[House Report 105-31]
[From the U.S. Government Publishing Office]
105th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 105-31
_______________________________________________________________________
PROVIDING FOR THE CONSIDERATION OF
H.R. 1, THE WORKING FAMILIES FLEXIBILITY ACT OF 1997
_______
March 18, 1997.--Referred to the House Calendar and ordered to be
printed
_______________________________________________________________________
Mr. Pryce of Ohio, from the Committee on Rules, submitted the following
R E P O R T
[To accompany H. Res. 99]
The Committee on Rules, having had under consideration
House Resolution 99, by a nonrecord vote, report the same to
the House with the recommendation that the resolution be
adopted.
brief summary of provisions of resolution
The resolution provides for the consideration of H.R. 1,
the ``Working Families Flexibility Act of 1997'' under a
modified closed rule. The rule provides one hour of general
debate divided equally between the chairman and ranking
minority member of the Committee on Education and the
Workforce.
The rule makes in order the Committee on Education and the
Workforce amendment on the nature of a substitute now printed
in the bill as an original bill for the purpose of amendment
and provides that it shall be considered as read.
The rule further makes in order only those amendments
printed in this report, and provides that the amendments made
in order shall be considered only in the order specified, shall
be considered as read, shall be debatable for the time
specified in the report equally divided and controlled by the
proponent and an opponent, shall not be subject to amendment,
and shall not be subject to a demand for a division of the
question in the House or in the Committee of the Whole.
The rule also provides that an amendment designated to be
offered by the chairman of the Committee on Education and the
Workforce or his designee may be offered en bloc with one or
more other such amendments.
Finally, the rule provides for one motion to recommit, with
or without instructions.
committee votes
Pursuant to clause 2(l)(2)(B) of House rule XI the results
of each rollcall vote on an amendment or motion to report,
together with the names of those voting for and against, are
printed below:
Rules Committee Rollcall No. 3
Date: March 18, 1997.
Measure: H.R. 1, the Working Families Flexibility Act of
1997.
Motion by: Mr. Frost.
Summary of motion: Make in order the changes to the Miller
amendment that Mr. Miller presented in the Rules Committee
hearing.
Results: Defeated 4-7.
Vote by Members: Dreier--Nay; Goss--Nay; Pryce--Nay; Diaz-
Balart--Nay; McInnis--Nay; Hastings--Nay; Moakley--Yea; Frost--
Yea; Hall--Yea; Slaughter--Yea; Solomon--Nay.
summary of amendments made in order for h.r. 1, the working families
flexibility act of 1997
(1) Goodling--10 min.: Requires that an employee have
worked at least 1000 hours during a period of continuous
employment with the employer within the last year before the
employee may agree to compensatory time or receive compensatory
time.
(2) Goodling--10 min.: Reduces maximum hours of
compensatory time that may be accrued by an employee from 240
to 160 hours.
(3) Goodling--10 min.: Sunsets the private sector
compensatory time provision after 5 years.
(4) Owens--10 min.: Exempts workers who earn less than 2.5
times the minimum wages.
(5) Miller (CA)--60 min.: Substitute amendment includes
many of the amendments that were offered in committee mark up
(and additional amendments). Prohibits employers from directly
or indirectly soliciting employees to take comp. time; requires
the Secretary of Labor to define what constitutes a knowing
decision to accept comp. time; prohibits employers from
offering comp. time, unless the employer provides all employees
24 hours of leave that may be used to further partake in
children's educational activities or to provide routine medical
care to children or elders; prohibits comp. time to employees
who work less than 35 hours per week, work less than 12 months
for the employer, are seasonal, or are employed in the
construction industry, agricultural industry, garment industry,
or any industry designated by the Secretary of Labor; provides
that an employer may not deny comp. time where the leave is
otherwise protected by the Family and Medical Leave Act; limits
the amount of comp. time an employee can accrue to 80 hours
annually; specifically provides that an employer may not
condition employment benefits or availability of overtime upon
an employee's decision to accept or reject comp. time or to use
comp. time; and creates a commission to study comp. time.
amendments made in order by the rule
1. The Amendment To Be Offered by Representative Goodling of
Pennsylvania, or a Designee, Debatable for Not To Exceed 10 Minutes
Page 4, insert after line 10 the following:
No employee may receive or agree to receive compensatory
time off under this subsection unless the employee has worked
at least 1,000 hours for the employee's employer during a
period of continuous employment with the employer in the 12
month period before the date of agreement or receipt of
compensatory time off.
----------
2. An Amendment To Be Offered by Representative Goodling of
Pennsylvania, or a Designee, Debatable for 10 Minutes
Page 4, line 13, strike ``240'' and insert ``160''.
----------
3. An Amendment To Be Offered by Representative Goodling of
Pennsylvania, or a Designee, Debatable for 10 Minutes
Page 9, add after line 2 the following:
SEC. 5. SUNSET.
This Act and the amendments made by this Act shall expire 5
years after the date of enactment of this Act.
----------
4. An Amendment To Be Offered by Representative Owens of New York, or a
Designee, Debatable for 10 Minutes
Page 3, line 10, insert before the period the following:
``or an employee whose rate of pay is less than 2.5 times the
minimum wage rate in effect under section 6(a)(1)''.
----------
5. An Amendment To Be Offered by Representative Miller of California,
or a Designee, Debatable for 60 Minutes
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Paycheck Protection and Family
Flexibility Act of 1997''.
SEC. 2. IN GENERAL.
Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C.
207) is amended to add at the end the following:
``(r)(1) 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 1\1/2\ hours for
each hour of employment for which overtime is required by
subsection (a).
``(2) An employer may provide compensatory time to an
eligible employee under paragraph (1) only--
``(A) pursuant to--
``(i) applicable provisions of a collective
bargaining agreement between the employer and
the labor organization which has been certified
or recognized as the representative of the
employees under applicable law, or
``(ii) in the case of employees who are not
represented by a collective bargaining agent or
other representative designated by the
employee, a plan adopted by the employer and
provided in writing to the employer's employees
which provides employees with a voluntary,
informed option to receive compensatory time
off for overtime work where there is an
express, voluntary written request by an
individual employee for compensatory time off
in lieu of overtime pay provided to the
employer prior to the performance of any
overtime assignment;
``(B) if the employee has not earned compensatory
time in excess of the applicable limit prescribed by
paragraph (4)(A) or in regulations issued by the
Secretary pursuant to paragraph (13);
``(C) if the employee is not required as a condition
of employment to accept or request compensatory time;
``(D) if the agreement or plan complies with the
requirements of this subsection and the regulations
issued by the Secretary under paragraph (13), including
the availability of compensatory time to similarly
situated employees on an equal basis; and
``(E) if, for purposes of a plan established under
subparagraph (A)(ii), the employer, in providing
compensatory time, does not modify a leave policy so as
to reduce any paid or unpaid leave or does not reduce
any other type of benefit or compensation an employee
would otherwise be entitled to receive.
``(3) An employee may, at any time, withdraw a request for
compensatory time made under a plan under paragraph (2)(A)(ii).
``(4)(A) An employee may earn not more than a total of 80
hours of compensatory time in any year or alternative 12-month
period designated pursuant to subparagraph (C). The employer
shall regularly report to the employee on the number of
compensatory hours earned by the employee and the total amount
of the employee's earned-and-unused compensatory time, in
accordance with regulations issued by the Secretary.
``(B) Upon the request of an employee who has earned
compensatory time, the employer shall on the payday of the pay
period during which the request is received provide monetary
compensation for any such compensatory time at a rate not less
than the regular rate earned by the employee at the time the
employee performed the overtime work or the employee's regular
rate at the time such monetary compensation is paid, whichever
is higher.
``(C) Not later than January 31 of each calendar year, each
employer shall provide monetary compensation to each employee
for any compensatory time earned during the preceding calendar
year for which the employee has not already received monetary
compensation (either through paid time off or cash payment) at
a rate not less than the regular rate earned by the employee at
the time the employee performed the overtime work or the
employee's regular rate at the time such monetary compensation
is paid, whichever is higher. An agreement or plan under
paragraph (2) may designate a 12-month period other than the
calendar year, in which case such compensation shall be
provided not later than 31 days after the end of such 12-month
period. An employee may voluntarily, at the employee's own
initiative, request in writing that such end-of-year payment of
monetary compensation for earned compensatory time be delayed
for a period not to exceed 3 months. This subparagraph shall
have no effect on the limit on earned compensatory time set
forth in subparagraph (A) or in regulations issued by the
Secretary pursuant to paragraph (13).
``(5) An employee who has earned compensatory time authorized
to be provided under paragraph (1) shall, upon the voluntary or
involuntary termination of employment or upon expiration of
this subsection, be paid for unused compensatory time at a rate
of compensation not less than the regular rate earned by the
employee at the time the employee performed the overtime work
or the employee's regular rate at the time such monetary
compensation is paid, whichever is higher.
``(6) An employee shall be permitted to use, at the time the
employee has requested, any compensatory time earned pursuant
to paragraph (1)--
``(A) for any reason which would qualify for leave
under section 102(a) of the Family and Medical Leave
Act (29 U.S.C. 2612(a)) or any comparable State law; or
``(B) for any other purpose--
``(i) upon notice to the employer at least 2
weeks prior to the date on which the time off
is to be used, unless use of the compensatory
time at that time will cause substantial and
grievous injury to the employer's operations;
or
``(ii) upon notice to the employer within the
2 weeks prior to the date on which the time off
is to be used unless use of the compensatory
time at that time will unduly disrupt the
operations of the employer.
``(7) An employee shall not be required by the employer to
use any compensatory time earned pursuant to paragraph (1).
``(8) Except where there is a collective bargaining
agreement, an employer may modify or terminate a compensatory
time plan upon not less than 60 days notice to employees. When
a plan is terminated, an employer may not, except as provided
in paragraph (4)(C), require that an employee who has earned
compensatory time receive monetary compensation in lieu of such
time.
``(9) An employer may not pay monetary compensation in lieu
of earned compensatory time except as expressly prescribed in
this subsection. Any payment owed to an employee under this
subsection for unused compensatory time shall be considered
unpaid overtime compensation.
``(10) It shall be an unlawful act of discrimination, within
the meaning of section 15(a)(3), for an employer--
``(A) to discharge or in any other manner penalize,
discriminate against, or otherwise interfere with any
employee--
``(i) because such employee may refuse or has
refused to request or accept compensatory time
off in lieu of overtime pay, or
``(ii) because such employee may request to
use or has used compensatory time off in lieu
of overtime pay;
``(B) to request, directly or indirectly, that an
employee accept compensatory time off in lieu of
overtime pay, to require an employee to request or to
refuse to request such compensatory time as a condition
of employment or as a condition of employment rights or
benefits or to qualify the availability of work for
which overtime compensation is required upon an
employee's request for or acceptance of compensatory
time off in lieu of overtime compensation; or
``(C) to deny an employee the right to use or force
an employee to use earned compensatory time in
violation of this subsection.
``(11) An employer who violates any provision of this
subsection shall be liable, in an action brought pursuant to
section 16(b) or 16(c), in the amount of overtime compensation
that would have been paid for the overtime hours worked or
overtime hours that would have been worked, plus such other
legal or equitable relief as may be appropriate to effectuate
the purpose of this section, as well as an additional equal
amount as liquidated damages, costs, and, in the case of an
action filed under section 16(b), reasonable attorney's fees.
Where an employee has used compensatory time off or received
monetary compensation for earned compensatory time for such
overtime hours worked, the amount of such time used or monetary
compensation paid to the employee shall be offset against the
employer's liability under this paragraph.
``(12) For the purpose of protecting overtime compensation
wages of employees, the Secretary may by regulation require
employers who provide compensatory time to their employees
under this subsection to secure a payment bond with a surety
satisfactory for protection of the overtime compensation of
such employees.
``(13)(A) The Secretary may issue regulations as necessary
and appropriate to implement this subsection including
regulations implementing recordkeeping requirements and
prescribing the content of plans and employee notification.
``(B) The Secretary may issue regulations regarding classes
of employees, including all employees in particular occupations
or industries, to--
``(i) exempt such employees from the provisions of
this subsection,
``(ii) limit the number of compensatory hours that
such employees may earn to less than the number
provided in paragraph (4)(A), or
``(iii) require employers to provide such employees
with monetary compensation for earned compensatory time
at more frequent intervals than specified in paragraph
(4)(C),
where the Secretary has determined that such regulations are
necessary or appropriate to protect vulnerable employees, that
a pattern of violations of the Act may exist, or that such
regulations are necessary or appropriate to assure that
employees receive the compensation due them.
``(C) The Secretary shall issue regulations--
``(i) which bar employers with a pattern or practice
of violations of this Act from offering compensatory
time under this subsection;
``(ii) prescribing the content of plans described in
paragraph (2)(A)(ii) and employee notification,
including the provision of information regarding who is
eligible for compensatory time and under what
circumstances it may be earned and used and information
regarding the impact, if any, that choosing
compensatory time may have on the eligibility, accrual,
and receipt of other compensation and benefits; and
``(iii) requiring employers to keep records in
accordance with section 11(c) of compensatory time
earned and overtime worked.
``(14) When an employee uses earned compensatory time off,
the employee shall be paid for the time off at the employee's
regular rate at the time the employee performed the overtime
work or at the employee's regular rate when the time off is
taken, whichever is higher.
``(15) For purposes of this subsection--
``(A) the terms `compensatory time' and `compensatory
time off' mean hours during which an employee is not
working and for which the employee is compensated at
the employee's regular rate in accordance with this
subsection;
``(B) the term `elderly relative' means an individual
of at least 60 years of age who is related by blood or
marriage to the employee, including a parent;
``(C) the term `employee' does not include--
``(i) a part-time, temporary, or seasonal
employee;
``(ii) an employee of a public agency;
``(iii) an employee in the garment industry;
``(iv) an employee who is not entitled to
take not less than 24 hours of leave during any
12-month period to participate in school
activities directly related to the educational
advancement of a son or daughter of the
employee, accompany such son or daughter to
routine medical or dental appointments, and
accompany an elderly relative of the employee
to routine medical or dental appointments for
other professional services related to such
elder's care; or
``(v) an employee exempted by the Secretary
under paragraph (13)(B);
``(D) The term `overtime compensation' shall have the
meaning given such term by subsection (o)(7).
``(E) The terms `compensatory time' and `compensatory
time off' means hours during which an employee is not
working and for which the employee is compensated at
the employee's regular rate in accordance with this
section;
``(F) the term `part-time, temporary, or seasonal
employee' means--
``(i) an employee whose regular workweek for
the employer is less than 35 hours per week;
``(ii) an employee who is employed by the
employer for a season or other term of less
than 12 months or is otherwise treated by the
employer as not a permanent employee of the
employer; or
``(iii) an employee in the construction
industry, in agricultural employment (as
defined by section 3(3) of the Migrant and
Seasonal Agricultural Worker Protection Act (29
U.S.C. 1802(3)), or in any other industry which
the Secretary by regulation has determined is a
seasonal industry; and
``(G) the term `overtime assignment' means an
assignment of hours for which overtime compensation is
required under subsection (a).
``(H) The term `school' means an elementary or
secondary school (as such terms are defined in section
14101 of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 8801), a Head Start program assisted
under the Head Start Act (42 U.S.C. 9831 et seq.), and
a child care facility licensed under State law.''.
SEC. 3. CIVIL MONEY PENALTIES.
The second sentence of section 16(e) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 216(e)) is amended to read as
follows: ``Any person who violates section 7(r) of this Act
shall be subject to a civil penalty not to exceed $1,000 for
each such violation.''.
SEC. 4. CONSTRUCTION.
Section 18 of the Fair Labor Standards Act of 1938 (29 U.S.C.
218) is amended by designating existing section 18 as
subsection (a) and by adding a new subsection (b) to read as
follows:
``(b)(1) No provision of section 7(r) or of any order
thereunder shall be construed to--
``(A) supersede any provision of any State or local
law that provides greater protection to employees who
are provided compensatory time off in lieu of paid
overtime compensation;
``(B) diminish the obligation of an employer to
comply with any collective bargaining agreement or any
employment benefit program or plan that provides
greater protection to employees provided compensatory
time off in lieu of paid overtime; or
``(C) discourage employers from adopting or retaining
compensatory time plans that provide more protection to
employees.
``(2) Nothing in this subsection shall be construed to allow
employers to provide compensatory time plans to classes of
employees who are exempted from subsection 7(r), to allow
employers to provide more compensatory time than allowed under
subsection 7(r), or to supersede any limitations placed by
subsection 7(r), including exemptions and limitations in
regulations issued by the Secretary thereunder.''.
SEC. 5. COMMISSION ON WORKPLACE FLEXIBILITY.
(a) Establishment.--There is established a Commission on
Workplace Flexibility (hereafter in this section referred to as
the ``Commission''). The members of the Commission shall be
selected in accordance with the procedures set forth in section
303 of the Family and Medical Leave Act of 1993 (29 U.S.C.
2633) and the compensation and powers of the Commission shall
be as prescribed in sections 304 and 305 of that Act (29 U.S.C.
2634, 2635).
(b) Duties.--The Commission shall conduct a comprehensive
study of the impact of compensatory time on private sector
employees, including the impact of the law on average earnings,
hours of work, work schedules, flexibility of scheduling work
to accommodate family needs, and the ability of vulnerable
employees or other employees to obtain the compensation to
which they are entitled, and shall make a comparison of the
compensatory time offered to public and private employees. A
report concerning the findings of the study shall be submitted
to the appropriate committees of Congress and to the Secretary
of Labor not later than 1 year before the expiration of this
title. The report shall include recommendations as to whether
the compensatory time provisions of section 7(r) of the Fair
Labor Standards Act of 1938 should be modified or extended,
including a recommendation as to whether particular classes of
employees or industries should be exempted or otherwise given
special treatment and whether additional protections should be
given. The Commission shall have no obligation to conduct a
study and issue a report pursuant to this section if funds are
not authorized and appropriated for that purpose.
SEC. 6. EFFECTIVE DATE; SUNSET.
(a) Effective Date.--This Act and the amendments made by this
Act shall take effect 6 months after the date of the enactment
of this Act.
(b) Sunset.--The provisions of this Act shall expire 4 years
after date of the enactment of this Act.