[Congressional Record Volume 159, Number 154 (Thursday, October 31, 2013)]
[Senate]
[Pages S7690-S7692]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             FAMILY FRIENDLY AND WORKPLACE FLEXIBILITY ACT

  Mr. McCONNELL. Mr. President, given that October is National Work and 
Family Month, I wish to take the opportunity to discuss an issue that 
has become increasingly important to working families, and that is the 
need for workplace flexibility.
  Yesterday my colleague Senator Ayotte and I introduced the Family 
Friendly and Workplace Flexibility Act of 2013, which we hope will 
provide America's workers with the flexible work arrangements they 
need. Countless Americans have become increasingly familiar over the 
past several years with the same reality: more and more to do, with 
less and less time to do it. And while Congress can't legislate another 
hour in the day, we can help working Americans better balance the 
demands of work and family.
  The Family Friendly and Workplace Flexibility Act is a commonsense 
measure Congress can pass to help alleviate that burden for millions of 
families by providing greater flexibility in managing their time. We 
all know working moms who are stretched between a job and supporting 
their kids,

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and baby boomers with elderly parents who require care and attention. A 
2010 study conducted by the White House Council of Economic Advisers 
found that work flexibility programs can ``reduce turnover and improve 
recruitment, [increase] the productivity of an employer's workforce, 
and are associated with improved employee health and decreased 
absenteeism.''
  Another study conducted by the Society for Human Resource Managers 
found that women's responsibilities have increased at work and men's 
responsibilities have increased at home, resulting in 60 percent of 
wage and salaried employees believing they do not have enough time to 
spend with their loved ones. The American workplace has evolved 
dramatically since the industrial workplace of the post-Depression era. 
Yet the labor laws written during this time period are still in place 
today and the makeup of our workforce has also changed dramatically.
  Today, 60 percent of working households have two working parents. 
Sixty-six percent of single moms and 79 percent of single dads work as 
well. American workers have had to adapt to keep pace with this 
changing environment. So should our laws. Instead of sticking with an 
antiquated labor law, I believe we need to update the Fair Labor 
Standards Act to actually meet the changing needs of workers.
  That is why I am introducing the Family Friendly and Workplace 
Flexibility Act.
  This bill will allow flexible workplace arrangements such as 
compensatory time and flexible credit hour agreements, which are 
currently available to employees working for the Federal Government--
Federal employees already have this--to be extended to businesses 
regulated by the Fair Labor Standards Act.
  Currently, the FLSA prohibits employers from offering compensatory 
time or comptime to their hourly employees. This bill would amend the 
FLSA to allow private employers to offer comptime to employees at a 
rate of 1\1/2\ hours for every hour of overtime work. I should add that 
this would be a completely voluntary process. An employee could still 
choose to receive monetary payments as their overtime compensation. 
This bill simply allows the option for employees to choose paid time 
off over work instead. There is no need for Washington to stand in the 
way of families earning the time that they need.
  This bill also institutes a flexible credit-hour program under which 
the employer and employee can enter into agreements that allow the 
employee to work excess hours, beyond the typical number of hours he or 
she is typically required to work, in order to accrue hours to be taken 
off at a later time. This option is for employees who do not get the 
opportunity to work overtime, but still want a way to build up hours to 
use as paid leave. Like comptime, this program is voluntary and may not 
affect collective bargaining agreements that are in place.
  Under this legislation, employers would not be mandated to offer 
flexible workplace arrangements, just as employees are not mandated to 
choose their benefits, rather than direct compensation for overtime 
work. Both parties are free to choose what works best for them.
  I would like to take a moment to focus on some of the protections in 
the bill. Under this bill, an employee may accrue up to 160 hours of 
comptime per year. At any point in the year, a participating employee 
may request to revert back to receiving traditional overtime 
compensation in exchange for their accrued comptime, essentially 
cashing out their banked time. Further, the bill also requires 
employers to provide monetary payment at the end of the year for any 
unused comptime or flextime.
  I have also included a provision that safeguards unpaid comptime and 
flextime in the case of bankruptcy. Thus, the bill takes steps to 
protect against any potential for lost wages in these kinds of 
circumstances.
  If anyone understands the benefits of comptime, it is our public 
employees. That is because flexible work arrangements have been 
available to Federal employees since 1978. If the Federal law already 
provides these beneficial workplace arrangements to Federal and State 
workers, why should we not make them available to all employees? Public 
employees enjoy these arrangements so much that the unions representing 
them frequently fight for comptime arrangements when negotiating 
collective bargaining agreements.
  It is very important to note this legislation does not do anything to 
alter the 40-hour work week. Let me repeat that: This bill in no way 
alters a 40-hour work week or how overtime is calculated.
  Another way in which the Family Friendly and Workplace Flexibility 
Act protects employees is by prohibiting employers from coercing 
employees into accepting or rejecting comptime or flextime 
arrangements.
  When we look at today's modern workplace, we see some companies such 
as Dell, Bank of America, and GE that already provide flexible 
workplace arrangements to their salaried employees who are not subject 
to the rules under FLSA. Perhaps it is no coincidence that workplaces 
such as these are also among the highest-ranked companies at which to 
work.
  Now is the time to allow private companies to provide the benefits of 
flexible arrangements like comptime to their nonexempt workers as well. 
After all, it is not just workers at some places of employment who are 
parents or family members who need to be able to take time off to 
attend a function for their child's school, to see a son or daughter's 
supporting event, or to care for an aging parent. It is workers at all 
places of employment.
  A report by the White House Council of Economic Advisers shows that 
nearly one-third of all American workers consider work-life balance and 
flexibility to be the most important factor in considering job offers.
  Let me say that again. Nearly one-third of all American workers 
consider work-life balance and flexibility to be the most important 
factor in considering job offers.
  It also shows that 66 percent of human resource managers cite family-
supportive policies and flexible hours as the single most important 
factor in attracting and retaining employees. These numbers are pretty 
telling.
  I am pleased that the Kentucky Chamber of Commerce has endorsed this 
legislation. I also thank my friend Congresswoman Martha Roby for her 
leadership and dedication in advancing this cause over in the House. 
She introduced a bill to accomplish similar ends as the Family Friendly 
and Workforce Flexibility Act and actually saw her bill to passage. Now 
it is time for the Senate to act.
  The effort to provide greater flexibility and support for families in 
the workplace is one I have long supported. I have previously supported 
legislation allowing flexible workplace arrangements. This is the fifth 
time I have sponsored legislation to establish comptime, and I am proud 
to continue that fight today.
  I consider myself very fortunate to be joined by Senator Ayotte in 
this effort. I suspect her predecessor, former Senator Judd Gregg, 
would be proud to see her leadership on this issue as well. Senator 
Gregg was a champion for flexible work arrangements throughout his 
entire Senate career, I was thankful to work with him on the issue in 
the past, and I am gratified to work with Senator Ayotte on this issue 
moving forward.
  Yesterday Senator Lee introduced a similar measure that seeks to 
provide for comptime for American workers. Senator Lee is helping with 
the effort, working with conservatives to find out-of-the-box solutions 
to the challenges Americans face today. I applaud Senator Lee for his 
commitment to this effort and look forward to working with him in the 
future on this issue.
  In closing, I urge my colleagues on both sides of the aisle to 
support this commonsense bill because it is the right thing to do for 
working families.


                           Millett Nomination

  Finally, I will be voting against cloture on the Millett nomination, 
and I would like to discuss why. Ms. Millett is no doubt a fine person. 
This is nothing personal.
  Peter Keisler, of course, is a fine person too. But our Democratic 
colleagues pocket-filibustered his nomination to the DC Circuit for 2 
years on the grounds that the court's workload did not warrant his 
confirmation. They did so despite his considerable skill as a

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lawyer and his personal qualities. His nomination languished until the 
end of the Bush administration. He waited almost 1,000 days for a vote 
that never came.
  The criteria our Democratic friends cited to block Mr. Keisler's 
nomination then clearly show the court is even less busy now. For 
example, the seat to which Ms. Millett is nominated is not a judicial 
emergency--far from it. The number of appeals at the court is down 
almost 20 percent, and the written decisions per active judge are down 
almost 30 percent.
  In addition to these metrics, the DC Circuit has provided another. 
The chief judge of the court, who was appointed to the bench by 
President Clinton, provided an analysis showing that oral arguments for 
each active judge are also down almost 10 percent since Mr. Keisler's 
nomination was blocked.
  These analyses show that not only is the court less busy in absolute 
terms now than it was then, it is less busy in relative terms as well, 
when one takes into account the number of active judges serving on the 
court. The court's caseload is so low, in fact, that it has canceled 
oral argument days in recent years because of lack of cases. After we 
confirmed the President's last nominee to the DC Circuit just a few 
months ago--and by the way we confirmed him unanimously--one of the 
judges on the court said that if more judges were confirmed there would 
not be enough work to go around. So if the court's caseload clearly 
does not meet their own standards for more judges, why are Senate 
Democrats pushing to fill more seats on a court that doesn't need them? 
What is behind this push to fill seats on the court that is canceling 
oral argument days for lack of cases, and according to the judges who 
serve on it will not have enough work to go around if we do?
  We don't have to guess. Our Democratic colleagues and the 
administration's supporters have been actually pretty candid about it. 
They have admitted they want to control the court so it will advance 
the President's agenda. As one administration ally put it, ``The 
President's best hope for advancing his agenda is through executive 
action, and that runs through the DC Circuit.''
  Let me repeat, the reason they want to put more judges on the DC 
Circuit is not because it needs them, but because ``The President's 
best hope for advancing his agenda is through executive action, and 
that runs through the DC Circuit.''
  Another administration ally complained that the court ``has made 
decisions that have frustrated the President's agenda.'' Really? The 
court is evenly divided between Republican and Democratic appointees. 
According to data compiled by the Federal courts, the DC Circuit has 
ruled against the Obama administration in administrative matters less 
often than it ruled against the Bush administration.
  Let me say that again. According to data compiled by the Federal 
courts, the DC Circuit has ruled against the Obama administration in 
administrative matters less often than it ruled against the Bush 
administration. So it is not that the court has been more unfavorable 
to President Obama than it was to President Bush. Rather, the 
administration and its allies seem to be complaining that the court has 
not been favorable enough. Evidently they do not want any meaningful 
check on the President. You see, there is one in the House of 
Representatives, but the administration can circumvent that with 
aggressive agency rulemaking. That is if the DC Circuit allows it to do 
so.
  A court should not be a rubberstamp for any administration, and our 
Democratic colleagues told us again and again during the Bush 
administration that the Senate confirmation process should not be a 
rubberstamp for any administration. For example, they said President 
Bush's nomination of Miguel Estrada to the DC Circuit was ``an effort 
to pack the Federal courts.'' And they filibustered his nomination--
seven times, in fact.
  We have confirmed nearly all of President Obama's judicial nominees. 
As I said, we confirmed a judge to the DC Circuit unanimously just a 
few months ago. This year we have confirmed 34 circuit and district 
court judges. At this time in President Bush's second term the Senate 
had confirmed only 14.
  Let me say that again. This year we have confirmed 34 circuit and 
district court judges. At this time in President Bush's second term the 
Senate had confirmed only 14 of those nominees. In fact, we confirmed 
President Obama's nominees even during the Government shutdown.
  In writing to then-Judiciary Committee Chairman Arlen Specter to 
oppose the nomination of Peter Keisler, Senate Democrats said:

       Mr. Keisler should under no circumstances be considered--
     much less confirmed . . . before we first address the very 
     need for the judgeship . . . and deal with the genuine 
     judicial emergencies identified by the judicial conference.
  That course of action ought to be followed here too. Senator Grassley 
has legislation that will allow the President to fill seats on courts 
that actually need judges. The Senate should support that legislation, 
not transparent efforts to politicize a court that doesn't need judges 
in an effort to create a rubberstamp for the administration's agenda.
  I yield the floor.

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