[Congressional Record Volume 160, Number 115 (Tuesday, July 22, 2014)]
[Senate]
[Pages S4708-S4713]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HARKIN (for himself, Ms. Warren, and Mr. Brown):
  S. 2642. A bill to permit employees to request changes to their work 
schedules without fear of retaliation, and to ensure that employers 
consider these requests; and to require employers to provide more 
predictable and stable schedules for employees in certain growing low-
wage occupations, and for other purposes; to the Committee on Health, 
Education, Labor, and Pensions.
  Mr. HARKIN. Mr. President, I want to bring to our attention a large 
and growing problem laced by American workers today that has negative 
consequences for working families and our national economy. They are 
hourly service workers holding jobs that we all rely on--the folks who 
are serving customers in stores and restaurants, who are cleaning our 
offices and hotels, who are making sure that shelves are stocked, food 
is cooked properly, and businesses run smoothly. They are also white 
collar workers: professionals, managers, teachers, and more. All of 
these workers want to go to work and be successful at their jobs. But 
today, too many do not have access to one of

[[Page S4709]]

the most basic parts of a job: a stable, predictable schedule.
  For hourly service workers, jobs are often scheduled on a ``just in 
time'' basis. This means that schedules are given out last minute, 
workers are often required to be on call, and schedules and the number 
of assigned hours vary week to week and month to month. Schedules are 
often made with no input from workers or consideration for family needs 
or even sleep time. A worker may have 8 hours of work one week, 24 
hours the next week, and no hours for the next two weeks. A worker may 
have the night shift followed by the day shift, or a split shift with a 
few hours in the morning and a few more hours in the evening. A worker 
may show up after arranging and paying for child care and taking a 2 
hour trip by public transportation, only to be sent home for lack of 
work. Assigned time on schedules is a perk, while being left off the 
schedule is a punishment.
  These abusive scheduling practices mean that workers often can't 
predict their income, which makes it very difficult to budget and pay 
bills. It also wreaks havoc on family life. Working parents can't be 
home for family dinner, help with afternoon homework, or put kids to 
bed. Workers with elderly parents or relatives who are in need of care 
cannot be available when they are needed. And the inability to predict 
a schedule means that taking classes or getting a second job to further 
one's career or increase income become difficult to impossible. And 
yet, because these practices have become so common among hourly service 
jobs, moving to a different job is not an option. Workers are simply 
stuck.
  Meanwhile, white collar workers are working longer than ever. They 
have to stay late long into the night and come in on the weekends. If 
they want a 40-hour workweek or time with family, they are too often 
criticized as uncommitted to the job. They, too, miss family dinners 
and other family events. They, too, are unable to be with children or 
elders when their care is required.
  What these workers have in common is their lack of control over their 
hours and their schedules. That is why I have joined with Senator 
Warren and Representatives George Miller and Rosa DeLauro to introduce 
the ``Schedules That Work Act.'' This bill will help workers to meet 
scheduling challenges in ways that respect their needs and the needs of 
businesses.
  First, the bill will allow all workers, both hourly and salaried in 
any job or industry, to make requests about their schedules, and it 
will prohibit retaliation against them for doing so. Employers will be 
required to engage in an interactive process in response to scheduling 
requests--much like that required to determine reasonable 
accommodations under the Americans with Disabilities Act. An employer 
has to consider a request, consider alternatives, and provide an answer 
to a worker's request. Certain requests will have some extra 
consideration: if an employee makes a request because of caregiving 
duties, to deal with a serious health condition, to take a career-
related training or education course, or to meet the demands of a 
second job in the case of part-time workers, then an employer must have 
a bona fide business reason to deny the request. This ``right to 
request'' will open a line of communication that ensures workers have a 
voice but respects employers' business needs.
  Second, the Schedules That Work Act will ensure that workers in 
retail, food service, and janitorial and cleaning jobs are paid when 
they are required to report in or be on call. If a worker is scheduled 
for at least four hours and reports to work, the worker must be paid 
for at least four hours, even if she is sent home early. An employer 
will have to provide an extra hour's pay if he requires an employee to 
be on call. If an employer schedules a ``split shift''--with non-
consecutive shifts within a single day--a worker will earn an extra 
hour's pay.
  Finally, this bill will require 2 weeks' advance notice of schedules 
for workers in retail, food service, and janitorial jobs. If changes 
are made with less than 24 hours' notice, employers will be required to 
provide an extra hour's pay. While employers can continue to make 
changes to schedules, we hope that this requirement will reduce the 
chaos that can be created by continual last-minute scheduling.
  A schedule should be a basic part of almost any job. Predictability 
and stability in hours helps workers meet their personal and family 
demands. In turn, workers are more likely to stay in their jobs, 
reducing the expensive turnover that can cost businesses dearly A 
simple consideration like advance notice of a schedule goes a long way 
toward creating good will, fostering loyalty, and raising morale among 
employees.
  What this bill is really about, at its heart, is respect. Respect for 
workers' lives and businesses' needs. I encourage all of my Senate 
colleagues to join me on this bill.
  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. 2642

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; FINDINGS.

       (a) Short Title.--This Act may be cited as the ``Schedules 
     That Work Act''.
       (b) Findings.--Congress finds the following:
       (1) The vast majority of the United States workforce today 
     is juggling responsibilities at home and at work. Women are 
     primary breadwinners or co-breadwinners in 63 percent of 
     families in the United States and 26 percent of families with 
     children are headed by single mothers.
       (2) Despite the dual responsibilities of today's workforce, 
     workers across the income spectrum have very little ability 
     to make changes to their work schedules when those changes 
     are needed to accommodate family responsibilities. Only 27 
     percent of employers allow all or most of their employees to 
     periodically change their starting and quitting times.
       (3) Although low-wage workers are most likely to be raising 
     children on their own, as more than half of mothers of young 
     children in low-wage jobs are doing, low-wage workers have 
     the least control over their work schedules and the most 
     unpredictable schedules. For example--
       (A) roughly half of low-wage workers reported very little 
     or no control over the timing of the hours they were 
     scheduled to work;
       (B) many workers in low-wage jobs receive their schedules 
     with very little advance notice and have work hours that vary 
     significantly from week to week or month to month;
       (C) some workers in low-wage jobs are sent home from work 
     when work is slow without being paid for their scheduled 
     shift;
       (D) in some industries, the use of ``call-in shift'' 
     requirements--requirements that workers call in to work to 
     find out whether they will be scheduled to work later that 
     day--has become common practice; and
       (E) at the same time, 20 to 30 percent of workers in low-
     wage jobs struggle with being required to work extra hours 
     with little or no notice.
       (4) Unfair work scheduling practices make it difficult for 
     low-wage workers to--
       (A) provide necessary care for children and other family 
     members, including arranging child care;
       (B) qualify for and maintain eligibility for child care 
     subsidies, due to fluctuations in income and work hours, or 
     keep an appointment with a child care provider, due to not 
     knowing how many hours or when the workers will be scheduled 
     to work;
       (C) pursue workforce training;
       (D) get or keep a second job that some part-time workers 
     need to make ends meet; and
       (E) arrange transportation to and from work.
       (5) Unpredictable and unstable schedules are prevalent in 
     retail sales, food preparation and service, and building 
     cleaning occupations, which are among the lowest-paid and 
     fastest-growing occupations in the workforce today. For 
     workers in those occupations, often difficult and sometimes 
     abusive work scheduling practices combine with very low wages 
     to make it extremely challenging to make ends meet.
       (6) Retail sales, food preparation and service, and 
     building cleaning occupations are among those most likely to 
     have unpredictable and unstable schedules. According to data 
     from the Bureau of Labor Statistics, 66 percent of food 
     service workers, 52 percent of retail workers, and 40 percent 
     of janitors and housekeepers know their schedules only a week 
     or less in advance. The average variation in work hours in a 
     single month is 70 percent for food service workers, 50 
     percent for retail workers, and 40 percent for janitors and 
     housekeepers.
       (7) Those are among the lowest-paid and fastest-growing 
     occupations, accounting for 18 percent of workers in the 
     economy, some 23,500,000 workers. The median pay for workers 
     in those 3 occupations is between $9.15 and $10.44 per hour, 
     and women make up more than half of the workers in those 
     occupations.
       (8) Employers that have implemented fair work scheduling 
     policies that allow workers

[[Page S4710]]

     to have more control over their work schedules, and provide 
     more predictable and stable schedules, have experienced 
     significant benefits, including reductions in absenteeism and 
     workforce turnover, and increased employee morale and 
     engagement.
       (9) This Act is a first step in responding to the needs of 
     workers for a voice in the timing of their work hours and for 
     more predictable schedules.

     SEC. 2. DEFINITIONS.

       As used in this Act:
       (1) Bona fide business reason.--The term ``bona fide 
     business reason'' means--
       (A) the identifiable burden of additional costs to an 
     employer, including the cost of productivity loss, retraining 
     or hiring employees, or transferring employees from one 
     facility to another facility;
       (B) a significant detrimental effect on the employer's 
     ability to meet organizational needs or customer demand;
       (C) a significant inability of the employer, despite best 
     efforts, to reorganize work among existing (as of the date of 
     the reorganization) staff;
       (D) a significant detrimental effect on business 
     performance;
       (E) insufficiency of work during the periods an employee 
     proposes to work;
       (F) the need to balance competing scheduling requests when 
     it is not possible to grant all such requests without a 
     significant detrimental effect on the employer's ability to 
     meet organizational needs; or
       (G) such other reason as may be specified by the Secretary 
     of Labor (or the corresponding administrative officer 
     specified in section 8).
       (2) Career-related educational or training program.--The 
     term ``career-related educational or training program'' means 
     an educational or training program or program of study 
     offered by a public, private, or nonprofit career and 
     technical education school, institution of higher education, 
     or other entity that provides academic education, career and 
     technical education, or training (including remedial 
     education or English as a second language, as appropriate), 
     that is a program that leads to a recognized postsecondary 
     credential (as identified under section 122(d) of the 
     Workforce Innovation and Opportunity Act), and provides 
     career awareness information. The term includes a program 
     allowable under the Workforce Investment Act of 1998 (29 
     U.S.C. 2801 et seq.), the Workforce Innovation and 
     Opportunity Act, the Carl D. Perkins Career and Technical 
     Education Act of 2006 (20 U.S.C. 2301 et seq.), or the Higher 
     Education Act of 1965 (20 U.S.C. 1001 et seq.), without 
     regard to whether or not the program is funded under the 
     corresponding Act.
       (3) Caregiver.--The term ``caregiver'' means an individual 
     with the status of being a significant provider of--
       (A) ongoing care or education, including responsibility for 
     securing the ongoing care or education, of a child; or
       (B) ongoing care, including responsibility for securing the 
     ongoing care, of--
       (i) a person with a serious health condition who is in a 
     family relationship with the individual; or
       (ii) a parent of the individual, who is age 65 or older.
       (4) Child.--The term ``child'' means a biological, adopted, 
     or foster child, a stepchild, a legal ward, or a child of a 
     person standing in loco parentis to that child, who is--
       (A) under age 18; or
       (B) age 18 or older and incapable of self-care because of a 
     mental or physical disability.
       (5) Covered employer.--
       (A) In general.--The term ``covered employer''--
       (i) means any person engaged in commerce or in any industry 
     or activity affecting commerce who employs 15 or more 
     employees (described in paragraph (7)(A));
       (ii) includes any person who acts, directly or indirectly, 
     in the interest of such an employer to any of the employees 
     (described in paragraph (7)(A)) of such employer;
       (iii) includes any successor in interest of such an 
     employer; and
       (iv) includes an agency described in subparagraph (A)(iii) 
     of section 101(4) of the Family and Medical Leave Act of 1993 
     (29 U.S.C. 2611(4)), to which subparagraph (B) of such 
     section shall apply.
       (B) Rule.--For purposes of determining the number of 
     employees who work for a person described in subparagraph 
     (A)(i), all employees (described in paragraph (7)(A)) 
     performing work for compensation on a full-time, part-time, 
     or temporary basis shall be counted, except that if the 
     number of such employees who perform work for such a person 
     for compensation fluctuates, the number may be determined for 
     a calendar year based upon the average number of such 
     employees who performed work for the person for compensation 
     during the preceding calendar year.
       (C) Person.--In this paragraph, and paragraph (7), the term 
     ``person'' has the meaning given the term in section 3 of the 
     Fair Labor Standards Act of 1938 (29 U.S.C. 203).
       (6) Domestic partner.--The term ``domestic partner'' means 
     the person recognized as being in a relationship with an 
     employee under any domestic partnership, civil union, or 
     similar law of the State or political subdivision of a State 
     in which the employee resides.
       (7) Employee.--The term ``employee'' means an individual 
     who is--
       (A) an employee, as defined in section 3(e) of the Fair 
     Labor Standards Act of 1938 (29 U.S.C. 203(e)), who is not 
     described in any of subparagraphs (B) through (G);
       (B) a State employee described in section 304(a) of the 
     Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
     16c(a));
       (C) a covered employee, as defined in section 101 of the 
     Congressional Accountability Act of 1995 (2 U.S.C. 1301), 
     other than an applicant for employment;
       (D) a covered employee, as defined in section 411(c) of 
     title 3, United States Code;
       (E) a Federal officer or employee covered under subchapter 
     V of chapter 63 of title 5, United States Code;
       (F) an employee of the Library of Congress; or
       (G) an employee of the Government Accountability Office.
       (8) Employer.--The term ``employer'' means a person--
       (A) who is--
       (i) a covered employer, as defined in paragraph (4), who is 
     not described in any of clauses (ii) through (vii);
       (ii) an entity employing a State employee described in 
     section 304(a) of the Government Employee Rights Act of 1991;
       (iii) an employing office, as defined in section 101 of the 
     Congressional Accountability Act of 1995;
       (iv) an employing office, as defined in section 411(c) of 
     title 3, United States Code;
       (v) an employing agency covered under subchapter V of 
     chapter 63 of title 5, United States Code;
       (vi) the Librarian of Congress; or
       (vii) the Comptroller General of the United States; and
       (B) who is engaged in commerce (including government), in 
     the production of goods for commerce, or in an enterprise 
     engaged in commerce (including government) or in the 
     production of goods for commerce.
       (9) Family relationship.--The term ``family relationship'' 
     means a relationship with a child, spouse, domestic partner, 
     parent, grandchild, grandparent, sibling, or parent of a 
     spouse or domestic partner.
       (10) Grandchild.--The term ``grandchild'' means the child 
     of a child.
       (11) Grandparent.--The term ``grandparent'' means the 
     parent of a parent.
       (12) Minimum number of expected work hours.--The term 
     ``minimum number of expected work hours'' means the minimum 
     number of hours an employee will be assigned to work on a 
     weekly or monthly basis.
       (13) Parent.--The term ``parent'' means a biological or 
     adoptive parent, a stepparent, or a person who stood in a 
     parental relationship to an employee when the employee was a 
     child.
       (14) Parental relationship.--The term ``parental 
     relationship'' means a relationship in which a person assumed 
     the obligations incident to parenthood for a child and 
     discharged those obligations before the child reached 
     adulthood.
       (15) Part-time employee.--The term ``part-time employee'' 
     means an individual who works fewer than 30 hours per week on 
     average during any 1-month period.
       (16) Retail, food service, or cleaning employee.--
       (A) In general.--The term ``retail, food service, or 
     cleaning employee'' means an individual employee who is 
     employed in any of the following occupations, as described by 
     the Bureau of Labor Statistics Standard Occupational 
     Classification System (as in effect on the day before the 
     date of enactment of this Act):
       (i) Retail sales occupations consisting of occupations 
     described in 41-1010 and 41-2000, and all subdivisions 
     thereof, of such System, which includes first-line 
     supervisors of sales workers, cashiers, gaming change persons 
     and booth cashiers, counter and rental clerks, parts 
     salespersons, and retail salespersons.
       (ii) Food preparation and serving related occupations as 
     described in 35-0000, and all subdivisions thereof, of such 
     System, which includes supervisors of food preparation and 
     serving workers, cooks and food preparation workers, food and 
     beverage serving workers, and other food preparation and 
     serving related workers.
       (iii) Building cleaning occupations as described in 37-
     2011, 37-2012 and 37-2019 of such System, which includes 
     janitors and cleaners, maids and housekeeping cleaners, and 
     building cleaning workers.
       (B) Exclusions.--Notwithstanding subparagraph (A), the term 
     ``retail, food service, or cleaning employee'' does not 
     include any person employed in a bona fide executive, 
     administrative, or professional capacity, as defined for 
     purposes of section 13(a)(1) of the Fair Labor Standards Act 
     of 1938 (29 U.S.C. 213(a)(1)).
       (17) Secretary.--The term ``Secretary'' means the Secretary 
     of Labor.
       (18) Serious health condition.--The term ``serious health 
     condition'' has the meaning given the term in section 101 of 
     the Family and Medical Leave Act of 1993 (29 U.S.C. 2611).
       (19) Sibling.--The term ``sibling'' means a brother or 
     sister, whether related by half blood, whole blood, or 
     adoption, or as a stepsibling.
       (20) Split shift.--The term ``split shift'' means a 
     schedule of daily hours in which the hours worked are not 
     consecutive, except that--
       (A) a schedule in which the total time out for meals does 
     not exceed one hour shall not be treated as a split shift; 
     and

[[Page S4711]]

       (B) a schedule in which the break in the employee's work 
     shift is requested by the employee shall not be treated as a 
     split shift.
       (21) Spouse.--
       (A) In general.--The term ``spouse'' means a person with 
     whom an individual entered into--
       (i) a marriage as defined or recognized under State law in 
     the State in which the marriage was entered into; or
       (ii) in the case of a marriage entered into outside of any 
     State, a marriage that is recognized in the place where 
     entered into and could have been entered into in at least 1 
     State.
       (B) Same-sex or common law marriage.--Such term includes an 
     individual in a same-sex or common law marriage that meets 
     the requirements of subparagraph (A).
       (22) State.--The term ``State'' has the meaning given the 
     term in section 3 of the Fair Labor Standards Act of 1938 (29 
     U.S.C. 203).
       (23) Work schedule.--The term ``work schedule'' means those 
     days and times within a work period when an employee is 
     required by an employer to perform the duties of the 
     employee's employment for which the employee will receive 
     compensation.
       (24) Work schedule change.--The term ``work schedule 
     change'' means any modification to an employee's work 
     schedule, such as an addition or reduction of hours, 
     cancellation of a shift, or a change in the date or time of a 
     work shift, by an employer.
       (25) Work shift.--The term ``work shift'' means the 
     specific hours of the workday during which an employee works.
       (26) Various additional terms.--
       (A) Commerce terms.--The terms ``commerce'' and ``industry 
     or activity affecting commerce'' have the meanings given the 
     terms in section 101 of the Family and Medical Leave Act of 
     1993 (29 U.S.C. 2611).
       (B) Employ.--The term ``employ'' has the meaning given the 
     term in section 3 of the Fair Labor Standards Act of 1938 (29 
     U.S.C. 203).

     SEC. 3. RIGHT TO REQUEST AND RECEIVE A FLEXIBLE, PREDICTABLE 
                   OR STABLE WORK SCHEDULE.

       (a) Right to Request.--An employee may apply to the 
     employee's employer to request a change in the terms and 
     conditions of employment as they relate to--
       (1) the number of hours the employee is required to work or 
     be on call for work;
       (2) the times when the employee is required to work or be 
     on call for work;
       (3) the location where the employee is required to work;
       (4) the amount of notification the employee receives of 
     work schedule assignments; and
       (5) minimizing fluctuations in the number of hours the 
     employee is scheduled to work on a daily, weekly, or monthly 
     basis.
       (b) Employer Obligation to Engage in an Interactive 
     Process.--
       (1) In general.--If an employee applies to the employee's 
     employer to request a change in the terms and conditions of 
     employment as set forth in subsection (a), the employer shall 
     engage in a timely, good faith interactive process with the 
     employee that includes a discussion of potential schedule 
     changes that would meet the employee's needs.
       (2) Result.--Such process shall result in--
       (A) either granting or denying the request;
       (B) in the event of a denial, considering alternatives to 
     the proposed change that might meet the employee's needs and 
     granting or denying a request for an alternative change in 
     the terms and conditions of employment as set forth in 
     subsection (a); and
       (C) in the event of a denial, stating the reason for 
     denial.
       (3) Information.--If information provided by the employee 
     making a request under this section requires clarification, 
     the employer shall explain what further information is needed 
     and give the employee reasonable time to produce the 
     information.
       (c) Requests Related to Caregiving, Enrollment in Education 
     or Training, or a Second Job.--If an employee makes a request 
     for a change in the terms and conditions of employment as set 
     forth in subsection (a) because of a serious health condition 
     of the employee, due to the employee's responsibilities as a 
     caregiver, or due to the employee's enrollment in a career-
     related educational or training program, or if a part-time 
     employee makes a request for such a change for a reason 
     related to a second job, the employer shall grant the 
     request, unless the employer has a bona fide business reason 
     for denying the request.
       (d) Other Requests.--If an employee makes a request for a 
     change in the terms and conditions of employment as set forth 
     in subsection (a), for a reason other than those reasons set 
     forth in subsection (c), the employer may deny the request 
     for any reason that is not unlawful. If the employer denies 
     such a request, the employer shall provide the employee with 
     the reason for the denial, including whether any such reason 
     was a bona fide business reason.

     SEC. 4. REQUIREMENTS FOR REPORTING TIME PAY, SPLIT SHIFT PAY, 
                   AND ADVANCE NOTICE OF WORK SCHEDULES.

       (a) Reporting Time Pay Requirement.--An employer shall pay 
     a retail, food service, or cleaning employee--
       (1) for at least 4 hours at the employee's regular rate of 
     pay for each day on which the retail, food service, or 
     cleaning employee reports for work, as required by the 
     employer, but is given less than four hours of work, except 
     that if the retail, food service, or cleaning employee's 
     scheduled hours for a day are less than 4 hours, such retail, 
     food service, or cleaning employee shall be paid for the 
     employee's scheduled hours for that day if given less than 
     the scheduled hours of work; and
       (2) for at least 1 hour at the employee's regular rate of 
     pay for each day the retail, food service, or cleaning 
     employee is given specific instructions to contact the 
     employee's employer, or wait to be contacted by the employer, 
     less than 24 hours in advance of the start of a potential 
     work shift to determine whether the employee must report to 
     work for such shift.
       (b) Split Shift Pay Requirement.--An employer shall pay a 
     retail, food service, or cleaning employee for one additional 
     hour at the retail, food service, or cleaning employee's 
     regular rate of pay for each day during which the retail, 
     food service, or cleaning employee works a split shift.
       (c) Advance Notice Requirement.--
       (1) Initial schedule.--On or before a new retail, food 
     service, or cleaning employee's first day of work, the 
     employer shall inform the retail, food service, or cleaning 
     employee in writing of the employee's work schedule and the 
     minimum number of expected work hours the retail, food 
     service, or cleaning employee will be assigned to work per 
     month.
       (2) Providing notice of new schedules.--Except as provided 
     in paragraph (3), if a retail, food service, or cleaning 
     employee's work schedule changes from the work schedule of 
     which the retail, food service, or cleaning employee was 
     informed pursuant to paragraph (1), the employer shall 
     provide the retail, food service, or cleaning employee with 
     the employee's new work schedule not less than 14 days before 
     the first day of the new work schedule. If the expected 
     minimum number of work hours that a retail, food service, or 
     cleaning employee will be assigned changes from the number of 
     which the employee was informed pursuant to paragraph (1), 
     the employer shall also provide notification of that change, 
     not less than 14 days in advance of the first day this change 
     will go into effect. Nothing in this subsection shall be 
     construed to prohibit an employer from providing greater 
     advance notice of a retail, food service, or cleaning 
     employee's work schedule than is required under this section.
       (3) Work schedule changes made with less than 24 hours' 
     notice.--An employer may make work schedule changes as 
     needed, including by offering additional hours of work to 
     retail, food service, or cleaning employees beyond those 
     previously scheduled, but an employer shall be required to 
     provide one extra hour of pay at the retail, food service, or 
     cleaning employee's regular rate for each shift that is 
     changed with less than 24 hours' notice, except in the case 
     of the need to schedule the retail, food service, or cleaning 
     employee due to the unforeseen unavailability of a retail, 
     food service, or cleaning employee previously scheduled to 
     work that shift.
       (4) Notifications in writing.--The notifications required 
     under paragraphs (1) and (2) shall be made to the employee in 
     writing. Nothing in this subsection shall be construed as 
     prohibiting an employer from using any additional means of 
     notifying a retail, food service, or cleaning employee of the 
     employee's work schedule.
       (5) Schedule posting requirement.--Every employer employing 
     any retail, food service, or cleaning employee subject to 
     this Act shall post the schedule and keep it posted in a 
     conspicuous place in every establishment where such retail, 
     food service, or cleaning employee is employed so as to 
     permit the employee to observe readily a copy. Availability 
     of that schedule by electronic means accessible by all 
     retail, food service, or cleaning employees of that employer 
     shall be considered compliance with this subsection.
       (6) Employee shift trading.--Nothing in this subsection 
     shall be construed to prevent an employer from allowing a 
     retail, food service, or cleaning employee to work in place 
     of another employee who has been scheduled to work a 
     particular shift as long as the change in schedule is 
     mutually agreed upon by the employees. An employer shall not 
     be subject to the requirements of paragraph (2) or (3) for 
     such voluntary shift trades.
       (d) Exception.--The requirements in subsections (a), (b), 
     and (c) shall not apply during periods when regular 
     operations of the employer are suspended due to events beyond 
     the employer's control.

     SEC. 5. PROHIBITED ACTS.

       (a) Interference With Rights.--It shall be unlawful for any 
     employer to interfere with, restrain, or deny the exercise or 
     the attempt to exercise, any right of an employee as set 
     forth in section 3 or of a retail, food service, or cleaning 
     employee as set forth in section 4.
       (b) Retaliation Prohibited.--It shall be unlawful for any 
     employer to discharge, threaten to discharge, demote, 
     suspend, reduce work hours of, or take any other adverse 
     employment action against any employee in retaliation for 
     exercising the rights of an employee under this Act or 
     opposing any practice made unlawful by this Act. For purposes 
     of section 3, such retaliation shall include taking an 
     adverse employment action against any employee on the basis 
     of that employee's eligibility or perceived eligibility to 
     request or receive a

[[Page S4712]]

     change in the terms and conditions of employment, as 
     described in such section, on the basis of a reason set forth 
     in section 3(c).
       (c) Interference With Proceedings or Inquiries.--It shall 
     be unlawful for any person to discharge or in any other 
     manner discriminate against any individual because such 
     individual--
       (1) has filed any charge, or has instituted or caused to be 
     instituted any proceeding, under or related to this Act;
       (2) has given or is about to give, any information in 
     connection with any inquiry or proceeding relating to any 
     right provided under this Act; or
       (3) has testified, or is about to testify, in any inquiry 
     or proceeding relating to any right provided under this Act.

     SEC. 6. REMEDIES AND ENFORCEMENT.

       (a) Investigative Authority.--
       (1) In general.--To ensure compliance with this Act, or any 
     regulation or order issued under this Act, the Secretary 
     shall have, subject to paragraph (3), the investigative 
     authority provided under section 11(a) of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 211(a)).
       (2) Obligation to keep and preserve records.--Each employer 
     shall make, keep, and preserve records pertaining to 
     compliance with this Act in accordance with regulations 
     issued by the Secretary under section 8.
       (3) Required submissions generally limited to an annual 
     basis.--The Secretary shall not under the authority of this 
     subsection require any employer to submit to the Secretary 
     any books or records more than once during any 12-month 
     period, unless the Secretary has reasonable cause to believe 
     there may exist a violation of this Act or any regulation or 
     order issued pursuant to this Act, or is investigating a 
     charge pursuant to subsection (c).
       (4) Subpoena powers.--For the purposes of any investigation 
     provided for in this section, the Secretary shall have the 
     subpoena authority provided for under section 9 of the Fair 
     Labor Standards Act of 1938 (29 U.S.C. 209).
       (b) Civil Action by Employees.--
       (1) Liability.--Any employer who violates section 5(a) 
     (with respect to a right set forth in section 4) or 
     subsection (b) or (c) of section 5 (referred to in this 
     section as a ``covered provision'') shall be liable to any 
     employee affected for--
       (A) damages equal to the amount of--
       (i) any wages, salary, employment benefits (as defined in 
     section 101 of the Family and Medical Leave Act of 1993 (29 
     U.S.C. 2611)), or other compensation denied, lost, or owed to 
     such employee by reason of the violation; or
       (ii) in a case in which wages, salary, employment benefits 
     (as so defined), or other compensation have not been denied, 
     lost, or owed to the employee, any actual monetary losses 
     sustained by the employee as a direct result of the 
     violation;
       (B) interest on the amount described in subparagraph (A) 
     calculated at the prevailing rate;
       (C) an additional amount as liquidated damages equal to the 
     sum of the amount described in subparagraph (A) and the 
     interest described in subparagraph (B), except that if an 
     employer who has violated a covered provision proves to the 
     satisfaction of the court that the act or omission which 
     violated the covered provision was in good faith and that the 
     employer had reasonable grounds for believing that the act or 
     omission was not a violation of a covered provision, such 
     court may, in the discretion of the court, reduce the amount 
     of liability to the amount and interest determined under 
     subparagraphs (A) and (B), respectively; and
       (D) such equitable relief as may be appropriate, including 
     employment, reinstatement, and promotion.
       (2) Right of action.--An action to recover the damages or 
     equitable relief set forth in paragraph (1) may be maintained 
     against any employer (including a public agency) in any 
     Federal or State court of competent jurisdiction by any one 
     or more employees for and on behalf of--
       (A) the employees; or
       (B) the employees and other employees similarly situated.
       (3) Fees and costs.--The court in such an action shall, in 
     addition to any judgment awarded to the plaintiff, allow a 
     reasonable attorney's fee, reasonable expert witness fees, 
     and other costs of the action to be paid by the defendant.
       (4) Limitations.--The right provided by paragraph (2) to 
     bring an action by or on behalf of any employee shall 
     terminate on the filing of a complaint by the Secretary in an 
     action under subsection (c)(3) in which a recovery is sought 
     of the damages described in paragraph (1)(A) owing to an 
     employee by an employer liable under paragraph (1) unless the 
     action described is dismissed without prejudice on motion of 
     the Secretary.
       (c) Actions by the Secretary.--
       (1) Administrative action.--The Secretary shall receive, 
     investigate, and attempt to resolve complaints of violations 
     of this Act in the same manner that the Secretary receives, 
     investigates, and attempts to resolve complaints of 
     violations of section 6 and 7 of the Fair Labor Standards Act 
     of 1938 (29 U.S.C. 206 and 207), and may issue an order 
     making determinations, and assessing a civil penalty 
     described in paragraph (3) (in accordance with paragraph 
     (3)), with respect to such an alleged violation.
       (2) Administrative review.--An affected person who takes 
     exception to an order issued under paragraph (1) may request 
     review of and a decision regarding such an order by an 
     administrative law judge. In reviewing the order, the 
     administrative law judge may hold an administrative hearing 
     concerning the order, in accordance with the requirements of 
     sections 554, 556, and 557 of title 5, United States Code. 
     Such hearing shall be conducted expeditiously. If no affected 
     person requests such review within 60 days after the order is 
     issued under paragraph (1), the order shall be considered to 
     be a final order that is not subject to judicial review.
       (3) Civil penalty.--An employer who willfully and 
     repeatedly violates--
       (A) paragraph (1), (4), or (5) of section 4(c) shall be 
     subject to a civil penalty in an amount to be determined by 
     the Secretary, but not to exceed $100 per violation; and
       (B) subsection (b) or (c) of section 5 shall be subject to 
     a civil penalty in an amount to be determined by the 
     Secretary, but not to exceed $1,100 per violation.
       (4) Civil action.--The Secretary may bring an action in any 
     court of competent jurisdiction on behalf of aggrieved 
     employees to--
       (A) restrain violations of this Act;
       (B) award such equitable relief as may be appropriate, 
     including employment, reinstatement, and promotion; and
       (C) in the case of a violation of a covered provision, 
     recover the damages and interest described in subparagraphs 
     (A) through (C) of subsection (b)(1).
       (d) Limitation.--
       (1) In general.--Except as provided in paragraph (2), an 
     action may be brought under this section not later than 2 
     years after the date of the last event constituting the 
     alleged violation for which the action is brought.
       (2) Willful violation.--In the case of such action brought 
     for a willful violation of section 5, such action may be 
     brought within 3 years of the date of the last event 
     constituting the alleged violation for which such action is 
     brought.
       (3) Commencement.--In determining when an action is 
     commenced by the Secretary under this section for the 
     purposes of this subsection, it shall be considered to be 
     commenced on the date when the complaint is filed.
       (e) Other Administrative Officers.--
       (1) Board.--In the case of employees described in section 
     2(7)(C), the authority of the Secretary under this Act shall 
     be exercised by the Board of Directors of the Office of 
     Compliance.
       (2) President; merit systems protection board.--In the case 
     of employees described in section 2(7)(D), the authority of 
     the Secretary under this Act shall be exercised by the 
     President and the Merit Systems Protection Board.
       (3) Office of personnel management.--In the case of 
     employees described in section 2(7)(E), the authority of the 
     Secretary under this Act shall be exercised by the Office of 
     Personnel Management.
       (4) Librarian of congress.--In the case of employees of the 
     Library of Congress, the authority of the Secretary under 
     this Act shall be exercised by the Librarian of Congress.
       (5) Comptroller general.--In the case of employees of the 
     Government Accountability Office, the authority of the 
     Secretary under this Act shall be exercised by the 
     Comptroller General of the United States.

     SEC. 7. NOTICE AND POSTING.

       (a) In General.--Each employer shall post and keep posted, 
     in conspicuous places on the premises of the employer where 
     notices to employees and applicants for employment are 
     customarily posted, a notice, to be prepared or approved by 
     the Secretary (or the corresponding administrative officer 
     specified in section 8) setting forth excerpts from, or 
     summaries of, the pertinent provisions of this Act and 
     information pertaining to the filing of a complaint under 
     this Act.
       (b) Penalty.--Any employer that willfully violates this 
     section may be assessed a civil money penalty not to exceed 
     $100 for each separate offense.

     SEC. 8. REGULATIONS.

       (a) In General.--Except as provided in subsections (b) 
     through (f), not later than 180 days after the date of 
     enactment of this Act, the Secretary shall issue such 
     regulations as may be necessary to implement this Act.
       (b) Board.--
       (1) In general.--Not later than 180 days after the date of 
     enactment of this Act, the Board of Directors of the Office 
     of Compliance shall issue such regulations as may be 
     necessary to implement this Act with respect to employees 
     described in section 2(7)(C).
       (2) Consideration.--In prescribing the regulations, the 
     Board shall take into consideration the enforcement and 
     remedies provisions concerning the Board, and applicable to 
     rights and protections under the Family and Medical Leave Act 
     of 1993 (29 U.S.C. 2611 et seq.), under the Congressional 
     Accountability Act of 1995 (2 U.S.C. 1301 et seq.).
       (3) Modifications.--The regulations issued under paragraph 
     (1) to implement this Act shall be the same as substantive 
     regulations issued by the Secretary to implement this Act, 
     except to the extent that the Board may determine, for good 
     cause shown and stated together with the regulations issued 
     by the Board, that a modification of such substantive 
     regulations would be more effective for the implementation of 
     the rights and protections under this Act.
       (c) President.--

[[Page S4713]]

       (1) In general.--Not later than 180 days after the date of 
     enactment of this Act, the President shall issue such 
     regulations as may be necessary to implement this Act with 
     respect to employees described in section 2(7)(D).
       (2) Consideration.--In prescribing the regulations, the 
     President shall take into consideration the enforcement and 
     remedies provisions concerning the President and the Merit 
     Systems Protection Board, and applicable to rights and 
     protections under the Family and Medical Leave Act of 1993, 
     under chapter 5 of title 3, United States Code.
       (3) Modifications.--The regulations issued under paragraph 
     (1) to implement this Act shall be the same as substantive 
     regulations issued by the Secretary to implement this Act, 
     except to the extent that the President may determine, for 
     good cause shown and stated together with the regulations 
     issued by the President, that a modification of such 
     substantive regulations would be more effective for the 
     implementation of the rights and protections under this Act.
       (d) Office of Personnel Management.--
       (1) In general.--Not later than 180 days after the date of 
     enactment of this Act, the Office of Personnel Management 
     shall issue such regulations as may be necessary to implement 
     this Act with respect to employees described in section 
     2(7)(E).
       (2) Consideration.--In prescribing the regulations, the 
     Office shall take into consideration the enforcement and 
     remedies provisions concerning the Office under subchapter V 
     of chapter 63 of title 5, United States Code.
       (3) Modifications.--The regulations issued under paragraph 
     (1) to implement this Act shall be the same as substantive 
     regulations issued by the Secretary to implement this Act, 
     except to the extent that the Office may determine, for good 
     cause shown and stated together with the regulations issued 
     by the Office, that a modification of such substantive 
     regulations would be more effective for the implementation of 
     the rights and protections under this Act.
       (e) Librarian of Congress.--
       (1) In general.--Not later than 180 days after the date of 
     enactment of this Act, the Librarian of Congress shall issue 
     such regulations as may be necessary to implement this Act 
     with respect to employees of the Library of Congress.
       (2) Consideration.--In prescribing the regulations, the 
     Librarian shall take into consideration the enforcement and 
     remedies provisions concerning the Librarian of Congress 
     under title I of the Family and Medical Leave Act of 1993 (29 
     U.S.C. 2611 et seq.).
       (3) Modifications.--The regulations issued under paragraph 
     (1) to implement this Act shall be the same as substantive 
     regulations issued by the Secretary to implement this Act, 
     except to the extent that the Librarian may determine, for 
     good cause shown and stated together with the regulations 
     issued by the Librarian, that a modification of such 
     substantive regulations would be more effective for the 
     implementation of the rights and protections under this Act.
       (f) Comptroller General.--
       (1) In general.--Not later than 180 days after the date of 
     enactment of this Act, the Comptroller General shall issue 
     such regulations as may be necessary to implement this Act 
     with respect to employees of the Government Accountability 
     Office.
       (2) Consideration.--In prescribing the regulations, the 
     Comptroller General shall take into consideration the 
     enforcement and remedies provisions concerning the 
     Comptroller General under title I of the Family and Medical 
     Leave Act of 1993.
       (3) Modifications.--The regulations issued under paragraph 
     (1) to implement this Act shall be the same as substantive 
     regulations issued by the Secretary to implement this Act, 
     except to the extent that the Comptroller General may 
     determine, for good cause shown and stated together with the 
     regulations issued by the Comptroller General, that a 
     modification of such substantive regulations would be more 
     effective for the implementation of the rights and 
     protections under this Act.

     SEC. 9. RESEARCH, EDUCATION, AND TECHNICAL ASSISTANCE 
                   PROGRAM.

       (a) In General.--The Secretary shall provide information 
     and technical assistance to employers, labor organizations, 
     and the general public concerning compliance with this Act.
       (b) Program.--In order to achieve the objectives of this 
     Act--
       (1) the Secretary, acting through the Administrator of the 
     Wage and Hour Division of the Department of Labor, shall 
     issue guidance on compliance with this Act regarding 
     providing a flexible, predictable, or stable work environment 
     through changes in the terms and conditions of employment as 
     provided in section 3(a); and
       (2) the Secretary shall carry on a continuing program of 
     research, education, and technical assistance, including--
       (A)(i) conducting pilot programs that implement fairer work 
     schedules, including by promoting cross training, providing 
     three weeks or more advance notice of schedules, providing 
     employees with a minimum number of hours of work, and using 
     computerized scheduling software to provide more flexible, 
     predictable, and stable schedules for employees; and
       (ii) evaluating the results of such pilot programs for 
     employees, employee's families, and employers;
       (B) publishing and otherwise making available to employers, 
     labor organizations, professional associations, educational 
     institutions, the various communication media, and the 
     general public the findings of studies regarding fair work 
     scheduling policies and other materials for promoting 
     compliance with this Act;
       (C) sponsoring and assisting State and community 
     informational and educational programs; and
       (D) providing technical assistance to employers, labor 
     organizations, professional associations, and other 
     interested persons on means of achieving and maintaining 
     compliance with the provisions of this Act.
       (c) GAO Study.--
       (1) Study.--The Comptroller General of the United States 
     shall conduct a study on--
       (A) the impact of difficult scheduling practices on 
     employees and employers, including unpredictable and unstable 
     schedules and schedules over which employees have little 
     control, and particularly how these scheduling practices 
     impact absenteeism, workforce turnover, and employees' 
     ability to meet their caregiving responsibilities;
       (B) the prevalence in occupations not described in section 
     2(16)(A) of employees routinely receiving inadequate advance 
     notice of the shifts or hours of the employees, being 
     assigned split shifts, being sent home from work prior to the 
     completion of their scheduled shift without being paid for 
     the hours in their scheduled shift, being assigned call-in 
     shifts (where the employee is required to contact the 
     employer, or wait to be contacted by the employer, less than 
     24 hours in advance of the potential work shift to determine 
     whether the employee must report to work), or being called 
     into work outside of scheduled hours;
       (C) the effects on employees in occupations not described 
     in section 2(16)(A) of providing advance notice of work 
     schedules, reporting time pay when employees are sent home 
     without working their full scheduled shift or are assigned to 
     call-in shifts but given no work for those shifts, and split 
     shift pay when employees are assigned split shifts; and
       (D) the effects on employers in occupations not described 
     in section 2(16)(A) of providing advance notice of work 
     schedules, reporting time pay when employees are sent home 
     without working their full scheduled shift or assigned to 
     call-in shifts but given no work for those shifts, and split 
     shift pay when employees are assigned split shifts.
       (2) Reports.--Not later than 18 months after the date of 
     enactment of this Act, the Comptroller General of the United 
     States shall prepare and submit a report to the appropriate 
     committees of Congress concerning the initial results of the 
     study conducted pursuant to paragraph (1). Not later than 5 
     years after the date of enactment of this Act, the 
     Comptroller General shall prepare and submit a follow-up 
     report to such committees concerning the results of such 
     study.

     SEC. 10. RIGHTS RETAINED BY EMPLOYEES.

       This Act provides minimum requirements and shall not be 
     construed to preempt, limit, or otherwise affect the 
     applicability of any other law, regulation, requirement, 
     policy, or standard that provides for greater rights for 
     employees than are required in this Act.

     SEC. 11. EXEMPTION.

       This Act shall not apply to any employee covered by a bona 
     fide collective bargaining agreement if the terms of the 
     collective bargaining agreement include terms that govern 
     work scheduling practices.

     SEC. 12. EFFECT ON OTHER LAW.

       Nothing in this Act shall be construed as creating or 
     imposing any requirement in conflict with any Federal or 
     State law or regulation (including the Americans with 
     Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), the 
     Family and Medical Leave Act of 1993 (29 U.S.C. 2611 et 
     seq.), the National Labor Relations Act (29 U.S.C. 151 et 
     seq.), and title VII of the Civil Rights Act of 1964 (42 
     U.S.C. 2000e et seq.)), nor shall anything in this Act be 
     construed to diminish or impair the rights of an employee 
     under any valid collective bargaining agreement.
                                 ______