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, biweekly work, and flexible credit hours programs.
[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 317 Introduced in Senate (IS)]
108th CONGRESS
1st Session
S. 317
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, biweekly work programs, and flexible credit hour
programs as Federal employees currently enjoy to help balance the
demands and needs of work and family, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 5, 2003
Mr. Gregg (for himself, Mr. Sessions, and Mr. Enzi) 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, biweekly work programs, and flexible credit hour
programs as Federal employees currently enjoy to help balance the
demands and needs 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 Time and 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 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
described in paragraph (3)(A)(ii).
``(B) An employee may withdraw an agreement 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(d)(2).
``(B) An agreement 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 AND FLEXIBLE CREDIT HOUR 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 AND FLEXIBLE CREDIT HOUR 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.--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 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 described in paragraph (2)(A)(ii).
``(B) Withdrawal.--An employee may withdraw an
agreement 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) Flexible Credit Hour Programs.--
``(1) In general.--Notwithstanding section 7, an employer
may establish flexible credit hour programs, under which, at
the election of an employee, the employer and the employee
jointly designate hours for the employee to work that are in
excess of the basic work requirement of the employee so that
the employee can accrue flexible credit hours to reduce the
hours worked in a week or a day subsequent to the day on which
the flexible credit hours are worked.
``(2) Conditions.--An employer may carry out a flexible
credit hour program described in paragraph (1) for employees
only pursuant to the following:
``(A) Agreement.--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 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.
``(D) Hours.--An agreement that is entered into
under subparagraph (A) shall provide that, at the
election of an employee, the employer and the employee
will jointly designate, for an applicable workweek,
flexible credit hours for the employee to work.
``(E) Limit.--An employee shall be eligible to
accrue flexible credit hours if the employee has not
accrued flexible credit hours in excess of the limit
applicable to the employee prescribed by paragraph (3).
``(3) Hour limit.--
``(A) Maximum hours.--An employee who is
participating in such a flexible credit hour program
may accrue not more than 50 flexible credit hours.
``(B) Compensation date.--Not later than January 31
of each calendar year, the employer of an employee who
is participating in such a flexible credit hour program
shall provide monetary compensation for any flexible
credit hours accrued during the preceding calendar year
that were not used prior to December 31 of the
preceding calendar year at a rate not less than the
regular rate at which the employee is employed on the
date the employee receives the compensation. 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.
``(4) Compensation for flexible credit hours.--
Notwithstanding section 7, in the case of an employee
participating in such a flexible credit hour program, the
employee shall be compensated for each flexible credit hour at
a rate not less than the regular rate at which the employee is
employed.
``(5) Computation of overtime.--All hours worked by the
employee in excess of 40 hours in a week that are requested in
advance by the employer, other than flexible credit hours,
shall be overtime hours.
``(6) 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.
``(7) Use of time.--An employee--
``(A) who has accrued flexible credit hours; and
``(B) who has requested the use of the accrued
flexible credit hours,
shall be permitted by the employer of the employee to use the
accrued flexible credit hours within a reasonable period after
making the request if the use of the accrued flexible credit
hours does not unduly disrupt the operations of the employer.
``(8) Discontinuance of program or withdrawal.--
``(A) Discontinuance of program.--An employer that
has established a flexible credit hour 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 described in paragraph (2)(A)(ii).
``(B) Withdrawal.--An employee may withdraw an
agreement described in paragraph (2)(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 flexible credit hours
accrued that have not been used. Within 30 days after
receiving the written request, the employer shall
provide the employee the monetary compensation due at a
rate not less than the regular rate at which the
employee is employed on the date the employee receives
the compensation.
``(d) 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--
``(A) interfering with the rights of the employee
under this section to elect or not to elect to work a
biweekly work schedule;
``(B) interfering with the rights of the employee
under this section 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
(including working flexible credit hours in lieu of
overtime hours);
``(C) interfering with the rights of the employee
under this section to use accrued flexible credit hours
in accordance with subsection (c)(7); or
``(D) requiring the employee to use the flexible
credit hours.
``(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).
``(e) 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) Election.--The term `at the election of', used with
respect to an employee, means at the initiative of, and at the
request of, the employee.
``(5) 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.
``(6) Employer.--The term `employer' does not include a
public agency.
``(7) Flexible credit hours.--The term `flexible credit
hours' means any hours, within a flexible credit hour program
established under subsection (c), that are in excess of the
basic work requirement of an employee and that, at the election
of the employee, the employer and the employee jointly
designate for the employee to work so as to reduce the hours
worked in a week on a day subsequent to the day on which the
flexible credit hours are worked.
``(8) Overtime hours.--The term `overtime hours'--
``(A) 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; or
``(B) when used with respect to flexible credit
hour programs under subsection (c), means all hours
worked in excess of 40 hours in a week that are
requested in advance by an employer, but does not
include flexible credit hours.
``(9) 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(d) 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 and flexible credit hours
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 S1999)
Read twice and referred to the Committee on Health, Education, Labor, and Pensions. (text of measure as introduced: CR S1999-2002)
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