II

106TH CONGRESS

2D SESSION S. 3159

To amend the Fair Labor Standards Act of 1938 to clarify provisions relating

to the use of accrued compensatory time by certain public employees.

IN THE SENATE OF THE UNITED STATES

OCTOBER 4 (legislative day, SEPTEMBER 22), 2000

Mr. ASHCROFT 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 clarify

provisions relating to the use of accrued compensatory

time by certain public employees.

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

3 SECTION 1. AMENDMENT TO THE FAIR LABOR STANDARDS

4 ACT OF 1938.

5 (a) IN GENERAL.—Paragraph (5) of section 7(o) of

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

7 207(o)(5)) is amended to read as follows:

8 ‘‘(5)(A) An employee of a public agency which is a

9 State, political subdivision of a State, or an interstate gov10 ernmental agency—
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1 ‘‘(i) who has accrued compensatory time off au2 thorized to be provided under paragraph (1), and

3 ‘‘(ii) who has requested the use of such compen4 satory time,

5 shall be permitted by the employee’s employer to use such

6 time within a reasonable period after making the request

7 if the use of the compensatory time does not unduly dis8 rupt the operations of the public agency.

9 ‘‘(B)(i) An employer to which subparagraph (A) ap10 plies may not compel an employee to use accrued compen11 satory time absent a request from such employee for the

12 use of such time.

13 ‘‘(ii)(I) Not later than January 31 of each calendar

14 year, an employer to which subparagraph (A) applies shall

15 provide monetary compensation for any unused compen16 satory time off accrued by an employee during the pre17 ceding calendar year that was not used prior to December

18 31 of the preceding calendar year at the rate of compensa19 tion prescribed by subclause (II). An employer may des20 ignate and communicate to the employees of the employer

21 a 12-month period other than the calendar year, in which

22 case the compensation shall be provided not later than 31

23 days after the end of the 12-month period.

24 ‘‘(II) The rate of compensation prescribed in this sub25 clause is a rate that is not less than—
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1 ‘‘(aa) the regular rate of compensation received

2 by the employee involved when the compensatory

3 time off was earned; or

4 ‘‘(bb) the final regular rate of compensation re5 ceived by such employee;

6 whichever is higher.

7 ‘‘(iii) An employer to which subparagraph (A) applies

8 shall provide an employee, upon the written request of the

9 employee, with monetary compensation for the employee’s

10 unused compensatory time off. Such compensation shall

11 be paid by the employer not later 30 days after the date

12 on which the employer receives the written request for

13 such monetary compensation. The compensation shall be

14 provided at the rate prescribed by clause (ii)(II).

15 ‘‘(C)(i) Except as provided in clause (ii), the accept16 ance by an employee to which this paragraph applies of

17 compensatory time off in lieu of monetary overtime com18 pensation may not be a condition of employment.

19 ‘‘(ii) In a case in which a valid collective bargaining

20 agreement exists between an employer to which subpara21 graph (A) applies and the labor organization that has been

22 certified or recognized as the representative of the employ23 ees of the employer under applicable law, an employee may

24 only be required under this subparagraph to receive com-
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1 pensatory time off in lieu of monetary overtime compensa2 tion in accordance with the agreement.

3 ‘‘(D)(i)(I) An employer to which subparagraph (A)

4 applies shall not directly or indirectly intimidate, threaten,

5 or coerce, or attempt to intimidate, threaten, or coerce,

6 any employee for the purpose of—

7 ‘‘(aa) interfering with the rights of the em8 ployee under this paragraph to request or not re9 quest compensatory time off in lieu of payment of

10 monetary overtime compensation for overtime hours;

11 ‘‘(bb) interfering with the rights of the em12 ployee to use accrued compensatory time off in ac13 cordance with this paragraph; or

14 ‘‘(cc) requiring the employee to use the compen15 satory time off.

16 ‘‘(II) In subclause (I), the term ‘intimidate, threaten,

17 or coerce’ includes promising to confer or conferring any

18 benefit (such as appointment, promotion, or compensa19 tion) or effecting or threatening to effect any reprisal

20 (such as deprivation of appointment, promotion, or com21 pensation).

22 ‘‘(ii) An employer to which subparagraph (A) applies

23 shall permit an employee to elect, for an applicable

24 workweek—
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1 ‘‘(I) the payment of monetary overtime com2 pensation for the workweek; or

3 ‘‘(II) the accrual of compensatory time off in

4 lieu of the payment of monetary overtime compensa5 tion for the workweek.’’.

6 (b) REMEDIES AND SANCTIONS.—Section 16 of the

7 Fair Labor Standards Act of 1938 (29 U.S.C. 216) is

8 amended by adding at the end the following:

9 ‘‘(f) In addition to any amount that an employer is

10 liable under subsection (b) for a violation of a provision

11 of section 7, an employer that violates section 7(o)(5) shall

12 be liable to the employee affected in an amount equal to—

13 ‘‘(1) the product of—

14 ‘‘(A) the rate of compensation (determined

15 in accordance with section 7(o)(5)(B)(ii)(II));

16 and

17 ‘‘(B)(i) the number of hours of compen18 satory time off involved in the violation that

19 was initially accrued by the employee; minus

20 ‘‘(ii) the number of such hours used by the

21 employee; and

22 ‘‘(2) as liquidated damages, the product of—

23 ‘‘(A) such rate of compensation; and
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1 ‘‘(B) the number of hours of compensatory

2 time off involved in the violation that was ini3 tially accrued by the employee.’’.

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