Amends the Federal bankruptcy code to grant third priority (allowed unsecured claims for wages, salaries, or commissions) in bankruptcy proceedings to claims relating to compensatory time off.
Amends the Congressional Accountability Act to provide congressional employees with such options for compensatory time and biweekly work programs.
[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 624 Introduced in Senate (IS)]
107th CONGRESS
1st Session
S. 624
To amend the Fair Labor Standards Act of 1938 to provide to private
sector employees the same opportunities for time-and-a-half
compensatory time off and biweekly work programs as Federal employees
currently enjoy to help balance the demands and needs of work and
family, to clarify the provisions relating to exemptions of certain
professionals from minimum wage and overtime requirements of the Fair
Labor Standards Act of 1938, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 27, 2001
Mr. Gregg (for himself and Mrs. Hutchison) 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 to private
sector employees the same opportunities for time-and-a-half
compensatory time off and biweekly work programs as Federal employees
currently enjoy to help balance the demands and needs of work and
family, to clarify the provisions relating to exemptions of certain
professionals from minimum wage and overtime requirements of the Fair
Labor Standards Act of 1938, 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 ``Workplace Flexibility Act''.
SEC. 2. WORKPLACE FLEXIBILITY OPTIONS.
(a) Compensatory Time Off.--Section 7 of the Fair Labor Standards
Act of 1938 (29 U.S.C. 207) is amended by adding at the end the
following:
``(r)(1)(A) Except as provided in subparagraph (B), no employee may
be required under this subsection to receive compensatory time off in
lieu of monetary overtime compensation. The acceptance of compensatory
time off in lieu of monetary overtime compensation may not be a
condition of employment or of working overtime.
``(B) In a case in which a valid collective bargaining agreement
exists between an employer and the labor organization that has been
certified or recognized as the representative of the employees of the
employer under applicable law, an employee may only be required under
this subsection to receive compensatory time off in lieu of monetary
overtime compensation in accordance with the agreement.
``(2)(A) 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 monetary overtime compensation is required by
this section.
``(B) In this subsection:
``(i) The term `employee' means an individual--
``(I) who is an employee (as defined in section 3);
``(II) who is not an employee of a public agency;
and
``(III) to whom subsection (a) applies.
``(ii) The term `employer' does not include a public
agency.
``(3) An employer may provide compensatory time off to employees
under paragraph (2)(A) only pursuant to the following:
``(A) The compensatory time off may be provided only in
accordance with--
``(i) applicable provisions of a collective
bargaining agreement between the employer and the labor
organization that has been certified or recognized as
the representative of the employees under applicable
law; or
``(ii) in the case of an employee who is not
represented by a labor organization described in clause
(i), a written agreement arrived at between the
employer and employee before the performance of the
work involved if the agreement or understanding was
entered into knowingly and voluntarily by such employee
and was not a condition of employment.
``(B) The compensatory time off may only be provided to an
employee described in subparagraph (A)(ii) if such employee has
affirmed, in a written statement that is made, kept, and
preserved in accordance with section 11(c), that the employee
has chosen to receive compensatory time off in lieu of monetary
overtime compensation.
``(C) No employee may receive, or agree to receive, the
compensatory time off unless the employee has been employed for
at least 12 months by the employer, and for at least 1,250
hours of service with the employer during the previous 12-month
period.
``(D) An employee shall be eligible to accrue compensatory
time off if such employee has not accrued compensatory time off
in excess of the limit applicable to the employee prescribed by
paragraph (4).
``(4)(A) An employee may accrue not more than 160 hours of
compensatory time off.
``(B) Not later than January 31 of each calendar year, the employer
of the employee shall provide monetary compensation for any unused
compensatory time off accrued during the preceding calendar year that
was not used prior to December 31 of the preceding calendar year at
the rate prescribed by paragraph (8). An employer may designate and
communicate to the employees of the employer a 12-month period other
than the calendar year, in which case the compensation shall be
provided not later than 31 days after the end of the 12-month period.
``(C) The employer may provide monetary compensation for an
employee's unused compensatory time off in excess of 80 hours at any
time after providing the employee with at least 30 days' written
notice. The compensation shall be provided at the rate prescribed by
paragraph (8).
``(5)(A) An employer that has adopted a policy offering
compensatory time off to employees may discontinue the policy for
employees described in paragraph (3)(A)(ii) after providing 30 days'
written notice to the employees who are subject to an agreement or
understanding described in paragraph (3)(A)(ii).
``(B) An employee may withdraw an agreement or understanding
described in paragraph (3)(A)(ii) at any time, by submitting a written
notice of withdrawal to the employer of the employee. An employee may
also request in writing that monetary compensation be provided, at any
time, for all compensatory time off accrued that has not been used.
Within 30 days after receiving the written request, the employer shall
provide the employee the monetary compensation due in accordance with
paragraph (8).
``(6)(A)(i) An employer that provides compensatory time off under
paragraph (2) to an employee shall not directly or indirectly
intimidate, threaten, or coerce, or attempt to intimidate, threaten, or
coerce, any employee for the purpose of--
``(I) interfering with the rights of the employee under
this subsection to request or not request compensatory time off
in lieu of payment of monetary overtime compensation for
overtime hours;
``(II) interfering with the rights of the employee to use
accrued compensatory time off in accordance with paragraph (9);
or
``(III) requiring the employee to use the compensatory time
off.
``(ii) In clause (i), the term `intimidate, threaten, or coerce'
has the meaning given the term in section 13A(c)(2).
``(B) An agreement or understanding that is entered into by an
employee and employer under paragraph (3)(A)(ii) shall permit the
employee to elect, for an applicable workweek--
``(i) the payment of monetary overtime compensation for the
workweek; or
``(ii) the accrual of compensatory time off in lieu of the
payment of monetary overtime compensation for the workweek.''.
(b) Remedies and Sanctions.--Section 16 of the Fair Labor Standards
Act of 1938 (29 U.S.C. 216) is amended by adding at the end the
following:
``(f)(1) In addition to any amount that an employer is liable under
subsection (b) for a violation of a provision of section 7, an employer
that violates section 7(r)(6)(A) shall be liable to the employee
affected in an amount equal to--
``(A) the product of--
``(i) the rate of compensation (determined in
accordance with section 7(r)(8)(A)); and
``(ii)(I) the number of hours of compensatory time
off involved in the violation that was initially
accrued by the employee; minus
``(II) the number of such hours used by the
employee; and
``(B) as liquidated damages, the product of--
``(i) such rate of compensation; and
``(ii) the number of hours of compensatory time off
involved in the violation that was initially accrued by
the employee.
``(2) The employer shall be subject to such liability in addition
to any other remedy available for such violation under this section or
section 17, including a criminal penalty under subsection (a) and a
civil penalty under subsection (e).''.
(c) Calculations and Special Rules.--Section 7(r) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 207(r)), as added by subsection (a),
is further amended by adding at the end the following:
``(7) An employee who has accrued compensatory time off authorized
to be provided under paragraph (2) shall, upon the voluntary or
involuntary termination of employment, be paid for the unused
compensatory time off in accordance with paragraph (8).
``(8)(A) If compensation is to be paid to an employee for accrued
compensatory time off, the compensation shall be paid at a rate of
compensation not less than--
``(i) the regular rate received by such employee when the
compensatory time off was earned; or
``(ii) the final regular rate received by such employee;
whichever is higher.
``(B) Any payment owed to an employee under this subsection for
unused compensatory time off shall be considered unpaid monetary
overtime compensation.
``(9) An employee--
``(A) who has accrued compensatory time off authorized to
be provided under paragraph (2); and
``(B) who has requested the use of the accrued compensatory
time off;
shall be permitted by the employer of the employee to use the accrued
compensatory time off within a reasonable period after making the
request if the use of the accrued compensatory time off does not unduly
disrupt the operations of the employer.
``(10) The terms `monetary overtime compensation' and `compensatory
time off' shall have the meanings given the terms `overtime
compensation' and `compensatory time', respectively, by subsection
(o)(7).''.
(d) 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 the Act by this section.
SEC. 3. BIWEEKLY WORK PROGRAMS.
(a) In General.--The Fair Labor Standards Act of 1938 is amended by
inserting after section 13 (29 U.S.C. 213) the following:
``SEC. 13A. BIWEEKLY WORK PROGRAMS.
``(a) Voluntary Participation.--
``(1) In general.--Except as provided in paragraph (2), no
employee may be required to participate in a program described
in this section. Participation in a program described in this
section may not be a condition of employment.
``(2) Collective bargaining agreement.--In a case in which
a valid collective bargaining agreement exists between an
employer and the labor organization that has been certified or
recognized as the representative of the employees of the
employer under applicable law, an employee may only be required
to participate in such a program in accordance with the
agreement.
``(b) Biweekly Work Programs.--
``(1) In general.--Notwithstanding section 7, an employer
may establish biweekly work programs that allow the use of a
biweekly work schedule--
``(A) that consists of a basic work requirement of
not more than 80 hours, over a 2-week period; and
``(B) in which more than 40 hours of the work
requirement may occur in a week of the period, except
that no more than 10 hours may be shifted between the 2
weeks involved.
``(2) Conditions.--An employer may carry out a biweekly
work program described in paragraph (1) for employees only
pursuant to the following:
``(A) Agreement or understanding.--The program may
be carried out only in accordance with--
``(i) applicable provisions of a collective
bargaining agreement between the employer and
the labor organization that has been certified
or recognized as the representative of the
employees under applicable law; or
``(ii) in the case of an employee who is
not represented by a labor organization
described in clause (i), a written agreement
arrived at between the employer and employee
before the performance of the work involved if
the agreement or understanding was entered into
knowingly and voluntarily by such employee and
was not a condition of employment.
``(B) Statement.--The program shall apply to an
employee described in subparagraph (A)(ii) if such
employee has affirmed, in a written statement that is
made, kept, and preserved in accordance with section
11(c), that the employee has chosen to participate in
the program.
``(C) Minimum service.--No employee may
participate, or agree to participate, in the program
unless the employee has been employed for at least 12
months by the employer, and for at least 1,250 hours of
service with the employer during the previous 12-month
period.
``(3) Compensation for hours in schedule.--Notwithstanding
section 7, in the case of an employee participating in such a
biweekly work program, the employee shall be compensated for
each hour in such a biweekly work schedule at a rate not less
than the regular rate at which the employee is employed.
``(4) Computation of overtime.--All hours worked by the
employee in excess of such a biweekly work schedule or in
excess of 80 hours in the 2-week period, that are requested in
advance by the employer, shall be overtime hours.
``(5) Overtime compensation provision.--The employee shall
be compensated for each such 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 section 7(a)(1), or
receive compensatory time off in accordance with section 7(r)
for each such overtime hour.
``(6) Discontinuance of program or withdrawal.--
``(A) Discontinuance of program.--An employer that
has established a biweekly work program under paragraph
(1) may discontinue the program for employees described
in paragraph (2)(A)(ii) after providing 30 days'
written notice to the employees who are subject to an
agreement or understanding described in paragraph
(2)(A)(ii).
``(B) Withdrawal.--An employee may withdraw an
agreement or understanding described in paragraph
(2)(A)(ii) at the end of any 2-week period described in
paragraph (1)(A), by submitting a written notice of
withdrawal to the employer of the employee.
``(c) Prohibition of Coercion.--
``(1) 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
section to elect or not to elect to work a biweekly work
schedule.
``(2) Definition.--In paragraph (1), the term `intimidate,
threaten, or coerce' includes promising to confer or conferring
any benefit (such as appointment, promotion, or compensation)
or effecting or threatening to effect any reprisal (such as
deprivation of appointment, promotion, or compensation).
``(d) Definitions.--In this section:
``(1) Basic work requirement.--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.
``(2) Collective bargaining.--The term `collective
bargaining' means the performance of the mutual obligation of
the representative of an employer and the labor organization
that has been certified or recognized as the representative of
the employees of the employer under applicable law to meet at
reasonable times and to consult and bargain in a good-faith
effort to reach agreement with respect to the conditions of employment
affecting such employees and to execute, if requested by either party,
a written document incorporating any collective bargaining agreement
reached, but the obligation referred to in this paragraph shall not
compel either party to agree to a proposal or to make a concession.
``(3) Collective bargaining agreement.--The term
`collective bargaining agreement' means an agreement entered
into as a result of collective bargaining.
``(4) Employee.--The term `employee' means an individual--
``(A) who is an employee (as defined in section 3);
``(B) who is not an employee of a public agency;
and
``(C) to whom section 7(a) applies.
``(5) Employer.--The term `employer' does not include a
public agency.
``(6) Overtime hours.--The term `overtime hours', when used
with respect to biweekly work programs under subsection (b),
means all hours worked in excess of the biweekly work schedule
involved or in excess of 80 hours in the 2-week period
involved, that are requested in advance by an employer.
``(7) Regular rate.--The term `regular rate' has the
meaning given the term in section 7(e).''.
(b) Remedies.--
(1) Prohibitions.--Section 15(a)(3) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 215(a)(3)) is amended--
(A) by inserting ``(A)'' after ``(3)'';
(B) by adding ``or'' after the semicolon; and
(C) by adding at the end the following:
``(B) to violate any of the provisions of section 13A;''.
(2) Remedies and sanctions.--Section 16 of the Fair Labor
Standards Act of 1938 (29 U.S.C. 216), as amended in section
2(b), is further amended--
(A) in subsection (c)--
(i) in the first sentence--
(I) by inserting after ``7 of this
Act'' the following: ``, or of the
appropriate legal or monetary equitable
relief owing to any employee or
employees under section 13A''; and
(II) by striking ``wages or unpaid
overtime compensation and'' and
inserting ``wages, unpaid overtime
compensation, or legal or monetary
equitable relief, as appropriate,
and'';
(ii) in the second sentence, by striking
``wages or overtime compensation and'' and
inserting ``wages, unpaid overtime
compensation, or legal or monetary equitable
relief, as appropriate, and''; and
(iii) in the third sentence--
(I) by inserting after ``first
sentence of such subsection'' the
following: ``, or the second sentence
of such subsection in the event of a
violation of section 13A,''; and
(II) by striking ``wages or unpaid
overtime compensation under sections 6
and 7 or'' and inserting ``wages,
unpaid overtime compensation, or legal
or monetary equitable relief, as
appropriate, or'';
(B) in subsection (e)--
(i) in the second sentence, by striking
``section 6 or 7'' and inserting ``section 6,
7, or 13A''; and
(ii) in the fourth sentence, in paragraph
(3), by striking ``15(a)(4) or'' and inserting
``15(a)(4), a violation of section 15(a)(3)(B),
or''; and
(C) by adding at the end the following:
``(g)(1) In addition to any amount that an employer is liable under
the second sentence of subsection (b) for a violation of a provision of
section 13A, an employer that violates section 13A(c) shall be liable
to the employee affected for an additional sum equal to that amount.
``(2) The employer shall be subject to such liability in addition
to any other remedy available for such violation under this section or
section 17.''.
(c) 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 the Act by this section.
SEC. 4. PROTECTIONS FOR CLAIMS RELATING TO COMPENSATORY TIME OFF IN
BANKRUPTCY PROCEEDINGS.
Section 507(a)(3) of title 11, United States Code, is amended--
(1) by striking ``for--'' and inserting the following: ``on
the condition that all accrued compensatory time off (as
defined in section 7 of the Fair Labor Standards Act of 1938
(29 U.S.C. 207)) shall be deemed to have been earned within 90
days before the date of the filing of the petition or the date
of the cessation of the debtor's business, whichever occurs
first, for--''; and
(2) in subparagraph (A), by inserting before the semicolon
the following: ``or the value of unused, accrued compensatory
time off (as defined in section 7 of the Fair Labor Standards
Act of 1938 (29 U.S.C. 207))''.
SEC. 5. CONGRESSIONAL COVERAGE.
Section 203 of the Congressional Accountability Act of 1995 (2
U.S.C. 1313) is amended--
(1) in subsection (a)--
(A) in paragraph (1), by striking ``and section
12(c)'' and inserting ``section 12(c), and section
13A''; and
(B) by striking paragraph (3);
(2) in subsection (b)--
(A) by striking ``The remedy'' and inserting the
following:
``(1) In general.--Except as provided in paragraphs (2) and
(3), the remedy''; and
(B) by adding at the end the following:
``(2) Compensatory time.--The remedy for a violation of
subsection (a) relating to the requirements of section 7(r) of
the Fair Labor Standards Act of 1938 (29 U.S.C. 207(r)) shall
be such remedy as would be appropriate if awarded under
subsection (b) or (f) of section 16 of such Act (29 U.S.C.
216).
``(3) Biweekly work programs.--The remedy for a violation
of subsection (a) relating to the requirements of section 13A
of the Fair Labor Standards Act of 1938 shall be such remedy as
would be appropriate if awarded under sections 16 and 17 of
such Act (29 U.S.C. 216, 217) for such a violation.''; and
(3) in subsection (c), by striking paragraph (4).
SEC. 6. TERMINATION.
The authority provided by this Act and the amendments made by this
Act terminates 5 years after the date of enactment of this Act.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S2989-2990, S2992)
Read twice and referred to the Committee on Health, Education, Labor, and Pensions. (text of measure as introduced: CR S2990-2992)
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