[Congressional Record Volume 159, Number 153 (Wednesday, October 30, 2013)]
[Senate]
[Pages S7680-S7682]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      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.

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