[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 624 Introduced in Senate (IS)]







107th CONGRESS
  1st Session
                                 S. 624

  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 and biweekly work 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 minimum wage and overtime requirements of the Fair 
          Labor Standards Act of 1938, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 27, 2001

  Mr. Gregg (for himself and Mrs. Hutchison) introduced the following 
  bill; which was read twice and referred to the Committee on Health, 
                     Education, Labor, and Pensions

_______________________________________________________________________

                                 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 and biweekly work 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 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 ``Workplace Flexibility Act''.

SEC. 2. WORKPLACE FLEXIBILITY OPTIONS.

    (a) Compensatory Time Off.--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)(1)(A) Except as provided in subparagraph (B), no employee may 
be required under this subsection to receive compensatory time off in 
lieu of monetary overtime compensation. The acceptance of compensatory 
time off in lieu of monetary overtime compensation may not be a 
condition of employment or of working overtime.
    ``(B) In a case in which a valid collective bargaining agreement 
exists between an employer and the labor organization that has been 
certified or recognized as the representative of the employees of the 
employer under applicable law, an employee may only be required under 
this subsection to receive compensatory time off in lieu of monetary 
overtime compensation in accordance with the agreement.
    ``(2)(A) 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) In this subsection:
            ``(i) The term `employee' means an individual--
                    ``(I) who is an employee (as defined in section 3);
                    ``(II) who is not an employee of a public agency; 
                and
                    ``(III) to whom subsection (a) applies.
            ``(ii) The term `employer' does not include a public 
        agency.
    ``(3) An employer may provide compensatory time off to employees 
under paragraph (2)(A) only pursuant to the following:
            ``(A) The compensatory time off may be provided only in 
        accordance with--
                    ``(i) applicable provisions of a collective 
                bargaining agreement between the employer and the labor 
                organization that has been certified or recognized as 
                the representative of the employees under applicable 
                law; or
                    ``(ii) in the case of an employee who is not 
                represented by a labor organization described in clause 
                (i), a written agreement arrived at between the 
                employer and employee before the performance of the 
                work involved if the agreement or understanding was 
                entered into knowingly and voluntarily by such employee 
                and was not a condition of employment.
            ``(B) The compensatory time off may only be provided to an 
        employee described in subparagraph (A)(ii) if such employee has 
        affirmed, in a written 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) No employee may receive, or agree to receive, the 
        compensatory time off unless the employee has been employed for 
        at least 12 months by the employer, and for at least 1,250 
        hours of service with the employer during the previous 12-month 
        period.
            ``(D) An employee shall be eligible to accrue compensatory 
        time off if such employee has not accrued compensatory time off 
        in excess of the limit applicable to the employee prescribed by 
        paragraph (4).
    ``(4)(A) An employee may accrue not more than 160 hours of 
compensatory time off.
    ``(B) Not later than January 31 of each calendar year, the employer 
of the employee 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 (8). An employer may designate and 
communicate to the employees of the employer a 12-month period other 
than the calendar year, in which case the compensation shall be 
provided not later than 31 days after the end of the 12-month period.
    ``(C) The employer may provide monetary compensation for an 
employee's unused compensatory time off in excess of 80 hours at any 
time after providing the employee with at least 30 days' written 
notice. The compensation shall be provided at the rate prescribed by 
paragraph (8).
    ``(5)(A) An employer that has adopted a policy offering 
compensatory time off to employees may discontinue the policy for 
employees described in paragraph (3)(A)(ii) after providing 30 days' 
written notice to the employees who are subject to an agreement or 
understanding described in paragraph (3)(A)(ii).
    ``(B) An employee may withdraw an agreement or understanding 
described in paragraph (3)(A)(ii) at any time, by submitting a written 
notice of withdrawal to the employer of the employee. An employee may 
also request in writing that monetary compensation be provided, at any 
time, for all compensatory time off accrued that has not been used. 
Within 30 days after receiving the written request, the employer shall 
provide the employee the monetary compensation due in accordance with 
paragraph (8).
    ``(6)(A)(i) An employer that provides compensatory time off under 
paragraph (2) to an employee 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;
            ``(II) interfering with the rights of the employee to use 
        accrued compensatory time off in accordance with paragraph (9); 
        or
            ``(III) requiring the employee to use the compensatory time 
        off.
    ``(ii) In clause (i), the term `intimidate, threaten, or coerce' 
has the meaning given the term in section 13A(c)(2).
    ``(B) An agreement or understanding that is entered into by an 
employee and employer under paragraph (3)(A)(ii) shall permit the 
employee to elect, for an applicable workweek--
            ``(i) the payment of monetary overtime compensation for the 
        workweek; or
            ``(ii) the accrual of compensatory time off in lieu of the 
        payment of monetary overtime compensation for the workweek.''.
    (b) Remedies and Sanctions.--Section 16 of the Fair Labor Standards 
Act of 1938 (29 U.S.C. 216) is amended by adding at the end the 
following:
    ``(f)(1) In addition to any amount that an employer is liable under 
subsection (b) for a violation of a provision of section 7, an employer 
that violates section 7(r)(6)(A) 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)(8)(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).''.
    (c) Calculations and Special Rules.--Section 7(r) of the Fair Labor 
Standards Act of 1938 (29 U.S.C. 207(r)), as added by subsection (a), 
is further amended by adding at the end the following:
    ``(7) An employee who has accrued compensatory time off authorized 
to be provided under paragraph (2) shall, upon the voluntary or 
involuntary termination of employment, be paid for the unused 
compensatory time off in accordance with paragraph (8).
    ``(8)(A) If compensation is to be paid to an employee for accrued 
compensatory time off, the 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) Any payment owed to an employee under this subsection for 
unused compensatory time off shall be considered unpaid monetary 
overtime compensation.
    ``(9) An employee--
            ``(A) who has accrued compensatory time off authorized to 
        be provided under paragraph (2); and
            ``(B) who has requested the use of the accrued compensatory 
        time off;
shall be permitted by the employer of the employee to use the accrued 
compensatory time off within a reasonable period after making the 
request if the use of the accrued compensatory time off does not unduly 
disrupt the operations of the employer.
    ``(10) 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).''.
    (d) Notice to Employees.--Not later than 30 days after the date of 
enactment of this Act, the Secretary of Labor shall revise the 
materials the Secretary provides, under regulations contained in 
section 516.4 of title 29, Code of Federal Regulations, to employers 
for purposes of a notice explaining the Fair Labor Standards Act of 
1938 (29 U.S.C. 201 et seq.) to employees so that the notice reflects 
the amendments made to the Act by this section.

SEC. 3. BIWEEKLY WORK PROGRAMS.

    (a) In General.--The Fair Labor Standards Act of 1938 is amended by 
inserting after section 13 (29 U.S.C. 213) the following:

``SEC. 13A. BIWEEKLY WORK PROGRAMS.

    ``(a) Voluntary 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 between an 
        employer and the labor organization that has been certified or 
        recognized as the representative of the employees of the 
        employer under applicable law, an employee may only be required 
        to participate in such a program in accordance with the 
        agreement.
    ``(b) Biweekly Work Programs.--
            ``(1) In general.--Notwithstanding section 7, 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, except 
                that no more than 10 hours may be shifted between the 2 
                weeks involved.
            ``(2) Conditions.--An employer may carry out a biweekly 
        work program described in paragraph (1) for employees only 
        pursuant to the following:
                    ``(A) Agreement or understanding.--The program may 
                be carried out only in accordance with--
                            ``(i) applicable provisions of a collective 
                        bargaining agreement between the employer and 
                        the labor organization that has been certified 
                        or recognized as the representative of the 
                        employees under applicable law; or
                            ``(ii) in the case of an employee who is 
                        not represented by a labor organization 
                        described in clause (i), a written agreement 
                        arrived at between the employer and employee 
                        before the performance of the work involved if 
                        the agreement or understanding was entered into 
                        knowingly and voluntarily by such employee and 
                        was not a condition of employment.
                    ``(B) Statement.--The program shall apply to an 
                employee described in subparagraph (A)(ii) if such 
                employee has affirmed, in a written statement that is 
                made, kept, and preserved in accordance with section 
                11(c), that the employee has chosen to participate in 
                the program.
                    ``(C) Minimum service.--No employee may 
                participate, or agree to participate, in the program 
                unless the employee has been employed for at least 12 
                months by the employer, and for at least 1,250 hours of 
                service with the employer during the previous 12-month 
                period.
            ``(3) Compensation for hours in schedule.--Notwithstanding 
        section 7, in the case of an employee participating in such a 
        biweekly work program, 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.
            ``(4) Computation of overtime.--All hours worked by the 
        employee 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 the employer, shall be overtime hours.
            ``(5) 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.
            ``(6) Discontinuance of program or withdrawal.--
                    ``(A) Discontinuance of program.--An employer that 
                has established a biweekly work program under paragraph 
                (1) may discontinue the program for employees described 
                in paragraph (2)(A)(ii) after providing 30 days' 
                written notice to the employees who are subject to an 
                agreement or understanding described in paragraph 
                (2)(A)(ii).
                    ``(B) Withdrawal.--An employee may withdraw an 
                agreement or understanding described in paragraph 
                (2)(A)(ii) at the end of any 2-week period described in 
                paragraph (1)(A), by submitting a written notice of 
                withdrawal to the employer of the employee.
    ``(c) Prohibition of Coercion.--
            ``(1) In general.--An employer shall 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 the employee under this 
        section to elect or not to elect to work a biweekly work 
        schedule.
            ``(2) Definition.--In paragraph (1), 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).
    ``(d) Definitions.--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 labor organization 
        that has been certified or recognized as the representative of 
        the employees of the employer under applicable law 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 shall 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) Employee.--The term `employee' means an individual--
                    ``(A) who is an employee (as defined in section 3);
                    ``(B) who is not an employee of a public agency; 
                and
                    ``(C) to whom section 7(a) applies.
            ``(5) Employer.--The term `employer' does not include a 
        public agency.
            ``(6) Overtime hours.--The term `overtime hours', 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.
            ``(7) Regular rate.--The term `regular rate' has the 
        meaning given the term in section 7(e).''.
    (b) Remedies.--
            (1) Prohibitions.--Section 15(a)(3) of the Fair Labor 
        Standards Act of 1938 (29 U.S.C. 215(a)(3)) is amended--
                    (A) by inserting ``(A)'' after ``(3)'';
                    (B) by adding ``or'' after the semicolon; and
                    (C) by adding at the end the following:
            ``(B) to violate any of the provisions of section 13A;''.
            (2) Remedies and sanctions.--Section 16 of the Fair Labor 
        Standards Act of 1938 (29 U.S.C. 216), as amended in section 
        2(b), is further amended--
                    (A) in subsection (c)--
                            (i) in the first sentence--
                                    (I) by inserting after ``7 of this 
                                Act'' the following: ``, or of the 
                                appropriate legal or monetary equitable 
                                relief owing to any employee or 
                                employees under section 13A''; and
                                    (II) by striking ``wages or unpaid 
                                overtime compensation and'' and 
                                inserting ``wages, unpaid overtime 
                                compensation, or legal or monetary 
                                equitable relief, as appropriate, 
                                and'';
                            (ii) in the second sentence, by striking 
                        ``wages or overtime compensation and'' and 
                        inserting ``wages, unpaid overtime 
                        compensation, or legal or monetary equitable 
                        relief, as appropriate, and''; and
                            (iii) in the third sentence--
                                    (I) by inserting after ``first 
                                sentence of such subsection'' the 
                                following: ``, or the second sentence 
                                of such subsection in the event of a 
                                violation of section 13A,''; and
                                    (II) by striking ``wages or unpaid 
                                overtime compensation under sections 6 
                                and 7 or'' and inserting ``wages, 
                                unpaid overtime compensation, or legal 
                                or monetary equitable relief, as 
                                appropriate, or'';
                    (B) in subsection (e)--
                            (i) in the second sentence, by striking 
                        ``section 6 or 7'' and inserting ``section 6, 
                        7, or 13A''; and
                            (ii) in the fourth sentence, in paragraph 
                        (3), by striking ``15(a)(4) or'' and inserting 
                        ``15(a)(4), a violation of section 15(a)(3)(B), 
                        or''; and
                    (C) by adding at the end the following:
    ``(g)(1) In addition to any amount that an employer is liable under 
the second sentence of subsection (b) for a violation of a provision of 
section 13A, an employer that violates section 13A(c) shall be liable 
to the employee affected for an additional sum equal to that amount.
    ``(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.''.
    (c) Notice to Employees.--Not later than 30 days after the date of 
enactment of this Act, the Secretary of Labor shall revise the 
materials the Secretary provides, under regulations contained in 
section 516.4 of title 29, Code of Federal Regulations, to employers 
for purposes of a notice explaining the Fair Labor Standards Act of 
1938 (29 U.S.C. 201 et seq.) to employees so that the notice reflects 
the amendments made to the Act by this section.

SEC. 4. PROTECTIONS FOR CLAIMS RELATING TO COMPENSATORY TIME OFF IN 
              BANKRUPTCY PROCEEDINGS.

    Section 507(a)(3) of title 11, United States Code, is amended--
            (1) by striking ``for--'' and inserting the following: ``on 
        the condition that all accrued compensatory time off (as 
        defined in section 7 of the Fair Labor Standards Act of 1938 
        (29 U.S.C. 207)) shall be deemed to have been earned within 90 
        days before the date of the filing of the petition or the date 
        of the cessation of the debtor's business, whichever occurs 
        first, for--''; and
            (2) in subparagraph (A), by inserting before the semicolon 
        the following: ``or the value of unused, accrued compensatory 
        time off (as defined in section 7 of the Fair Labor Standards 
        Act of 1938 (29 U.S.C. 207))''.

SEC. 5. CONGRESSIONAL COVERAGE.

    Section 203 of the Congressional Accountability Act of 1995 (2 
U.S.C. 1313) is amended--
            (1) in subsection (a)--
                    (A) in paragraph (1), by striking ``and section 
                12(c)'' and inserting ``section 12(c), and section 
                13A''; and
                    (B) by striking paragraph (3);
            (2) in subsection (b)--
                    (A) by striking ``The remedy'' and inserting the 
                following:
            ``(1) In general.--Except as provided in paragraphs (2) and 
        (3), the remedy''; and
                    (B) by adding at the end the following:
            ``(2) Compensatory time.--The remedy for a violation of 
        subsection (a) relating to the requirements of section 7(r) of 
        the Fair Labor Standards Act of 1938 (29 U.S.C. 207(r)) shall 
        be such remedy as would be appropriate if awarded under 
        subsection (b) or (f) of section 16 of such Act (29 U.S.C. 
        216).
            ``(3) Biweekly work programs.--The remedy for a violation 
        of subsection (a) relating to the requirements of section 13A 
        of the Fair Labor Standards Act of 1938 shall be such remedy as 
        would be appropriate if awarded under sections 16 and 17 of 
        such Act (29 U.S.C. 216, 217) for such a violation.''; and
            (3) in subsection (c), by striking paragraph (4).

SEC. 6. TERMINATION.

    The authority provided by this Act and the amendments made by this 
Act terminates 5 years after the date of enactment of this Act.
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