[Congressional Record Volume 143, Number 74 (Tuesday, June 3, 1997)]
[Senate]
[Pages S5265-S5268]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          AMENDMENTS SUBMITTED

                                 ______
                                 

                   THE FAMILY FRIENDLY WORKPLACE ACT

                                 ______
                                 

                 BAUCUS (AND OTHERS) AMENDMENT NO. 361

  (Ordered to lie on the table.)
  Mr. BAUCUS (for himself, Mr. Kerrey, and Mr. Landrieu) submitted an 
amendment intended to be proposed by them to the bill (S. 4) to amend 
the Fair Labor Standards Act of 1938 to

[[Page S5266]]

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; as follows:

       Beginning on page 1, strike line 3 and all that follows 
     through page 28, line 16 and insert the following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Family-Friendly Workplace 
     Act of 1997''.

     SEC. 2. APPLICATION TO CERTAIN EMPLOYEES IN THE PRIVATE 
                   SECTOR.

       Section 7 of the Fair Labor Standards Act of 1938 (29 
     U.S.C. 207) is amended by adding at the end the following:
       ``(r)(1) An employee who is not a part-time, temporary, or 
     seasonal employee (as defined in paragraph (13)(C)), who is 
     not an employee of a public agency or of an employer in the 
     garment industry, and who is not otherwise exempted from this 
     subsection by regulations promulgated by the Secretary under 
     paragraph (3)(D), may receive, in accordance with this 
     subsection and in lieu of overtime compensation, compensatory 
     time at a rate not less than 1\1/2\ hours for each hour of 
     employment for which overtime compensation is required by 
     this section.
       ``(2) An employer may provide compensatory time to an 
     eligible employee under paragraph (1) only--
       ``(A) pursuant to--
       ``(i) applicable provisions of a collective bargaining 
     agreement, memorandum of understanding, or any other written 
     agreement between the employer and the representative of the 
     employee; or
       ``(ii) in the case of an employee who is not represented by 
     a collective bargaining agent or other representative 
     designated by the employee, a plan adopted by the employer 
     and provided in writing to the employees of the employer 
     which provides employees with a voluntary option to receive 
     compensatory time in lieu of overtime compensation for 
     overtime work where there is an express, voluntary written 
     request by an individual employee for compensatory time in 
     lieu of overtime compensation, provided to the employer prior 
     to the performance of any overtime assignment;
       ``(B) if the employee has not earned compensatory time in 
     excess of the applicable limit prescribed by paragraph (3)(A) 
     or in regulations issued by the Secretary under paragraph 
     (3)(D);
       ``(C) if the employee is not required as a condition of 
     employment to accept or request compensatory time; and
       ``(D) if the agreement or plan complies with the 
     requirements of this subsection and the regulations 
     promulgated by the Secretary thereunder, including the 
     availability of compensatory time to similarly situated 
     employees on an equal basis.
       ``(3)(A) An employee may earn not more than a total of 80 
     hours of compensatory time in any year or alternative 12-
     month period designated pursuant to subparagraph (C). The 
     employer shall regularly report to the employee on the number 
     of compensatory hours earned by the employee and the total 
     amount of the employee's earned and unused compensatory time, 
     in accordance with regulations issued by the Secretary of 
     Labor.
       ``(B) Upon the request of an employee who has earned 
     compensatory time, the employer shall, within 15 days after 
     the request, provide monetary compensation for any such 
     compensatory time at a rate not less than the regular rate 
     earned by the employee at the time the employee performed the 
     overtime work or the employee's regular rate at the time such 
     monetary compensation is paid, whichever is higher.
       ``(C) Not later than January 31 of each calendar year, an 
     employer shall provide monetary compensation to each employee 
     of the employer for any compensatory time earned during the 
     preceding calendar year for which the employee has not 
     already received monetary compensation (either through 
     compensatory time or cash payment) at a rate not less than 
     the regular rate earned by the employee at the time the 
     employee performed the overtime work or the employee's 
     regular rate at the time such monetary compensation is paid, 
     whichever is higher. An agreement or plan under paragraph (2) 
     may designate a 12-month period other than the calendar year, 
     in which case such monetary compensation shall be provided 
     not later than 31 days after the end of such 12-month period. 
     An employee may voluntarily, at the employee's own 
     initiative, request in writing that such end-of-year payment 
     of monetary compensation for earned compensatory time be 
     delayed for a period not to exceed 3 months. This 
     subparagraph shall have no effect on the limit on earned 
     compensatory time set forth in subparagraph (A) or in 
     regulations issued by the Secretary pursuant to subparagraph 
     (D).
       ``(D) The Secretary may promulgate regulations regarding 
     classes of employees, including but not limited to all 
     employees in particular occupations or industries, to--
       ``(i) exempt such employees from the provisions of this 
     subsection;
       ``(ii) limit the number of compensatory hours that such 
     employees may earn to less than the number provided in 
     subparagraph (A); or
       ``(iii) require employers to provide such employees with 
     monetary compensation for earned compensatory time at more 
     frequent intervals than specified in subparagraph (C);

     where the Secretary has determined that such regulations are 
     necessary or appropriate to protect vulnerable employees, 
     where a pattern of violations of this Act may exist, or to 
     ensure that employees receive the compensation due them.
       ``(4) An employee who has earned compensatory time 
     authorized to be provided under paragraph (1) shall, upon the 
     voluntary or involuntary termination of employment or upon 
     expiration of this subsection, be paid for unused 
     compensatory time at a rate of compensation not less than the 
     regular rate earned by the employee at the time the employee 
     performed the overtime work or the employee's regular rate at 
     the time such monetary compensation is paid, whichever is 
     higher. A terminated employee's receipt of, or eligibility to 
     receive, monetary compensation for earned compensatory time 
     shall not be used--
       ``(A) by the employer to oppose an application of the 
     employee for unemployment compensation; or
       ``(B) by a State to deny unemployment compensation or 
     diminish the entitlement of the employee to unemployment 
     compensation benefits.
       ``(5) An employee shall be permitted to use any 
     compensatory time earned pursuant to paragraph (1)--
       ``(A) for any reason that would qualify for leave under 
     section 102(a) of the Family and Medical Leave Act of 1993 
     (29 U.S.C. 2612(a)), or any comparable State law, 
     irrespective of whether the employer is covered or the 
     employee is eligible under such Act or law; or
       ``(B) for any other purpose--
       ``(i) upon notice to the employer at least 2 weeks prior to 
     the date on which the compensatory time is to be used, unless 
     use of the compensatory time at that time will cause 
     substantial and grievous injury to the operations of the 
     employer; or
       ``(ii) upon notice to the employer within the 2 weeks prior 
     to the date on which the compensatory time is to be used, 
     unless use of the compensatory time at that time will unduly 
     disrupt the operations of the employer.

     An employee's use of earned compensatory time may not be 
     substituted by the employer for any other paid or unpaid 
     leave or time off to which the employee otherwise is or would 
     be entitled or has or would earn, nor satisfy any legal 
     obligation of the employer to the employee pursuant to any 
     law or contract.
       ``(6) An employee shall not be required by the employer to 
     use any compensatory time earned pursuant to paragraph (1).
       ``(7)(A) When an employee receives monetary compensation 
     for earned compensatory time, the monetary compensation shall 
     be treated as compensation for hours worked for purposes of 
     calculation of entitlement to employment benefits.
       ``(B) When an employee uses earned compensatory time, the 
     employee shall be paid for the compensatory time at the 
     employee's regular rate at the time the employee performed 
     the overtime work or at the regular rate earned by the 
     employee when the compensatory time is used, whichever is 
     higher, and the hours for which the employee is so 
     compensated shall be treated as hours worked during the 
     applicable workweek or other work period for purposes of 
     overtime compensation and calculation of entitlement to 
     employment benefits.
       ``(8) Except in a case of a collective bargaining 
     agreement, an employer may modify or terminate a compensatory 
     time plan described in paragraph (2)(A)(ii) upon not less 
     than 60 days' notice to the employees of the employer.
       ``(9) An employer may not pay monetary compensation in lieu 
     of earned compensatory time except as expressly prescribed in 
     this subsection.
       ``(10) It shall be an unlawful act of discrimination, 
     within the meaning of section 15(a)(3), for an employer--
       ``(A) to discharge, or in any other manner penalize, 
     discriminate against, or interfere with, any employee because 
     such employee may refuse or has refused to request or accept 
     compensatory time in lieu of overtime compensation, or 
     because such employee may request to use or has used 
     compensatory time in lieu of receiving overtime compensation;
       ``(B)(i) to request, directly or indirectly, that an 
     employee accept compensatory time in lieu of overtime 
     compensation;
       ``(ii) to require an employee to request such compensatory 
     time as a condition of employment or as a condition of 
     employment rights or benefits; or
       ``(iii) to qualify the availability of work for which 
     overtime compensation is required upon an employee's request 
     for or acceptance of compensatory time in lieu of overtime 
     compensation; or
       ``(C) to deny an employee the right to use, or force an 
     employee to use, earned compensatory time in violation of 
     this subsection.
       ``(11) An employer who violates any provision of this 
     subsection shall be liable, in an action brought pursuant to 
     subsection (b) or (c) of section 16, in the amount of 
     overtime compensation that would have been paid for the 
     overtime hours worked or overtime hours that would have been 
     worked, plus an additional equal amount as liquidated 
     damages, such other legal or equitable relief as

[[Page S5267]]

     may be appropriate to effectuate the purpose of this section, 
     costs, and, in the case of an action filed under section 
     16(b), reasonable attorney's fees. Where an employee has used 
     compensatory time or received monetary compensation for 
     earned compensatory time for such overtime hours worked, the 
     amount of such time used or monetary compensation paid to the 
     employee shall be offset against the liability of the 
     employer under this paragraph, but not against liquidated 
     damages due.
       ``(12)(A) The entire liquidated value of an employee's 
     accumulated compensatory time, calculated as provided for in 
     this subsection, shall, for purposes of proceedings in 
     bankruptcy under title 11, United States Code, be treated as 
     unpaid wages earned by the individual--
       ``(i) if the date the employer was or becomes legally or 
     contractually obligated to provide monetary compensation to 
     the employee for the compensatory time was more than 90 days 
     before the cessation of business, as if such date was within 
     90 days before the cessation of business by the employer;
       ``(ii) if the date the employer was or becomes legally or 
     contractually obligated to provide such monetary compensation 
     was within 90 days before the cessation of business by the 
     employer, as of such date; or
       ``(iii) if the employer was not legally or contractually 
     obligated to provide such monetary compensation prior to 
     ceasing to do business, as of the date of ceasing to do 
     business.
       ``(B) The amount of such monetary compensation shall not be 
     limited by any ceiling on the dollar amount of wage claims 
     provided under Federal law for such proceedings.
       ``(13) In this subsection--
       ``(A) the term `overtime compensation' means the 
     compensation required by subsection (a);
       ``(B) the term `compensatory time' means hours during which 
     an employee is not working and for which the employee is 
     compensated in accordance with this subsection in lieu of 
     overtime compensation;
       ``(C) the term `part-time, temporary, or seasonal employee' 
     means--
       ``(i) an employee whose regular workweek for the employer 
     is less than 35 hours per week;
       ``(ii) an employee who is employed by the employer for a 
     season or other term of less than 12 months or is otherwise 
     treated by the employer as not a permanent employee of the 
     employer; or
       ``(iii) an employee in the construction industry, in 
     agricultural employment (as defined in section 3(3) of the 
     Migrant and Seasonal Agricultural Worker Protection Act (29 
     U.S.C. 1802(3))), or in any other industry which the 
     Secretary by regulation has determined is a seasonal 
     industry; and
       ``(D) the term `overtime assignment' means an assignment of 
     hours for which overtime compensation is required under this 
     section.
       ``(14) The Secretary may issue regulations as necessary and 
     appropriate to implement this subsection including, but not 
     limited to, regulations implementing recordkeeping 
     requirements and prescribing the content of plans and 
     employee notification.''.

     SEC. 3. CIVIL MONEY PENALTIES.

       Section 16(e) of the Fair Labor Standards Act of 1938 (29 
     U.S.C. 216(e)) is amended by striking the second sentence and 
     inserting the following: ``Any person who violates section 6, 
     7, or 11(c) shall be subject to a civil penalty not to exceed 
     $1,000 for each such violation.''.

     SEC. 4. CONSTRUCTION.

       Section 18 of the Fair Labor Standards Act of 1938 (29 
     U.S.C. 218) is amended by adding at the end the following:
       ``(c)(1) No provision of this Act or of any order 
     thereunder shall be construed to--
       ``(A) supersede any provision of any State or local law 
     that provides greater protection to employees who are 
     provided compensatory time in lieu of overtime compensation;
       ``(B) diminish the obligation of an employer to comply with 
     any collective bargaining agreement or any employment benefit 
     program or plan that provides greater protection to employees 
     provided compensatory time in lieu of overtime compensation; 
     or
       ``(C) discourage employers from adopting or retaining 
     compensatory time plans that provide more protection to 
     employees.
       ``(2) Nothing in this subsection shall be construed to 
     allow employers to provide compensatory time plans to classes 
     of employees who are exempted from section 7(r), to allow 
     employers to provide more compensatory time than allowed 
     under subsection (o) or (r) of section 7, or to supersede any 
     limitations placed by subsection (o) or (r) of section 7, 
     including exemptions and limitations in regulations issued by 
     the Secretary thereunder.''.

     SEC. 5. COMMISSION ON WORKPLACE FLEXIBILITY.

       (a) Establishment.--There is established a Commission on 
     Workplace Flexibility (referred to in this section as the 
     ``Commission'').
       (b) Membership; Compensation; Powers; Travel Expenses.--The 
     Commission shall be composed, and the members of the 
     Commission shall be appointed, in accordance with paragraphs 
     (1) and (2) of subsection (a), and subsection (b) of section 
     303 of the Family and Medical Leave Act of 1993 (29 U.S.C. 
     2633(a)(1) and (2) and (b)). The compensation and powers of 
     the Commission shall be as prescribed by sections 304 and 
     305, respectively, of such Act (29 U.S.C. 2634 and 2635). The 
     members of the Commission shall be allowed reasonable travel 
     expenses in accordance with section 305(b) of such Act (29 
     U.S.C. 2635(b)).
       (c) Duties.--
       (1) Study.--The Commission shall conduct a comprehensive 
     study of the impact of the provision of compensatory time on 
     public and private sector employees, including the impact of 
     this Act--
       (A) on average earnings of employees, hours of work of 
     employees, work schedules of employees, and flexibility of 
     scheduling work to accommodate family needs; and
       (B) on the ability of vulnerable employees or other 
     employees to obtain the compensation to which the employees 
     are entitled.
       (2) Report.--
       (A) In general.--A report concerning the findings of the 
     study described in paragraph (1) shall be prepared and 
     submitted to the appropriate committees of Congress and to 
     the Secretary not later than 1 year prior to the expiration 
     of this title.
       (B) Recommendations.--The report described in subparagraph 
     (A) shall include recommendations on whether--
       (i) the compensatory time provisions of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 201 et. seq.) should be 
     modified or extended, including--

       (I) a recommendation on whether particular classes of 
     employees or industries should be exempted or otherwise given 
     special treatment under the provisions;
       (II) a recommendation on whether additional protections 
     should be provided, including additional protections to 
     employees of public agencies; and
       (III) a recommendation on whether the provisions should be 
     applied to any category of exempt employees.

       (C) Special rule.--The Commission shall have no obligation 
     to conduct a study and prepare and submit a report pursuant 
     to this section if funds are not authorized and appropriated 
     for that purpose.

     SEC. 6. EFFECTIVE DATE; CESSATION OF EFFECTIVENESS.

       (a) Effective Date.--The provisions of this title, and the 
     amendments made by this title, shall become effective 6 
     months after the date of enactment of this Act.
       (b) Cessation of Effectiveness.--The provisions of this 
     title, and the amendments made by this title, shall cease to 
     be effective 4 years after the date of enactment of this Act.
                                 ______
                                 

                     KENNEDY AMENDMENT NO. 362-367

  (Ordered to lie on the table.)
  Mr. KENNEDY submitted six amendments intended to be proposed by him 
to the bill, S. 4, supra; as follows:

                           Amendment No. 362

       Beginning on page 10, strike line 17 and all that follows 
     through page 26, line 18, and insert the following:
       (b) Technical Amendment.--Section 7(r) of the Fair Labor 
     Standards Act of 1938 (as added by subsection (a)) is amended 
     in paragraph (6)(A) by striking clause (ii) and inserting the 
     following:
       ``(ii) In clause (i), 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.''
                                                                    ____


                           Amendment No. 363

       On page 28, after line 16, add the following:
       (d) Protection for Claims Relating to Compensatory Time 
     Off.--Section 507(a)(3) of title 11, United States Code, is 
     amended--
       (1) by striking ``$4,000'' and inserting ``$9,000'';
       (2) by striking ``for--'' and inserting the following: 
     ``provided that all accrued compensatory time (as defined in 
     section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 
     207)) shall be deemed to have been earned within 90 days 
     before the date of the filing of the petition or the date of 
     the cessation of the debtor's business, whichever occurs 
     first, for--''; and
       (3) in subparagraph (A), by inserting before the semicolon 
     the following: ``or the value of unused, accrued compensatory 
     time (as defined in section 7 of the Fair Labor Standards Act 
     of 1938 (29 U.S.C. 207))''.
                                                                    ____


                           Amendment No. 364.

       On page 7, strike line 13 and insert the following:
       ``(B) It shall be an unlawful act of discrimination, within 
     the meaning of section 15(a)(3), for an employer--
       ``(i) to discharge or in any other manner penalize, 
     discriminate against, or interfere with, any employee 
     because--
       ``(I) the employee may refuse or has refused to request or 
     accept compensatory time off in lieu of monetary overtime 
     compensation;
       ``(II) the employee may request to use or has used 
     compensatory time off in lieu of monetary overtime 
     compensation; or
       ``(III) the employee has requested the use of compensatory 
     time off at a specific time of the employee's choice;
       ``(ii) to request, directly or indirectly, that an employee 
     accept compensatory time off in lieu of monetary overtime 
     compensation;

[[Page S5268]]

       ``(iii) to require an employee to request compensatory time 
     off in lieu of monetary overtime compensation as a condition 
     of employment or as a condition of employment rights or 
     benefits;
       ``(iv) to qualify the availability of work for which 
     monetary overtime compensation is required upon the request 
     of an employee for, or acceptance of, compensatory time off 
     in lieu of monetary overtime compensation; or
       ``(v) to deny an employee the right to use, or coerce an 
     employee to use, earned compensatory time off in violation of 
     this subsection.
       ``(C) An agreement or understanding that is entered''.
                                                                    ____


                           Amendment No. 365.

       Beginning on page 3, strike lines 15 through 23 and insert 
     the following:
       ``(B) In this subsection:
       ``(i) The term `employee' does not include--
       ``(I) an employee of a public agency;
       ``(II) an employee who is a part-time employee;
       ``(III) an employee who is a temporary employee; and
       ``(IV) an employee who is a seasonal employee.
       ``(ii) The term `employer' does not include--
       ``(I) a public agency; and
       ``(II) an employee in the garment industry.
       ``(iii) The term `employer in the garment industry' means 
     an employer who is involved in the manufacture of apparel.
       ``(iv) The term `part-time employee' means an employee 
     whose regular workweek for the employer involved is less than 
     35 hours per week.
       ``(v) The term `seasonal employee' means an employee in--
       ``(I) the construction industry;
       ``(II) agricultural employment (as defined by section 3(3) 
     of the Migrant and Seasonal Agricultural Worker Protection 
     Act (29 U.S.C. 1802(3))); or
       ``(III) any other industry that the Secretary by regulation 
     determines is a seasonal industry.
       ``(vi) The term `temporary employee' means an employee who 
     is employed by an employer for a season or other term of less 
     than 12 months, or is otherwise treated by the employer as 
     not a permanent employee of the employer.''
                                                                    ____


                           Amendment No. 366

       On page 10, strike lines 4 through 7 and insert the 
     following:
       ``(10) In a case in which an employee uses accrued 
     compensatory time off under this subsection, the accrued 
     compensatory time off used shall be considered as hours 
     worked during the applicable workweek or other work period 
     for the purposes of overtime compensation and calculation of 
     entitlement to employment benefits.
       ``(11)(A) The term `compensatory time off' means the hours 
     during which an employee is not working and for which the 
     employee is compensated in accordance with this subsection in 
     lieu of monetary overtime compensation.
       ``(B) The term `monetary overtime compensation' means the 
     compensation required by subsection (a).''.
                                                                    ____


                           Amendment No. 367

       Beginning on page 9, strike line 19 and all that follows 
     through page 10, line 3 and insert the following:
       ``(9)(A) An employee shall be permitted by an employer to 
     use any compensatory time off provided under paragraph (2)--
       ``(i) for any reason that qualifies for leave under--
       ``(I) section 102(a) of the Family and Medical Leave Act of 
     1993 (29 U.S.C. 2612(a)), irrespective of whether the 
     employer is covered, or the employee is eligible, under such 
     Act; or
       ``(II) an applicable State law that provides greater family 
     or medical leave rights than does the Family and Medical 
     Leave Act of 1993 (29 U.S.C. 2601 et seq.);
       ``(ii) for any reason after providing notice to the 
     employer not later than 2 weeks prior to the date on which 
     the compensatory time off is to be used, except that an 
     employee may not be permitted to use compensatory time off 
     under this clause if the use of the compensatory time off 
     will cause substantial and grievous injury to the operations 
     of the employer; or
       ``(iii) for any reason after providing notice to the 
     employer later than 2 weeks prior to the date on which the 
     compensatory time off is to be used, except that an employee 
     may not be permitted to use compensatory time off under this 
     clause if the use of the compensatory time off will unduly 
     disrupt the operations of the employer.''

                          ____________________