II 

115TH CONGRESS 

1ST SESSION S. 801 

To amend the Fair Labor Standards Act of 1938 to provide compensatory 

time for employees in the private sector. 

IN THE SENATE OF THE UNITED STATES 

APRIL 3, 2017 

Mr. LEE (for himself, Mr. ALEXANDER, Mr. BLUNT, Mrs. CAPITO, Mr. CORNYN, Mr. COTTON, Mr. CRAPO, Mr. CRUZ, Mr. FLAKE, Mr. HATCH, Mr. 

JOHNSON, Mr. KENNEDY, Mr. MCCONNELL, Mr. PERDUE, Mr. RISCH, 

Mr. ROUNDS, Mr. SCOTT, Mr. TOOMEY, Mr. UDALL, and Mr. WICKER) 

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 

compensatory time for employees in the private sector. 

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 ‘‘Working Families 

5 Flexibility Act of 2017’’. 


SSpencer on DSK4SPTVN1PROD with BILLS
2 

•S 801 IS

1 SEC. 2. COMPENSATORY TIME. 

2 Section 7 of the Fair Labor Standards Act of 1938 

3 (29 U.S.C. 207) is amended by adding at the end the fol4 lowing: 

5 ‘‘(s) COMPENSATORY TIME OFF FOR PRIVATE EM6 PLOYEES.— 

7 ‘‘(1) GENERAL RULE.—An employee may re8 ceive, in accordance with this subsection and in lieu 

9 of monetary overtime compensation, compensatory 

10 time off at a rate not less than one and one-half 

11 hours for each hour of employment for which over12 time compensation is required by this section. 

13 ‘‘(2) CONDITIONS.—An employer may provide 

14 compensatory time to employees under paragraph 

15 (1) only if such time is provided in accordance 

16 with— 

17 ‘‘(A) applicable provisions of a collective 

18 bargaining agreement between the employer 

19 and the labor organization that has been cer20 tified or recognized as the representative of the 

21 employees under applicable law; or 

22 ‘‘(B) in the case of employees who are not 

23 represented by a labor organization that has 

24 been certified or recognized as the representa25 tive of such employees under applicable law, an 

26 agreement arrived at between the employer and 


SSpencer on DSK4SPTVN1PROD with BILLS
3 

•S 801 IS

1 employee before the performance of the work 

2 and affirmed by a written or otherwise 

3 verifiable record maintained in accordance with 

4 section 11(c)— 

5 ‘‘(i) in which the employer has offered 

6 and the employee has chosen to receive 

7 compensatory time in lieu of monetary 

8 overtime compensation; and 

9 ‘‘(ii) entered into knowingly and vol10 untarily by such employees and not as a 

11 condition of employment. 

12 No employee may receive or agree to receive com13 pensatory time off under this subsection unless the 

14 employee has worked at least 1,000 hours for the 

15 employee’s employer during a period of continuous 

16 employment with the employer in the 12-month pe17 riod before the date of agreement or receipt of com18 pensatory time off. 

19 ‘‘(3) HOUR LIMIT.— 

20 ‘‘(A) MAXIMUM HOURS.—An employee 

21 may accrue not more than 160 hours of com22 pensatory time. 

23 ‘‘(B) COMPENSATION DATE.—Not later 

24 than January 31 of each calendar year, the em25 ployee’s employer shall provide monetary comVerDate Sep 11 2014 03:41 Apr 06, 2017 Jkt 069200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S801.IS S801

SSpencer on DSK4SPTVN1PROD with BILLS
4 

•S 801 IS

1 pensation for any unused compensatory time off 

2 accrued during the preceding calendar year that 

3 was not used prior to December 31 of the pre4 ceding year at the rate prescribed by paragraph 

5 (6). An employer may designate and commu6 nicate to the employer’s employees a 12-month 

7 period other than the calendar year, in which 

8 case such compensation shall be provided not 

9 later than 31 days after the end of such 12- 

10 month period. 

11 ‘‘(C) EXCESS OF 80 HOURS.—The em12 ployer may provide monetary compensation for 

13 an employee’s unused compensatory time in ex14 cess of 80 hours at any time after giving the 

15 employee at least 30 days notice. Such com16 pensation shall be provided at the rate pre17 scribed by paragraph (6). 

18 ‘‘(D) POLICY.—Except where a collective 

19 bargaining agreement provides otherwise, an 

20 employer that has adopted a policy offering 

21 compensatory time to employees may dis22 continue such policy upon giving employees 30 

23 days notice. 

24 ‘‘(E) WRITTEN REQUEST.—An employee 

25 may withdraw an agreement described in paraVerDate Sep 11 2014 03:41 Apr 06, 2017 Jkt 069200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S801.IS S801

SSpencer on DSK4SPTVN1PROD with BILLS
5 

•S 801 IS

1 graph (2)(B) at any time. An employee may 

2 also request in writing that monetary com3 pensation be provided, at any time, for all com4 pensatory time accrued that has not yet been 

5 used. Within 30 days of receiving the written 

6 request, the employer shall provide the em7 ployee the monetary compensation due in ac8 cordance with paragraph (6). 

9 ‘‘(4) PRIVATE EMPLOYER ACTIONS.—An em10 ployer that provides compensatory time under para11 graph (1) to employees shall not directly or indi12 rectly intimidate, threaten, or coerce or attempt to 

13 intimidate, threaten, or coerce any employee for the 

14 purpose of— 

15 ‘‘(A) interfering with such employee’s 

16 rights under this subsection to request or not 

17 request compensatory time off in lieu of pay18 ment of monetary overtime compensation for 

19 overtime hours; or 

20 ‘‘(B) requiring any employee to use such 

21 compensatory time. 

22 ‘‘(5) TERMINATION OF EMPLOYMENT.—An em23 ployee who has accrued compensatory time off au24 thorized to be provided under paragraph (1) shall, 

25 upon the voluntary or involuntary termination of 


SSpencer on DSK4SPTVN1PROD with BILLS
6 

•S 801 IS

1 employment, be paid for the unused compensatory 

2 time in accordance with paragraph (6). 

3 ‘‘(6) RATE OF COMPENSATION.— 

4 ‘‘(A) GENERAL RULE.—If compensation is 

5 to be paid to an employee for accrued compen6 satory time off, such compensation shall be paid 

7 at a rate of compensation not less than— 

8 ‘‘(i) the regular rate received by such 

9 employee when the compensatory time was 

10 earned; or 

11 ‘‘(ii) the final regular rate received by 

12 such employee, 

13 whichever is higher. 

14 ‘‘(B) CONSIDERATION OF PAYMENT.—Any 

15 payment owed to an employee under this sub16 section for unused compensatory time shall be 

17 considered unpaid overtime compensation. 

18 ‘‘(7) USE OF TIME.—An employee— 

19 ‘‘(A) who has accrued compensatory time 

20 off authorized to be provided under paragraph 

21 (1); and 

22 ‘‘(B) who has requested the use of such 

23 compensatory time, 

24 shall be permitted by the employee’s employer to use 

25 such time within a reasonable period after making 


SSpencer on DSK4SPTVN1PROD with BILLS
7 

•S 801 IS

1 the request if the use of the compensatory time does 

2 not unduly disrupt the operations of the employer. 

3 ‘‘(8) DEFINITIONS.—For purposes of this sub4 section— 

5 ‘‘(A) the term ‘employee’ does not include 

6 an employee of a public agency; and 

7 ‘‘(B) the terms ‘overtime compensation’, 

8 ‘compensatory time’, and ‘compensatory time 

9 off’ shall have the meanings given such terms 

10 by subsection (o)(7).’’. 

11 SEC. 3. REMEDIES. 

12 Section 16 of the Fair Labor Standards Act of 1938 

13 (29 U.S.C. 216) is amended— 

14 (1) in subsection (b), by striking ‘‘(b) Any em15 ployer’’ and inserting ‘‘(b) Except as provided in 

16 subsection (f), any employer’’; and 

17 (2) by adding at the end the following: 

18 ‘‘(f) An employer that violates section 7(s)(4) shall 

19 be liable to the employee affected in the amount of the 

20 rate of compensation (determined in accordance with sec21 tion 7(s)(6)(A)) for each hour of compensatory time ac22 crued by the employee and in an additional equal amount 

23 as liquidated damages reduced by the amount of such rate 

24 of compensation for each hour of compensatory time used 

25 by such employee.’’. 


SSpencer on DSK4SPTVN1PROD with BILLS
8 

•S 801 IS

1 SEC. 4. NOTICE TO EMPLOYEES. 

2 Not later than 30 days after the date of enactment 

3 of this Act, the Secretary of Labor shall revise the mate4 rials the Secretary provides, under regulations published 

5 in section 516.4 of title 29, Code of Federal Regulations, 

6 to employers for purposes of a notice explaining the Fair 

7 Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) to 

8 employees so that such notice reflects the amendments 

9 made to such Act by this Act. 

10 SEC. 5. GAO REPORT. 

11 Beginning 2 years after the date of enactment of this 

12 Act and each of the 3 years thereafter, the Comptroller 

13 General shall submit a report to Congress providing, with 

14 respect to the reporting period immediately prior to each 

15 such report— 

16 (1) data concerning the extent to which employ17 ers provide compensatory time pursuant to section 

18 7(s) of the Fair Labor Standards Act of 1938, as 

19 added by this Act, and the extent to which employ20 ees opt to receive compensatory time; 

21 (2) the number of complaints alleging a viola22 tion of such section filed by any employee with the 

23 Secretary of Labor; 

24 (3) the number of enforcement actions com25 menced by the Secretary or commenced by the SecVerDate Sep 11 2014 03:41 Apr 06, 2017 Jkt 069200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S801.IS S801

SSpencer on DSK4SPTVN1PROD with BILLS
9 

•S 801 IS

1 retary on behalf of any employee for alleged viola2 tions of such section; 

3 (4) the disposition or status of such complaints 

4 and actions described in paragraphs (2) and (3); and 

5 (5) an account of any unpaid wages, damages, 

6 penalties, injunctive relief, or other remedies ob7 tained or sought by the Secretary in connection with 

8 such actions described in paragraph (3). 

9 SEC. 6. SUNSET. 

10 This Act and the amendments made by this Act shall 

11 expire 5 years after the date of enactment of this Act. 

Æ 


SSpencer on DSK4SPTVN1PROD with BILLS