[Congressional Record Volume 143, Number 65 (Friday, May 16, 1997)]
[Senate]
[Pages S4656-S4657]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     FAMILY FRIENDLY WORKPLACE ACT

  Mr. KENNEDY. Mr. President, I would like to respond to a few points 
made on the floor this morning concerning the so-called Family Friendly 
Workplace Act. My colleagues from Georgia and Missouri said this 
morning that Democrats were filibustering this bill. They complained 
that working Americans are crying out for flexibility, and that 
Democrats are arbitrarily standing in the way of progress.
  I would like to set the record straight. We began debate on this bill 
Tuesday morning, May 13, and spent just over 2 hours discussing the 
legislation. Then the Republican leadership filed a petition to cut off 
debate. There was no filibuster. There were no Senators on the floor 
reading from irrelevant materials in an effort to thwart the will of 
the majority.
  We had no more discussion on the bill on Tuesday afternoon, or on 
Wednesday the 14th. Yesterday morning, May 15, we had 45 minutes of 
debate, followed immediately by a vote on the cloture petition. By a 
vote of 53 to 47, the Senate refused to cut off debate on the bill.
  I do not think that 3 hours of debate is enough. This bill would 
fundamentally alter the Fair Labor Standards Act, a law that has been 
on the books for almost 60 years. Three hours of debate simply is not 
enough time for adequate discussion on changes in so basic a protection 
for the Nation's workers. This is not a filibuster, Mr. President. We 
simply want full and fair consideration of this fundamental change in 
labor standards.
  My colleagues from Missouri and Kentucky also said this morning that 
the Fair Labor Standards Act forbids flexible work schedules for hourly 
employees. This, too, is false. If employers

[[Page S4657]]

genuinely want to provide family-friendly arrangements, they are free 
to do so under current law. The key is the 40-hour week. Employers can 
schedule workers for four 10-hour days a week with the fifth day off, 
and pay them the regular hourly rate for each hour. No overtime pay is 
required.
  Employers can also arrange a work schedule of four 9-hour days plus a 
4-hour day on the fifth day--again, without paying a dime of overtime. 
Under current law, some employees can even vary their hours enough to 
have a 3-day weekend every other week.
  Employers also can offer genuine flex time. This allows employers to 
schedule an 8-hour day around core hours of 10 a.m. to 3 p.m., and let 
employees decide whether they want to work 7 a.m. to 3 p.m. or 10 a.m. 
to 6 p.m. This, too, costs employers not a penny more.
  But only a tiny fraction of employers use these or the many other 
flexible arrangements available under current law. The Bureau of Labor 
Statistics found in 1991 that only 10 percent of hourly employees are 
offered flexible schedules.
  Current law permits a host of family friendly, flexible schedules, 
but virtually no employers provide them. S. 4 has a different purpose. 
It would cut workers' wages. That is why employer groups support it 
unanimously. Obviously it is not just small businesses that wish to cut 
pay and substitute some less expensive benefit instead.
  My colleagues made another point that cries out for response. They 
contend that S. 4 gives employees the choice when to use accumulated 
compensatory hours. Once again, this is incorrect. Under S. 4, the 
employer could deny a worker's request to take comptime and the 
employee would have no redress. Even if the employer failed to comply 
with the bill's stated standards governing the use of compensatory 
time, the employee would have no right to protest, and no remedy for 
any protest that was lodged nonetheless.
  Contrary to my colleagues' contentions, the Democratic alternative 
that was offered on May 14 by Senators Baucus, Kerrey, and Landrieu 
actually gives the employee the choice of when to use accrued 
compensatory time. My colleagues' statements to the contrary 
notwithstanding, it is not the Government that would make that decision 
under our alternative, nor is it the Secretary of Labor.
  Instead, the Baucus-Kerrey-Landrieu amendment gives the worker the 
choice. If an employee wants to use compensatory time for any reason 
that would qualify for leave under the Family and Medical Leave Act, 
the employee has an absolute right to do so. This simply gives 
employees the ability to be paid for leave that they already have a 
right to take on an unpaid basis. Thus, an employee could in fact use 
comptime to care for a seriously ill child, or deal with a newborn or 
newly adopted child. Supporters of S. 4 claim this is what they want 
their bill to accomplish. The Democratic alternative actually achieves 
that goal.
  Under the Baucus-Kerrey-Landrieu amendment, if an employee gives more 
than 2 weeks' notice, the employee can use comptime for any reason as 
long as it does not cause substantial and grievous injury to the 
employer's operations. Thus, if a worker wants to use comptime 3 weeks 
from today to attend the school play, he or she can do so unless the 
business would suffer this acute level of disruption. Again, the 
proponents of S.4 allege that they want to give employees the ability 
to do this. But only the Democratic alternative actually gives 
employees the choice.
  If an employee gives less than 2 weeks notice of a request to use 
comptime, under the Democratic alternative the employer must grant the 
request unless it would substantially disrupt the business. Once again, 
this supplies real choice to employees while protecting employers' 
ability to run their businesses. Flexibility in the workplace must run 
in both directions. The Republican bill gives all the flexibility to 
the employer, and gives the employee nothing but a pay cut.
  One final point requires a response. My colleague from Missouri 
contends that S. 4 simply gives hourly employees the same benefits that 
State and local government workers have enjoyed since 1985. He argues 
that Democratic support for that earlier legislation is inconsistent 
with our opposition to S. 4.
  But the facts belie this contention. As the Senator from Missouri 
well knows, the Fair Labor Standards Act was amended in 1985 to allow 
public sector comptime principally to allow State and local governments 
to avoid the costs of overtime pay. The Senator from Missouri was 
Governor of that State in 1985, and he testified in support of the 
changes before the Senate Labor Subcommittee.
  Historically, State and local governments had not been subject to the 
overtime provisions of the Fair Labor Standards Act. When that was 
reversed by a Supreme Court decision, those governments were faced with 
substantial new costs. They immediately sought relief from Congress so 
that they could avoid the costs of overtime pay.
  For example, the National League of Cities claimed that, without 
relief, ``the cost of complying with the overtime provisions of the 
FLSA * * * will be in excess of $1 billion for local governments.'' The 
National Association of Counties reported that ``It will cost States 
and localities in the billions of dollars to maintain current service 
levels under this ruling. * * * We need flexibility to use compensatory 
time and volunteers as alternatives to meeting the public's demand for 
increased services when we are faced with budget shortfalls.''
  Such estimates, along with similar dire warnings from other States, 
led to the enactment of comptime legislation for State and local 
government employees in 1985. As Senator Hatch put it, that legislation 
was meant ``to prevent the taxpayers in every single city in America 
from suffering reduced services and higher taxes.''
  Deny it as they will, supporters of S. 4 have precisely the same 
motive. Saving money is precisely what the supporters of S. 4 want to 
accomplish. A representative of the National Federation of Independent 
Businesses testified before the Labor Committee in February that small 
businesses support S. 4 because they ``cannot afford to pay their 
employees overtime.'' Cutting workers' wages is unacceptable to those 
on this side of the aisle. That is why we oppose S. 4.

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