Working Families Flexibility Act of 2021
Bill: S.247 | Sponsor: Sen. Lee, Mike (R-UT)
Policy area: Labor and Employment

Summary:
Working Families Flexibility Act of 2021
This bill revises requirements for the receipt of compensatory time off for private sector employees.
Specifically, the bill authorizes private employers to provide compensatory time off to their employees at a rate of one and one-half hours for each hour of employment for which overtime compensation otherwise is required; employees may accrue a maximum of 160 hours of compensatory time.
Employers are prohibited from interfering with an employee's right to or not request compensatory time off in lieu of payment of overtime compensation or from requiring an employee to use such compensatory time, and must give their employees 30-days notice before discontinuing a compensatory time policy.
Employers are liable to employees for damages from violations of these requirements.

To amend the Fair Labor Standards Act of 1938 to provide compensatory 
               time for employees in the private sector.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Working Families Flexibility Act of 
2021''.

SEC. 2. COMPENSATORY TIME.

    Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) 
is amended by adding at the end the following:
    ``(t) Compensatory Time Off for Private Employees.--
            ``(1) General rule.--An employee may receive, in accordance 
        with this subsection and in lieu of monetary overtime 
        compensation, 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) Conditions.--An employer may provide compensatory 
        time to employees under paragraph (1) only if such time is 
        provided in accordance with--
                    ``(A) applicable provisions of a collective 
                bargaining agreement between the employer and the labor 
                organization that has been certified or recognized as 
                the representative of the employees under applicable 
                law; or
                    ``(B) in the case of employees who are not 
                represented by a labor organization that has been 
                certified or recognized as the representative of such 
                employees under applicable law, an agreement arrived at 
                between the employer and employee before the 
                performance of the work and affirmed by a written or 
                otherwise verifiable record maintained in accordance 
                with section 11(c)--
                            ``(i) in which the employer has offered and 
                        the employee has chosen to receive compensatory 
                        time in lieu of monetary overtime compensation; 
                        and
                            ``(ii) entered into knowingly and 
                        voluntarily by such employee and not as a 
                        condition of employment.
        No employee may receive or agree to receive compensatory time 
        off under this subsection unless the employee has worked at 
        least 1,000 hours for the employee's employer during a period 
        of continuous employment with the employer in the 12-month 
        period before the date of agreement or receipt of compensatory 
        time off.
            ``(3) Hour limit.--
                    ``(A) Maximum hours.--An employee may accrue not 
                more than 160 hours of compensatory time.
                    ``(B) Compensation date.--Not later than January 31 
                of each calendar year, the employee's employer shall 
                provide monetary compensation for any unused 
                compensatory time off accrued during the preceding 
                calendar year that was not used prior to December 31 of 
                the preceding calendar year at the rate prescribed by 
                paragraph (6). An employer may designate and 
                communicate to the employer's employees a 12-month 
                period other than the calendar year, in which case such 
                compensation shall be provided not later than 31 days 
                after the end of such 12-month period.
                    ``(C) Excess of 80 hours.--The employer may provide 
                monetary compensation 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).
                    ``(D) Policy.--Except where a collective bargaining 
                agreement provides otherwise, an employer that has 
                adopted a policy offering compensatory time to 
                employees may, upon giving employees 30 days notice, 
                discontinue such policy and provide monetary 
                compensation to each employee with accrued compensatory 
                time that has not yet been used for all such 
                compensatory time. Such compensation shall be provided 
                at the rate prescribed by paragraph (6).
                    ``(E) Written request.--An employee may withdraw an 
                agreement described in paragraph (2)(B) at any time. An 
                employee may also request in writing that monetary 
                compensation be provided, at any time, for all 
                compensatory time accrued that has not yet been used. 
                Within 30 days of receiving the written request, the 
                employer shall provide the employee the monetary 
                compensation due in accordance with paragraph (6).
            ``(4) Private employer actions.--An employer that 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 compensatory 
                time off in lieu of payment of monetary overtime 
                compensation for overtime hours; or
                    ``(B) requiring any employee to use such 
                compensatory time.
            ``(5) Termination of employment.--An employee who has 
        accrued compensatory time off authorized to be provided under 
        paragraph (1) shall, upon the voluntary or involuntary 
        termination of employment, be paid for the unused compensatory 
        time in accordance with paragraph (6).
            ``(6) Rate of compensation.--
                    ``(A) General rule.--If compensation is to be paid 
                to an employee for accrued compensatory time off, such 
                compensation shall be paid at a rate of compensation 
                not less than--
                            ``(i) the regular rate received by such 
                        employee when the compensatory time was earned; 
                        or
                            ``(ii) the final regular rate received by 
                        such employee,
                whichever is higher.
                    ``(B) Consideration of payment.--Any payment owed 
                to an employee under this subsection for unused 
                compensatory time shall be considered unpaid overtime 
                compensation.
            ``(7) Use of time.--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 
                compensatory 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 disrupt the operations 
        of the employer.
            ``(8) Definitions.--For purposes of this subsection--
                    ``(A) the term `employee' does not include an 
                employee of a public agency; and
                    ``(B) the terms `overtime compensation', 
                `compensatory time', and `compensatory time off' shall 
                have the meanings given such terms by subsection 
                (o)(7).''.

SEC. 3. REMEDIES.

    Section 16 of the Fair Labor Standards Act of 1938 (29 U.S.C. 216) 
is amended--
            (1) in subsection (b), in the first sentence, by striking 
        ``(b) Any employer'' and inserting ``(b) Except as provided in 
        subsection (f), any employer''; and
            (2) by adding at the end the following:
    ``(f) An employer that violates section 7(t)(4) shall be liable to 
the employee affected in the amount of the rate of compensation 
(determined in accordance with section 7(t)(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 enactment of this Act, the 
Secretary of Labor shall revise the materials the Secretary provides, 
under regulations published in section 516.4 of title 29, Code of 
Federal Regulations (or any corresponding similar regulation or 
ruling), to employers for purposes of a notice explaining the Fair 
Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) to employees so 
that such notice reflects the amendments made to such Act by this Act.

SEC. 5. GAO REPORT.

    Beginning 2 years after the date of enactment of this Act and each 
of the 3 years thereafter, the Comptroller General shall submit a 
report to Congress providing, with respect to the reporting period 
immediately prior to each such report--
            (1) data concerning the extent to which employers provide 
        compensatory time pursuant to section 7(t) of the Fair Labor 
        Standards Act of 1938, as added by this Act, and the extent to 
        which employees opt to receive compensatory time;
            (2) the number of complaints alleging a violation of such 
        section filed by any employee with the Secretary of Labor;
            (3) the number of enforcement actions commenced by the 
        Secretary or commenced by the Secretary on behalf of any 
        employee for alleged violations of such section;
            (4) the disposition or status of such complaints and 
        actions described in paragraphs (2) and (3); and
            (5) an account of any unpaid wages, damages, penalties, 
        injunctive relief, or other remedies obtained or sought by the 
        Secretary in connection with such actions described in 
        paragraph (3).

SEC. 6. SUNSET.

    This Act and the amendments made by this Act shall expire 5 years 
after the date of enactment of this Act.
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