Calendar No. 562

104TH CONGRESS

2D SESSION H. R. 2391

AN ACT

To amend the Fair Labor Standards Act of 1938

to provide compensatory time for all employees.

AUGUST 1, 1996

Read the second time and placed on the calendar
II

Calendar No. 562

104TH CONGRESS

2D SESSION H. R. 2391

IN THE SENATE OF THE UNITED STATES

JULY 31, 1996

Received and read the first time

AUGUST 1, 1996

Read the second time and placed on the calendar

AN ACT

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,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Working Families

3 Flexibility Act of 1996’’.

4 SEC. 2. COMPENSATORY TIME.

5 Subsection (o) of section 7 of the Fair Labor Stand6 ards Act of 1938 (29 U.S.C. 207) is amended—

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

8 inserting the following:

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

10 this subsection and in lieu of monetary overtime com11 pensation, compensatory time off at a rate not less than

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

13 which overtime compensation is required by this section.

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

15 under paragraph (1) only—

16 ‘‘(A) pursuant to—

17 ‘‘(i) applicable provisions of a collective

18 bargaining agreement, memorandum of under19 standing, or any other agreement between the

20 employer and representatives of such employees,

21 or

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

23 represented by a collective bargaining agent or

24 other representative designated by the em25 ployee, an agreement or understanding arrived

26 at between the employer and employee before
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1 the performance of the work if such agreement

2 or understanding was entered into knowingly

3 and voluntarily by such employee;

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

5 employee of a public agency, if such employee has

6 affirmed, in a written or otherwise verifiable state7 ment that is made, kept, and preserved in accord8 ance with section 11(c), that the employee has cho9 sen to receive compensatory time in lieu of overtime

10 compensation; and

11 ‘‘(C) if the employee has not accrued compen12 satory time in excess of the limit applicable to the

13 employee prescribed by paragraph (4) or (5).

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

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

16 before April 15, 1986, the regular practice in effect on

17 such date with respect to compensatory time off for such

18 employees in lieu of the receipt of overtime compensation,

19 shall constitute an agreement or understanding described

20 in such subparagraph. Except as provided in the preceding

21 sentence, the provision of compensatory time off to em22 ployees of a public agency for hours worked after April

23 14, 1986, shall be in accordance with this subsection. An

24 employer may provide compensatory time under para25 graph (1) to an employee who is not an employee of a
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1 public agency only if such agreement or understanding

2 was not a condition of employment.

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

4 which provides compensatory time under paragraph (1) to

5 employees shall not directly or indirectly intimidate,

6 threaten, or coerce or attempt to intimidate, threaten, or

7 coerce any employee for the purpose of—

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

9 under this subsection to request or not request com10 pensatory time off in lieu of payment of overtime

11 compensation for overtime hours; or

12 ‘‘(B) requiring any employee to use such com13 pensatory time.

14 ‘‘(4)(A) An employee, who is not an employee of a

15 public agency, may accrue not more than 240 hours of

16 compensatory time.

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

18 year, the employee’s employer shall provide monetary com19 pensation for any compensatory time off accrued during

20 the preceding calendar year which was not used prior to

21 December 31 of the preceding year at the rate prescribed

22 by paragraph (6). An employer may designate and com23 municate to the employer’s employees a 12-month period

24 other than the calendar year, in which case such com-
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1 pensation shall be provided not later than 31 days after

2 the end of such 12-month period.

3 ‘‘(ii) The employer may provide monetary compensa4 tion for an employee’s unused compensatory time in excess

5 of 80 hours at any time after giving the employee at least

6 30 days notice. Such compensation shall be provided at

7 the rate prescribed by paragraph (6).

8 ‘‘(iii) An employer which has adopted a policy offer9 ing compensatory time to employees may discontinue such

10 policy upon giving employees 30 days notice. An employee

11 who is not an employee of a public agency may withdraw

12 an agreement or understanding described in paragraph

13 (2)(A)(ii) at any time.

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

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

16 compensatory time accrued which has not yet been used.

17 Within 30 days of receiving the written request, the em18 ployer shall provide the employee the monetary compensa19 tion due in accordance with paragraph (6).

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

21 for which compensatory time may be provided included

22 work in a public safety activity, an emergency response

23 activity, or a seasonal activity, the employee engaged in

24 such work may accrue not more than 480 hours of com25 pensatory time for hours worked after April 15, 1986. If
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1 such work was any other work, the employee engaged in

2 such work may accrue not more than 240 hours of com3 pensatory time for hours worked after April 15, 1986. Any

4 such employee who, after April 15, 1986, has accrued 480

5 or 240 hours, as the case may be, of compensatory time

6 off shall, for additional overtime hours of work, be paid

7 overtime compensation.

8 ‘‘(B) If compensation is paid to an employee de9 scribed in subparagraph (A) for accrued compensatory

10 time off, such compensation shall be paid at the regular

11 rate earned by the employee at the time the employee re12 ceives such payment.

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

14 public agency who has accrued compensatory time off au15 thorized to be provided under paragraph (1) shall, upon

16 the voluntary or involuntary termination of employment,

17 be paid for the unused compensatory time at a rate of

18 compensation not less than—

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

20 employee during the period during which the com21 pensatory time was accrued, or

22 ‘‘(ii) the final regular rate received by such em23 ployee,

24 whichever is higher.
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1 ‘‘(B) An employee of an employer which is a public

2 agency who has accrued compensatory time off authorized

3 to be provided under paragraph (1) shall, upon the vol4 untary or involuntary termination of employment, be paid

5 for the unused compensatory time at a rate of compensa6 tion not less than—

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

8 employee during the last 3 years of the employee’s

9 employment, or

10 ‘‘(ii) the final regular rate received by such em11 ployee,

12 whichever is higher.

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

14 subsection for unused compensatory time shall be consid15 ered unpaid overtime compensation.

16 ‘‘(7) An employee—

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

18 authorized to be provided under paragraph (1), and

19 ‘‘(B) who has requested the use of such com20 pensatory time,

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

22 time within a reasonable period after making the request

23 if the use of the compensatory time does not unduly dis24 rupt the operations of the employer.’’; and
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1 (2) by redesignating paragraphs (6) and (7) as

2 paragraphs (8) and (9), respectively.

3 SEC. 3. REMEDIES.

4 Section 16 of the Fair Labor Standards Act of 1938

5 (29 U.S.C. 216) is amended—

6 (1) in subsection (b), by striking ‘‘(b) Any em7 ployer’’ and inserting ‘‘(b) Except as provided in

8 subsection (f), any employer’’; and

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

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

11 which violates section 7(o)(3) shall be liable to the em12 ployee affected in the amount of the rate of compensation

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

14 each hour of compensatory time accrued by the employee

15 and in an additional equal amount as liquidated damages

16 reduced by the amount of such rate of compensation for

17 each hour of compensatory time used by such employee.’’.

18 SEC. 4. NOTICE TO EMPLOYEES.

19 Not later than 30 days after the date of the enact20 ment of this Act, the Secretary of Labor shall revise the

21 materials the Secretary provides, under regulations pub22 lished at 29 C.F.R. 516.4, to employers for purposes of

23 a notice explaining the Fair Labor Standards Act of 1938
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1 to employees so that such notice reflects the amendments

2 made to such Act by this Act.

Passed the House of Representatives July 30, 1996.

Attest: ROBIN H. CARLE,

Clerk.