II

106TH CONGRESS

1ST SESSION S. 1241

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

JUNE 17, 1999

Mr. ASHCROFT (for himself, Mrs. HUTCHISON, Mr. ABRAHAM, Mr. ALLARD,

Mr. BOND, Mr. BROWNBACK, Mr. BUNNING, Mr. BURNS, Mr. CHAFEE,

Mr. COCHRAN, Ms. COLLINS, Mr. COVERDELL, Mr. CRAIG, Mr. DEWINE,

Mr. DOMENICI, Mr. ENZI, Mr. FRIST, Mr. GRAMM, Mr. GRASSLEY, Mr.

GREGG, Mr. HAGEL, Mr. HATCH, Mr. HELMS, Mr. HUTCHINSON, Mr.

JEFFORDS, Mr. KYL, Mr. LOTT, Mr. MCCAIN, Mr. MCCONNELL, Mr.

NICKLES, Mr. ROBERTS, Mr. SESSIONS, Mr. SMITH of Oregon, Mr.

SMITH of New Hampshire, Mr. THOMAS, Mr. THURMOND, and Mr.

SHELBY) 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 require-
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ments of the Fair Labor Standards Act of 1938, and

for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Family Friendly Work5 place Act’’.

6 SEC. 2. WORKPLACE FLEXIBILITY OPTIONS.

7 (a) COMPENSATORY TIME OFF.—Section 7 of the

8 Fair Labor Standards Act of 1938 (29 U.S.C. 207) is

9 amended by adding at the end the following:

10 ‘‘(r)(1)(A) Except as provided in subparagraph (B),

11 no employee may be required under this subsection to re12 ceive compensatory time off in lieu of monetary overtime

13 compensation. The acceptance of compensatory time off

14 in lieu of monetary overtime compensation may not be a

15 condition of employment.

16 ‘‘(B) In a case in which a valid collective bargaining

17 agreement exists between an employer and the labor orga18 nization that has been certified or recognized as the rep19 resentative of the employees of the employer under appli20 cable law, an employee may only be required under this

21 subsection to receive compensatory time off in lieu of mon22 etary overtime compensation in accordance with the agree23 ment.
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1 ‘‘(2)(A) An employee may receive, in accordance with

2 this subsection and in lieu of monetary overtime com3 pensation, compensatory time off at a rate not less than

4 one and one-half hours for each hour of employment for

5 which monetary overtime compensation is required by this

6 section.

7 ‘‘(B) In this subsection:

8 ‘‘(i) The term ‘employee’ means an individual—

9 ‘‘(I) who is an employee (as defined in sec10 tion 3);

11 ‘‘(II) who is not an employee of a public

12 agency; and

13 ‘‘(III) to whom subsection (a) applies.

14 ‘‘(ii) The term ‘employer’ does not include a

15 public agency.

16 ‘‘(3) An employer may provide compensatory time off

17 to employees under paragraph (2)(A) only pursuant to the

18 following:

19 ‘‘(A) The compensatory time off may be pro20 vided only in accordance with—

21 ‘‘(i) applicable provisions of a collective

22 bargaining agreement between the employer

23 and the labor organization that has been cer24 tified or recognized as the representative of the

25 employees under applicable law; or
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1 ‘‘(ii) in the case of an employee who is not

2 represented by a labor organization described in

3 clause (i), an agreement or understanding ar4 rived at between the employer and employee be5 fore the performance of the work involved if the

6 agreement or understanding was entered into

7 knowingly and voluntarily by such employee and

8 was not a condition of employment.

9 ‘‘(B) The compensatory time off may only be

10 provided to an employee described in subparagraph

11 (A)(ii) if such employee has affirmed, in a written

12 or otherwise verifiable statement that is made, kept,

13 and preserved in accordance with section 11(c), that

14 the employee has chosen to receive compensatory

15 time off in lieu of monetary overtime compensation.

16 ‘‘(C) No employee may receive, or agree to re17 ceive, the compensatory time off unless the employee

18 has been employed for at least 12 months by the

19 employer, and for at least 1,250 hours of service

20 with the employer during the previous 12-month pe21 riod.

22 ‘‘(D) An employee shall be eligible to accrue

23 compensatory time off if such employee has not ac24 crued compensatory time off in excess of the limit
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1 applicable to the employee prescribed by paragraph

2 (4).

3 ‘‘(4)(A) An employee may accrue not more than 160

4 hours of compensatory time off.

5 ‘‘(B) Not later than January 31 of each calendar

6 year, the employer of the employee shall provide monetary

7 compensation for any unused compensatory time off ac8 crued during the preceding calendar year that was not

9 used prior to December 31 of the preceding calendar year

10 at the rate prescribed by paragraph (8). An employer may

11 designate and communicate to the employees of the em12 ployer a 12-month period other than the calendar year,

13 in which case the compensation shall be provided not later

14 than 31 days after the end of the 12-month period.

15 ‘‘(C) The employer may provide monetary compensa16 tion for an employee’s unused compensatory time off in

17 excess of 80 hours at any time after providing the em18 ployee with at least 30 days’ written notice. The com19 pensation shall be provided at the rate prescribed by para20 graph (8).

21 ‘‘(5)(A) An employer that has adopted a policy offer22 ing compensatory time off to employees may discontinue

23 the policy for employees described in paragraph (3)(A)(ii)

24 after providing 30 days’ written notice to the employees
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1 who are subject to an agreement or understanding de2 scribed in paragraph (3)(A)(ii).

3 ‘‘(B) An employee may withdraw an agreement or un4 derstanding described in paragraph (3)(A)(ii) at any time,

5 by submitting a written notice of withdrawal to the em6 ployer of the employee. An employee may also request in

7 writing that monetary compensation be provided, at any

8 time, for all compensatory time off accrued that has not

9 been used. Within 30 days after receiving the written re10 quest, the employer shall provide the employee the mone11 tary compensation due in accordance with paragraph (8).

12 ‘‘(6)(A)(i) An employer that provides compensatory

13 time off under paragraph (2) to an employee shall not di14 rectly or indirectly intimidate, threaten, or coerce, or at15 tempt to intimidate, threaten, or coerce, any employee for

16 the purpose of—

17 ‘‘(I) interfering with the rights of the employee

18 under this subsection to request or not request com19 pensatory time off in lieu of payment of monetary

20 overtime compensation for overtime hours;

21 ‘‘(II) interfering with the rights of the employee

22 to use accrued compensatory time off in accordance

23 with paragraph (9); or

24 ‘‘(III) requiring the employee to use the com25 pensatory time off.
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1 ‘‘(ii) In clause (i), the term ‘intimidate, threaten, or

2 coerce’ has the meaning given the term in section

3 13A(c)(2).

4 ‘‘(B) An agreement or understanding that is entered

5 into by an employee and employer under paragraph

6 (3)(A)(ii) shall permit the employee to elect, for an appli7 cable workweek—

8 ‘‘(i) the payment of monetary overtime com9 pensation for the workweek; or

10 ‘‘(ii) the accrual of compensatory time off in

11 lieu of the payment of monetary overtime compensa12 tion for the workweek.’’.

13 (b) REMEDIES AND SANCTIONS.—Section 16 of the

14 Fair Labor Standards Act of 1938 (29 U.S.C. 216) is

15 amended by adding at the end the following:

16 ‘‘(f)(1) In addition to any amount that an employer

17 is liable under subsection (b) for a violation of a provision

18 of section 7, an employer that violates section 7(r)(6)(A)

19 shall be liable to the employee affected in an amount equal

20 to—

21 ‘‘(A) the product of—

22 ‘‘(i) the rate of compensation (determined

23 in accordance with section 7(r)(8)(A)); and
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1 ‘‘(ii)(I) the number of hours of compen2 satory time off involved in the violation that

3 was initially accrued by the employee; minus

4 ‘‘(II) the number of such hours used by

5 the employee; and

6 ‘‘(B) as liquidated damages, the product of—

7 ‘‘(i) such rate of compensation; and

8 ‘‘(ii) the number of hours of compensatory

9 time off involved in the violation that was ini10 tially accrued by the employee.

11 ‘‘(2) The employer shall be subject to such liability

12 in addition to any other remedy available for such violation

13 under this section or section 17, including a criminal pen14 alty under subsection (a) and a civil penalty under sub15 section (e).’’.

16 (c) CALCULATIONS AND SPECIAL RULES.—Section

17 7(r) of the Fair Labor Standards Act of 1938 (29 U.S.C.

18 207(r)), as added by subsection (a), is amended by adding

19 at the end the following:

20 ‘‘(7) An employee who has accrued compensatory

21 time off authorized to be provided under paragraph (2)

22 shall, upon the voluntary or involuntary termination of

23 employment, be paid for the unused compensatory time

24 off in accordance with paragraph (8).
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1 ‘‘(8)(A) If compensation is to be paid to an employee

2 for accrued compensatory time off, the compensation shall

3 be paid at a rate of compensation not less than—

4 ‘‘(i) the regular rate received by such employee

5 when the compensatory time off was earned; or

6 ‘‘(ii) the final regular rate received by such em7 ployee;

8 whichever is higher.

9 ‘‘(B) Any payment owed to an employee under this

10 subsection for unused compensatory time off shall be con11 sidered unpaid monetary overtime compensation.

12 ‘‘(9) An employee—

13 ‘‘(A) who has accrued compensatory time off

14 authorized to be provided under paragraph (2); and

15 ‘‘(B) who has requested the use of the accrued

16 compensatory time off;

17 shall be permitted by the employer of the employee to use

18 the accrued compensatory time off within a reasonable pe19 riod after making the request if the use of the accrued

20 compensatory time off does not unduly disrupt the oper21 ations of the employer.

22 ‘‘(10) The terms ‘monetary overtime compensation’

23 and ‘compensatory time off’ shall have the meanings given

24 the terms ‘overtime compensation’ and ‘compensatory

25 time’, respectively, by subsection (o)(7).’’.
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1 (d) NOTICE TO EMPLOYEES.—Not later than 30 days

2 after the date of enactment of this Act, the Secretary of

3 Labor shall revise the materials the Secretary provides,

4 under regulations contained in section 516.4 of title 29,

5 Code of Federal Regulations, to employers for purposes

6 of a notice explaining the Fair Labor Standards Act of

7 1938 (29 U.S.C. 201 et seq.) to employees so that the

8 notice reflects the amendments made to the Act by this

9 section.

10 SEC. 3. BIWEEKLY WORK PROGRAMS.

11 (a) IN GENERAL.—The Fair Labor Standards Act of

12 1938 is amended by inserting after section 13 (29 U.S.C.

13 213) the following:

14 ‘‘SEC. 13A. BIWEEKLY WORK PROGRAMS.

15 ‘‘(a) VOLUNTARY PARTICIPATION.—

16 ‘‘(1) IN GENERAL.—Except as provided in para17 graph (2), no employee may be required to partici18 pate in a program described in this section. Partici19 pation in a program described in this section may

20 not be a condition of employment.

21 ‘‘(2) COLLECTIVE BARGAINING AGREEMENT.—

22 In a case in which a valid collective bargaining

23 agreement exists between an employer and the labor

24 organization that has been certified or recognized as

25 the representative of the employees of the employer
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1 under applicable law, an employee may only be re2 quired to participate in such a program in accord3 ance with the agreement.

4 ‘‘(b) BIWEEKLY WORK PROGRAMS.—

5 ‘‘(1) IN GENERAL.—Notwithstanding section 7,

6 an employer may establish biweekly work programs

7 that allow the use of a biweekly work schedule—

8 ‘‘(A) that consists of a basic work require9 ment of not more than 80 hours, over a 2-week

10 period; and

11 ‘‘(B) in which more than 40 hours of the

12 work requirement may occur in a week of the

13 period, except that no more than 10 hours may

14 be shifted between the 2 weeks involved.

15 ‘‘(2) CONDITIONS.—An employer may carry out

16 a biweekly work program described in paragraph (1)

17 for employees only pursuant to the following:

18 ‘‘(A) AGREEMENT OR UNDERSTANDING.—

19 The program may be carried out only in accord20 ance with—

21 ‘‘(i) applicable provisions of a collec22 tive bargaining agreement between the em23 ployer and the labor organization that has

24 been certified or recognized as the rep-
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1 resentative of the employees under applica2 ble law; or

3 ‘‘(ii) in the case of an employee who

4 is not represented by a labor organization

5 described in clause (i), an agreement or

6 understanding arrived at between the em7 ployer and employee before the perform8 ance of the work involved if the agreement

9 or understanding was entered into know10 ingly and voluntarily by such employee and

11 was not a condition of employment.

12 ‘‘(B) STATEMENT.—The program shall

13 apply to an employee described in subparagraph

14 (A)(ii) if such employee has affirmed, in a writ15 ten or otherwise verifiable statement that is

16 made, kept, and preserved in accordance with

17 section 11(c), that the employee has chosen to

18 participate in the program.

19 ‘‘(C) MINIMUM SERVICE.—No employee

20 may participate, or agree to participate, in the

21 program unless the employee has been em22 ployed for at least 12 months by the employer,

23 and for at least 1,250 hours of service with the

24 employer during the previous 12-month period.
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1 ‘‘(3) COMPENSATION FOR HOURS IN SCHED2 ULE.—Notwithstanding section 7, in the case of an

3 employee participating in such a biweekly work pro4 gram, the employee shall be compensated for each

5 hour in such a biweekly work schedule at a rate not

6 less than the regular rate at which the employee is

7 employed.

8 ‘‘(4) COMPUTATION OF OVERTIME.—All hours

9 worked by the employee in excess of such a biweekly

10 work schedule or in excess of 80 hours in the 2-week

11 period, that are requested in advance by the em12 ployer, shall be overtime hours.

13 ‘‘(5) OVERTIME COMPENSATION PROVISION.—

14 The employee shall be compensated for each such

15 overtime hour at a rate not less than one and one16 half times the regular rate at which the employee is

17 employed, in accordance with section 7(a)(1), or re18 ceive compensatory time off in accordance with sec19 tion 7(r) for each such overtime hour.

20 ‘‘(6) DISCONTINUANCE OF PROGRAM OR WITH21 DRAWAL.—

22 ‘‘(A) DISCONTINUANCE OF PROGRAM.—An

23 employer that has established a biweekly work

24 program under paragraph (1) may discontinue

25 the program for employees described in para-
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1 graph (2)(A)(ii) after providing 30 days’ writ2 ten notice to the employees who are subject to

3 an agreement or understanding described in

4 paragraph (2)(A)(ii).

5 ‘‘(B) WITHDRAWAL.—An employee may

6 withdraw an agreement or understanding de7 scribed in paragraph (2)(A)(ii) at the end of

8 any 2-week period described in paragraph

9 (1)(A), by submitting a written notice of with10 drawal to the employer of the employee.

11 ‘‘(c) PROHIBITION OF COERCION.—

12 ‘‘(1) IN GENERAL.—An employer shall not di13 rectly or indirectly intimidate, threaten, or coerce, or

14 attempt to intimidate, threaten, or coerce, any em15 ployee for the purpose of interfering with the rights

16 of the employee under this section to elect or not to

17 elect to work a biweekly work schedule.

18 ‘‘(2) DEFINITION.—In paragraph (1), the term

19 ‘intimidate, threaten, or coerce’ includes promising

20 to confer or conferring any benefit (such as appoint21 ment, promotion, or compensation) or effecting or

22 threatening to effect any reprisal (such as depriva23 tion of appointment, promotion, or compensation).

24 ‘‘(d) DEFINITIONS.—In this section:
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1 ‘‘(1) BASIC WORK REQUIREMENT.—The term

2 ‘basic work requirement’ means the number of

3 hours, excluding overtime hours, that an employee is

4 required to work or is required to account for by

5 leave or otherwise.

6 ‘‘(2) COLLECTIVE BARGAINING.—The term ‘col7 lective bargaining’ means the performance of the

8 mutual obligation of the representative of an em9 ployer and the labor organization that has been cer10 tified or recognized as the representative of the em11 ployees of the employer under applicable law to meet

12 at reasonable times and to consult and bargain in a

13 good-faith effort to reach agreement with respect to

14 the conditions of employment affecting such employ15 ees and to execute, if requested by either party, a

16 written document incorporating any collective bar17 gaining agreement reached, but the obligation re18 ferred to in this paragraph shall not compel either

19 party to agree to a proposal or to make a conces20 sion.

21 ‘‘(3) COLLECTIVE BARGAINING AGREEMENT.—

22 The term ‘collective bargaining agreement’ means an

23 agreement entered into as a result of collective bar24 gaining.
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1 ‘‘(4) EMPLOYEE.—The term ‘employee’ means

2 an individual—

3 ‘‘(A) who is an employee (as defined in

4 section 3);

5 ‘‘(B) who is not an employee of a public

6 agency; and

7 ‘‘(C) to whom section 7(a) applies.

8 ‘‘(5) EMPLOYER.—The term ‘employer’ does

9 not include a public agency.

10 ‘‘(6) OVERTIME HOURS.—The term ‘overtime

11 hours’, when used with respect to biweekly work pro12 grams under subsection (b), means all hours worked

13 in excess of the biweekly work schedule involved or

14 in excess of 80 hours in the 2-week period involved,

15 that are requested in advance by an employer.

16 ‘‘(7) REGULAR RATE.—The term ‘regular rate’

17 has the meaning given the term in section 7(e).’’.

18 (b) REMEDIES.—

19 (1) PROHIBITIONS.—Section 15(a)(3) of the

20 Fair Labor Standards Act of 1938 (29 U.S.C.

21 215(a)(3)) is amended—

22 (A) by inserting ‘‘(A)’’ after ‘‘(3)’’;

23 (B) by adding ‘‘or’’ after the semicolon;

24 and

25 (C) by adding at the end the following:
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1 ‘‘(B) to violate any of the provisions of section

2 13A;’’.

3 (2) REMEDIES AND SANCTIONS.—Section 16 of

4 the Fair Labor Standards Act of 1938 (29 U.S.C.

5 216), as amended in section 2(b), is further

6 amended—

7 (A) in subsection (c)—

8 (i) in the first sentence—

9 (I) by inserting after ‘‘7 of this

10 Act’’ the following: ‘‘, or of the appro11 priate legal or monetary equitable re12 lief owing to any employee or employ13 ees under section 13A’’; and

14 (II) by striking ‘‘wages or unpaid

15 overtime compensation and’’ and in16 serting ‘‘wages, unpaid overtime com17 pensation, or legal or monetary equi18 table relief, as appropriate, and’’;

19 (ii) in the second sentence, by striking

20 ‘‘wages or overtime compensation and’’

21 and inserting ‘‘wages, unpaid overtime

22 compensation, or legal or monetary equi23 table relief, as appropriate, and’’; and

24 (iii) in the third sentence—
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1 (I) by inserting after ‘‘first sen2 tence of such subsection’’ the fol3 lowing: ‘‘, or the second sentence of

4 such subsection in the event of a vio5 lation of section 13A,’’; and

6 (II) by striking ‘‘wages or unpaid

7 overtime compensation under sections

8 6 and 7 or’’ and inserting ‘‘wages, un9 paid overtime compensation, or legal

10 or monetary equitable relief, as appro11 priate, or’’;

12 (B) in subsection (e)—

13 (i) in the second sentence, by striking

14 ‘‘section 6 or 7’’ and inserting ‘‘section 6,

15 7, or 13A’’; and

16 (ii) in the fourth sentence, in para17 graph (3), by striking ‘‘15(a)(4) or’’ and

18 inserting ‘‘15(a)(4), a violation of section

19 15(a)(3)(B), or’’; and

20 (C) by adding at the end the following:

21 ‘‘(g)(1) In addition to any amount that an employer

22 is liable under the second sentence of subsection (b) for

23 a violation of a provision of section 13A, an employer that

24 violates section 13A(c) shall be liable to the employee af25 fected for an additional sum equal to that amount.
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1 ‘‘(2) The employer shall be subject to such liability

2 in addition to any other remedy available for such violation

3 under this section or section 17.’’.

4 (c) NOTICE TO EMPLOYEES.—Not later than 30 days

5 after the date of enactment of this Act, the Secretary of

6 Labor shall revise the materials the Secretary provides,

7 under regulations contained in section 516.4 of title 29,

8 Code of Federal Regulations, to employers for purposes

9 of a notice explaining the Fair Labor Standards Act of

10 1938 (29 U.S.C. 201 et seq.) to employees so that the

11 notice reflects the amendments made to the Act by this

12 section.

13 SEC. 4. LIMITATIONS ON SALARY PRACTICES RELATING TO

14 EXEMPT EMPLOYEES.

15 (a) IN GENERAL.—Section 13 of the Fair Labor

16 Standards Act of 1938 (29 U.S.C. 213) is amended by

17 adding at the end the following:

18 ‘‘(k)(1)(A) In the case of a determination of whether

19 an employee is an exempt employee described in para20 graph (1) or (17) of subsection (a), the fact that the em21 ployee is subject to deductions in pay for—

22 ‘‘(i) absences of the employee from employment

23 of less than a full workday; or

24 ‘‘(ii) absences of the employee from employment

25 of less than a full workweek;
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1 shall not be considered in making such determination.

2 ‘‘(B)(i) Except as provided in clause (ii), in the case

3 of a determination described in subparagraph (A), an ac4 tual reduction in pay of the employee may be considered

5 in making the determination for that employee.

6 ‘‘(ii) For the purposes of this subsection, an actual

7 reduction in pay of an employee of a public agency shall

8 not be considered in making a determination described in

9 subparagraph (A) if such reduction is permissible under

10 regulations prescribed by the Secretary under section

11 541.5d of title 29, Code of Federal Regulations (as in ef12 fect on August 19, 1992).

13 ‘‘(C) For the purposes of this paragraph, the term

14 ‘absences’ includes absences as a result of a disciplinary

15 suspension of an employee from employment.

16 ‘‘(D) For the purposes of this paragraph, the term

17 ‘actual reduction in pay’ does not include any reduction

18 in accrued paid leave, or any other practice, that does not

19 reduce the amount of pay an employee receives for a pay

20 period.

21 ‘‘(2) The payment of overtime compensation or other

22 additions to the compensation of an employee employed

23 on a salary based on hours worked shall not be considered

24 in determining if the employee is an exempt employee de25 scribed in paragraph (1) or (17) of subsection (a).’’.
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1 (b) EFFECTIVE DATE.—The amendment made by

2 subsection (a) shall take effect on the date of enactment

3 of this Act and shall apply to any civil action—

4 (1) that involves an issue with respect to sec5 tion 13(a)(1) of the Fair Labor Standards Act of

6 1938 (29 U.S.C. 213(a)(1)); and

7 (2) in which a final judgment has not been

8 made prior to such date.

9 SEC. 5. PROTECTIONS FOR CLAIMS RELATING TO COMPEN10 SATORY TIME OFF IN BANKRUPTCY PRO11 CEEDINGS.

12 Section 507(a)(3) of title 11, United States Code, is

13 amended—

14 (1) by striking ‘‘for—’’ and inserting the fol15 lowing: ‘‘on the condition that all accrued compen16 satory time off (as defined in section 7 of the Fair

17 Labor Standards Act of 1938 (29 U.S.C. 207)) shall

18 be deemed to have been earned within 90 days be19 fore the date of the filing of the petition or the date

20 of the cessation of the debtor’s business, whichever

21 occurs first, for—’’; and

22 (2) in subparagraph (A), by inserting before the

23 semicolon the following: ‘‘or the value of unused, ac24 crued compensatory time off (as defined in section
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1 7 of the Fair Labor Standards Act of 1938 (29

2 U.S.C. 207))’’.

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