[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 2851 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 2851
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
September 19, 2023
Ms. Warren (for herself, Mr. Sanders, Mr. Van Hollen, Ms. Klobuchar,
Mr. Merkley, Mr. Whitehouse, Mr. Durbin, Mr. Fetterman, Mr. Blumenthal,
Ms. Baldwin, Mr. Murphy, Ms. Duckworth, Mr. Casey, Mr. Cardin, Mrs.
Murray, Mr. Booker, Mr. Welch, Ms. Hirono, Mr. Reed, and Mr. Padilla)
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 \2/3\ of families
with children in the United States.
(2) Despite the dual responsibilities of today's workforce,
many workers have little notice of their work schedules and
lack the ability to make changes to the work hours in such
schedules, which undermines their ability to accommodate family
responsibilities.
(3)(A) Mothers working in low-paid jobs are more likely to
be the primary or sole breadwinner for their families than
mothers working in higher-paid jobs. For example, nearly 7 in
10 mothers in the \1/5\ of households in the United States with
the lowest incomes bring home all or most of their families'
income, compared to less than \1/3\ of their counterparts in
the highest-income quintile.
(B) At the same time, low-paid workers often have the least
control over their work hours and face the most unpredictable
schedules. 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, national survey data show that--
(i) about \2/3\ of hourly retail and food service
workers receive their work schedules with less than 2
weeks' advance notice and about \1/3\ receive their
schedule with less than 1 week's notice;
(ii) more than 1 in 5 hourly retail and food
service workers have been scheduled for on-call shifts,
and more than 1 in 3 have worked ``clopening'' shifts;
and
(iii) 65 percent of hourly retail and food service
workers would like a more stable and predictable
schedule.
(4) Unfair work scheduling practices make it difficult for
low-paid 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) Unstable work schedules pre-date the pandemic and
economic recession caused by COVID-19, but the harm of these
workplace practices was exacerbated as millions of workers
risked their own health and safety at jobs with few
protections, volatile schedules, and inadequate hours, in an
effort to support themselves and their families. Employers
continued to use ``just-in-time'' scheduling practices
throughout the pandemic, even as workers faced additional
caregiving challenges due to school and child care closures and
quarantines.
(6) 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. And impacts are
likely to be the most severe for workers of color and their
families, as workers of color are more likely than their White
counterparts--even compared to White coworkers at the same
company--to experience unstable work schedules. Unstable and
unpredictable 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.
Some examples of the detrimental impacts of unstable and
unpredictable work schedules are as follows:
(A) Unstable work schedules lead to more household
economic strain and time conflicts and undermine the
well-being of parents, all of which can negatively
impact children's health and behavior.
(B) Workers with the most severe instability in
their work schedules also face the highest risk of
negative behavior and health outcomes for their
children.
(C) 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.
(D) Work schedule instability causes more work-
family conflict, which increases the chance that a
worker will be forced to leave his or her job, and is
associated with downward mobility of the earnings of
the worker.
(E)(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.
(F) Workers who receive shorter advance notice, who
work on-call shifts, who experience last-minute shift
cancellation and timing changes, or who have more
volatile work hours are more likely to experience
hunger, residential hardships, and greater overall
economic hardship.
(7) 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.
(8) 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.
(9) This Act is a first step in responding to the needs of
workers for a voice in the timing of their work hours and for
more predictable schedules.
SEC. 2. DEFINITIONS.
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, as applicable, the
corresponding administrative officer specified in
section 7(e)).
(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, regardless of age, a
biological, adopted, or foster child, a stepchild, a child of a
domestic partner, a legal ward, or a child of a person standing
in loco parentis to that child.
(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 (10)(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 (10)(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 (10)(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) Covered sector employee.--The term ``covered sector
employee'' means--
(A) 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)--
(i) retail sales occupations consisting of
occupations described in 41-1010 and 41-2000,
and all subdivisions thereof, of such System,
which includes first-line supervisors of sales
workers, cashiers, gambling change persons and
booth cashiers, counter and rental clerks,
parts salespersons, and retail salespersons;
(ii) food preparation and serving related
occupations as described in 35-0000, and all
subdivisions thereof, of such System, which
includes supervisors of food preparation and
serving workers, cooks and food preparation
workers, food and beverage serving workers, and
other food preparation and serving related
workers; or
(iii) 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; or
(B) a nonexempt employee who is employed in any
occupation that is designated by the Secretary under
section 9(a)(2)(A) as appropriate for coverage under
section 4.
(8) 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.
(9) 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).
(10) 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.
(11) 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.
(12) 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).
(13) Grandchild.--The term ``grandchild'' means the child
of a child.
(14) Grandparent.--The term ``grandparent'' means the
parent of a parent.
(15) Hospitality establishment.--The term ``hospitality
establishment'' means a hotel, motel, inn, or similar transient
lodging establishment.
(16) 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.
(17) 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)).
(18) 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.
(19) 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.
(20) 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.
(21) Secretary.--The term ``Secretary'' means the Secretary
of Labor.
(22) 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).
(23) Sibling.--The term ``sibling'' means a brother or
sister, whether related by half blood, whole blood, or
adoption, or as a stepsibling.
(24) 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.
(25) Spouse.--The term ``spouse'' means a person with whom
an individual entered into--
(A) a marriage as defined or recognized under State
law in the State in which the marriage was entered
into; or
(B) 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.
(26) 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).
(27) 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.
(28) Work schedule.--The term ``work schedule'' means all
of an employee's work shifts and on-call shifts, including
specific start and end times for each shift, during a
consecutive 7-day period.
(29) 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.
(30) 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 request from their employer
a change in the terms and conditions of employment as they relate to
factors including--
(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 requests 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) subject to subsections (c) and (d), either
granting or denying the request; and
(B) in the event of a denial--
(i) 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
(ii) 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 Serious Health Condition, 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), specifying that the request is because
of the employee's serious health condition, the employee's
responsibilities as a caregiver, the employee's enrollment in a career-
related educational or training program, or a reason related to the
employee's 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 ADVANCE NOTICE OF WORK SCHEDULES,
PREDICTABILITY PAY, AND SPLIT SHIFT PAY FOR COVERED
SECTOR EMPLOYEES.
(a) Advance Notice Requirement.--
(1) Providing notice of work schedules.--
(A) In general.--An employer shall provide a
covered sector employee with the work schedule of the
employee--
(i) not less than 14 days before the first
day of such work schedule; or
(ii) in the case of a new covered sector
employee on or before the first day of work of
such employee.
(B) Compensation for failure to provide notice of
work schedule.--An employer that violates subparagraph
(A) shall compensate each affected employee in the
amount of $75 per day that a work schedule is not
provided in violation of such subparagraph.
(C) Work schedule change.--An employer may make a
work schedule change for the work schedule of a covered
sector employee provided in accordance with
subparagraph (A) if--
(i) such work schedule change is made not
less than 14 days prior to the first day on
which the change is to take effect; or
(ii) the employer provides predictability
pay for such change in accordance with
subsection (b).
(D) Minimum expected work hours.--
(i) In general.--An employer shall inform a
covered sector employee of an estimate of the
minimum number of expected work hours the
employee will be assigned to work per month for
the following 12-month period--
(I) in the case of a new covered
sector employee, on or before the first
day of work of such employee; or
(II) in the case of a covered
sector employee who is employed by the
employer on the date of enactment of
this Act, not later than 90 days after
such date.
(ii) Updating minimum expected work
hours.--An employer shall, not less than once
each year, provide each covered sector employee
an updated estimate of the minimum number of
expected work hours the employee will be
assigned to work per month for the following
12-month period. Such a revised estimate shall
be provided not later than the earlier of (as
applicable)--
(I) 1 year after the date on which
the estimate was provided under clause
(i) or the most recent update of an
estimate was provided under this
clause; or
(II) the day before the effective
date of a significant change to the
minimum expected work hours of the
employee due to changes in the
availability of the employee or to the
business needs of the employer.
(2) Notifications in writing.--The notifications required
under subparagraphs (A) and (D) of paragraph (1) shall be made
to the employee involved in writing.
(3) Schedule posting requirement.--
(A) In general.--An employer shall post a copy of
the work schedule of each covered sector employee in a
conspicuous place that is readily accessible and
visible to all covered sector employees at the
workplace. Posting by electronic means accessible to
all covered sector employees shall be considered
compliance with this subparagraph. At the request of an
employee, the employer shall carry out the posting so
that the identity of the employee is not readily
identifiable from the schedules posted.
(B) Right to decline.--A covered sector employee
may decline, without penalty, to work any hours not
included in the work schedule posted under subparagraph
(A) as work hours for the covered sector employee.
(C) Consent.--Except as described in subsection
(b)(2), if a covered sector employee voluntarily
consents to work any hours not posted under
subparagraph (A), such consent must be recorded in
writing.
(4) 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 covered sector employee than is required
under this subsection; or
(B) using any means, in addition to the written
means required under paragraph (2), of notifying a
covered sector employee of the work schedule of the
employee.
(b) Predictability Pay for Work Schedule Changes Made With Less
Than 14 Days' Notice.--
(1) In general.--Except as provided in paragraph (2), for
each work schedule change provided to a covered sector employee
that occurs less than 14 days prior to the first day on which
the change is to take effect, the employer of the affected
employee shall be required to provide the affected employee
with pay (referred to in this subsection as ``predictability
pay'') at the following rates:
(A) The covered sector employee's regular rate of
pay per hour that the employee works plus one
additional hour at such regular rate per work schedule
change 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 \1/2\ times the covered sector
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 reducing or
canceling such scheduled hours of work.
(2) Exceptions to predictability pay.--An employer shall
not be required to pay predictability pay under paragraph (1),
or to obtain written consent pursuant to subsection (a)(3)(C),
under any of the following circumstances:
(A) A covered sector 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
covered sector 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 covered
sector employee for 1 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 of 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.--
(1) In general.--An employee may consent to work a shift as
described in subsection (a), if the covered employer obtains
the employee's consent in writing. Such consent may be for each
such shift or for multiple shifts.
(2) Revocation.--An employee may revoke the consent
provided under paragraph (1), in writing, at any time during
the employment.
(c) Compensation.--For each instance that an employee of a covered
employer works a shift described in subsection (a), the covered
employer shall compensate the employee at 1.5 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 provided under section 3, 4, or 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 require, under the authority of
this subsection, 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.--
(A) In general.--Any employer who violates
subsection (a) of section 6 (with respect to a right
provided under section 3 or 5 or subsection (a), (b),
or (c) of section 4) or subsection (b) or (c) of such
section (each such provision referred to in this
section as a ``covered provision'') shall be liable to
any employee affected for--
(i) 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;
(ii) interest on the amount described in
clause (i) calculated at the prevailing rate;
(iii) except as described in subparagraph
(B), an additional amount as liquidated damages
equal to the sum of the amount described in
clause (i) and the interest described in clause
(ii); and
(iv) such equitable relief as may be
appropriate, including employment,
reinstatement, and promotion.
(B) Exception for liquidated damages.--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, waive such liquidated damages.
(2) Right of action.--An action to recover the damages,
interest, 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 any 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, interest, or equitable relief 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.--
(A) In general.--An employer who willfully and
repeatedly violates--
(i) section 4 or 5 shall be subject to a
civil penalty in an amount per violation that
is not less than $500 and not more than $1,000;
or
(ii) subsection (b) or (c) of section 6
shall be subject to a civil penalty in an
amount per violation that is not less than
$1,100 and not more than $5,000.
(B) Willfully and repeatedly.--For purposes of
subparagraph (A):
(i) Repeatedly.--The term ``repeatedly'',
with respect to a violation, means 2 or more
such violations.
(ii) Willfully.--The term ``willfully'',
with respect to a violation, means such a
violation for which, based on all of the facts
and circumstances surrounding the violation, an
employer--
(I) knew that its conduct was
prohibited by, as applicable, section 4
or 5 or subsection (b) or (c) of
section 6; or
(II) showed reckless disregard for
the requirements of, as applicable,
section 4 or 5 or subsection (b) or (c)
of section 6.
(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 clauses (i) through (iii) of subsection (b)(1)(A).
(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 or by an employee 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(10)(C), the authority of the Secretary under this Act shall
be exercised by the Board of Directors of the Office of
Congressional Workplace Rights.
(2) President; merit systems protection board.--In the case
of employees described in section 2(10)(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(10)(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, as applicable,
the corresponding administrative officer specified in section 7(e))
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 that specify a
process the Secretary will follow, in accordance with
subparagraph (B), to identify and designate occupations
in addition to retail, food service, cleaning,
hospitality, or warehouse occupations that are
appropriate for coverage under section 4.
(B) Criteria.--The regulations under subparagraph
(A) 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 regulations under
subparagraph (A), 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 designating occupations.
(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
Congressional Workplace Rights shall issue such regulations as
may be necessary to implement this Act with respect to
employees described in section 2(10)(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 Office, and applicable to
rights and protections under the Family and Medical Leave Act
of 1993 (29 U.S.C. 2601 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 with respect to the employees
described in section 2(10)(C).
(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(10)(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 with respect to the
employees described in section 2(10)(D).
(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(10)(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 with respect to the employees
described in section 2(10)(E).
(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 with respect to
employees of the Library of Congress.
(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 (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 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 with respect to employees of the Government
Accountability Office.
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;
(C) the extent to which an employee has input in
the employee's work schedule; and
(D) the number of hours that an employee would
prefer to work, relative to the number of hours the
employee is currently working; and
(2) at regular intervals, update and conduct 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 and the
American Time Use 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. 2601 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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