I 

113TH CONGRESS 

1ST SESSION H. R. 1406 

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

time for employees in the private sector. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 9, 2013 

Mrs. ROBY (for herself, Mrs. MCMORRIS RODGERS, Mr. KLINE, and Mr. 

WALBERG) introduced the following bill; which was referred to the Committee on Education and the Workforce 

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 2013’’. 

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

3 ‘‘(1) GENERAL RULE.— 

4 ‘‘(A) COMPENSATORY TIME OFF.—An em5 ployee may receive, in accordance with this sub6 section and in lieu of monetary overtime com7 pensation, compensatory time off at a rate not 

8 less than one and one-half hours for each hour 

9 of employment for which overtime compensation 

10 is required by this section. 

11 ‘‘(B) DEFINITION.—For purposes of this 

12 subsection, the term ‘employee’ does not include 

13 an employee of a public agency. 

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

15 compensatory time to employees under paragraph 

16 (1)(A) only if such time is provided in accordance 

17 with— 

18 ‘‘(A) applicable provisions of a collective 

19 bargaining agreement between the employer 

20 and the labor organization which has been cer21 tified or recognized as the representative of the 

22 employees under applicable law; or 

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

24 represented by a labor organization which has 

25 been certified or recognized as the representaVerDate Mar 15 2010 01:58 Apr 10, 2013 Jkt 029200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1406.IH H1406

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1 tive of such employees under applicable law, an 

2 agreement arrived at between the employer and 

3 employee before the performance of the work 

4 and affirmed by a written or otherwise 

5 verifiable record maintained in accordance with 

6 section 11(c)— 

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

8 and the employee has chosen to receive 

9 compensatory time in lieu of monetary 

10 overtime compensation; and 

11 ‘‘(ii) entered into knowingly and vol12 untarily by such employees and not as a 

13 condition of employment. 

14 No employee may receive or agree to receive com15 pensatory time off under this subsection unless the 

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

17 employee’s employer during a period of continuous 

18 employment with the employer in the 12-month pe19 riod before the date of agreement or receipt of com20 pensatory time off. 

21 ‘‘(3) HOUR LIMIT.— 

22 ‘‘(A) MAXIMUM HOURS.—An employee 

23 may accrue not more than 160 hours of com24 pensatory time. 


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1 ‘‘(B) COMPENSATION DATE.—Not later 

2 than January 31 of each calendar year, the em3 ployee’s employer shall provide monetary com4 pensation for any unused compensatory time off 

5 accrued during the preceding calendar year 

6 which was not used prior to December 31 of the 

7 preceding year at the rate prescribed by para8 graph (6). An employer may designate and 

9 communicate to the employer’s employees a 12- 

10 month period other than the calendar year, in 

11 which case such compensation shall be provided 

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

13 month period. 

14 ‘‘(C) EXCESS OF 80 HOURS.—The em15 ployer may provide monetary compensation for 

16 an employee’s unused compensatory time in ex17 cess of 80 hours at any time after giving the 

18 employee at least 30 days notice. Such com19 pensation shall be provided at the rate pre20 scribed by paragraph (6). 

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

22 bargaining agreement provides otherwise, an 

23 employer which has adopted a policy offering 

24 compensatory time to employees may disVerDate Mar 15 2010 01:58 Apr 10, 2013 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1406.IH H1406

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1 continue such policy upon giving employees 30 

2 days notice. 

3 ‘‘(E) WRITTEN REQUEST.—An employee 

4 may withdraw an agreement described in para5 graph (2)(B) at any time. An employee may 

6 also request in writing that monetary com7 pensation be provided, at any time, for all com8 pensatory time accrued which has not yet been 

9 used. Within 30 days of receiving the written 

10 request, the employer shall provide the em11 ployee the monetary compensation due in ac12 cordance with paragraph (6). 

13 ‘‘(4) PRIVATE EMPLOYER ACTIONS.—An em14 ployer which provides compensatory time under 

15 paragraph (1) to employees shall not directly or indi16 rectly intimidate, threaten, or coerce or attempt to 

17 intimidate, threaten, or coerce any employee for the 

18 purpose of— 

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

20 rights under this subsection to request or not 

21 request compensatory time off in lieu of pay22 ment of monetary overtime compensation for 

23 overtime hours; or 

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

25 compensatory time. 


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1 ‘‘(5) TERMINATION OF EMPLOYMENT.—An em2 ployee who has accrued compensatory time off au3 thorized to be provided under paragraph (1) shall, 

4 upon the voluntary or involuntary termination of 

5 employment, be paid for the unused compensatory 

6 time in accordance with paragraph (6). 

7 ‘‘(6) RATE OF COMPENSATION.— 

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

9 to be paid to an employee for accrued compen10 satory time off, such compensation shall be paid 

11 at a rate of compensation not less than— 

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

13 employee when the compensatory time was 

14 earned; or 

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

16 such employee, 

17 whichever is higher. 

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

19 payment owed to an employee under this sub20 section for unused compensatory time shall be 

21 considered unpaid overtime compensation. 

22 ‘‘(7) USE OF TIME.—An employee— 

23 ‘‘(A) who has accrued compensatory time 

24 off authorized to be provided under paragraph 

25 (1); and 


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

2 compensatory time, 

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

4 such time within a reasonable period after making 

5 the request if the use of the compensatory time does 

6 not unduly disrupt the operations of the employer. 

7 ‘‘(8) DEFINITIONS.—The terms ‘overtime com8 pensation’ and ‘compensatory time’ shall have the 

9 meanings given such terms by subsection (o)(7).’’. 

10 SEC. 3. REMEDIES. 

11 Section 16 of the Fair Labor Standards Act of 1938 

12 (29 U.S.C. 216) is amended— 

13 (1) in subsection (b), by striking ‘‘(b) Any em14 ployer’’ and inserting ‘‘(b) Except as provided in 

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

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

17 ‘‘(f) An employer which violates section 7(s)(4) shall 

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

19 rate of compensation (determined in accordance with sec20 tion 7(s)(6)(A)) for each hour of compensatory time ac21 crued by the employee and in an additional equal amount 

22 as liquidated damages reduced by the amount of such rate 

23 of compensation for each hour of compensatory time used 

24 by such employee.’’. 


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1 SEC. 4. NOTICE TO EMPLOYEES. 

2 Not later than 30 days after the date of the enact3 ment of this Act, the Secretary of Labor shall revise the 

4 materials the Secretary provides, under regulations pub5 lished in section 516.4 of title 29, Code of Federal Regula6 tions, to employers for purposes of a notice explaining the 

7 Fair Labor Standards Act of 1938 to employees so that 

8 such notice reflects the amendments made to such Act by 

9 this Act. 

10 SEC. 5. SUNSET. 

11 This Act and the amendments made by this Act shall 

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

Æ 


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