I 

111TH CONGRESS 

1ST SESSION H. R. 1274 

To permit employees to request, and to ensure employers consider requests 

for, flexible work terms and conditions, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 3, 2009 

Mrs. MALONEY (for herself, Mr. GEORGE MILLER of California, Mr. LEWIS

of Georgia, and Mr. CUMMINGS) introduced the following bill; which was 

referred to the Committee on Education and Labor, and in addition to 

the Committees on Oversight and Government Reform, House Administration, and the Judiciary, for a period to be subsequently determined by 

the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To permit employees to request, and to ensure employers 

consider requests for, flexible work terms and conditions, 

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 ‘‘Working Families 

5 Flexibility Act’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 


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1 (1) EMPLOYEE.—The term ‘‘employee’’ means 

2 an individual— 

3 (A) who is— 

4 (i)(I) an employee (including an appli5 cant), as defined in section 3(e) of the Fair 

6 Labor Standards Act of 1938 (29 U.S.C. 

7 203(e)), who is not covered under any of 

8 clauses (ii) through (v), including such an 

9 employee of the Library of Congress, ex10 cept that a reference in such section to an 

11 employer shall be considered to be a ref12 erence to an employer described in clauses 

13 (i)(I) and (ii) of paragraph (2)(A); or 

14 (II) an employee (including an appli15 cant) of the Government Accountability 

16 Office; 

17 (ii) a State employee (including an ap18 plicant) described in section 304(a) of the 

19 Government Employee Rights Act of 1991 

20 (42 U.S.C. 2000e–16c(a)); 

21 (iii) a covered employee (including an 

22 applicant), as defined in section 101 of the 

23 Congressional Accountability Act of 1995 

24 (2 U.S.C. 1301); 


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1 (iv) a covered employee (including an 

2 applicant), as defined in section 411(c) of 

3 title 3, United States Code; or 

4 (v) a Federal officer or employee (in5 cluding an applicant) covered under sub6 chapter V of chapter 63 of title 5, United 

7 States Code; and 

8 (B) who works an average of at least 20 

9 hours per week or, in the alternative, at least 

10 1,000 hours per year. 

11 (2) EMPLOYER.— 

12 (A) IN GENERAL.—The term ‘‘employer’’ 

13 means a person who is— 

14 (i)(I) a covered employer, as defined 

15 in subparagraph (B), who is not covered 

16 under any of subclauses (II) through (V); 

17 (II) an entity employing a State em18 ployee described in section 304(a) of the 

19 Government Employee Rights Act of 1991; 

20 (III) an employing office, as defined 

21 in section 101 of the Congressional Ac22 countability Act of 1995; 

23 (IV) an employing office, as defined in 

24 section 411(c) of title 3, United States 

25 Code; or 


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1 (V) an employing agency covered 

2 under subchapter V of chapter 63 of title 

3 5, United States Code; and 

4 (ii) is engaged in commerce (including 

5 government), in the production of goods 

6 for commerce, or in an enterprise engaged 

7 in commerce (including government) or in 

8 the production of goods for commerce. 

9 (B) COVERED EMPLOYER.— 

10 (i) IN GENERAL.—In subparagraph 

11 (A)(i)(I), the term ‘‘covered employer’’— 

12 (I) means any person engaged in 

13 commerce or in any industry or activ14 ity affecting commerce who employs 

15 15 or more employees for each work16 ing day during each of 20 or more 

17 calendar workweeks in the current or 

18 preceding calendar year; 

19 (II) includes— 

20 (aa) any person who acts, 

21 directly or indirectly, in the inter22 est of such an employer to any of 

23 the employees of such employer; 

24 and 


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1 (bb) any successor in inter2 est of such an employer; and 

3 (III) includes an agency de4 scribed in clause (iii) or (iv) of sub5 paragraph (A) of section 101(4) of 

6 the Family and Medical Leave Act of 

7 1993 (29 U.S.C. 2611(4)), to which 

8 subparagraph (B) of such section 

9 shall apply. 

10 (ii) DEFINITIONS.—For purposes of 

11 this subparagraph: 

12 (I) COMMERCE.—The terms 

13 ‘‘commerce’’ and ‘‘industry or activity 

14 affecting commerce’’ have the mean15 ings given the terms in section 101 of 

16 such Act (29 U.S.C. 2611). 

17 (II) EMPLOYEE; PERSON.—The 

18 terms ‘‘employee’’ and ‘‘person’’ have 

19 the meanings given such terms in sec20 tion 3 of the Fair Labor Standards 

21 Act of 1938 (29 U.S.C. 203). 

22 (C) PREDECESSORS.—Any reference in 

23 this paragraph to an employer shall include a 

24 reference to any predecessor of such employer. 


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1 (3) SECRETARY.—The term ‘‘Secretary’’ means 

2 the Secretary of Labor. 

3 SEC. 3. STATUTORY RIGHT TO REQUEST FLEXIBLE WORK 

4 TERMS AND CONDITIONS. 

5 (a) IN GENERAL.—An employee may apply to the 

6 employee’s employer for a change in the employee’s terms 

7 or conditions of employment if the change relates to— 

8 (1) the number of hours the employee is re9 quired to work; 

10 (2) the times when the employee is required to 

11 work; or 

12 (3) where the employee is required to work. 

13 (b) CONTENTS.—An application submitted under this 

14 section shall— 

15 (1) state that the application is an application 

16 described in subsection (a); 

17 (2) specify the change applied for and the date 

18 on which the employee requests that the change be19 come effective; and 

20 (3) explain what effect, if any, the employee 

21 thinks the change applied for would have on the em22 ployer and how, in the employee’s opinion, any such 

23 effect might be dealt with. 

24 (c) SUBMISSIONS.— 


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1 (1) PERIOD BETWEEN SUBMISSIONS.—If an 

2 employee, who has submitted an application under 

3 this section to an employer, submits a further appli4 cation under this section to the same employer be5 fore the end of the period of 12 months beginning 

6 with the date on which the previous application was 

7 submitted, that further application shall not be cov8 ered by section 4. 

9 (2) FORM AND TIMING.—The Secretary shall by 

10 regulation specify— 

11 (A) the form of applications submitted 

12 under this section; and 

13 (B) when such an application shall be con14 sidered to be submitted. 

15 SEC. 4. EMPLOYER’S DUTIES IN RELATION TO APPLICA16 TIONS. 

17 (a) IN GENERAL.—An employer to whom an em18 ployee submits an application under section 3 shall con19 sider the application in accordance with regulations issued 

20 by the Secretary. 

21 (b) REGULATIONS.—Regulations issued under sub22 section (a)— 

23 (1) shall include provisions that provide— 

24 (A) that the employer and the employee 

25 shall hold a meeting to discuss an application 


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1 submitted under section 3 within 14 days after 

2 the date of submission; 

3 (B) that the employer shall give the em4 ployee a written decision regarding the applica5 tion within 14 days after the date of the meet6 ing described in subparagraph (A); 

7 (C) that a decision under subparagraph 

8 (B) to reject the application shall state the 

9 grounds for the decision, including whether 

10 those grounds included— 

11 (i) the identifiable cost of the change 

12 in a term or condition of employment re13 quested in the application, including the 

14 costs of loss of productivity, of retraining 

15 or hiring employees, or of transferring em16 ployees from 1 facility to another facility; 

17 (ii) the overall financial resources in18 volved; 

19 (iii) for an employer with multiple fa20 cilities, the geographic separateness or ad21 ministrative or fiscal relationship of the fa22 cilities; 

23 (iv) the effect of the change on the 

24 employer’s ability to meet customer de25 mand; or 


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1 (v) other factors specified by the Sec2 retary in regulation; 

3 (D) that if the employer rejects the em4 ployee’s application, the employer may propose 

5 in writing an alternative change to the employ6 ee’s hours, times, and place of work; 

7 (E) that if the employee is dissatisfied with 

8 the employer’s decision under subparagraph (B) 

9 and the alternative described in subparagraph 

10 (D), the employee has the right to request re11 consideration of the decision within 14 days 

12 after the later of— 

13 (i) the date on which the employer 

14 gives the employee the decision under sub15 paragraph (B); and 

16 (ii) if applicable, the date on which 

17 the employer proposes the alternative de18 scribed in subparagraph (D); 

19 (F) for procedures for exercising the right 

20 to request reconsideration described in subpara21 graph (E), including procedures requiring the 

22 employee to set out the grounds for reconsider23 ation, including any inaccuracies or 

24 misstatements that the employee contends were 

25 in the employer’s decision; 


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1 (G) that the decision under subparagraph 

2 (B) shall include such information as the regu3 lations shall specify relating to the right to re4 quest reconsideration under subparagraph (E); 

5 (H) that the employer and the employee 

6 shall hold a meeting to discuss the request for 

7 reconsideration described in subparagraph (E) 

8 within 14 days after the date on which the em9 ployee gives notice of the request for reconsider10 ation to the employer; 

11 (I) that the employer shall give the em12 ployee a written decision regarding the request 

13 for reconsideration within 14 days after the 

14 date of the meeting described in subparagraph 

15 (H); 

16 (J) that a decision under subparagraph (I) 

17 to deny the request for reconsideration shall 

18 state the grounds for the decision, including 

19 whether those grounds included the factors de20 scribed in clauses (i) through (v) of subpara21 graph (C); 

22 (K) that a statement made under subpara23 graph (C) or (J) shall contain a sufficient ex24 planation of the grounds for the decision in25 volved; 


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1 (L) that the employee shall have a right to 

2 be accompanied at meetings described in sub3 paragraph (A) or (H) by a representative of the 

4 employee’s choosing with such qualifications as 

5 the regulations shall specify; and 

6 (M) that if such a representative of the 

7 employee’s choosing is not available to attend a 

8 meeting described in subparagraph (A) or (H), 

9 the meeting shall be postponed; 

10 (2) may include provisions that provide— 

11 (A) that any requirement of the regula12 tions shall not apply in a case in which such an 

13 application is disposed of by agreement or with14 drawn; 

15 (B) for extension of a time limit in a case 

16 in which the employer and employee agree, or 

17 in such other circumstances as the regulations 

18 may specify; and 

19 (C) for applications to be treated as with20 drawn in specified circumstances; and 

21 (3) may include different provisions for dif22 ferent cases or circumstances. 

23 SEC. 5. PROHIBITED ACTS. 

24 (a) INTERFERENCE WITH RIGHTS.—It shall be un25 lawful for any employer to interfere with, restrain, or deny 


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1 the exercise of, or the attempt to exercise, any right pro2 vided under this Act. 

3 (b) INTERFERENCE WITH APPLICATION, PRO4 CEEDINGS, OR INQUIRIES.—It shall be unlawful for any 

5 employer to discharge or in any other manner discriminate 

6 against any individual because such individual— 

7 (1) has submitted (or attempted to submit) an 

8 application under section 3; 

9 (2) has filed an action, or has instituted or 

10 caused to be instituted any proceeding, under or re11 lated to this Act; 

12 (3) has given, or is about to give, any informa13 tion in connection with any inquiry or proceeding re14 lating to any right provided under this Act; 

15 (4) has testified, or is about to testify, in any 

16 inquiry or proceeding relating to any right provided 

17 under this Act; 

18 (5) has opposed any practice made unlawful by 

19 this Act; or 

20 (6) has in any other way exercised or attempted 

21 to exercise any right provided under this Act. 

22 SEC. 6. ENFORCEMENT. 

23 (a) DEFINITIONS.—Except as provided in subsection 

24 (d), in this section: 


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1 (1) EMPLOYEE.—The term ‘‘employee’’ means 

2 an employee described in clause (i) or (ii) of section 

3 2(1)(A). 

4 (2) EMPLOYER.—The term ‘‘employer’’ means 

5 an employer described in subclause (I) or (II) of sec6 tion 2(2)(A)(i). 

7 (b) GENERAL AUTHORITY.—The provisions of this 

8 Act may be enforced pursuant to the following provisions: 

9 (1) INVESTIGATION AND ASSESSMENT.—An em10 ployee who is affected by a violation of a right in 

11 section 5 (including a violation relating to a right 

12 provided under section 3 or 4) may make a com13 plaint to the Administrator of the Wage and Hour 

14 Division of the Employment Standards Administra15 tion of the Department of Labor, alleging that the 

16 employer involved has violated section 5. The Ad17 ministrator shall investigate, and may issue an order 

18 making determinations, and assessing a civil penalty 

19 described in section 7(a)(1) or awarding relief de20 scribed in section 7(a)(2), as appropriate, with re21 spect to the alleged violation. 

22 (2) ADMINISTRATIVE HEARING.—An affected 

23 person who takes exception to an order issued under 

24 paragraph (1) may request an administrative hear25 ing concerning the order under procedures estabVerDate Nov 24 2008 21:47 Mar 04, 2009 Jkt 079200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H1274.IH H1274

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1 lished by the Secretary that comply with the require2 ments of sections 554, 556, and 557 of title 5, 

3 United States Code, and regulations promulgated by 

4 the Secretary. Such hearing shall be conducted expe5 ditiously. If no affected person requests the hearing 

6 within 60 days after the order is issued under para7 graph (1), the order shall be deemed to be a final 

8 order that is not subject to judicial review. 

9 (3) ENFORCEMENT.—The amount of any pen10 alty assessed against an employer under this sub11 section, when finally determined, may be— 

12 (A) deducted from any sums owed by the 

13 United States to the employer; or 

14 (B) recovered in a civil action brought 

15 against the employer by the Secretary in any 

16 court of competent jurisdiction. 

17 (4) CIVIL ACTION.—An affected person desiring 

18 review of an order issued under paragraph (2) (other 

19 than a nonreviewable order) may file a petition for 

20 review in an appropriate Federal court of appeals. 

21 (5) CIVIL ACTION BY THE SECRETARY FOR IN22 JUNCTIVE RELIEF.—The Secretary may bring an ac23 tion for a violation described in paragraph (1) in a 

24 district court of the United States to obtain the in25 junctive relief described in section 7(b). 


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1 (c) GOVERNMENT ACCOUNTABILITY OFFICE AND LI2 BRARY OF CONGRESS.—Notwithstanding any other provi3 sion of this section, the Secretary is authorized to enter 

4 into agreements with the Librarian of Congress and the 

5 Comptroller General of the United States with respect to 

6 individuals employed in the Library of Congress and the 

7 Government Accountability Office, respectively, to provide 

8 for the carrying out of functions of the Secretary under 

9 subsection (b) with respect to such individuals. 

10 (d) OTHER EMPLOYEES.— 

11 (1) EMPLOYEES COVERED BY CONGRESSIONAL

12 ACCOUNTABILITY ACT OF 1995.—Notwithstanding 

13 any other provision of this section or section 7, the 

14 powers, remedies, and procedures provided in the 

15 Congressional Accountability Act of 1995 (2 U.S.C. 

16 1301 et seq.) to the Board (as defined in section 

17 101 of that Act (2 U.S.C. 1301)), or any person, al18 leging a violation of section 202(a)(1) of that Act (2 

19 U.S.C. 1312(a)(1)) shall be the powers, remedies, 

20 and procedures this Act provides to that Board, or 

21 any person, alleging an unlawful employment prac22 tice in violation of this Act against an employee de23 scribed in section 2(1)(A)(iii). 

24 (2) EMPLOYEES COVERED BY CHAPTER 5 OF

25 TITLE 3, UNITED STATES CODE.—Notwithstanding 


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1 any other provision of this section or section 7, the 

2 powers, remedies, and procedures provided in chap3 ter 5 of title 3, United States Code, to the Presi4 dent, the Merit Systems Protection Board, or any 

5 person, alleging a violation of section 412(a)(1) of 

6 that title, shall be the powers, remedies, and proce7 dures this Act provides to the President, that Board, 

8 or any person, respectively, alleging an unlawful em9 ployment practice in violation of this Act against an 

10 employee described in section 2(1)(A)(iv). 

11 (3) EMPLOYEES COVERED BY CHAPTER 63 OF

12 TITLE 5, UNITED STATES CODE.—Notwithstanding 

13 any other provision of this section or section 7, the 

14 powers, remedies, and procedures provided in title 5, 

15 United States Code, to an employing agency, pro16 vided in chapter 12 of that title to the Merit Sys17 tems Protection Board, or provided in that title to 

18 any person, alleging a violation of chapter 63 of that 

19 title, shall be the powers, remedies, and procedures 

20 this Act provides to that agency, that Board, or any 

21 person, respectively, alleging an unlawful employ22 ment practice in violation of this Act against an em23 ployee described in section 2(1)(A)(v). 


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1 SEC. 7. REMEDIES. 

2 (a) ADMINISTRATIVE PROCEEDINGS AND ACTIONS

3 FOR REVIEW.— 

4 (1) INTERFERENCE WITH EXERCISE OF

5 RIGHTS.—In an action brought under paragraph (1), 

6 (2), or (4) of section 6(b), an employer who violates 

7 the provisions of section 5(a) (including a violation 

8 relating to a right provided under section 3 or 4) 

9 shall be subject to a civil penalty of not less than 

10 $1000 and not more than $5,000 for each employee 

11 who was the subject of such a violation. 

12 (2) RETALIATION.—In an action brought under 

13 paragraph (1), (2), or (4) of section 6(b), if an em14 ployer violates section 5(b), the employee who is af15 fected by the violation or the Secretary, as appro16 priate, may obtain an order awarding such equitable 

17 relief as may be appropriate, including employment, 

18 reinstatement, promotion, back pay, and a change in 

19 the terms or conditions of employment. 

20 (b) CIVIL ACTION BY THE SECRETARY FOR INJUNC21 TIVE RELIEF.—In an action brought under section 

22 6(b)(5), the Secretary may obtain an order— 

23 (1) restraining violations of section 5 (including 

24 a violation relating to a right provided under section 

25 3 or 4); or 


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1 (2) awarding such other equitable relief as may 

2 be appropriate, including employment, reinstate3 ment, promotion, back pay, and a change in the 

4 terms or conditions of employment. 

5 SEC. 8. NOTICE. 

6 (a) IN GENERAL.—Each employer shall post and 

7 keep posted, in conspicuous places on the premises of the 

8 employer where notices to employees and applicants for 

9 employment are customarily posted, a notice, to be pre10 pared or approved by the Secretary (or the appropriate 

11 officer specified in section 12(a), as applicable), setting 

12 forth excerpts from, or summaries of, the pertinent provi13 sions of this Act and information pertaining to the filing 

14 of a complaint under section 6(b). 

15 (b) PENALTY.—Any employer that willfully violates 

16 this section may be assessed a civil money penalty not to 

17 exceed $500 for each separate offense. 

18 SEC. 9. RECORDKEEPING. 

19 Any employer shall make, keep, and preserve records 

20 pertaining to compliance with this Act in accordance with 

21 regulations issued under section 12. 

22 SEC. 10. RESEARCH, EDUCATION, AND TECHNICAL ASSIST23 ANCE PROGRAM. 

24 (a) IN GENERAL.—The Secretary (and each officer 

25 specified in section 12(a), as applicable) shall provide inVerDate Nov 24 2008 21:47 Mar 04, 2009 Jkt 079200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\H1274.IH H1274

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1 formation and technical assistance to employers, labor or2 ganizations, and the general public concerning compliance 

3 with this Act. 

4 (b) PROGRAM.—In order to achieve the objectives of 

5 this Act, the Secretary (and each officer specified in sec6 tion 12(a), as applicable) shall carry on a continuing pro7 gram of research, education, and technical assistance, in8 cluding— 

9 (1) conducting and promoting research with the 

10 intent of encouraging flexibility in work terms and 

11 conditions; 

12 (2) publishing and otherwise making available 

13 to employers, labor organizations, professional asso14 ciations, educational institutions, the various com15 munication media, and the general public the find16 ings of studies and other materials for promoting 

17 compliance with this Act; 

18 (3) sponsoring and assisting State and commu19 nity informational and educational programs; and 

20 (4) providing technical assistance to employers, 

21 labor organizations, professional associations, and 

22 other interested persons on means of achieving and 

23 maintaining compliance with the provisions of this 

24 Act. 


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1 SEC. 11. RIGHTS RETAINED BY EMPLOYEES. 

2 Nothing in this Act shall be considered to diminish 

3 the rights, privileges, or remedies of any employee under 

4 any Federal or State law, or under a collective bargaining 

5 agreement. 

6 SEC. 12. APPLICATION OF PROVISIONS. 

7 (a) APPLICATION TO CLASSES OF EMPLOYEES.—Not 

8 later than 120 days after the date of enactment of this 

9 Act— 

10 (1)(A) except as provided in subparagraph (B), 

11 the Secretary shall issue such regulations as are nec12 essary to carry out this Act with respect to employ13 ees described in clause (i) or (ii) of section 2(1)(A); 

14 and 

15 (B) the Comptroller General of the United 

16 States and the Librarian of Congress shall issue 

17 such regulations as are necessary to carry out this 

18 Act with respect to employees of the Government 

19 Accountability Office and the Library of Congress, 

20 respectively; 

21 (2) the Board of Directors of the Office of 

22 Compliance shall issue (in accordance with section 

23 304 of the Congressional Accountability Act of 1995 

24 (2 U.S.C. 1384)) such regulations as are necessary 

25 to carry out this Act with respect to employees de26 scribed in section 2(1)(A)(iii); 


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1 (3) the President (or the designee of the Presi2 dent) shall issue such regulations as are necessary to 

3 carry out this Act with respect to employees de4 scribed in section 2(1)(A)(iv); and 

5 (4) the Director of the Office of Personnel 

6 Management shall issue such regulations as are nec7 essary to carry out this Act with respect to employ8 ees described in section 2(1)(A)(v). 

9 (b) TRANSITIONAL PROVISIONS.—A regulation issued 

10 under subsection (a) may contain such transitional provi11 sions as the Secretary determines to be appropriate in con12 nection with the application of any of the provisions of 

13 this Act. 

14 SEC. 13. AUTHORIZATION OF APPROPRIATIONS. 

15 There are authorized to be appropriated to carry out 

16 this Act such sums as may be necessary for fiscal year 

17 2010 and each subsequent fiscal year. 

18 SEC. 14. EFFECTIVE DATE. 

19 (a) IN GENERAL.—This Act takes effect 6 months 

20 after the date of enactment of this Act, except as provided 

21 in subsection (b). 

22 (b) COLLECTIVE BARGAINING AGREEMENTS.—In the 

23 case of a collective bargaining agreement in effect on the 

24 effective date prescribed by subsection (a), this Act shall 

25 apply on the earlier of— 


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1 (1) the date of the termination of such agree2 ment; or 

3 (2) the date that occurs 12 months after the 

4 date of enactment of this Act. 

Æ 


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