II
Calendar No. 562
104TH CONGRESS
2D SESSION
H. R. 2391
IN THE SENATE OF THE UNITED STATES
JULY 31, 1996
Received and read the first time
AUGUST 1, 1996
Read the second time and placed on the calendar
AN ACT
To amend the Fair Labor Standards Act of 1938 to provide
compensatory time for all employees.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
HR 2391 PCS
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Working Families
Flexibility Act of 1996’’.
SEC. 2. COMPENSATORY TIME.
Subsection (o) of section 7 of the Fair Labor Stand-
ards Act of 1938 (29 U.S.C. 207) is amended—
(1) by striking paragraphs (1) through (5) and
inserting the following:
‘‘(1) An employee may receive, in accordance with
this subsection and in lieu of monetary overtime com-
pensation, compensatory time off at a rate not less than
one and one-half hours for each hour of employment for
which overtime compensation is required by this section.
‘‘(2) An employer may provide compensatory time
under paragraph (1) only—
‘‘(A) pursuant to—
‘‘(i) applicable provisions of a collective
bargaining agreement, memorandum of under-
standing, or any other agreement between the
employer and representatives of such employees,
or
‘‘(ii) in the case of employees who are not
represented by a collective bargaining agent or
other representative designated by the em-
ployee, an agreement or understanding arrived
at between the employer and employee before
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the performance of the work if such agreement
or understanding was entered into knowingly
and voluntarily by such employee;
‘‘(B) in the case of an employee who is not an
employee of a public agency, if such employee has
affirmed, in a written or otherwise verifiable state-
ment that is made, kept, and preserved in accord-
ance with section 11(c), that the employee has cho-
sen to receive compensatory time in lieu of overtime
compensation; and
‘‘(C) if the employee has not accrued compen-
satory time in excess of the limit applicable to the
employee prescribed by paragraph (4) or (5).
In the case of employees described in subparagraph (A)(ii)
who are employees of a public agency and who were hired
before April 15, 1986, the regular practice in effect on
such date with respect to compensatory time off for such
employees in lieu of the receipt of overtime compensation,
shall constitute an agreement or understanding described
in such subparagraph. Except as provided in the preceding
sentence, the provision of compensatory time off to em-
ployees of a public agency for hours worked after April
14, 1986, shall be in accordance with this subsection. An
employer may provide compensatory time under para-
graph (1) to an employee who is not an employee of a
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public agency only if such agreement or understanding
was not a condition of employment.
‘‘(3) An employer which is not a public agency and
which provides compensatory time under paragraph (1) to
employees shall not directly or indirectly intimidate,
threaten, or coerce or attempt to intimidate, threaten, or
coerce any employee for the purpose of—
‘‘(A) interfering with such employee’s rights
under this subsection to request or not request com-
pensatory time off in lieu of payment of overtime
compensation for overtime hours; or
‘‘(B) requiring any employee to use such com-
pensatory time.
‘‘(4)(A) An employee, who is not an employee of a
public agency, may accrue not more than 240 hours of
compensatory time.
‘‘(B)(i) Not later than January 31 of each calendar
year, the employee’s employer shall provide monetary com-
pensation for any compensatory time off accrued during
the preceding calendar year which was not used prior to
December 31 of the preceding year at the rate prescribed
by paragraph (6). An employer may designate and com-
municate to the employer’s employees a 12-month period
other than the calendar year, in which case such com-
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pensation shall be provided not later than 31 days after
the end of such 12-month period.
‘‘(ii) The employer may provide monetary compensa-
tion for an employee’s unused compensatory time in excess
of 80 hours at any time after giving the employee at least
30 days notice. Such compensation shall be provided at
the rate prescribed by paragraph (6).
‘‘(iii) An employer which has adopted a policy offer-
ing compensatory time to employees may discontinue such
policy upon giving employees 30 days notice. An employee
who is not an employee of a public agency may withdraw
an agreement or understanding described in paragraph
(2)(A)(ii) at any time.
‘‘(C) An employee may also request in writing that
monetary compensation be provided, at any time, for all
compensatory time accrued which has not yet been used.
Within 30 days of receiving the written request, the em-
ployer shall provide the employee the monetary compensa-
tion due in accordance with paragraph (6).
‘‘(5)(A) If the work of an employee of a public agency
for which compensatory time may be provided included
work in a public safety activity, an emergency response
activity, or a seasonal activity, the employee engaged in
such work may accrue not more than 480 hours of com-
pensatory time for hours worked after April 15, 1986. If
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such work was any other work, the employee engaged in
such work may accrue not more than 240 hours of com-
pensatory time for hours worked after April 15, 1986. Any
such employee who, after April 15, 1986, has accrued 480
or 240 hours, as the case may be, of compensatory time
off shall, for additional overtime hours of work, be paid
overtime compensation.
‘‘(B) If compensation is paid to an employee de-
scribed in subparagraph (A) for accrued compensatory
time off, such compensation shall be paid at the regular
rate earned by the employee at the time the employee re-
ceives such payment.
‘‘(6)(A) An employee of an employer which is not a
public agency who has accrued compensatory time off au-
thorized to be provided under paragraph (1) shall, upon
the voluntary or involuntary termination of employment,
be paid for the unused compensatory time at a rate of
compensation not less than—
‘‘(i) the average regular rate received by such
employee during the period during which the com-
pensatory time was accrued, or
‘‘(ii) the final regular rate received by such em-
ployee,
whichever is higher.
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‘‘(B) An employee of an employer which is a public
agency who has accrued compensatory time off authorized
to be provided under paragraph (1) shall, upon the vol-
untary or involuntary termination of employment, be paid
for the unused compensatory time at a rate of compensa-
tion not less than—
‘‘(i) the average regular rate received by such
employee during the last 3 years of the employee’s
employment, or
‘‘(ii) the final regular rate received by such em-
ployee,
whichever is higher.
‘‘(C) Any payment owed to an employee under this
subsection for unused compensatory time shall be consid-
ered unpaid overtime compensation.
‘‘(7) An employee—
‘‘(A) who has accrued compensatory time off
authorized to be provided under paragraph (1), and
‘‘(B) who has requested the use of such com-
pensatory time,
shall be permitted by the employee’s employer to use such
time within a reasonable period after making the request
if the use of the compensatory time does not unduly dis-
rupt the operations of the employer.’’; and
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(2) by redesignating paragraphs (6) and (7) as
paragraphs (8) and (9), respectively.
SEC. 3. REMEDIES.
Section 16 of the Fair Labor Standards Act of 1938
(29 U.S.C. 216) is amended—
(1) in subsection (b), by striking ‘‘(b) Any em-
ployer’’ and inserting ‘‘(b) Except as provided in
subsection (f), any employer’’; and
(2) by adding at the end the following:
‘‘(f) An employer which is not a public agency and
which violates section 7(o)(3) shall be liable to the em-
ployee affected in the amount of the rate of compensation
(determined in accordance with section 7(o)(6)(A)) for
each hour of compensatory time accrued by the employee
and in an additional equal amount as liquidated damages
reduced by the amount of such rate of compensation for
each hour of compensatory time used by such employee.’’.
SEC. 4. NOTICE TO EMPLOYEES.
Not later than 30 days after the date of the enact-
ment of this Act, the Secretary of Labor shall revise the
materials the Secretary provides, under regulations pub-
lished at 29 C.F.R. 516.4, to employers for purposes of
a notice explaining the Fair Labor Standards Act of 1938
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to employees so that such notice reflects the amendments
made to such Act by this Act.
Passed the House of Representatives July 30, 1996.
Attest:
ROBIN H. CARLE,
Clerk.