II 

117TH CONGRESS 

1ST SESSION S. 247 

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

time for employees in the private sector. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 4, 2021 

Mr. LEE (for himself, Mr. SCOTT of South Carolina, Mr. RISCH, Mr. BARRASSO, Mr. ROMNEY, Mr. CRAMER, Mrs. CAPITO, Mr. WICKER, Mr. 

INHOFE, Mr. GRASSLEY, Mr. CRAPO, Mr. CORNYN, and Mr. LANKFORD) 

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 

compensatory time for employees in the private sector. 

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 of 2021’’. 

6 SEC. 2. COMPENSATORY TIME. 

7 Section 7 of the Fair Labor Standards Act of 1938 

8 (29 U.S.C. 207) is amended by adding at the end the fol9 lowing: 


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1 ‘‘(t) COMPENSATORY TIME OFF FOR PRIVATE EM2 PLOYEES.— 

3 ‘‘(1) GENERAL RULE.—An employee may re4 ceive, in accordance with this subsection and in lieu 

5 of monetary overtime compensation, compensatory 

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

7 hours for each hour of employment for which over8 time compensation is required by this section. 

9 ‘‘(2) CONDITIONS.—An employer may provide 

10 compensatory time to employees under paragraph 

11 (1) only if such time is provided in accordance 

12 with— 

13 ‘‘(A) applicable provisions of a collective 

14 bargaining agreement between the employer 

15 and the labor organization that has been cer16 tified or recognized as the representative of the 

17 employees under applicable law; or 

18 ‘‘(B) in the case of employees who are not 

19 represented by a labor organization that has 

20 been certified or recognized as the representa21 tive of such employees under applicable law, an 

22 agreement arrived at between the employer and 

23 employee before the performance of the work 

24 and affirmed by a written or otherwise 


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1 verifiable record maintained in accordance with 

2 section 11(c)— 

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

4 and the employee has chosen to receive 

5 compensatory time in lieu of monetary 

6 overtime compensation; and 

7 ‘‘(ii) entered into knowingly and vol8 untarily by such employee and not as a 

9 condition of employment. 

10 No employee may receive or agree to receive com11 pensatory time off under this subsection unless the 

12 employee has worked at least 1,000 hours for the 

13 employee’s employer during a period of continuous 

14 employment with the employer in the 12-month pe15 riod before the date of agreement or receipt of com16 pensatory time off. 

17 ‘‘(3) HOUR LIMIT.— 

18 ‘‘(A) MAXIMUM HOURS.—An employee 

19 may accrue not more than 160 hours of com20 pensatory time. 

21 ‘‘(B) COMPENSATION DATE.—Not later 

22 than January 31 of each calendar year, the em23 ployee’s employer shall provide monetary com24 pensation for any unused compensatory time off 

25 accrued during the preceding calendar year that 


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1 was not used prior to December 31 of the pre2 ceding calendar year at the rate prescribed by 

3 paragraph (6). An employer may designate and 

4 communicate to the employer’s employees a 12- 

5 month period other than the calendar year, in 

6 which case such compensation shall be provided 

7 not later than 31 days after the end of such 12- 

8 month period. 

9 ‘‘(C) EXCESS OF 80 HOURS.—The em10 ployer may provide monetary compensation for 

11 an employee’s unused compensatory time in ex12 cess of 80 hours at any time after giving the 

13 employee at least 30 days notice. Such com14 pensation shall be provided at the rate pre15 scribed by paragraph (6). 

16 ‘‘(D) POLICY.—Except where a collective 

17 bargaining agreement provides otherwise, an 

18 employer that has adopted a policy offering 

19 compensatory time to employees may, upon giv20 ing employees 30 days notice, discontinue such 

21 policy and provide monetary compensation to 

22 each employee with accrued compensatory time 

23 that has not yet been used for all such compen24 satory time. Such compensation shall be pro25 vided at the rate prescribed by paragraph (6). 


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1 ‘‘(E) WRITTEN REQUEST.—An employee 

2 may withdraw an agreement described in para3 graph (2)(B) at any time. An employee may 

4 also request in writing that monetary com5 pensation be provided, at any time, for all com6 pensatory time accrued that has not yet been 

7 used. Within 30 days of receiving the written 

8 request, the employer shall provide the em9 ployee the monetary compensation due in ac10 cordance with paragraph (6). 

11 ‘‘(4) PRIVATE EMPLOYER ACTIONS.—An em12 ployer that provides compensatory time under para13 graph (1) to employees shall not directly or indi14 rectly intimidate, threaten, or coerce or attempt to 

15 intimidate, threaten, or coerce any employee for the 

16 purpose of— 

17 ‘‘(A) interfering with such employee’s 

18 rights under this subsection to request or not 

19 request compensatory time off in lieu of pay20 ment of monetary overtime compensation for 

21 overtime hours; or 

22 ‘‘(B) requiring any employee to use such 

23 compensatory time. 

24 ‘‘(5) TERMINATION OF EMPLOYMENT.—An em25 ployee who has accrued compensatory time off auVerDate Sep 11 2014 23:04 Feb 20, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S247.IS S247

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1 thorized to be provided under paragraph (1) shall, 

2 upon the voluntary or involuntary termination of 

3 employment, be paid for the unused compensatory 

4 time in accordance with paragraph (6). 

5 ‘‘(6) RATE OF COMPENSATION.— 

6 ‘‘(A) GENERAL RULE.—If compensation is 

7 to be paid to an employee for accrued compen8 satory time off, such compensation shall be paid 

9 at a rate of compensation not less than— 

10 ‘‘(i) the regular rate received by such 

11 employee when the compensatory time was 

12 earned; or 

13 ‘‘(ii) the final regular rate received by 

14 such employee, 

15 whichever is higher. 

16 ‘‘(B) CONSIDERATION OF PAYMENT.—Any 

17 payment owed to an employee under this sub18 section for unused compensatory time shall be 

19 considered unpaid overtime compensation. 

20 ‘‘(7) USE OF TIME.—An employee— 

21 ‘‘(A) who has accrued compensatory time 

22 off authorized to be provided under paragraph 

23 (1); and 

24 ‘‘(B) who has requested the use of such 

25 compensatory time, 


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1 shall be permitted by the employee’s employer to use 

2 such time within a reasonable period after making 

3 the request if the use of the compensatory time does 

4 not unduly disrupt the operations of the employer. 

5 ‘‘(8) DEFINITIONS.—For purposes of this sub6 section— 

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

8 an employee of a public agency; and 

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

10 ‘compensatory time’, and ‘compensatory time 

11 off’ shall have the meanings given such terms 

12 by subsection (o)(7).’’. 

13 SEC. 3. REMEDIES. 

14 Section 16 of the Fair Labor Standards Act of 1938 

15 (29 U.S.C. 216) is amended— 

16 (1) in subsection (b), in the first sentence, by 

17 striking ‘‘(b) Any employer’’ and inserting ‘‘(b) Ex18 cept as provided in subsection (f), any employer’’; 

19 and 

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

21 ‘‘(f) An employer that violates section 7(t)(4) shall 

22 be liable to the employee affected in the amount of the 

23 rate of compensation (determined in accordance with sec24 tion 7(t)(6)(A)) for each hour of compensatory time ac25 crued by the employee and in an additional equal amount 


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1 as liquidated damages reduced by the amount of such rate 

2 of compensation for each hour of compensatory time used 

3 by such employee.’’. 

4 SEC. 4. NOTICE TO EMPLOYEES. 

5 Not later than 30 days after the date of enactment 

6 of this Act, the Secretary of Labor shall revise the mate7 rials the Secretary provides, under regulations published 

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

9 (or any corresponding similar regulation or ruling), to em10 ployers for purposes of a notice explaining the Fair Labor 

11 Standards Act of 1938 (29 U.S.C. 201 et seq.) to employ12 ees so that such notice reflects the amendments made to 

13 such Act by this Act. 

14 SEC. 5. GAO REPORT. 

15 Beginning 2 years after the date of enactment of this 

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

17 General shall submit a report to Congress providing, with 

18 respect to the reporting period immediately prior to each 

19 such report— 

20 (1) data concerning the extent to which employ21 ers provide compensatory time pursuant to section 

22 7(t) of the Fair Labor Standards Act of 1938, as 

23 added by this Act, and the extent to which employ24 ees opt to receive compensatory time; 


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1 (2) the number of complaints alleging a viola2 tion of such section filed by any employee with the 

3 Secretary of Labor; 

4 (3) the number of enforcement actions com5 menced by the Secretary or commenced by the Sec6 retary on behalf of any employee for alleged viola7 tions of such section; 

8 (4) the disposition or status of such complaints 

9 and actions described in paragraphs (2) and (3); and 

10 (5) an account of any unpaid wages, damages, 

11 penalties, injunctive relief, or other remedies ob12 tained or sought by the Secretary in connection with 

13 such actions described in paragraph (3). 

14 SEC. 6. SUNSET. 

15 This Act and the amendments made by this Act shall 

16 expire 5 years after the date of enactment of this Act. 

Æ 


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