[Congressional Record (Bound Edition), Volume 159 (2013), Part 11]
[Senate]
[Pages 16482-16490]
[From the U.S. 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;

[[Page 16483]]

       ``(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 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

[[Page 16484]]

     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, 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-

[[Page 16485]]

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 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

[[Page 16486]]

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 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

[[Page 16487]]

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.
  The CDC has determined that lack of in-home 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

[[Page 16488]]

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 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.

[[Page 16489]]

       ``(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 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

[[Page 16490]]

     (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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