[Congressional Record Volume 143, Number 4 (Tuesday, January 21, 1997)]
[Senate]
[Pages S221-S225]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By 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):
  S. 4. 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; to the Committee on Labor and Human Resources.


                   the family friendly workplace act

  Mr. ASHCROFT. Mr. President, I am delighted to have the opportunity 
to file, in conjunction with Senators Hutchison, Lott, Nickles, Craig, 
Collins, Enzi, Grassley, Coats, Warner, Helms, B. Smith, and Gramm, the 
Family Friendly Workplace Act. This is an important piece of 
legislation, which should free our families from inflexible work 
schedules in order to meet the competing demands of the workplace and 
their families.
  This demand for our time, which stresses us and stretches us, has 
been recognized by people on both sides of the political aisle. As a 
matter of fact, the Clinton administration's Labor Department developed 
a report to the Nation and to the President called ``Working Women 
Count.'' In order to do so, they surveyed hundreds of thousands of 
working women. And the conclusion of the report is as follows:
  The number one issue women want to bring to the President's attention 
is the difficulty of balancing work and family obligations.
  The Family Friendly Workplace Act is a way of helping people do just 
that--meet their responsibilities to their employers and meet their 
responsibilities to their families. Frankly, it is a way of doing it 
without taking a pay cut.
  Now, some have suggested that the way to do this is to have a family 
leave policy that allows workers to simply take time off work without 
pay. Well, that really exacerbates some of the tension in most of our 
families, because we have financial tension as well as this social 
tension that stretches us between the workplace and the home place. And 
so, really, what we have in the Family Friendly Workplace Act is the 
ability to have flexible working schedules at the option of the 
employee and at the request of the employee, when the employer will 
agree, that allows a person, for instance, to take time off on Friday 
afternoon and to make it up on Monday.
  Most Americans don't realize it, but it is against the law for an 
employer to agree with his employee that the employee can take time off 
on Friday afternoon to see his daughter get an award at the local high 
school and to make up that same time on Monday. The strict laws about 
hours and overtime make it difficult for that to happen, make it 
impossible, make it illegal.
  Those laws were developed in the 1930's. They put a lot of stress on 
American families. In the 1930's, we didn't have so many working 
mothers. One out of every 6 mothers of school-aged children worked in 
the 1930's, and well over 70 percent of them work in the 1990's. As we 
move to the next century, it is time for us to revamp our approach and 
to welcome the next century by accommodating these competing demands.
  Flexible work arrangements have been available to Federal Government 
workers since 1978--in the 1970's, 1980's, and 1990's, Government 
workers have had a special privilege. The Federal program has been so 
successful that the President of the United States, by Executive order 
in 1993 extended it to parts of the Federal Government that had not yet 
had the benefits of that program. It is high time that the workers in 
the private sector of this country enjoy the same benefits of agreeing 
with their employers on flexible working arrangements at the option of 
the worker, never to be imposed by the employer, which would allow the 
worker to accommodate the competing needs and demands of family and the 
workplace.
  Allowing workplace flexibility is a tremendous step forward. It has 
been asked for by the women of America as reflected in the Clinton 
administration document. It has been written about, like this Time 
Magazine article featuring the difficulties of Lori Lucas, a single 
mother, working full-time in Shrewsbury, Missouri. The President of the 
United States has talked about flextime and the need to have it, and it 
is time for us to deliver it to the American people--albeit 15 or more 
years after we delivered it to the workers in the Federal Government.
  I believe that working women know what they need. Working Women 
Magazine and Working Mother magazines have endorsed it, and is time to 
have those flexible working arrangements. Working Women Magazine said 
in its support of this legislation, that it is time for Congress to 
give women what they want, and not what you Congress thinks they need.
  Similarly, when parents spend time at work, they can never replace 
that

[[Page S222]]

time with their families no matter how much overtime they may bring 
home. Sometimes people would like, instead of being paid time and a 
half for overtime, to take time and a half off sometime later in order 
to spend time with their families. That is another part of this bill--
to allow people to take as compensation for overtime--compensatory time 
instead of money. While it would allow a worker to ask for the money, 
the worker would have a complete, unchallenged and unfettered right to 
be paid money for the overtime.
  This bill is really designed to give workers choices and the 
opportunity to choose to be with their families instead of being forced 
to take their overtime in money. For some workers, there comes a point 
when no matter how much money they have, they simply want and need to 
be able to spend some time with their families.
  I am delighted that I have been joined in this particular endeavor in 
developing this legislation by one of the individuals who is most 
careful regarding the rights, options and choices of individuals not 
only in the workplace but as American citizens. I would like to yield 
to the Senator from Texas, Senator Hutchison, who is the primary 
cosponsor of this legislation, the Family Friendly Workplace Act, and 
to call upon her for remarks.
  The PRESIDING OFFICER (Mr. Frist). The Senator from Texas is 
recognized.
  Mrs. HUTCHISON. Thank you, Mr. President. I thank the Senator from 
Missouri for providing leadership on this very important issue. He was 
out there fighting for this issue from the first day he came to the 
Senate, and he has certainly demonstrated his commitment to family 
flexibility throughout his Government career.
  I am reminded of the speech that I heard my friend, Congresswoman 
Susan Molinari, give this summer. Congresswoman Molinari is a working 
mom. She says what we need most as working moms in this country is more 
hours in the day. Senator Ashcroft and I would like to provide more 
hours in the day. That is not an option for us. But we are going to do 
something that we think will be second best to producing more hours in 
a day for a working mom or a working dad who wants to work or is forced 
to work to make ends meet, either way, but yet also wants more time 
with his or her children.
  This bill will primarily benefit the hourly employees in our country. 
Because salaried employees are presently exempt from many federal wage 
and hour laws, this is not as much an issue for them. They and their 
employers are able to work out flexible work arrangements. But in the 
hourly category, employers and employees do not have that option. They 
are not able to do what anybody would think in this country is common 
sense; and that is sit down and say, ``Could I work 2 extra hours on 
Friday in order to take off at 3 o'clock to go to the PTA meeting on 
Monday?'' That is what Senator Ashcroft and I would like to do with the 
Family Friendly Workplace Act that we have introduced today.
  It is a fact that in two-thirds of the households in this country, 
both the mother and the father are working. In fact, 75 percent of the 
mothers of young children are now in the workplace. So we must address 
the ever-increasing demands on working moms and working dads--to allow 
them to have more time to do what they need to do to bring their 
families together and to keep them close-knit. This requires going to 
the PTA meetings, going to the afternoon basketball game, or to the 
soccer game, or whatever it is that will allow that family to bond 
together and maintain its strength, thereby strengthening our country. 
We all know that the family unit is the core strength of our nation, 
and if we allow that to deteriorate, then nothing else is going to 
matter. In the history of civilization, no country has ultimately 
survived where the family unit has deteriorated.
  That is why we are looking for creative ways to help the working 
family--and in this case it is the hourly wage working families who are 
struggling the hardest to make ends meet--to be able to do what they 
need to do for their families while maintaining a good working 
relationship with their employers and preserving their family income.
  The bill that Senator Ashcroft and I are introducing today will 
relieve stress in the family by allowing the employer and the hourly 
employee to sit down and negotiate to, for example, take off two hours 
today and work an additional two hours the following week, or perhaps 
to work an extra hour every day and bank that time for use when a 
family need arises, or to work required overtime and have a choice 
about whether they take time-and-a-half compensation or time and a half 
hours because then they can bank that time and do even more with their 
families.
  In fact, there was a poll conducted by Penn & Shoen and Associates 
that revealed that 75 percent of all employees would like to have the 
ability to choose between getting time-and-a-half in either wages or 
time. Fifty-seven percent would take time off instead of being paid, if 
the option were available.
  So why not make these options available? The Family Friendly 
Workplace Act makes these options available, on a totally voluntary 
basis. There are strict requirements in this law that will keep 
employers from in any way requiring or coercing an employee to work and 
not take overtime pay. We want to make sure that does not happen. That 
is why the law is written very carefully to make sure that it could not 
happen, and that it will only give employees and employers the ability 
to voluntarily sit down and do what they think make sense for their 
schedules and needs.
  Let me also mention that where there are union agreements in effect, 
this law will not affect those agreements. This legislation does not 
encroach on the collective bargaining of unions in any way. Rather, it 
would apply to employees who are not in unions who now are restricted 
by a wage-and-hour law that says you cannot have the option of working 
a couple of hours on Friday in order to take off at 3 o'clock on 
Monday. That is exactly what Senator Ashcroft and I seek to enact with 
this legislation.
  I commend Senator Ashcroft for his leadership in this area. We are 
going to work with our colleagues on both sides of the aisle and on 
both sides of the Rotunda to enact this very important legislation. We 
must grant hourly wage employees who have families in this country and 
the same options that people on salaries and, indeed, that federal 
employees already have.
  Thank you, Mr. President. I yield back to the Senator from Missouri.
  Mr. ASHCROFT addressed the Chair.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. ASHCROFT. Mr. President, I thank the Senator from Texas for her 
sensitivity on this issue and for her commitment to it. I know she is 
dedicated to helping resolve this. There is simply no reason why the 
Government of the United States should put a barrier between the 
employers and employees of America who want to resolve stresses and 
strengths. We should have laws that allow people to reach these 
judgments about flexibly and allocating time, with adequate protection 
which are enforcement mechanisms through the Department of Labor.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                  S. 4

       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:

[[Page S223]]

       ``(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

[[Page S224]]

     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).''.
                                                                    ____

  Mr. JEFFORDS. Mr. President, I am pleased to rise in support of S. 4, 
the ``Family Friendly Workplace Act of 1997.'' This legislation is 
designed to address the very pressing and legitimate needs of working 
families for more flexibility in their workplaces.

[[Page S225]]

  We all know how difficult it is for working parents to balance the 
demands of work and family responsibilities. There are soccer games, 
parent-teacher conferences, and doctor's appointments that demand a few 
hours of time during the workweek. Our workplace laws should allow 
workers the flexibility to work a few extra hours one week, in order to 
take time off later when they need to for family or personal reasons.
  Ironically, current law inhibits more flexible schedules and 
compensation programs. While this may come as a surprise, it is really 
not all that hard to understand why. The world of the workplace has 
undergone a revolution in the last 60 years.
  In the 1930's, as the Roosevelt administration and the Congress 
sought to establish minimum wage and overtime standards, the last thing 
on their minds was finding free time for workers. With as much as one-
third of the work force unemployed, the problem was far too much free 
time, not too little. The purpose of premium pay for overtime work was 
not to enrich already-employed workers, but to spread work to the 
unemployed, in effect reducing free time.
  The story of a woman from Poultney, Vermont, near my home town, 
brought this home to me. She was employed as a school teacher in the 
midst of the Depression, and had the further good fortune to fall in 
love and get married to a man who was also employed. Upon her marriage, 
she quickly resigned from her job. When asked why decades later, she 
explained it was simply understood that you would not have two full-
time jobs in one family.
  Such taboos today are little more than an interesting historical 
footnote. With the rise of single parent families and two-parent 
families in which both spouses work, it is incredibly difficult to 
balance the demands of work and family. That difficulty is increased by 
the Fair Labor Standards Act [FLSA] which was not designed with today's 
circumstances in mind. The law's minimum wage and overtime protections 
are just as important today as they were when enacted, but the law 
needs to be adjusted to the workplace of the 21st century.
  For example, the FLSA bars private employers from offering employees 
the choice of receiving overtime in the form of compensatory time off 
instead of cash wages. While Federal and public sector workers have had 
this option since 1985, private sector workers do not. Many employees 
do not necessarily want money as much as time to address family needs. 
A recent public opinion poll conducted by Penn & Schoen Associates 
found that workers strongly favor more flexibility in their work 
schedules. Seventy-five percent of those surveyed said they would 
prefer the option to choose to be compensated for overtime with 
compensatory time off or cash overtime.
  Now some of my colleagues may be familiar with what seems to be a 
contradictory poll conducted by Lake Research which found that nearly 
two-thirds of poll respondents opposed the policy we propose. Frankly, 
I would, too, if it was anything like what was described in the poll's 
question.
  The Lake Research poll describes compensatory time off as the 
employer's decision. It is not. It describes biweekly scheduling as the 
employer's decision. It is not. Indeed, the poll's question concludes 
by saying: Employers could schedule you to work 60 hours one week and 
20 hours the next, but you would not earn overtime pay. Do you support 
or oppose such a policy?
  It comes as no surprise that most people would not support such a 
policy. As my colleagues know, you can structure a question on a poll 
to yield just about any result you want. This is a pretty good example 
of just that.
  What is interesting to me is that even when faced with such a slanted 
presentation, one-third of the people either supported such a policy or 
were unsure. It stands to reason that when presented with the facts--
that is, that each of these proposals is predicated on the employee's 
decision, not the employer's--three quarters of Americans support 
having the option of taking time off instead of cash.
  This bill incorporates provisions which passed the House of 
Representatives last year that would allow the payment of overtime with 
compensatory time off at a rate of 1.5 hours for each hour worked over 
40 in a workweek. Just like in the public sector, however, no employee 
could be forced to accept comp time off instead of being paid for 
overtime. A written agreement between the employer and the employee is 
required, and there are strong penalties against any employer who 
coerces, intimidates, or threatens workers into accepting such an 
agreement.
  Not all employees want to work a traditional 8-hour day, 5 days a 
week, with no variation. Some employees would prefer to trade hours 
between weeks--e.g. work 45 hours one week, 35 hours the next and take 
every other Friday off--or shift to a schedule that compresses many 
hours at the front end of the week so that they can put together 
several days off later. However, companies would have to pay workers 
overtime for any hours over 40 in the first week, even if the employee 
would prefer to flex his or her schedule. Currently, only Federal 
workers can flex their schedules without their employer being subject 
to the overtime penalty.
  S. 4 would remove this limitation and permit employers and employees 
to mutually agree on a flexible, biweekly schedule consisting of any 
combination of 80 hours over a 2-week period. As with the comp time 
provisions, nothing would be forced upon the employer or the employee. 
If they agreed on such schedules, the employee could trade hours over a 
2-week period without violating the FLSA. Any hours in excess of 80 
hours would still be paid at 1.5 times the employee's regular rate of 
pay. If it's good enough for Federal workers, it's good enough for all 
workers.
  Finally, this bill corrects a flexibility problem for salaried 
workers in both the private and the public sectors. In many instances, 
salaried employees who want to take a few hours off for personal or 
family reasons must choose between two equally undesirable options: 
either to use a portion of their paid leave, that is, vacation or sick 
leave, or take a full day off without pay. If the employer grants an 
employee a few hours of unpaid leave--or merely has a policy which 
permits it--all the salaried employees may lose their exempt status 
under the FLSA.
  Thus, a policy that allows for a partial day of unpaid leave can 
convert an exempt worker to a nonexempt one who is then owed overtime, 
even if the worker has a six-figure income and is employed at the 
highest levels of the company. Multiply this over an entire salaried 
work force, and the liability to public and private employers soars 
into the billions of dollars.
  This bizarre situation does not apply, however, if an employee is 
taking leave pursuant to the Family and Medical Leave Act of 1993 
[FMLA]. This bill would merely extend this practice to accommodate the 
desire of many salaried employees to take time off for reasons other 
than family and medical leave, or for employees who work for small 
companies. In order to provide maximum flexibility to all salaried 
workers who wish to take partial day leave under any circumstances, 
this bill would clarify that salaried workers do not lose their exempt 
status under the FLSA as long as there has not been an actual reduction 
in pay. In effect, this provision would encourage the very type of 
leave that President Clinton feels needs to be accommodated in our 
workplace laws.
  Mr. President, the Senate Committee on Labor and Human Resources and 
its Subcommittee on Employment and Training, chaired by Senator DeWine, 
will thoroughly and deliverately review and debate these proposals in 
the coming weeks. I am hopeful that we will reach agreement on the need 
to provide workers with more flexibility in their work arrangements, 
and will pass legislation that will achieve this goal.
                                 ______