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[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 2142 Introduced in Senate (IS)]

112th CONGRESS
  2d Session
                                S. 2142

   To permit employees to request, and to ensure employers consider 
    requests for, flexible work terms and conditions, and for other 
                               purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                           February 29, 2012

   Mr. Casey introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL

 
   To permit employees to request, and to ensure employers consider 
    requests for, flexible work terms and conditions, and for other 
                               purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Working Families Flexibility Act''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) Over the last 50 years, the demographics of the 
        Nation's workforce have undergone significant changes. As a 
        result of the changes, the modern workforce has a more diverse 
        set of needs.
            (2) Over time, increasing numbers of women have joined the 
        workforce. The Bureau of Labor Statistics reports that in 1960 
        women composed 33 percent of employed persons, whereas in 2010 
        they were 47 percent of employed persons.
            (3) Fewer households have at least 1 parent at home. 
        According to the Bureau of the Census, more than 70 percent of 
        children are raised in families that are headed by either a 
        working single parent or 2 working parents. Furthermore, the 
        number of households with married parents and children, in 
        which both parents were in the workforce, rose to 66 percent in 
        2010. The number of single-parent families has also increased, 
        almost tripling over the last 50 years, from 5 percent in 1960, 
        to 14 percent in 2010.
            (4) More households are caring for older relatives. 
        According to the Bureau of the Census, the average life 
        expectancy for a child born in 2010 is 78.3 years, almost 10 
        years longer than for a child born in 1960. The National 
        Alliance for Caregiving found that 57 percent of persons who 
        provide unpaid care to an adult or to a child with special 
        needs are employed, with 46 percent working full time and 11 
        percent working part time.
            (5) Many jobs are now located outside of city centers. Low-
        wage employees in particular have difficulty reaching jobs 
        through public transportation during off-peak shifts, such as 
        shifts that start in the evening or early morning.
            (6) In response to the needs of the modern workforce some 
        employers have instituted flexible work arrangements, which, 
        according to Georgetown University Law School's Workforce 
        Flexibility 2010 initiative, are voluntary arrangements between 
        employees and employers that alter the time or place at which 
        work is conducted, or the amount of work that is conducted, in 
        order to allow employees to more easily meet the needs of both 
        work and family life.
            (7) The National Study of the Changing Workforce, published 
        in 2002 by the Families and Work Institute, found that 
        employees with access to flexible work arrangements reported 
        less interference between their job and family life, and fewer 
        mental health problems.
            (8) Corporate Voices for Working Families found that 
        implementing workplace flexibility improves employee 
        satisfaction, morale, and teamwork as well as employee health, 
        well-being, and resilience, and helps to reduce stress.
            (9) Flexible work arrangements have also been shown to 
        improve the bottom line for businesses. Corporate Voices for 
        Working Families found that implementing workplace flexibility 
        improves the bottom line by helping businesses to attract and 
        retain key talent, increase employee retention and reduce 
        turnover, reduce overtime and absenteeism, and enhance employee 
        productivity, effectiveness, and engagement.
            (10) The President's Council of Economic Advisors found 
        that, as more businesses adopt flexibility practices, the 
        benefits to society, in the form of reduced traffic, improved 
        employment outcomes, and more efficient allocation of employees 
        to employers, may be greater than the gains to individual 
        businesses and employees.
            (11) According to a 2011 Government Accountability Office 
        report, a flexible work environment can increase and enhance 
        employment opportunities for individuals with disabilities.
            (12) The Society for Human Resource Management believes 
        that the key to getting the best out of every employee is a 
        flexible work environment.
            (13) According to the National Partnership for Women and 
        Families, businesses can retain their most valuable asset--a 
        trained and committed workforce--by offering flexible workplace 
        policies.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Administrative officer.--The term ``administrative 
        officer'', used with respect to an employer or an employee, 
        means the corresponding individual or entity with authority to 
        issue regulations under section 13.
            (2) Employee.--The term ``employee'' means an individual--
                    (A) who is--
                            (i)(I) an employee (including an 
                        applicant), as defined in section 3(e) of the 
                        Fair Labor Standards Act of 1938 (29 U.S.C. 
                        203(e)), who is not covered under any of 
                        clauses (ii) through (v), including such an 
                        employee of the Library of Congress, except 
                        that a reference in such section to an employer 
                        shall be considered to be a reference to an 
                        employer described in clauses (i)(I) and (ii) 
                        of paragraph (3)(A); or
                            (II) an employee (including an applicant) 
                        of the Government Accountability Office;
                            (ii) a State employee (including an 
                        applicant) described in section 304(a) of the 
                        Government Employee Rights Act of 1991 (42 
                        U.S.C. 2000e-16c(a));
                            (iii) a covered employee (including an 
                        applicant), as defined in section 101 of the 
                        Congressional Accountability Act of 1995 (2 
                        U.S.C. 1301);
                            (iv) a covered employee (including an 
                        applicant), as defined in section 411(c) of 
                        title 3, United States Code; or
                            (v) a Federal officer or employee 
                        (including an applicant) covered under 
                        subchapter V of chapter 63 of title 5, United 
                        States Code; and
                    (B) who works at least 20 hours per week or, in the 
                alternative, at least 1,000 hours per year.
            (3) Employer.--
                    (A) In general.--The term ``employer'' means a 
                person who is--
                            (i)(I) a covered employer, as defined in 
                        subparagraph (B), who is not covered under any 
                        of subclauses (II) through (V);
                            (II) an entity employing a State employee 
                        described in section 304(a) of the Government 
                        Employee Rights Act of 1991;
                            (III) an employing office, as defined in 
                        section 101 of the Congressional Accountability 
                        Act of 1995;
                            (IV) an employing office, as defined in 
                        section 411(c) of title 3, United States Code; 
                        or
                            (V) an employing agency covered under 
                        subchapter V of chapter 63 of title 5, United 
                        States Code; and
                            (ii) is engaged in commerce (including 
                        government), in the production of goods for 
                        commerce, or in an enterprise engaged in 
                        commerce (including government) or in the 
                        production of goods for commerce.
                    (B) Covered employer.--
                            (i) In general.--In subparagraph (A)(i)(I), 
                        the term ``covered employer''--
                                    (I) means any person engaged in 
                                commerce or in any industry or activity 
                                affecting commerce who employs 15 or 
                                more employees for each working day 
                                during each of 20 or more calendar 
                                workweeks in the current or preceding 
                                calendar year;
                                    (II) includes--
                                            (aa) any person who acts, 
                                        directly or indirectly, in the 
                                        interest of such an employer to 
                                        any of the employees of such 
                                        employer; and
                                            (bb) any successor in 
                                        interest of such an employer; 
                                        and
                                    (III) includes an agency described 
                                in clause (iii) or (iv) of subparagraph 
                                (A) of section 101(4) of the Family and 
                                Medical Leave Act of 1993 (29 U.S.C. 
                                2611(4)), to which subparagraph (B) of 
                                such section shall apply.
                            (ii) Definitions.--For purposes of this 
                        subparagraph:
                                    (I) Commerce.--The terms 
                                ``commerce'' and ``industry or activity 
                                affecting commerce'' have the meanings 
                                given the terms in section 101 of such 
                                Act (29 U.S.C. 2611).
                                    (II) Employee; person.--The terms 
                                ``employee'' and ``person'' have the 
                                meanings given such terms in section 3 
                                of the Fair Labor Standards Act of 1938 
                                (29 U.S.C. 203).
                    (C) Predecessors.--Any reference in this paragraph 
                to an employer shall include a reference to any 
                predecessor of such employer.
            (4) Secretary.--The term ``Secretary'' means the Secretary 
        of Labor.
            (5)  Supervisor.--
                    (A) In general.--The term ``supervisor'' has the 
                meaning given the term in section 152 of the National 
                Labor Relations Act (29 U.S.C. 152).
                    (B) Application.--For purposes of applying this 
                paragraph, a reference in such section--
                            (i) to an employee shall be considered to 
                        be a reference to an employee, as defined in 
                        this section; and
                            (ii) to an employer shall be considered to 
                        be a reference to an employer, as defined in 
                        this section.

SEC. 4. STATUTORY RIGHT TO REQUEST FLEXIBLE WORK TERMS AND CONDITIONS.

    (a) In General.--An employee may apply to the employee's employer 
for a temporary or permanent change in the employee's terms or 
conditions of employment if the change relates to--
            (1) the number of hours the employee is required to work;
            (2) the times when the employee is required to work or be 
        on call for work;
            (3) where the employee is required to work; or
            (4) the amount of notification the employee receives of 
        work schedule assignments.
    (b) Contents.--An application submitted under this section shall--
            (1) state that the application is an application described 
        in subsection (a);
            (2) specify the change applied for and the date on which 
        the employee requests that the change become effective; and
            (3) explain what effect, if any, the employee thinks the 
        change applied for would have on the employer and how, in the 
        employee's opinion, any such effect might be dealt with.
    (c) Submissions.--
            (1) Period between submissions.--If an employee, who has 
        submitted an application under this section to an employer, 
        submits a further application under this section to the same 
        employer before the end of the period of 12 months beginning 
        with the date on which the previous application was submitted, 
        that further application shall not be covered by section 5.
            (2) Form and timing.--The administrative officer shall, by 
        regulation issued under section 13, specify--
                    (A) the form of applications submitted under this 
                section; and
                    (B) when such an application shall be considered to 
                be submitted.

SEC. 5. EMPLOYER'S DUTIES IN RELATION TO APPLICATIONS.

    (a) In General.--An employer to whom an employee submits an 
application under section 4 shall consider the application, in 
accordance with regulations issued under section 13.
    (b) Regulations.--Regulations issued under subsection (a)--
            (1) shall include provisions that provide--
                    (A) that the employer and the employee shall hold a 
                meeting to discuss such an application;
                    (B) that the employer shall give the employee a 
                written decision regarding the application, within a 
                reasonable period after the date of the meeting;
                    (C) that a decision under subparagraph (B) to 
                reject the application shall state the grounds for the 
                decision, including whether those grounds included--
                            (i) the identifiable cost of the proposed 
                        change in a term or condition of employment 
                        requested in the application, including the 
                        costs of loss of productivity, of retraining or 
                        hiring an employee, or of transferring an 
                        employee from 1 facility to another facility;
                            (ii) the overall financial resources 
                        involved;
                            (iii) for an employer with multiple 
                        facilities, the geographic separateness or 
                        administrative or fiscal relationship of the 
                        staffs at the facilities;
                            (iv) the effect of the change on the 
                        employer's ability to meet customer demand; or
                            (v) another factor specified by the 
                        administrative officer in regulation;
                    (D) that if the employer rejects the employee's 
                application, the employer may propose in writing an 
                alternative change to the employee's hours, times, 
                place, and amount of notification of schedule 
                assignments for work;
                    (E) that if the employee is dissatisfied with the 
                employer's decision under subparagraph (B) and the 
                alternative described in subparagraph (D), and if the 
                employer has another supervisor, the employee has the 
                right to reconsideration of the decision by such 
                supervisor, and to receive a decision in writing from 
                the reconsideration within a reasonable period, in 
                accordance with procedures specified in regulations 
                issued under section 13;
                    (F) that the employee shall have a right to be 
                accompanied at meetings described in subparagraph (A) 
                by a representative of the employee's choosing with 
                such qualifications as the regulations shall specify;
                    (G) that if such a representative of the employee's 
                choosing is not available to attend a meeting described 
                in subparagraph (A), the meeting shall be postponed; 
                and
                    (H) for extension of a time limit specified in the 
                regulations in a case in which the employer and 
                employee agree, or in such other circumstances as the 
                regulations may specify; and
            (2) may include provisions that provide--
                    (A) that any requirement of the regulations shall 
                not apply in a case in which such an application is 
                disposed of by agreement or withdrawn; and
                    (B) for applications to be treated as withdrawn in 
                specified circumstances.

SEC. 6. PROHIBITED ACTS.

    (a) Interference With Rights.--It shall be unlawful for any 
employer to interfere with, restrain, or deny the exercise of, or the 
attempt to exercise, any right provided under this Act.
    (b) Interference With Application, Proceedings, or Inquiries.--It 
shall be unlawful for any employer to discharge or in any other manner 
discriminate against (including retaliating against) any individual 
because such individual--
            (1) has submitted (or attempted to submit) an application 
        under section 4 or requested (or attempted to request) a 
        reconsideration under section 5;
            (2) has filed an action, or has instituted or caused to be 
        instituted any proceeding, under or related to this Act;
            (3) has given, or is about to give, any information in 
        connection with any inquiry or proceeding relating to any right 
        provided under this Act;
            (4) has testified, or is about to testify, in any inquiry 
        or proceeding relating to any right provided under this Act;
            (5) has opposed any practice made unlawful by this Act; or
            (6) has in any other way exercised or attempted to exercise 
        any right provided under this Act.

SEC. 7. ENFORCEMENT.

    (a) Definitions.--Except as provided in subsection (d), in this 
section:
            (1) Employee.--The term ``employee'' means an employee 
        described in clause (i) or (ii) of section 3(2)(A).
            (2) Employer.--The term ``employer'' means an employer 
        described in subclause (I) or (II) of section 3(3)(A)(i).
    (b) General Authority.--The provisions of this Act may be enforced 
pursuant to the following provisions:
            (1) Investigation and assessment.--An employee who is 
        affected by a violation of a right in section 6 (including a 
        violation relating to a right provided under section 4 or 5) 
        may make a complaint to the Secretary of Labor, alleging that 
        the employer involved has violated section 6. The Secretary 
        shall receive, investigate, and attempt to resolve such 
        complaints of violations in the same manner as the Secretary 
        receives, investigates, and attempts to resolve complaints of 
        violations of section 6 and 7 of the Fair Labor Standards Act 
        of 1938 (29 U.S.C. 206 and 207), and may issue an order making 
        determinations, and assessing a civil penalty described in 
        section 8(a)(1) or awarding relief described in section 
        8(a)(2), as appropriate, with respect to such an alleged 
        violation.
            (2) Administrative review.--An affected person who takes 
        exception to an order issued under paragraph (1) may request a 
        review of and a decision regarding such an order by an 
        administrative law judge, who may hold an administrative 
        hearing concerning the order under procedures established by 
        the administrative officer that comply with the requirements of 
        sections 554, 556, and 557 of title 5, United States Code, and 
        regulations promulgated by the administrative officer. Such 
        hearing shall be conducted expeditiously. If no affected person 
        requests such review within 60 days after the order is issued 
        under paragraph (1), the order shall be deemed to be a final 
        order that is not subject to judicial review.
            (3) Enforcement.--The amount of any penalty assessed 
        against an employer under this subsection, when finally 
        determined, may be--
                    (A) deducted from any sums owed by the United 
                States to the employer; or
                    (B) recovered in a civil action brought against the 
                employer by the Secretary, represented by the Solicitor 
                of Labor (or brought against the employer by the 
                administrative officer specified in section 13(a)) in 
                any court of competent jurisdiction.
            (4) Civil action.--An affected person desiring review of a 
        decision issued under paragraph (2) (other than a nonreviewable 
        order) may file a petition for review in an appropriate Federal 
        court of appeals.
            (5) Civil action by the secretary for injunctive relief.--
        The Secretary (or the administrative officer specified in 
        section 13(a)) may bring an action for a violation described in 
        paragraph (1) in a district court of the United States to 
        obtain the injunctive relief described in section 8(b).
    (c) Other Employees.--
            (1) Employees covered by congressional accountability act 
        of 1995.--Notwithstanding any other provision of this section 
        or section 8, the powers, remedies, and procedures provided in 
        the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et 
        seq.) to the Board (as defined in section 101 of that Act (2 
        U.S.C. 1301)), or any person, alleging a violation of section 
        202(a)(1) of that Act (2 U.S.C. 1312(a)(1)) shall be the 
        powers, remedies, and procedures this Act provides to that 
        Board, or any person, alleging an unlawful employment practice 
        in violation of this Act against an employee described in 
        section 3(2)(A)(iii).
            (2) Employees covered by chapter 5 of title 3, united 
        states code.--Notwithstanding any other provision of this 
        section or section 8, the powers, remedies, and procedures 
        provided in chapter 5 of title 3, United States Code, to the 
        President, the Merit Systems Protection Board, or any person, 
        alleging a violation of section 412(a)(1) of that title, shall 
        be the powers, remedies, and procedures this Act provides to 
        the President, that Board, or any person, respectively, 
        alleging an unlawful employment practice in violation of this 
        Act against an employee described in section 3(2)(A)(iv).
            (3) Employees covered by chapter 63 of title 5, united 
        states code.--Notwithstanding any other provision of this 
        section or section 8, the powers, remedies, and procedures 
        provided in title 5, United States Code, to an employing 
        agency, provided in chapter 12 of that title to the Merit 
        Systems Protection Board, or provided in that title to any 
        person, alleging a violation of subchapter V of chapter 63 of 
        that title, shall be the powers, remedies, and procedures this 
        Act provides to that agency, that Board, or any person, 
        respectively, alleging an unlawful employment practice in 
        violation of this Act against an employee described in section 
        3(2)(A)(v).

SEC. 8. REMEDIES.

    (a) Administrative Proceedings and Actions for Review.--
            (1) Interference with exercise of rights.--In an action 
        brought under paragraph (1), (2), or (4) of section 7(b), an 
        employer who commits a willful or repeated violation of the 
        provisions of section 6 (including a violation relating to a 
        right provided under section 4 or 5) shall be subject to a 
        civil penalty of not more than $1,100 for each employee who was 
        the subject of such a violation.
            (2) Retaliation.--In an action brought under paragraph (1), 
        (2), or (4) of section 7(b), if an employer violates section 
        6(b), the employee who is affected by the violation or the 
        Secretary (or the administrative officer specified in section 
        13(a)), as appropriate, may obtain an order awarding such 
        equitable relief as may be appropriate, including employment, 
        reinstatement, promotion, back pay, and a change in the terms 
        or conditions of employment.
    (b) Civil Action by the Secretary for Injunctive Relief.--In an 
action brought under section 7(b)(5), the Secretary (or the 
administrative officer specified in section 13(a)) may obtain an 
order--
            (1) restraining violations of section 6 (including a 
        violation relating to a right provided under section 4 or 5); 
        or
            (2) awarding such other equitable relief as may be 
        appropriate, including employment, reinstatement, promotion, 
        back pay, and a change in the terms or conditions of 
        employment.

SEC. 9. NOTICE.

    (a) In General.--Each employer shall post and keep posted, in 
conspicuous places on the premises of the employer where notices to 
employees and applicants for employment are customarily posted, a 
notice, to be prepared or approved by the Secretary (or the 
administrative officer specified in section 13(a)) setting forth 
excerpts from, or summaries of, the pertinent provisions of this Act 
and information pertaining to the filing of a complaint under section 
7(b).
    (b) Penalty.--Any employer that willfully violates this section may 
be assessed a civil money penalty not to exceed $500 for each separate 
offense.

SEC. 10. RECORDKEEPING.

    Any employer shall make, keep, and preserve records pertaining to 
compliance with this Act in accordance with regulations issued under 
section 13.

SEC. 11. RESEARCH, EDUCATION, AND TECHNICAL ASSISTANCE PROGRAM.

    (a) In General.--The Secretary (and each administrative officer 
specified in section 13(a), as applicable) shall provide information 
and technical assistance to employers, labor organizations, and the 
general public concerning compliance with this Act.
    (b) Program.--In order to achieve the objectives of this Act--
            (1) the Secretary, acting through the Administrator of the 
        Wage and Hour Division of the Department of Labor, shall issue 
        guidance on compliance with the Fair Labor Standards Act of 
        1938 (29 U.S.C. 201 et seq.) regarding providing a flexible 
        work environment through changes in employee terms and 
        conditions of employment as provided in section 4(a); and
            (2) the Secretary shall carry on a continuing program of 
        research, education, and technical assistance, including--
                    (A) conducting and promoting research with the 
                intent of encouraging flexibility in work terms and 
                conditions;
                    (B) publishing and otherwise making available to 
                employers, labor organizations, professional 
                associations, educational institutions, the various 
                communication media, and the general public the 
                findings of studies and other materials for promoting 
                compliance with this Act;
                    (C) sponsoring and assisting State and community 
                informational and educational programs; and
                    (D) providing technical assistance to employers, 
                labor organizations, professional associations, and 
                other interested persons on means of achieving and 
                maintaining compliance with the provisions of this Act.

SEC. 12. RIGHTS RETAINED BY EMPLOYEES.

    Nothing in this Act shall be considered to diminish the rights, 
privileges, or remedies of any employee under any Federal or State law, 
or under a collective bargaining agreement.

SEC. 13. APPLICATION OF PROVISIONS.

    Not later than 12 months after the date of enactment of this Act--
            (1)(A) except as provided in subparagraph (B), the 
        Secretary shall issue such regulations as are necessary to 
        carry out this Act (including regulations described in sections 
        4(c)(2), 5(a), 5(b)(1)(E), and 7(b)(2)) with respect to 
        employees described in clause (i) or (ii) of section 3(2)(A); 
        and
            (B) the Comptroller General of the United States and the 
        Librarian of Congress shall issue such regulations as are 
        necessary to carry out this Act (including regulations 
        described in sections 4(c)(2), 5(a), 5(b)(1)(E), and 7(b)(2)) 
        with respect to employees of the Government Accountability 
        Office and the Library of Congress, respectively;
            (2) the Board of Directors of the Office of Compliance 
        shall issue (in accordance with section 304 of the 
        Congressional Accountability Act of 1995 (2 U.S.C. 1384)) such 
        regulations as are necessary to carry out this Act (including 
        regulations described in sections 4(c)(2), 5(a), 5(b)(1)(E), 
        and 7(b)(2)) with respect to employees described in section 
        3(2)(A)(iii);
            (3) the President (or the designee of the President) shall 
        issue such regulations as are necessary to carry out this Act 
        (including regulations described in sections 4(c)(2), 5(a), 
        5(b)(1)(E), and 7(b)(2)) with respect to employees described in 
        section 3(2)(A)(iv); and
            (4) the Director of the Office of Personnel Management 
        shall issue such regulations as are necessary to carry out this 
        Act (including regulations described in sections 4(c)(2), 5(a), 
        5(b)(1)(E), and 7(b)(2)) with respect to employees described in 
        section 3(2)(A)(v).

SEC. 14. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated to carry out this Act such 
sums as may be necessary for fiscal year 2012 and each subsequent 
fiscal year.

SEC. 15. EFFECTIVE DATE.

    (a) In General.--Except as provided in subsection (b), this Act 
takes effect on the date of enactment of this Act.
    (b) Application of Nonregulatory Provisions.--
            (1) In general.--Except as provided in paragraph (2), 
        sections 2 through 12 shall apply on the earlier of--
                    (A) the date that occurs 3 months after the date on 
                which the Secretary issues regulations under section 
                13(a)(1)(A); and
                    (B) the date that occurs 15 months after the date 
                of enactment of this Act.
            (2) Collective bargaining agreements.--In the case of a 
        collective bargaining agreement in effect on the application 
        date prescribed by paragraph (1), sections 2 through 12 shall 
        apply on the earlier of--
                    (A) the date of the termination of such agreement; 
                or
                    (B) the date that occurs 12 months after the date 
                of enactment of this Act.
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