II 

113TH CONGRESS 

1ST SESSION S. 1626 

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

in the private sector with an opportunity for compensatory time off, 

similar to the opportunity offered to Federal employees, and a flexible 

credit hour program to help balance the demands of work and family, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 30, 2013 

Mr. MCCONNELL (for himself and Ms. AYOTTE) introduced the following bill; 

which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend the Fair Labor Standards Act of 1938 to provide 

employees in the private sector with an opportunity for 

compensatory time off, similar to the opportunity offered 

to Federal employees, and a flexible credit hour program 

to help balance the demands of work and family, and 

for other purposes. 

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 ‘‘Family Friendly and 

5 Workplace Flexibility Act of 2013’’. 


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1 SEC. 2. COMPENSATORY TIME. 

2 Section 7 of the Fair Labor Standards Act of 1938 

3 (29 U.S.C. 207) is amended by adding at the end the fol4 lowing: 

5 ‘‘(s) COMPENSATORY TIME FOR PRIVATE EMPLOY6 EES.— 

7 ‘‘(1) DEFINITIONS.—In this subsection— 

8 ‘‘(A) the term ‘employee’ does not include 

9 an employee of a public agency; and 

10 ‘‘(B) the terms ‘overtime compensation’, 

11 ‘compensatory time’, and ‘compensatory time 

12 off’ have the meaning given the terms in sub13 section (o)(7). 

14 ‘‘(2) GENERAL RULE.—An employee may re15 ceive, in accordance with this subsection and in lieu 

16 of monetary overtime compensation, compensatory 

17 time off at a rate not less than one and one-half 

18 hours for each hour of employment for which over19 time compensation is required by this section. 

20 ‘‘(3) AGREEMENT REQUIRED.—An employer 

21 may provide compensatory time to an employee 

22 under paragraph (2) only in accordance with— 

23 ‘‘(A) applicable provisions of a collective 

24 bargaining agreement between an employer and 

25 a labor organization that has been certified or 


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1 recognized as the representative of the employ2 ees of the employer under applicable law; or 

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

4 represented by a labor organization described in 

5 subparagraph (A), an agreement between the 

6 employer and employee arrived at before the 

7 performance of the work— 

8 ‘‘(i) in which the employer has offered 

9 and the employee has chosen to receive 

10 compensatory time off under this sub11 section in lieu of monetary overtime com12 pensation; 

13 ‘‘(ii) that the employee enters into 

14 knowingly, voluntarily, and not as a condi15 tion of employment; and 

16 ‘‘(iii) that is affirmed by a written or 

17 otherwise verifiable record maintained in 

18 accordance with section 11(c). 

19 ‘‘(4) HOUR LIMIT.—An employee may accrue 

20 not more than 160 hours of compensatory time 

21 under this subsection, and shall receive overtime 

22 compensation for any such compensatory time in ex23 cess of 160 hours. 

24 ‘‘(5) UNUSED COMPENSATORY TIME.— 

25 ‘‘(A) COMPENSATION PERIOD.— 


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1 ‘‘(i) IN GENERAL.—Except as pro2 vided in clause (ii), not later than January 

3 31 of each calendar year, the employer of 

4 the employee shall provide monetary com5 pensation for any unused compensatory 

6 time under this subsection accrued during 

7 the preceding calendar year that the em8 ployee did not use prior to December 31 of 

9 the preceding year at the rate prescribed 

10 by paragraph (7)(A). 

11 ‘‘(ii) ALTERNATIVE COMPENSATION

12 PERIOD.—An employer may designate and 

13 communicate to an employee a 12-month 

14 period other than the calendar year for de15 termining unused compensatory time under 

16 this subsection, and the employer shall 

17 provide monetary compensation not later 

18 than 31 days after the end of such 12- 

19 month period at the rate prescribed by 

20 paragraph (7)(A). 

21 ‘‘(B) EXCESS OF 80 HOURS.—An employer 

22 may provide monetary compensation, at the 

23 rate prescribed by paragraph (7)(A), for any 

24 unused compensatory time under this sub25 section of an employee in excess of 80 hours at 


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1 any time after giving the employee not less than 

2 30 days’ notice. 

3 ‘‘(C) TERMINATION OF EMPLOYMENT.— 

4 Upon the voluntary or involuntary termination 

5 of an employee, the employer of such employee 

6 shall provide monetary compensation at the rate 

7 prescribed by paragraph (7)(A) for any unused 

8 compensatory time under this subsection. 

9 ‘‘(6) WITHDRAWAL OF COMPENSATORY TIME

10 AGREEMENT.— 

11 ‘‘(A) EMPLOYER.—Except where a collec12 tive bargaining agreement provides otherwise, 

13 an employer that has adopted a policy of offer14 ing compensatory time to employees under this 

15 subsection may discontinue such policy after 

16 providing employees notice 30 days prior to dis17 continuing the policy. 

18 ‘‘(B) EMPLOYEE.— 

19 ‘‘(i) IN GENERAL.—An employee may 

20 withdraw an agreement described in para21 graph (3)(B) after providing notice to the 

22 employer of the employee 30 days prior to 

23 the withdrawal. 

24 ‘‘(ii) REQUEST FOR MONETARY COM25 PENSATION.—At any time, an employee 


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1 may request in writing monetary com2 pensation for any accrued and unused 

3 compensatory time under this subsection. 

4 The employer of such employee shall pro5 vide monetary compensation at the rate 

6 prescribed by paragraph (7)(A) within 30 

7 days of receiving the written request. 

8 ‘‘(7) MONETARY COMPENSATION.— 

9 ‘‘(A) RATE OF COMPENSATION.—An em10 ployer providing monetary compensation to an 

11 employee for accrued compensatory time under 

12 this subsection shall compensate the employee 

13 at a rate not less than the greater of— 

14 ‘‘(i) the regular rate, as defined in 

15 subsection (e), of the employee on the date 

16 the employee earned such compensatory 

17 time; or 

18 ‘‘(ii) the final regular rate, as defined 

19 in subsection (e), received by such em20 ployee. 

21 ‘‘(B) TREATMENT AS UNPAID OVER22 TIME.—Any monetary payment owed to an em23 ployee for unused compensatory time under this 

24 subsection, as calculated in accordance with 

25 subparagraph (A), shall be considered unpaid 


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1 overtime compensation for the purposes of this 

2 Act. 

3 ‘‘(8) USING COMPENSATORY TIME.—An em4 ployer shall permit an employee to take time off 

5 work for compensatory time accrued under para6 graph (2) within a reasonable time after the em7 ployee makes a request for using such compensatory 

8 time if the use does not unduly disrupt the oper9 ations of the employer. 

10 ‘‘(9) PROHIBITION OF COERCION.— 

11 ‘‘(A) IN GENERAL.—An employer that pro12 vides compensatory time under paragraph (2) 

13 shall not directly or indirectly intimidate, 

14 threaten, or coerce, or attempt to intimidate, 

15 threaten, or coerce any employee for the pur16 pose of interfering with the rights of an em17 ployee under this subsection— 

18 ‘‘(i) to use accrued compensatory time 

19 in accordance with paragraph (8) in lieu of 

20 receiving monetary compensation; 

21 ‘‘(ii) to refrain from using accrued 

22 compensatory time in accordance with 

23 paragraph (8) and receive monetary com24 pensation; or 


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1 ‘‘(iii) to refrain from entering into an 

2 agreement to accrue compensatory time 

3 under this subsection. 

4 ‘‘(B) DEFINITION.—In subparagraph (A), 

5 the term ‘intimidate, threaten, or coerce’ in6 cludes— 

7 ‘‘(i) promising to confer or conferring 

8 any benefit, such as appointment, pro9 motion, or compensation; or 

10 ‘‘(ii) effecting or threatening to effect 

11 any reprisal, such as deprivation of ap12 pointment, promotion, or compensation.’’. 

13 SEC. 3. FLEXIBLE CREDIT HOUR PROGRAM. 

14 Section 7 of the Fair Labor Standards Act of 1938 

15 (29 U.S.C. 207), as amended in section 2, is further 

16 amended by adding at the end the following: 

17 ‘‘(t) FLEXIBLE CREDIT HOUR PROGRAM.— 

18 ‘‘(1) DEFINITIONS.—In this subsection— 

19 ‘‘(A) the term ‘at the election of’, used 

20 with respect to an employee, means at the ini21 tiative of, and at the request of, the employee; 

22 ‘‘(B) the term ‘basic work requirement’ 

23 means the number of hours, excluding overtime 

24 hours, that an employee is required to work or 


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1 is required to account for by leave or otherwise 

2 within a specified period of time; 

3 ‘‘(C) the term ‘employee’ does not include 

4 an employee of a public agency; 

5 ‘‘(D) the term ‘flexible credit hour’ means 

6 any hour that an employee, who is participating 

7 in a flexible credit hour program, works in ex8 cess of the basic work requirement; and 

9 ‘‘(E) the term ‘overtime compensation’ has 

10 the meaning given the term in subsection 

11 (o)(7). 

12 ‘‘(2) PROGRAM ESTABLISHMENT.—An employer 

13 may establish a flexible credit hour program for an 

14 employee to accrue flexible credit hours in accord15 ance with this subsection and, in lieu of monetary 

16 compensation, reduce the number of hours the em17 ployee works in a subsequent day or week at a rate 

18 of one hour for each hour of employment for which 

19 overtime compensation is required by this section. 

20 ‘‘(3) AGREEMENT REQUIRED.— 

21 ‘‘(A) IN GENERAL.—An employer may 

22 carry out a flexible credit hour program under 

23 paragraph (2) only in accordance with— 

24 ‘‘(i) applicable provisions of a collec25 tive bargaining agreement between an emVerDate Mar 15 2010 01:42 Nov 01, 2013 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1626.IS S1626

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1 ployer and a labor organization that has 

2 been certified or recognized as the rep3 resentative of the employees of the em4 ployer under applicable law; or 

5 ‘‘(ii) in the case of an employee who 

6 is not represented by a labor organization 

7 described in clause (i), an agreement be8 tween the employer and the employee ar9 rived at before the performance of the 

10 work that— 

11 ‘‘(I) the employee enters into 

12 knowingly, voluntarily, and not as a 

13 condition of employment; and 

14 ‘‘(II) is affirmed by a written 

15 statement maintained in accordance 

16 with section 11(c). 

17 ‘‘(B) HOURS DESIGNATED.—An agreement 

18 that is entered into under subparagraph (A) 

19 shall provide that, at the election of the em20 ployee, the employer and the employee will 

21 jointly designate flexible credit hours for the 

22 employee to work within an applicable period of 

23 time. 

24 ‘‘(4) HOUR LIMIT.—An employee participating 

25 in a flexible credit hour program may not accrue 


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1 more than 50 flexible credit hours, and shall receive 

2 overtime compensation for flexible credit hours in 

3 excess of 50 hours. 

4 ‘‘(5) UNUSED FLEXIBLE CREDIT HOURS.— 

5 ‘‘(A) IN GENERAL.—Except as provided in 

6 subparagraph (B), not later than January 31 of 

7 each calendar year, the employer of an em8 ployee who is participating in a flexible credit 

9 hour program shall provide monetary com10 pensation for any flexible credit hour accrued 

11 during the preceding calendar year that the em12 ployee did not use prior to December 31 of the 

13 preceding calendar year at a rate prescribed by 

14 paragraph (7)(A)(i). 

15 ‘‘(B) ALTERNATIVE COMPENSATION PE16 RIOD.—An employer may designate and com17 municate to the employees of the employer a 

18 12-month period other than the calendar year 

19 for determining unused flexible credit hours, 

20 and the employer shall provide monetary com21 pensation, at a rate prescribed by paragraph 

22 (7)(A)(i), not later than 31 days after the end 

23 of the 12-month period. 

24 ‘‘(6) PROGRAM DISCONTINUANCE AND WITH25 DRAWAL.— 


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1 ‘‘(A) EMPLOYER.—An employer that has 

2 established a flexible credit hour program under 

3 paragraph (2) may discontinue a flexible credit 

4 hour program for employees described in para5 graph (3)(A)(ii) after providing notice to such 

6 employees 30 days before discontinuing such 

7 program. 

8 ‘‘(B) EMPLOYEE.— 

9 ‘‘(i) IN GENERAL.—An employee may 

10 withdraw an agreement described in para11 graph (3)(A)(ii) at any time by submitting 

12 written notice of withdrawal to the em13 ployer of the employee 30 days prior to the 

14 withdrawal. 

15 ‘‘(ii) REQUEST FOR MONETARY COM16 PENSATION.—An employee may request in 

17 writing, at any time, that the employer of 

18 such employee provide monetary compensa19 tion for all accrued and unused flexible 

20 credit hours. Within 30 days after receiv21 ing such written request, the employer 

22 shall provide the employee monetary com23 pensation for such unused flexible credit 

24 hours at a rate prescribed by paragraph 

25 (7)(A)(i). 


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1 ‘‘(7) MONETARY COMPENSATION.— 

2 ‘‘(A) FLEXIBLE CREDIT HOURS.— 

3 ‘‘(i) RATE OF COMPENSATION.—An 

4 employer providing monetary compensation 

5 to an employee for accrued flexible credit 

6 hours shall compensate such employee at a 

7 rate not less than the regular rate, as de8 fined in subsection (e), of the employee on 

9 the date the employee receives the mone10 tary compensation. 

11 ‘‘(ii) TREATMENT AS UNPAID OVER12 TIME.—Any monetary payment owed to an 

13 employee for unused flexible credit hours 

14 under this subsection, as calculated in ac15 cordance with clause (i), shall be consid16 ered unpaid overtime compensation for the 

17 purposes of this Act. 

18 ‘‘(B) OVERTIME HOURS.— 

19 ‘‘(i) IN GENERAL.—Any hour that an 

20 employee works in excess of 40 hours in a 

21 workweek that is requested in advance by 

22 the employer, other than a flexible credit 

23 hour, shall be an ‘overtime hour’. 

24 ‘‘(ii) RATE OF COMPENSATION.—The 

25 employee shall be compensated for each 


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1 overtime hour at a rate not less than one 

2 and one-half times the regular rate at 

3 which the employee is employed, in accord4 ance with subsection (a)(1), or receive 

5 compensatory time off in accordance with 

6 subsection (s), for each such overtime 

7 hour. 

8 ‘‘(8) USE OF FLEXIBLE CREDIT HOURS.—An 

9 employer shall permit an employee to use accrued 

10 flexible credit hours to take time off work, in accord11 ance with the rate prescribed by paragraph (2), 

12 within a reasonable time after the employee makes 

13 a request for such use if the use does not unduly 

14 disrupt the operations of the employer. 

15 ‘‘(9) PROHIBITION OF COERCION.— 

16 ‘‘(A) IN GENERAL.—An employer shall not 

17 directly or indirectly intimidate, threaten, or co18 erce, or attempt to intimidate, threaten, or co19 erce, any employee for the purpose of inter20 fering with the rights of the employee under 

21 this subsection— 

22 ‘‘(i) to elect or not to elect to partici23 pate in a flexible credit hour program, or 

24 to elect or not to elect to work flexible 

25 credit hours; or 


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1 ‘‘(ii) to use or refrain from using ac2 crued flexible credit hours in accordance 

3 with paragraph (8). 

4 ‘‘(B) DEFINITION.—In subparagraph (A), 

5 the term ‘intimidate, threaten, or coerce’ has 

6 the meaning given the term in subsection 

7 (s)(9).’’. 

8 SEC. 4. REMEDIES. 

9 Section 16 of the Fair Labor Standards Act of 1938 

10 (29 U.S.C. 216) is amended— 

11 (1) in subsection (b), by striking ‘‘(b) Any em12 ployer’’ and inserting ‘‘(b) Except as provided in 

13 subsection (f), any employer’’; and 

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

15 ‘‘(f) An employer that violates subsection (s)(9) or 

16 (t)(9) of section 7 shall be liable to the affected employee 

17 in the amount of— 

18 ‘‘(1) the rate of compensation, determined in 

19 accordance with subsection (s)(7)(A) or (t)(7)(A)(i) 

20 of section 7, for each hour of unused compensatory 

21 time or for each unused flexible credit hour accrued 

22 by the employee; and 

23 ‘‘(2) liquidated damages equal to the amount 

24 determined in paragraph (1).’’. 


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1 SEC. 5. NOTICE TO EMPLOYEES. 

2 Not later than 30 days after the date of enactment 

3 of this Act, the Secretary of Labor shall revise the mate4 rials the Secretary provides, under regulations contained 

5 in section 516.4 of title 29, Code of Federal Regulations, 

6 to employers for purposes of a notice explaining the Fair 

7 Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) to 

8 employees so that the notice reflects the amendments 

9 made to such Act by this Act. 

10 SEC. 6. PROTECTIONS FOR CLAIMS RELATING TO COMPEN11 SATORY TIME OFF AND FLEXIBLE CREDIT 

12 HOURS IN BANKRUPTCY PROCEEDING. 

13 Section 507(a)(4)(A) of title 11, United States Code, 

14 is amended— 

15 (1) by striking ‘‘and’’; and 

16 (2) by inserting ‘‘, the value of unused, accrued 

17 compensatory time off under section 7(s) of the Fair 

18 Labor Standards Act of 1938 (29 U.S.C. 207(s)), all 

19 of which shall be deemed to have been earned within 

20 180 days before the date of the filing of the petition 

21 or the date of the cessation of the debtor’s business, 

22 whichever occurs first, at a rate of compensation not 

23 less than the final regular rate received by such indi24 vidual, and the value of unused, accrued flexible 

25 credit hours under section 7(t) of the Fair Labor 

26 Standards Act of 1938 (29 U.S.C. 207(t)), all of 


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1 which shall be deemed to have been earned within 

2 180 days before the date of the filing of the petition 

3 or the date of the cessation of the debtor’s business, 

4 whichever occurs first, at a rate of compensation de5 scribed in paragraph (7)(A)(i) of such section 7(t)’’ 

6 after ‘‘sick leave pay’’. 

7 SEC. 7. GAO REPORT. 

8 Beginning 2 years after the date of enactment of this 

9 Act and each of the 3 years thereafter, the Comptroller 

10 General of the United States shall submit a report to Con11 gress providing, with respect to the reporting period imme12 diately prior to each such report— 

13 (1) data concerning the extent to which employ14 ers provide compensatory time and flexible credit 

15 hours under subsections (s) and (t) of section 7 of 

16 the Fair Labor Standards Act of 1938 (29 U.S.C. 

17 207), as added by this Act, and the extent to which 

18 employees opt to receive compensatory time under 

19 subsection (s) and flexible credit hours under sub20 section (t); 

21 (2) the number of complaints alleging a viola22 tion of subsection (s)(9) or (t)(9) of such section 

23 filed by any employee with the Secretary of Labor, 

24 and the disposition or status of such complaints; 


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1 (3) the number of enforcement actions com2 menced by the Secretary or commenced by the Sec3 retary on behalf of any employee for alleged viola4 tions of subsection (s)(9) or (t)(9) of such section, 

5 and the disposition or status of such actions; and 

6 (4) an account of any unpaid wages, damages, 

7 penalties, injunctive relief, or other remedies ob8 tained or sought by the Secretary in connection with 

9 such actions described in paragraph (3). 

10 SEC. 8. SUNSET. 

11 This Act and the amendments made by this Act shall 

12 expire on the date that is 5 years after the date of enact13 ment of this Act. 

Æ 


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