Text: S.1626 — 113th Congress (2013-2014)All Bill Information (Except Text)

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Introduced in Senate (10/30/2013)


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[Congressional Bills 113th Congress]
[From the U.S. Government Printing Office]
[S. 1626 Introduced in Senate (IS)]

113th CONGRESS
  1st Session
                                S. 1626

 To amend the Fair Labor Standards Act of 1938 to provide employees in 
   the private sector with an opportunity for compensatory time off, 
similar to the opportunity offered to Federal employees, and a flexible 
credit hour program to help balance the demands of work and family, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 30, 2013

  Mr. McConnell (for himself and Ms. Ayotte) introduced the following 
  bill; which was read twice and referred to the Committee on Health, 
                     Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
 To amend the Fair Labor Standards Act of 1938 to provide employees in 
   the private sector with an opportunity for compensatory time off, 
similar to the opportunity offered to Federal employees, and a flexible 
credit hour program to help balance the demands of work and family, and 
                          for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Family Friendly and Workplace 
Flexibility Act of 2013''.

SEC. 2. COMPENSATORY TIME.

    Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) 
is amended by adding at the end the following:
    ``(s) Compensatory Time for Private Employees.--
            ``(1) Definitions.--In this subsection--
                    ``(A) the term `employee' does not include an 
                employee of a public agency; and
                    ``(B) the terms `overtime compensation', 
                `compensatory time', and `compensatory time off' have 
                the meaning given the terms in subsection (o)(7).
            ``(2) General rule.--An employee may receive, in accordance 
        with this subsection and in lieu of monetary overtime 
        compensation, compensatory time off at a rate not less than one 
        and one-half hours for each hour of employment for which 
        overtime compensation is required by this section.
            ``(3) Agreement required.--An employer may provide 
        compensatory time to an employee under paragraph (2) only in 
        accordance with--
                    ``(A) applicable provisions of a collective 
                bargaining agreement between an employer and a labor 
                organization that has been certified or recognized as 
                the representative of the employees of the employer 
                under applicable law; or
                    ``(B) in the case of an employee who is not 
                represented by a labor organization described in 
                subparagraph (A), an agreement between the employer and 
                employee arrived at before the performance of the 
                work--
                            ``(i) in which the employer has offered and 
                        the employee has chosen to receive compensatory 
                        time off under this subsection in lieu of 
                        monetary overtime compensation;
                            ``(ii) that the employee enters into 
                        knowingly, voluntarily, and not as a condition 
                        of employment; and
                            ``(iii) that is affirmed by a written or 
                        otherwise verifiable record maintained in 
                        accordance with section 11(c).
            ``(4) Hour limit.--An employee may accrue not more than 160 
        hours of compensatory time under this subsection, and shall 
        receive overtime compensation for any such compensatory time in 
        excess of 160 hours.
            ``(5) Unused compensatory time.--
                    ``(A) Compensation period.--
                            ``(i) In general.--Except as provided in 
                        clause (ii), not later than January 31 of each 
                        calendar year, the employer of the employee 
                        shall provide monetary compensation for any 
                        unused compensatory time under this subsection 
                        accrued during the preceding calendar year that 
                        the employee did not use prior to December 31 
                        of the preceding year at the rate prescribed by 
                        paragraph (7)(A).
                            ``(ii) Alternative compensation period.--An 
                        employer may designate and communicate to an 
                        employee a 12-month period other than the 
                        calendar year for determining unused 
                        compensatory time under this subsection, and 
                        the employer shall provide monetary 
                        compensation not later than 31 days after the 
                        end of such 12-month period at the rate 
                        prescribed by paragraph (7)(A).
                    ``(B) Excess of 80 hours.--An employer may provide 
                monetary compensation, at the rate prescribed by 
                paragraph (7)(A), for any unused compensatory time 
                under this subsection of an employee in excess of 80 
                hours at any time after giving the employee not less 
                than 30 days' notice.
                    ``(C) Termination of employment.--Upon the 
                voluntary or involuntary termination of an employee, 
                the employer of such employee shall provide monetary 
                compensation at the rate prescribed by paragraph (7)(A) 
                for any unused compensatory time under this subsection.
            ``(6) Withdrawal of compensatory time agreement.--
                    ``(A) Employer.--Except where a collective 
                bargaining agreement provides otherwise, an employer 
                that has adopted a policy of offering compensatory time 
                to employees under this subsection may discontinue such 
                policy after providing employees notice 30 days prior 
                to discontinuing the policy.
                    ``(B) Employee.--
                            ``(i) In general.--An employee may withdraw 
                        an agreement described in paragraph (3)(B) 
                        after providing notice to the employer of the 
                        employee 30 days prior to the withdrawal.
                            ``(ii) Request for monetary compensation.--
                        At any time, an employee may request in writing 
                        monetary compensation for any accrued and 
                        unused compensatory time under this subsection. 
                        The employer of such employee shall provide 
                        monetary compensation at the rate prescribed by 
                        paragraph (7)(A) within 30 days of receiving 
                        the written request.
            ``(7) Monetary compensation.--
                    ``(A) Rate of compensation.--An employer providing 
                monetary compensation to an employee for accrued 
                compensatory time under this subsection shall 
                compensate the employee at a rate not less than the 
                greater of--
                            ``(i) the regular rate, as defined in 
                        subsection (e), of the employee on the date the 
                        employee earned such compensatory time; or
                            ``(ii) the final regular rate, as defined 
                        in subsection (e), received by such employee.
                    ``(B) Treatment as unpaid overtime.--Any monetary 
                payment owed to an employee for unused compensatory 
                time under this subsection, as calculated in accordance 
                with subparagraph (A), shall be considered unpaid 
                overtime compensation for the purposes of this Act.
            ``(8) Using compensatory time.--An employer shall permit an 
        employee to take time off work for compensatory time accrued 
        under paragraph (2) within a reasonable time after the employee 
        makes a request for using such compensatory time if the use 
        does not unduly disrupt the operations of the employer.
            ``(9) Prohibition of coercion.--
                    ``(A) In general.--An employer that provides 
                compensatory time under paragraph (2) shall not 
                directly or indirectly intimidate, threaten, or coerce, 
                or attempt to intimidate, threaten, or coerce any 
                employee for the purpose of interfering with the rights 
                of an employee under this subsection--
                            ``(i) to use accrued compensatory time in 
                        accordance with paragraph (8) in lieu of 
                        receiving monetary compensation;
                            ``(ii) to refrain from using accrued 
                        compensatory time in accordance with paragraph 
                        (8) and receive monetary compensation; or
                            ``(iii) to refrain from entering into an 
                        agreement to accrue compensatory time under 
                        this subsection.
                    ``(B) Definition.--In subparagraph (A), the term 
                `intimidate, threaten, or coerce' includes--
                            ``(i) promising to confer or conferring any 
                        benefit, such as appointment, promotion, or 
                        compensation; or
                            ``(ii) effecting or threatening to effect 
                        any reprisal, such as deprivation of 
                        appointment, promotion, or compensation.''.

SEC. 3. FLEXIBLE CREDIT HOUR PROGRAM.

    Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207), 
as amended in section 2, is further amended by adding at the end the 
following:
    ``(t) Flexible Credit Hour Program.--
            ``(1) Definitions.--In this subsection--
                    ``(A) the term `at the election of', used with 
                respect to an employee, means at the initiative of, and 
                at the request of, the employee;
                    ``(B) the term `basic work requirement' means the 
                number of hours, excluding overtime hours, that an 
                employee is required to work or is required to account 
                for by leave or otherwise within a specified period of 
                time;
                    ``(C) the term `employee' does not include an 
                employee of a public agency;
                    ``(D) the term `flexible credit hour' means any 
                hour that an employee, who is participating in a 
                flexible credit hour program, works in excess of the 
                basic work requirement; and
                    ``(E) the term `overtime compensation' has the 
                meaning given the term in subsection (o)(7).
            ``(2) Program establishment.--An employer may establish a 
        flexible credit hour program for an employee to accrue flexible 
        credit hours in accordance with this subsection and, in lieu of 
        monetary compensation, reduce the number of hours the employee 
        works in a subsequent day or week at a rate of one hour for 
        each hour of employment for which overtime compensation is 
        required by this section.
            ``(3) Agreement required.--
                    ``(A) In general.--An employer may carry out a 
                flexible credit hour program under paragraph (2) only 
                in accordance with--
                            ``(i) applicable provisions of a collective 
                        bargaining agreement between an employer and a 
                        labor organization that has been certified or 
                        recognized as the representative of the 
                        employees of the employer under applicable law; 
                        or
                            ``(ii) in the case of an employee who is 
                        not represented by a labor organization 
                        described in clause (i), an agreement between 
                        the employer and the employee arrived at before 
                        the performance of the work that--
                                    ``(I) the employee enters into 
                                knowingly, voluntarily, and not as a 
                                condition of employment; and
                                    ``(II) is affirmed by a written 
                                statement maintained in accordance with 
                                section 11(c).
                    ``(B) Hours designated.--An agreement that is 
                entered into under subparagraph (A) shall provide that, 
                at the election of the employee, the employer and the 
                employee will jointly designate flexible credit hours 
                for the employee to work within an applicable period of 
                time.
            ``(4) Hour limit.--An employee participating in a flexible 
        credit hour program may not accrue more than 50 flexible credit 
        hours, and shall receive overtime compensation for flexible 
        credit hours in excess of 50 hours.
            ``(5) Unused flexible credit hours.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), not later than January 31 of each 
                calendar year, the employer of an employee who is 
                participating in a flexible credit hour program shall 
                provide monetary compensation for any flexible credit 
                hour accrued during the preceding calendar year that 
                the employee did not use prior to December 31 of the 
                preceding calendar year at a rate prescribed by 
                paragraph (7)(A)(i).
                    ``(B) Alternative compensation period.--An employer 
                may designate and communicate to the employees of the 
                employer a 12-month period other than the calendar year 
                for determining unused flexible credit hours, and the 
                employer shall provide monetary compensation, at a rate 
                prescribed by paragraph (7)(A)(i), not later than 31 
                days after the end of the 12-month period.
            ``(6) Program discontinuance and withdrawal.--
                    ``(A) Employer.--An employer that has established a 
                flexible credit hour program under paragraph (2) may 
                discontinue a flexible credit hour program for 
                employees described in paragraph (3)(A)(ii) after 
                providing notice to such employees 30 days before 
                discontinuing such program.
                    ``(B) Employee.--
                            ``(i) In general.--An employee may withdraw 
                        an agreement described in paragraph (3)(A)(ii) 
                        at any time by submitting written notice of 
                        withdrawal to the employer of the employee 30 
                        days prior to the withdrawal.
                            ``(ii) Request for monetary compensation.--
                        An employee may request in writing, at any 
                        time, that the employer of such employee 
                        provide monetary compensation for all accrued 
                        and unused flexible credit hours. Within 30 
                        days after receiving such written request, the 
                        employer shall provide the employee monetary 
                        compensation for such unused flexible credit 
                        hours at a rate prescribed by paragraph 
                        (7)(A)(i).
            ``(7) Monetary compensation.--
                    ``(A) Flexible credit hours.--
                            ``(i) Rate of compensation.--An employer 
                        providing monetary compensation to an employee 
                        for accrued flexible credit hours shall 
                        compensate such employee at a rate not less 
                        than the regular rate, as defined in subsection 
                        (e), of the employee on the date the employee 
                        receives the monetary compensation.
                            ``(ii) Treatment as unpaid overtime.--Any 
                        monetary payment owed to an employee for unused 
                        flexible credit hours under this subsection, as 
                        calculated in accordance with clause (i), shall 
                        be considered unpaid overtime compensation for 
                        the purposes of this Act.
                    ``(B) Overtime hours.--
                            ``(i) In general.--Any hour that an 
                        employee works in excess of 40 hours in a 
                        workweek that is requested in advance by the 
                        employer, other than a flexible credit hour, 
                        shall be an `overtime hour'.
                            ``(ii) Rate of compensation.--The employee 
                        shall be compensated for each overtime hour at 
                        a rate not less than one and one-half times the 
                        regular rate at which the employee is employed, 
                        in accordance with subsection (a)(1), or 
                        receive compensatory time off in accordance 
                        with subsection (s), for each such overtime 
                        hour.
            ``(8) Use of flexible credit hours.--An employer shall 
        permit an employee to use accrued flexible credit hours to take 
        time off work, in accordance with the rate prescribed by 
        paragraph (2), within a reasonable time after the employee 
        makes a request for such use if the use does not unduly disrupt 
        the operations of the employer.
            ``(9) Prohibition of coercion.--
                    ``(A) In general.--An employer shall not directly 
                or indirectly intimidate, threaten, or coerce, or 
                attempt to intimidate, threaten, or coerce, any 
                employee for the purpose of interfering with the rights 
                of the employee under this subsection--
                            ``(i) to elect or not to elect to 
                        participate in a flexible credit hour program, 
                        or to elect or not to elect to work flexible 
                        credit hours; or
                            ``(ii) to use or refrain from using accrued 
                        flexible credit hours in accordance with 
                        paragraph (8).
                    ``(B) Definition.--In subparagraph (A), the term 
                `intimidate, threaten, or coerce' has the meaning given 
                the term in subsection (s)(9).''.

SEC. 4. REMEDIES.

    Section 16 of the Fair Labor Standards Act of 1938 (29 U.S.C. 216) 
is amended--
            (1) in subsection (b), by striking ``(b) Any employer'' and 
        inserting ``(b) Except as provided in subsection (f), any 
        employer''; and
            (2) by adding at the end the following:
    ``(f) An employer that violates subsection (s)(9) or (t)(9) of 
section 7 shall be liable to the affected employee in the amount of--
            ``(1) the rate of compensation, determined in accordance 
        with subsection (s)(7)(A) or (t)(7)(A)(i) of section 7, for 
        each hour of unused compensatory time or for each unused 
        flexible credit hour accrued by the employee; and
            ``(2) liquidated damages equal to the amount determined in 
        paragraph (1).''.

SEC. 5. NOTICE TO EMPLOYEES.

    Not later than 30 days after the date of enactment of this Act, the 
Secretary of Labor shall revise the materials the Secretary provides, 
under regulations contained in section 516.4 of title 29, Code of 
Federal Regulations, to employers for purposes of a notice explaining 
the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) to 
employees so that the notice reflects the amendments made to such Act 
by this Act.

SEC. 6. PROTECTIONS FOR CLAIMS RELATING TO COMPENSATORY TIME OFF AND 
              FLEXIBLE CREDIT HOURS IN BANKRUPTCY PROCEEDING.

    Section 507(a)(4)(A) of title 11, United States Code, is amended--
            (1) by striking ``and''; and
            (2) by inserting ``, the value of unused, accrued 
        compensatory time off under section 7(s) of the Fair Labor 
        Standards Act of 1938 (29 U.S.C. 207(s)), all of which shall be 
        deemed to have been earned within 180 days before the date of 
        the filing of the petition or the date of the cessation of the 
        debtor's business, whichever occurs first, at a rate of 
        compensation not less than the final regular rate received by 
        such individual, and the value of unused, accrued flexible 
        credit hours under section 7(t) of the Fair Labor Standards Act 
        of 1938 (29 U.S.C. 207(t)), all of which shall be deemed to 
        have been earned within 180 days before the date of the filing 
        of the petition or the date of the cessation of the debtor's 
        business, whichever occurs first, at a rate of compensation 
        described in paragraph (7)(A)(i) of such section 7(t)'' after 
        ``sick leave pay''.

SEC. 7. GAO REPORT.

    Beginning 2 years after the date of enactment of this Act and each 
of the 3 years thereafter, the Comptroller General of the United States 
shall submit a report to Congress providing, with respect to the 
reporting period immediately prior to each such report--
            (1) data concerning the extent to which employers provide 
        compensatory time and flexible credit hours under subsections 
        (s) and (t) of section 7 of the Fair Labor Standards Act of 
        1938 (29 U.S.C. 207), as added by this Act, and the extent to 
        which employees opt to receive compensatory time under 
        subsection (s) and flexible credit hours under subsection (t);
            (2) the number of complaints alleging a violation of 
        subsection (s)(9) or (t)(9) of such section filed by any 
        employee with the Secretary of Labor, and the disposition or 
        status of such complaints;
            (3) the number of enforcement actions commenced by the 
        Secretary or commenced by the Secretary on behalf of any 
        employee for alleged violations of subsection (s)(9) or (t)(9) 
        of such section, and the disposition or status of such actions; 
        and
            (4) an account of any unpaid wages, damages, penalties, 
        injunctive relief, or other remedies obtained or sought by the 
        Secretary in connection with such actions described in 
        paragraph (3).

SEC. 8. SUNSET.

    This Act and the amendments made by this Act shall expire on the 
date that is 5 years after the date of enactment of this Act.
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