour programs, 
        under which, at the election of an employee, the employer and 
        the employee jointly designate hours for the employee to work 
        that are in excess of the basic work requirement of the 
        employee so that the employee can accumulate flexible credit 
        hours to reduce the hours worked in a week or a day subsequent 
        to the day on which the flexible credit hours are worked.
            ``(2) Computation of overtime.--In the case of an employee 
        participating in such a flexible credit hour program, all hours 
        worked in excess of 40 hours in a week that are requested in 
        advance by an employer, other than flexible credit hours, shall 
        be overtime hours.
            ``(3) Overtime compensation provision.--The employee shall 
        be compensated for each such overtime hour at a rate not less 
        than one and one-half times the regular rate at which the 
        employee is employed, in accordance with section 7(a)(1), or 
        receive compensatory time off in accordance with section 7(r) 
        for each such overtime hour.
            ``(4) Compensation for flexible credit hours.--
        Notwithstanding section 7 or any other provision of law that 
        relates to premium pay for overtime work, an employee shall be 
        compensated for each flexible credit hour at a rate not less 
        than the regular rate at which the employee is employed.
            ``(5) Accumulation and compensation.--
                    ``(A) Accumulation of flexible credit hours.--An 
                employee who is participating in such a flexible credit 
                hour program can accumulate not more than 50 flexible 
                credit hours.
                    ``(B) Compensation for flexible credit hours of 
                employees no longer subject to program.--Any employee 
                who was participating in such a flexible credit hour 
                program and who is no longer subject to such a program 
                shall be paid at a rate not less than the regular rate 
                at which the employee is employed on the date the 
                employee receives such payment, for not more than 50 
                flexible credit hours accumulated by such employee.
                    ``(C) Compensation for annually accumulated 
                flexible credit hours.--
                            ``(i) In general.--Not later than January 
                        31 of each calendar year, the employer of an 
                        employee who is participating in such a 
                        flexible credit hour program shall provide 
                        monetary compensation for any flexible credit 
                        hours accumulated as described in subparagraph 
                        (A) during the preceding calendar year that 
                        were not used prior to December 31 of the 
                        preceding calendar year at a rate not less than 
                        the regular rate at which the employee is 
                        employed on the date the employee receives such 
                        payment.
                            ``(ii) Different 12-month period.--An 
                        employer may designate and communicate to the 
                        employees of the employer a 12-month period 
                        other than the calendar year, in which case 
                        such compensation shall be provided not later 
                        than 31 days after the end of such 12-month 
                        period.
    ``(d) Participation.--
            ``(1) In general.--Except as provided in paragraph (2), no 
        employee may be required to participate in a program described 
        in this section. Participation in a program described in this 
        section may not be a condition of employment.
            ``(2) Collective bargaining agreement.--In a case in which 
        a valid collective bargaining agreement exists, an employee may 
        only be required to participate in such a program in accordance 
        with the agreement.
            ``(3) Prohibition of coercion.--
                    ``(A) In general.--An employer may not directly or 
                indirectly intimidate, threaten, or coerce, or attempt 
                to intimidate, threaten, or coerce, any employee for 
                the purpose of interfering with the rights of such 
                employee under this section to elect or not to elect to 
                work a biweekly work schedule, to elect or not to elect 
                to participate in a flexible credit hour program, or to 
                elect or not to elect to work flexible credit hours 
                (including working flexible credit hours in lieu of 
                overtime hours).
                    ``(B) Definition.--As used in subparagraph (A), the 
                term `intimidate, threaten, or coerce' includes 
                promising to confer or conferring any benefit (such as 
                appointment, promotion, or compensation) or effecting 
                or threatening to effect any reprisal (such as 
                deprivation of appointment, promotion, or 
                compensation).
    ``(e) Application of Programs in the Case of Collective Bargaining 
Agreements.--
            ``(1) Applicable requirements.--In the case of employees in 
        a unit represented by an exclusive representative, any biweekly 
        work program or flexible credit hour program described in 
        subsection (b) or (c), respectively, and the establishment and 
        termination of any such program, shall be subject to the 
        provisions of this section and the terms of a collective 
        bargaining agreement between the employer and the exclusive 
        representative.
            ``(2) Inclusion of employees.--Employees within a unit 
        represented by an exclusive representative shall not be 
        included within any program under this section except to the 
        extent expressly provided under a collective bargaining 
        agreement between the employer and the exclusive 
        representative.
            ``(3) Collective bargaining agreements.--Nothing in this 
        section shall be construed to diminish the obligation of an 
        employer to comply with any collective bargaining agreement or 
        any employment benefits program or plan that provides lesser or 
greater rights to employees than the benefits established under this 
section.
    ``(f) Definitions.--As used in this section:
            ``(1) Basic work requirement.--The term `basic work 
        requirement' means the number of hours, excluding overtime 
        hours, that an employee is required to work or is required to 
        account for by leave or otherwise.
            ``(2) Collective bargaining.--The term `collective 
        bargaining' means the performance of the mutual obligation of 
        the representative of an employer and the exclusive 
        representative of employees in an appropriate unit to meet at 
        reasonable times and to consult and bargain in a good-faith 
        effort to reach agreement with respect to the conditions of 
        employment affecting such employees and to execute, if 
        requested by either party, a written document incorporating any 
        collective bargaining agreement reached, but the obligation 
        referred to in this paragraph does not compel either party to 
        agree to a proposal or to make a concession.
            ``(3) Collective bargaining agreement.--The term 
        `collective bargaining agreement' means an agreement entered 
        into as a result of collective bargaining.
            ``(4) Election.--The term `at the election of', used with 
        respect to an employee, means at the initiative of, and at the 
        request of, the employee.
            ``(5) Employee.--The term `employee' means an employee, as 
        defined in section 3, except that the term shall not include an 
        employee, as defined in section 6121(2) of title 5, United 
        States Code.
            ``(6) Employer.--The term `employer' means an employer, as 
        defined in section 3, except that the term shall not include 
        any person acting in relation to an employee, as defined in 
        section 6121(2) of title 5, United States Code.
            ``(7) Exclusive representative.--The term `exclusive 
        representative' means any labor organization that--
                    ``(A) is certified as the exclusive representative 
                of employees in an appropriate unit pursuant to Federal 
                law; or
                    ``(B) was recognized by an employer immediately 
                before the date of enactment of this section as the 
                exclusive representative of employees in an appropriate 
                unit--
                            ``(i) on the basis of an election; or
                            ``(ii) on any basis other than an election;
                and continues to be so recognized.
            ``(8) Flexible credit hours.--The term `flexible credit 
        hours' means any hours, within a flexible credit hour program 
        established under subsection (c), that are in excess of the 
        basic work requirement of an employee and that, at the election 
        of the employee, the employer and the employee jointly 
        designate for the employee to work so as to reduce the hours 
        worked in a week or a day subsequent to the day on which the 
        flexible credit hours are worked.
            ``(9) Overtime hours.--The term `overtime hours'--
                    ``(A) when used with respect to biweekly work 
                programs under subsection (b), means all hours worked 
                in excess of the biweekly work schedule involved or in 
                excess of 80 hours in the 2-week period involved, that 
                are requested in advance by an employer.
                    ``(B) when used with respect to flexible credit 
                hour programs under subsection (c), means all hours 
                worked in excess of 40 hours in a week that are 
                requested in advance by an employer, but does not 
                include flexible credit hours.
            ``(10) Regular rate.--The term `regular rate' has the 
        meaning given the term in section 7(e).''.
            (2) Prohibitions.--
                    (A) Purposes.--The purposes of this paragraph are 
                to make violations of the biweekly work program and 
                flexible credit hour program provisions by employers 
                unlawful under the Fair Labor Standards Act of 1938, 
                and to provide for appropriate remedies for such 
                violations, including, as appropriate, fines, 
                imprisonment, injunctive relief, and appropriate legal 
                or equitable relief, including liquidated damages.
                    (B) Remedies and sanctions.--Section 15(a)(3) of 
                the Fair Labor Standards Act of 1938 (29 U.S.C. 
                215(a)(3)) is amended by inserting before the semicolon 
                the following: ``, or to violate any of the provisions 
                of section 13A''.
    (c) Limitations On Salary Practices Relating To Exempt Employees.--
Section 13 of the Fair Labor Standards Act of 1938 (29 U.S.C. 213) is 
amended by adding at the end the following:
    ``(m)(1)(A) In the case of a determination of whether an employee 
is an exempt employee described in subsection (a)(1), the fact that the 
employee is subject to deductions in compensation for--
            ``(i) absences of the employee from employment of less than 
        a full workday; or
            ``(ii) absences of the employee from employment of less 
        than a full pay period,
shall not be considered in making such determination.
    ``(B) In the case of a determination described in subparagraph (A), 
an actual reduction in compensation of the employee may be considered 
in making the determination.
    ``(C) For the purposes of this paragraph, the term `actual 
reduction in compensation' does not include any reduction in accrued 
paid leave, or any other practice, that does not reduce the amount of 
compensation an employee receives for a pay period.
    ``(2) The payment of overtime compensation or other additions to 
the compensation of an employee employed on a salary based on hours 
worked shall not be considered in determining if the employee is an 
exempt employee described in subsection (a)(1).''.
                                 <all>