IIB 

113TH CONGRESS 

1ST SESSION H. R. 1406 

IN THE SENATE OF THE UNITED STATES 

MAY 9, 2013 

Received; read twice and referred to the Committee on Health, Education, 

Labor, and Pensions 

AN ACT 

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, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Working Families 

3 Flexibility Act of 2013’’. 

4 SEC. 2. COMPENSATORY TIME. 

5 Section 7 of the Fair Labor Standards Act of 1938 

6 (29 U.S.C. 207) is amended by adding at the end the fol7 lowing: 

8 ‘‘(s) COMPENSATORY TIME OFF FOR PRIVATE EM9 PLOYEES.— 

10 ‘‘(1) GENERAL RULE.—An employee may re11 ceive, in accordance with this subsection and in lieu 

12 of monetary overtime compensation, compensatory 

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

14 hours for each hour of employment for which over15 time compensation is required by this section. 

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

17 compensatory time to employees under paragraph 

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

19 with— 

20 ‘‘(A) applicable provisions of a collective 

21 bargaining agreement between the employer 

22 and the labor organization that has been cer23 tified or recognized as the representative of the 

24 employees under applicable law; or 

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

26 represented by a labor organization that has 


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1 been certified or recognized as the representa2 tive of such employees under applicable law, an 

3 agreement arrived at between the employer and 

4 employee before the performance of the work 

5 and affirmed by a written or otherwise 

6 verifiable record maintained in accordance with 

7 section 11(c)— 

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

9 and the employee has chosen to receive 

10 compensatory time in lieu of monetary 

11 overtime compensation; and 

12 ‘‘(ii) entered into knowingly and vol13 untarily by such employees and not as a 

14 condition of employment. 

15 No employee may receive or agree to receive com16 pensatory time off under this subsection unless the 

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

18 employee’s employer during a period of continuous 

19 employment with the employer in the 12-month pe20 riod before the date of agreement or receipt of com21 pensatory time off. 

22 ‘‘(3) HOUR LIMIT.— 

23 ‘‘(A) MAXIMUM HOURS.—An employee 

24 may accrue not more than 160 hours of com25 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 that 

6 was not used prior to December 31 of the pre7 ceding year at the rate prescribed by paragraph 

8 (6). An employer may designate and commu9 nicate to the employer’s employees a 12-month 

10 period other than the calendar year, in which 

11 case such compensation shall be provided not 

12 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 that has adopted a policy offering 

24 compensatory time to employees may disVerDate Mar 15 2010 21:13 May 09, 2013 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1406.RFS 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 that 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 that provides compensatory time under para15 graph (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.—For purposes of this sub8 section— 

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

10 an employee of a public agency; and 

11 ‘‘(B) the terms ‘overtime compensation’ 

12 and ‘compensatory time’ shall have the mean13 ings given such terms by subsection (o)(7).’’. 

14 SEC. 3. REMEDIES. 

15 Section 16 of the Fair Labor Standards Act of 1938 

16 (29 U.S.C. 216) is amended— 

17 (1) in subsection (b), by striking ‘‘(b) Any em18 ployer’’ and inserting ‘‘(b) Except as provided in 

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

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

21 ‘‘(f) An employer that violates section 7(s)(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(s)(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 to employers for purposes of a notice explaining the Fair 

10 Labor Standards Act of 1938 to employees so that such 

11 notice reflects the amendments made to such Act by this 

12 Act. 

13 SEC. 5. GAO REPORT. 

14 Beginning 2 years after the date of enactment of this 

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

16 General shall submit a report to Congress providing, with 

17 respect to the reporting period immediately prior to each 

18 such report— 

19 (1) data concerning the extent to which employ20 ers provide compensatory time pursuant to section 

21 7(s) of the Fair Labor Standards Act of 1938, as 

22 added by this Act, and the extent to which employ23 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. 

Passed the House of Representatives May 8, 2013. 

Attest: KAREN L. HAAS, 

Clerk. 


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