Working Families Flexibility Act of 2021

I 117TH CONGRESS 1ST SESSION H. R. 1980 To amend the Fair Labor Standards Act of 1938 to provide compensatory time for employees in the private sector. IN THE HOUSE OF REPRESENTATIVES MARCH 17, 2021 Mrs. MILLER of Illinois (for herself, Ms. HERRELL, Mr. C. SCOTT FRANKLIN of Florida, Mr. OWENS, Mr. JACOBS of New York, Mr. STIVERS, Mr. ISSA, Mr. ARMSTRONG, Mr. BARR, Mr. BUDD, Mr. BAIRD, and Mr. GUTHRIE) introduced the following bill; which was referred to the Com- mittee on Education and Labor A BILL 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Working Families 4 Flexibility Act of 2021’’. 5 SEC. 2. COMPENSATORY TIME. 6 Section 7 of the Fair Labor Standards Act of 1938 7 (29 U.S.C. 207) is amended by adding at the end the fol- 8 lowing: 9 VerDate Sep 11 2014 21:46 May 12, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1980.IH H1980 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 1980 IH ‘‘(t) COMPENSATORY TIME OFF FOR PRIVATE EM- 1 PLOYEES.— 2 ‘‘(1) GENERAL RULE.—An employee may re- 3 ceive, in accordance with this subsection and in lieu 4 of monetary overtime compensation, compensatory 5 time off at a rate not less than one and one-half 6 hours for each hour of employment for which over- 7 time compensation is required by this section. 8 ‘‘(2) CONDITIONS.—An employer may provide 9 compensatory time to employees under paragraph 10 (1) only if such time is provided in accordance 11 with— 12 ‘‘(A) applicable provisions of a collective 13 bargaining agreement between the employer 14 and the labor organization that has been cer- 15 tified or recognized as the representative of the 16 employees under applicable law; or 17 ‘‘(B) in the case of employees who are not 18 represented by a labor organization that has 19 been certified or recognized as the representa- 20 tive of such employees under applicable law, an 21 agreement arrived at between the employer and 22 employee before the performance of the work 23 and affirmed by a written or otherwise 24 VerDate Sep 11 2014 21:46 May 12, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1980.IH H1980 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 1980 IH verifiable record maintained in accordance with 1 section 11(c)— 2 ‘‘(i) in which the employer has offered 3 and the employee has chosen to receive 4 compensatory time in lieu of monetary 5 overtime compensation; and 6 ‘‘(ii) entered into knowingly and vol- 7 untarily by such employee and not as a 8 condition of employment. 9 No employee may receive or agree to receive com- 10 pensatory time off under this subsection unless the 11 employee has worked at least 1,000 hours for the 12 employee’s employer during a period of continuous 13 employment with the employer in the 12-month pe- 14 riod before the date of agreement or receipt of com- 15 pensatory time off. 16 ‘‘(3) HOUR LIMIT.— 17 ‘‘(A) MAXIMUM HOURS.—An employee 18 may accrue not more than 160 hours of com- 19 pensatory time. 20 ‘‘(B) COMPENSATION DATE.—Not later 21 than January 31 of each calendar year, the em- 22 ployee’s employer shall provide monetary com- 23 pensation for any unused compensatory time off 24 accrued during the preceding calendar year that 25 VerDate Sep 11 2014 21:46 May 12, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1980.IH H1980 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 1980 IH was not used prior to December 31 of the pre- 1 ceding calendar year at the rate prescribed by 2 paragraph (6). An employer may designate and 3 communicate to the employer’s employees a 12- 4 month period other than the calendar year, in 5 which case such compensation shall be provided 6 not later than 31 days after the end of such 12- 7 month period. 8 ‘‘(C) EXCESS OF 80 HOURS.—The em- 9 ployer may provide monetary compensation for 10 an employee’s unused compensatory time in ex- 11 cess of 80 hours at any time after giving the 12 employee at least 30 days notice. Such com- 13 pensation shall be provided at the rate pre- 14 scribed by paragraph (6). 15 ‘‘(D) POLICY.—Except where a collective 16 bargaining agreement provides otherwise, an 17 employer that has adopted a policy offering 18 compensatory time to employees may, upon giv- 19 ing employees 30 days notice, discontinue such 20 policy and provide monetary compensation to 21 each employee with accrued compensatory time 22 that has not yet been used for all such compen- 23 satory time. Such compensation shall be pro- 24 vided at the rate prescribed by paragraph (6). 25 VerDate Sep 11 2014 21:46 May 12, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1980.IH H1980 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 1980 IH ‘‘(E) WRITTEN REQUEST.—An employee 1 may withdraw an agreement described in para- 2 graph (2)(B) at any time. An employee may 3 also request in writing that monetary com- 4 pensation be provided, at any time, for all com- 5 pensatory time accrued that has not yet been 6 used. Within 30 days of receiving the written 7 request, the employer shall provide the em- 8 ployee the monetary compensation due in ac- 9 cordance with paragraph (6). 10 ‘‘(4) PRIVATE EMPLOYER ACTIONS.—An em- 11 ployer that provides compensatory time under para- 12 graph (1) to employees shall not directly or indi- 13 rectly intimidate, threaten, or coerce or attempt to 14 intimidate, threaten, or coerce any employee for the 15 purpose of— 16 ‘‘(A) interfering with such employee’s 17 rights under this subsection to request or not 18 request compensatory time off in lieu of pay- 19 ment of monetary overtime compensation for 20 overtime hours; or 21 ‘‘(B) requiring any employee to use such 22 compensatory time. 23 ‘‘(5) TERMINATION OF EMPLOYMENT.—An em- 24 ployee who has accrued compensatory time off au- 25 VerDate Sep 11 2014 21:46 May 12, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1980.IH H1980 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 1980 IH thorized to be provided under paragraph (1) shall, 1 upon the voluntary or involuntary termination of 2 employment, be paid for the unused compensatory 3 time in accordance with paragraph (6). 4 ‘‘(6) RATE OF COMPENSATION.— 5 ‘‘(A) GENERAL RULE.—If compensation is 6 to be paid to an employee for accrued compen- 7 satory time off, such compensation shall be paid 8 at a rate of compensation not less than— 9 ‘‘(i) the regular rate received by such 10 employee when the compensatory time was 11 earned; or 12 ‘‘(ii) the final regular rate received by 13 such employee, 14 whichever is higher. 15 ‘‘(B) CONSIDERATION OF PAYMENT.—Any 16 payment owed to an employee under this sub- 17 section for unused compensatory time shall be 18 considered unpaid overtime compensation. 19 ‘‘(7) USE OF TIME.—An employee— 20 ‘‘(A) who has accrued compensatory time 21 off authorized to be provided under paragraph 22 (1); and 23 ‘‘(B) who has requested the use of such 24 compensatory time, 25 VerDate Sep 11 2014 21:46 May 12, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1980.IH H1980 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 1980 IH shall be permitted by the employee’s employer to use 1 such time within a reasonable period after making 2 the request if the use of the compensatory time does 3 not unduly disrupt the operations of the employer. 4 ‘‘(8) DEFINITIONS.—For purposes of this sub- 5 section— 6 ‘‘(A) the term ‘employee’ does not include 7 an employee of a public agency; and 8 ‘‘(B) the terms ‘overtime compensation’, 9 ‘compensatory time’, and ‘compensatory time 10 off’ shall have the meanings given such terms 11 by subsection (o)(7).’’. 12 SEC. 3. REMEDIES. 13 Section 16 of the Fair Labor Standards Act of 1938 14 (29 U.S.C. 216) is amended— 15 (1) in subsection (b), in the first sentence, by 16 striking ‘‘(b) Any employer’’ and inserting ‘‘(b) Ex- 17 cept as provided in subsection (f), any employer’’; 18 and 19 (2) by adding at the end the following: 20 ‘‘(f) An employer that violates section 7(t)(4) shall 21 be liable to the employee affected in the amount of the 22 rate of compensation (determined in accordance with sec- 23 tion 7(t)(6)(A)) for each hour of compensatory time ac- 24 crued by the employee and in an additional equal amount 25 VerDate Sep 11 2014 21:46 May 12, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1980.IH H1980 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 1980 IH as liquidated damages reduced by the amount of such rate 1 of compensation for each hour of compensatory time used 2 by such employee.’’. 3 SEC. 4. NOTICE TO EMPLOYEES. 4 Not later than 30 days after the date of enactment 5 of this Act, the Secretary of Labor shall revise the mate- 6 rials the Secretary provides, under regulations published 7 in section 516.4 of title 29, Code of Federal Regulations 8 (or any corresponding similar regulation or ruling), to em- 9 ployers for purposes of a notice explaining the Fair Labor 10 Standards Act of 1938 (29 U.S.C. 201 et seq.) to employ- 11 ees so that such notice reflects the amendments made to 12 such Act by this 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 employ- 20 ers provide compensatory time pursuant to section 21 7(t) of the Fair Labor Standards Act of 1938, as 22 added by this Act, and the extent to which employ- 23 ees opt to receive compensatory time; 24 VerDate Sep 11 2014 21:46 May 12, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1980.IH H1980 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 1980 IH (2) the number of complaints alleging a viola- 1 tion of such section filed by any employee with the 2 Secretary of Labor; 3 (3) the number of enforcement actions com- 4 menced by the Secretary or commenced by the Sec- 5 retary on behalf of any employee for alleged viola- 6 tions of such section; 7 (4) the disposition or status of such complaints 8 and actions described in paragraphs (2) and (3); and 9 (5) an account of any unpaid wages, damages, 10 penalties, injunctive relief, or other remedies ob- 11 tained or sought by the Secretary in connection with 12 such actions described in paragraph (3). 13 SEC. 6. SUNSET. 14 This Act and the amendments made by this Act shall 15 expire 5 years after the date of enactment of this Act. 16 Æ VerDate Sep 11 2014 21:46 May 12, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\H1980.IH H1980 pamtmann on DSKBC07HB2PROD with BILLS