II 

112TH CONGRESS 

1ST SESSION S. 145 

To promote labor force participation of older Americans, with the goals 

of increasing retirement security, reducing the projected shortage of 

experienced workers, maintaining future economic growth, and improving 

the Nation’s fiscal outlook. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 25 (legislative day, JANUARY 5), 2011 

Mr. KOHL introduced the following bill; which was read twice and referred to 

the Committee on Finance 

A BILL 

To promote labor force participation of older Americans, 

with the goals of increasing retirement security, reducing 

the projected shortage of experienced workers, maintaining future economic growth, and improving the Nation’s 

fiscal outlook. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Older Worker Oppor5 tunity Act of 2011’’. 


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1 SEC. 2. TAX CREDIT FOR EMPLOYING OLDER WORKERS IN 

2 FLEXIBLE WORK PROGRAMS. 

3 (a) IN GENERAL.—Subpart D of part IV of sub4 chapter A of chapter 1 of the Internal Revenue Code of 

5 1986 is amended by adding at the end the following new 

6 section: 

7 ‘‘SEC. 45S. FLEXIBLE WORK CREDIT. 

8 ‘‘(a) IN GENERAL.—For purposes of section 38, in 

9 the case of an eligible employer, the flexible work credit 

10 determined under this section for the taxable year shall 

11 be equal to 25 percent of the qualified wages for such tax12 able year. 

13 ‘‘(b) ELIGIBLE EMPLOYER.—For purposes of this 

14 section, the term ‘eligible employer’ means an employer 

15 which— 

16 ‘‘(1) maintains a qualified trust (within the 

17 meaning of section 401(a)), and 

18 ‘‘(2) provides health insurance coverage (as de19 fined in section 9832(b)(1)(A)) to employees and 

20 pays no less than 60 percent of the cost of such 

21 health insurance coverage with respect to each full22 time employee receiving such coverage. 

23 ‘‘(c) QUALIFIED WAGES DEFINED.—For purposes of 

24 this section— 

25 ‘‘(1) QUALIFIED WAGES.—The term ‘qualified 

26 wages’ means the wages paid or incurred by an eligiVerDate Mar 15 2010 04:20 Jan 29, 2011 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S145.IS S145

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1 ble employer during the taxable year to eligible indi2 viduals. 

3 ‘‘(2) ELIGIBLE INDIVIDUALS.— 

4 ‘‘(A) IN GENERAL.—The term ‘eligible in5 dividual’ means an individual who, at the time 

6 such wages are paid or incurred— 

7 ‘‘(i) has attained the age of 62, and 

8 ‘‘(ii) is participating in a formal flexi9 ble work program. 

10 ‘‘(B) LIMITATION.—Such term shall not 

11 include any individual who begins participation 

12 in a formal flexible work program during any 

13 period in which more than 20 percent of the 

14 employees of the eligible employer are already 

15 participating in a formal flexible work program. 

16 ‘‘(3) WAGES.— 

17 ‘‘(A) IN GENERAL.—The term ‘wages’ has 

18 the meaning given such term by subsection (b) 

19 of section 3306 (determined without regard to 

20 any dollar limitation contained in such section). 

21 ‘‘(B) OTHER RULES.—Rules similar to the 

22 rules of paragraph (2) and (3) of section 51(c) 

23 shall apply for purposes of this section. 


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1 ‘‘(C) TERMINATION.—The term ‘wages’ 

2 shall not include any amount paid or incurred 

3 to an individual after December 31, 2014. 

4 ‘‘(4) ONLY FIRST $6,000 OF WAGES PER YEAR

5 TAKEN INTO ACCOUNT.—The amount of the quali6 fied wages which may be taken into account with re7 spect to any individual shall not exceed $6,000 per 

8 year. 

9 ‘‘(d) FORMAL FLEXIBLE WORK PROGRAM.—For 

10 purposes of this section— 

11 ‘‘(1) IN GENERAL.—The term ‘formal flexible 

12 work program’ means a program of an eligible em13 ployer— 

14 ‘‘(A) which consists of core time and flex 

15 time, 

16 ‘‘(B) under which core time does not ex17 ceed— 

18 ‘‘(i) 20 hours per week, 

19 ‘‘(ii) 3 days per week, or 

20 ‘‘(iii) 1,000 hours per year, and 

21 ‘‘(C) which meets the requirements of sub22 section (e). 

23 ‘‘(2) CORE TIME.—The term ‘core time’ means 

24 the specific time— 


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1 ‘‘(A) during which an employee is required 

2 to perform services related to employment, and 

3 ‘‘(B) which is determined by the employer. 

4 ‘‘(3) FLEX TIME.—The term ‘flex time’ means 

5 the time other than core time— 

6 ‘‘(A) during which an employee is required 

7 to perform services related to employment, and 

8 ‘‘(B) which is determined at the election of 

9 the employee. 

10 ‘‘(e) REQUIREMENTS.—A program shall not be con11 sidered a formal flexible work program under this section 

12 unless such program meets the following requirements: 

13 ‘‘(1) DURATION OF PROGRAM.—The program 

14 shall allow for participation for a period of at least 

15 1 year. 

16 ‘‘(2) NO CHANGE IN HEALTH CARE BENE17 FITS.—With respect to a participant whose work 

18 schedule is no less than 20 percent of the work 

19 schedule of a similarly situated full-time employee— 

20 ‘‘(A) such participant shall be entitled to 

21 the same health insurance coverage to which a 

22 similarly situated full-time employee would be 

23 entitled, 

24 ‘‘(B) the employer shall contribute the 

25 same percentage of the cost of health insurance 


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1 coverage for such participant as the employer 

2 would contribute for a similarly situated full3 time employee, and 

4 ‘‘(C) such participant shall be entitled to 

5 participate in a retiree health benefits plan of 

6 the employer in the same manner as a similarly 

7 situated full-time employee, except that service 

8 credited under the plan for any plan year shall 

9 be equal to the ratio of the participant’s work 

10 schedule during such year to the work schedule 

11 of a similarly situated full-time employee during 

12 such year. 

13 ‘‘(3) NO REDUCTION IN PENSION BENEFITS.— 

14 ‘‘(A) DEFINED BENEFIT PLANS.— 

15 ‘‘(i) A participant shall be entitled to 

16 participate in a defined benefit plan (with17 in the meaning of section 414(j)) of the 

18 employer in the same manner as a simi19 larly situated full-time employee. 

20 ‘‘(ii) Service credited to a participant 

21 under the plan for any plan year shall be 

22 equal to the ratio of the participant’s work 

23 schedule during such year to the work 

24 schedule of a similarly situated full-time 

25 employee during such year. 


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1 ‘‘(iii) If the plan uses final average 

2 earnings to determine benefits, final aver3 age earnings of the participant shall be no 

4 less than such earnings were before the 

5 participant entered the program. 

6 ‘‘(B) DEFINED CONTRIBUTION PLANS.—A 

7 participant shall be entitled to participate in a 

8 defined contribution plan (within the meaning 

9 of section 414(i)) of the employer in the same 

10 manner as a similarly situated full-time em11 ployee, and the employer shall match the par12 ticipant’s contributions at the same rate that 

13 the employer would match the contributions of 

14 a similarly situated full-time employee. 

15 ‘‘(C) NO FORFEITURE OF PENSION BENE16 FITS.—The pension benefits of a participant 

17 shall not be forfeited under the rules of section 

18 411(a)(3)(B) or section 203(a)(3)(B) of the 

19 Employee Retirement Income Security Act of 

20 1974 with respect to a participant who has at21 tained normal retirement age as of the end of 

22 the plan year. 

23 ‘‘(4) NONDISCRIMINATION RULE.—Eligibility to 

24 participate in the program shall not discriminate in 


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1 favor of highly compensated employees (within the 

2 meaning of section 414(q)). 

3 ‘‘(f) CERTAIN INDIVIDUALS INELIGIBLE.—For pur4 poses of this section, rules similar to the rules of section 

5 51(i)(1) and section 52 shall apply. 

6 ‘‘(g) REGULATIONS.—The Secretary may prescribe 

7 such regulations as are necessary to carry out the pur8 poses of this section, including simplified rules to satisfy 

9 the requirements of subsection (e)(3)(C) taking into ac10 count the requirements of section 411 and section 203 of 

11 the Employee Retirement Income Security Act of 1974.’’. 

12 (b) CREDIT MADE PART OF GENERAL BUSINESS

13 CREDIT.—Subsection (b) of section 38 of the Internal 

14 Revenue Code of 1986 is amended by striking ‘‘plus’’ at 

15 the end of paragraph (35), by striking the period at the 

16 end of paragraph (36) and inserting ‘‘, plus’’, and by add17 ing at the end the following new paragraph: 

18 ‘‘(37) the flexible work credit determined under 

19 section 45S(a).’’. 

20 (c) NO DOUBLE BENEFIT.—Subsection (a) of section 

21 280C of the Internal Revenue Code of 1986 is amended 

22 by inserting ‘‘45S(a),’’ after ‘‘45P(a),’’. 

23 (d) CLERICAL AMENDMENT.—The table of sections 

24 for subpart D of part IV of subchapter A of chapter 1 


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1 of the Internal Revenue Code of 1986 is amended by add2 ing at the end the following new item: 

‘‘Sec. 45S. Flexible work credit.’’. 

3 (e) EFFECTIVE DATE.—The amendments made by 

4 this section shall apply to wages paid after December 31, 

5 2010. 

Æ 


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