I

104TH CONGRESS

1ST SESSION H. R. 2723

To amend the Fair Labor Standards Act of 1938 to permit employers to

provide for flexible and compressed schedules, to permit employers to

give priority treatment in hiring decisions to former employees after

periods of family care responsibility, to maintain the minimum wage

and overtime exemption for employees subject to certain leave policies,

and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

DECEMBER 6, 1995

Mr. DOOLITTLE introduced the following bill; which was referred to the

Committee on Economic and Educational Opportunities

A BILL

To amend the Fair Labor Standards Act of 1938 to permit

employers to provide for flexible and compressed schedules, to permit employers to give priority treatment in

hiring decisions to former employees after periods of

family care responsibility, to maintain the minimum wage

and overtime exemption for employees subject to certain

leave policies, 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,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Work and Family Inte3 gration Act’’.

4 SEC. 2. FLEXIBLE AND COMPRESSED SCHEDULES AND RE5 HIRING PREFERENCE.

6 The Fair Labor Standards Act of 1938 is amended

7 by inserting after section 13 (29 U.S.C. 213) the following

8 new sections:

9 ‘‘SEC. 13A. FLEXIBLE AND COMPRESSED SCHEDULES.

10 ‘‘(a) PURPOSE.—The purpose of this section is to bal11 ance the demands of workplaces with the needs of families

12 in the United States.

13 ‘‘(b) COMPRESSED SCHEDULES.—

14 ‘‘(1) IN GENERAL.—Notwithstanding any other

15 provision of law, an employer may establish pro16 grams that allow the use of a compressed schedule

17 that consists of—

18 ‘‘(A) in the case of a schedule of a full19 time employee, a 160-hour basic work require20 ment, over a 4-week period, that is scheduled

21 for less than 20 workdays; and

22 ‘‘(B) in the case of a schedule of a part23 time employee, a basic work requirement of less

24 than 160 hours, over a 4-week period, that is

25 scheduled for less than 20 workdays.
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1 ‘‘(2) OVERTIME COMPENSATION PROVISIONS.—

2 Section 7 and any other provision of law that relates

3 to premium pay for overtime work shall not apply to

4 the hours that constitute such a compressed sched5 ule.

6 ‘‘(3) COMPUTATION OF OVERTIME.—In the case

7 of any full-time employee, hours worked in excess of

8 such a compressed schedule shall be overtime hours

9 and shall be paid for as provided by the applicable

10 provisions referred to in paragraph (2). In the case

11 of any part-time employee on such a compressed

12 schedule, overtime pay shall begin to be paid after

13 the same number of hours of work after which a

14 full-time employee on a similar schedule would begin

15 to receive overtime pay.

16 ‘‘(c) FLEXIBLE SCHEDULES.—

17 ‘‘(1) IN GENERAL.—Notwithstanding any other

18 provision of law, an employer may establish pro19 grams that allow the use of flexible schedules that

20 include—

21 ‘‘(A) designated hours and days during

22 which an employee on such a schedule must be

23 present for work; and

24 ‘‘(B) designated hours during which an

25 employee on such a schedule may elect the time
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1 of the arrival of such employee at and depar2 ture of such employee from work, solely for

3 such purpose or, if and to the extent permitted,

4 for the purpose of accumulating credit hours to

5 reduce the length of the workweek or another

6 workday.

7 ‘‘(2) OVERTIME COMPENSATION PROVISIONS.—

8 For purposes of determining compensation for over9 time hours in the case of an employee participating

10 in a program under this subsection—

11 ‘‘(A) the employer may, on request of the

12 employee, grant the employee compensatory

13 time off in lieu of payment for such overtime

14 hours, whether or not irregular or occasional in

15 nature and notwithstanding section 7 or any

16 other provision of law; or

17 ‘‘(B) the employee shall be compensated

18 for such overtime hours in accordance with such

19 provisions, as applicable.

20 ‘‘(3) COMPUTATION OF OVERTIME.—Notwith21 standing the provisions of law referred to in para22 graph (2)(A), an employee shall not be entitled to be

23 compensated for credit hours worked except to the

24 extent such employee is allowed to have such hours
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1 taken into account with respect to the basic work re2 quirement of the employee.

3 ‘‘(4) ACCUMULATION AND COMPENSATION.—

4 ‘‘(A) ACCUMULATION.—A full-time em5 ployee on a flexible schedule under this sub6 section can accumulate not more than 48 credit

7 hours, and a part-time employee can accumulate not more than 1 8 ⁄4 of the hours in the basic

9 work requirement, over a 4-week period, of the

10 employee, for carryover from a 4-week period to

11 a succeeding 4-week period for credit to the

12 basic work requirement for such period.

13 ‘‘(B) COMPENSATION.—Any employee who

14 is on a flexible schedule program under this

15 subsection and who is no longer subject to such

16 a program shall be paid at the then current

17 rate of basic pay of the employee for—

18 ‘‘(i) in the case of a full-time em19 ployee, not more than 48 credit hours ac20 cumulated by such employee; or

21 ‘‘(ii) in the case of a part-time em22 ployee, the number of credit hours (not in

excess of 1 23 ⁄4 of the hours in the basic work

24 requirement, over a 4-week period, of the

25 employee) accumulated by such employee.
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1 ‘‘(d) PARTICIPATION.—

2 ‘‘(1) IN GENERAL.—Except as provided in para3 graph (3), no employee may be required to partici4 pate in a program described in this section.

5 ‘‘(2) PROHIBITION OF COERCION.—

6 ‘‘(A) An employer may not directly or indi7 rectly intimidate, threaten, or coerce, or at8 tempt to intimidate, threaten, or coerce, any

9 employee for the purpose of interfering with

10 such employee’s rights under this section to

11 elect a time of arrival or departure, to elect or

12 not to elect to work a compressed work sched13 ule, to work or not to work credit hours, or to

14 request or not to request compensatory time off

15 in lieu of payment for overtime hours.

16 ‘‘(B) For the purpose of subsection (A),

17 the term ‘intimidate, threaten, or coerce’ in18 cludes, but is not limited to, promising to con19 fer or conferring any benefit (such as appoint20 ment, promotion, or compensation), or effecting

21 or threatening to effect any reprisal (such as

22 deprivation of appointment, promotion, or com23 pensation).’’

24 ‘‘(3) COLLECTIVE BARGAINING AGREEMENT.—

25 In a case in which a valid collective bargaining
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1 agreement exists, an employee may only be required

2 to participate in such a program in accordance with

3 the agreement.

4 ‘‘(e) APPLICATION OF PROGRAMS IN THE CASE OF

5 COLLECTIVE BARGAINING AGREEMENTS.—

6 ‘‘(1) APPLICABLE REQUIREMENTS.—In the case

7 of employees in a unit represented by an exclusive

8 representative, any flexible or compressed schedule

9 described in subsection (b) or (c), respectively, and

10 the establishment and termination of any such

11 schedule, shall be subject to the provisions of this

12 section and the terms of a collective bargaining

13 agreement between the employer and the exclusive

14 representative.

15 ‘‘(2) INCLUSION OF EMPLOYEES.—Employees

16 within a unit represented by an exclusive representa17 tive shall not be included within any program under

18 this section except to the extent expressly provided

19 under a collective bargaining agreement between the

20 employer and the exclusive representative.

21 ‘‘(3) COLLECTIVE BARGAINING AGREEMENTS.—

22 Nothing in this section shall be construed to dimin23 ish the obligation of an employer to comply with any

24 collective bargaining agreement or any employment

25 benefits program or plan that provides lesser or
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1 greater rights to employees than the benefits estab2 lished under this section.

3 ‘‘(f) DEFINITIONS.—

4 ‘‘(1) BASIC WORK REQUIREMENT.—The term

5 ‘basic work requirement’ means the number of

6 hours, excluding overtime hours, that an employee is

7 required to work or is required to account for by

8 leave or otherwise.

9 ‘‘(2) COLLECTIVE BARGAINING.—The term ‘col10 lective bargaining’ means the performance of the

11 mutual obligation of the representative of an em12 ployer and the exclusive representative of employees

13 in an appropriate unit to meet at reasonable times

14 and to consult and bargain in a good-faith effort to

15 reach agreement with respect to the conditions of

16 employment affecting such employees and to exe17 cute, if requested by either party, a written docu18 ment incorporating any collective bargaining agree19 ment reached, but the obligation referred to in this

20 paragraph does not compel either party to agree to

21 a proposal or to make a concession.

22 ‘‘(3) COLLECTIVE BARGAINING AGREEMENT.—

23 The term ‘collective bargaining agreement’ means an

24 agreement entered into as a result of collective bar25 gaining.
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1 ‘‘(4) CREDIT HOURS.—The term ‘credit hours’

2 means any hours, within a flexible schedule estab3 lished under subsection (c), that are in excess of the

4 basic work requirement of an employee and that the

5 employee elects to work so as to vary the length of

6 a workweek or a workday.

7 ‘‘(5) EMPLOYEE.—The term ‘employee’ means

8 an employee, as defined in section 3, except that the

9 term shall not include an employee, as defined in

10 section 6121(2) of title 5, United States Code.

11 ‘‘(6) EMPLOYER.—The term ‘employer’ means

12 an employer, as defined in section 3, except that the

13 term shall not include any person acting in relation

14 to an employee, as defined in section 6121(2) of title

15 5, United States Code.

16 ‘‘(7) EXCLUSIVE REPRESENTATIVE.—The term

17 ‘exclusive representative’ means any labor organiza18 tion that—

19 ‘‘(A) is certified as the exclusive represent20 ative of employees in an appropriate unit pursu21 ant to Federal law; or

22 ‘‘(B) was recognized by an employer imme23 diately before the date of enactment of this sec24 tion as the exclusive representative of employees

25 in an appropriate unit—
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1 ‘‘(i) on the basis of an election; or

2 ‘‘(ii) on any basis other than an elec3 tion;

4 and continues to be so recognized.

5 ‘‘(8) OVERTIME HOURS.—The term ‘overtime

6 hours’—

7 ‘‘(A) when used with respect to flexible

8 schedule programs under subsection (c), means

9 all hours in excess of 8 hours in a day or 40

10 hours in a week that are officially ordered in

11 advance, but does not include credit hours; and

12 ‘‘(B) when used with respect to compressed

13 schedule programs under subsection (b), means

14 any hours in excess of the specified hours that

15 constitute the compressed schedule.

16 ‘‘SEC. 13B. PRIORITY REHIRING.

17 ‘‘(a) PRIORITY.—

18 ‘‘(1) IN GENERAL.—Notwithstanding the Civil

19 Rights Act of 1964 (42 U.S.C. 2000e et seq.), the

20 Age Discrimination in Employment Act of 1967 (29

21 U.S.C. 621 et seq.), or any other provision of law,

22 if an employee of an employer takes a period of not

23 more than 5 years to care for a son, daughter or

24 parent of the employee, the employer may give prior-
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1 ity treatment to the former employee in a hiring de2 cision after the family care period.

3 ‘‘(2) NO BASIS FOR VIOLATION OR ACTION.—

4 Notwithstanding any other provision of law, priority

5 treatment to a former employee as described in

6 paragraph (1)(B) that is provided by an employer in

7 a manner consistent with this section shall not con8 stitute a violation by the employer of, or serve as a

9 basis for an action against an employer by another

10 individual under, the Civil Rights Act of 1964, the

11 Age Discrimination in Employment Act of 1967, or

12 any other provision of law.

13 ‘‘(b) RELATIONSHIP TO LEAVE.—Nothing in this sec14 tion shall be construed to affect any leave benefit available

15 under other law.

16 ‘‘(c) EFFECT ON BENEFITS.—Nothing in this section

17 shall be construed to entitle any rehired employee to—

18 ‘‘(1) the accrual of any seniority or employment

19 benefits during any family care period; or

20 ‘‘(2) any right, benefit, or position of employ21 ment other than any right, benefit, or position to

22 which the employee was entitled prior to taking the

23 family care period.

24 ‘‘(d) PERIODIC REPORTS.—Nothing in this section

25 shall be construed to prohibit an employer from requiring
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1 a former employee to report periodically to the employer

2 on the status and intention of the former employee to

3 apply for reemployment with the employer.

4 ‘‘(e) COLLECTIVE BARGAINING AGREEMENTS.—

5 Nothing in this section shall be construed to diminish the

6 obligation of an employer to comply with any collective

7 bargaining agreement or any employment benefits pro8 gram or plan that provides lesser or greater rights to em9 ployees than the benefits established under this section.

10 ‘‘(f) DEFINITIONS.—As used in this section:

11 ‘‘(1) EMPLOYMENT BENEFITS.—The term ‘em12 ployment benefits’ means all benefits provided or

13 made available to employees by an employer, includ14 ing group life insurance, health insurance, disability

15 insurance, sick leave, annual leave, educational bene16 fits, and pensions, regardless of whether such bene17 fits are provided by a practice or written policy of

18 an employer or through an ‘employee benefit plan’,

19 as defined in section 3(3) of the Employee Retire20 ment Income Security Act of 1974 (29 U.S.C.

21 1002(3)).

22 ‘‘(2) FAMILY CARE PERIOD.—The term ‘family

23 care period’ means a period of not more than 5

24 years during which an individual who was an em-
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1 ployee cares for a son, daughter, or parent of the

2 employee, as described in subsection (a)(1).

3 ‘‘(3) FORMER EMPLOYEE.—The term ‘former

4 employee’ means an individual who—

5 ‘‘(A) was an employee; and

6 ‘‘(B) is taking a family care period.

7 ‘‘(4) PARENT.—The term ‘parent’ means the

8 biological parent of an employee or an individual

9 who stood in loco parentis to an employee when the

10 employee was under 18 years of age.

11 ‘‘(5) REHIRED EMPLOYEE.—The term ‘rehired

12 employee’ means an individual who—

13 ‘‘(A) was the employee of an employer; and

14 ‘‘(B) has been rehired by the employer

15 after taking a family care period.

16 ‘‘(6) SON OR DAUGHTER.—The term ‘son or

17 daughter’ means a biological, adopted, or foster

18 child, a stepchild, a legal ward, or a child of a per19 son standing in loco parentis, who is—

20 ‘‘(A) under 6 years of age; or

21 ‘‘(B) 6 years of age or older and incapable

22 of self-care because of a mental or physical dis23 ability.

24 ‘‘(g) EFFECTIVE DATES.—This section shall take ef25 fect 6 months after the date of enactment of this section.’’.
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1 SEC. 3. FAIR LABOR STANDARDS EXEMPTIONS.

2 (a) EMPLOYEES SUBJECT TO CERTAIN LEAVE POLI3 CIES.—Section 13(a)(1) of the Fair Labor Standards Act

4 of 1938 (29 U.S.C. 213(a)(1)) is amended by inserting

5 before the semicolon at the end thereof the following: ‘‘,

6 regardless of whether or not such executive, administra7 tive, professional, or outside sales employee—

8 ‘‘(A) is subject to reductions—

9 ‘‘(i) in accrued leave of any type; or

10 ‘‘(ii) in pay because of an absence of

11 the employee and because—

12 ‘‘(I) the accrued leave of the em13 ployee was exhausted, or

14 ‘‘(II) the employee chose to be

15 absent without charging the accrued

16 leave of the employee,

17 regardless of the length of the leave or absence

18 for which the reductions are to be made, or

19 ‘‘(B) is subject to employer management

20 policies or practices with respect to—

21 ‘‘(i) the recording of hours worked,

22 ‘‘(ii) the establishment of regular

23 working hours,

24 ‘‘(iii) compensation of any type (irre25 spective of the amount or method of deter-
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1 mination) that is above the salaried level

2 for a work week or work period, and

3 ‘‘(iv) suspension from work without

4 pay for disciplinary purposes’’.

5 (b) EFFECTIVE DATE.—The amendment made by

6 subsection (a) shall apply to an employee (described in

7 such amendment) before, on, and after the date of enact8 ment of this Act unless—

9 (1) an action was brought in a court involving

10 the application of section 13(a)(1) of the Fair Labor

11 Standards Act of 1938 (29 U.S.C. 213(a)(1)) to the

12 employee; and

13 (2) a final judgment has been entered in the ac14 tion on or before the date of enactment of this Act.

15 SEC. 4. CONFORMING AMENDMENT TO TITLE 5, UNITED

16 STATES CODE.

17 Section 6121(5) of title 5, United States Code, is

18 amended to read as follows:

19 ‘‘(5) ‘compressed schedule’ means—

20 ‘‘(A) in the case of a schedule of a full21 time employee, a 160-hour basic work require22 ment, over a 4-week period, that is scheduled

23 for less than 20 workdays, and

24 ‘‘(B) in the case of a schedule of a part25 time employee, a basic work requirement, over
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1 a 4-week period, of less than 160 hours, that is

2 scheduled for less than 20 workdays;’’.

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