Union Calendar No. 343

104TH CONGRESS

2D SESSION H. R. 2391

[Report No. 104–670]

A BILL

To amend the Fair Labor Standards Act of 1938

to provide compensatory time for all employees.

JULY 11, 1996

Reported with an amendment, committed to the Commitordered to be printed tee of the Whole House on the State of the Union, and
IB

Union Calendar No. 343

104TH CONGRESS

2D SESSION H. R. 2391

[Report No. 104–670]

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

time for all employees.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 21, 1995

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

Committee on Economic and Educational Opportunities

JULY 11, 1996

Additional sponsors: Mr. GOODLING, Mr. FAWELL, Mr. KNOLLENBERG, Mr.

NORWOOD, Mr. GREENWOOD, Mr. BURR, Mr. GUNDERSON, Mr. HERGER,

Mr. TAYLOR of North Carolina, Mr. BLILEY, Mr. ROHRABACHER, Mr.

CUNNINGHAM, Mr. BARRETT of Nebraska, Mr. MCKEON, Mr. SOUDER,

Mr. PETRI, Mr. MCINTOSH, Mr. GRAHAM, Mr. HUTCHINSON, Mr. INGLIS

of South Carolina, Mr. KIM, Ms. PRYCE, Mr. SOLOMON, Mr. SHADEGG,

Mr. STENHOLM, Mr. SHAYS, Mrs. MYRICK, Mr. SAM JOHNSON of Texas,

Mr. CALVERT, Mr. FIELDS of Texas, Mr. HAYWORTH, Mr. MILLER of

Florida, Mr. FUNDERBURK, Mr. WELDON of Florida, Ms. GREENE of

Utah, Mr. COBURN, Mrs. JOHNSON of Connecticut, Mrs. FOWLER, Ms.

DUNN of Washington, Ms. MOLINARI, Mr. PAXON, Mr. DORNAN, Mr.

HORN, Mr. SALMON, Mr. MANZULLO, and Mr. EHLERS

JULY 11, 1996

Reported with an amendment, committed to the Committee of the Whole

House on the State of the Union, and ordered to be printed

[Strike out all after the enacting clause and insert the part printed in italic]

[For text of introduced bill, see copy of bill as introduced on September 21, 1995]
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A BILL

To amend the Fair Labor Standards Act of 1938 to provide

compensatory time for all employees.

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 Flexi5 bility Act of 1996’’.

6 SEC. 2. COMPENSATORY TIME.

7 Subsection (o) of section 7 of the Fair Labor Standards

8 Act of 1938 (29 U.S.C. 207) is amended—

9 (1) by striking paragraphs (1) through (5) and

10 inserting the following:

11 ‘‘(1) An employee may receive, in accordance with this

12 subsection and in lieu of monetary overtime compensation,

13 compensatory time off at a rate not less than one and one14 half hours for each hour of employment for which overtime

15 compensation is required by this section.

16 ‘‘(2) An employer may provide compensatory time

17 under paragraph (1) only—

18 ‘‘(A) pursuant to—

19 ‘‘(i) applicable provisions of a collective

20 bargaining agreement, memorandum of under21 standing, or any other agreement between the
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1 employer and representatives of such employees,

2 or

3 ‘‘(ii) in the case of employees who are not

4 represented by a collective bargaining agent or

5 other representative designated by the employee,

6 an agreement or understanding arrived at be7 tween the employer and employee before the per8 formance of the work if such agreement or under9 standing was entered into knowingly and volun10 tarily by such employee;

11 ‘‘(B) in the case of an employee who is not an

12 employee of a public agency, if such employee has af13 firmed, in a written or otherwise verifiable statement

14 that is made, kept, and preserved in accordance with

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

16 compensatory time in lieu of overtime compensation;

17 and

18 ‘‘(C) if the employee has not accrued compen19 satory time in excess of the limit applicable to the

20 employee prescribed by paragraph (5).

21 In the case of employees described in subparagraph (A)(ii)

22 who are employees of a public agency and who were hired

23 before April 15, 1986, the regular practice in effect on such

24 date with respect to compensatory time off for such employ25 ees in lieu of the receipt of overtime compensation, shall
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1 constitute an agreement or understanding described in such

2 subparagraph. Except as provided in the preceding sen3 tence, the provision of compensatory time off to employees

4 of a public agency for hours worked after April 14, 1986,

5 shall be in accordance with this subsection. An employer

6 may provide compensatory time under paragraph (1) to an

7 employee who is not an employee of a public agency only

8 if such agreement or understanding was not a condition

9 of employment.

10 ‘‘(3) An employer which is not a public agency and

11 which provides compensatory time under paragraph (1) to

12 employees shall not directly or indirectly intimidate,

13 threaten, or coerce or attempt to intimidate, threaten, or

14 coerce any employee for the purpose of—

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

16 under this subsection to request or not request com17 pensatory time off in lieu of payment of overtime

18 compensation for overtime hours; or

19 ‘‘(B) requiring any employee to use such com20 pensatory time.

21 ‘‘(4)(A) An employee, who is not an employee of a pub22 lic agency, may accrue not more than 240 hours of compen23 satory time.

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

25 year, the employee’s employer shall provide monetary com-
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1 pensation for any compensatory time off accrued during the

2 preceding calendar year which was not used prior to De3 cember 31 of the preceding year at the rate prescribed by

4 paragraph (6). An employer may designate and commu5 nicate to the employer’s employees a 12-month period other

6 than the calendar year, in which case such compensation

7 shall be provided not later than 31 days after the end of

8 such 12-month period.

9 ‘‘(ii) The employer may provide monetary compensa10 tion for an employee’s unused compensatory time at any

11 time. Such compensation shall be provided at the rate pre12 scribed by paragraph (6).

13 ‘‘(C) An employee may also request in writing that

14 monetary compensation be provided, at any time, for all

15 compensatory time accrued which has not yet been used.

16 Within 30 days of receiving the written request, the em17 ployer shall provide the employee the monetary compensa18 tion due in accordance with paragraph (6).

19 ‘‘(5)(A) If the work of an employee of a public agency

20 for which compensatory time may be provided included

21 work in a public safety activity, an emergency response ac22 tivity, or a seasonal activity, the employee engaged in such

23 work may accrue not more than 480 hours of compensatory

24 time for hours worked after April 15, 1986. If such work

25 was any other work, the employee engaged in such work
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1 may accrue not more than 240 hours of compensatory time

2 for hours worked after April 15, 1986. Any such employee

3 who, after April 15, 1986, has accrued 480 or 240 hours,

4 as the case may be, of compensatory time off shall, for addi5 tional overtime hours of work, be paid overtime compensa6 tion.

7 ‘‘(B) If compensation is paid to an employee described

8 in subparagraph (A) for accrued compensatory time off,

9 such compensation shall be paid at the regular rate earned

10 by the employee at the time the employee receives such pay11 ment.

12 ‘‘(6)(A) An employee of an employer which is not a

13 public agency who has accrued compensatory time off au14 thorized to be provided under paragraph (1) shall, upon

15 the voluntary or involuntary termination of employment,

16 be paid for the unused compensatory time at a rate of com17 pensation not less than—

18 ‘‘(i) the average regular rate received by such

19 employee during the period during which the compen20 satory time was accrued, or

21 ‘‘(ii) the final regular rate received by such em22 ployee,

23 whichever is higher.

24 ‘‘(B) An employee of an employer which is a public

25 agency who has accrued compensatory time off authorized
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1 to be provided under paragraph (1) shall, upon the vol2 untary or involuntary termination of employment, be paid

3 for the unused compensatory time at a rate of compensation

4 not less than—

5 ‘‘(i) the average regular rate received by such

6 employee during the last 3 years of the employee’s em7 ployment, or

8 ‘‘(ii) the final regular rate received by such em9 ployee,

10 whichever is higher.

11 ‘‘(C) Any payment owed to an employee under this

12 subsection for unused compensatory time shall, for purposes

13 of section 16(b), be considered unpaid overtime compensa14 tion.

15 ‘‘(7) An employee—

16 ‘‘(A) who has accrued compensatory time off au17 thorized to be provided under paragraph (1), and

18 ‘‘(B) who has requested the use of such compen19 satory time,

20 shall be permitted by the employee’s employer to use such

21 time within a reasonable period after making the request

22 if the use of the compensatory time does not unduly disrupt

23 the operations of the employer.’’; and

24 (2) by redesignating paragraphs (6) and (7) as

25 paragraphs (8) and (9), respectively.
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1 SEC. 3. REMEDIES.

2 Section 16 of the Fair Labor Standards Act of 1938

3 (29 U.S.C. 216) is amended—

4 (1) in subsection (b), by striking ‘‘(b) Any em5 ployer’’ and inserting ‘‘(b) Except as provided in sub6 section (f), any employer’’; and

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

8 ‘‘(f) An employer which is not a public agency and

9 which willfully violates section 7(o)(3) shall be liable to the

10 employee affected in the amount of the rate of compensation

11 (determined in accordance with section 7(o)(6)(A)) for each

12 hour of compensatory time accrued by the employee and

13 in an additional equal amount as liquidated damages re14 duced by the amount of such rate of compensation for each

15 hour of compensatory time used by such employee.’’.