[Congressional Record Volume 143, Number 60 (Friday, May 9, 1997)]
[Senate]
[Pages S4274-S4276]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     FAMILY FRIENDLY WORKPLACE ACT

  Mr. DeWINE. Mr. President, we have been this morning, now this 
afternoon, talking about the issue of the Family Friendly Workplace 
Act. I would like to spend just a few more minutes talking about this 
issue.
  We are proud, once again, to bring before the Senate this piece of 
legislation that we believe will help bring the American workplace into 
the 21st century. The Family Friendly Workplace Act will make our 
Nation's working environments more flexible, more productive and more 
hospitable to the changing needs of the American family.
  Last week, in my opening comments about this bill, I described what 
we discovered in the hearings, and I use the term ``discover'' rather 
loosely because, really, I think we all knew what we saw in those 
hearings, what we heard in the Senate Labor and Human Resources 
Committee. The testimony was very clear that the American workplace 
today is a dramatically different place than it was when the underlying 
bill was enacted 60 years ago.
  The facts are that the stereotypical roles of management and labor 
and of male and female workers really no longer apply. The testimony in 
front of our committee was that individual workers are too often faced 
with a brutal squeeze today, a squeeze between their duties at work, 
their obligations, and what they want to do with their families. This 
worker squeeze is so great that I believe it calls for immediate 
action. And this bill is that action.

  The static and outdated Fair Labor Standards Act that was enacted 
over 60 years ago must be modified, must be changed. It must be changed 
to allow American workers today the flexibility that they demand, the 
flexibility that they want.
  The facts are fairly clear. When the underlying legislation, the 
underlying bill was enacted in 1938, less than 16 percent of married 
women worked outside the home. Today, more than 60 percent of married 
women work outside the home. And 75 percent of mothers with school-aged 
children today work outside the home. And according to a survey 
conducted by the U.S. Department of Labor, Women's Bureau, the top 
concern--top concern--of working women is flexible scheduling in the 
workplace, flexible scheduling which will allow them to balance their 
responsibilities at work with the needs of their children and the needs 
of their families.
  The chart that is behind me depicts the pattern of change the 
American workplace has undergone over the last 25 years. ``The Changing 
Labor Force Trends of Families, 1940-1995.''
  Look at the complete contrast between the family structure today and 
the family structure as it existed in 1940--1940--only 2 years after 
the enactment of the Fair Labor Standards Act.
  In 1940, Mr. President, 67 percent of all families had a working 
husband and a wife who stayed at home, what we considered in those 
days, the typical family. At the same time, only 9 percent of families 
had two working spouses. And in 1940 only 5 percent of the families 
were actually headed by women.
  Clearly, this is no longer the case.
  By 1995, only 17 percent of families had a working husband and a wife 
who stayed at home. And 43 percent of American families had two working 
spouses. And 12 percent were actually families headed by women.
  Society, Mr. President, has changed. But the workplace, at least the 
laws governing the workplace, has not kept pace. I believe that 
Americans are crying out for relief. They are demanding of this 
Congress that we change the law, that we change the law to reflect the 
way people really live today.
  Take for example, the Morris family. Clayton Morris--father, 
husband--is a public employee. As a public employee he has the option 
of choosing compensatory time over traditional monetary overtime pay. 
He gets a choice which way he wants it. He is free to spend important 
extra time with his 2\1/2\-year-old son Domenic, while his wife Ann, a 
sales assistant for a Cleveland area business form company, cannot. She 
is prohibited by law from having that option.
  This is what Ann has said:

       He [referring to her husband Clayton] has the ability if he 
     works overtime to store [up] those hours . . . [he] can use 
     the stored comp time to be at home where he is needed. 
     [However, when] I need to be able to leave work, I end up 
     having to take sick time or vacation time to do that. [That's 
     what I have to do.] It would be really nice if I had a 
     flexible schedule [also].

  Mr. President, seemingly countless studies and surveys have pointed 
out time and time again that Americans overwhelmingly need, desire, 
want, and support a more flexible workplace schedule and the changes 
the Family Friendly Workplace Act would bring about.
  Let me take the opportunity now to highlight what this bill will do, 
S. 4, and explain briefly the different provisions of the bill.
  The first option of the bill we refer to as comptime. This allows 
workers to voluntarily--voluntarily--choose to take their overtime pay 
as time off instead of taking their overtime pay in money. They get the 
time off as opposed to taking the money. But it is the worker's choice.
  Under this bill, compensation in the form of compensatory time off is 
paid out at the same rate as an employee's normal rate of overtime pay. 
That is, one-half hour of compensatory time off for every hour of 
overtime worked.
  Mr. President, under this option employers and employees must agree 
to provide and receive, respectively, compensatory time in lieu of 
monetary overtime pay. It is an agreement, a voluntary agreement 
entered into by both

[[Page S4275]]

the employer and the employee, an agreement that does not take place 
under this bill or situation that does not take place unless both sides 
voluntarily say, ``That's what I want to do.''
  Union employees do this through the collective bargaining process. 
Nonunion employees must do so by agreement prior to the performance of 
the overtime worked. The employee must enter this agreement--this is 
from the bill--``knowingly and voluntarily.'' A nonunion employee's 
decision to participate in a compensatory time off program must be in 
writing or must be otherwise verifiable and kept by the employer, 
according to the Fair Labor Standards Act's recordkeeping provision.
  An employer may withdraw from his decision to provide a compensatory 
time off program by providing 30-day written notice to the 
participating employees. On the other hand, nonunion employees may 
withdraw by providing written notice to their employer. The terms of a 
union employee's withdrawal would be reflected in the collective 
bargaining agreement.

  Mr. President, upon an employer's discontinuance of this compensatory 
time off policy, or on the occasion of an employee's withdrawal, the 
resignation or termination, an employee is then entitled to the cash 
equivalent of any unused comptime hours. An employee under this bill 
may accrue up to 240 hours of compensatory time during a 12-month 
period. If after the 12-month period an employee has not used his 
accrued time, the employer has 31 days, under the bill, to remit the 
cash equivalent of those hours.
  An employee must be allowed to use any accrued comptime within a 
reasonable period, a reasonable period of time after the request is 
made provided that it does not duly disrupt the workplace.
  Under a compensatory time-off program, an employee enjoys the 
preexisting protections of the Fair Labor Standards Act. These are not 
impacted. The underlying bill is still there. And the underlying 
protections are still there.
  These protections include prohibitions against violation of section 
7, the FLSA discrimination provision, as well as S. 4's anticoercion 
provision. No employee may be coerced, intimidated, or threatened to 
accept or deny participation in any of the bill's flexible workplace 
options.
  To be absolutely perfectly clear, let me spell out what the penalties 
under this bill will be.
  First, S. 4, as an amendment to section 7(r), will enjoy the already 
established penalties provided in the Fair Labor Standards Act. This 
will obviously include the new amending provision in S. 4.
  The penalties are:
  First, the availability of criminal penalties in the event of a 
willful violation;
  Next, civil penalties in the event of repeated or willful violations;
  They will include the remittance of unpaid overtime compensation and 
liquidated damages;
  It will also include appropriate legal or equitable relief and 
liquidating damages for any retaliation by the employer against an 
employee who complains of or testifies about an employer's conduct, as 
well as attorney fees and costs to the employee who sues for 
retaliation.
  Additionally, the Secretary of Labor may take action to acquire the 
employee's unpaid overtime compensation and liquidated damages.
  As stated, in addition to the penalties already provided by the Fair 
Labor Standards Act for a violation of section 7(r), S. 4 provides 
additional penalties for direct and indirect intimidation, threats, and 
coercion. Furthermore, S. 4 dictates penalties for any violation of 
this anticoercion language.
  Further, this bill provides for unpaid overtime compensation and 
liquidated damages or injunctive relief should the Secretary be 
required to bring a cause of action against the employer.
  Mr. President, behind me is a picture, headlined ``Akron Beacon 
Journal,'' and ``A Juggling Act.'' It is a picture of a real family, 
the Morris family of Ohio, and a description that I think, in the 
story, tells the importance of this bill. I think this family 
demonstrates why we need to have this bill. Here is what it says:

       Ann Morris of Akron has to use vacation or sick days when 
     two-year-old Domenic is sick, while her husband Clayton has 
     the option of using comp time.

  That is what this bill is about, Mr. President. This bill is about 
some equity and equality in the workplace. Does it make any sense to 
have a law today, as we do, that says to an hourly worker, who doesn't 
work for the Government, the Federal Government is going to prohibit 
you and your employer from entering into agreements that are flexible 
and allow you to spend more time with your family? That is what current 
law says today.
  Current law discriminates against the person who works by the hour, 
and it says that in a business or in a shop, if there is a worker who 
works by the hour and right next to him or her is a worker who is paid 
salary, the person who is paid salary may have comp time or flextime, 
but the person who works by the hour is denied that. Does that make any 
sense?
  In the case of this family, the discrimination exists right in that 
family. The husband has these benefits, has these rights; yet, the 
Federal law says that the wife, the mother, can't have them. What this 
bill does is change that and eliminates that discrimination. It says to 
all American workers that whether you work for the Federal Government 
or don't, whether you work by the hour or are salaried, as long as the 
employer and employee both agree, voluntarily, you can do many 
different things in regard to flextime and comptime and making your 
life easier, making it better, accommodating the workplace rules to the 
way people have to live today.

  Mr. President, I began a few minutes ago, a discussion of the four 
principal parts of this bill. I talked about the comptime section. I 
now want to move to the second section of biweekly work schedules.
  Mr. President, let me turn to the biweekly work schedules. The second 
option this bill provides is the biweekly work schedules. Under this 
option, an employee may choose to work 80 hours over 2 weeks, in any 
combination that that employee works out with the employer. For 
example, a worker may choose to work 9 hour days but, every other 
Friday, get the whole Friday off. Maybe that worker wants to spend time 
with his or her children. Maybe they want to go hunting or fishing, or 
maybe they don't want to do anything. They have the right to make that 
agreement and have that long weekend. Biweekly work schedule programs 
are simply another way to ensure workplace flexibility. Biweekly work 
schedules enable employees to craft schedules that coordinate their 
work obligations to go along with their personal obligations.
  Mr. President, here is how it would work in practice. If an employer 
chooses to offer a biweekly schedule option, and if the employee elects 
to participate--it is purely voluntary--prior to each 2-week work 
period, the employer and employee will arrange a schedule for the 2-
week period. Regardless of how the hours are divided, the employee will 
be paid overtime for working over 80 hours during the 2-week period. 
Again, the decision is to be made together, mutually, voluntarily.
  Additionally, employees would be entitled to overtime for all hours 
worked that are outside that predetermined biweekly work schedule. For 
example, if an employee agrees to work 45 hours during the first week, 
35 hours during the second week, any hours worked above 45 in the first 
week would, of course, be overtime, and any hours worked over 35 during 
the second week would also be overtime, because that is what they had 
agreed on. Simply, Mr. President, if an employee is required to work 
any additional hours above the agreed-to schedule, he gets overtime.
  Let me turn to the third provision of this bill, flexible credit 
hours. The third option that this bill provides that is not provided 
under current law, Mr. President, is flexible credit hours. Under this 
option, an employee may choose to work additional hours. That is more 
than 40 hours, more than 40 hours a workweek in order to use these 
extra hours to shorten another week at a later date.

  Biweekly schedules and flexible credit hours provide flexibility to 
employees who may not traditionally work a great deal of overtime. The 
flexible credit hour program would give more employees a greater 
ability to balance work with family. A flexible credit

[[Page S4276]]

hour program would allow an employee to bank--``to bank''--up to 50 
hours over his or her regularly scheduled hours. The employee under 
this bill may use those banked hours at any future date to reduce the 
workday or a workweek.
  Mr. President, when used, the flexible credit hours represent time 
off from work at the employee's regular rate of pay. An employee must 
be allowed to use accrued credit hours within a reasonable period of 
time following his or her request, so long as doing so will not unduly 
disrupt the workplace.
  As is true with comptime and biweekly programs, an employer has the 
initial decision of whether to offer the flexible credit hour program 
at all. Then participation in a flexible credit hour program is, of 
course, voluntary on the employer's part and on the employee's part. An 
interested employee must elect to participate. If he or she does not, 
then the status quo under current law would be in effect.
  Mr. President, union employees can do this in accordance with their 
collective bargaining agreements. Nonunion employees must submit a 
written or otherwise verifiable statement acknowledging his or her 
participation in the program. The anticoercion remedy sanctions 
provision which we talked about before are applicable to the comptime 
and biweekly schedules and are also applicable to this flexible credit 
program as well.
  Mr. President, let me turn now to the fourth major provision of the 
bill clarifying Federal law.
  I have talked about the three chief options provided by the bill.
  Let me also point out in the interest of completeness that S. 4 also 
makes important clarifications in the regulations delineating the 
salary basis test. The bill makes it clear that the fact that a 
particular employee is subject to a deduction in pay for absence of 
less than a full workday or less than a full workweek may not be 
considered in determining whether that employee enjoys exempt status. 
Only actual reductions in pay may be considered.
  Mr. President, for more than five decades the ``subject to'' language 
generated little or no controversy. However, in recent years courts 
have begun to reinterpret the salary basis test. Seizing on the phrase 
``subject to'' in the regulations, large groups of employees have won 
multimillion-dollar judgments. These awards have been given in spite of 
the fact that many of the plaintiff employees have never actually 
experienced a pay reduction of any kind and have never expected to 
receive overtime pay in addition to their executive, administrative, or 
professional salaries.
  Mr. President, included in this bill--in part to stop the large 
number of cases that are being brought against State and local 
governments--it is true that the Department of Labor attempted to solve 
this problem through regulations as they applied to State and local 
employees in 1992. This legislation in no way preempts those 
regulations.
  The legislation also clarifies that employers may give bonuses and 
may give overtime payments to salaried employees without destroying 
their exemption from FLSA.
  In summary, Mr. President, let me talk again briefly about the four 
provisions.
  Comptime, first of all, allows workers to voluntarily choose to take 
their overtime pay as time off instead of as overtime pay.
  Biweekly schedules, the second provision, allows workers to choose to 
work their 80 hours for 2 weeks in any combination that they so elect 
and if they agree with their employer.
  Flexible credit hours, the third provision, allows workers to choose 
to work additional hours and to bank these hours for use as time off at 
some point in the future.
  All of these flexible workplace options are designed to expand the 
choices available to working families. They are, Mr. President, 
completely voluntary. No employee can be forced to participate in a 
flexible workplace option. No employer can be forced to offer one. If 
any employer directly or indirectly coerces employees to participate in 
a particular option, the employer can be punished under the Fair Labor 
Standards Act, be forced to pay back wages, and maybe even face 
imprisonment.
  Mr. President, that is what the bill would accomplish.
  This bill would accomplish a real change for the betterment of the 
lives of working families, and the American people absolutely agree 
with this. A national poll conducted in September 1995 shows that the 
American work force endorses flexible work options. When asked, Mr. 
President, about a proposal to allow hourly employees the choice of 
time and a half in wages or time off with pay, 75 percent of the 
workers agree with that proposal; 65 percent said they favored more 
flexible work schedules.
  Mr. President, according to a poll recently taken, 88 percent of all 
workers want more flexibility, either through scheduling flexibility or 
choice of compensatory time in lieu of traditional overtime pay. In 
that same poll, 75 percent of the workers favored changes in the law 
that would permit hourly workers such a choice. The evidence is 
overwhelming about what the American workers want.

  I think these poll results square with what most of us know, frankly, 
intuitively. As both the economy and the American family and life grow 
more and more complex, the men and women in America's work force want 
greater flexibility to be able to cope with all of the changes that we 
have in life today. I think that this consensus presents us, this 
Senate, with a remarkable opportunity.
  I look forward to working with my colleagues as we work on what 
should be a bipartisan approach to this bill.
  Mr. President, this bill is about equity. It is about equality. It is 
about families such as this that are pictured behind us. Families want 
options. They want flexibility. This is what this bill gives them.

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