[Congressional Record Volume 159, Number 153 (Wednesday, October 30, 2013)]
[Senate]
[Pages S7675-S7682]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. HATCH:
S. 1612. A bill to deter abusive patent litigation by targeting the
economic incentives that fuel frivolous lawsuits; to the Committee on
the Judiciary.
Mr. HATCH. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1612
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Patent
Litigation Integrity Act of 2013''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--MANDATORY FEE SHIFTING
Sec. 101. Litigation and other expenses.
TITLE II--DISCRETIONARY BONDING
Sec. 201. Motion for a bond.
TITLE I--MANDATORY FEE SHIFTING
SEC. 101. LITIGATION AND OTHER EXPENSES.
(a) In General.--Section 285 of title 35, United States
Code, is amended to read as follows:
``Sec. 285. Fees and other expenses
``The court shall award to a prevailing party reasonable
fees and other expenses, including attorney fees, incurred by
that party in connection with a civil action in which any
party asserts a claim for relief arising under any Act of
Congress relating to patents, unless the court finds that the
position and conduct of the nonprevailing party or parties
were substantially justified or that special circumstances
make an award unjust.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 29 of title 35, United States Code, is
amended by striking the item relating to section 285 and
inserting the following:
``285. Fees and other expenses.''.
TITLE II--DISCRETIONARY BONDING
SEC. 201. MOTION FOR A BOND.
(a) In General.--Chapter 29 of title 35, United States
Code, is amended by inserting after section 285 the
following:
``Sec. 285A. Motion for a bond
``(a) In General.--The court, on motion by the defendant or
a respondent in a proceeding, may order the party alleging
infringement to post a bond sufficient to ensure payment of
the accused infringer's reasonable fees and other expenses,
including attorney fees.
``(b) Factors to Be Considered.--For purposes of this
section, in determining whether a bond requirement would be
unreasonable or unnecessary, the court shall consider--
``(1) whether the bond will burden the ability of the party
alleging infringement to pursue activities unrelated to the
assertion, acquisition, litigation, or licensing of any
patent;
``(2) whether the party alleging infringement is--
``(A) an institution of higher education (as defined in
section 101(a) of the Higher Education Act of 1965 (20 U.S.C.
1001(a)); or
``(B) a non-profit technology transfer organization whose
primary purpose is to facilitate the commercialization of
technologies developed by one or more institutions of higher
education;
``(3) whether a licensee, who has an exclusive right under
a patent held by an institution of higher education or a non-
profit organization described in paragraph (2), conducts
further research on or development of the subject matter to
make the subject matter more licensable;
``(4) whether the party alleging infringement is a named
inventor of or an original assignee to an asserted patent;
``(5) whether the party alleging infringement makes or
sells a product related to the subject matter described in an
asserted patent;
``(6) whether the party alleging infringement can
demonstrate that it has and will have the ability to pay the
accused infringer's fees and other expenses if ordered to do
so; and
``(7) whether any party will agree to pay the accused
infringer's shifted fees and other expenses, provided that
the person or entity can demonstrate that it has and will
have the ability to pay the accused infringer's shifted fees
and other expenses.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 29 of title 35, United States Code, as
amended by section 101, is amended by inserting after the
item relating to section 285 the following:
``285A. Motion for a bond.''.
______
By Mr. JOHNSON of Wisconsin (for himself, Ms. Ayotte, Mr.
Barrasso, Mr. Blunt, Mr. Boozman, Mr. Chambliss, Mr. Chiesa,
Mr. Coburn, Mr. Cochran, Ms. Collins, Mr. Cornyn, Mr. Crapo,
Mr. Enzi, Mrs. Fischer, Mr. Flake, Mr. Grassley, Mr. Hatch, Mr.
Hoeven, Mr. Inhofe, Mr. Isakson, Mr. Johanns, Mr. Kirk, Mr.
McCain, Mr. McConnell, Mr. Moran, Mr. Paul, Mr. Portman, Mr.
Risch, Mr. Roberts, Mr. Rubio, Mr. Scott, Mr. Sessions, Mr.
Thune, Mr. Toomey, Mr. Vitter, Mr. Wicker, Mr. Graham, and Mr.
Corker):
S. 1617. A bill to amend the Patient Protection and Affordable Care
Act to ensure that individuals can keep their health insurance
coverage; to the Committee on Health, Education, Labor, and Pensions.
Mr. JOHNSON of Wisconsin. Mr. President, I come before you today to
introduce a piece of legislation which is timely and very much needed.
One of the reasons I decided to run for the Senate was the passage of
the health care law. The reason I thought it was pretty important is
because I said at the time that passage of the
[[Page S7676]]
health care law represented the greatest assault on our freedoms in my
lifetime. I believe that is true, and I believe that is being borne out
today. We are witnessing it today.
The passage of the health care law resonated with me. It made such an
impact on me because my wife and I are beneficiaries of the freedom
that we had with our current health care system. Our first child, our
daughter Carey was born with a very serious congenital heart defect.
Her aorta and pulmonary arteries were reversed. Her first day of life,
our daughter Carey was rushed down to Children's Hospital of Wisconsin
in Milwaukee, where a wonderful man, Dr. John Thomas, came in at 1:30
in the morning and did a procedure and saved her life.
Eight months later, when her heart was the size of a small plum,
another incredibly dedicated team of medical professionals in 7 hours
of open-heart surgery totally reconstructed the upper chamber of her
heart. Her heart operates backwards today. She is 30 years old and a
nurse practitioner practicing at that same hospital in which her life
was saved. She married about 3 weeks ago.
Our story has a happy ending because my wife Jane and I had that
freedom. I was able to call Boston Children's and Chicago children's
hospitals and talk to the preeminent surgeons in the world--which means
in America--and find out what is the most advanced medical treatment,
the most advanced surgical technique at the time. We were able to avail
ourselves of that, and now I have a beautiful daughter who is 30 years
old. She is also taking care of those little babies in a neonatal
intensive care unit.
I decided to file this piece of legislation today because as a
Senator from the State of Wisconsin we have been getting a number of
phone calls in our office from Wisconsinites who are getting letters of
cancellation from their insurance companies. In particular, one couple
touched my heart and gave me a great cause for concern.
This couple--who do not want to be identified because they fear IRS
retribution, which is a little different story and a little off topic,
but I think it is worth pointing out--both have cancer. The wife has
stage IV lung cancer. The husband is recovering from prostate cancer.
It is in remission.
This couple had availed themselves and are currently covered under
the Wisconsin high-risk insurance pool. It is a high-risk pool that
works. I know in my business, when we had individuals who were lasered
off of our insurance policy, those individuals were able to avail
themselves of this sharing-of-the-risk pool in the high-risk pool. It
works and it is affordable.
This couple received their notice of cancellation from the high-risk
pool, and they panicked. They were in a panic.
When one has stage IV lung cancer, the last thing one needs is
stress. ObamaCare caused them a great deal of stress. It is causing
them a great deal of stress.
They tried to get on healthcare.gov almost 40 times without success.
They contacted our office. We have done everything we can to help them.
They have been in touch with some of the insurance carriers that will
be part of the exchange participating in Wisconsin. They have received
quotes. This was preliminary. This isn't final, but under the high-risk
pool their maximum out-of-pocket exposure, including the cost of their
premiums, is about $20,000 per year. He is working and has a good job.
They can barely afford that.
Preliminary indications show that exposure will double to $40,000.
The only reason they might remain whole is they may qualify for a
subsidy. Nobody can calculate it yet. They have received three
different answers. It is like taking a tax return to 100 different
preparers and getting 100 different results of what tax is owed. But
based on those preliminary estimates it is looking as though their
total exposure won't be $20,000, it will be more like $40,000, and
their subsidy might cover half of that. So their health care expense
didn't decline, as President Obama promised, by $2,500 per year. It is
going to virtually double. And if it doesn't double, it is because the
American taxpayer will be picking up that other half.
So one of the primary promises made by President Obama--that if we
passed a health care law, the cost to a family health care plan would
decline by $2,500 a year by the end of his first term--has been broken.
That was not true.
Of course, the other very famous promise the President made
repeatedly was: If you like your health care plan, you can keep your
health care plan. I would like to go through a number of times
President Obama actually made that statement. He looked the American
people in the eye, trying to sell his health care plan, and guaranteed
them if they liked their health care plan they would be able to keep
it.
On March 6, 2009, he said:
If somebody has insurance they like, they should be able to
keep that insurance. If they have a doctor they like, they
should be able to keep their doctor.
On May 11, 2009:
Americans must have the freedom to keep whatever doctor and
health care plan they have.
On June 2, 2009:
If they like the coverage they have now, they can keep it.
That was from a letter to Senate Democratic leaders.
On June 11, 2009, President Obama said:
Americans must have the freedom to keep whatever doctor and
health care plan they have.
On June 15, 2009--and this is probably the most famous one I
remember--in an address to the American Medical Association, President
Obama said:
If you like your doctor, you will be able to keep your
doctor. Period. If you like your health care plan, you will
be able to keep your health care plan. Period. No one will
take it away. No matter what.
I think I have made my point, but I have another 13 quotes I can
continue reading that basically make the same point with the same
promise and the same guarantee.
As recently as the beginning of this month, on the White House Web
site it says:
We've got some good news for you. If you currently have
private health insurance, you should be able to keep it, and
that's exactly what the health care law says.
Unfortunately, today over 2 million Americans have received
cancellation notices of their insurance policies--the policies they
chose, and that for just a little more time they will have the freedom
to choose. They won't have that freedom come January 1.
So one of two possibilities is true. Either President Obama was being
entirely dishonest with the American public when he made those repeated
promises, those repeated guarantees or he was totally disengaged from
the process, did not have a clue what was in his own health care plan
or did not understand the incredibly negative consequences of that
health care plan.
That brings me to my bill. The reason President Obama can claim if
you like your health care plan you can keep it is that within the
health care bill there actually is a grandfather clause. The first two
paragraphs of that grandfather clause actually would work. The problem
is those first two paragraphs or sections are followed by an
evisceration of the grandfather clause. So basically what we have is a
phony grandfather clause contained within the Patient Protection and
Affordable Care Act.
My piece of legislation--the If You Like Your Health Plan You Can
Keep it Act--actually is a real grandfather clause and it uses
President Obama's exact language. All my bill does is it simply strikes
the phony grandfather clause and inserts basically the exact same
language that was there, although we remove those exceptions, those
mandates. In other words, we eviscerate the evisceration of the
grandfather clause.
I am here today to announce I have filed that bill. We have at least
35 Republican cosponsors of the bill. I know the House is moving a
similar piece of legislation. I know there is talk, and hopefully we
will be joined by our Democratic colleagues. It is a simple
proposition. I am asking every Senator to join me in passing this bill,
the true grandfather clause, to help President Obama keep his promise
to the American people.
I have to say that, unfortunately, this bill won't help the Wisconsin
couple I would so like to help, so like to guarantee they can keep
their health care coverage. The only way we can help that couple is if
we repeal the entire law, because the guaranteed issue,
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high-risk pools are extinct. They do not exist. That coverage is gone.
But if my Democratic Senate colleagues will join me in passing this
bill--the If You Like Your Health Plan You Can Keep it Act--we can keep
President Obama's promise to millions of Americans. I think it is worth
it, and I ask all my Senate colleagues to join me in this effort.
______
By Ms. COLLINS (for herself, Mrs. McCaskill, Ms. Ayotte, and Ms.
Heitkamp):
S. 1618. A bill to enhance the Office of Personnel Management
background check system for the granting, denial, or revocation of
security clearances or access to classified information of employees
and contractors of the Federal Government; to the Committee on Homeland
Security and Governmental Affairs.
Ms. COLLINS. Mr. President, today, Senator McCaskill, Senator Ayotte,
Senator Heitkamp, and I are introducing the Enhanced Security Clearance
Act of 2013, which would strengthen our process for allowing federal
employees and other individuals to have access to classified
information. We must improve our current security clearance process to
prevent, as much as possible, future incidents such as the murders at
the Washington Navy Yard. Our bill directs OPM to institute at least
two audits of every security clearance at random times during each
five-year period the clearance is active. Any red flags raised would
then be reported back to the employing agency to determine if a re-
investigation of the clearance is needed.
As a former Chairman and Ranking Member of the Homeland Security and
Governmental Affairs Committee, the issue of background investigations
as it relates to security clearances is an issue with which I am well
acquainted. There needs to be a balance between processing of
clearances quickly enough to allow individuals to do their jobs, but
also thoroughly enough to flag potential problems.
Following the attacks of September 11, 2001, and several high-profile
espionage cases, heightened national security concerns underscored the
need for a timely, high-quality personnel security clearance process.
In the early part of this decade, the Department of Defense processed
hundreds of thousands of security clearance background investigation
requests--both initial and re-clearances, for service members,
government employees, and industry personnel who were conducting
classified work for the government. The timeliness of DOD's security
clearance process was a problem which, when coupled with an increased
demand for security clearances, had led to a backlog of more than
500,000 investigations.
Delays in updating overdue clearances for command, agency, and
industry personnel performing classified government work increased
risks to national security and the costs of doing classified government
work. This led GAO to designate the DOD clearance program as a high-
risk area, and in 2005 for DOD to transfer its personnel security
function and about 1,600 personnel to OPM. At the time, this change
seemed a logical step in addressing the problems caused by the backlog.
And by 2008 OPM had eliminated the backlog and announced end-to-end
electronic processing of background investigations. Now, OPM oversees
approximately 90 percent of all background investigations for security
clearances with the assistance of private sector contractors.
Although we have made significant advances in the processing of
background checks, there is still a gaping hole in the current security
clearance process that has enabled people who exhibit obvious signs of
high-risk behavior to remain undetected. We have seen this time and
time again in incidents like Edward Snowden's disclosure of stolen
classified information, and most recently we have Aaron Alexis, the
Navy Yard shooter with apparently severe mental illness.
Once an individual is cleared, the process of maintaining the
clearance requires a reinvestigation at various points in time based
upon the type of clearance. These ``gaps'' between clearance and re-
clearance can be 5, 10 or even 15 years, and most of the data is self-
reported by the individuals themselves. These periods of time pose a
significant concern in the current clearance process. OPM has
announced, in some cases, that it is going to reduce the time frame
down to one year, but this is not the case for all clearances. People's
lives may change dramatically over these gaps of time, which poses
significant and unnecessary security risks.
The United States issues approximately 5 million clearances to
government employees and contractors, and the ongoing review process is
conducted manually, by a limited number of investigators. Further, the
manual process is flawed. The OPM Inspector General recently reviewed
18 investigators and found disturbing abuses in the quality of
clearance investigations they conducted, which included interviews that
never occurred, answers to questions that were never asked, and record
checks that were never conducted. Even if done properly, however, given
the limited number of investigative agents in the field, it is not
feasible to manually track nearly five million clearances effectively.
For example, in fiscal year 2010, fewer than one percent of all
contractors with clearances filed an incident report, despite the fact
that they are required to file these reports on a wide variety of
events including marital status change, excessive financial hardship,
and criminal activity, to maintain their clearance. Generally, such
events occur in the lives of more than half of the U.S. population
during the same time periods. The fact is, cleared personnel under-
report lifestyle changes, allegiance changes, and derogatory
information for fear of job loss, embarrassment, and, most important,
the discovery of nefarious intent. Further, because the system relies
on self-reported data, the chances of someone getting caught are
minimal. Between 1997 and 2013, of the civilian clearances issued,
fewer than one percent were revoked. This can mean that the people who
are cleared very seldom-go bad, that cleared individuals are not self-
reporting changes in their lives, or the current process is not
detecting everything.
In 2004, I sponsored the Intelligence Reform and Terrorism Prevention
Act, which became law in December of that year. This law allows for the
use of advanced technology and third party databases to expedite,
verify, and enhance the investigative and adjudicative process. The
government needs to utilize existing solutions, which are already used
by law enforcement, to automate random audits on individuals with
active security clearances.
If random audits had been in place after Aaron Alexis's secret
clearance was granted in 2007, red flags would have been generated with
his arrest in 2009 and the two liens on his property, which could
indicate potential excessive financial hardship. Further, it may have
identified a potential alias with a vast social media trail indicating
other concerning traits. The alerts generated would have prompted OPM
to notify DOD, which would have provoked a reevaluation before Alexis's
2017 re-clearance. This re-evaluation could have discovered that he
openly discussed ``hearing voices,'' a clear sign of his mental
illness. A random audit would have alerted OPM of these new issues and
potentially averted tragedy.
The OPM Background Investigation process must be capable of flagging
high-risk individuals holding clearances and alert case officers of
situations requiring review before any adverse consequence takes place.
The current process, however, is dated, but the system can be
strengthened to better help the government identify these dangerous
individuals. OPM must address the blind spots that exist in the current
manual security clearance review process. The shooting tragedies at the
Washington Navy Yard, along with the information security breaches
perpetrated by Bradley Manning and Edward Snowden, have demonstrated
that the current security clearance process is inadequate.
This legislation has been endorsed by the Federal Managers
Association; the FBI Agents Association; the Alcohol-Tobacco-Firearms
and Explosives Association; The International Association of Chiefs of
Police; The International Federation of Professional and Technical
Engineers, AFL-CIO & CLC; The National Native American Law Enforcement
Association; TechAmerica; General Dynamics Information Technologies;
LexisNexis; Lt. Gen. Charles
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J. Cunningham Jr., Former Director of the Defense Security Service,
1999-2002; Brian Stafford, Former Director of the United States Secret
Service, 1999-2003; Howard Safir, Former Police Commissioner of New
York City, 1996-2000; Floyd Clarke, Former Director of the Federal
Bureau of Investigation, 1993; and Michael Sullivan, Former Acting
Director of the ATF, 2006-2009, and US Attorney for the District of
Massachusetts, 2001-2009.
We must act now. Our legislation represents a sensible path forward
to protect national security and to help prevent future tragedies. I
urge my colleagues to support this common sense solution.
______
By Mr. CORNYN:
S. 1620. A bill to prohibit the consideration of any bill by Congress
unless a statement on tax transparency is provided in the bill; to the
Committee on Finance.
Mr. CORNYN. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1620
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 ``Tax Transparency Act of
2013''.
SEC. 2. TAX EFFECT TRANSPARENCY.
(a) In General.--Chapter 2 of title 1, United States Code,
is amended by inserting after section 102 the following:
``Sec. 102a. Tax effect transparency
``(a) In General.--Each Act of Congress, bill, resolution,
conference report thereon, or amendment there to, that
modifies Federal tax law shall contain a statement describing
the general effect of the modification on Federal tax law.
``(b) Failure to Comply.--
``(1) In general.--A failure to comply with subsection (a)
shall give rise to a point of order in either House of
Congress, which may be raised by any Senator during
consideration in the Senate or any Member of the House of
Representatives during consideration in the House of
Representatives.
``(2) Nonexclusivity.--The availability of a point of order
under this section shall not affect the availability of any
other point of order.
``(c) Disposition of Point of Order in the Senate.--
``(1) In general.--Any Senator may raise a point of order
that any matter is not in order under subsection (a).
``(2) Waiver.--
``(A) In general.--Any Senator may move to waive a point of
order raised under paragraph (1) by an affirmative vote of
three-fifths of the Senators duly chosen and sworn.
``(B) Procedures.--For a motion to waive a point of order
under subparagraph (A) as to a matter--
``(i) a motion to table the point of order shall not be in
order;
``(ii) all motions to waive one or more points of order
under this section as to the matter shall be debatable for a
total of not more than 1 hour, equally divided between the
Senator raising the point of order and the Senator moving to
waive the point of order or their designees; and
``(iii) a motion to waive the point of order shall not be
amendable.
``(d) Disposition of Point of Order in the House of
Representatives.--
``(1) In general.--If a Member of the House of
Representatives makes a point of order under this section,
the Chair shall put the question of consideration with
respect to the proposition of whether any statement made
under subsection (a) was adequate or, in the absence of such
a statement, whether a statement is required under subsection
(a).
``(2) Consideration.--For a point of order under this
section made in the House of Representatives--
``(A) the question of consideration shall be debatable for
10 minutes, equally divided and controlled by the Member
making the point of order and by an opponent, but shall
otherwise be decided without intervening motion except one
that the House of Representatives adjourn or that the
Committee of the Whole rise, as the case may be;
``(B) in selecting the opponent, the Speaker of the House
of Representatives should first recognize an opponent from
the opposing party; and
``(C) the disposition of the question of consideration with
respect to a measure shall be considered also to determine
the question of consideration under this section with respect
to an amendment made in order as original text.
``(e) Rulemaking Authority.--The provisions of this section
are enacted by the Congress--
``(1) as an exercise of the rulemaking power of the House
of Representatives and the Senate, respectively, and as such
they shall be considered as part of the rules of each House,
respectively, or of that House to which they specifically
apply, and such rules shall supersede other rules only to the
extent that they are inconsistent therewith; and
``(2) with full recognition of the constitutional right of
either House to change such rules (so far as relating to such
House) at any time, in the same manner, and to the same
extent as in the case of any other rule of such House.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 2 of title 1, United States Code, is
amended by inserting after the item relating to section 102
the following new item:
``102a. Tax effect transparency.''.
______
By Ms. HEITKAMP (for herself and Ms. Murkowski):
S. 1622. A bill to establish the Alyce Spotted Bear and Walter
Soboleff Commission on Native Children, and for other purposes; to the
Committee on Indian Affairs.
Ms. MURKOWSKI. Mr. President, I rise today to speak to an issue in my
State of Alaska, in the State of North Dakota--quite honestly, in so
many of our home States. We have facts, we have statistics, and we have
issues that face our indigenous peoples, most particularly our
indigenous children that, truth be told, are not what we want to write
home about. In fact, in many, many cases, these statistics are
shameful.
The effort and the initiative to make a difference in the lives of
the children of our first peoples is an effort I want to speak to
today, and I join with my colleague from North Dakota in addressing
this issue. I want to help shine a light on the conditions facing
indigenous children in our country to whom the United States has a
legal commitment. This is a Federal trust responsibility that is owed
to these children.
I thank Senator Heitkamp for her commitment and for her compassion to
address these issues facing our Nation's indigenous children by
introducing legislation to establish the Commission on Native Children.
I will defer to my colleague so we can have a conversation about this,
but it is important to note that the very first time I had ever met
Senator Heitkamp, we literally exchanged handshakes, introduced
ourselves, and within 5 minutes we were talking about children's
issues, Native children's issues in our respective States. That little
5-minute discussion led to much further discussion later on and a
commitment to work to address these issues.
I do have many remarks I would like to make this afternoon, but I
would like my colleague from North Dakota, who has worked so diligently
on this issue, with her staff working with my staff, to describe to our
colleagues the legislation that today we are both introducing
establishing the Commission on Native Children.
The PRESIDING OFFICER. The Senator from North Dakota.
Ms. HEITKAMP. Mr. President, I will start with a story because I
think a lot of us come to the Senate with a lot of experiences, a lot
of common experiences, and I think the Senator from Alaska and I have
shared this common experience of seeing the despair, looking at the
statistics, but more importantly, in my case, in Indian Country, and in
her case, working with indigenous people, seeing that so much more
needs to be done; seeing the disparities in education, seeing the
disparities in health care, seeing the disparities in housing, and
recognizing that all of those things have huge consequences; seeing
what high poverty does to people who are not given the right
opportunities.
I think frequently it is so important that we do something like this
so we can begin that process of educating our colleagues on how this
situation is different, what our experiences are. If you have not seen
or been in Indian Country, if you have not looked at the statistics, it
is alarming. It is absolutely alarming.
The story I want to give before I talk about our legislation is the
statistic on mortality rates. In this country, child mortality has
decreased by 9 percent since 2000. That is good news. We are paying
more attention, doing a better job at infancy, doing a better job
raising our kids. The child mortality rate among Native children has
increased 15 percent--increased 15 percent at the same time it has
decreased in this country 9 percent. We have tried various programs,
whether it is housing programs, education programs, higher education
programs, but we know this works better if we all work together and if
we work collaboratively.
I know a lot of people have suspicions about things called
commissions, but I
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believe for the first time we will be pulling together the data
regarding what is exactly the status of Native children all across the
United States of America--in Alaska, Alaska indigenous people, as well
as Alaskan folks--and saying: Where do we begin to understand this
problem differently and change outcomes, because if we keep doing what
we are doing right now, we will fail the next generation of Native
children, and we will fail to do what we need to do. This is not a new
issue for me. When I was attorney general, I spent a lot of time in
Indian Country, a lot of time on Indian issues.
I want to tell a story before I describe briefly what this Commission
would do. It is a story about a woman who showed up at a conference. We
were talking about trying to get resources to do a conference on
juvenile crime on the reservations. She told a story about how she was
dyslexic as a child and her mother was not a very patient woman. She
was waiting to go to a birthday party, and she was sitting and looking
out the window, and she would ask her mother every 5 minutes: Is it
time yet? Are they going to come? Finally, her mother, out of
frustration, took this little girl's hand and dragged it back and forth
across a nail that was on the window ledge and said: Maybe now you will
remember. She held up her hand, and you could still see the scars. And
she said something I will never forget. She said: Who cares about me? I
looked out that window and thought, who is going to come and help me?
All across America there are children looking out a window in Indian
Country and in all of these very remote places wondering who is going
to care about them. Who is going to help them? When we have trust
obligations, isn't that the job of the U.S. Congress? Isn't that the
job of all of us, to care about all of our children? Yet these children
are left behind.
Time and time again, you will read a story in the paper about an
abducted child, and you do not realize there could have been 10
children abducted off a reservation in North Dakota. You do not read a
story about trafficking in North Dakota, but it is happening. You do
not read a story about child abuse and neglect, and it is happening, or
failed schools, schools whose roofs are caving in because we have not
met our education obligation.
So what this Commission would do is bring attention to this very
important part of our population, the part that gets left behind, that
no one looks out for, and start saying: What are we going to do
differently? What are we going to do differently for our children?
These are all our children.
I can tell you I felt a kindred spirit when I began to talk about
this issue with the Senator from Alaska and talk about how important it
is for people to really understand those challenges and how important
it is to prevent costs later on if we just do a little Head Start.
Children in Indian Country go to Head Start at a lower rate. Their
education system fails them. Fifty percent of Native kids graduate from
high school, compared to 75 percent in the White population.
These statistics mean a lot. We all look at statistics. But behind
each one of them is a young child struggling to make something out of
their lives in this world and wanting to believe that they matter. So
what we are doing today is establishing a commission on the status of
Indian children to simply say: You matter.
We need to come up with different ideas and different solutions on
how we are going to solve the problem. I had a great opportunity to go
to Alaska and spend some time with the Alaska corporations and the
indigenous people in Alaska. It was a new experience for me because we
are used to Indian Country. We are used to reservations.
But so many of the challenges--I am sure the Senator from Alaska
would agree--so many of the challenges are so similar in Alaska and
North Dakota, partly because of our remoteness but partly because these
are obligations that have not been lived up to. So I wish to ask the
great Senator from Alaska how she thinks this commission could work to
actually better the children, the Native children in our country?
Ms. MURKOWSKI. Mr. President, I thank my colleague. I appreciate that
as we work to advance opportunities for American Indian, Alaska Native,
Native Hawaiian children throughout the country, we remember these are
not just statistics. As horrifying as these statistics are, these
statistics truly do come to life when we hear those real stories.
When we were working with the Senator's office to develop this
legislation, kind of looking at the indigenous children in this country
through the lens of the justice system, the education system, the
health care system, and then work to provide recommendations to the
respective government agencies that will help to address these issues
that affect our Native children, we talk about the trust
responsibility.
That trust responsibility does not mean anything unless we keep our
commitment. We just simply are not keeping the commitment. The Senator
mentioned the issue of housing. Having had an opportunity to serve on
the Indian Affairs Committee now for 10 years, we hear in committee
hearing after committee hearing the situation with regard to housing
and the inadequate situation on so many of our reservations.
In the State of Alaska, our housing situation is truly a crisis in so
many places. Bethel, which is probably--I believe it is now our fourth
or fifth largest community in the State--is viewed as a hub community.
So if you come in for health care from one of the surrounding villages,
you come into Bethel. If you are trying to escape an abusive situation,
trying to get your children to safety, leaving the village, you come
into Bethel, where there is a women's shelter where you can kind of
pull yourself together.
But the problem then is, when you have been able to pull yourself
together, when your children feel they are in a safe place right now,
then there is no place for you to take your children. There is no
housing out on the market there in Bethel. So what happens. Time after
time after time the woman goes back to the abuser, the children go back
to an abusive situation, a situation where domestic violence is
oftentimes out of control.
Let me speak to just some of the statistics that we are facing in
dealing with rural justice in Alaska. Nearly 95 percent of the crimes
in rural Alaska can be traced back to alcohol abuse. By the time an
Alaska Native reaches adulthood, the chance of experiencing domestic
violence or sexual violence is 51 percent for women, 29 percent for
men. On Native children, 60 percent of the children are in need of
foster parents. I have been working on the issue of fetal alcohol
syndrome and how we raise awareness and how we eliminate this entirely
preventable disease.
I think it is noteworthy that for years I worked with Senator
Daschle, formerly of this body and the majority leader, on this
initiative. But he knew that on the reservations in his State, they
were facing the same situation that we were in Alaska with fetal
alcohol spectrum disorder. In Alaska, we have the highest rate of fetal
alcohol spectrum disorder in the Nation. But in the Native areas of the
State, they are then 15 times higher than in any of the non-Native
parts of the State; again, an area where we think, if we can make some
inroads in awareness, this is a disease that is 100 percent
preventable.
Suicide is an issue that strikes home to far too many. Alaska Native
males between the ages of 12 and 24 experience the highest rate of
suicide of any demographic within the country. We have the highest rate
of suicides per capita in the country. It is our young Native men who
drive that statistic.
When it comes to rape statistics, also a horrific example,
unfortunately, the term has been applied that Alaska is the ``rape
capital of America.'' It is our Native women--one in three--who are
experiencing much of the sexual abuse. We cannot accept this reality.
When we talk about infrastructure--I mentioned housing. We think
about the lack of public infrastructure and how that impacts the health
of a child or the health of a family. We are still a relatively young
State. You have heard me say 80 percent of our communities are not
accessible by road. So we lack certain infrastructure, including in
many of our villages basic water, basic sewer systems. We simply do not
have it. If you do not have clean water for cooking, for drinking, for
cleaning, just basic hygiene, it can be deadly for our families.
[[Page S7680]]
The CDC has determined that lack of inhome water services causes high
rates of respiratory and skin infections. We see this in our rural
Native villages. The average toddler in the United States gets RSV,
which is this respiratory syncytial virus, before they are about 2
years old. The average Alaska Native baby gets RSV before they are 11
weeks old. So they are just mere infants and they are getting this
respiratory virus because of sanitation issues.
A lack of clean drinking water, proper wastewater systems leads to
fever, to hepatitis, leads to infectious disease. Then what happens?
You are a child out in the small village. You are then sent in, your
family has to take you into Anchorage, not just one airplane flight
away, oftentimes two airplane flights, $1,000-plus airfare in the city
where your costs are high.
You think about the impact to a family when you have a sick infant,
an infant who has been sick because their family lacks basic sanitation
in this day and age.
One of the household chores--and we all had chores when we were
growing up as kids. In far too many of our villages in the State of
Alaska, one of the chores the kids have is emptying the honey bucket.
For those who do not know what a honey bucket is, a honey bucket is the
big 5-gallon bucket that you get from Home Depot with a toilet seat lid
on it that is put in the corner of the house. That is the bathroom.
You have to take that bucket out and dispose of it. You have
children, your 10-year old walking down the boardwalk with a bucket of
human waste to dump. This is happening in this day and this age. Who,
again, bears the weight of so much of this is our Native children.
Think about this from a health safety perspective.
I wish to share a story, as my colleague from North Dakota did, and
then--I just came from the Alaska Federation of Natives annual
conference. It is the largest gathering of Natives in the country. They
come from all corners of the State. It is truly like a family reunion,
usually a very upbeat, very happy occasion where people come together
for a great deal of sharing.
This year there was sharing on a personal side that perhaps we have
not witnessed before. Much of the sharing came from children, and
sharing, rather than stories of happiness and opportunities for the
future, was driven by a feeling of not helplessness--because if you are
helpless you will not speak up--but a feeling that we can no longer
remain silent.
The instances of domestic violence in the home, of child sexual
assault in the home, of alcoholism and drug abuse that brings about
attempted suicide in the home caused a group of 4-H kids from Tanana,
AK, to come together--about a half dozen of them--ages maybe 6, 7, up
to high school, to stand in front of an audience of 3,000-plus people
and say: We have had enough. We have to speak out, even though we have
been told do not talk about this; do not talk about this because it
might shame your family. These children had the courage to step forward
and say: This is not right. We are taught to respect our elders, but
when our elders do not respect us, we are going to speak out. Their
courage in front of this huge gathering was amazing. It is not unlike
the story my colleague from North Dakota just told when that young girl
looked out the window and said: Who will come and take care of me? Who
is waiting for me?
These children from Tanana were saying: We are not going to be quiet.
It ought to be us. It ought to be the grownups who are saying: Let's
take charge of this. Let's turn these horrible statistics around. Let's
make every day a better day for our children. Those kids are the real
heroes.
So when I come together with my colleagues in an effort such as
this--I am with the Senator--oftentimes we say: Oh, commissions. What
do commissions do? Maybe this starts to give some of these young people
hope, whether you are on the reservations in North Dakota or whether
you are in Tanana, AK. Maybe there is hope that the grownups out there
are listening and can work with them.
We are trying to look at this holistically, through the education
system, the health care system, and through the justice system. I am
quite pleased to be able to work with my colleague on this initiative.
I do not think there is anything more important that we can be doing
for our young people than to offer them a ray of hope.
I thank my colleague from North Dakota and all she has done to get us
to this point.
The PRESIDING OFFICER. The Senator from North Dakota.
Ms. HEITKAMP. Mr. President, suicide is the second leading cause of
death among Native American young adults ages 15 to 24. It is 2\1/2\
times the national average. The despair my great friend from the great
State of Alaska has just outlined for us--it seems there is no way out,
that no one is looking, they are invisible, that their problems are
inconsequential and no one cares. Yes, I thank my colleague from Alaska
for that wonderful vision that this commission tells them they are not
invisible to us, they are not invisible to the Congress, they are not
invisible to the administration; that people are there and they care.
Maybe it offers that hope. Maybe it offers that opportunity to tell
more of these stories and to shine a greater light of awareness onto
this problem.
It is a national disgrace. If we continue to do what we have always
done in housing, education, health care, and public safety, if we
continue to do what we have always done, we will lose yet another
generation to despair.
It is time for Congress to step up, honor our treaty obligations and
recognize that if we cannot protect the smallest among us, the most
vulnerable, the most remote among us, that we aren't worthy of this
body. We aren't worthy of this government.
I invite all of our colleagues to join with us and send a message
loudly and clearly to Native children in our country that they matter;
they matter at their homes, in their communities, their States, their
clubs, and their schools, but they also matter in the halls of the
Senate.
The PRESIDING OFFICER (Mr. Blumenthal). The senior Senator from
Alaska is recognized.
Ms. MURKOWSKI. If I may close out my comments, Senator Heitkamp has
honored an individual, Alyce Spotted Bear, by naming this commission on
Native American children after Alyce Spotted Bear. She has invited me
to also include a leader on so many education and children's issues.
I wish to take a moment to speak to the contributions of a great
Alaskan, Dr. Walter Soboleff. Senator Heitkamp has honored Alaskans by
including Dr. Soboleff with the naming of this children's commission.
I was very honored to learn of Dr. Soboleff, who passed away in 2011
at 102 years old. In our State he was an elder statesman. He was a
spiritual leader and an Alaska Native advocate who championed Alaska
Native rights and cultural education. He was the first Alaska Native to
serve on our State Board of Education, in which he served as chairman.
He established the Alaska Native Studies Department at the University
of Alaska Fairbanks to ensure that our Native students could be taught
their history, culture, and language within that university system.
Clearly, when one is 102 years old, they live through a transition of
time, but he lived through a transition for our Native people in our
State. He advocated to ensure that our State's education system
recognized that Native students must know their culture. In order to
know who they are, they need to know where they have come from. They
need to know their culture. They need to know how to hunt, how to fish,
and that their culture is the foundation of a strong identity, ensuring
student success and pride in oneself.
When I thought about how we might be able to recognize one of
Alaska's own who demonstrated to our young people that if you know
yourself, if you know your culture, if you are proud of that, even
under some daunting challenges, you can move forward. You can
persevere.
I thank my colleague for giving me this opportunity to show him
recognition as we also honor Alyce Spotted Bear.
______
By Mr. McCONNELL (for himself and Ms. Ayotte):
S. 1626. A bill to amend the Fair Labor Standards Act of 1938 to
provide employees in the private sector with an opportunity for
compensatory time off, similar to the opportunity offered to
[[Page S7681]]
Federal employees, and a flexible credit hour program to help balance
the demands of work and family, and for other purposes; to the
Committee on Health, Education, Labor, and Pensions.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the text
of the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1626
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Family Friendly and
Workplace Flexibility Act of 2013''.
SEC. 2. COMPENSATORY TIME.
Section 7 of the Fair Labor Standards Act of 1938 (29
U.S.C. 207) is amended by adding at the end the following:
``(s) Compensatory Time for Private Employees.--
``(1) Definitions.--In this subsection--
``(A) the term `employee' does not include an employee of a
public agency; and
``(B) the terms `overtime compensation', `compensatory
time', and `compensatory time off' have the meaning given the
terms in subsection (o)(7).
``(2) General rule.--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
overtime compensation is required by this section.
``(3) Agreement required.--An employer may provide
compensatory time to an employee under paragraph (2) only in
accordance with--
``(A) applicable provisions of a collective bargaining
agreement between an employer and a labor organization that
has been certified or recognized as the representative of the
employees of the employer under applicable law; or
``(B) in the case of an employee who is not represented by
a labor organization described in subparagraph (A), an
agreement between the employer and employee arrived at before
the performance of the work--
``(i) in which the employer has offered and the employee
has chosen to receive compensatory time off under this
subsection in lieu of monetary overtime compensation;
``(ii) that the employee enters into knowingly,
voluntarily, and not as a condition of employment; and
``(iii) that is affirmed by a written or otherwise
verifiable record maintained in accordance with section
11(c).
``(4) Hour limit.--An employee may accrue not more than 160
hours of compensatory time under this subsection, and shall
receive overtime compensation for any such compensatory time
in excess of 160 hours.
``(5) Unused compensatory time.--
``(A) Compensation period.--
``(i) In general.--Except as provided in clause (ii), not
later than January 31 of each calendar year, the employer of
the employee shall provide monetary compensation for any
unused compensatory time under this subsection accrued during
the preceding calendar year that the employee did not use
prior to December 31 of the preceding year at the rate
prescribed by paragraph (7)(A).
``(ii) Alternative compensation period.--An employer may
designate and communicate to an employee a 12-month period
other than the calendar year for determining unused
compensatory time under this subsection, and the employer
shall provide monetary compensation not later than 31 days
after the end of such 12-month period at the rate prescribed
by paragraph (7)(A).
``(B) Excess of 80 hours.--An employer may provide monetary
compensation, at the rate prescribed by paragraph (7)(A), for
any unused compensatory time under this subsection of an
employee in excess of 80 hours at any time after giving the
employee not less than 30 days' notice.
``(C) Termination of employment.--Upon the voluntary or
involuntary termination of an employee, the employer of such
employee shall provide monetary compensation at the rate
prescribed by paragraph (7)(A) for any unused compensatory
time under this subsection.
``(6) Withdrawal of compensatory time agreement.--
``(A) Employer.--Except where a collective bargaining
agreement provides otherwise, an employer that has adopted a
policy of offering compensatory time to employees under this
subsection may discontinue such policy after providing
employees notice 30 days prior to discontinuing the policy.
``(B) Employee.--
``(i) In general.--An employee may withdraw an agreement
described in paragraph (3)(B) after providing notice to the
employer of the employee 30 days prior to the withdrawal.
``(ii) Request for monetary compensation.--At any time, an
employee may request in writing monetary compensation for any
accrued and unused compensatory time under this subsection.
The employer of such employee shall provide monetary
compensation at the rate prescribed by paragraph (7)(A)
within 30 days of receiving the written request.
``(7) Monetary compensation.--
``(A) Rate of compensation.--An employer providing monetary
compensation to an employee for accrued compensatory time
under this subsection shall compensate the employee at a rate
not less than the greater of--
``(i) the regular rate, as defined in subsection (e), of
the employee on the date the employee earned such
compensatory time; or
``(ii) the final regular rate, as defined in subsection
(e), received by such employee.
``(B) Treatment as unpaid overtime.--Any monetary payment
owed to an employee for unused compensatory time under this
subsection, as calculated in accordance with subparagraph
(A), shall be considered unpaid overtime compensation for the
purposes of this Act.
``(8) Using compensatory time.--An employer shall permit an
employee to take time off work for compensatory time accrued
under paragraph (2) within a reasonable time after the
employee makes a request for using such compensatory time if
the use does not unduly disrupt the operations of the
employer.
``(9) Prohibition of coercion.--
``(A) In general.--An employer that provides compensatory
time under paragraph (2) shall not directly or indirectly
intimidate, threaten, or coerce, or attempt to intimidate,
threaten, or coerce any employee for the purpose of
interfering with the rights of an employee under this
subsection--
``(i) to use accrued compensatory time in accordance with
paragraph (8) in lieu of receiving monetary compensation;
``(ii) to refrain from using accrued compensatory time in
accordance with paragraph (8) and receive monetary
compensation; or
``(iii) to refrain from entering into an agreement to
accrue compensatory time under this subsection.
``(B) Definition.--In subparagraph (A), the term
`intimidate, threaten, or coerce' includes--
``(i) promising to confer or conferring any benefit, such
as appointment, promotion, or compensation; or
``(ii) effecting or threatening to effect any reprisal,
such as deprivation of appointment, promotion, or
compensation.''.
SEC. 3. FLEXIBLE CREDIT HOUR PROGRAM.
Section 7 of the Fair Labor Standards Act of 1938 (29
U.S.C. 207), as amended in section 2, is further amended by
adding at the end the following:
``(t) Flexible Credit Hour Program.--
``(1) Definitions.--In this subsection--
``(A) the term `at the election of', used with respect to
an employee, means at the initiative of, and at the request
of, the employee;
``(B) 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
within a specified period of time;
``(C) the term `employee' does not include an employee of a
public agency;
``(D) the term `flexible credit hour' means any hour that
an employee, who is participating in a flexible credit hour
program, works in excess of the basic work requirement; and
``(E) the term `overtime compensation' has the meaning
given the term in subsection (o)(7).
``(2) Program establishment.--An employer may establish a
flexible credit hour program for an employee to accrue
flexible credit hours in accordance with this subsection and,
in lieu of monetary compensation, reduce the number of hours
the employee works in a subsequent day or week at a rate of
one hour for each hour of employment for which overtime
compensation is required by this section.
``(3) Agreement required.--
``(A) In general.--An employer may carry out a flexible
credit hour program under paragraph (2) only in accordance
with--
``(i) applicable provisions of a collective bargaining
agreement between an employer and a labor organization that
has been certified or recognized as the representative of the
employees of the employer under applicable law; or
``(ii) in the case of an employee who is not represented by
a labor organization described in clause (i), an agreement
between the employer and the employee arrived at before the
performance of the work that--
``(I) the employee enters into knowingly, voluntarily, and
not as a condition of employment; and
``(II) is affirmed by a written statement maintained in
accordance with section 11(c).
``(B) Hours designated.--An agreement that is entered into
under subparagraph (A) shall provide that, at the election of
the employee, the employer and the employee will jointly
designate flexible credit hours for the employee to work
within an applicable period of time.
``(4) Hour limit.--An employee participating in a flexible
credit hour program may not accrue more than 50 flexible
credit hours, and shall receive overtime compensation for
flexible credit hours in excess of 50 hours.
``(5) Unused flexible credit hours.--
``(A) In general.--Except as provided in subparagraph (B),
not later than January 31 of each calendar year, the employer
of an employee who is participating in a flexible credit hour
program shall provide monetary compensation for any flexible
credit hour accrued during the preceding calendar year
[[Page S7682]]
that the employee did not use prior to December 31 of the
preceding calendar year at a rate prescribed by paragraph
(7)(A)(i).
``(B) Alternative compensation period.--An employer may
designate and communicate to the employees of the employer a
12-month period other than the calendar year for determining
unused flexible credit hours, and the employer shall provide
monetary compensation, at a rate prescribed by paragraph
(7)(A)(i), not later than 31 days after the end of the 12-
month period.
``(6) Program discontinuance and withdrawal.--
``(A) Employer.--An employer that has established a
flexible credit hour program under paragraph (2) may
discontinue a flexible credit hour program for employees
described in paragraph (3)(A)(ii) after providing notice to
such employees 30 days before discontinuing such program.
``(B) Employee.--
``(i) In general.--An employee may withdraw an agreement
described in paragraph (3)(A)(ii) at any time by submitting
written notice of withdrawal to the employer of the employee
30 days prior to the withdrawal.
``(ii) Request for monetary compensation.--An employee may
request in writing, at any time, that the employer of such
employee provide monetary compensation for all accrued and
unused flexible credit hours. Within 30 days after receiving
such written request, the employer shall provide the employee
monetary compensation for such unused flexible credit hours
at a rate prescribed by paragraph (7)(A)(i).
``(7) Monetary compensation.--
``(A) Flexible credit hours.--
``(i) Rate of compensation.--An employer providing monetary
compensation to an employee for accrued flexible credit hours
shall compensate such employee at a rate not less than the
regular rate, as defined in subsection (e), of the employee
on the date the employee receives the monetary compensation.
``(ii) Treatment as unpaid overtime.--Any monetary payment
owed to an employee for unused flexible credit hours under
this subsection, as calculated in accordance with clause (i),
shall be considered unpaid overtime compensation for the
purposes of this Act.
``(B) Overtime hours.--
``(i) In general.--Any hour that an employee works in
excess of 40 hours in a workweek that is requested in advance
by the employer, other than a flexible credit hour, shall be
an `overtime hour'.
``(ii) Rate of compensation.--The employee shall be
compensated for each 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 subsection (a)(1), or receive
compensatory time off in accordance with subsection (s), for
each such overtime hour.
``(8) Use of flexible credit hours.--An employer shall
permit an employee to use accrued flexible credit hours to
take time off work, in accordance with the rate prescribed by
paragraph (2), within a reasonable time after the employee
makes a request for such use if the use does not unduly
disrupt the operations of the employer.
``(9) Prohibition of coercion.--
``(A) 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 interfering with the rights of the employee under this
subsection--
``(i) 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; or
``(ii) to use or refrain from using accrued flexible credit
hours in accordance with paragraph (8).
``(B) Definition.--In subparagraph (A), the term
`intimidate, threaten, or coerce' has the meaning given the
term in subsection (s)(9).''.
SEC. 4. REMEDIES.
Section 16 of the Fair Labor Standards Act of 1938 (29
U.S.C. 216) is amended--
(1) in subsection (b), by striking ``(b) Any employer'' and
inserting ``(b) Except as provided in subsection (f), any
employer''; and
(2) by adding at the end the following:
``(f) An employer that violates subsection (s)(9) or (t)(9)
of section 7 shall be liable to the affected employee in the
amount of--
``(1) the rate of compensation, determined in accordance
with subsection (s)(7)(A) or (t)(7)(A)(i) of section 7, for
each hour of unused compensatory time or for each unused
flexible credit hour accrued by the employee; and
``(2) liquidated damages equal to the amount determined in
paragraph (1).''.
SEC. 5. 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 such Act by this Act.
SEC. 6. PROTECTIONS FOR CLAIMS RELATING TO COMPENSATORY TIME
OFF AND FLEXIBLE CREDIT HOURS IN BANKRUPTCY
PROCEEDING.
Section 507(a)(4)(A) of title 11, United States Code, is
amended--
(1) by striking ``and''; and
(2) by inserting ``, the value of unused, accrued
compensatory time off under section 7(s) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 207(s)), all of which shall
be deemed to have been earned within 180 days before the date
of the filing of the petition or the date of the cessation of
the debtor's business, whichever occurs first, at a rate of
compensation not less than the final regular rate received by
such individual, and the value of unused, accrued flexible
credit hours under section 7(t) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 207(t)), all of which shall be deemed
to have been earned within 180 days before the date of the
filing of the petition or the date of the cessation of the
debtor's business, whichever occurs first, at a rate of
compensation described in paragraph (7)(A)(i) of such section
7(t)'' after ``sick leave pay''.
SEC. 7. GAO REPORT.
Beginning 2 years after the date of enactment of this Act
and each of the 3 years thereafter, the Comptroller General
of the United States shall submit a report to Congress
providing, with respect to the reporting period immediately
prior to each such report--
(1) data concerning the extent to which employers provide
compensatory time and flexible credit hours under subsections
(s) and (t) of section 7 of the Fair Labor Standards Act of
1938 (29 U.S.C. 207), as added by this Act, and the extent to
which employees opt to receive compensatory time under
subsection (s) and flexible credit hours under subsection
(t);
(2) the number of complaints alleging a violation of
subsection (s)(9) or (t)(9) of such section filed by any
employee with the Secretary of Labor, and the disposition or
status of such complaints;
(3) the number of enforcement actions commenced by the
Secretary or commenced by the Secretary on behalf of any
employee for alleged violations of subsection (s)(9) or
(t)(9) of such section, and the disposition or status of such
actions; and
(4) an account of any unpaid wages, damages, penalties,
injunctive relief, or other remedies obtained or sought by
the Secretary in connection with such actions described in
paragraph (3).
SEC. 8. SUNSET.
This Act and the amendments made by this Act shall expire
on the date that is 5 years after the date of enactment of
this Act.
____________________