II 116TH CONGRESS 1ST SESSION S. 1043 To amend the Fair Labor Standards Act of 1938 to provide compensatory time for employees in the private sector. IN THE SENATE OF THE UNITED STATES APRIL 4, 2019 Mr. LEE (for himself, Mr. BARRASSO, Mr. CRUZ, Mr. CRAPO, Mr. BOOZMAN, Mr. CORNYN, Mr. RUBIO, Mr. PERDUE, Mr. THUNE, Mr. RISCH, Mr. MCCONNELL, Mr. COTTON, Ms. MCSALLY, Mr. TOOMEY, Mr. SCOTT of South Carolina, Mr. WICKER, Mr. ENZI, Mrs. HYDE-SMITH, Mr. BRAUN, Mr. ROUNDS, Mrs. BLACKBURN, Mr. BLUNT, Mr. KENNEDY, Mr. HAWLEY, Mr. ROBERTS, Mr. CRAMER, Mr. JOHNSON, Mr. GRASSLEY, Mr. ROMNEY, Mr. MORAN, and Mrs. CAPITO) introduced the following bill; which was read twice and referred to the Committee on Health, Edu- cation, Labor, and Pensions 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 2019’’. 5 VerDate Sep 11 2014 04:39 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1043.IS S1043 kjohnson on DSK79L0C42 with BILLS 2 •S 1043 IS SEC. 2. COMPENSATORY TIME. 1 Section 7 of the Fair Labor Standards Act of 1938 2 (29 U.S.C. 207) is amended by adding at the end the fol- 3 lowing: 4 ‘‘(t) COMPENSATORY TIME OFF FOR PRIVATE EM- 5 PLOYEES.— 6 ‘‘(1) GENERAL RULE.—An employee may re- 7 ceive, in accordance with this subsection and in lieu 8 of monetary overtime compensation, compensatory 9 time off at a rate not less than one and one-half 10 hours for each hour of employment for which over- 11 time compensation is required by this section. 12 ‘‘(2) CONDITIONS.—An employer may provide 13 compensatory time to employees under paragraph 14 (1) only if such time is provided in accordance 15 with— 16 ‘‘(A) applicable provisions of a collective 17 bargaining agreement between the employer 18 and the labor organization that has been cer- 19 tified or recognized as the representative of the 20 employees under applicable law; or 21 ‘‘(B) in the case of employees who are not 22 represented by a labor organization that has 23 been certified or recognized as the representa- 24 tive of such employees under applicable law, an 25 agreement arrived at between the employer and 26 VerDate Sep 11 2014 04:39 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1043.IS S1043 kjohnson on DSK79L0C42 with BILLS 3 •S 1043 IS employee before the performance of the work 1 and affirmed by a written or otherwise 2 verifiable record maintained in accordance with 3 section 11(c)— 4 ‘‘(i) in which the employer has offered 5 and the employee has chosen to receive 6 compensatory time in lieu of monetary 7 overtime compensation; and 8 ‘‘(ii) entered into knowingly and vol- 9 untarily by such employees and not as a 10 condition of employment. 11 No employee may receive or agree to receive com- 12 pensatory time off under this subsection unless the 13 employee has worked at least 1,000 hours for the 14 employee’s employer during a period of continuous 15 employment with the employer in the 12-month pe- 16 riod before the date of agreement or receipt of com- 17 pensatory time off. 18 ‘‘(3) HOUR LIMIT.— 19 ‘‘(A) MAXIMUM HOURS.—An employee 20 may accrue not more than 160 hours of com- 21 pensatory time. 22 ‘‘(B) COMPENSATION DATE.—Not later 23 than January 31 of each calendar year, the em- 24 ployee’s employer shall provide monetary com- 25 VerDate Sep 11 2014 04:39 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1043.IS S1043 kjohnson on DSK79L0C42 with BILLS 4 •S 1043 IS pensation for any unused compensatory time off 1 accrued during the preceding calendar year that 2 was not used prior to December 31 of the pre- 3 ceding year at the rate prescribed by paragraph 4 (6). An employer may designate and commu- 5 nicate to the employer’s employees a 12-month 6 period other than the calendar year, in which 7 case such compensation shall be provided not 8 later than 31 days after the end of such 12- 9 month period. 10 ‘‘(C) EXCESS OF 80 HOURS.—The em- 11 ployer may provide monetary compensation for 12 an employee’s unused compensatory time in ex- 13 cess of 80 hours at any time after giving the 14 employee at least 30 days notice. Such com- 15 pensation shall be provided at the rate pre- 16 scribed by paragraph (6). 17 ‘‘(D) POLICY.—Except where a collective 18 bargaining agreement provides otherwise, an 19 employer that has adopted a policy offering 20 compensatory time to employees may dis- 21 continue such policy upon giving employees 30 22 days notice. 23 ‘‘(E) WRITTEN REQUEST.—An employee 24 may withdraw an agreement described in para- 25 VerDate Sep 11 2014 04:39 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1043.IS S1043 kjohnson on DSK79L0C42 with BILLS 5 •S 1043 IS graph (2)(B) at any time. An employee may 1 also request in writing that monetary com- 2 pensation be provided, at any time, for all com- 3 pensatory time accrued that has not yet been 4 used. Within 30 days of receiving the written 5 request, the employer shall provide the em- 6 ployee the monetary compensation due in ac- 7 cordance with paragraph (6). 8 ‘‘(4) PRIVATE EMPLOYER ACTIONS.—An em- 9 ployer that provides compensatory time under para- 10 graph (1) to employees shall not directly or indi- 11 rectly intimidate, threaten, or coerce or attempt to 12 intimidate, threaten, or coerce any employee for the 13 purpose of— 14 ‘‘(A) interfering with such employee’s 15 rights under this subsection to request or not 16 request compensatory time off in lieu of pay- 17 ment of monetary overtime compensation for 18 overtime hours; or 19 ‘‘(B) requiring any employee to use such 20 compensatory time. 21 ‘‘(5) TERMINATION OF EMPLOYMENT.—An em- 22 ployee who has accrued compensatory time off au- 23 thorized to be provided under paragraph (1) shall, 24 upon the voluntary or involuntary termination of 25 VerDate Sep 11 2014 04:39 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1043.IS S1043 kjohnson on DSK79L0C42 with BILLS 6 •S 1043 IS employment, be paid for the unused compensatory 1 time in accordance with paragraph (6). 2 ‘‘(6) RATE OF COMPENSATION.— 3 ‘‘(A) GENERAL RULE.—If compensation is 4 to be paid to an employee for accrued compen- 5 satory time off, such compensation shall be paid 6 at a rate of compensation not less than— 7 ‘‘(i) the regular rate received by such 8 employee when the compensatory time was 9 earned; or 10 ‘‘(ii) the final regular rate received by 11 such employee, 12 whichever is higher. 13 ‘‘(B) CONSIDERATION OF PAYMENT.—Any 14 payment owed to an employee under this sub- 15 section for unused compensatory time shall be 16 considered unpaid overtime compensation. 17 ‘‘(7) USE OF TIME.—An employee— 18 ‘‘(A) who has accrued compensatory time 19 off authorized to be provided under paragraph 20 (1); and 21 ‘‘(B) who has requested the use of such 22 compensatory time, 23 shall be permitted by the employee’s employer to use 24 such time within a reasonable period after making 25 VerDate Sep 11 2014 04:39 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1043.IS S1043 kjohnson on DSK79L0C42 with BILLS 7 •S 1043 IS the request if the use of the compensatory time does 1 not unduly disrupt the operations of the employer. 2 ‘‘(8) DEFINITIONS.—For purposes of this sub- 3 section— 4 ‘‘(A) the term ‘employee’ does not include 5 an employee of a public agency; and 6 ‘‘(B) the terms ‘overtime compensation’, 7 ‘compensatory time’, and ‘compensatory time 8 off’ shall have the meanings given such terms 9 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), in the first sentence, by 14 striking ‘‘(b) Any employer’’ and inserting ‘‘(b) Ex- 15 cept as provided in subsection (f), any employer’’; 16 and 17 (2) by adding at the end the following: 18 ‘‘(f) An employer that violates section 7(t)(4) shall 19 be liable to the employee affected in the amount of the 20 rate of compensation (determined in accordance with sec- 21 tion 7(t)(6)(A)) for each hour of compensatory time ac- 22 crued by the employee and in an additional equal amount 23 as liquidated damages reduced by the amount of such rate 24 VerDate Sep 11 2014 04:39 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1043.IS S1043 kjohnson on DSK79L0C42 with BILLS 8 •S 1043 IS of compensation for each hour of compensatory time used 1 by such employee.’’. 2 SEC. 4. NOTICE TO EMPLOYEES. 3 Not later than 30 days after the date of enactment 4 of this Act, the Secretary of Labor shall revise the mate- 5 rials the Secretary provides, under regulations published 6 in section 516.4 of title 29, Code of Federal Regulations 7 (or any corresponding similar regulation or ruling), to em- 8 ployers for purposes of a notice explaining the Fair Labor 9 Standards Act of 1938 (29 U.S.C. 201 et seq.) to employ- 10 ees so that such notice reflects the amendments made to 11 such Act by this Act. 12 SEC. 5. GAO REPORT. 13 Beginning 2 years after the date of enactment of this 14 Act and each of the 3 years thereafter, the Comptroller 15 General shall submit a report to Congress providing, with 16 respect to the reporting period immediately prior to each 17 such report— 18 (1) data concerning the extent to which employ- 19 ers provide compensatory time pursuant to section 20 7(t) of the Fair Labor Standards Act of 1938, as 21 added by this Act, and the extent to which employ- 22 ees opt to receive compensatory time; 23 VerDate Sep 11 2014 04:39 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1043.IS S1043 kjohnson on DSK79L0C42 with BILLS 9 •S 1043 IS (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 04:39 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\S1043.IS S1043 kjohnson on DSK79L0C42 with BILLS