[Congressional Record Volume 149, Number 21 (Wednesday, February 5, 2003)]
[Senate]
[Pages S1999-S2003]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GREGG (for himself, Mr. Sessions, and Mr. Enzi):
  S. 317. 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 for work and family, and for other 
purposes; to the Committee on Health, Education, Labor, and Pensions.
  Mr. GREGG. Mr. President, I rise today to introduce legislation that, 
if enacted, could have a monumental impact on the lives of thousands of 
working men, women and families in America. Today, along with Senators 
Enzi, and Sessions, I am pleased to reintroduce the Family Time and 
Workplace Flexibility Act. The primary purpose of this legislation is 
to give families and employers greater flexibility in meeting and 
balancing the demands of work and family.
  The demand for family time is evident. Let me give you some of the 
latest statistics. Seventy percent of employees don't think there is a 
healthy balance between work and personal life. Seventy percent of 
employees today say that family is their most important priority. This 
compares to 54 percent in 2000. Forty six percent of employees either 
feel overworked, overwhelmed by the quantity of their work, or lack the 
time to step back and reflect on their work. Sixty one percent of 
adults say they would give up some of their pay for more time with 
their family. Employees say that finding time for family is a more 
pressing concern than layoffs, 32 percent vs 22 percent. This compares 
to 25 percent in 1999.
  In light of the cry of America's workers for more family time, and in 
honor of today's 10-year anniversary of the Family Medical Leave Act, I 
am introducing the Family Time and Workplace Flexibility Act, which 
will build upon the spirit of the FMLA, by updating federal law to 
allow a more flexible workplace. This legislation is not a total 
solution: there are many other provisions under the 64-year-old Fair 
Labor Standards Act that need our attention. But the legislation I am 
introducing today is an important part of the solution. It gives 
working families a choice.
  The Family Time and Workplace Flexibility Act in a nutshell consists 
of three main provisions. The first allows employees the option of 
taking time off in lieu of overtime pay. The second gives employees the 
option of ``flexing'' their schedules over a two week period. In other 
words, employees would have 10 ``flexible'' hours that they could work 
in one week in order to take 10 hours off in the next week. The third 
provision gives employees the option of a ``flexible credit hour 
program,'' under which the employer and employee can agree to allow the 
employee to work excess hours in his schedule in order to accrue hours 
to be taken off at a later time. The flexible credit hour option is for 
employees who do not get the opportunity to work overtime, but still 
want a way to build up hours to take off later.
  Flexible work arrangements have been available in the Federal 
Government since 1978. For over three decades, federal workers have had 
this special privilege. The federal program was so successful in fact, 
that in 1994 President Clinton issued an Executive Order extending it 
to parts of the Federal government that had not yet had the benefits of 
the program. The President stated that: ``Broad use of flexible 
arrangements to enable Federal employees to better balance their work 
and family responsibilities can increase employee effectiveness and job 
satisfaction while decreasing turnover rates and absenteeism.'' I 
couldn't agree more.
  While Federal employees enjoy the benefits of flexible workplace 
arrangements, members of the private sector do not have such options. 
The Family Time and Workplace Flexibility Act corrects this and extends 
this option to all businesses covered by the Fair Labor Standards Act.
  So, who are these workers who are currently covered by the FLSA but 
do not have the ability to exercise workplace flexibility? They are 
some of the hardest working Americans. Sixty percent of these workers 
have only a high school education. Eighty percent of them make less 
than $28,000. A great percentage of them are single mothers with 
children. They are working hard to meet their family's economic needs 
as well as their emotional needs. And while government can't mandate 
love and nurture, it can get out of the way and eliminate barriers to 
opportunities for love and nurture. That is what the Family Time and 
Workplace Flexibility Act does.
  In the subsequent weeks and months we will undoubtedly hear from some 
that what working families really need is more money. They need their 
overtime pay. That may well be true for some families, and this bill 
does not affect them in any way. But for other families, for families 
who want to choose to take time off with pay to attend a child's school 
play or PTA meeting, the issue is time, not money. The point is this 
the family should have the right to choose. Washington should not 
decide for them which priority is important for their family.
  I am one who believes in the working men and women of America and in 
their ability to know what is best for their families. It is time for 
Congress to give families what they want, and not what Congress thinks 
they need. It's time to give working families what Federal employees 
have already--workplace flexibility.
  I ask unanimous consent that the text of the legislation, a bill 
summary, and an article from the Washington Post be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 317

       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 Time and Workplace 
     Flexibility Act''.

     SEC. 2. WORKPLACE FLEXIBILITY OPTIONS.

       (a) Compensatory Time Off.--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)(A) Except as provided in subparagraph (B), no 
     employee may be required under this subsection to receive 
     compensatory time off in lieu of monetary overtime 
     compensation. The acceptance of compensatory time off in lieu 
     of monetary overtime compensation may not be a condition of 
     employment or of working overtime.
       ``(B) In a case in which a valid collective bargaining 
     agreement exists between an employer and the labor 
     organization that has been certified or recognized as the 
     representative of the employees of the employer under 
     applicable law, an employee may only be required under this 
     subsection to receive compensatory time off in lieu of 
     monetary overtime compensation in accordance with the 
     agreement.
       ``(2)(A) 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) In this subsection:
       ``(i) The term `employee' means an individual--
       ``(I) who is an employee (as defined in section 3);
       ``(II) who is not an employee of a public agency; and
       ``(III) to whom subsection (a) applies.
       ``(ii) The term `employer' does not include a public 
     agency.
       ``(3) An employer may provide compensatory time off to 
     employees under paragraph (2)(A) only pursuant to the 
     following:
       ``(A) The compensatory time off may be provided only in 
     accordance with--
       ``(i) applicable provisions of a collective bargaining 
     agreement between the employer and the labor organization 
     that has been certified or recognized as the representative 
     of the employees under applicable law; or
       ``(ii) in the case of an employee who is not represented by 
     a labor organization described in clause (i), a written 
     agreement arrived at between the employer and employee before 
     the performance of the work involved if the agreement was 
     entered into knowingly and voluntarily by such employee and 
     was not a condition of employment.
       ``(B) The compensatory time off may only be provided to an 
     employee described in subparagraph (A)(ii) if such employee 
     has affirmed, in a written 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) No employee may receive, or agree to receive, the 
     compensatory time off unless the employee has been employed 
     for at least 12 months by the employer, and for at least 
     1,250 hours of service with the employer during the previous 
     12-month period.

[[Page S2000]]

       ``(D) An employee shall be eligible to accrue compensatory 
     time off if such employee has not accrued compensatory time 
     off in excess of the limit applicable to the employee 
     prescribed by paragraph (4).
       ``(4)(A) An employee may accrue not more than 160 hours of 
     compensatory time off.
       ``(B) Not later than January 31 of each calendar year, the 
     employer of the employee 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 (8). An employer may designate and communicate 
     to the employees of the employer a 12-month period other 
     than the calendar year, in which case the compensation 
     shall be provided not later than 31 days after the end of 
     the 12-month period.
       ``(C) The employer may provide monetary compensation for an 
     employee's unused compensatory time off in excess of 80 hours 
     at any time after providing the employee with at least 30 
     days' written notice. The compensation shall be provided at 
     the rate prescribed by paragraph (8).
       ``(5)(A) An employer that has adopted a policy offering 
     compensatory time off to employees may discontinue the policy 
     for employees described in paragraph (3)(A)(ii) after 
     providing 30 days' written notice to the employees who are 
     subject to an agreement described in paragraph (3)(A)(ii).
       ``(B) An employee may withdraw an agreement described in 
     paragraph (3)(A)(ii) at any time, by submitting a written 
     notice of withdrawal to the employer of the employee. An 
     employee may also request in writing that monetary 
     compensation be provided, at any time, for all compensatory 
     time off accrued that has not been used. Within 30 days after 
     receiving the written request, the employer shall provide the 
     employee the monetary compensation due in accordance with 
     paragraph (8).
       ``(6)(A)(i) An employer that provides compensatory time off 
     under paragraph (2) to an employee 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;
       ``(II) interfering with the rights of the employee to use 
     accrued compensatory time off in accordance with paragraph 
     (9); or
       ``(III) requiring the employee to use the compensatory time 
     off.
       ``(ii) In clause (i), the term `intimidate, threaten, or 
     coerce' has the meaning given the term in section 13A(d)(2).
       ``(B) An agreement that is entered into by an employee and 
     employer under paragraph (3)(A)(ii) shall permit the employee 
     to elect, for an applicable workweek--
       ``(i) the payment of monetary overtime compensation for the 
     workweek; or
       ``(ii) the accrual of compensatory time off in lieu of the 
     payment of monetary overtime compensation for the 
     workweek.''.
       (b) Remedies and Sanctions.--Section 16 of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 216) is amended by adding at 
     the end the following:
       ``(f)(1) In addition to any amount that an employer is 
     liable under subsection (b) for a violation of a provision of 
     section 7, an employer that violates section 7(r)(6)(A) 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)(8)(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).''.
       (c) Calculations and Special Rules.--Section 7(r) of the 
     Fair Labor Standards Act of 1938 (29 U.S.C. 207(r)), as added 
     by subsection (a), is further amended by adding at the end 
     the following:
       ``(7) An employee who has accrued compensatory time off 
     authorized to be provided under paragraph (2) shall, upon the 
     voluntary or involuntary termination of employment, be paid 
     for the unused compensatory time off in accordance with 
     paragraph (8).
       ``(8)(A) If compensation is to be paid to an employee for 
     accrued compensatory time off, the 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) Any payment owed to an employee under this subsection 
     for unused compensatory time off shall be considered unpaid 
     monetary overtime compensation.
       ``(9) An employee--
       ``(A) who has accrued compensatory time off authorized to 
     be provided under paragraph (2); and
       ``(B) who has requested the use of the accrued compensatory 
     time off;
     shall be permitted by the employer of the employee to use the 
     accrued compensatory time off within a reasonable period 
     after making the request if the use of the accrued 
     compensatory time off does not unduly disrupt the operations 
     of the employer.
       ``(10) 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).''.
       (d) Notice to Employees.--Not later than 30 days after the 
     date of enactment of this Act, the Secretary of Labor shall 
     revise the materials the Secretary provides, under 
     regulations contained in section 516.4 of title 29, Code of 
     Federal Regulations, to employers for purposes of a notice 
     explaining the Fair Labor Standards Act of 1938 (29 U.S.C. 
     201 et seq.) to employees so that the notice reflects the 
     amendments made to the Act by this section.

     SEC. 3. BIWEEKLY WORK PROGRAMS AND FLEXIBLE CREDIT HOUR 
                   PROGRAMS.

       (a) In General.--The Fair Labor Standards Act of 1938 is 
     amended by inserting after section 13 (29 U.S.C. 213) the 
     following:

     ``SEC. 13A. BIWEEKLY WORK PROGRAMS AND FLEXIBLE CREDIT HOUR 
                   PROGRAMS.

       ``(a) Voluntary 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 between an 
     employer and the labor organization that has been certified 
     or recognized as the representative of the employees of the 
     employer under applicable law, an employee may only be 
     required to participate in such a program in accordance with 
     the agreement.
       ``(b) Biweekly Work Programs.--
       ``(1) In general.--Notwithstanding section 7, 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, except that no more than 
     10 hours may be shifted between the 2 weeks involved.
       ``(2) Conditions.--An employer may carry out a biweekly 
     work program described in paragraph (1) for employees only 
     pursuant to the following:
       ``(A) Agreement.--The program may be carried out only in 
     accordance with--
       ``(i) applicable provisions of a collective bargaining 
     agreement between the employer and the labor organization 
     that has been certified or recognized as the representative 
     of the employees under applicable law; or
       ``(ii) in the case of an employee who is not represented by 
     a labor organization described in clause (i), a written 
     agreement arrived at between the employer and employee before 
     the performance of the work involved if the agreement was 
     entered into knowingly and voluntarily by such employee and 
     was not a condition of employment.
       ``(B) Statement.--The program shall apply to an employee 
     described in subparagraph (A)(ii) if such employee has 
     affirmed, in a written statement that is made, kept, and 
     preserved in accordance with section 11(c), that the employee 
     has chosen to participate in the program.
       ``(C) Minimum service.--No employee may participate, or 
     agree to participate, in the program unless the employee has 
     been employed for at least 12 months by the employer, and for 
     at least 1,250 hours of service with the employer during the 
     previous 12-month period.
       ``(3) Compensation for hours in schedule.--Notwithstanding 
     section 7, in the case of an employee participating in such a 
     biweekly work program, 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.
       ``(4) Computation of overtime.--All hours worked by the 
     employee 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 the employer, shall be overtime hours.
       ``(5) 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.
       ``(6) Discontinuance of program or withdrawal.--
       ``(A) Discontinuance of program.--An employer that has 
     established a biweekly work program under paragraph (1) may 
     discontinue the program for employees described in paragraph 
     (2)(A)(ii) after providing 30 days' written notice to the 
     employees who are subject to an agreement described in 
     paragraph (2)(A)(ii).

[[Page S2001]]

       ``(B) Withdrawal.--An employee may withdraw an agreement 
     described in paragraph (2)(A)(ii) at the end of any 2-week 
     period described in paragraph (1)(A), by submitting a written 
     notice of withdrawal to the employer of the employee.
       ``(c) Flexible Credit Hour Programs.--
       ``(1) In general.--Notwithstanding section 7, 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 accrue flexible credit hours to reduce the 
     hours worked in a week or a day subsequent to the day on 
     which the flexible credit hours are worked.
       ``(2) Conditions.--An employer may carry out a flexible 
     credit hour program described in paragraph (1) for employees 
     only pursuant to the following:
       ``(A) Agreement.--The program may be carried out only in 
     accordance with--
       ``(i) applicable provisions of a collective bargaining 
     agreement between the employer and the labor organization 
     that has been certified or recognized as the representative 
     of the employees under applicable law; or
       ``(ii) in the case of an employee who is not represented by 
     a labor organization described in clause (i), a written 
     agreement arrived at between the employer and employee before 
     the performance of the work involved if the agreement was 
     entered into knowingly and voluntarily by such employee and 
     was not a condition of employment.
       ``(B) Statement.--The program shall apply to an employee 
     described in subparagraph (A)(ii) if such employee has 
     affirmed, in a written statement that is made, kept, and 
     preserved in accordance with section 11(c), that the employee 
     has chosen to participate in the program.
       ``(C) Minimum service.--No employee may participate, or 
     agree to participate, in the program unless the employee has 
     been employed for at least 12 months by the employer, and for 
     at least 1,250 hours of service with the employer during the 
     previous 12-month period.
       ``(D) Hours.--An agreement that is entered into under 
     subparagraph (A) shall provide that, at the election of an 
     employee, the employer and the employee will jointly 
     designate, for an applicable workweek, flexible credit hours 
     for the employee to work.
       ``(E) Limit.--An employee shall be eligible to accrue 
     flexible credit hours if the employee has not accrued 
     flexible credit hours in excess of the limit applicable to 
     the employee prescribed by paragraph (3).
       ``(3) Hour limit.--
       ``(A) Maximum hours.--An employee who is participating in 
     such a flexible credit hour program may accrue not more than 
     50 flexible credit hours.
       ``(B) Compensation date.--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 
     accrued 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 the compensation. 
     An employer may designate and communicate to the employees of 
     the employer a 12-month period other than the calendar year, 
     in which case the compensation shall be provided not later 
     than 31 days after the end of the 12-month period.
       ``(4) Compensation for flexible credit hours.--
     Notwithstanding section 7, in the case of an employee 
     participating in such a flexible credit hour program, the 
     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) Computation of overtime.--All hours worked by the 
     employee in excess of 40 hours in a week that are requested 
     in advance by the employer, other than flexible credit hours, 
     shall be overtime hours.
       ``(6) 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.
       ``(7) Use of time.--An employee--
       ``(A) who has accrued flexible credit hours; and
       ``(B) who has requested the use of the accrued flexible 
     credit hours,

     shall be permitted by the employer of the employee to use the 
     accrued flexible credit hours within a reasonable period 
     after making the request if the use of the accrued flexible 
     credit hours does not unduly disrupt the operations of the 
     employer.
       ``(8) Discontinuance of program or withdrawal.--
       ``(A) Discontinuance of program.--An employer that has 
     established a flexible credit hour program under paragraph 
     (1) may discontinue the program for employees described in 
     paragraph (2)(A)(ii) after providing 30 days' written notice 
     to the employees who are subject to an agreement described in 
     paragraph (2)(A)(ii).
       ``(B) Withdrawal.--An employee may withdraw an agreement 
     described in paragraph (2)(A)(ii) at any time, by submitting 
     a written notice of withdrawal to the employer of the 
     employee. An employee may also request in writing that 
     monetary compensation be provided, at any time, for all 
     flexible credit hours accrued that have not been used. Within 
     30 days after receiving the written request, the employer 
     shall provide the employee the monetary compensation due at a 
     rate not less than the regular rate at which the employee is 
     employed on the date the employee receives the compensation.
       ``(d) Prohibition of Coercion.--
       ``(1) In general.--An employer shall not directly or 
     indirectly intimidate, threaten, or coerce, or attempt to 
     intimidate, threaten, or coerce, any employee for the purpose 
     of--
       ``(A) interfering with the rights of the employee under 
     this section to elect or not to elect to work a biweekly work 
     schedule;
       ``(B) interfering with the rights of the employee under 
     this section 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);
       ``(C) interfering with the rights of the employee under 
     this section to use accrued flexible credit hours in 
     accordance with subsection (c)(7); or
       ``(D) requiring the employee to use the flexible credit 
     hours.
       ``(2) Definition.--In paragraph (1), 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) Definitions.--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 labor organization 
     that has been certified or recognized as the representative 
     of the employees of the employer under applicable law 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 shall 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 individual--
       ``(A) who is an employee (as defined in section 3);
       ``(B) who is not an employee of a public agency; and
       ``(C) to whom section 7(a) applies.
       ``(6) Employer.--The term `employer' does not include a 
     public agency.
       ``(7) 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 on a day subsequent to the day on 
     which the flexible credit hours are worked.
       ``(8) 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; or
       ``(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.
       ``(9) Regular rate.--The term `regular rate' has the 
     meaning given the term in section 7(e).''.
       (b) Remedies.--
       (1) Prohibitions.--Section 15(a)(3) of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 215(a)(3)) is amended--
       (A) by inserting ``(A)'' after ``(3)'';
       (B) by adding ``or'' after the semicolon; and
       (C) by adding at the end the following:
       ``(B) to violate any of the provisions of section 13A;''.
       (2) Remedies and sanctions.--Section 16 of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 216), as amended in section 
     2(b), is further amended--
       (A) in subsection (c)--
       (i) in the first sentence--

       (I) by inserting after ``7 of this Act'' the following: ``, 
     or of the appropriate legal or monetary equitable relief 
     owing to any employee or employees under section 13A''; and
       (II) by striking ``wages or unpaid overtime compensation 
     and'' and inserting ``wages, unpaid overtime compensation, or 
     legal or monetary equitable relief, as appropriate, and'';

       (ii) in the second sentence, by striking ``wages or 
     overtime compensation and'' and

[[Page S2002]]

     inserting ``wages, unpaid overtime compensation, or legal or 
     monetary equitable relief, as appropriate, and''; and
       (iii) in the third sentence--

       (I) by inserting after ``first sentence of such 
     subsection'' the following: ``, or the second sentence of 
     such subsection in the event of a violation of section 
     13A,''; and
       (II) by striking ``wages or unpaid overtime compensation 
     under sections 6 and 7 or'' and inserting ``wages, unpaid 
     overtime compensation, or legal or monetary equitable relief, 
     as appropriate, or'';

       (B) in subsection (e)--
       (i) in the second sentence, by striking ``section 6 or 7'' 
     and inserting ``section 6, 7, or 13A''; and
       (ii) in the fourth sentence, in paragraph (3), by striking 
     ``15(a)(4) or'' and inserting ``15(a)(4), a violation of 
     section 15(a)(3)(B), or''; and
       (C) by adding at the end the following:
       ``(g)(1) In addition to any amount that an employer is 
     liable under the second sentence of subsection (b) for a 
     violation of a provision of section 13A, an employer that 
     violates section 13A(d) shall be liable to the employee 
     affected for an additional sum equal to that amount.
       ``(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.''.
       (c) Notice to Employees.--Not later than 30 days after the 
     date of enactment of this Act, the Secretary of Labor shall 
     revise the materials the Secretary provides, under 
     regulations contained in section 516.4 of title 29, Code of 
     Federal Regulations, to employers for purposes of a notice 
     explaining the Fair Labor Standards Act of 1938 (29 U.S.C. 
     201 et seq.) to employees so that the notice reflects the 
     amendments made to the Act by this section.

     SEC. 4. PROTECTIONS FOR CLAIMS RELATING TO COMPENSATORY TIME 
                   OFF IN BANKRUPTCY PROCEEDINGS.

       Section 507(a)(3) of title 11, United States Code, is 
     amended--
       (1) by striking ``for--'' and inserting the following: ``on 
     the condition that all accrued compensatory time off (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
       (2) in subparagraph (A), by inserting before the semicolon 
     the following: ``or the value of unused, accrued compensatory 
     time off (as defined in section 7 of the Fair Labor Standards 
     Act of 1938 (29 U.S.C. 207))''.

     SEC. 5. CONGRESSIONAL COVERAGE.

       Section 203 of the Congressional Accountability Act of 1995 
     (2 U.S.C. 1313) is amended--
       (1) in subsection (a)--
       (A) in paragraph (1), by striking ``and section 12(c)'' and 
     inserting ``section 12(c), and section 13A''; and
       (B) by striking paragraph (3);
       (2) in subsection (b)--
       (A) by striking ``The remedy'' and inserting the following:
       ``(1) In general.--Except as provided in paragraphs (2) and 
     (3), the remedy''; and
       (B) by adding at the end the following:
       ``(2) Compensatory time.--The remedy for a violation of 
     subsection (a) relating to the requirements of section 7(r) 
     of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(r)) 
     shall be such remedy as would be appropriate if awarded under 
     subsection (b) or (f) of section 16 of such Act (29 U.S.C. 
     216).
       ``(3) Biweekly work programs and flexible credit hours 
     programs.--The remedy for a violation of subsection (a) 
     relating to the requirements of section 13A of the Fair Labor 
     Standards Act of 1938 shall be such remedy as would be 
     appropriate if awarded under sections 16 and 17 of such Act 
     (29 U.S.C. 216, 217) for such a violation.''; and
       (3) in subsection (c), by striking paragraph (4).

     SEC. 6. TERMINATION.

       The authority provided by this Act and the amendments made 
     by this Act terminates 5 years after the date of enactment of 
     this Act.
                                  ____


                          Legislative Summary


             the family time and workplace flexibility act

                          Section 2, Comp Time

       Gives employers and employees (who have been employed for 
     at least 12 months by the employer, and for at least 1,250 
     hours of service with the employer during the previous 12-
     month period) the option of comp time in lieu of monetary 
     overtime compensation, at the rate of 1 and \1/2\ hours of 
     comp time for each hour of overtime worked.
       Where a collective bargaining agreement is in place, an 
     employer would have to work within that context in shaping 
     any comp time program.
       Where there is no collective bargaining agreement in place, 
     the employer and the individual employee would be allowed to 
     enter into a ``written agreement'' with respect to comp time. 
     Such an agreement must be completely voluntary and must be 
     arrived at before the performance of the work.
       The employer is prohibited from directly or indirectly 
     intimidating, threatening, coercing or attempting to 
     intimidate, threaten or coerce any employee in agreeing to 
     the comp time option nor may acceptance of comp time be a 
     condition of employment or of working overtime.
       Employees may not accrue more than 160 hours of comp time. 
     If unused, such hours must be cashed out at the end of the 
     preceding calendar year or not later than 31 days after the 
     end of an alternative 12-month period designated by the 
     employer. An employer may, upon 30 days written notice to the 
     employee, cash-out all hours banked in excess of 80. 
     Employees who terminate their employment either voluntarily 
     or involuntarily must be paid for any unused comp time.
       An employee may withdraw an agreement at any time by 
     submitting a written notice of withdrawal to the employer and 
     an employer must, within 30 days after receiving the written 
     request, provide the employee the monetary compensation due.
       An employer may discontinue offering comp time after 
     providing 30 days' notice.
       Comp time may be used upon request by a worker within a 
     reasonable period after making the request if it does not 
     unduly disrupt the operations of the employer.

      Section 3, Bi-Weekly Work and Flexible Credit Hour Programs

       Gives employers and employees the option of a 2-week 80 
     hour work period during which, without incurring an overtime 
     penalty, up to 10 hours could be ``flexed'' between the two 
     week period. Employees could, if agreed upon by their 
     employers, choose to work 2 weeks of 40 hours each, 50 hours 
     in one week and 30 in another, etc. Employers would not be 
     required to pay overtime rates (time-and-a-half) until 80 
     hours had been worked in 2 calendar weeks. For hours worked 
     in excess of 80 in a 2 week period, a worker would have to be 
     compensated either in cash or in paid comp time (if the 
     employer has agreed to a comp time option)--each at not less 
     than a time-and-a-half-basis.
       Gives employers and employees the option of a ``flexible 
     credit hour program,'' under which the employer and employee 
     can agree to allow the employee to work excess hours in his 
     schedule in order to accrue hours to be taken off at a later 
     time. The employee would receive one hour of time off for 
     every excess hour worked.
       The flexible credit hour option is for employees who do not 
     get the opportunity to work overtime, but still want a way to 
     build up hours to take off later.
       Employees may accrue up to 50 flexible credit hours.
       Like comp time, these programs are completely voluntary and 
     may not affect collective bargaining agreements that are in 
     force.
       Discontinuance rules for these programs are similar to 
     rules for comp time.

             Section 4, Protections in Cases of Bankruptcy

       Amends the Federal bankruptcy code to grant third priority 
     (allowed unsecured claims for wages, salaries, or 
     commissions) in bankruptcy proceedings to claims relating to 
     compensatory time off.

                   Section 5, Congressional Coverage

       Congressional employees would have access to comp time, 
     biweekly work programs, and flexible credit hours.

                         Section 6, Termination

       The provisions sunset after 5 years.
                                  ____


                [From the Washington Post, Feb. 4, 2003]

                             The Regulators

                          (By Cindy Skrzycki)


                  Businesses Sore About Medical Leave

       It was the Labor Department's 1996 ruling that counted the 
     common cold, flu, earaches, headaches and other routine 
     ailments as ``serious health conditions'' that put many 
     employers in a swivet over benefits offered under the Family 
     and Medical Leave Act.
       The business community, fearing employees would be absent 
     from work for minor ailments, geared up almost immediately to 
     press Congress and the Labor Department for ``technical 
     corrections'' to the rules.
       The law, passed a decade ago, provides workers at companies 
     with more than 50 employees up to 12 weeks or unpaid leave 
     and job protection for the birth or adoption of a child, to 
     care for an immediate family member, or to tend to a serious 
     health condition. Businesses felt so strongly about the need 
     to ``fix'' some of the rules that they created the FMLA 
     Technical Corrections Coalition in 1997, and about 300 
     companies and trade associations joined. They testified, 
     lobbied and complained about problems with the rules, 
     especially the guidance on what constitutes a serious health 
     condition. The Clinton administration, which viewed the law 
     as a signature piece of legislation, was not disposed to 
     change the rules. In surveys done for the Labor Department, 
     Clinton regulators insisted that companies were not finding 
     it onerous to comply. A Labor survey in 2000, for example, 
     said millions of workers have taken the leave, using it 
     ``infrequently and for relatively short periods of time.''
       The Bush administration has been more receptive to industry 
     complaints and is talking to business groups, AARP, unions 
     and women's advocacy groups about what works and doesn't work 
     with the regulations.
       ``The employer community has come in with very specific, 
     very targeted issues in very specific areas of the 
     regulations,'' said Victoria A. Lipnic, assistant secretary 
     for the Employment Standards Administration. ``These are 
     listening sessions on our part. The biggest thing we hear is 
     the chronic use of unforeseen, intermittent leave.''
       Lipnic said the department hopes to reorganize the rules 
     and eliminate some of the

[[Page S2003]]

     complexity to make them more efficient for employers and 
     employees alike. She added that the department has to change 
     some of the notification requirements that employers have to 
     abide by because a recent Supreme Court decision found 
     employers did not have to offer 12 weeks of family leave on 
     top of other, more generous leave policies.
       ``No one debates the 12-week leave or the family-leave part 
     of the legislation,'' said Randel Johnson, vice president of 
     labor, immigration and employee benefits at the U.S. Chamber 
     of Commerce. ``It's the medical leave part that causes the 
     problem.''
       Johnson, who was the staff aide who wrote the minority 
     views when the original legislation passed the House, 
     predicted at the time that administration would be unworkable 
     and lead to extensive litigation. For some companies, those 
     problems have come to pass and so has the litigation. There 
     have been some 1,300 federal cases dealing with various 
     aspects of the law, according to the Labor Department.
       Though Congress made it clear that the leave was to be 
     applied to ``serious medical conditions,'' such as cancer, 
     surgeries and pregnancy-related issues, the rules were 
     interpreted otherwise.
       The 1996 opinion letter that triggered business outrage 
     said an employee is eligible for leave if he is out for more 
     than three days and is receiving treatment, such as 
     antibiotics for the flu. That interpretation followed an 
     opinion from the department the year before that said exactly 
     the opposite.
       ``Whenever we have seminar or a breakout session [on the 
     law] at a conference, it's packed to capacity,'' said Deron 
     Zeppelin, director of governmental affairs for the Society 
     for Human Resource Management, a group of business benefits 
     managers. ``When you're dealing with the realities of the 
     workplace, the law becomes more difficult. No one thought 
     when it was passed that people would get [medical] 
     certification to take off time whenever they want.''
       One large corporation, which asked not to be named, said 90 
     percent of the leave its workers take falls into the 
     ``serious medical condition'' category, not the care of 
     family members. Company officials said the leave has been 
     taken for pinkeye, poison ivy, stress and tooth extraction. 
     ``People use this as a way to get additional sick leave 
     without any repercussions,'' said a company official.
       Business lobbyists want to tighten the definition of what 
     constitutes a serious health condition. The also want to 
     restrict employees to taking the leave in half-day chunks--
     now, it can be taken in the smallest increments their payroll 
     systems can track, and that can be minutes. They also want 
     employees to be responsible for requesting leave under the 
     act, instead of requiring that companies tell them about it.
       Labor unions and women's groups who fought for passage of 
     the law have been watching warily, especially since the Bush 
     administration recently threw out a Clinton-era rule that 
     allowed states to pay for family leave through their 
     unemployment funds. They would like to see the law expanded 
     to cover other absences, such as teacher conferences or to 
     allow employees to take a sick parent to a doctor's 
     appointment. They also would like the leave to be paid, which 
     would require new legislation, and cover more employees.
       Christine Owens, director of public policy for the AFL-CIO, 
     said business is overstating the seriousness of the problems 
     and they probably could be fixed with ``modest tinkering.'' 
     Judith L. Lichtman, president of the National Partnership for 
     Women & Families, said the problems employers are complaining 
     about are of ``questionable merit.''
       ``If the Bush administration wants to think of itself as 
     family-friendly, it should put its policies where its 
     rhetoric is--expand on existing FMLA rights,'' Lichtman said. 
     ``It's an incredibly popular program that has made a 
     difference in the lives of working people.''
                                 ______