[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1274 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 1274
To permit employees to request, and to ensure employers consider
requests for, flexible work terms and conditions, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 3, 2009
Mrs. Maloney (for herself, Mr. George Miller of California, Mr. Lewis
of Georgia, and Mr. Cummings) introduced the following bill; which was
referred to the Committee on Education and Labor, and in addition to
the Committees on Oversight and Government Reform, House
Administration, and the Judiciary, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To permit employees to request, and to ensure employers consider
requests for, flexible work terms and conditions, 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 ``Working Families Flexibility Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Employee.--The term ``employee'' means an individual--
(A) who is--
(i)(I) an employee (including an
applicant), as defined in section 3(e) of the
Fair Labor Standards Act of 1938 (29 U.S.C.
203(e)), who is not covered under any of
clauses (ii) through (v), including such an
employee of the Library of Congress, except
that a reference in such section to an employer
shall be considered to be a reference to an
employer described in clauses (i)(I) and (ii)
of paragraph (2)(A); or
(II) an employee (including an applicant)
of the Government Accountability Office;
(ii) a State employee (including an
applicant) described in section 304(a) of the
Government Employee Rights Act of 1991 (42
U.S.C. 2000e-16c(a));
(iii) a covered employee (including an
applicant), as defined in section 101 of the
Congressional Accountability Act of 1995 (2
U.S.C. 1301);
(iv) a covered employee (including an
applicant), as defined in section 411(c) of
title 3, United States Code; or
(v) a Federal officer or employee
(including an applicant) covered under
subchapter V of chapter 63 of title 5, United
States Code; and
(B) who works an average of at least 20 hours per
week or, in the alternative, at least 1,000 hours per
year.
(2) Employer.--
(A) In general.--The term ``employer'' means a
person who is--
(i)(I) a covered employer, as defined in
subparagraph (B), who is not covered under any
of subclauses (II) through (V);
(II) an entity employing a State employee
described in section 304(a) of the Government
Employee Rights Act of 1991;
(III) an employing office, as defined in
section 101 of the Congressional Accountability
Act of 1995;
(IV) an employing office, as defined in
section 411(c) of title 3, United States Code;
or
(V) an employing agency covered under
subchapter V of chapter 63 of title 5, United
States Code; and
(ii) is engaged in commerce (including
government), in the production of goods for
commerce, or in an enterprise engaged in
commerce (including government) or in the
production of goods for commerce.
(B) Covered employer.--
(i) In general.--In subparagraph (A)(i)(I),
the term ``covered employer''--
(I) means any person engaged in
commerce or in any industry or activity
affecting commerce who employs 15 or
more employees for each working day
during each of 20 or more calendar
workweeks in the current or preceding
calendar year;
(II) includes--
(aa) any person who acts,
directly or indirectly, in the
interest of such an employer to
any of the employees of such
employer; and
(bb) any successor in
interest of such an employer;
and
(III) includes an agency described
in clause (iii) or (iv) of subparagraph
(A) of section 101(4) of the Family and
Medical Leave Act of 1993 (29 U.S.C.
2611(4)), to which subparagraph (B) of
such section shall apply.
(ii) Definitions.--For purposes of this
subparagraph:
(I) Commerce.--The terms
``commerce'' and ``industry or activity
affecting commerce'' have the meanings
given the terms in section 101 of such
Act (29 U.S.C. 2611).
(II) Employee; person.--The terms
``employee'' and ``person'' have the
meanings given such terms in section 3
of the Fair Labor Standards Act of 1938
(29 U.S.C. 203).
(C) Predecessors.--Any reference in this paragraph
to an employer shall include a reference to any
predecessor of such employer.
(3) Secretary.--The term ``Secretary'' means the Secretary
of Labor.
SEC. 3. STATUTORY RIGHT TO REQUEST FLEXIBLE WORK TERMS AND CONDITIONS.
(a) In General.--An employee may apply to the employee's employer
for a change in the employee's terms or conditions of employment if the
change relates to--
(1) the number of hours the employee is required to work;
(2) the times when the employee is required to work; or
(3) where the employee is required to work.
(b) Contents.--An application submitted under this section shall--
(1) state that the application is an application described
in subsection (a);
(2) specify the change applied for and the date on which
the employee requests that the change become effective; and
(3) explain what effect, if any, the employee thinks the
change applied for would have on the employer and how, in the
employee's opinion, any such effect might be dealt with.
(c) Submissions.--
(1) Period between submissions.--If an employee, who has
submitted an application under this section to an employer,
submits a further application under this section to the same
employer before the end of the period of 12 months beginning
with the date on which the previous application was submitted,
that further application shall not be covered by section 4.
(2) Form and timing.--The Secretary shall by regulation
specify--
(A) the form of applications submitted under this
section; and
(B) when such an application shall be considered to
be submitted.
SEC. 4. EMPLOYER'S DUTIES IN RELATION TO APPLICATIONS.
(a) In General.--An employer to whom an employee submits an
application under section 3 shall consider the application in
accordance with regulations issued by the Secretary.
(b) Regulations.--Regulations issued under subsection (a)--
(1) shall include provisions that provide--
(A) that the employer and the employee shall hold a
meeting to discuss an application submitted under
section 3 within 14 days after the date of submission;
(B) that the employer shall give the employee a
written decision regarding the application within 14
days after the date of the meeting described in
subparagraph (A);
(C) that a decision under subparagraph (B) to
reject the application shall state the grounds for the
decision, including whether those grounds included--
(i) the identifiable cost of the change in
a term or condition of employment requested in
the application, including the costs of loss of
productivity, of retraining or hiring
employees, or of transferring employees from 1
facility to another facility;
(ii) the overall financial resources
involved;
(iii) for an employer with multiple
facilities, the geographic separateness or
administrative or fiscal relationship of the
facilities;
(iv) the effect of the change on the
employer's ability to meet customer demand; or
(v) other factors specified by the
Secretary in regulation;
(D) that if the employer rejects the employee's
application, the employer may propose in writing an
alternative change to the employee's hours, times, and
place of work;
(E) that if the employee is dissatisfied with the
employer's decision under subparagraph (B) and the
alternative described in subparagraph (D), the employee
has the right to request reconsideration of the
decision within 14 days after the later of--
(i) the date on which the employer gives
the employee the decision under subparagraph
(B); and
(ii) if applicable, the date on which the
employer proposes the alternative described in
subparagraph (D);
(F) for procedures for exercising the right to
request reconsideration described in subparagraph (E),
including procedures requiring the employee to set out
the grounds for reconsideration, including any
inaccuracies or misstatements that the employee
contends were in the employer's decision;
(G) that the decision under subparagraph (B) shall
include such information as the regulations shall
specify relating to the right to request
reconsideration under subparagraph (E);
(H) that the employer and the employee shall hold a
meeting to discuss the request for reconsideration
described in subparagraph (E) within 14 days after the
date on which the employee gives notice of the request
for reconsideration to the employer;
(I) that the employer shall give the employee a
written decision regarding the request for
reconsideration within 14 days after the date of the
meeting described in subparagraph (H);
(J) that a decision under subparagraph (I) to deny
the request for reconsideration shall state the grounds
for the decision, including whether those grounds
included the factors described in clauses (i) through
(v) of subparagraph (C);
(K) that a statement made under subparagraph (C) or
(J) shall contain a sufficient explanation of the
grounds for the decision involved;
(L) that the employee shall have a right to be
accompanied at meetings described in subparagraph (A)
or (H) by a representative of the employee's choosing
with such qualifications as the regulations shall
specify; and
(M) that if such a representative of the employee's
choosing is not available to attend a meeting described
in subparagraph (A) or (H), the meeting shall be
postponed;
(2) may include provisions that provide--
(A) that any requirement of the regulations shall
not apply in a case in which such an application is
disposed of by agreement or withdrawn;
(B) for extension of a time limit in a case in
which the employer and employee agree, or in such other
circumstances as the regulations may specify; and
(C) for applications to be treated as withdrawn in
specified circumstances; and
(3) may include different provisions for different cases or
circumstances.
SEC. 5. PROHIBITED ACTS.
(a) Interference With Rights.--It shall be unlawful for any
employer to interfere with, restrain, or deny the exercise of, or the
attempt to exercise, any right provided under this Act.
(b) Interference With Application, Proceedings, or Inquiries.--It
shall be unlawful for any employer to discharge or in any other manner
discriminate against any individual because such individual--
(1) has submitted (or attempted to submit) an application
under section 3;
(2) has filed an action, or has instituted or caused to be
instituted any proceeding, under or related to this Act;
(3) has given, or is about to give, any information in
connection with any inquiry or proceeding relating to any right
provided under this Act;
(4) has testified, or is about to testify, in any inquiry
or proceeding relating to any right provided under this Act;
(5) has opposed any practice made unlawful by this Act; or
(6) has in any other way exercised or attempted to exercise
any right provided under this Act.
SEC. 6. ENFORCEMENT.
(a) Definitions.--Except as provided in subsection (d), in this
section:
(1) Employee.--The term ``employee'' means an employee
described in clause (i) or (ii) of section 2(1)(A).
(2) Employer.--The term ``employer'' means an employer
described in subclause (I) or (II) of section 2(2)(A)(i).
(b) General Authority.--The provisions of this Act may be enforced
pursuant to the following provisions:
(1) Investigation and assessment.--An employee who is
affected by a violation of a right in section 5 (including a
violation relating to a right provided under section 3 or 4)
may make a complaint to the Administrator of the Wage and Hour
Division of the Employment Standards Administration of the
Department of Labor, alleging that the employer involved has
violated section 5. The Administrator shall investigate, and
may issue an order making determinations, and assessing a civil
penalty described in section 7(a)(1) or awarding relief
described in section 7(a)(2), as appropriate, with respect to
the alleged violation.
(2) Administrative hearing.--An affected person who takes
exception to an order issued under paragraph (1) may request an
administrative hearing concerning the order under procedures
established by the Secretary that comply with the requirements
of sections 554, 556, and 557 of title 5, United States Code,
and regulations promulgated by the Secretary. Such hearing
shall be conducted expeditiously. If no affected person
requests the hearing within 60 days after the order is issued
under paragraph (1), the order shall be deemed to be a final
order that is not subject to judicial review.
(3) Enforcement.--The amount of any penalty assessed
against an employer under this subsection, when finally
determined, may be--
(A) deducted from any sums owed by the United
States to the employer; or
(B) recovered in a civil action brought against the
employer by the Secretary in any court of competent
jurisdiction.
(4) Civil action.--An affected person desiring review of an
order issued under paragraph (2) (other than a nonreviewable
order) may file a petition for review in an appropriate Federal
court of appeals.
(5) Civil action by the secretary for injunctive relief.--
The Secretary may bring an action for a violation described in
paragraph (1) in a district court of the United States to
obtain the injunctive relief described in section 7(b).
(c) Government Accountability Office and Library of Congress.--
Notwithstanding any other provision of this section, the Secretary is
authorized to enter into agreements with the Librarian of Congress and
the Comptroller General of the United States with respect to
individuals employed in the Library of Congress and the Government
Accountability Office, respectively, to provide for the carrying out of
functions of the Secretary under subsection (b) with respect to such
individuals.
(d) Other Employees.--
(1) Employees covered by congressional accountability act
of 1995.--Notwithstanding any other provision of this section
or section 7, the powers, remedies, and procedures provided in
the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et
seq.) to the Board (as defined in section 101 of that Act (2
U.S.C. 1301)), or any person, alleging a violation of section
202(a)(1) of that Act (2 U.S.C. 1312(a)(1)) shall be the
powers, remedies, and procedures this Act provides to that
Board, or any person, alleging an unlawful employment practice
in violation of this Act against an employee described in
section 2(1)(A)(iii).
(2) Employees covered by chapter 5 of title 3, united
states code.--Notwithstanding any other provision of this
section or section 7, the powers, remedies, and procedures
provided in chapter 5 of title 3, United States Code, to the
President, the Merit Systems Protection Board, or any person,
alleging a violation of section 412(a)(1) of that title, shall
be the powers, remedies, and procedures this Act provides to
the President, that Board, or any person, respectively,
alleging an unlawful employment practice in violation of this
Act against an employee described in section 2(1)(A)(iv).
(3) Employees covered by chapter 63 of title 5, united
states code.--Notwithstanding any other provision of this
section or section 7, the powers, remedies, and procedures
provided in title 5, United States Code, to an employing
agency, provided in chapter 12 of that title to the Merit
Systems Protection Board, or provided in that title to any
person, alleging a violation of chapter 63 of that title, shall
be the powers, remedies, and procedures this Act provides to
that agency, that Board, or any person, respectively, alleging
an unlawful employment practice in violation of this Act
against an employee described in section 2(1)(A)(v).
SEC. 7. REMEDIES.
(a) Administrative Proceedings and Actions for Review.--
(1) Interference with exercise of rights.--In an action
brought under paragraph (1), (2), or (4) of section 6(b), an
employer who violates the provisions of section 5(a) (including
a violation relating to a right provided under section 3 or 4)
shall be subject to a civil penalty of not less than $1000 and
not more than $5,000 for each employee who was the subject of
such a violation.
(2) Retaliation.--In an action brought under paragraph (1),
(2), or (4) of section 6(b), if an employer violates section
5(b), the employee who is affected by the violation or the
Secretary, as appropriate, may obtain an order awarding such
equitable relief as may be appropriate, including employment,
reinstatement, promotion, back pay, and a change in the terms
or conditions of employment.
(b) Civil Action by the Secretary for Injunctive Relief.--In an
action brought under section 6(b)(5), the Secretary may obtain an
order--
(1) restraining violations of section 5 (including a
violation relating to a right provided under section 3 or 4);
or
(2) awarding such other equitable relief as may be
appropriate, including employment, reinstatement, promotion,
back pay, and a change in the terms or conditions of
employment.
SEC. 8. NOTICE.
(a) In General.--Each employer shall post and keep posted, in
conspicuous places on the premises of the employer where notices to
employees and applicants for employment are customarily posted, a
notice, to be prepared or approved by the Secretary (or the appropriate
officer specified in section 12(a), as applicable), setting forth
excerpts from, or summaries of, the pertinent provisions of this Act
and information pertaining to the filing of a complaint under section
6(b).
(b) Penalty.--Any employer that willfully violates this section may
be assessed a civil money penalty not to exceed $500 for each separate
offense.
SEC. 9. RECORDKEEPING.
Any employer shall make, keep, and preserve records pertaining to
compliance with this Act in accordance with regulations issued under
section 12.
SEC. 10. RESEARCH, EDUCATION, AND TECHNICAL ASSISTANCE PROGRAM.
(a) In General.--The Secretary (and each officer specified in
section 12(a), as applicable) shall provide information and technical
assistance to employers, labor organizations, and the general public
concerning compliance with this Act.
(b) Program.--In order to achieve the objectives of this Act, the
Secretary (and each officer specified in section 12(a), as applicable)
shall carry on a continuing program of research, education, and
technical assistance, including--
(1) conducting and promoting research with the intent of
encouraging flexibility in work terms and conditions;
(2) publishing and otherwise making available to employers,
labor organizations, professional associations, educational
institutions, the various communication media, and the general
public the findings of studies and other materials for
promoting compliance with this Act;
(3) sponsoring and assisting State and community
informational and educational programs; and
(4) providing technical assistance to employers, labor
organizations, professional associations, and other interested
persons on means of achieving and maintaining compliance with
the provisions of this Act.
SEC. 11. RIGHTS RETAINED BY EMPLOYEES.
Nothing in this Act shall be considered to diminish the rights,
privileges, or remedies of any employee under any Federal or State law,
or under a collective bargaining agreement.
SEC. 12. APPLICATION OF PROVISIONS.
(a) Application to Classes of Employees.--Not later than 120 days
after the date of enactment of this Act--
(1)(A) except as provided in subparagraph (B), the
Secretary shall issue such regulations as are necessary to
carry out this Act with respect to employees described in
clause (i) or (ii) of section 2(1)(A); and
(B) the Comptroller General of the United States and the
Librarian of Congress shall issue such regulations as are
necessary to carry out this Act with respect to employees of
the Government Accountability Office and the Library of
Congress, respectively;
(2) the Board of Directors of the Office of Compliance
shall issue (in accordance with section 304 of the
Congressional Accountability Act of 1995 (2 U.S.C. 1384)) such
regulations as are necessary to carry out this Act with respect
to employees described in section 2(1)(A)(iii);
(3) the President (or the designee of the President) shall
issue such regulations as are necessary to carry out this Act
with respect to employees described in section 2(1)(A)(iv); and
(4) the Director of the Office of Personnel Management
shall issue such regulations as are necessary to carry out this
Act with respect to employees described in section 2(1)(A)(v).
(b) Transitional Provisions.--A regulation issued under subsection
(a) may contain such transitional provisions as the Secretary
determines to be appropriate in connection with the application of any
of the provisions of this Act.
SEC. 13. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out this Act such
sums as may be necessary for fiscal year 2010 and each subsequent
fiscal year.
SEC. 14. EFFECTIVE DATE.
(a) In General.--This Act takes effect 6 months after the date of
enactment of this Act, except as provided in subsection (b).
(b) Collective Bargaining Agreements.--In the case of a collective
bargaining agreement in effect on the effective date prescribed by
subsection (a), this Act shall apply on the earlier of--
(1) the date of the termination of such agreement; or
(2) the date that occurs 12 months after the date of
enactment of this Act.
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