[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3840 Introduced in Senate (IS)]

111th CONGRESS
  2d Session
                                S. 3840

   To permit employees to request, and to ensure employers consider 
    requests for, flexible work terms and conditions, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 24, 2010

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

_______________________________________________________________________

                                 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 (including retaliating 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, in which action the Secretary shall be 
                represented by the Secretary of Labor.
            (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.
                                 <all>