29–006 

113TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 113–49 

WORKING FAMILIES FLEXIBILITY ACT OF 2013 

APRIL 30, 2013.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. KLINE, from the Committee on Education and the Workforce, 

submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany H.R. 1406] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Education and the Workforce, to whom was 

referred the bill (H.R. 1406) to amend the Fair Labor Standards 

Act of 1938 to provide compensatory time for employees in the private sector, having considered the same, report favorably thereon 

with an amendment and recommend that the bill as amended do 

pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Working Families Flexibility Act of 2013’’. 

SEC. 2. COMPENSATORY TIME. 

Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) is amended by 

adding at the end the following: 

‘‘(s) COMPENSATORY TIME OFF FOR PRIVATE EMPLOYEES.— 

‘‘(1) GENERAL RULE.—An employee may receive, in accordance with this subsection and in lieu of monetary overtime compensation, compensatory time off 

at a rate not less than one and one-half hours for each hour of employment for 

which overtime compensation is required by this section. 

‘‘(2) CONDITIONS.—An employer may provide compensatory time to employees 

under paragraph (1)(A) only if such time is provided in accordance with— 

‘‘(A) applicable provisions of a collective bargaining agreement between 

the employer and the labor organization that has been certified or recognized as the representative of the employees under applicable law; or 

‘‘(B) in the case of employees who are not represented by a labor organization that has been certified or recognized as the representative of such 


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employees under applicable law, an agreement arrived at between the employer and employee before the performance of the work and affirmed by 

a written or otherwise verifiable record maintained in accordance with section 11(c)— 

‘‘(i) in which the employer has offered and the employee has chosen 

to receive compensatory time in lieu of monetary overtime compensation; and 

‘‘(ii) entered into knowingly and voluntarily by such employees and 

not as a condition of employment. 

No employee may receive or agree to receive compensatory time off under this 

subsection unless the employee has worked at least 1,000 hours for the employee’s employer during a period of continuous employment with the employer in 

the 12-month period before the date of agreement or receipt of compensatory 

time off. 

‘‘(3) HOUR LIMIT.— ‘‘(A) MAXIMUM HOURS.—An employee may accrue not more than 160 

hours of compensatory time. 

‘‘(B) COMPENSATION DATE.—Not later than January 31 of each calendar 

year, the employee’s employer shall provide monetary compensation for any 

unused compensatory time off accrued during the preceding calendar year 

that was not used prior to December 31 of the preceding year at the rate 

prescribed by paragraph (6). An employer may designate and communicate 

to the employer’s employees a 12-month period other than the calendar 

year, in which case such compensation shall be provided not later than 31 

days after the end of such 12-month period. 

‘‘(C) EXCESS OF 80 HOURS.—The employer may provide monetary compensation for an employee’s unused compensatory time in excess of 80 

hours at any time after giving the employee at least 30 days notice. Such 

compensation shall be provided at the rate prescribed by paragraph (6). 

‘‘(D) POLICY.—Except where a collective bargaining agreement provides 

otherwise, an employer that has adopted a policy offering compensatory 

time to employees may discontinue such policy upon giving employees 30 

days notice. 

‘‘(E) WRITTEN REQUEST.—An employee may withdraw an agreement described in paragraph (2)(B) at any time. An employee may also request in 

writing that monetary compensation be provided, at any time, for all compensatory time accrued that has not yet been used. Within 30 days of receiving the written request, the employer shall provide the employee the 

monetary compensation due in accordance with paragraph (6). 

‘‘(4) PRIVATE EMPLOYER ACTIONS.—An employer that provides compensatory 

time under paragraph (1) to employees shall not directly or indirectly intimidate, threaten, or coerce or attempt to intimidate, threaten, or coerce any employee for the purpose of— 

‘‘(A) interfering with such employee’s rights under this subsection to request or not request compensatory time off in lieu of payment of monetary 

overtime compensation for overtime hours; or 

‘‘(B) requiring any employee to use such compensatory time. 

‘‘(5) TERMINATION OF EMPLOYMENT.—An employee who has accrued compensatory time off authorized to be provided under paragraph (1) shall, upon the 

voluntary or involuntary termination of employment, be paid for the unused 

compensatory time in accordance with paragraph (6). 

‘‘(6) RATE OF COMPENSATION.— 

‘‘(A) GENERAL RULE.—If compensation is to be paid to an employee for accrued compensatory time off, such compensation shall be paid at a rate of 

compensation not less than— 

‘‘(i) the regular rate received by such employee when the compensatory time was earned; or 

‘‘(ii) the final regular rate received by such employee, 

whichever is higher. 

‘‘(B) CONSIDERATION OF PAYMENT.—Any payment owed to an employee 

under this subsection for unused compensatory time shall be considered unpaid overtime compensation. 

‘‘(7) USE OF TIME.—An employee— 

‘‘(A) who has accrued compensatory time off authorized to be provided 

under paragraph (1); and 

‘‘(B) who has requested the use of such compensatory time, 

shall be permitted by the employee’s employer to use such time within a reasonable period after making the request if the use of the compensatory time does 

not unduly disrupt the operations of the employer. 


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‘‘(8) DEFINITIONS.—For purposes of this subsection— 

‘‘(A) the term ‘employee’ does not include an employee of a public agency; 

and 

‘‘(B) the terms ‘overtime compensation’ and ‘compensatory time’ shall 

have the meanings given such terms by subsection (o)(7).’’. 

SEC. 3. REMEDIES. 

Section 16 of the Fair Labor Standards Act of 1938 (29 U.S.C. 216) is amended— 

(1) in subsection (b), by striking ‘‘(b) Any employer’’ and inserting ‘‘(b) Except 

as provided in subsection (f), any employer’’; and 

(2) by adding at the end the following: 

‘‘(f) An employer that violates section 7(s)(4) shall be liable to the employee affected in the amount of the rate of compensation (determined in accordance with 

section 7(s)(6)(A)) for each hour of compensatory time accrued by the employee and 

in an additional equal amount as liquidated damages reduced by the amount of such 

rate of compensation for each hour of compensatory time used by such employee.’’. 

SEC. 4. NOTICE TO EMPLOYEES. 

Not later than 30 days after the date of enactment of this Act, the Secretary of 

Labor shall revise the materials the Secretary provides, under regulations published 

in section 516.4 of title 29, Code of Federal Regulations, to employers for purposes 

of a notice explaining the Fair Labor Standards Act of 1938 to employees so that 

such notice reflects the amendments made to such Act by this Act. 

SEC. 5. SUNSET. 

This Act and the amendments made by this Act shall expire 5 years after the date 

of enactment of this Act. 

H.R. 1406, WORKING FAMILIES FLEXIBILITY ACT OF 2013, 

COMMITTEE REPORT 

PURPOSE

The purpose of H.R. 1406, the Working Families Flexibility Act 

of 2013, is to amend the Fair Labor Standards Act of 1938 to provide compensatory time for employees in the private-sector. 

COMMITTEE ACTION

104TH CONGRESS

The committee’s consideration of policies to allow compensatory 

time for private-sector employees began during the 104th Congress. 

As part of a series of oversight hearings on the Fair Labor Standards Act of 1938 (FLSA), the Subcommittee on Workforce Protections held a hearing on June 8, 1995 on amending the FLSA to provide private-sector employers the option of allowing their employees to voluntarily choose to take compensatory time off in lieu of 

overtime pay. The following individuals testified at the hearing: 

Ms. Arlyce Robinson, Administrative Support Coordinator, Computer Sciences Corporation, Falls Church, Virginia; Ms. Kathleen 

M. Fairall, Senior Human Resource Representative, Timken Company, Randolph County, North Carolina; Ms. Sandie Moneypenny, 

Process Technician, Timken Company, Randolph County, North 

Carolina; Dr. M. Edith Rasell, Economist, Economic Policy Institute, Washington, D.C.; and Mr. Michael T. Leibig, Attorney-atLaw, Zwerdling, Paul, Leibig, Kahn, Thompson & Wolly, P.C., Fairfax, Virginia. 

On November 1, 1995 the Subcommittee on Workforce Protections held a hearing on H.R. 2391, a bill introduced by Representative Cass Ballenger to amend the FLSA to provide compensatory 

time for private-sector employees. The following witnesses testified 

at the hearing: Mr. Pete Peterson, Senior Vice President of PerVerDate Mar 15 2010 05:52 May 01, 2013 Jkt 029006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR049.XXX HR049

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sonnel, Hewlett-Packard Company, Palo Alto, California; Ms. 

Debbie McKay, Administrative Specialist, PRC, Inc., McLean, Virginia; and Mr. Michael T. Leibig, Attorney-at-Law, Zwerdling, 

Paul, Leibig, Kahn, Thompson & Wolly, P.C., Fairfax, Virginia. 

On December 13, 1995 the Subcommittee on Workforce Protections approved H.R. 2391, as amended, by voice vote and ordered 

the bill favorably reported to the full committee. On June 26, 1996 

the Committee on Economic and Educational Opportunities approved H.R. 2391, as amended, by voice vote and ordered the bill 

favorably reported by a roll call vote of 20 yeas and 16 nays. H.R. 

2391 was passed by the House, as amended, on July 30, 1996 but 

was not acted on by the Senate prior to the adjournment of the 

104th Congress. 

105TH CONGRESS

On January 7, 1997 Representative Cass Ballenger introduced 

H.R. 1, the Working Families Flexibility Act. The Subcommittee on 

Workforce Protections held a hearing on H.R. 1 on February 5, 

1997. The following individuals testified at the hearing: the Honorable Kay Granger, Member of Congress representing the 12th district of Texas; the Honorable Tillie Fowler, Member of Congress 

representing the 4th district of Florida; the Honorable Sue Myrick, 

Member of Congress representing the 9th district of North Carolina; Ms. Christine Korzendorfer, Manassas, Virginia; Mr. Peter 

Faust, Clear Lake, Iowa; Ms. Linda M. Smith, Miami, Florida; Dr. 

Roosevelt Thomas, Vice President of Human Resources and Affirmative Action, University of Miami, Coral Gables, Florida, testifying 

on behalf of the College and University Personnel Association; Ms. 

Diana Furchtgott-Roth, Resident Fellow at the American Enterprise Institute for Public Policy Research, Washington, D.C.; Mr. 

Robert D. Weisman, Attorney-at-Law, Schottenstein Zox & Dunn, 

Columbus, Ohio; Mr. Russell Gunter, Attorney-at-Law, testifying 

on behalf of the Society for Human Resource Management (SHRM), 

Alexandria, Virginia; Ms. Karen Nussbaum, Director, AFL–CIO 

Working Women’s Project, Washington, D.C.; and Ms. Helen Norton, Director of Equal Opportunity Programs, Women’s Legal Defense Fund, Washington, D.C. 

On March 5, 1997 the Committee on Education and the Workforce discharged the Subcommittee on Workforce Protections from 

further consideration of the bill and favorably reported H.R. 1, as 

amended, by a roll call vote of 23 yeas and 17 nays. H.R. 1 was 

passed by the House, as amended, on March 19, 1997 but was not 

acted on by the Senate prior to the adjournment of the 105th Congress. 

106TH CONGRESS

On April 13, 1999 Representative Cass Ballenger introduced H.R. 

1380, the Working Families Flexibility Act, which was identical to 

H.R. 1 as passed by the House during the 105th Congress. The bill 

was referred to the Committee on Education and the Workforce; 

however, no action was taken on the legislation. 


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107TH CONGRESS

On May 24, 2001 Representative Judy Biggert introduced H.R. 

1982, the Working Families Flexibility Act. The bill was identical 

to H.R. 1 as passed by the House during the 105th Congress. While 

no action was taken on H.R. 1982, the Subcommittee on Workforce 

Protections held two hearings focusing on the issue of increasing 

workplace flexibility under the FLSA. 

On March 6, 2002 the following individuals testified before the 

subcommittee: Mr. Ronald Bird, Chief Economist, Employment Policy Foundation, Washington, D.C.; Dr. Carl E. Van Horn, Professor 

and Director, John J. Heldrich Center for Workforce Development, 

Rutgers, the State University of New Jersey, New Brunswick, New 

Jersey; Mr. William J. Kilberg, Senior Partner, Gibson, Dunn & 

Crutcher, LLP, Washington, D.C., testifying on behalf of the U.S. 

Chamber of Commerce; and Ms. Judith M. Conti, Co-Founder and 

Director, Legal Services and Administration, D.C. Employment 

Justice Center, Washington, D.C. 

On May 15, 2002 the following individuals testified before the 

subcommittee: Mr. Donald J. Winstead, Acting Associate Director 

for Workforce Compensation and Performance, U.S. Office of Personnel Management, Washington, D.C.; Mr. Andy Brantley, Associate Vice President for Human Resources, University of Georgia, 

Athens, Georgia, testifying on behalf of the College and University 

Professional Association for Human Resources (CUPA–HR); Mr. 

Thomas M. Anderson, J.D., SPHR, Human Resources Director, Fort 

Bend County, Rosenberg, Texas, testifying on behalf of SHRM; and 

Mr. Dennis Slocumb, Executive Vice President and Legislative Director, International Union of Police Associations, AFL–CIO, Alexandria, Virginia. 

108TH CONGRESS

On March 6, 2003 Representative Judy Biggert introduced H.R. 

1119, the Family Time Flexibility Act, which was identical to H.R. 

1 as passed by the House during the 105th Congress. 

The Subcommittee on Workforce Protections held one hearing on 

the legislation on March 12, 2003. The following individuals testified at the hearing: Mr. Houston L. Williams, Chairman and CEO, 

PNS, Inc., San Jose, California, testifying on behalf of the U.S. 

Chamber of Commerce; Ms. Terri Martell, Electrician, Eastman 

Kodak Company, Wayland, New York; Ms. Ellen Bravo, National 

Director, Nine to Five: National Association of Working Women, 

Milwaukee, Wisconsin; and Mr. John A. Dantico, SPHR, CCP, Principal of Compensation/HR Consulting, The HR Group, Northbrook, 

Illinois, testifying on behalf of SHRM. 

On April 3, 2003 the Subcommittee on Workforce Protections favorably reported H.R. 1119, without amendment, to the full committee by a roll call vote of 8 yeas and 6 nays. On April 9, 2003 

the Committee on Education and the Workforce approved H.R. 

1119, without amendment, and ordered the bill favorably reported 

to the House by a roll call vote of 27 yeas and 22 nays. However, 

the House did not act on H.R. 1119 prior to the adjournment of the 

108th Congress. 


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110TH CONGRESS

On May 13, 2008 Representative Cathy McMorris Rodgers introduced H.R. 6025, the Family-Friendly Workplace Act, which was 

identical to H.R. 1 as passed by the House during the 105th Congress. The bill was referred to the Committee on Education and 

Labor; however, no action was taken on the legislation. 

111TH CONGRESS

On February 10, 2009 Representative Cathy McMorris Rodgers 

reintroduced the Family-Friendly Workplace Act, H.R. 933, which 

was identical to H.R. 1 as passed by the House during the 105th 

Congress. The bill was referred to the Subcommittee on Workforce 

Protections; however, no action was taken on the legislation. 

113TH CONGRESS

On April 9, 2013 Representative Martha Roby introduced H.R. 

1406, the Working Families Flexibility Act of 2013, which was identical to H.R. 1 as passed by the House during the 105th Congress. 

The bill was referred to the Committee on Education and the 

Workforce. 

On April 11, 2013 the Subcommittee on Workforce Protections 

held a hearing on H.R. 1406. The following individuals testified at 

the hearing: Mr. Andy Brantley, President and Chief Executive Officer, CUPA–HR, Knoxville, Tennessee; Ms. Karen DeLoach, Montgomery, Alabama; Ms. Juanita Phillips, Director of Human Resources, Intuitive Research and Technology Corporation, Huntsville, Alabama, testifying on behalf of SHRM; and Ms. Judith 

Lichtman, Senior Advisor, National Partnership for Women & 

Families, Washington, D.C. 

On April 17, 2013 the Committee on Education and the Workforce considered H.R. 1406. Representative Roby offered an amendment in the nature of a substitute, which made technical changes 

to the legislation. The committee favorably reported H.R. 1406, as 

amended, to the House of Representatives by a roll call vote of 23 

yeas and 14 nays. 

SUMMARY

H.R. 1406 would give private-sector employers and employees an 

option under the FLSA that federal, state, and local governments 

have had for many years. H.R. 1406 would not affect the compensatory time provisions already applicable to employees of federal, 

state, and local governments. The bill would permit private-sector 

employers to offer their employees the option of selecting compensatory time off in lieu of receiving cash overtime wages. An employee would be able to choose, based upon an agreement with his 

or her employer, to have his or her overtime compensated with 

paid time off. 

The bill would not change the 40-hour workweek to affect the 

manner in which overtime is calculated. ‘‘Non-exempt’’ employees 

who work more than 40 hours within a seven-day period would 

continue to receive overtime compensation at a rate not less than 

one and one-half times an employee’s regular rate of pay. If an employer and an employee agree on compensatory time, then the paid 


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1 29 U.S.C. § 211(c). 

time off would be granted at the rate of not less than one and onehalf hours for each hour of overtime worked. 

H.R. 1406 would provide new employee protections, in addition 

to those contained in current law, to prevent the coercive use of 

compensatory time. The bill requires any arrangement for the use 

of compensatory time to be an express mutual agreement between 

the employer and the employee. In the case of employees represented by a recognized or certified labor organization, the agreement must be between the employer and the labor organization. In 

other cases, the agreement is with an individual employee, must be 

entered into knowingly and voluntarily by the employee, and may 

not be a condition of employment. 

To be eligible to choose compensatory time, an employee must 

have worked at least 1,000 hours in a period of continuous employment with the employer during the 12-month period preceding the 

date the employee agrees to receive or receives compensatory time. 

An agreement for the use of compensatory time between an individual employee and his or her employer must be affirmed by a 

written or otherwise verifiable statement. The agreement must be 

made, kept, and preserved in accordance with the recordkeeping requirements under Section 11(c) of the Fair Labor Standards Act.1

An employee could accrue up to 160 hours of compensatory time 

each year. Any accrued compensatory time that has not been used 

by the employee by the end of each year (or an alternative 12- 

month period as designated by the employer) must be paid for by 

the employer to the employee in the form of monetary compensation. Likewise, any unused accrued compensatory time would be 

cashed out at the end of an employee’s employment with the employer, whether voluntary or involuntary. At any time, an employee 

may also submit a written request to receive monetary compensation for accrued compensatory time. In all cases, the compensatory 

time would be cashed out at either the regular rate received by the 

employee when the compensatory time was earned or at the final 

regular rate received by the employee, whichever is higher. 

An employee may submit a written request to withdraw from a 

compensatory time agreement with his or her employer at any 

time. Within 30 days of receiving such a request, the employer 

shall provide the employee with monetary compensation for the accrued compensatory time. 

A private-sector employer must provide an employee with 30 

days’ notice prior to cashing out an employee’s accrued compensatory time. However, an employer may only cash out compensatory time accrued by an employee in excess of 80 hours, unless 

the cash out is employee-initiated. A private-sector employer must 

also provide employees with 30 days’ notice prior to discontinuing 

a policy of offering compensatory time to employees. 

Any accrued compensatory time would be considered to be the 

same as wages owed to the employee. For the purposes of enforcement, as with any other violation of the FLSA, all of the remedies 

under the law would apply. In addition, any employer who directly 

or indirectly intimidates, threatens, or coerces any employee into 

selecting compensatory time off in lieu of cash compensation, or 

who forces an employee to use accrued compensatory time would 


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2 29 U.S.C. §§ 201–219. 

3 29 U.S.C. § 207. 

4 29 U.S.C. §§ 207, 213. 

5 29 U.S.C. § 213. 

6 29 U.S.C. § 207(o); 29 C.F.R. §§ 553.20–553.28. 

7See 5 U.S.C. 5543, 6123; 5 C.F.R. 550.114, 551.531. Of particular note, federal government 

employees may generally earn one hour of compensatory time for each hour of overtime worked. 

See id. 5543. 8 In Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), the Supreme Court held 

that state and local government employees were covered by the FLSA. 

be liable to the employee for the cash value of the accrued compensatory time, plus an additional equal amount as liquidated damages, reduced by the amount of compensatory time already used by 

the employee. 

Finally, H.R. 1406 contains a sunset provision whereby the legislation would cease to exist five years after the date of its enactment. This will allow Congress to review the use of compensatory 

time by private-sector employers and employees and, if need be, to 

make adjustments in the legislation authorizing its use. 

COMMITTEE VIEWS

BACKGROUND

The FLSA was enacted in 1938.2 Among its provisions is the requirement that hours of work by ‘‘non-exempt employees’’ beyond 

40 hours in a seven-day period must be compensated at a rate of 

one and one-half times the employee’s regular rate of pay.3 Certain 

exceptions to the ‘‘40-hour workweek’’ are permitted, under Sections 7 and 13 of the FLSA,4 for a variety of specific types and 

places of employment whose circumstances have led Congress, over 

the years, to enact specific provisions regarding maximum hours of 

work for those types of employment. In addition, the ‘‘overtime 

pay’’ requirement does not apply to employees who are exempt as 

‘‘executive, administrative, or professional’’ employees.5

Under the FLSA’s overtime requirements, overtime pay for employees in the private-sector must be in the form of cash wages 

paid to the employee in his or her next paycheck. This is different 

than overtime requirements for employees in the public-sector. Section 7(o) of the FLSA, added to the law in 1985, provides that state 

and local government employers may offer compensatory time at a 

rate not less than one and one-half hours for each hour of employment for which overtime compensation is required, subject to regulatory requirements administered by the Department of Labor.6

While federal government employees may also earn compensatory 

time in lieu of overtime pay, their use of compensatory time is governed by the Federal Employees Flexible and Compressed Work 

Schedules Act of 1978 and subject to regulatory requirements administered by the Office of Personnel Management.7

This difference in treatment between the private- and public-sectors occurs because the public-sector compensatory time provisions 

were added nearly 50 years after the FLSA was originally written. 

As a result, the public-sector compensatory time provisions recognized the workplace and workforce had changed greatly since 1938. 

Specifically, in adding Section 7(o) to the FLSA in 1985, Congress 

recognized that changes in the workplace and workforce led many 

state and local governments and their employees, prior to their 

being covered by the FLSA,8 to mutually agree upon forms of comVerDate Mar 15 2010 05:52 May 01, 2013 Jkt 029006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\HR049.XXX HR049

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9 Report on S. 1570, Committee on Labor and Human Resources, U.S. Senate, 99th Congress, 

First Session, Senate Report No. 99–159 at 8. 

pensatory time. As the Senate Labor Committee explained regarding the inclusion of compensatory time for state and local governments in the 1985 amendments to the FLSA: 

The Committee also is cognizant that many state and 

local government employers and their employees voluntarily have worked out arrangements providing for compensatory time off in lieu of pay for hours worked beyond 

the normally scheduled workweek. These arrangements— 

frequently the result of collective bargaining—reflect mutually satisfactory solutions that are both fiscally and socially responsible. To the extent practicable, we wish to accommodate such arrangements.9

The committee is certain that compensatory time can provide 

‘‘mutually satisfactory solutions’’ in the private-sector as well. Since 

the 104th Congress, the committee has heard compelling testimony 

from employees in the private-sector covered by the overtime protections of the FLSA who believe a change in the law to allow compensatory time would be beneficial. 

Ms. Arlyce Robinson, an Administrative Support Coordinator for 

Computer Services Corporation and an hourly non-exempt employee, described to the Subcommittee on Workforce Protections 

how she would like to be able to use compensatory time: 

I am here this morning to share with you my feelings 

about the impact of a law that was created over 50 years 

ago to protect many of us in the workplace, the Fair Labor 

Standards Act. I know that under this law, as a non-exempt employee I am eligible for overtime if I work more 

than 40 hours in a work week. And, while I never turned 

down an opportunity to earn more money, there have been 

times when I would have gladly given up the additional 

pay to enjoy flexibility in planning my work schedule, the 

same flexibility that my exempt colleagues have had for 

some time. Let me give you an example. 

In a few months, as all of you know, the weather around 

Washington, DC will become much colder. We are likely to 

see some snow and ice. And if we have a winter like the 

one we had two years ago, we will likely see a great deal 

of snow and ice. If it snows on a Monday or Tuesday—at 

the beginning of my workweek—and I can’t get to work on 

one of those days, I know that I can make up the hours 

that I missed by working extra hours later in that same 

week—say on Thursday or Friday. However, if it snows at 

the end of my workweek, we have a different issue. Although my company would like to allow me to make up the 

work during the following workweek, the fact is that they 

can’t allow it without incurring additional costs. You see, 

if I only worked 4 eight hour days—or 32 hours—the first 

week, I would have to work 48 hours the following week 

in order to have a full 80 hour paycheck for the two week 

period. But right now under the Fair Labor Standards Act, 

each one of the 8 hours worked over 40 in the second week 


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10 Hearings on the Fair Labor Standards Act before the Subcommittee on Workforce Protections, Committee on Economic and Educational Opportunities, U.S. House of Representatives, 

104th Congress, First Session, Serial No. 104–46 at 180–81. 11 Id. at 186. 

would have to be paid on an overtime basis. That’s just too 

expensive for my company, given the number of non-exempt employees that we have. So since I can’t make up the 

time in the second week, I have to take vacation leave 

which keeps my paycheck whole but gives me less vacation 

to use later—when I would like to use it. My only other 

alternative is to take leave without pay, which keeps my 

vacation intact, but results in my losing money in my paycheck. And I do need my paycheck!! 

. . . For the first 20 years of my career, I worked in the 

public-sector as a secretary and as an administrative assistant in the DC public school system and for the DC Office of Personnel. When I worked for these agencies, I was 

able to earn and use compensatory time. I can’t earn that 

now . . . This lack of flexibility is especially difficult for 

parents of young children, both mothers and fathers, and, 

particularly, for single parents. Doctor appointments and 

school conferences can often only be scheduled during work 

hours. For non-exempt employees, this often means having 

to take sick leave or vacation leave to have a few hours off 

to take care of family responsibilities.10

Ms. Sandie Moneypenny, a process technician for Timken Company and an hourly non-exempt employee, described how having 

the option of choosing compensatory time could help her as a working mother: 

Compensatory time off for a working mother like myself 

would be very helpful. If I had to leave work because of a 

sick child, wanted to attend a teachers conference, needed 

to take my child to the dentist or just wanted time off to 

be with my family, I would have the option without it affecting my pay. 

Today I can only use compensatory time in the week it 

occurs, but as most of you know, life doesn’t seem to work 

that way. If I could bank my overtime, I wouldn’t have to 

worry about missing work if my child gets sick on Monday 

or Tuesday. I also would only be postponing valuable time 

off with my family when I have a busy work week, because 

I could always take the time off at a later date.11

Ms. Deborah McKay, an Administrative Specialist, with PRC, 

Inc. explained why she would like to have the option of selecting 

compensatory time off in lieu of cash overtime: 

Under this proposal, an employee would be given the option to use overtime compensatory time at a later date 

when these family emergency type situations occur. Personally, I would find this time useful in working on term 

papers and projects for school as well as waiting for the repairman. There is nothing more frustrating than having to 

take a whole day of leave to have a scheduled repairman 


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12 Id. at 416–17. 13 Hearing on H.R. 1, Working Families Flexibility Act, before the Subcommittee on Workforce 

Protections, Committee on Education and the Workforce, U.S. House of Representatives, 105th 

Congress, First Session, Serial No. 105–1 at 17–18. 14 Id. at 22. 

show up—supposed to show up at 9 a.m. and then not 

show up until 3 or 4 in the afternoon . . . 

. . . [W]hat I am recommending is simple . . . [H]ave 

the FLSA amended by giving non-exempt and exempt employees the option of time and a half pay or time and a 

half of equal value off.12

Mr. Peter Faust of Clear Lake, Iowa, an hourly employee at a 

nonprofit facility for individuals who are mentally and/or physically 

disabled, described the difficulty he and his wife have when struggling to balance family responsibilities with work schedules and explained how additional time off would benefit him and his coworkers: 

This amendment is a win-win for working families and 

employers. . . . Everyone I’ve talked to, without exception, would like the choice of getting overtime or comp 

time, and almost everyone I’ve asked preferred comp time 

rather than overtime. . . . 

There are a lot of ways to make money in this country 

and lots of ways to spend it, but there’s only one way to 

spend time with yourself, family or friends, and that’s to 

have the time to spend. 

In this country of choice, can the working families have 

a choice? Some already do. Federal employees have had 

the choice to save comp time since 1978. State and local 

employees can save it too. Does our government value the 

private working families in this country enough to give us 

the same choice? 13

Ms. Linda M. Smith, a medical staff credentialing coordinator 

and secretary at the Bascom Palmer Eye Institute in Miami, Florida, expressed ‘‘wholehearted support’’ for the development of a program that would allow the option of compensatory time: 

With the implementation of the banked comp time program, I could use my overtime hours to create time for 

pregnancy leave for a second child, furthering my education, taking care of a debilitated parent, or, closest to my 

heart, creating special days with my daughter. A goal of 

mine is to obtain my degree. My employer allows me to 

take one class during working hours, without pay. With accrued comp time, I could take the class during working 

hours, with pay. Accrued comp time would also allow me 

to take time off for doctors’ appointments, teachers conferences, or to care for a sick child without having to use 

accrued sick time. In this way, sick time could be saved for 

catastrophic or long-term illnesses.14

Ms. Christine Korzendorfer, an hourly employee with TRW in 

Manassas, Virginia, told the subcommittee how important it would 

be to have the choice between compensatory time and overtime 

wages: 


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15 Id. at 10–11. 16 Hearing on H.R. 1119, Family Time Flexibility Act, before the Subcommittee on Workforce 

Protections, Committee on Education and the Workforce, U.S. House of Representatives, 108th 

Congress, First Session, Serial No. 108–7 at 50. 

This schedule as an hourly employee provides me with 

a lot of overtime pay. This pay is important to me. However, the time with my family is more important. If I had 

a choice there are times when I would prefer to take comp 

time in lieu of overtime. What makes this idea appealing 

is that I would have a choice with the legislation you are 

considering. 

Just recently, my son was ill and I had to stay at home 

with him. I took a day of vacation which I would have preferred to use for vacation! But I did not want to take unpaid leave. . . . If I had the choice, I would have used 

comp time in lieu of overtime for that day off from work. 

Besides, I would have only had to use about five and onehalf hours of comp time to cover that eight hour day.15

Ms. Terri Martell, an electrician with the Eastman Kodak Company in New York, told the subcommittee about the increased flexibility that compensatory time would provide to her and her coworkers: 

Another example of needing flexibility with overtime pay 

and how it is paid is when the children are sick. I remember when my 10-year old Eric was born, I used up eleven 

of my twenty vacation days to stay home with him or take 

him to the doctor just that first year. Being a first time 

mom and needing to nurture him while he was sick was 

very important to him and to me. As a working mother, it 

is very stressful to be at work when your children are in 

someone else’s care. In 1993, I could have used that [comp] 

time during those emergencies. 

I have heard from co-workers who feel strongly about 

the need for the more flexible schedules—the kind that 

comp time would allow. These are employees who are caregivers of their aging parents. One colleague in particular 

told me of her need to balance work and family. For her, 

comp time would mean allowing more flexibility in spending more time with her ill parent. The ability to save overtime as comp time and use it in times of need is crucial 

when crisis occurs but also to cope with day-to-day challenges. Also, someone who has used up annual vacation 

hours may have a need for extra time later in the year. 

Banking comp time could offer options instead of requiring 

employees to choose between working and taking time off 

without pay to address family needs.16

Ironically, employees classified as exempt under the FLSA are 

not so restricted by law and often are permitted by their employers 

to have more flexibility in their schedules than non-exempt employees. But, the law has denied non-exempt employees this muchneeded flexibility. As Ms. Robinson summarized: 

While the law was intended to protect us—and maybe 

50 years ago it did—in today’s business world it has had 

the effect of creating the illusion of two classes of workers. 


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17 Hearings on the Fair Labor Standards Act before the Subcommittee on Workforce Protections, Committee on Economic and Educational Opportunities, U.S. House of Representatives, 

104th Congress, First Session, Serial No. 104–46 at 181. 18 Hearing on H.R. 1406, Working Families Flexibility Act of 2013, before the Subcommittee 

on Workforce Protections, Committee on Education and the Workforce, U.S. House of Representatives, 113th Congress, First Session, April 11, 2013 (to be published) (emphasis in original). 19 Hearing on H.R. 1406, Working Families Flexibility Act of 2013, before the Subcommittee 

on Workforce Protections, Committee on Education and the Workforce, U.S. House of Representatives, 113th Congress, First Session, April 11, 2013 (to be published). 20 Id. 

The term non-exempt is often misinterpreted to mean ‘‘less 

than professional.’’ 17

Recently, Ms. Karen DeLoach, a bookkeeper from Montgomery, 

Alabama, shared her personal insight into the importance of allowing employees to choose between compensatory time and cash 

wages: 

You may wonder why compensatory time could matter to 

an empty-nester who seems to be in pretty good health. 

Why would I need more time off from work than the paid 

sick and vacation time that my employer agreed to allow 

annually? Well, I’ve learned in the last several years that 

there can still be many unforeseen needs in addition to 

any planned break from the routine. 

In the last three years, my mother, my brother, my father-in-law and one of my sons-in-law have all passed 

away, some at relatively early ages. I am not getting any 

younger, and neither is the rest of the world so yes, I say 

again, time is precious to me. I would greatly appreciate 

the option at work to choose between being compensated in 

dollars or days.18

There is ample support for concluding that Ms. Robinson, Ms. 

Moneypenny, Ms. McKay, Mr. Faust, Ms. Smith, Ms. Korzendorfer, 

Ms. Martell, and Ms. DeLoach are not alone in their desire for the 

increased flexibility that would be provided by the Working Families Flexibility Act of 2013. As Ms. Juanita Phillips, Director of 

Human Resources at Intuitive Research and Technology Corporation in Huntsville, Alabama, testified before the subcommittee: 

The increased diversity and complexity within the American workforce—combined with global competition in a 24/ 

7 economy—is driving the need for more workplace flexibility. C-suite executives, for example, say the biggest 

threat to their organizations’ success is attracting and retaining top talent. Human resource professionals believe 

the best way to attract and retain the best people is to provide workplace flexibility. Moreover, a large majority of 

employees—87 percent—report that flexibility in their jobs 

would be ‘‘extremely’’ or ‘‘very’’ important in deciding 

whether to take a new job.19

As Ms. DeLoach put it most simply to the subcommittee: 

Right now, committee members, you have the ability to 

empower families across the nation with the freedom of 

choice. You could afford me the freedom to choose to use 

my overtime as leave time, while my coworker can still 

choose overtime pay, if she likes.20


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H.R. 1406, WORKING FAMILIES FLEXIBILITY ACT OF 2013

H.R. 1406 amends the FLSA to permit employers in the privatesector to offer employees the voluntary option to receive overtime 

pay in the form of compensatory time off in lieu of cash wages. The 

legislation does not change the employer’s obligation to pay overtime at the rate of one and one-half times the employee’s regular 

rate of pay for any hours worked over 40 in a seven-day period. 

The bill simply allows overtime compensation to be given in the 

form of paid time off, at the rate of one and one-half hours of compensatory time for each hour of overtime worked, and only if the 

employee and employer agree on that form of overtime compensation. As is already the case when compensatory time is used in the 

public-sector, the employee would be paid at his or her regular 

hourly rate of pay when the compensatory time is used. 

H.R. 1406 would not alter current use of compensatory time in 

the public-sector. Rather, the legislation seeks to extend the option 

of compensatory time in lieu of overtime compensation to privatesector employees (the same option federal, state, and local government employees have had for many years), which private-sector 

employees overwhelmingly support. The legislation includes numerous protections to ensure employees’ choice and use of compensatory time are truly voluntary. Compensatory time, as provided in 

H.R. 1406, is not a mandate on employers or employees. H.R. 1406 

simply gives private-sector employees and employers the opportunity to agree to this arrangement, an opportunity currently unavailable under the FLSA. 

COMPENSATORY TIME AGREEMENT

Under H.R. 1406, an employer and his or her employee must 

reach an express mutual agreement that overtime compensation 

will be in the form of compensatory time. If either the employee or 

the employer does not so agree, then the overtime compensation 

must be in the form of cash wages. 

The agreement between the employer and employee must be 

reached prior to the performance of the work for which the compensatory time would be given. The agreement may be specific as to 

each hour of overtime, or it may be a blanket agreement covering 

overtime worked within a set period of time. 

The bill allows two types of employer-employee agreements on 

compensatory time. Where the employee is represented by a recognized or certified labor organization, the agreement must be in the 

collective bargaining agreement between the employer and the recognized or certified labor organization. By referring to a labor organization that has been recognized or certified under applicable law, 

H.R. 1406 includes any law providing for recognition or certification of labor organizations representing private-sector workers in 

collective bargaining, including, at the federal level, the National 

Labor Relations Act and the Railway Labor Act. 

Where an employee is not represented by a recognized or certified labor organization, the agreement must be made between the 

employer and the individual employee. The bill specifies any such 

agreement between the employer and an individual employee must 

be entered into knowingly and voluntarily by the employee, and 

may not be a condition of employment. 


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21 29 U.S.C. § 211(c). 22 29 C.F.R. § 553.23(c) (‘‘An employer need not adopt the same agreement or understanding 

with different employees and need not provide compensatory time to all employees.’’). 23Obviously an employer also may not use any overtime policy, including compensatory time, 

to discriminate among employees for any reason prohibited by law. See Testimony of Mr. Robert 

Weisman, Hearing on H.R. 1, Working Families Flexibility Act, before the Subcommittee on 

Workforce Protections, Committee on Education and the Workforce, U.S. House of Representatives, 105th Congress, First Session, Serial No. 105–1. 

The bill also requires the agreement on compensatory time between the employer and the individual employee be affirmed in a 

written or otherwise verifiable statement. The latter is intended to 

allow computerized and other similar payroll systems to include 

this information, so long as the employee’s agreement to take the 

overtime in the form of compensatory time is verifiable. The committee does not intend that the agreement could be purely oral 

with no contemporaneous record kept. To further ensure compensatory time agreements are authentic, H.R. 1406 provides, pursuant to the general recordkeeping authority of the FLSA, the Secretary of Labor has authority to prescribe the information that the 

records of such agreements must include and the period of time the 

records should be maintained by the employer.21

An individual employee’s voluntary agreement to choose compensatory time in lieu of cash overtime pay is further protected by provisions in the bill allowing an employee to withdraw from such an 

agreement at anytime. Thus, an employee who agrees all or a portion of the overtime hours he or she works will be compensated in 

this form may at any point withdraw from that arrangement, in 

which case any subsequent hours of overtime worked by the employee must be compensated in the form of cash wages. 

As is the case with public-sector compensatory time, H.R. 1406 

does not require the same agreement be entered with every employee, or that the employer agree to offer compensatory time to all 

employees.22 Opponents of compensatory time have claimed this allows an employer to unfairly single out employees and force them 

to take compensatory time in lieu of cash wages against the employee’s wishes. However, the bill’s express prohibition on ‘‘direct or 

indirect coercion’’ and attempted coercion of employees (see discussion below), would prohibit an employer from conferring any benefit or compensation for the purpose of interfering with an employee’s right to request or not request compensatory time. Thus, an 

employer may not single out employees for overtime work for the 

purpose of rewarding or punishing employees for their willingness 

or unwillingness to take compensatory time.23

The opponents of compensatory time have argued it should be denied to employees in the private-sector, but if compensatory time 

must be allowed, then ‘‘low-wage’’ workers and certain occupations 

(e.g., temporary, seasonal, or part-time occupations) should be excluded. The committee believes many workers who likely would be 

included in a national definition of ‘‘low-wage’’ want the option of 

compensatory time—and feel perfectly capable of making that decision themselves. Indeed, some of the most forceful and compelling 

testimony before the Subcommittee on Workforce Protections in 

support of allowing workers the option of compensatory time was 

given by a ‘‘low-wage worker,’’ Mr. Peter Faust, who likely would 

be denied that option if all such workers were excluded from H.R. 


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24See Testimony of Mr. Peter Faust, Hearing on H.R. 1, the Working Families Flexibility Act, 

before the Subcommittee on Workforce Protections, Committee on Education and the Workforce, 

U.S. House of Representatives, 105th Congress, First Session, Serial No. 105–1. 25This relationship between the agreement and the parameters stated in law is the same as 

applies to public-sector compensatory time. See 29 C.F.R. § 553.23(a)(2). 

1406.24 Further, the requirement for mutual agreement by the employer and the employee and the employee protections in the bill 

ensure compensatory time is voluntary. The committee sees no reason to deny certain employees the option of compensatory time, 

based solely upon their level of income or their occupation. 

CONDITIONS ON COMPENSATORY TIME

The committee intends that compensatory time to be a matter of 

agreement between employers and employees. To that end, the law 

should permit employers and employees some flexibility in structuring compensatory time arrangements. H.R. 1406 provides certain parameters for such compensatory time arrangements, primarily to ensure employees are fully protected. These parameters 

apply whether the compensatory time agreement is with a labor organization or with an individual employee (see discussion above). 

The agreement between the employer and employee may include 

other provisions governing the preservation, use, or cashing out of 

compensatory time, so long as these provisions are consistent with 

H.R. 1406. To the extent any provision of an agreement is in violation of H.R. 1406, the provision would be superseded by the requirements of the FLSA.25

Employee eligibility requirements 

To be eligible to choose compensatory time, an employee must 

have worked at least 1,000 hours in a period of continuous employment with his or her employer during the 12-month period preceding the date the employee agrees to receive or receives compensatory time. Under the language of the bill, this 1,000 hour requirement is assessed on a ‘‘rolling’’ basis, such that to be eligible 

to enter an agreement to receive compensatory time, or to actually 

receive compensatory time in lieu of cash compensation for overtime, such employee must have worked at least 1,000 hours in a 

period of continuous employment with the employer in the 12- 

month period prior to either entering such an agreement or actually receiving compensatory time. 

The committee expects the phrase ‘‘period of continuous employment with the employer’’ will be construed to encompass an unbroken period of time in which an employee is maintained on the payroll of a single employer (or, as applicable, its successor) on active 

status, or on inactive status where the employer has a reasonable 

expectation that the employee will return to duty (e.g., an employee 

on paid or unpaid leave whom the employer reasonably expects will 

return to duty will generally be considered to be in a ‘‘period of continuous employment’’ with the employer). 

Compensatory time accrual limit 

H.R. 1406 provides an employee may accrue no more than 160 

hours of compensatory time. This is in contrast to the public-sector 

provisions in current law that allow most employees to accrue 240 

hours of compensatory time (in some occupations, employees may 


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accrue up to 480 hours). The lower limit for private-sector employees is designed to protect both employers and employees against accrual of excessive amounts of compensatory time liability. 

The committee emphasizes this 160-hour limit is the legal maximum that may be accrued. Employers and employees may establish a lower limit for compensatory time accrual, and employees, of 

course, may decline compensatory time as payment for overtime altogether. 

Monetary compensation for unused compensatory time 

The bill requires an annual ‘‘cash out’’ of all accrued compensatory time. Such annual cash out protects both employers and employees against accrual of excessive amounts of compensatory time 

liability. Unless an alternative date is established by the employer, 

the annual cash out date is the end of the calendar year (December 

31) and the employee must be paid for the accrued compensatory 

time not later than the following January 31. The employer may 

establish an alternative annual cash out date, in which case the 

employer must pay the employee for any accrued and unused compensatory time within 31 days of the end of the 12-month period. 

Subject to continued agreement between the employer and employee, the employee may begin to accrue compensatory time anew 

after the cash out date. 

An employer may cash out some accrued compensatory time 

more frequently than annually. However, the employer must provide an employee with 30 days’ notice prior to cashing out the employee’s accrued, unused compensatory time, and may only cash 

out accrued compensatory time in excess of 80 hours. 

An employee may also choose to cash out his or her accrued compensatory time at any time. The employee may submit a written 

request to such effect to the employer, upon which request the employer must cash out the employee’s accrued compensatory time 

within 30 days of receiving the request. There is no hour limit on 

an employee’s ability to cash out accrued compensatory time. 

As described above, an employee who has an individual agreement with his or her employer regarding compensatory time may 

withdraw that agreement at any time. Similarly, an employer who 

offers compensatory time to employees may discontinue such policy 

upon giving employees 30 days’ notice, except where a collective 

bargaining agreement provides otherwise. In the event an employer 

does discontinue offering compensatory time, any hours of compensatory time already accrued by employees remain the employees’ 

hours and must be so recognized by the employer. 

Upon the voluntary or involuntary termination of employment, 

the bill provides an employee’s unused compensatory time must be 

cashed out by the employer, and is to be treated as a wage payment due and owed to the employee. The bill further provides any 

payment owed to an employee or former employee (whether because of the annual cash out of all accrued compensatory time, the 

employee’s request to cash out accrued compensatory time, the employer’s decision to cash out certain accrued compensatory time as 

described above, or the voluntary or involuntary termination of employment) shall be considered unpaid overtime compensation owed 

to the employee. In addition to making explicit that the remedies 

for unpaid overtime compensation under the FLSA apply, this proVerDate Mar 15 2010 05:52 May 01, 2013 Jkt 029006 PO 00000 Frm 00017 Fmt 6659 Sfmt 6602 E:\HR\OC\HR049.XXX HR049

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26 29 C.F.R. § 2530.200b–2. 

vision also assures any unpaid, accrued compensatory time is treated as unpaid employee wages in the event of the employer’s bankruptcy. Thus, any unpaid, accrued compensatory time would have 

the same priority claim and legal status as other employee wages 

under both the FLSA and the Bankruptcy Code. As described 

above, the payment for accrued compensatory time is owed to the 

employee or former employee when the claim for payment is made, 

and takes the same priority as other wages as of that date. 

In all cases of cashed out accrued compensatory time, the rate of 

cash out must be the employee’s regular rate when the compensatory time was earned or the employee’s final regular rate, whichever is higher. For example, if compensatory time is accrued during 

the course of a year and the employee has received an increase in 

his or her hourly rate during the year after the compensatory time 

is accrued, the cash out rate at the end of the year would be the 

employee’s final regular rate of pay for that year, reflecting the employee’s increase in pay, even if the compensatory time was accrued 

prior to the pay increase. 

NOTICE TO EMPLOYEES

H.R. 1406 requires the Secretary of Labor to revise the posting 

requirements under the regulations of the FLSA to reflect the compensatory time provisions of the bill. This will help ensure employees are informed of the circumstances under which compensatory 

time may be offered by an employer, as well as the employees’ right 

to accept or decline such offer, and the employees’ rights regarding 

the use of compensatory time. The Secretary of Labor may also promulgate such regulations as necessary in order to implement the 

provisions of H.R. 1406. 

COMPENSATORY TIME AND EMPLOYMENT BENEFITS

Opponents of H.R. 1406 have raised concerns that compensatory 

time would reduce an employee’s pension benefits. These concerns 

are unfounded. The overtime hours for which an employee receives 

compensatory time are hours for which the employee is paid or entitled to pay for the performance of duties for the employer. Therefore, they would fall within the definition of ‘‘hours of service’’ 

under the Employee Retirement Income Security Act, for which the 

employee would be credited for purposes of accrual, participation, 

and vesting of benefits.26

Obviously, in some cases the employee has also not worked hours 

that he or she otherwise would have when the employee uses (as 

compared to accrues) compensatory time off. Thus, the employee’s 

total hours worked may be reduced, not by the earning of compensatory time, but by substituting the compensatory time for other 

hours of work. If, as a result, the employee works fewer total 

hours, the employee’s total monetary earnings and credits for benefits may be less. But that effect is no different than any other decision by the employee (for example, refusing optional overtime 

work) that reduces the total number of hours actually worked by 

the employee. Of course, employees who choose to take compensatory time off have elected to receive a benefit that enables them 

to spend more time with their family or for whatever purpose they 


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27 29 U.S.C. § 207(o)(5). 28 29 C.F.R. § 553.25(d); see also Department of Labor, Wage and Hour Opinion Letter, 1994 

DOLWH LEXIS 71 (Aug. 19, 1994) (‘‘It is our position, notwithstanding [a collective bargaining 

agreement to the contrary], that an agency may not turn down a request from an employee for 

compensatory time off unless it would impose an unreasonable burden on the agency’s ability 

Continued 

wish, which is not available to employees who elected to receive 

cash wages. 

Similarly, opponents are concerned that compensatory time could 

limit an employee’s eligibility for unemployment benefits, or the 

amount of unemployment benefits to which the employee would be 

entitled. H.R. 1406 clearly treats compensatory time as employee 

wages and any payments for accrued compensatory time would be 

treated the same as other employee wages under state laws for 

purposes of eligibility for unemployment benefits and determination of the amount of benefits. Receipt of compensation for accrued 

compensatory time when an employee’s employment is terminated 

may, depending on state law on ‘‘disqualifying income,’’ defer receipt of unemployment benefits, but would not diminish the total 

benefits to which the employee may be entitled. However, to suggest, as some have, compensatory time payments should not be 

considered as wages in any unemployment benefit determination 

would turn existing federal policy on ‘‘disqualifying income’’ on its 

head by dictating to states how to treat this form of employee 

wages. 

EMPLOYEE USE OF ACCRUED COMPENSATORY TIME

Under H.R. 1406, an employee who has accrued compensatory 

time may generally use the time whenever he or she so desires. 

However, the legislation does require an employee to provide his or 

her employer with a reasonable amount of notice prior to using 

compensatory time, and the employer in permitted under H.R. 

1406 to deny the employee’s request if the use of time off would 

‘‘unduly disrupt’’ the operations of the business. It is the committee’s intent that an employer shall grant the employee’s request to 

use accrued compensatory time off on the date and/or time requested by the employee if the use on such date and/or time does 

not ‘‘unduly disrupt’’ the employer’s operations, and if the employee 

has requested use of the accrued compensatory time within a reasonable period in advance of the date and/or time requested. 

These conditions on the use of accrued compensatory time are 

the same as those in current law for the public-sector under Section 7(o) of the FLSA.27 Regulations issued by the Department of 

Labor under Section 7(o) define ‘‘unduly disrupt’’ as follows: 

When an employer receives a request for compensatory 

time off, it shall be honored unless to do so would be ‘‘unduly disruptive’’ to the agency’s operations. Mere inconvenience to the employer is an insufficient basis for denial of 

a request for compensatory time off. For an agency to turn 

down a request from an employee for compensatory time 

off requires that it should reasonably and in good faith anticipate that it would impose an unreasonable burden on 

the agency’s ability to provide services of acceptable quality and quantity for the public during the time requested 

without the use of the employee’s services.28


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to provide service of acceptable quality and quantity for the public during the time requested 

without the use of the employee’s service. The fact that overtime may be required of one employee to permit another employee to use compensatory time off would not be a sufficient reason 

for an employer to claim that the compensatory time off request is unduly disruptive.’’). 29 560 F.3d 642, 646 (7th Cir. 2009). But see Mortensen v. County of Sacramento, 368 F.3d 

298 (9th Cir. 2004) (finding that the public-sector compensatory time provisions require only 

that an employee be allowed to use compensatory time off within a ‘‘reasonable period’’ of the 

date requested for such leave, unless doing so would ‘‘unduly disrupt’’ the agency’s operations); 

Houston Policy Officers Union v. City of Houston, 330 F.3d 298 (5th Cir. 2003) (same). 30 Heitmann, 560 F.3d at 647. 31 390 F.3d 912, 925 (6th Cir. 2005). 32 Id. at § 926; see also DeBraska v. City of Milwaukee, 131 F. Supp. 2d 1032 (E.D. Wis. 2000) 

(deferring to the Department of Labor’s interpretation of its regulations as requiring that an 

employee’s specific compensatory time off requested must be granted absent undue disruption 

of the employer’s operations). 33 29 U.S.C. § 2612(e). As one district court said in construing these provisions of the FMLA, 

‘‘The FMLA also does not give employees the unfettered right to take time off subject only to 

their own convenience without any consideration of its effect upon the employer.’’ Kaylor v. 

Fannin Regional Hospital, 946 F.Supp. 988, 999 (N.D. Ga. 1996). 

Court decisions regarding public-sector compensatory time have 

also shown the ‘‘unduly disrupt’’ standard is narrow and does not 

allow an employer to control an employee’s use of compensatory 

time off. In Heitmann v. City of Chicago, the Seventh Circuit Court 

of Appeals found Section 7(o) of the FLSA and the Department of 

Labor’s corresponding regulations require an employer to grant 

compensatory time off on the date and time requested by an employee, unless doing so would cause undue disruption.29 The court 

noted that requiring an employer to honor an employee’s specific 

request for compensatory time off, absent undue disruption of the 

employer’s operations, appropriately ‘‘makes compensatory leave 

more attractive to workers and hence a more adequate substitute 

for money, the Fair Labor Standards Act’s principal response to 

overtime work.’’ 30

Similarly, in Beck v. City of Cleveland, the Sixth Circuit Court 

of Appeals found ‘‘to grant the City the unlimited discretion to deny 

compensatory leave requests relieves the City of establishing the 

undue disruption requirement imposed by Congress.’’ 31 As a result, 

the court held that the plaintiffs-police officers’ ‘‘compensatory 

leave requests must be granted absent ‘clear and affirmative evidence’ of an undue disruption of the City’s provision of police services for its citizens.’’ 32

The committee also notes the ‘‘unduly disrupt’’ standard included 

in H.R. 1406 is similar to the standard in the Family and Medical 

Leave Act (FMLA) limiting an employee’s right to take leave for 

medical treatments for the employee or a member of his or her 

family (‘‘. . . the employee shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the 

employer . . .’’).33

Given the long history of this language in the FLSA with regard 

to compensatory time in the public-sector and the inclusion of similar language in the FMLA, it is simply dishonest for opponents of 

private-sector use of compensatory time to claim H.R. 1406 allows 

the employer to control when compensatory time is used. The employer’s right to deny compensatory time under H.R. 1406 is very 

limited. But the employer must have some ability to maintain the 

operations of the business. If that ability is not reflected in the law, 

then no employer will offer compensatory time as an option for employees, and the committee’s efforts to respond to employees’ desires for flexibility will be in vain. Furthermore, providing for an 

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34 Report on S. 1570, Committee on Labor and Human Resources, U.S. Senate, 99th Congress, 

First Session, Senate Report No. 99–159 at 11. 35 29 U.S.C. § 215(a)(2). 36 Id. § 215(a)(3). 37 Id. 216(b). 38 Id. § 217. 39 Id. § 216(e). 40 Id. § 216(b). 41 Id. § 260. 42 Id. § 216(b). 

load or business demands is simply unfair to the employee’s coworkers, who in many cases would have to handle the workload of 

the absent employee. Just as in 1985 when public-sector workers 

were permitted to use compensatory time in lieu of overtime pay, 

H.R. 1406 seeks ‘‘to balance the employee’s right to make use of 

comp time that has been earned and the employer’s need for flexibility in operations.’’ 34

ENFORCEMENT AND REMEDIES

As an amendment to the FLSA, the compensatory time provisions in H.R. 1406 would be subject to the applicable enforcement 

and remedies of the FLSA. Currently under the FLSA, Section 

15(a)(2) makes it unlawful for any person to violate any provision 

of Section 7, of which the compensatory time provisions of H.R. 

1406 would be a part.35 In addition, Section 15(a)(3) makes it unlawful to ‘‘discharge or in any other manner discriminate against 

any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related 

to’’ the employee’s rights under the FLSA.36

Section 16(b) of the FLSA authorizes an action by an employee 

against his or her employer for any violations of Section 7.37 The 

suit may be filed in any federal or state court. An employee may 

also file a complaint with the Department of Labor. The Department of Labor generally attempts to resolve such complaints; however, the department may also sue the employer for damages on 

behalf of the employee or employees whose rights were violated, or 

may also seek injunctive relief.38 Section 16(e) also authorizes the 

Secretary of Labor to seek civil penalties of up to $1,100 per violation against an employer who ‘‘willfully or repeatedly’’ violates Section 7.39 In any action in which the employee has been wrongfully 

denied overtime compensation, the FLSA authorizes damages equal 

to the amount of the unpaid compensation required by the FLSA 

and an equal amount as liquidated damages; 40 liquidated damages 

may be reduced or eliminated if the court finds that the employer 

acted in good faith and had reasonable grounds for believing he or 

she was in compliance with the FLSA.41 In any action brought by 

an employee, the employee may also be paid for his or her attorneys’ fees and costs.42

To be clear, H.R. 1406 retains all of the enforcement mechanisms 

and remedies that currently exist under the FLSA. H.R. 1406 also 

includes a provision prohibiting an employer from directly or indirectly intimidating, threatening, coercing, or attempting to intimidate, threaten, or coerce any employee for purposes of interfering 

with the employee’s right to take or not take compensatory time in 

lieu of cash overtime, or to use accrued compensatory time. Curiously, opponents of compensatory time have claimed H.R. 1406 

would allow employers to force employees to take compensatory 


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43 5 U.S.C. § 6385. 44 Id. § 6132. 45 Id. § 6385. 

time against their will or to use accrued compensatory time at the 

employer’s convenience. Those claims contradict the direct language of the bill. 

The language of H.R. 1406 prohibiting intimidation, threats, and 

coercion, or attempts thereto, is identical to prohibitory language 

applicable to federal employees under the FMLA 43 and the Federal 

Employees Flexible and Compressed Work Schedules Act.44 The 

term ‘‘intimidate, threaten, or coerce’’ has been defined under those 

laws as ‘‘promising to confer or conferring any benefit (such as appointment, promotion, or compensation), or taking or threatening 

to take any reprisal (such as deprivation of appointment, promotion, or compensation).’’ 45 Thus, H.R. 1406 prohibits an employer, for example, from forcing employees to take compensatory 

time in lieu of monetary compensation by offering overtime hours 

only to employees who ask for compensation in the form of compensatory time. 

The bill also creates a new remedy under the FLSA applicable 

to employers who violate the anti-coercion language just described. 

Section 3 of H.R. 1406 provides an employer who violates the anticoercion provision shall be liable to the employee for the employee’s 

rate of compensation for each hour of compensatory time accrued 

and an equal amount as liquidated damages. If the employee has 

already used some or all of the compensatory time, the amount to 

be paid as damages is reduced by that amount. 

Opponents of compensatory time have claimed, while it may be 

prohibited conduct under H.R. 1406, there is no sanction in H.R. 

1406 for an employer who either forces an employee to take compensatory time or denies the employee the right to use accrued 

compensatory time. In both cases, the opponents are wrong. An employee who is forced to take compensatory time off may receive the 

amount of the employee’s compensation for each hour of compensatory time plus an equal amount of liquidated damages, less the 

amount of compensation the employee has already received for 

those hours of compensatory time. The committee expects the department will make use of the regulatory process to clarify the application of the remedies provisions contained in H.R. 1406 to these 

and other potential scenarios. 

In addition, there is a ‘‘self-policing’’ aspect: the employee retains 

his or her compensation and can demand to cash out at his or her 

current rate of pay or the rate when the time was earned, whichever is higher. In short, the employer does not benefit by denying 

the employee the use of his or her compensatory time, and when 

necessary, there are effective sanctions under the bill and the 

FLSA for employers who violate the employee protections and other 

provisions of H.R. 1406. 

CONCLUSION

For many Americans, balancing the demands of family and work 

can be difficult. Each worker faces a unique set of challenges and 

responsibilities, be it caring for an aging relative, attending a parent-teacher conference, or seeing a son or daughter deploy overseas. Government employees have long been able to choose and acVerDate Mar 15 2010 05:52 May 01, 2013 Jkt 029006 PO 00000 Frm 00022 Fmt 6659 Sfmt 6602 E:\HR\OC\HR049.XXX HR049

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crue paid time off as compensation for working overtime hours, allowing these public-sector employees greater flexibility to meet 

family obligations. However, the federal government prohibits private-sector workers from enjoying this same benefit. H.R. 1406, the 

Working Families Flexibility Act of 2013, would remove this obstacle in federal law. 

Opponents of H.R. 1406 continue to ignore the legislation’s basic 

principle: worker choice. Under the legislation, workers choose 

whether to accept compensatory time; workers choose when to 

withdraw from a compensatory time agreement; workers choose 

when to cash out accrued compensatory time; and workers choose 

when to use their paid time off so long as they follow the same 

guidelines as public employees do. The Working Families Flexibility 

Act of 2013 is commonsense, pro-worker legislation that will help 

Americans better balance the needs of family and the workplace. 

SECTION-BY-SECTION ANALYSIS

SECTION 1. SHORT TITLE

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

of 2013.’’ 

SECTION 2. COMPENSATORY TIME

In lieu of monetary overtime compensation, an employee may receive compensatory time off at a rate not less than one and onehalf hours for each hour of overtime worked. 

An employer may provide compensatory time to employees only 

if such time is in accordance with the applicable provisions of a collective bargaining agreement between the employer and the labor 

organization that has been certified or recognized as the representative of the employees under applicable law. 

In the case of employees who are not represented by a labor organization certified or recognized as the representative of such employees under applicable law, there must be an agreement arrived 

at between the employer and employee before the performance of 

the work and affirmed by a written or otherwise verifiable record 

maintained in accordance with Section 11(c) of the Fair Labor 

Standards Act in which the employer has offered and the employee 

has chosen to receive compensatory time in lieu of monetary overtime compensation. Such agreement must be entered into knowingly and voluntarily by such employee and not as a condition of 

employment. An employee may not agree to receive compensatory 

time unless that employee has worked 1,000 hours in continuous 

employment with the employer in the 12-month period prior to the 

date of the agreement or receipt of compensatory time. 

An employee may accrue not more than 160 hours of compensatory time. No later than January 31 of each calendar year, the 

employee’s employer shall provide monetary compensation for any 

unused compensatory time accrued during the preceding calendar 

year and not used prior to December 31 of the preceding year. Monetary compensation must be provided at the regular rate received 

when the compensatory time was earned or at the final regular 

rate, whichever is higher. 

An employer may designate and communicate to the employees 

a 12-month period other than the calendar year, in which case comVerDate Mar 15 2010 05:52 May 01, 2013 Jkt 029006 PO 00000 Frm 00023 Fmt 6659 Sfmt 6602 E:\HR\OC\HR049.XXX HR049

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pensation shall be provided not later than 31 days after the end 

of the 12-month period. 

An employer may provide monetary compensation for an employee’s unused compensatory time in excess of 80 hours at any time 

after giving the employee at least 30 days’ notice. The compensation shall be provided at the regular rate received when the compensatory time was earned or the final regular rate, whichever is 

higher. 

Except where a collective bargaining agreement provides otherwise, an employer who has adopted a policy offering compensatory 

time to employees may discontinue such policy upon giving employees 30 days’ notice. 

An employee may withdraw from an agreement or understanding 

to accrue compensatory time at any time. An employee may also 

request in writing that monetary compensation be provided, at any 

time, for all compensatory time accrued and not yet used. Within 

30 days of receipt of the written request, the employer shall provide the employee with the monetary compensation at a rate received when the compensatory time was earned or at the final regular rate, whichever is higher. 

An employer who provides compensatory time to employees shall 

not directly or indirectly intimidate, threaten, or coerce or attempt 

to intimidate, threaten, or coerce any employee for the purpose of 

interfering with such employee’s rights to request or not request 

compensatory time off in lieu of payment of monetary overtime 

compensation for overtime hours; or requiring any employee to use 

such compensatory time. 

An employee who has accrued compensatory time off shall, upon 

the voluntary or involuntary termination of employment, be paid 

for such unused compensatory time. 

If compensation is to be paid to an employee for accrued compensatory time off, the compensation will be paid at a rate not less 

than the regular rate received by an employee when the compensatory time was earned or the final regular rate received by such 

employee, whichever is higher. 

Any payment owed to an employee for unused compensatory time 

shall be considered to be unpaid overtime compensation. 

An employee who has accrued compensatory time off and has requested the use of such compensatory time shall be permitted by 

the employee’s employer to use such time within a reasonable period after making the request if the use of the compensatory time 

does not unduly disrupt the operations of the employer. 

For the purposes of this subsection, the term ‘‘employee’’ does not 

include an employee of a public agency. 

For the purposes of this subsection, the terms ‘‘overtime compensation’’ and ‘‘compensatory time’’ shall have the meanings given 

by Section (7)(o)(7) of the Fair Labor Standards Act. 

SECTION 3. REMEDIES

An employer who violates the anti-coercion provisions (Section 

7(r)(4)) of this bill shall be liable to the employee affected in the 

amount of the rate of compensation (determined in accordance with 

Section 7(r)(6)(A)) for each hour of compensatory time accrued by 

the employee and an additional equal amount as liquidated damVerDate Mar 15 2010 05:52 May 01, 2013 Jkt 029006 PO 00000 Frm 00024 Fmt 6659 Sfmt 6602 E:\HR\OC\HR049.XXX HR049

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ages, reduced by the amount of such rate of compensation for each 

hour of compensatory time used by the employee. 

SECTION 4. NOTICE TO EMPLOYEES

Not later than 30 days after the date of the enactment of this 

Act, the Secretary of Labor shall revise the materials provided to 

employers for purposes of a notice explaining the Fair Labor 

Standards Act to employees so that the notice reflects the amendments made by this bill to the Act. 

SECTION 5. SUNSET

This Act and all amendments made by this Act shall expire five 

years after its enactment. 

EXPLANATION OF AMENDMENTS

The amendments, including the amendment in the nature of a 

substitute, are explained in the body of this report. 

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1 requires a description of 

the application of this bill to the legislative branch. H.R. 1406 provides for compensatory time for employees in the private-sector. 

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandates Reform Act, P.L. 104–4) requires a statement of whether the 

provisions of the reported bill include unfunded mandates. This 

issue is addressed in the CBO letter. 

EARMARK STATEMENT

H.R. 1406 does not contain any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of 

House Rule XXI. 

ROLL CALL VOTES

Clause 3(b) of rule XIII of the Rules of the House of Representatives requires the Committee Report to include for each record vote 

on a motion to report the measure or matter and on any amendments offered to the measure or matter the total number of votes 

for and against and the names of the Members voting for and 

against. 


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jbell on DSK7SPTVN1PROD with REPORTSInsert graphic folio 28 HR49.001

Date: April 17, 2013 

COMMITTEE ON EDUCATION AND THE WORKFORCE RECORD OF COMMITTEE VOTE 

Amendment Number: 

Sponsor! Amendment Mr. Roe - Motion to table the appeal of the ruling of the chair. 

Narne & Slate Aye N" v~,::g Name & SUite Ay, No v~,i.~g 

Mr. KLINE (MN) (Chailman) X Mr. MILLER (CA) (Ranking) X 

Mr. PETRI (WI) X Mr. ANDREWS (NJ) X 

Mr. McKEON (CA) X Mr. SCOTT (VA) X 

Mr. WILSON (SC) X Mr. HINOJOSA (TX) X 

Mrs. FOXX (NC) X Mrs. McCARTHY (NY) X 

Mr. PRICE (GA) X Mr. TIERNEY (MA) X 

Mr. MARCHANT (TX) X Mr. HOLT (NJ) X 

Mr. HUNTER (CA) X Mrs. DAVIS (CA) X 

Mr. ROE (TN) X Mr. GRIJALVA (AZ) X 

Mr. THOMPSON (PA) X Mr. BISHOP (NY) X 

Mr. WALBERG (MI) X I Mr. LOEB SACK (IA) X 

Mr. SALMON (AZ) X I Mr. COURTNEY (CT) X 

Mr. GUTHRIE (KY) X Ms. FUDGE (OH) X 

Mr. DesJARLAIS (TN) X Mr. POLIS (CO) X 

Mr. ROKITA (IN) X Mr. SABLAN (MP) X 

Mr. BUCSHON (IN) X Mr. YARMUTH (KY) X 

Mr. GOWDY (SC) X Ms. WILSON (FL) X 

Mr. BARLETTA (PA) X Ms. BONAMICI (OR) X 

Mrs. ROBY (AL) X 

Mr. HECK (NV) X 

Mrs. BROOKS (IN) X 

Mr. HUDSON (NC) X 

Mr. MESSER (IN) X 

TOTALS: Aye: 22 No: 14 Not Voting: 5 

Total: 41 / Quorum: 14 / Report: 21 
27 


jbell on DSK7SPTVN1PROD with REPORTSInsert graphic folio 29 HR49.002

Date: 17,2013 

COMMITTEE ON EDUCATION AND THE WORKFORCE RECORD OF COMMITTEE VOTE 

Roll Call: 2 Bill: _~~:L40~ __ ____ Amendment Number: 3 

Disposition: Defeatedby a vote of 15 yeas and 23 nays, 

Sponsor! Amendment: Ms, Wilson retains the right to overtime pay and comp time. 

Nall1t' & State Aye N() V~ti:g Name & State Aye No V~ti:g 

ML KLINE (MN) (Chairman) X ML MILLER (CA) (Ranking) X 

Mr. PETRI (WI) X ML ANDREWS (NJ) X 

Mr. McKEON (CA) X Mr, SCOTT (VA) X 

Mr. WILSON (SC) X Mr, HINOJOSA (TX) X 

Mrs, FOXX (NC) X Mrs, McCARTHY (NY) X 

Mr. PRICE (GA) X Mr, TIERNEY (MA) X 

Mr. MARCHANT (TX) X Mr, HOLT (NJ) X 

Mr. HUNTER (CA) X Mrs, DAVIS (CA) X 

Mr. ROE (TN) X Mr. GRIJALVA (AZ) X 

ML THOMPSON (PA) X Mr, BISHOP (NY) X 

ML WALBERG (MI) X Mr. LOEB SACK (IA) X 

Mr. SALMON (AZ) X Mr. COURTNEY (CT) X 

Mr. GUTHRIE (KY) X Ms. FUDGE (OB) X 

Mr. DesJARLAIS (TN) X Mr. POLIS (CO) X 

Mr. ROKITA (IN) X Mr. SABLAN (MP) X 

Mr. BUCSHON (IN) X Mr. Y ARMUTH (KY) X 

Mr. GOWDY (SC) X Ms. WILSON (FL) X 

Mr. BARLETTA (PA) X Ms. BONAMICI (OR) X 

Mrs. ROBY (AL) X 

Mr. HECK (NV) X 

Mrs. BROOKS (IN) X 

Mr. HUDSON (NC) X 

Mr. MESSER (IN) X 

TOTALS: Aye: 15 No: 23 Not Voting: ~_ 3 

Total; 41 I Quorum; 141 Report: 21 
28 


jbell on DSK7SPTVN1PROD with REPORTSInsert graphic folio 30 HR49.003

Date: 17, 2013 

COMMITTEE ON EDUCA nON AND THE WORKFORCE RECORD OF COMMITTEE VOTE 

Roll Call: 3 Bill: H.R.1406 Amendment Number: ___ ~ ___ _ 

Disposition [):tea~e~~y_~_v0lE!_of14y~as and 23 nays:. 

Sponsor! Amendment: Ms, Bonamici - require overtime wages be put in interest-bearing account 

Name & State Ay>: No v~,::g Namo:& Sta!e Ay~ No v~:,;g 

Mr. KLINE (MN) (Chairman) X Mr. MILLER (CA) (Ranking) X 

Mr. PETRI (WI) X Mr. ANDREWS (NJ) X 

Mr. McKEON (CA) X Mr. SCOTT (VA) X 

Mr. WILSON (SC) X Mr. HINOJOSA (TX) X 

Mrs. FOXX (NC) X Mrs. McCARTHY (NY) X 

Mr. PRICE (GA) X Mr. TIERNEY (MA) X 

Mr. MARCHANT (TX) X Mr. HOLT (NJ) X 

Mr. HUNTER (CA) X Mrs. DAVIS (CA) X 

Mr. ROE (TN) X Mr. GRIJALVA (AZ) X 

Mr. THOMPSON (PA) X Mr. BISHOP (NY) X 

Mr. WALBERG (MI) X Mr. LOEBSACK (IA) X 

Mr. SALMON (AZ) X Mr. COURTNEY (CT) X 

Mr. GUTHRIE (KY) X Ms. FUDGE (OH) X 

Mr. DesJARLAIS (TN) X Mr. POLlS (CO) X 

Mr. ROKlTA (IN) X Mr. SABLAN (MP) X 

Mr. BUCSI-lON (IN) X Mr. YARMUTH (KY) X 

Mr. GOWDY (SC) X Ms. WILSON (FL) X 

Mr. BARLETTA (PA) X Ms. BONAMICI (OR) X 

Mrs. ROBY (AL) X 

Mr. HECK (NV) X 

Mrs. BROOKS (IN) X I 

Mr. HUDSON (NC) X 

Mr. MESSER (IN) X 

TOTALS: Aye: 14 No: 23 4 Not Voting: ..... ___ . __ ... _,. 

Total: 411 Quorum: 141 Report: 21 
29 


jbell on DSK7SPTVN1PROD with REPORTSInsert graphic folio 31 HR49.004

Date: April 17, 2013 

COMMITTEE ON EDUCATION AND THE WORKFORCE RECORD OF COMMITTEE VOTE 

Roll Call: .... 4 .. ~ .... ~ ... ~ ......... Bill: HR 1406 Amendment Number: .~.~~.~5 .. ~ ...... ~ 

Sponsor/Amendment: Mr. Bishop - require same workplace protections as public sector. 

Name & State Aye No v~,~:g Name & State Aye No v~,7:g 

ML KLINE (MN) (Chainnan) X Mr. MILLER (CA) (Ranking) X 

Mr. PETRI (WI) X Mr. ANDREWS (NJ) X 

ML McKEON (CA) X ML SCOTT (VA) X 

ML WILSON (SC) X Mr. HINOJOSA (TX) X 

Mrs. FOXX (NC) X Mrs. McCARTHY (NY) X 

ML PRICE (GAJ X ML TIERNEY (MA) X 

ML MARCHANT (TX) X ML HOLT (NJ) X 

ML HUNTER (CA) X Mrs. DAVIS (CA) X 

ML ROE (TN) X Mr. GRIJALVA (AZ) X 

Mr. THOMPSON (PA) X Mr. BISHOP (NY) X 

ML WALBERG (MI) X Mr. LOEBSACK (IA) X 

Mr. SALMON (AZ) X Mr. COURTNEY (CT) X 

Mr. GUTHRIE (KY) X Ms. FUDGE (OHl X 

ML DesJARLAIS (TN) X ML POLIS (CO) X 

ML ROKITA (IN) X ML SABLAN (MP) X 

Mr. BUCSHON (IN) X ARMUTH (KY) X 

ML GOWDY (SC) X Ms. WILSON (FL) X 

Mr. BARLETTA (PA) X Ms. BONAMICI (OR) X 

Mrs. ROBY (ALl X ! 

Mr. HECK (NV) X I I 

Mrs. BROOKS (IN) X 

ML HUDSON (NC) X 

Mr. MESSER (IN) X 

TOTALS: Aye: 14 No: 4 

Total: 41 1 Quorum: 141 Report: 21 
30 


jbell on DSK7SPTVN1PROD with REPORTSInsert graphic folio 32 HR49.005

Date: 17,2013 

COMMITTEE ON EDUCATION AND THE WORKFORCE RECORD OF COMMITTEE VOTE 

Roll Call: 5 Bill: H.R. 1406 Amendment Number: 

Disposition: Ordered favorably!ep_orted to the House, as amended, a vote of 23 yeas and 14 nays. 

Sponsor/Amendment: Mr.Petri - motion to report the bill to the House with an amendment and with the recommendation that 

the amendment be agreed to, and the bill as amended do pass. 

Name & State Aye No V Name & Stale Ay, N, v~,i:g 

Mr. KLINE (MN) (Chairman) X Mr. MILLER (CAl (Ranking) X 

Mr. PETRI (WI) X Mr. ANDREWS (NJ) X 

Mr. McKEON (CA) X Mr. SCOTT (VA) X 

Mr. WILSON (SC) X Mr. HINOJOSA (TX) X 

Mrs. FOXX (NC) X Mrs. McCARTHY (NY) X 

Mr. PRICE (GA) X Mr. TIERNEY (MA) X 

Mr. MARCHANT (TX) X Mr. HOLT (NJ) X 

Mr. HUNTER (CA) X Mrs. DAVIS (CA) X 

Mr. ROE (TN) X 

iG"'mA(~ X 

Mr. THOMPSON (PA) X BISHOP (NY) X 

Mr. WALBERG (MI) X LOEB SACK (lA) X 

Mr. SALMON (AZ) X COURTNEY (CT) X 

Mr. GUTHRIE (KY) X FUDGE (OH) X 

Mr. DesJARLAIS (TN) X ~ "''''' (m) 

X 

Mr. ROKlTA (IN) X . SABLAN (MP) X 

Mr. BUCSHON (IN) X . Y ARMUTH (KY) X 

Mr. GOWDY (SC) X Ms. WILSON (FL) X 

Mr. BARLETTA (PA) X Ms. BONAMICI (OR) X 

Mrs. ROBY (AL) X 

= Mr. flECK (NV) X 

Mrs. BROOKS (IN) X . 

Mr. HUDSON (NC) X 

Mr. MESSER (IN) X 

TOTALS: Aye: 23 No: 14 Not Voting: ____ ~_4~_. ___ _ 

Total: 41 I Quorum: 14 I Report: 21 
31 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c) of House Rule XIII, the goal of 

H.R. 1406 is to provide for compensatory time for employees in the 

private-sector. The Committee expects the Department of Labor to 

comply with these provisions and implement the changes to the 

law in accordance with this stated goal. 

DUPLICATION OF FEDERAL PROGRAMS

No provision of H.R. 1406 establishes or reauthorizes a program 

of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

DISCLOSURE OF DIRECTED RULE MAKINGS

The committee estimates that enacting H.R. 1406 does not specifically direct the completion of any specific rule makings within 

the meaning of 5 U.S.C. 551. 

STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

body of this report. 

NEW BUDGET AUTHORITY AND CBO COST ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the Rules of the House of Representatives and section 308(a) of the 

Congressional Budget Act of 1974 and with respect to requirements 

of clause 3(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 1974, the 

Committee has received the following estimate for H.R. 1406 from 

the Director of the Congressional Budget Office: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, April 19, 2013. 

Hon. JOHN KLINE, Chairman, Committee on Education and the Workforce, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 1406, the Working Families Flexibility Act of 2013. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Christina Hawley Anthony. 

Sincerely, DOUGLAS W. ELMENDORF, Director. 

Enclosure. 


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32 

H.R. 1406—Working Families Flexibility Act of 2013 

H.R. 1406 would amend the Fair Labor Standards Act of 1938 to 

provide compensatory time for employees in the private sector. In 

lieu of overtime pay, employees could receive compensatory time off 

at a rate not less than one and one-half hours for each hour of employment for which overtime pay would otherwise have been required. Such compensatory time could be provided only in accordance with a collective bargaining agreement or with the consent of 

affected employees. The changes would be effective for five years 

after enactment of the bill. 

Enacting H.R. 1406 would not affect direct spending or revenues; 

therefore, pay-as-you-go procedures do not apply. Implementing the 

bill also would not affect spending subject to appropriation. 

H.R. 1406 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

impose no costs on state, local, or tribal governments. 

The CBO staff contact for this estimate is Christina Hawley Anthony. The estimate was approved by Peter H. Fontaine, Assistant 

Director for Budget Analysis. 

COMMITTEE COST ESTIMATE

Clause 3(d)(1) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison of the costs 

that would be incurred in carrying out H.R. 1406. However, clause 

3(d)(2)(B) of that rule provides that this requirement does not 

apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional 

Budget Act. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italic 

and existing law in which no change is proposed is shown in 

roman): 

FAIR LABOR STANDARDS ACT OF 1938 

* * * * * * * 

MAXIMUM HOURS 

SEC. 7. (a)(1) Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is 

engaged in commerce or in the production of goods for commerce, 

or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty 

hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than 

one and one-half times the regular rate at which he is employed. 

(2) No employer shall employ any of his employees who in any 

workweek is engaged in commerce or in the production of goods for 

commerce, or is employed in an enterprise engaged in commerce or 

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33 

week is brought within the purview of this subsection by the 

amendments made to this Act by the Fair Labor Standards Amendments of 1966— 

(A) for a workweek longer than forty-four hours during the 

first year from the effective date of the Fair Labor Standards 

Amendments of 1966, 

(B) for a workweek longer than forty-two hours during the 

second year from such date, or 

(C) for a workweek longer than forty hours after the expiration of the second year from such date, 

unless such employee receives compensation for his employment in 

excess of the hours above specified at a rate not less than one and 

one-half times the regular rate at which he is employed. 

(b) No employer shall be deemed to have violated subsection (a) 

by employing any employee for a workweek in excess of that specified in such subsection without paying the compensation for overtime employment prescribed therein if such employee is so employed— 

(1) in pursuance of an agreement, made as a result of collective bargaining by representatives of employees certified as 

bona fide by the National Labor Relations Board, which provides that no employee shall be employed more than one thousand and forty hours during any period of twenty-six consecutive weeks, or 

(2) in pursuance of an agreement, made as a result of collective bargaining by representatives of employees certified as 

bona fide by the National Labor Relations Board which provides that during a specified period of fifty-two consecutive 

weeks the employee shall be employed not more than two thousand two hundred and forty hours and shall be guaranteed not 

less than one thousand eight hundred and forty hours (or not 

less than forty-six weeks at the normal number of hours 

worked per week, but not less than thirty hours per week) and 

not more than two thousand and eighty hours of employment 

for which he shall receive compensation for all hours guaranteed or worked at rates not less than those applicable under 

the agreement to the work performed and for all hours in excess of the guaranty which are also in excess of the maximum 

workweek applicable to such employee under subsection (a) or 

two thousand and eighty in such period at rates not less than 

one and one-half times the regular rate at which he is employed; or 

(3) by an independently owned and controlled local enterprise (including an enterprise with more than one bulk storage 

establishment) engaged in the wholesale or bulk distribution of 

petroleum products if— 

(A) the annual gross volume of sales of such enterprise 

is less than $1,000,000 exclusive of excise taxes. 

(B) more than 75 per centum of such enterprise’s annual 

dollar volume of sales is made within the State in which 

such enterprise is located, and 

(C) not more than 25 per centum of the annual dollar 

volume of sales of such enterprise is to customers who are 

engaged in the bulk distribution of such products for resale; 


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34 

and if such employee receives compensation for employment in excess of twelve hours in any workday, or for employment in excess 

of fifty-six hours in any workweek, as the case may be, at a rate 

not less than one and one-half times the regular rate at which he 

is employed. 

(e) As used in this section the ‘‘regular rate’’ at which an employee is employed shall be deemed to include all remuneration for 

employment paid to, or on behalf of, the employee, but shall not be 

deemed to include— 

(1) sums paid as gifts; payments in the nature of gifts made 

at Christmas time or on other special occasions, as a reward 

for service, the amounts of which are not measured by or dependent on hours worked, production, or efficiency; 

(2) payments made for occasional periods when no work is 

performed due to vacation, holiday, illness, failure of the employer to provide sufficient work or other similar cause; reasonable payments for traveling expenses, or other expenses, incurred by an employee in the furtherance of his employer’s interests and properly reimburseable by the employer; and other 

similar payments to any employee which are not made as compensation for his hours of employment; 

(3) sums paid in recognition of services performed during a 

given period if either, (a) both the fact that payment is to be 

made and the amount of the payment are determined at the 

sole discretion of the employer at or near the end of the period 

and not pursuant to any prior contract, agreement, or promise 

causing the employee to expect such payments regularly; or (b) 

the payments are made pursuant to a bona fide profit-sharing 

plan or trust or bona fide thrift or savings plan, meeting the 

requirements of the Secretary of Labor set forth in appropriate 

regulations which he shall issue, having due regard among 

other relevant facts, to the extent to which the amounts paid 

to the employee are determined without regard to hours of 

work, production, or efficiency; or (c) the payments are talent 

fees (as such talent fees are defined and delimited by regulations of the Secretary) paid to performers, including announcers, on radio and television programs; 

(4) contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing 

old-age retirement, life, accident, or health insurance or similar 

benefits for employees; 

(5) extra compensation provided by a premium rate paid for 

certain hours worked by the employee in any day or workweek 

because such hours are hours worked in excess of eight in a 

day or in excess of the maximum workweek applicable to such 

employee under subsection (a) or in excess of the employee’s 

normal working hours or regular working hours, as the case 

may be; 

(6) extra compensation provided by a premium rate paid for 

work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than one and onehalf times the rate established in good faith for like work performed in nonovertime hours on other days; 


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(7) extra compensation provided by a premium rate paid to 

the employee, in pursuance of an applicable employment contract or collective-bargaining agreement, for work outside of 

the hours established in good faith by the contract or agreement as the basic, normal, or regular workday (not exceeding 

eight hours) or workweek (not exceeding the maximum workweek applicable to such employee under subsection (a)), where 

such premium rate is not less than one and one-half times the 

rate established in good faith by the contract or agreement for 

like work performed during such workday or workweek; or 

(8) any value or income derived from employer-provided 

grants or rights provided pursuant to a stock option, stock appreciation right, or bona fide employee stock purchase program 

which is not otherwise excludable under any of paragraphs (1) 

through (7) if— 

(A) grants are made pursuant to a program, the terms 

and conditions of which are communicated to participating 

employees either at the beginning of the employee’s participation in the program or at the time of the grant; 

(B) in the case of stock options and stock appreciation 

rights, the grant or right cannot be exercisable for a period 

of at least 6 months after the time of grant (except that 

grants or rights may become exercisable because of an employee’s death, disability, retirement, or a change in corporate ownership, or other circumstances permitted by regulation), and the exercise price is at least 85 percent of the 

fair market value of the stock at the time of grant; 

(C) exercise of any grant or right is voluntary; and 

(D) any determinations regarding the award of, and the 

amount of, employer-provided grants or rights that are 

based on performance are— 

(i) made based upon meeting previously established 

performance criteria (which may include hours of 

work, efficiency, or productivity) of any business unit 

consisting of at least 10 employees or of a facility, except that, any determinations may be based on length 

of service or minimum schedule of hours or days of 

work; or 

(ii) made based upon the past performance (which 

may include any criteria) of one or more employees in 

a given period so long as the determination is in the 

sole discretion of the employer and not pursuant to 

any prior contract. 

(f) No employer shall be deemed to have violated subsection (a) 

by employing any employee for a workweek in excess of the maximum workweek applicable to such employee under subsection (a) 

if such employee is employed pursuant to a bona fide individual 

contract, or pursuant to an agreement made as a result of collective 

bargaining by representatives of employees, if the duties of such 

employee necessitate irregular hours of work, and the contract or 

agreement (1) specifies a regular rate of pay of not less than the 

minimum hourly rate provided in subsection (a) or (b) of section 6 

(whichever may be applicable) and compensation at not less than 

one and one-half times such rate for all hours worked in excess of 


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36 

such maximum workweek, and (2) provides a weekly guaranty of 

pay for not more than sixty hours based on the rates so specified. 

(g) No employer shall be deemed to have violated subsection (a) 

by employing any employee for a workweek in excess of the maximum workweek applicable to such employee under such subsection 

if, pursuant to an agreement or understanding arrived at between 

the employer and the employee before performance of the work, the 

amount paid to the employee for the number of hours worked by 

him in such workweek in excess of the maximum workweek applicable to such employee under such subsection— 

(1) in the case of an employee employed at piece rates, is 

computed at piece rates not less than one and one-half times 

the bona fide piece rates applicable to the same work when 

performed during nonovertime hours; or 

(2) in the case of an employee performing two or more kinds 

of work for which different hourly or piece rates have been established, is computed at rates not less than one and one-half 

times such bona fide rates applicable to the same work when 

performed during nonovertime hours; or 

(3) is computed at a rate not less than one and one-half 

times the rate established by such agreement or understanding 

as the basic rate to be used in computing overtime compensation thereunder: Provided, That the rate so established shall be 

authorized by regulation by the Secretary of Labor as being 

substantially equivalent to the average hourly earnings of the 

employee, exclusive of overtime premiums, in the particular 

work over a representative period of time; 

and if (i) the employee’s average hourly earnings for the workweek 

exclusive of payments described in paragraphs (1) through (7) of 

subsection (e) are not less than the minimum hourly rate required 

by applicable law, and (ii) extra overtime compensation is properly 

computed and paid on other forms of additional pay required to be 

included in computing the regular rate. 

(h)(1) Except as provided in paragraph (2), sums excluded from 

the regular rate pursuant to subsection (e) shall not be creditable 

toward wages required under section 6 or overtime compensation 

required under this section. 

(2) Extra compensation paid as described in paragraphs (5), (6), 

and (7) of subsection (e) shall be creditable toward overtime compensation payable pursuant to this section. 

(i) No employer shall be deemed to have violated subsection (a) 

by employing any employee of a retail or service establishment for 

a workweek in excess of the applicable workweek specified therein, 

if (1) the regular rate of pay of such employee is in excess of one 

and one-half times the minimum hourly rate applicable to him 

under section 6, and (2) more than half his compensation for a representative period (not less than one month) represents commissions on goods or services. In determining the proportion of compensation representing commissions, all earnings resulting from 

the application of a bona fide commission rate shall be deemed 

commissions on goods or services without regard to whether the 

computed commissions exceed the draw or guarantee. 

(j) No employer engaged in the operation of a hospital or an establishment which is an institution primarily engaged in the care 

of the sick, the aged, or the mentally ill or defective who reside on 


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37 

the premises shall be deemed to have violated subsection (a) if, 

pursuant to an agreement or understanding arrived at between the 

employer and the employee before performance of the work, a work 

period of fourteen consecutive days is accepted in lieu of the workweek of seven consecutive days for purposes of overtime computation and if, for his employment in excess of eight hours in any 

workday and in excess of eighty hours in such fourteen-day period, 

the employee receives compensation at a rate of not less than one 

and one-half times the regular rate at which he is employed. 

(k) No public agency shall be deemed to have violated subsection 

(a) with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities (including security personnel in correctional institutions) if— 

(1) in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours (as determined by the Secretary pursuant to section 6(c)(3) of the 

Fair Labor Standards Amendments of 1974) in tours of duty of 

employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; or 

(2) in the case of such employee to whom a work period of 

at least 7 but less than 28 days applies, in his work period the 

employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the 

number of consecutive days in his work period as 216 hours (or 

if lower, the number of hours referred to in clause (B) of paragraph (1)) bears to 28 days; 

compensation at a rate not less than one and one-half times the 

regular rate at which he is employed. 

(l) No employer shall employ any employee in domestic service in 

one or more households for a workweek longer than forty hours unless such employee receives compensation for such employment in 

accordance with subsection (a). 

(m) For a period or periods of not more than fourteen workweeks 

in the aggregate in any calendar year, any employer may employ 

any employee for a workweek in excess of that specified in subsection (a) without paying the compensation for overtime employment prescribed in such subsection, if such employee— 

(1) is employed by such employer— 

(A) to provide services (including stripping and grading) 

necessary and incidental to the sale at auction of green 

leaf tobacco of type 11, 12, 13, 14, 21, 22, 23, 24, 31, 35, 

36, or 37 (as such types are defined by the Secretary of Agriculture), or in auction sale, buying, handling, stemming, 

redrying, packing, and storing of such tobacco, 

(B) in auction sale, buying, handling, sorting, grading, 

packing, or storing green leaf tobacco of type 32 (as such 

type is defined by the Secretary of Agriculture), or 

(C) in auction sale, buying, handling, stripping, sorting, 

grading, sizing, packing, or stemming prior to packing, of 

perishable cigar leaf tobacco of type 41, 42, 43, 44, 45, 46, 

51, 52, 53, 54, 55, 61, or 62 (as such types are defined by 

the Secretary of Agriculture); and 

(2) receives for— 


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(A) such employment by such employer which is in excess of ten hours in any workday, and 

(B) such employment by such employer which is in excess of forty-eight hours in any workweek, 

compensation at a rate not less than one and one-half times 

the regular rate at which he is employed. 

An employer who receives an exemption under this subsection shall 

not be eligible for any other exemption under this section. 

(n) In the case of an employee of an employer engaged in the 

business of operating a street, suburban or interurban electric railway or local trolley or motorbus carrier (regardless of whether or 

not such railway or carrier is public or private or operated for profit or not for profit), in determining the hours of employment of such 

an employee to which the rate prescribed by subsection (a) applies 

there shall be excluded the hours such employee was employed in 

charter activities by such employer if (1) the employee’s employment in such activities was pursuant to an agreement or understanding with his employer arrived at before engaging in such employment, and (2) if employment in such activities is not part of 

such employee’s regular employment. 

(o)(1) Employees of a public agency which is a State, a political 

subdivision of a State, or an interstate governmental agency may 

receive, in accordance with this subsection and in lieu of overtime 

compensation, compensatory time off at a rate not less than one 

and one-half hours for each hour of employment for which overtime 

compensation is required by this section. 

(2) A public agency may provide compensatory time under paragraph (1) only— 

(A) pursuant to— 

(i) applicable provisions of a collective bargaining agreement, memorandum of understanding, or any other agreement between the public agency and representatives of 

such employees; or 

(ii) in the case of employees not covered by subclause (i), 

an agreement or understanding arrived at between the 

employer and employee before the performance of the 

work; and 

(B) if the employee has not accrued compensatory time in excess of the limit applicable to the employee prescribed by paragraph (3). 

In the case of employees described in clause (A)(ii) hired prior to 

April 15, 1986, the regular practice in effect on April 15, 1986, with 

respect to compensatory time off for such employees in lieu of the 

receipt of overtime compensation, shall constitute an agreement or 

understanding under such clause (A)(ii). Except as provided in the 

previous sentence, the provision of compensatory time off to such 

employees for hours worked after April 14, 1986, shall be in accordance with this subsection. 

(3)(A) If the work of an employee for which compensatory time 

may be provided included work in a public safety activity, an emergency response activity, or a seasonal activity, the employee engaged in such work may accrue not more than 480 hours of compensatory time for hours worked after April 15, 1986. If such work 

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


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39 

worked after April 15, 1986. Any such employee who, after April 

15, 1986, has accrued 480 or 240 hours, as the case may be, of compensatory time off shall, for additional overtime hours of work, be 

paid overtime compensation. 

(B) If compensation is paid to an employee for accrued compensatory time off, such compensation shall be paid at the regular rate 

earned by the employee at the time the employee receives such 

payment. 

(4) An employee who has accrued compensatory time off authorized to be provided under paragraph (1) shall, upon termination of 

employment, be paid for the unused compensatory time at a rate 

of compensation not less than— 

(A) the average regular rate received by such employee during the last 3 years of the employee’s employment, or 

(B) the final regular rate received by such employee, 

whichever is higher 

(5) An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency— 

(A) who has accrued compensatory time off authorized to be 

provided under paragraph (1), and 

(B) who has requested the use of such compensatory time, 

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

within a reasonable period after making the request if the use of 

the compensatory time does not unduly disrupt the operations of 

the public agency. 

(6) The hours an employee of a public agency performs court reporting transcript preparation duties shall not be considered as 

hours worked for the purposes of subsection (a) if— 

(A) such employee is paid at a per-page rate which is not less 

than— 

(i) the maximum rate established by State law or local 

ordinance for the jurisdiction of such public agency, 

(ii) the maximum rate otherwise established by a judicial or administrative officer and in effect on July 1, 1995, 

or 

(iii) the rate freely negotiated between the employee and 

the party requesting the transcript, other than the judge 

who presided over the proceedings being transcribed, and 

(B) the hours spent performing such duties are outside of the 

hours such employee performs other work (including hours for 

which the agency requires the employee’s attendance) pursuant 

to the employment relationship with such public agency. 

For purposes of this section, the amount paid such employee in accordance with subparagraph (A) for the performance of court reporting transcript preparation duties, shall not be considered in the 

calculation of the regular rate at which such employee is employed. 

(7) For purposes of this subsection— 

(A) the term ‘‘overtime compensation’’ means the compensation required by subsection (a), and 

(B) the terms ‘‘compensatory time’’ and ‘‘compensatory time 

off’’ mean hours during which an employee is not working, 

which are not counted as hours worked during the applicable 

workweek or other work period for purposes of overtime compensation, and for which the employee is compensated at the 

employee’s regular rate. 


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(p)(1) If an individual who is employed by a State, political subdivision of a State, or an interstate governmental agency in fire 

protection or law enforcement activities (including activities of security personnel in correctional institutions) and who, solely at 

such individual’s option, agrees to be employed on a special detail 

by a separate or independent employer in fire protection, law enforcement, or related activities, the hours such individual was employed by such separate and independent employer shall be excluded by the public agency employing such individual in the calculation of the hours for which the employee is entitled to overtime 

compensation under this section if the public agency— 

(A) requires that its employees engaged in fire protection, 

law enforcement, or security activities be hired by a separate 

and independent employer to perform the special detail, 

(B) facilitates the employment of such employees by a separate and independent employer, or 

(C) otherwise affects the condition of employment of such 

employees by a separate and independent employer. 

(2) If an employee of a public agency which is a State, political 

subdivision of a State, or an interstate governmental agency undertakes, on an occasional or sporadic basis and solely at the employee’s option, part-time employment for the public agency which is in 

a different capacity from any capacity in which the employee is regularly employed with the public agency, the hours such employee 

was employed in performing the different employment shall be excluded by the public agency in the calculation of the hours for 

which the employee is entitled to overtime compensation under this 

section. 

(3) If an individual who is employed in any capacity by a public 

agency which is a State, political subdivision of a State, or an interstate governmental agency, agrees, with the approval of the public 

agency and solely at the option of such individual, to substitute 

during scheduled work hours for another individual who is employed by such agency in the same capacity, the hours such employee worked as a substitute shall be excluded by the public agency in the calculation of the hours for which the employee is entitled 

to overtime compensation under this section. 

(q) Any employer may employ any employee for a period or periods of not more than 10 hours in the aggregate in any workweek 

in excess of the maximum workweek specified in subsection (a) 

without paying the compensation for overtime employment prescribed in such subsection, if during such period or periods the employee is receiving remedial education that is— 

(1) provided to employees who lack a high school diploma or 

educational attainment at the eighth grade level; 

(2) designed to provide reading and other basic skills at an 

eighth grade level or below; and 

(3) does not include job specific training. 

(r)(1) An employer shall provide— 

(A) a reasonable break time for an employee to express 

breast milk for her nursing child for 1 year after the child’s 

birth each time such employee has need to express the milk; 

and 


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41 

(B) a place, other than a bathroom, that is shielded from 

view and free from intrusion from coworkers and the public, 

which may be used by an employee to express breast milk. 

(2) An employer shall not be required to compensate an employee 

receiving reasonable break time under paragraph (1) for any work 

time spent for such purpose. 

(3) An employer that employs less than 50 employees shall not 

be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer 

significant difficulty or expense when considered in relation to the 

size, financial resources, nature, or structure of the employer’s 

business. 

(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection. 

(s) COMPENSATORY TIME OFF FOR PRIVATE EMPLOYEES.— 

(1) GENERAL RULE.—An employee may receive, in accordance 

with this subsection and in lieu of monetary overtime compensation, compensatory time off at a rate not less than one and 

one-half hours for each hour of employment for which overtime 

compensation is required by this section. 

(2) CONDITIONS.—An employer may provide compensatory 

time to employees under paragraph (1)(A) only if such time is 

provided in accordance with— 

(A) applicable provisions of a collective bargaining agreement between the employer and the labor organization that 

has been certified or recognized as the representative of the 

employees under applicable law; or 

(B) in the case of employees who are not represented by 

a labor organization that has been certified or recognized 

as the representative of such employees under applicable 

law, an agreement arrived at between the employer and employee before the performance of the work and affirmed by 

a written or otherwise verifiable record maintained in accordance with section 11(c)— 

(i) in which the employer has offered and the employee has chosen to receive compensatory time in lieu 

of monetary overtime compensation; and 

(ii) entered into knowingly and voluntarily by such 

employees and not as a condition of employment. 

No employee may receive or agree to receive compensatory time 

off under this subsection unless the employee has worked at 

least 1,000 hours for the employee’s employer during a period 

of continuous employment with the employer in the 12-month 

period before the date of agreement or receipt of compensatory 

time off. 

(3) HOUR LIMIT.— 

(A) MAXIMUM HOURS.—An employee may accrue not more 

than 160 hours of compensatory time. 

(B) COMPENSATION DATE.—Not later than January 31 of 

each calendar year, the employee’s employer shall provide 

monetary compensation for any unused compensatory time 

off accrued during the preceding calendar year that was 

not used prior to December 31 of the preceding year at the 

rate prescribed by paragraph (6). An employer may desVerDate Mar 15 2010 05:52 May 01, 2013 Jkt 029006 PO 00000 Frm 00041 Fmt 6659 Sfmt 6603 E:\HR\OC\HR049.XXX HR049

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ignate and communicate to the employer’s employees a 12- 

month period other than the calendar year, in which case 

such compensation shall be provided not later than 31 days 

after the end of such 12-month period. 

(C) EXCESS OF 80 HOURS.—The employer may provide 

monetary compensation for an employee’s unused compensatory time in excess of 80 hours at any time after giving 

the employee at least 30 days notice. Such compensation 

shall be provided at the rate prescribed by paragraph (6). 

(D) POLICY.—Except where a collective bargaining agreement provides otherwise, an employer that has adopted a 

policy offering compensatory time to employees may discontinue such policy upon giving employees 30 days notice. 

(E) WRITTEN REQUEST.—An employee may withdraw an 

agreement described in paragraph (2)(B) at any time. An 

employee may also request in writing that monetary compensation be provided, at any time, for all compensatory 

time accrued that has not yet been used. Within 30 days of 

receiving the written request, the employer shall provide the 

employee the monetary compensation due in accordance 

with paragraph (6). 

(4) PRIVATE EMPLOYER ACTIONS.—An employer that provides 

compensatory time under paragraph (1) to employees shall not 

directly or indirectly intimidate, threaten, or coerce or attempt 

to intimidate, threaten, or coerce any employee for the purpose 

of— 

(A) interfering with such employee’s rights under this 

subsection to request or not request compensatory time off 

in lieu of payment of monetary overtime compensation for 

overtime hours; or 

(B) requiring any employee to use such compensatory 

time. 

(5) TERMINATION OF EMPLOYMENT.—An employee who has accrued compensatory time off authorized to be provided under 

paragraph (1) shall, upon the voluntary or involuntary termination of employment, be paid for the unused compensatory 

time in accordance with paragraph (6). 

(6) RATE OF COMPENSATION.— (A) GENERAL RULE.—If compensation is to be paid to an 

employee for accrued compensatory time off, such compensation shall be paid at a rate of compensation not less 

than— 

(i) the regular rate received by such employee when 

the compensatory time was earned; or 

(ii) the final regular rate received by such employee, 

whichever is higher. 

(B) CONSIDERATION OF PAYMENT.—Any payment owed to 

an employee under this subsection for unused compensatory 

time shall be considered unpaid overtime compensation. 

(7) USE OF TIME.—An employee— 

(A) who has accrued compensatory time off authorized to 

be provided under paragraph (1); and 

(B) who has requested the use of such compensatory time, 

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

within a reasonable period after making the request if the use 


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43 

of the compensatory time does not unduly disrupt the operations 

of the employer. 

(8) DEFINITIONS.—For purposes of this subsection— 

(A) the term ‘‘employee’’ does not include an employee of 

a public agency; and 

(B) the terms ‘‘overtime compensation’’ and ‘‘compensatory time’’ shall have the meanings given such terms by 

subsection (o)(7). 

* * * * * * * 

PENALTIES 

SEC. 16. (a) Any person who willfully violates any of the provisions of section 15 shall upon conviction thereof be subject to a fine 

of not more than $10,000, or to imprisonment for not more than six 

months, or both. No person shall be imprisoned under this subsection except for an offense committed after the conviction of such 

person for a prior offense under this subsection. 

ø(b) Any employer¿ (b) Except as provided in subsection (f), any 

employer who violates the provisions of section 6 or section 7 of this 

Act shall be liable to the employee or employees affected in the 

amount of their unpaid minimum wages, or the unpaid overtime 

compensation, as the case may be, and in an additional equal 

amount as liquidated damages. Any employer who violates the provisions of section 15(a)(3) of this Act shall be liable for such legal 

or equitable relief as may be appropriate to effectuate the purposes 

of section 15(a)(3), including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages. An action to recover 

the liability prescribed in either of the preceding sentences may be 

maintained against any employer (including a public agency) in 

any Federal or State court of competent jurisdiction by any one or 

more employees for and in behalf of himself or themselves and 

other employees similarly situated. No employees shall be a party 

plaintiff to any such action unless he gives his consent in writing 

to become such a party and such consent is filed in the court in 

which such action is brought. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow 

a reasonable attorney’s fee to be paid by the defendant, and costs 

of the action. The right provided by this subsection to bring an action by or on behalf of any employee, and the right of any employee 

to become a party plaintiff to any such action, shall terminate upon 

the filing of a complaint by the Secretary of Labor in an action 

under section 17 in which (1) restraint is sought of any further 

delay in the payment of unpaid minimum wages, or the amount of 

unpaid overtime compensation, as the case may be, owing to such 

employee under section 6 or section 7 of this act by an employer 

liable therefor under the provisions of this subsection or (2) legal 

or equitable relief is sought as a result of alleged violations of section 15(a)(3). 

(c) The Secretary is authorized to supervise the payment of the 

unpaid minimum wages or the unpaid overtime compensation 

owing to any employee or employees under section 6 or 7 of this 

Act, and the agreement of any employee to accept such payment 

shall upon payment in full constitute a waiver by such employee 


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44 

of any right he may have under subsection (b) of this section to 

such unpaid minimum wages or unpaid overtime compensation and 

an additional equal amount as liquidated damages. The Secretary 

may bring an action in any court of competent jurisdiction to recover the amount of the unpaid minimum wages or overtime compensation and an equal amount as liquidated damages. The right 

provided by subsection (b) to bring an action by or on behalf of any 

employee to recover the liability specified in the first sentence of 

such subsection and of any employee to become a party plaintiff to 

any such action shall terminate upon the filing of a complaint by 

the Secretary in an action under this subsection in which a recovery is sought of unpaid minimum wages or unpaid overtime compensation under sections 6 and 7 or liquidated or other damages 

provided by this subsection owing to such employee by an employer 

liable under the provisions of subsection (b), unless such action is 

dismissed without prejudice on motion of the Secretary. Any sums 

thus recovered by the Secretary on behalf of an employee pursuant 

to this subsection shall be held in a special deposit account and 

shall be paid, on order of the Secretary, directly to the employee 

or employees affected. Any such sums not paid to an employee because of inability to do so within a period of three years shall be 

covered into the Treasury of the United States as miscellaneous receipts. In determining when an action is commenced by the Secretary under this subsection for the purposes of the statutes of limitations provided in section 6(a) of the Portal-to-Portal Act of 1947, 

it shall be considered to be commenced in the case of any individual claimant on the date when the complaint is filed if he is specifically named as a party plaintiff in the complaint, or if his name 

did not so appear, on the subsequent date on which his name is 

added as a party plantiff in such action. 

(d) In any action or proceeding commenced prior to, on, or after 

the date of enactment of this subsection, no employer shall be subject to any liability or punishment under this Act or the Portal-toPortal Act of 1947 on account of his failure to comply with any provision or provisions of such Acts (1) with respect to work heretofore 

or hereafter performed in a workplace to which the exemption in 

section 13(f) is applicable, (2) with respect to work performed in 

Guam, the Canal Zone, or Wake Island before the effective date of 

this amendment of subsection (d), or (3) with respect to work performed in a possession named in section 6(a)(3) at any time prior 

to the establishment by the Secretary, as provided therein, of a 

minimum wage rate applicable to such work. 

(e)(1)(A) Any person who violates the provisions of sections 12 or 

13(c), relating to child labor, or any regulation issued pursuant to 

such sections, shall be subject to a civil penalty not to exceed— 

(i) $11,000 for each employee who was the subject of such a 

violation; or 

(ii) $50,000 with regard to each such violation that causes 

the death or serious injury of any employee under the age of 

18 years, which penalty may be doubled where the violation is 

a repeated or willful violation. 

(B) For purposes of subparagraph (A), the term ‘‘serious injury’’ 

means— 

(i) permanent loss or substantial impairment of one of the 

senses (sight, hearing, taste, smell, tactile sensation); 


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(ii) permanent loss or substantial impairment of the function 

of a bodily member, organ, or mental faculty, including the loss 

of all or part of an arm, leg, foot, hand or other body part; or 

(iii) permanent paralysis or substantial impairment that 

causes loss of movement or mobility of an arm, leg, foot, hand 

or other body part. 

(2) Any person who repeatedly or willfully violates section 6 or 

7, relating to wages, shall be subject to a civil penalty not to exceed 

$1,100 for each such violation. 

(3) In determining the amount of any penalty under this subsection, the appropriateness of such penalty to the size of the business of the person charged and the gravity of the violation shall be 

considered. The amount of any penalty under this subsection, when 

finally determined, may be— 

(A) deducted from any sums owing by the United States to 

the person charged; 

(B) recovered in a civil action brought by the Secretary in 

any court of competent jurisdiction, in which litigation the Secretary shall be represented by the Solicitor of Labor; or 

(C) ordered by the court, in an action brought for a violation 

of section 15(a)(4) or a repeated or willful violation of section 

15(a)(2), to be paid to the Secretary. 

(4) Any administrative determination by the Secretary of the 

amount of any penalty under this subsection shall be final, unless 

within 15 days after receipt of notice thereof by certified mail the 

person charged with the violation takes exception to the determination that the violations for which the penalty is imposed occurred, 

in which event final determination of the penalty shall be made in 

an administrative proceeding after opportunity for hearing in accordance with section 554 of title 5, United States Code, and regulations to be promulgated by the Secretary. 

(5) Except for civil penalties collected for violations of section 12, 

sums collected as penalties pursuant to this section shall be applied toward reimbursement of the costs of determining the violations and assessing and collecting such penalties, in accordance 

with the provision of section 2 of the Act entitled ‘‘An Act to authorize the Department of Labor to make special statistical studies 

upon payment of the cost thereof and for other purposes’’ (29 

U.S.C. 9a). Civil penalties collected for violations of section 12 shall 

be deposited in the general fund of the Treasury. 

(f) An employer that violates section 7(s)(4) shall be liable to the 

employee affected in the amount of the rate of compensation (determined in accordance with section 7(s)(6)(A)) for each hour of compensatory time accrued by the employee and in an additional equal 

amount as liquidated damages reduced by the amount of such rate 

of compensation for each hour of compensatory time used by such 

employee. 

* * * * * * * 


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1See Eric Cantor, ‘‘Making Life Work’’ Remarks for the AEI, February 5, 2013. Available at 

http://www.aei.org/article/politics-and-public-opinion/legislative/house/remarks-by-majority-leader 

-eric-cantor-as-prepared-for-delivery. 

MINORITY VIEWS 

H.R. 1406, ‘‘THE WORKING FAMILIES FLEXIBILITY ACT’’ 

113TH CONGRESS, 1ST SESSION

APRIL 30, 2013

Committee Democrats oppose H.R. 1406. This bill would amend 

the Fair Labor Standards Act (FLSA) to allow private sector employers to ‘‘compensate’’ hourly workers with compensatory 

(‘‘comp’’) time off in lieu of overtime pay. By forcing workers to 

compromise their paycheck in order to have more time off work, 

with no guarantee that they would actually receive the time off 

when they need it, this bill would jeopardize the economic wellbeing of millions of Americans who depend on overtime wages to 

make ends meet. 

H.R. 1406 does nothing to provide working families with meaningful flexibility. Instead, it rolls back the clock on vital gains that 

working people achieved with the passage of the FLSA in 1938. It 

cuts wages for middle class and low-income Americans at a time 

when they are already facing overwhelming financial stress. It 

gives employers—not employees—flexibility in setting working 

hours. It impedes enforcement of overtime laws. In short, it undermines one of the most important, hard-fought legal protections that 

workers currently depend upon. 

This bill is being pushed through by House leadership as part of 

rebranding campaign to soften the majority’s image with a supposedly ‘‘family friendly’’ agenda.1 Unfortunately, rather than presenting this Committee with a proposal that would actually benefit 

working families, the majority has simply reintroduced a proposal 

that would let employers pay workers less. The bill forces workers 

into an unnecessary choice between earned overtime pay and family-friendly scheduling. Congress ought to pass legislation that both 

protects earned overtime pay and promotes needed flexibility in the 

workplace. H.R. 1406 simply rehashes a worn-out decades-old idea 

that has been rejected multiple times in the past, and it will meet 

the same fate this time around by never advancing beyond the 

House. 

Instead of H.R. 1406, what working families really need is legislation that would raise the minimum wage, ensure equal pay for 

equal work, provide paid sick leave to workers, provide paid family 

& medical leave for more workers and expand the Family and Medical Leave Act to include more employees. These are the kinds of 

changes that would make a real difference in the lives of working 


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2 29 U.S.C. § 202(a). 

3 29 U.S.C. §§ 201–217. 

4Memoirs by Harry S. Truman, Year of Decisions (Vol. 1) (1955), at 153. 

5 29 U.S.C. §§ 201–219. 

6 29 U.S.C. § 207(a). 

7 29 C.F.R. § 778.105. 

8 29 C.F.R. § 778.102. 

9 US Department of Labor, Wage and Hour Division, Fact Sheet #23: Overtime Pay Requirements of the FLSA, http://www.dol.gov/whd/regs/compliance/whdfs23.pdf. See also 29 C.F.R. 

§§ 778.102, 778.103. 

Americans, not a rushed proposal that undermines bedrock employment law and costs workers much needed overtime compensation. 

THE FAIR LABOR STANDARDS ACT

Background on the FLSA’s wage and hour protections 

In the 1930s, Congress saw the need for legislation to address 

the widespread ‘‘labor conditions detrimental to the maintenance of 

the minimum standard of living necessary for health, efficiency, 

and general well-being of workers.’’ 2 This concern ultimately led to 

the passage of the FLSA in 1938, which to this day stands as one 

of the crowning achievements of the New Deal. This crucial law establishes a federal minimum wage, restricts the use of child labor, 

and sets standards for when employers must pay workers overtime.3 President Harry Truman, who served in the Senate when 

Congress was considering the FLSA, would later describe it as 

‘‘[o]ne of the most important bills for which I voted. . . . [It was 

one of the] fundamental New Deal measures . . . intended to help 

the little people in labor who had no lobby and no influence.’’ 4

Seventy-five years after its enactment, the FLSA remains the nation’s basic law governing wages and hours of work. There are 

three main protections afforded to workers under this critical law: 

(1) a basic minimum wage, (2) a limit on the number of hours an 

employer may require from an employee before being subject to an 

overtime premium, and (3) a prohibition on most forms of child 

labor.5

The maximum hours and overtime provisions are set out in Section 7 of the FLSA. Currently, the law requires that all covered 

employees be compensated for any time that they work in excess 

of forty hours in a week at a rate of no less than one-and-a-half 

their regular wage rate.6 Although the limit on hours compensable 

at the regular wage rate is firmly set at forty, there is nonetheless 

substantial flexibility in how these hours are allotted over the 

course of a week. In the implementing regulations, a week is defined as a ‘‘fixed and regularly recurring 168-hour period,’’ 7 and 

there is no overtime premium for hours worked on weekends.8 Accordingly, the Wage and Hour Division (WHD) of the Department 

of Labor (DOL) states that a workweek ‘‘need not coincide with the 

calendar week, but may begin on any day and at any hour of the 

day. Different workweeks may be established for different employees or groups of employees.’’ 9

There are two primary purposes behind setting a maximum hour 

limit and subjecting further hours to an overtime premium: discouraging overwork and spreading employment. Congress sought to 

lessen the burden on workers that comes from working an ‘‘intolerVerDate Mar 15 2010 05:52 May 01, 2013 Jkt 029006 PO 00000 Frm 00047 Fmt 6604 Sfmt 6604 E:\HR\OC\HR049.XXX HR049

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10President Franklin D. Roosevelt, Annual Message to Congress, January 3, 1938. Available 

at http://www.presidency.ucsb.edu/ws/index.php?pid=15517. 11President Franklin D. Roosevelt, Message to Congress on Establishing Minimum Wages and 

Maximum Hours, May 24, 1937. Available at http://www.presidency.ucsb.edu/ws/index. 

php?pid=15405&st=wage&st1=/. Former Secretary of Labor Frances Perkins would later say the 

maximum hour provisions of the FLSA were key to achieving both of these goals—and this was 

especially important to the war effort during World War II: 

The Wage and Hour Act has been a success, and Roosevelt took comfort in the fact. 

Its principal objectives were accepted. The spread of employment by shorter hours started. The shorter hours have made a more humane schedule. The fact that excess hours 

are penalized by overtime costs has proved sufficient to keep hours at reasonable levels 

and yet flexible enough to make it possible to work more than forty hours when necessary, as it was during [World War II]. 

Frances Perkins, The Roosevelt I Knew (1946), at 266. 12Pub. Law 99–150. 13 29 U.S.C. § 207. 14Office of Personnel Management. ‘‘Fact Sheet: Compensatory Time Off.’’ Available at 

http://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/compensatorytime-off. See also 5 C.F.R. § 550.114. 15 Ross Eisenbrey, ‘‘The Naked Truth About Comp Time’’ Economic Policy Institute (March 31, 

2003), at 5–6. Available at http://www.epi.org/page/-/old/issuebriefs/ib190/ib190.pdf 16 Available at: http://www.gpo.gov/fdsys/pkg/BILLS-105hr1eh/pdf/BILLS-105hr1eh.pdf. 

able’’ number of hours in a given week.10 By charging a premium 

for extra work hours, employers are discouraged from overworking 

their employees. The other purpose behind the overtime wage premium is economic in nature spreading employment, thereby spurring hiring and reducing the unemployment rate. President Roosevelt argued this point in a 1937 message to Congress: ‘‘Reasonable and flexible use of the long established right of government to 

set and to change working hours can, I hope, decrease unemployment in those groups in which unemployment today principally exists.’’ 11

As originally enacted, the FLSA contained no provisions allowing 

employers to offer comp time in lieu of overtime wages. However, 

Congress changed this when it passed the Fair Labor Standards 

Amendments of 1985, which introduced a limited system of comp 

time for public-sector employees.12 Section 7(o) of the FLSA now 

provides that state and federal public sector workers are eligible 

for comp time in lieu of overtime wages, with the comp time to accumulate at a rate of one and half times the number of hours 

worked.13 As applied to federal employees, implementing regulations require that accrued comp time be used by the end of the 

26th pay period (one year) after the pay period during which the 

overtime hours were worked.14 Congress’s intention in adding this 

provision was to provide cost savings in government budgets, as 

the overtime wage premium was more expensive than providing 

workers with compensatory time off.15

PAST EFFORTS TO REPLACE OVERTIME WITH COMP TIME

The ideas presented by the majority in H.R. 1406 are nothing 

new. Since the 1990s, Committee Republicans have sponsored numerous virtually identical bills in previous Congresses, each of 

which would have weakened overtime protections through the use 

of comp time. None of these bills have come close to being enacted 

into law. 

• In 1997, Republicans introduced H.R. 1, the ‘‘Working Families 

Flexibility Act of 1997,’’ which sought to amend the FLSA to extend 

comp time to the private sector. This bill passed the Republicancontrolled House and was not considered by the Senate.16


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17 Available at: http://www.gpo.gov/fdsys/pkg/BILLS-108hr1119rh/pdf/BILLS-108hr1119rh.pdf. 18 Available at: http://www.gpo.gov/fdsys/pkg/BILLS-110hr6025ih/pdf/BILLS-110hr6025ih.pdf. 19 Available at: http://www.gpo.gov/fdsys/pkg/BILLS-111hr933ih/pdf/BILLS-111hr933ih.pdf. 20 Ross Eisenbrey, ‘‘The Naked Truth About Comp Time’’ Economic Policy Institute (March 31, 

2003), at 2. Available at http://www.epi.org/page/-/old/issuebriefs/ib190/ib190.pdf 21 Economic Policy Institute. ‘‘Fact Sheet: Wages’’ The State of Working America Available at 

http://stateofworkingamerica.org/fact-sheets/wages/ 22 Jeffry Bartash, ‘‘U.S. corporate profits soar in 2012. Workers get little of it.’’ MarketWatch, 

The Wall Street Journal (March 28, 2013) Available at http://blogs marketwatch.com/thetell/ 

2013/03/28/u-s-corporate-profits-soar-in-2012-workers-get-little-of-it/ 

• In 2003, Republicans introduced H.R. 1119, the so-called ‘‘Family Time Flexibility Act,’’ which again proposed extending comp 

time to the private sector. This bill did not come up for a vote on 

the House floor.17

• In 2008, Republicans introduced H.R. 6025, the ‘‘Family 

Friendly Workplace Act,’’ a nearly identical comp time bill. This bill 

was never reported out of this Committee.18

• In 2009, Republicans introduced H.R. 933, which was a reintroduction of the 2008 ‘‘Family Friendly Workplace Act.’’ This bill 

was also never reported out of this Committee.19

Each comp time bill met firm opposition from worker advocates 

and women’s organizations, who recognized the harm these proposals would inflict upon working families. Opponents of comp time 

legislation include: the AFL–CIO, the National Women’s Law Center, the National Organization for Women, 9 to 5—National Association of Working Women, SEIU, International Brotherhood of 

Teamsters, Communication Workers of America, Interfaith Worker 

Justice, National Employment Law Project, Center for Law and Social Policy, American Sustainable Business Council and the National Partnership for Women and Families. 

THE REAL IMPACT OF H.R. 1406 ON WORKING FAMILIES

H.R. 1406 reduces wages and constitutes an unsecured, interest-free 

loan to employers 

At its core, the basic intent behind comp time legislation is to 

force workers to compromise their pay in order to receive time 

off.20 This is an unacceptable deal for workers, particularly in an 

era of stagnant wages and rising income inequality. Since 2000, the 

hourly wage of the median worker rose just 0.5 percent.21 In 2012, 

corporate profits as a share of the economy reached their highest 

point since World War II, while overall labor compensation fell to 

a 57-year low.22

Nothing in H.R. 1406 requires that workers’ comp time credits 

earn interest on their wages, though employers are free to commingle the funds or invest unpaid overtime to their advantage. 

This amounts to a zero-interest loan from workers to their employers. Further, the delay in payment under this bill is excessively 

long. When an employee is compensated for unused comp time, the 

employer would not actually be required to pay the employee until 

January 31 of the following year. For a worker who puts in extra 

hours in January of the previous year, this could mean he or she 

misses out on wages, plus over a year of interest on their unpaid 

wages, while the employer keeps one hundred percent of the gains. 

That is an unjustifiable cut in pay for the worker. 


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23 Ross Eisenbrey, ‘‘The Naked Truth About Comp Time’’ Economic Policy Institute (March 31, 

2003) Available at http://www.epi.org/page/-/old/issuebriefs/ib190/ib190.pdf 24 U.S. Census Bureau, Business Dynamic Statistics Data Tables: Establishment Characteristics, Available at http://census.gov/ces/dataproducts/bds/datalestab.html 25Wage and Hour Division, U.S. Department of Labor, ‘‘Fact Sheet: Proposed Rule Changes 

Concerning In-Home Care Industry under the Fair Labor Standards Act (FLSA)’’ Available at 

http://www.dol.gov/whd/flsa/whdfs-NPRM-companionship.htm 26 Ross Eisenbrey, ‘‘The Naked Truth About Comp Time’’ Economic Policy Institute (March 31, 

2003), at 4. Available at http://www.epi.org/page/-/old/issuebriefs/ib190/ib190.pdf 27 Bureau of Labor Statistics, United States Department of Labor. (2013). The Employment 

Situation—March 2013. Retrieved from: http://www.bls.gov/news.release/pdf/empsit.pdf 

Furthermore, H.R. 1406 also does nothing to protect workers in 

the event that their employer goes out of business or declares 

bankruptcy. Workers risk losing up to 160 hours of overtime pay 

(the limit on overtime hours a worker can bank under this legislation) because their overtime is not put into escrow or a trust fund 

and could be lost if the employer goes out of business or declares 

bankruptcy.23 This is especially troubling given the hundreds of 

thousands of businesses that close each year—over 690,000 in 2010 

alone.24

H.R. 1406 discourages hiring new employees 

One of the key goals Congress had in requiring employers pay an 

overtime premium was to discourage employers from working their 

employees for long hours in lieu of hiring more people.25 Even with 

this wage premium, it is still often cheaper to work an employee 

longer hours rather than hiring an additional employee.26 Introducing comp time into the equation would make this problem 

worse, as it would be even cheaper to provide comp time than it 

is to pay overtime wages. This is exactly the wrong course in today’s economic climate, in which the unemployment rate is 7.6 percent, and over 11.7 million Americans are looking for work.27

H.R. 1406 gives employers—not employees—the right to control 

comp time 

Nothing in the FLSA prevents employers from providing flexibility to workers. Under current law, employers already may liberally grant paid or unpaid time off to workers. Under H.R. 1406, 

it is the employer who has control over whether an employee is 

paid in overtime wages or is provided comp time. Despite language 

paying lip service to flexibility for workers, there is no actual guarantee that a worker will ever be permitted to take the comp time 

when she wishes to access it. Instead, an employer is permitted to 

deny a worker’s request for comp time if it ‘‘unduly disrupts the operations of the employer.’’ Moreover, case law interpreting similar 

comp time language in the public sector indicates that an employer 

need not give the employee the specific day off requested, even if 

that specific day off would not have been unduly disruptive. Rather 

than increasing a worker’s control over her life, this legislation increases the employer’s control over the worker’s life. 

Ostensibly, H.R. 1406 provides workers with the choice between 

comp time and overtime pay. However, this bill gives employers 

control over who has access to overtime wages and comp time. Because providing comp time off is cheaper for an employer than paying the overtime premium, the bill creates an incentive for employers to preferentially assign overtime to workers who elect to receive 


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comp time in lieu of overtime. Nothing in H.R. 1406 prohibits this. 

Workers who choose not to receive comp time in lieu of overtime 

pay could be penalized with fewer scheduled work hours and loss 

of overtime work. Hourly workers in a struggling economy are 

often desperate to keep their jobs; if they understand that their 

employers prefer comp time arrangements, they may feel as if they 

have no choice but to give up earned overtime pay in exchange for 

comp time. As a result, workers whose families most rely on overtime pay could struggle to make ends meet because they would lose 

access to a vital source of extra income. H.R. 1406’s enforcement 

provision does not provide a remedy for such violations. 

H.R. 1406 would further undermine enforcement of overtime laws 

This bill would greatly increase the complexity of enforcing overtime protections by making it more difficult for DOL to determine 

whether an overtime violation has occurred when an employer asserts that comp time was granted in lieu of overtime pay. The bill 

does not provide any additional resources to the Department of 

Labor in order to ensure compliance. Currently, the enforcement 

capabilities of the Wage and Hour Division are stretched thin, with 

only about 1,000 inspectors who regulate a labor force of over 150 

million people. Adding additional complexity to the process without 

providing additional resources is a recipe for rampant under-enforcement. 

Furthermore, H.R. 1406 does not include meaningful penalties 

for employers who fail to comply with the legislation and does 

nothing to protect a worker who is discriminated against for choosing not to work for comp time. As a result, an employer could deny 

payment of overtime, deny a worker access to earned comp time, 

fire a worker for refusing to work for comp time and would only 

be liable for the amount of compensation he failed to pay and an 

amount equal to those wages as liquidated damages. A worker who 

is fired for refusing to agree to a comp time arrangement would 

have no right of reinstatement—and no unpaid accrued comp time 

from which to calculate any damages. 

THE MAJORITY’S FLAWED PUBLIC-SECTOR ARGUMENT

Proponents of H.R. 1406 argue that the legislation simply provides flexibility already available in the public sector to private sector workers. However, state and municipal employees only became 

eligible for comp time versus overtime as a cost-saving policy that 

afforded employers the value of their employees’ labor without 

being required to pay for it. At the same time, public sector workers generally enjoy many more employment protections than their 

private sector counterparts. As a result, public sector workers, who 

are also more likely to have union representation, are in a far more 

secure position to be able to negotiate equitable comp time arrangements. H.R. 1406 extends all the benefits of employer-controlled 

comp time arrangements to private sector employers, yet makes no 

effort to engender job protection parity for private sector workers. 

LEGISLATION THAT WORKING FAMILIES REALLY NEED

Workers depend on the wage and overtime protections in the 

FLSA. They should not have to sacrifice earned wages to have 


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28 National Women’s Law Center. ‘‘FAQ About the Wage Gap’’ (September 2012). Available at 

http://www.nwlc.org/sites/default/files/pdfs/wage_gap_faqs_sept_2012.pdf 29 National Partnership for Women and Families (March 2013) citing to Joint Economic Committee of the U.S. Congress (March 2010). ‘‘Expanding Access to Paid Sick Leave: The Impact 

of the Healthy Families Act on America’s Workers.’’ Available at http://jec.senate.gov/public/ 

index.cfm?a-Files.Serve&File_id-abf8aca7-6b94-4152-b720-2d8d04b81ed6 

more time off from work. Nothing in the Working Families Flexibility Act improves wage protections or promotes workplace flexibility. There are many Democratic proposals that the Committee 

ought to consider that would increase workers’ wages and improve 

working conditions. 

Working families need a raise—raise the minimum wage 

H.R. 1010 will raise the federal minimum wage to $10.10 by 

2015, in three 95 cent increments. It will adjust the minimum wage 

each year to keep pace with the rising cost of living starting 2016. 

It will also raise the minimum wage for tipped workers—which has 

been frozen at a meager $2.13 per hour for more than twenty 

years—to 70% of the minimum wage. A majority of workers’ rights 

organizations enthusiastically support this bill, including: AFLCIO, SEIU, National Partnership for Women and Families, National Employment Law Project, National Women’s Law Center, 

NAACP, and the National Disability Rights Network. 

Working families need equal pay 

The Paycheck Fairness Act would address discriminatory pay 

practices, an important source of the wage gap. Women working 

full-time, year-round are paid 77 cents for every dollar paid to their 

male counterparts, translating into over $10,000 less per year in 

median earnings.28 This bill builds upon the landmark Equal Pay 

Act signed into law in 1963 by closing loopholes that have kept it 

from achieving its goal of equal pay. The bill would require employers to show pay disparity is truly related to job-performance—not 

gender. It prohibits employer retaliation for sharing salary information with coworkers. Under current law employers can sue and 

punish employees for sharing such information. In addition, it 

strengthens remedies for pay discrimination by increasing compensation women can seek, allowing them to not only seek back 

pay, but also punitive damages for pay discrimination. This bill is 

supported by many workers’ rights organizations, such as the AFLCIO, ACLU, National Partnership for Women and Families, and 

the National Women’s Law Center. 

Working families need paid sick leave 

The Healthy Families Act would allow workers to earn paid sick 

leave to use when they are sick, to care for a sick family member, 

to obtain preventive care, or to address the impacts of domestic violence. Workers would earn one hour of paid sick time for every 30 

hours worked. Employers that already provide paid sick time will 

not have to change their current policies, as long as their existing 

time can be used for the same purposes. Employers can also require workers to provide documentation supporting any request for 

leave longer than three consecutive days. This bill would let 30 million more workers earn paid sick days, expanding access to 90 percent of the workforce.29 Hundreds of state and national organizaVerDate Mar 15 2010 05:52 May 01, 2013 Jkt 029006 PO 00000 Frm 00052 Fmt 6604 Sfmt 6602 E:\HR\OC\HR049.XXX HR049

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tions support this bill, including: AFL-CIO, ACLU, SEIU, NAACP, 

National Women’s Law Center, National Employment Law Project, 

National Partnership for Women and Families, The Partnership for 

Working Families, 9 to 5—National Association for Working 

Women, and American Rights at Work. 

During the markup of H.R. 1406, Rep. Courtney offered the 

Healthy Families Act as a substitute amendment. Unfortunately, 

Committee Republicans voted unanimously to block consideration 

of this amendment. 

Working families need paid family & medical leave 

Congress expanded the Family Medical Leave Act to provide 

greater protections for active duty service members, military caregivers, and family members of service members and covered veterans. Several other bills have been introduced to expand and improve the reach of the Family Medical Leave Act including the 

number of employers covered, types of circumstances covered and 

increased access to paid leave. 

Expanding the coverage of FMLA is an important step but Congress must also ensure workers have access to paid family and 

medical leave. Only 11 percent of workers in the U.S. have access 

to paid family leave through their employers. We must expand 

work-family policies to include wage replacement when workers 

must take time away from work to address their own serious 

health condition, care for a family member with a serious health 

condition, or care for a newborn or newly adopted child. Currently, 

the states of California and New Jersey provide paid family leave 

through their temporary disability insurance systems. Congress 

should build upon this model and move to a national commitment 

to paid family & medical leave. 

GEORGE MILLER, Senior 

Democratic Member. 

GREGORIO KILILI CAMACHO

SABLAN. 

FREDERICA S. WILSON. 

DAVE LOEBSACK. 

ROBERT C. SCOTT. 

CAROLYN MCCARTHY. 

JOHN F. TIERNEY. 

ROBERT E. ANDREWS. 

SUZANNE BONAMICI. 

TIMOTHY H. BISHOP. 

RAU ́ L M. GRIJALVA. 

SUSAN A. DAVIS. 

JARED POLIS. 

RUSH HOLT. 

JOE COURTNEY. 

RUBE ́ N HINOJOSA. 

JOHN A. YARMUTH. 

Æ 


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