[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3256 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
2d Session
S. 3256
To permit employees to request changes to their work schedules without
fear of retaliation and to ensure that employers consider these
requests, and to require employers to provide more predictable and
stable schedules for employees in certain occupations with evidence of
unpredictable and unstable scheduling practices that negatively affect
employees, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 5, 2020
Ms. Warren (for herself, Mr. Blumenthal, Mrs. Gillibrand, Mr. Van
Hollen, Ms. Baldwin, Mr. Brown, Mr. Durbin, Ms. Harris, Mr. Cardin, Mr.
Reed, Mr. Booker, Mrs. Feinstein, Mr. Markey, Mr. Sanders, Mr.
Whitehouse, Mr. Murphy, Ms. Klobuchar, Ms. Duckworth, Mr. Leahy, Mr.
Schumer, Ms. Hirono, Mr. Merkley, Mr. Wyden, and Mrs. Murray)
introduced the following bill; which was read twice and referred to the
Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To permit employees to request changes to their work schedules without
fear of retaliation and to ensure that employers consider these
requests, and to require employers to provide more predictable and
stable schedules for employees in certain occupations with evidence of
unpredictable and unstable scheduling practices that negatively affect
employees, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; FINDINGS.
(a) Short Title.--This Act may be cited as the ``Schedules That
Work Act''.
(b) Findings.--Congress finds the following:
(1) The vast majority of the United States workforce today
is juggling responsibilities at home and at work. Women are
primary breadwinners or co-breadwinners in 64 percent of
families in the United States.
(2) Despite the dual responsibilities of today's workforce,
both hourly and salaried workers often have little ability to
make changes to their work schedules when those changes are
needed to accommodate family responsibilities.
(3)(A) Mothers working in low-wage jobs are more likely to
be the primary or sole breadwinner for their families than
mothers working in higher-wage jobs. For example, nearly 7 in
10 mothers in the one-fifth of households in the United States
with the lowest incomes bring home all or most of their
families' income, compared to less than one-third of their
counterparts in the highest-income quintile.
(B) At the same time, low-wage workers have the least
control over their work schedules and the most unpredictable
schedules. Across industries, more than half (55 percent) of
low-paid hourly workers report that they receive a week or less
of notice of their work schedules, and nearly two-thirds (65
percent) report that their employer controls the timing of
their work hours. In some industries, ``just-in-time''
scheduling practices, which base workers' schedules on
perceived consumer demand to minimize labor costs, are
particularly common. Employers using these practices often post
work schedules with little notice, vary work hours widely from
week to week, cancel shifts at the last minute, and schedule
employees for ``on call'' shifts (requiring an employee to call
in to work to find out whether the employee will have to work
later that day) or ``clopening'' shifts (requiring an employee
to work a closing shift at night followed by an opening shift a
few hours later). For example, surveys of nearly 30,000 hourly
workers employed by the 80 largest retail and food service
chains in the United States show that--
(i) about two-thirds of hourly retail and food
service workers receive their work schedules with less
than 2 weeks' advance notice;
(ii) more than one in 4 hourly retail and food
service workers have been scheduled for on-call shifts,
and half have worked ``clopening'' shifts; and
(iii) only one in 5 hourly retail and food service
workers report working a regular daytime schedule.
(4) Unfair work scheduling practices make it difficult for
low-wage workers to--
(A) provide necessary care for children and other
family members, including securing and maintaining
stable child care;
(B) access and receive needed care for the workers'
own serious health conditions;
(C) pursue workforce training;
(D) get or keep a second job, which many workers
need to make ends meet;
(E) plan for and access transportation to reach
worksites; and
(F) qualify for and maintain eligibility for needed
public benefits and work supports, such as child care
subsidies and benefits under the supplemental nutrition
assistance program, due to fluctuations in income and
work hours.
(5) A growing body of research demonstrates that unstable
and unpredictable work schedules have significant detrimental
impacts on sleep quality, mental health, and happiness, and are
associated with unstable child care arrangements and negative
health and behavioral outcomes for children. These work
schedules--and the work-family conflict they produce--are also
associated with higher rates of turnover, which creates further
instability for employers and workers. Workers of color are
also more likely than their White counterparts, even compared
to White coworkers at the same company, to experience unstable
work schedules. For example:
(A) Unstable work schedules lead to more household
economic strain and time conflicts, and hurt the well-
being of parents. While household economic strain, time
conflicts, and the well-being of parents may all
negatively impact the health and behavior of a child, a
parent's well-being is the most significant factor in
determining the behavior and health outcomes of a
child. The more severe the work schedule instability,
the worse the child's behavior and health outcomes.
(B) The exposure of a parent to on-call shifts and
last-minute shift changes are associated with more
unstable child care arrangements and with the use of
siblings to provide care.
(C) Work schedule instability causes more work-
family conflict, which increases the chance that a
worker will be forced to leave his or her job. This
turnover is associated with downward mobility of the
worker's earnings.
(D)(i) Relative to White workers, workers of color
are more likely to--
(I) have cancelled shifts;
(II) have on-call shifts;
(III) be involuntary part-time workers;
(IV) have trouble getting time off; and
(V) work ``clopening'' shifts, as described
in paragraph (3)(B).
(ii) The statistics described in clause (i) remain
true after controlling for demographics, human capital,
worker power, firm segregation, and discordance with
the race or ethnicity of the worker and the manager.
Race gaps in job quality are greater for women of
color.
(E) Workers who receive shorter advanced notice,
those who work on-call shifts, those who experience
last minute shift cancellation and timing changes, and
those with more volatile work hours are more likely to
experience hunger, residential hardships, and more
overall economic hardship.
(6) Unpredictable and unstable work schedules are common in
a wide range of occupations, with evidence of particular
concentration in food service, retail, cleaning, hospitality,
and warehouse occupations. These occupations are critically
important to the United States economy.
(7) Employers that have implemented fair work scheduling
policies that allow workers to have more control over their
work schedules, and provide more predictable and stable
schedules, have experienced significant benefits, including
reductions in absenteeism and workforce turnover, and increased
worker morale and engagement. For example, when Gap Inc.
piloted strategies to make work schedules more stable and
predictable for employees, the Gap Inc. stores that implemented
these strategies experienced higher productivity, and a 7-
percent increase in sales, compared to those Gap Inc. stores
that did not implement these strategies.
(8) This Act is a first step in responding to the needs of
workers for a voice in the timing of their work hours and for
more predictable schedules.
SEC. 2. DEFINITIONS.
As used in this Act:
(1) Bona fide business reason.--The term ``bona fide
business reason'' means--
(A) the identifiable burden of additional costs to
an employer, including the cost of productivity loss,
retraining or hiring employees, or transferring
employees from one facility to another facility;
(B) a significant detrimental effect on the
employer's ability to meet organizational needs or
customer demand;
(C) a significant inability of the employer,
despite best efforts, to reorganize work among existing
(as of the date of the reorganization) staff;
(D) a significant detrimental effect on business
performance;
(E) insufficiency of work during the periods an
employee proposes to work;
(F) the need to balance competing scheduling
requests when it is not possible to grant all such
requests without a significant detrimental effect on
the employer's ability to meet organizational needs; or
(G) such other reason as may be specified by the
Secretary of Labor (or the corresponding administrative
officer specified in section 9).
(2) Career-related educational or training program.--The
term ``career-related educational or training program'' means
an educational or training program or program of study offered
by a public, private, or nonprofit career and technical
education school, institution of higher education, or other
entity that provides academic education, career and technical
education, or training (including remedial education or English
as a second language, as appropriate), that is a program that
leads to a recognized postsecondary credential (as identified
under section 122(d) of the Workforce Innovation and
Opportunity Act (29 U.S.C. 3152(d)), and provides career
awareness information. The term includes a program allowable
under the Workforce Innovation and Opportunity Act (29 U.S.C.
3101 et seq.), the Carl D. Perkins Career and Technical
Education Act of 2006 (20 U.S.C. 2301 et seq.), or the Higher
Education Act of 1965 (20 U.S.C. 1001 et seq.), without regard
to whether or not the program is funded under the corresponding
Act.
(3) Caregiver.--The term ``caregiver'' means an individual
with the status of being a significant provider of--
(A) ongoing care or education, including
responsibility for securing the ongoing care or
education, of a child; or
(B) ongoing care, including responsibility for
securing the ongoing care, of--
(i) a person with a serious health
condition who is in a family relationship with
the individual; or
(ii) a parent of the individual, who is age
65 or older.
(4) Child.--The term ``child'' means a biological, adopted,
or foster child, a stepchild, a legal ward, or a child of a
person standing in loco parentis to that child, who is--
(A) under age 18; or
(B) age 18 or older and incapable of self-care
because of a mental or physical disability.
(5) Commerce terms.--The terms ``commerce'' and ``industry
or activity affecting commerce'' have the meanings given the
terms in section 101 of the Family and Medical Leave Act of
1993 (29 U.S.C. 2611).
(6) Covered employer.--
(A) In general.--The term ``covered employer''--
(i) means any person engaged in commerce or
in any industry or activity affecting commerce
who employs 15 or more employees (described in
paragraph (9)(A));
(ii) includes any person who acts, directly
or indirectly, in the interest of such an
employer to any of the employees (described in
paragraph (9)(A)) of such employer;
(iii) includes any successor in interest of
such an employer; and
(iv) includes an agency described in
subparagraph (A)(iii) of section 101(4) of the
Family and Medical Leave Act of 1993 (29 U.S.C.
2611(4)), to which subparagraph (B) of such
section shall apply.
(B) Rule.--For purposes of determining the number
of employees who work for a person described in
subparagraph (A)(i), all employees (described in
paragraph (9)(A)) performing work for compensation on a
full-time, part-time, or temporary basis shall be
counted, except that if the number of such employees
who perform work for such a person for compensation
fluctuates, the number may be determined for a calendar
year based upon the average number of such employees
who performed work for the person for compensation
during the preceding calendar year.
(C) Person.--In this paragraph, the term ``person''
has the meaning given the term in section 3 of the Fair
Labor Standards Act of 1938 (29 U.S.C. 203).
(7) Domestic partner.--The term ``domestic partner'' means
the individual recognized as being in a relationship with an
employee under any domestic partnership, civil union, or
similar law of the State or political subdivision of a State in
which the employee resides.
(8) Employ.--The term ``employ'' has the meaning given the
term in section 3 of the Fair Labor Standards Act of 1938 (29
U.S.C. 203).
(9) Employee.--The term ``employee'' means an individual
who is--
(A) an employee, as defined in section 3(e) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 203(e)),
who is not described in any of subparagraphs (B)
through (G);
(B) a State employee described in section 304(a) of
the Government Employee Rights Act of 1991 (42 U.S.C.
2000e-16c(a));
(C) a covered employee, as defined in section 101
of the Congressional Accountability Act of 1995 (2
U.S.C. 1301), other than an applicant for employment;
(D) a covered employee, as defined in section
411(c) of title 3, United States Code;
(E) a Federal officer or employee covered under
subchapter V of chapter 63 of title 5, United States
Code;
(F) an employee of the Library of Congress; or
(G) an employee of the Government Accountability
Office.
(10) Employer.--The term ``employer'' means a person--
(A) who is--
(i) a covered employer, as defined in
paragraph (6), who is not described in any of
clauses (ii) through (vii);
(ii) an entity employing a State employee
described in section 304(a) of the Government
Employee Rights Act of 1991;
(iii) an employing office, as defined in
section 101 of the Congressional Accountability
Act of 1995;
(iv) an employing office, as defined in
section 411(c) of title 3, United States Code;
(v) an employing agency covered under
subchapter V of chapter 63 of title 5, United
States Code;
(vi) the Librarian of Congress; or
(vii) the Comptroller General of the United
States; and
(B) who is engaged in commerce (including
government), in the production of goods for commerce,
or in an enterprise engaged in commerce (including
government) or in the production of goods for commerce.
(11) Family relationship.--The term ``family relationship''
means a relationship with--
(A) a child, spouse, domestic partner, parent,
grandchild, grandparent, sibling, or parent of a spouse
or domestic partner; or
(B) any individual related to the employee involved
by blood or affinity, whose close association with the
employee is the equivalent of a family relationship
described in subparagraph (A).
(12) Grandchild.--The term ``grandchild'' means the child
of a child.
(13) Grandparent.--The term ``grandparent'' means the
parent of a parent.
(14) Minimum number of expected work hours.--The term
``minimum number of expected work hours'' means the minimum
number of hours an employee will be assigned to work on a
weekly or monthly basis.
(15) Hospitality establishment.--The term ``hospitality
establishment'' means a hotel, motel, inn, or similar transient
lodging establishment.
(16) Nonexempt employee.--The term ``nonexempt employee''
means an employee who is not employed in a bona fide executive,
administrative, or professional capacity, as defined for
purposes of section 13(a)(1) of the Fair Labor Standards Act of
1938 (29 U.S.C. 213(a)(1)).
(17) On-call shift.--The term ``on-call shift'' means any
time during which an employer requires an employee to--
(A) be available to work; and
(B) contact the employer or the designee of the
employer, or wait to be contacted by the employer or
designee, to determine whether the employee is required
to report to work at that time.
(18) Parent.--The term ``parent'' means a biological or
adoptive parent, a stepparent, or a person who stood in a
parental relationship to an employee when the employee was a
child.
(19) Parental relationship.--The term ``parental
relationship'' means a relationship in which a person assumed
the obligations incident to parenthood for a child and
discharged those obligations before the child reached
adulthood.
(20) Retail, food service, cleaning, hospitality, or
warehouse employee.--The term ``retail, food service, cleaning,
hospitality, or warehouse employee'' means a nonexempt employee
who is employed in a hospitality establishment, in a warehouse
establishment, or in any of the following occupations, as
described by the Bureau of Labor Statistics Standard
Occupational Classification System (as in effect on the day
before the date of enactment of this Act):
(A) Retail sales occupations consisting of
occupations described in 41-1010 and 41-2000, and all
subdivisions thereof, of such System, which includes
first-line supervisors of sales workers, cashiers,
gambling change persons and booth cashiers, counter and
rental clerks, parts salespersons, and retail
salespersons.
(B) Food preparation and serving related
occupations as described in 35-0000, and all
subdivisions thereof, of such System, which includes
supervisors of food preparation and serving workers,
cooks and food preparation workers, food and beverage
serving workers, and other food preparation and serving
related workers.
(C) Building cleaning occupations as described in
37-2011, 37-2012, and 37-2019 of such System, which
includes janitors and cleaners, maids and housekeeping
cleaners, and building cleaning workers.
(21) Secretary.--The term ``Secretary'' means the Secretary
of Labor.
(22) Secretary's designated employee.--The term
``Secretary's designated employee'' means an employee employed
in an occupation, other than a retail, food service, cleaning,
hospitality, or warehouse occupation, that is designated by the
Secretary under section 9(a)(2) as appropriate for coverage
under section 4.
(23) Serious health condition.--The term ``serious health
condition'' has the meaning given the term in section 101 of
the Family and Medical Leave Act of 1993 (29 U.S.C. 2611).
(24) Sibling.--The term ``sibling'' means a brother or
sister, whether related by half blood, whole blood, or
adoption, or as a stepsibling.
(25) Split shift.--The term ``split shift'' means a
schedule of daily hours in which the hours worked are not
consecutive, except that--
(A) a schedule in which the total time out for
meals does not exceed one hour shall not be treated as
a split shift; and
(B) a schedule in which the break in the employee's
work shift is requested by the employee shall not be
treated as a split shift.
(26) Spouse.--
(A) In general.--The term ``spouse'' means a person
with whom an individual entered into--
(i) a marriage as defined or recognized
under State law in the State in which the
marriage was entered into; or
(ii) in the case of a marriage entered into
outside of any State, a marriage that is
recognized in the place where entered into and
could have been entered into in at least 1
State.
(B) Same-sex or common law marriage.--Such term
includes an individual in a same-sex or common law
marriage that meets the requirements of subparagraph
(A).
(27) State.--The term ``State'' has the meaning given the
term in section 3 of the Fair Labor Standards Act of 1938 (29
U.S.C. 203).
(28) Warehouse establishment.--The term ``warehouse
establishment'' means any business that engages primarily in
the storage of goods, wares, or commodities for hire or
compensation, and, in connection with such storage, may include
the loading, packing, sorting, stacking, wrapping,
distribution, or delivery of those goods, wares, or
commodities.
(29) Work schedule.--The term ``work schedule'' means all
of an employee's regular work shifts and on-call shifts,
including specific start and end times for each shift, during a
consecutive 7-day period.
(30) Work schedule change.--The term ``work schedule
change'' means any modification to an employee's work schedule,
such as an addition or reduction of hours, cancellation of a
shift, or a change in the date or time of a work shift, by an
employer.
(31) Work shift.--The term ``work shift'' means the
specific hours of the workday during which an employee works.
SEC. 3. RIGHT TO REQUEST AND RECEIVE A FLEXIBLE, PREDICTABLE, OR STABLE
WORK SCHEDULE.
(a) Right To Request.--An employee may apply to the employee's
employer to request a change in the terms and conditions of employment
as they relate to--
(1) the number of hours the employee is required to work or
be on call for work;
(2) the times when the employee is required to work or be
on call for work;
(3) the location where the employee is required to work;
(4) the amount of notification the employee receives of
work schedule assignments; and
(5) minimizing fluctuations in the number of hours the
employee is scheduled to work on a daily, weekly, or monthly
basis.
(b) Employer Obligation To Engage in an Interactive Process.--
(1) In general.--If an employee applies to the employee's
employer to request a change in the terms and conditions of
employment as set forth in subsection (a), the employer shall
engage in a timely, good faith interactive process with the
employee that includes a discussion of potential schedule
changes that would meet the employee's needs.
(2) Result.--Such process shall result in--
(A) either granting or denying the request;
(B) in the event of a denial, considering
alternatives to the proposed change that might meet the
employee's needs and granting or denying a request for
an alternative change in the terms and conditions of
employment as set forth in subsection (a); and
(C) in the event of a denial, stating the reason
for denial, including whether any such reason is a bona
fide business reason.
(3) Information.--If information provided by the employee
making a request under this section requires clarification, the
employer shall explain what further information is needed and
give the employee reasonable time to produce the information.
(c) Requests Related to Caregiving, Enrollment in Education or
Training, or a Second Job.--If an employee makes a request for a change
in the terms and conditions of employment as set forth in subsection
(a) because of a serious health condition of the employee, due to the
employee's responsibilities as a caregiver, or due to the employee's
enrollment in a career-related educational or training program, or if
an employee makes a request for such a change for a reason related to a
second job, the employer shall grant the request, unless the employer
has a bona fide business reason for denying the request.
(d) Other Requests.--If an employee makes a request for a change in
the terms and conditions of employment as set forth in subsection (a),
for a reason other than those reasons set forth in subsection (c), the
employer may deny the request for any reason that is not unlawful. If
the employer denies such a request, the employer shall provide the
employee with the reason for the denial, including whether any such
reason is a bona fide business reason.
SEC. 4. REQUIREMENTS FOR PREDICTABILITY PAY, SPLIT SHIFT PAY, AND
ADVANCE NOTICE OF WORK SCHEDULES FOR RETAIL, FOOD
SERVICE, CLEANING, HOSPITALITY, WAREHOUSE, OR SECRETARY'S
DESIGNATED EMPLOYEES.
(a) Advance Notice Requirement.--
(1) Initial schedule.--On or before the first day of work
for a new retail, food service, cleaning, hospitality, or
warehouse employee, or Secretary's designated employee, the
employer shall inform the employee of the work schedule of the
employee and the minimum number of expected work hours the
employee will be assigned to work per month.
(2) Providing notice of new schedules.--
(A) In general.--Except as provided in subsection
(b)(2), if the work schedule of a retail, food service,
cleaning, hospitality, or warehouse employee, or
Secretary's designated employee, changes from the work
schedule of which the employee was informed pursuant to
paragraph (1), the employer shall provide the employee
with the new work schedule of the employee not less
than 14 days before the first day of the new work
schedule. Such a change shall include a change in the
number of hours of work for which an employee is
assigned.
(B) Compensation for failure to provide timely
notice.--An employer that violates subparagraph (A)
shall compensate each affected employee in the amount
of $75 per day that the new work schedule is not
provided.
(3) Notifications in writing.--The notifications of the
work schedules required under paragraphs (1) and (2) shall be
made to the employee involved in writing.
(4) Schedule posting requirement.--
(A) In general.--Every employer employing any
retail, food service, cleaning, hospitality, or
warehouse employee, or Secretary's designated employee,
shall post a copy of the work schedule of each such
employee and keep it posted in a conspicuous place in
every establishment where such employee is employed so
as to permit the employee involved to observe readily
the copy. Availability of that schedule by electronic
means accessible to all retail, food service, cleaning,
hospitality, or warehouse employees, or Secretary's
designated employees, of that employer shall be
considered compliance with this subparagraph.
(B) Right to decline.--A retail, food service,
cleaning, hospitality, or warehouse employee, or
Secretary's designated employee, may decline to work
any hours not included in the work schedule posted
under subparagraph (A) as work hours for the employee.
(C) Consent.--If a retail, food service, cleaning,
hospitality, or warehouse employee, or Secretary's
designated employee, voluntarily consents to work any
hours not posted under subparagraph (A), such consent
must be recorded in writing.
(5) Rule of construction.--Nothing in this subsection shall
be construed to prohibit an employer from--
(A) providing greater advance notice of the work
schedule of a retail, food service, cleaning,
hospitality, or warehouse employee, or Secretary's
designated employee, than is required under this
subsection; or
(B) using any means, in addition to the written
means required under paragraph (3), of notifying a
retail, food service, cleaning, hospitality, or
warehouse employee, or Secretary's designated employee,
of the work schedule of the employee.
(b) Predictability for Work Schedule Changes Made With Less Than 14
Days' Notice.--
(1) In general.--An employer may, subject to subsection (a)
and paragraph (2), make changes as needed to the work schedule
of a retail, food service, cleaning, hospitality, or warehouse
employee, or Secretary's designated employee, including by
offering additional hours of work in addition to those
scheduled pursuant to the requirements under subsection (a).
(2) Predictability pay.--Except as provided in paragraph
(3), for each change made by an employer to a work schedule
provided to an employee under subsection (a) that occurs less
than 14 days prior to the first day on which the change is to
take effect, the employer shall be required to provide the
affected employee with pay (referred to in this subsection as
``predictability pay'') at the following rates:
(A) The employee's regular rate of pay per hour
that the employee works plus an additional hour at such
regular rate if the employer--
(i) adds any hours to the hours the
employee is scheduled to work under subsection
(a); or
(ii) changes the date, time, or location of
the work shift the employee is scheduled to
work under subsection (a) with no loss of
hours.
(B) Not less than one-half times the employee's
regular rate of pay per hour for any hour that the
employee is scheduled to work under subsection (a) and
does not work due to the employer subtracting or
canceling such scheduled hours of work.
(3) Exceptions to predictability pay.--An employer shall
not be required to pay predictability pay under paragraph (2),
or to obtain written consent pursuant to subsection (a)(5),
under any of the following circumstances:
(A) A retail, food service, cleaning, hospitality,
or warehouse employee, or Secretary's designated
employee, requests a shift change in writing, including
through the use of sick leave, vacation leave, or any
other leave policy offered by the employer.
(B) A schedule change is the result of a mutually
agreed upon shift trade or coverage arrangement between
retail, food service, cleaning, hospitality, or
warehouse employees, or Secretary's designated
employees, subject to any policy of the employer
regarding required conditions for employees to exchange
shifts.
(C) The employer's operations cannot begin or
continue due to--
(i) a threat to the property of an employee
or the employer;
(ii) the failure of a public utility or the
shutdown of public transportation;
(iii) a fire, flood, or other natural
disaster;
(iv) a state of emergency declared by the
President of the United States or by the
governor of the State, or the mayor of the
city, in which the operations are located; or
(v) a severe weather condition that poses a
threat to employee safety.
(c) Split Shift Pay Requirement.--An employer shall pay a retail,
food service, cleaning, hospitality, or warehouse employee, or
Secretary's designated employee, for one additional hour at the
employee's regular rate of pay for each day during which the employee
works a split shift.
(d) Pay Stub Transparency.--Any pay provided to an employee
pursuant to subsection (a), (b), or (c) (referred to in this subsection
as ``additional pay'') shall be included in the employee's regular
paycheck. The employer shall identify, in the corresponding written
wage statement or pay stub, the total number of hours of additional pay
provided for the pay period involved and whether the additional pay was
due to the requirements of subsection (a), the requirements of
subsection (b), or the requirements of subsection (c).
SEC. 5. RIGHT TO REST BETWEEN WORK SHIFTS.
(a) In General.--An employee employed by a covered employer may
decline, without penalty, to work any work shift or on-call shift that
is scheduled or otherwise occurs--
(1) less than 11 hours after the end of the work shift or
on-call shift for the previous day; or
(2) during the 11 hours following the end of a work shift
or on-call shift that spanned 2 days.
(b) Consent.--An employee employed by a covered employer may--
(1) consent to work a shift described in subsection (a) in
writing, either for each such shift or for multiple shifts; and
(2) may revoke such consent in writing at any time during
employment.
(c) Compensation.--For each instance that an employee employed by a
covered employer works a shift described in subsection (a), the covered
employer shall compensate the employee at one and one-half times the
employee's scheduled rate of pay for the hours worked that are less
than 11 hours apart from the hours worked during the previous shift.
SEC. 6. PROHIBITED ACTS.
(a) Interference With Rights.--It shall be unlawful for any
employer to interfere with, restrain, or deny the exercise or the
attempt to exercise, any right of--
(1) an employee as set forth in section 3;
(2) a retail, food service, cleaning, hospitality, or
warehouse employee, or Secretary's designated employee, as set
forth in section 4; or
(3) an employee of a covered employer as set forth in
section 5.
(b) Retaliation Prohibited.--It shall be unlawful for any employer
to discharge, threaten to discharge, demote, suspend, reduce work hours
of, or take any other adverse employment action against any employee in
retaliation for exercising the rights of an employee under this Act or
opposing any practice made unlawful by this Act. For purposes of
section 3, such retaliation shall include taking an adverse employment
action against any employee on the basis of that employee's request for
a change in work schedule, or because of an employee's eligibility or
perceived eligibility to request or receive a change in the terms and
conditions of employment, as described in such section, on the basis of
a reason set forth in section 3(c).
(c) Interference With Proceedings or Inquiries.--It shall be
unlawful for any person to discharge or in any other manner
discriminate against any individual because such individual--
(1) has filed any charge, or has instituted or caused to be
instituted any proceeding, under or related to this Act;
(2) has given or is about to give, any information in
connection with any inquiry or proceeding relating to any right
provided under this Act; or
(3) has testified, or is about to testify, in any inquiry
or proceeding relating to any right provided under this Act.
SEC. 7. REMEDIES AND ENFORCEMENT.
(a) Investigative Authority.--
(1) In general.--To ensure compliance with this Act, or any
regulation or order issued under this Act, the Secretary shall
have, subject to paragraph (3), the investigative authority
provided under section 11(a) of the Fair Labor Standards Act of
1938 (29 U.S.C. 211(a)).
(2) Obligation to keep and preserve records.--Each employer
shall make, keep, and preserve records pertaining to compliance
with this Act in accordance with regulations issued by the
Secretary under section 9.
(3) Required submissions generally limited to an annual
basis.--The Secretary shall not under the authority of this
subsection require any employer to submit to the Secretary any
books or records more than once during any 12-month period,
unless the Secretary has reasonable cause to believe there may
exist a violation of this Act or any regulation or order issued
pursuant to this Act, or is investigating a charge pursuant to
subsection (c).
(4) Subpoena powers.--For the purposes of any investigation
provided for in this section, the Secretary shall have the
subpoena authority provided for under section 9 of the Fair
Labor Standards Act of 1938 (29 U.S.C. 209).
(b) Civil Action by Employees.--
(1) Liability.--Any employer who violates a section 6(a)
(with respect to a right set forth in subsection (a), (b), or
(c) of section 4), section 5, or subsection (b) or (c) of
section 6 (each such provision referred to in this section as a
``covered provision'') shall be liable to any employee affected
for--
(A) damages equal to the amount of--
(i) any wages, salary, employment benefits
(as defined in section 101 of the Family and
Medical Leave Act of 1993 (29 U.S.C. 2611)), or
other compensation denied, lost, or owed to
such employee by reason of the violation; or
(ii) in a case in which wages, salary,
employment benefits (as so defined), or other
compensation have not been denied, lost, or
owed to the employee, any actual monetary
losses sustained by the employee as a direct
result of the violation;
(B) interest on the amount described in
subparagraph (A) calculated at the prevailing rate;
(C) an additional amount as liquidated damages
equal to the sum of the amount described in
subparagraph (A) and the interest described in
subparagraph (B), except that if an employer who has
violated a covered provision proves to the satisfaction
of the court that the act or omission which violated
the covered provision was in good faith and that the
employer had reasonable grounds for believing that the
act or omission was not a violation of a covered
provision, such court may, in the discretion of the
court, reduce the amount of liability to the amount and
interest determined under subparagraphs (A) and (B),
respectively; and
(D) such equitable relief as may be appropriate,
including employment, reinstatement, and promotion.
(2) Right of action.--An action to recover the damages or
equitable relief set forth in paragraph (1) may be maintained
against any employer (including a public agency) in any Federal
or State court of competent jurisdiction by any one or more
employees for and on behalf of--
(A) the employees; or
(B) the employees and other employees similarly
situated.
(3) Fees and costs.--The court in such an action shall, in
addition to any judgment awarded to the plaintiff, allow a
reasonable attorney's fee, reasonable expert witness fees, and
other costs of the action to be paid by the defendant.
(4) Limitations.--The right provided by paragraph (2) to
bring an action by or on behalf of any employee shall terminate
on the filing of a complaint by the Secretary in an action
under subsection (c)(4) in which a recovery is sought of the
damages described in paragraph (1)(A) owing to an employee by
an employer liable under paragraph (1) unless the action
described is dismissed without prejudice on motion of the
Secretary.
(c) Actions by the Secretary.--
(1) Administrative action.--The Secretary shall receive,
investigate, and attempt to resolve complaints of violations of
this Act in the same manner that the Secretary receives,
investigates, and attempts to resolve complaints of violations
of sections 6 and 7 of the Fair Labor Standards Act of 1938 (29
U.S.C. 206 and 207), and may issue an order making
determinations, and assessing a civil penalty described in
paragraph (3) (in accordance with paragraph (3)), with respect
to such an alleged violation.
(2) Administrative review.--An affected person who takes
exception to an order issued under paragraph (1) may request
review of and a decision regarding such an order by an
administrative law judge. In reviewing the order, the
administrative law judge may hold an administrative hearing
concerning the order, in accordance with the requirements of
sections 554, 556, and 557 of title 5, United States Code. Such
hearing shall be conducted expeditiously. If no affected person
requests such review within 60 days after the order is issued
under paragraph (1), the order shall be considered to be a
final order that is not subject to judicial review.
(3) Civil penalty.--An employer who willfully and
repeatedly violates--
(A) section 4 or 5 shall be subject to a civil
penalty in an amount to be determined by the Secretary,
but not to exceed $100 per violation; and
(B) subsection (b) or (c) of section 6 shall be
subject to a civil penalty in an amount to be
determined by the Secretary, but not to exceed $1,100
per violation.
(4) Civil action.--The Secretary may bring an action in any
court of competent jurisdiction on behalf of aggrieved
employees to--
(A) restrain violations of this Act;
(B) award such equitable relief as may be
appropriate, including employment, reinstatement, and
promotion; and
(C) in the case of a violation of a covered
provision, recover the damages and interest described
in subparagraphs (A) through (C) of subsection (b)(1).
(d) Limitation.--
(1) In general.--Except as provided in paragraph (2), an
action may be brought under this section not later than 2 years
after the date of the last event constituting the alleged
violation for which the action is brought.
(2) Willful violation.--In the case of such action brought
for a willful violation of section 6, such action may be
brought within 3 years of the date of the last event
constituting the alleged violation for which such action is
brought.
(3) Commencement.--In determining when an action is
commenced by the Secretary under this section for the purposes
of this subsection, it shall be considered to be commenced on
the date when the complaint is filed.
(e) Other Administrative Officers.--
(1) Board.--In the case of employees described in section
2(9)(C), the authority of the Secretary under this Act shall be
exercised by the Board of Directors of the Office of
Compliance.
(2) President; merit systems protection board.--In the case
of employees described in section 2(9)(D), the authority of the
Secretary under this Act shall be exercised by the President
and the Merit Systems Protection Board.
(3) Office of personnel management.--In the case of
employees described in section 2(9)(E), the authority of the
Secretary under this Act shall be exercised by the Office of
Personnel Management.
(4) Librarian of congress.--In the case of employees of the
Library of Congress, the authority of the Secretary under this
Act shall be exercised by the Librarian of Congress.
(5) Comptroller general.--In the case of employees of the
Government Accountability Office, the authority of the
Secretary under this Act shall be exercised by the Comptroller
General of the United States.
SEC. 8. NOTICE AND POSTING.
(a) In General.--Each employer shall post and keep posted, in
conspicuous places on the premises of the employer where notices to
employees and applicants for employment are customarily posted, a
notice, to be prepared or approved by the Secretary (or the
corresponding administrative officer specified in section 9) setting
forth excerpts from, or summaries of, the pertinent provisions of this
Act and information pertaining to the filing of a complaint under this
Act.
(b) Penalty.--Any employer that willfully violates this section may
be assessed a civil money penalty not to exceed $100 for each separate
offense.
SEC. 9. REGULATIONS.
(a) Secretary of Labor.--
(1) In general.--Except as provided in subsections (b)
through (f), not later than 180 days after the date of
enactment of this Act, the Secretary shall issue such
regulations as may be necessary to implement this Act.
(2) Regulations regarding additional occupations to be
covered.--
(A) In general.--In carrying out paragraph (1), the
Secretary shall issue regulations, for purposes of
defining Secretary's designated employees under section
2(22), that specify a process the Secretary will follow
to identify and designate occupations in addition to
retail, food service, cleaning, hospitality, or
warehouse occupations that are appropriate for coverage
under section 4. Nonexempt employees in occupations
designated under this subparagraph shall be considered
to be Secretary's designated employees for purposes of
this Act.
(B) Criteria.--The regulations shall provide that
the Secretary shall so designate an additional
occupation--
(i) in which not less than 10 percent of
workers employed in the occupation generally--
(I) receive advance notice of their
work schedules less than 14 days before
the first day of the work schedules; or
(II) experience fluctuations in the
number of hours the employees are
scheduled to work on a daily, weekly,
or monthly basis; or
(ii) for which the Secretary determines
such designation is appropriate.
(C) Data review.--In issuing the regulations, the
Secretary shall specify the process by which the
Department of Labor will review data from stakeholders,
and data collected or generated by the Department, in
making those designations.
(b) Board.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Board of Directors of the Office of
Compliance shall issue such regulations as may be necessary to
implement this Act with respect to employees described in
section 2(9)(C). The procedures applicable to regulations of
the Board issued for the implementation of the Congressional
Accountability Act of 1995 (2 U.S.C. 1301 et seq.), prescribed
in section 304 of that Act (2 U.S.C. 1384), shall be the
procedures applicable to regulations issued under this
subsection.
(2) Consideration.--In prescribing the regulations, the
Board shall take into consideration the enforcement and
remedies provisions concerning the Board, and applicable to
rights and protections under the Family and Medical Leave Act
of 1993 (29 U.S.C. 2611 et seq.), under the Congressional
Accountability Act of 1995 (2 U.S.C. 1301 et seq.).
(3) Modifications.--The regulations issued under paragraph
(1) to implement this Act shall be the same as substantive
regulations issued by the Secretary to implement this Act,
except to the extent that the Board may determine, for good
cause shown and stated together with the regulations issued by
the Board, that a modification of such substantive regulations
would be more effective for the implementation of the rights
and protections under this Act.
(c) President.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the President shall issue such
regulations as may be necessary to implement this Act with
respect to employees described in section 2(9)(D).
(2) Consideration.--In prescribing the regulations, the
President shall take into consideration the enforcement and
remedies provisions concerning the President and the Merit
Systems Protection Board, and applicable to rights and
protections under the Family and Medical Leave Act of 1993,
under chapter 5 of title 3, United States Code.
(3) Modifications.--The regulations issued under paragraph
(1) to implement this Act shall be the same as substantive
regulations issued by the Secretary to implement this Act,
except to the extent that the President may determine, for good
cause shown and stated together with the regulations issued by
the President, that a modification of such substantive
regulations would be more effective for the implementation of
the rights and protections under this Act.
(d) Office of Personnel Management.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Office of Personnel Management shall
issue such regulations as may be necessary to implement this
Act with respect to employees described in section 2(9)(E).
(2) Consideration.--In prescribing the regulations, the
Office shall take into consideration the enforcement and
remedies provisions concerning the Office under subchapter V of
chapter 63 of title 5, United States Code.
(3) Modifications.--The regulations issued under paragraph
(1) to implement this Act shall be the same as substantive
regulations issued by the Secretary to implement this Act,
except to the extent that the Office may determine, for good
cause shown and stated together with the regulations issued by
the Office, that a modification of such substantive regulations
would be more effective for the implementation of the rights
and protections under this Act.
(e) Librarian of Congress.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Librarian of Congress shall issue
such regulations as may be necessary to implement this Act with
respect to employees of the Library of Congress.
(2) Consideration.--In prescribing the regulations, the
Librarian shall take into consideration the enforcement and
remedies provisions concerning the Librarian of Congress under
title I of the Family and Medical Leave Act of 1993 (29 U.S.C.
2611 et seq.).
(3) Modifications.--The regulations issued under paragraph
(1) to implement this Act shall be the same as substantive
regulations issued by the Secretary to implement this Act,
except to the extent that the Librarian may determine, for good
cause shown and stated together with the regulations issued by
the Librarian, that a modification of such substantive
regulations would be more effective for the implementation of
the rights and protections under this Act.
(f) Comptroller General.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Comptroller General shall issue such
regulations as may be necessary to implement this Act with
respect to employees of the Government Accountability Office.
(2) Consideration.--In prescribing the regulations, the
Comptroller General shall take into consideration the
enforcement and remedies provisions concerning the Comptroller
General under title I of the Family and Medical Leave Act of
1993.
(3) Modifications.--The regulations issued under paragraph
(1) to implement this Act shall be the same as substantive
regulations issued by the Secretary to implement this Act,
except to the extent that the Comptroller General may
determine, for good cause shown and stated together with the
regulations issued by the Comptroller General, that a
modification of such substantive regulations would be more
effective for the implementation of the rights and protections
under this Act.
SEC. 10. RESEARCH, EDUCATION, AND TECHNICAL ASSISTANCE PROGRAM AND
SURVEYS.
(a) In General.--The Secretary shall provide information and
technical assistance to employers, labor organizations, and the general
public concerning compliance with this Act.
(b) Program.--In order to achieve the objectives of this Act--
(1) the Secretary, acting through the Administrator of the
Wage and Hour Division of the Department of Labor, shall issue
guidance on compliance with this Act regarding providing a
flexible, predictable, or stable work environment through
changes in the terms and conditions of employment as provided
in section 3(a); and
(2) the Secretary shall carry on a continuing program of
research, education, and technical assistance, including--
(A)(i) conducting pilot programs that implement
fairer work schedules, including by promoting cross
training, providing 3 weeks or more advance notice of
schedules, providing employees with a minimum number of
hours of work, and using electronic workforce
management systems to provide more flexible,
predictable, and stable schedules for employees; and
(ii) evaluating the results of such pilot programs
for employees, employee's families, and employers;
(B) publishing and otherwise making available to
employers, labor organizations, professional
associations, educational institutions, the various
communication media, and the general public the
findings of studies regarding fair work scheduling
policies and other materials for promoting compliance
with this Act;
(C) sponsoring and assisting State and community
informational and educational programs; and
(D) providing technical assistance to employers,
labor organizations, professional associations, and
other interested persons on means of achieving and
maintaining compliance with the provisions of this Act.
(c) Current Population Survey.--The Secretary, acting through the
Commissioner of the Bureau of Labor Statistics, and the Director of the
Bureau of the Census shall--
(1) include in the Current Population Survey questions on--
(A) the magnitude of fluctuation in the number of
hours the employee is scheduled to work on a daily,
weekly, or monthly basis;
(B) the extent of advance notice an employee
receives of the employee's work schedule; and
(C) the extent to which an employee has input in
the employee's work schedule; and
(2) conduct at regular intervals the Contingent Worker
Supplement, the Work Schedules and Work at Home Supplement, and
other relevant supplements (as determined by the Secretary), to
the Current Population Survey.
SEC. 11. RIGHTS RETAINED BY EMPLOYEES.
This Act provides minimum requirements and shall not be construed
to preempt, limit, or otherwise affect the applicability of any other
law, requirement, policy, or standard that provides for greater rights
for employees than are required in this Act.
SEC. 12. EXEMPTION.
This Act shall not apply to any employee covered by a valid
collective bargaining agreement if--
(1) the terms of the collective bargaining agreement
include terms that govern work scheduling practices; and
(2) the provisions of this Act are expressly waived in such
collective bargaining agreement.
SEC. 13. EFFECT ON OTHER LAW.
(a) In General.--Nothing in this Act shall be construed as
superseding, or creating or imposing any requirement in conflict with,
any Federal, State, or local regulation or other law (including the
Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), the
Family and Medical Leave Act of 1993 (29 U.S.C. 2611 et seq.), the
National Labor Relations Act (29 U.S.C. 151 et seq.), the Fair Labor
Standards Act of 1938 (29 U.S.C. 201 et seq.), and title VII of the
Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.)).
(b) Relationship to Collective Bargaining Rights.--Nothing in this
Act (including section 12) shall be construed to diminish or impair the
rights of an employee under any valid collective bargaining agreement.
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