To enable military family members to take time off to attend to deployment-related business, tasks, and other family issues.

SA 3475. Mr. WARNER (for Mr. Gregg) proposed an amendment to amendment SA 3400 proposed by Mr. Feingold (for himself, Mrs. Murray, Mr. Corzine, and Mr. Dayton) to the bill S. 2400, to authorize appropriations for fiscal year 2005 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe personnel strengths for such fiscal year for the Armed Services, and for other purposes; as follows:

Strike the matter proposed to be inserted, and insert the following:

Subtitle F--Military Families Workplace Flexibility SEC. 661. SHORT TITLE.

This subtitle may be cited as the “Military Families Workplace Flexibility Act”.

SEC. 662. BIWEEKLY WORK PROGRAMS AND FLEXIBLE CREDIT HOUR PROGRAMS.

(a) In General.--The Fair Labor Standards Act of 1938 is amended by inserting after section 13 (29 U.S.C. 213) the following:

“SEC. 13A. BIWEEKLY WORK PROGRAMS AND FLEXIBLE CREDIT HOUR PROGRAMS.

“(a) Eligible Employee.--For the purposes of this section, an employee who is a spouse, child (including an adopted child or stepchild), or parent of a member of the Armed Forces is eligible for the program benefits under this section during the following periods:

“(1) The period during which the member of the Armed Forces is serving on active duty and deployed to the area of operations of a contingency operation.

“(2) In the case of a member of the reserve components called or ordered to active duty pursuant to a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code, the period--

“(A) beginning on the earlier of the date on which active duty commences or the date on which the member receives a delayed-effective-date active-duty order (as defined in section 1074(d)(2) of such title); and

“(B) ending on the date on which the member is released from the active duty to which so called or ordered.

“(b) Voluntary Participation.--

“(1) In general.--Except as provided in paragraph (2), no eligible employee may be required to participate in a program described in this section. Participation in a program described in this section may not be a condition of employment.

“(3) Collective bargaining agreement.--In a case in which a valid collective bargaining agreement exists between an employer and the labor organization that has been certified or recognized as the representative of the eligible employees of the employer under applicable law, an eligible employee may only be required to participate in such a program in accordance with the agreement.

“(c) Biweekly Work Programs.--

“(1) In general.--Notwithstanding section 7, an employer may establish biweekly work programs that allow the use of a biweekly work schedule for an eligible employee--

“(A) that consists of a basic work requirement of not more than 80 hours, over a 2-week period; and

“(B) in which more than 40 hours of the work requirement may occur in a week of the period, except that no more than 10 hours may be shifted between the 2 weeks involved.

“(2) Conditions.--An employer may carry out a biweekly work program described in paragraph (1) for eligible employees only pursuant to the following:

“(A) Agreement.--The program may be carried out only in accordance with--

“(i) 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 eligible employees under applicable law; or

“(ii) in the case of an eligible employee who is not represented by a labor organization described in clause (i), a written agreement arrived at between the employer and eligible employee before the performance of the work involved if the agreement was entered into knowingly and voluntarily by such eligible employee and was not a condition of employment.

“(B) Statement.--The program shall apply to an eligible employee described in subparagraph (A)(ii) if such eligible employee has affirmed, in a written statement that is made, kept, and preserved in accordance with section 11(c), that the eligible employee has chosen to participate in the program.

“(C) Minimum service.--No eligible employee may participate, or agree to participate, in the program unless the eligible employee has been employed for at least 12 months by the employer, and for at least 1,250 hours of service with the employer during the previous 12-month period.

“(3) Compensation for hours in schedule.--Notwithstanding section 7, in the case of an eligible employee participating in such a biweekly work program, the eligible employee shall be compensated for each hour in such a biweekly work schedule at a rate not less than the regular rate at which the eligible employee is employed.

“(4) Computation of overtime.--All hours worked by the eligible employee in excess of such a biweekly work schedule or in excess of 80 hours in the 2-week period, that are requested in advance by the employer, shall be overtime hours.

“(5) Overtime compensation provision.--The eligible employee shall be compensated for each such overtime hour at a rate not less than one and one-half times the regular rate at which the eligible employee is employed, in accordance with section 7(a)(1).

“(6) Discontinuance of program or withdrawal.--

“(A) Discontinuance of program.--An employer that has established a biweekly work program under paragraph (1) may discontinue the program for eligible employees described in paragraph (2)(A)(ii) after providing 30 days' written notice to the eligible employees who are subject to an agreement described in paragraph (2)(A)(ii).

“(B) Withdrawal.--An eligible employee may withdraw an agreement described in paragraph (2)(A)(ii) at the end of any 2-week period described in paragraph (1)(A), by submitting a written notice of withdrawal to the employer of the eligible employee.

“(d) Flexible Credit Hour Programs.--

“(1) In general.--Notwithstanding section 7, an employer may establish flexible credit hour programs, under which, at the election of an eligible employee, the employer and the eligible employee jointly designate hours for the eligible employee to work that are in excess of the basic work requirement of the eligible employee so that the eligible employee can accrue flexible credit hours to reduce the hours worked in a week or a day subsequent to the day on which the flexible credit hours are worked.

“(2) Conditions.--An employer may carry out a flexible credit hour program described in paragraph (1) for eligible employees only pursuant to the following:

“(A) Agreement.--The program may be carried out only in accordance with--

“(i) 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 eligible employees under applicable law; or

“(ii) in the case of an eligible employee who is not represented by a labor organization described in clause (i), a written agreement arrived at between the employer and eligible employee before the performance of the work involved if the agreement was entered into knowingly and voluntarily by such eligible employee and was not a condition of employment.

“(B) Statement.--The program shall apply to an eligible employee described in subparagraph (A)(ii) if such eligible employee has affirmed, in a written statement that is made, kept, and preserved in accordance with section 11(c), that the eligible employee has chosen to participate in the program.

“(C) Minimum service.--No eligible employee may participate, or agree to participate, in the program unless the eligible employee has been employed for at least 12 months by the employer, and for at least 1,250 hours of service with the employer during the previous 12-month period.

“(D) Hours.--An agreement that is entered into under subparagraph (A) shall provide that, at the election of an eligible employee, the employer and the eligible employee will jointly designate, for an applicable workweek, flexible credit hours for the eligible employee to work.

“(E) Limit.--An eligible employee shall be eligible to accrue flexible credit hours if the eligible employee has not accrued flexible credit hours in excess of the limit applicable to the eligible employee prescribed by paragraph (3).

“(3) Hour limit.--

“(A) Maximum hours.--An eligible employee who is participating in such a flexible credit hour program may accrue not more than 50 flexible credit hours.

“(B) Compensation date.--Not later than January 31 of each calendar year, the employer of an eligible employee who is participating in such a flexible credit hour program shall provide monetary compensation for any flexible credit hours accrued during the preceding calendar year that were not used prior to December 31 of the preceding calendar year at a rate not less than the regular rate at which the eligible employee is employed on the date the eligible employee receives the compensation. An employer may designate and communicate to the eligible employees of the employer a 12-month period other than the calendar year, in which case the compensation shall be provided not later than 31 days after the end of the 12-month period.

“(4) Compensation for flexible credit hours.--Notwithstanding section 7, in the case of an eligible employee participating in such a flexible credit hour program, the eligible employee shall be compensated for each flexible credit hour at a rate not less than the regular rate at which the eligible employee is employed.

“(5) Computation of overtime.--All hours worked by the eligible employee in excess of 40 hours in a week that are requested in advance by the employer, other than flexible credit hours, shall be overtime hours.

“(6) Overtime compensation provision.--The eligible employee shall be compensated for each such overtime hour at a rate not less than one and one-half times the regular rate at which the eligible employee is employed, in accordance with section 7(a)(1).

“(7) Use of time.--An eligible employee--

“(A) who has accrued flexible credit hours; and

“(B) who has requested the use of the accrued flexible credit hours, shall be permitted by the employer of the eligible employee to use the accrued flexible credit hours within a reasonable period after making the request if the use of the accrued flexible credit hours does not unduly disrupt the operations of the employer.

“(8) Discontinuance of program or withdrawal.--

“(A) Discontinuance of program.--An employer that has established a flexible credit hour program under paragraph (1) may discontinue the program for eligible employees described in paragraph (2)(A)(ii) after providing 30 days' written notice to the eligible employees who are subject to an agreement described in paragraph (2)(A)(ii).

“(B) Withdrawal.--An eligible employee may withdraw an agreement described in paragraph (2)(A)(ii) at any time, by submitting a written notice of withdrawal to the employer of the eligible employee. An eligible employee may also request in writing that monetary compensation be provided, at any time, for all flexible credit hours accrued that have not been used. Within 30 days after receiving the written request, the employer shall provide the eligible employee the monetary compensation due at a rate not less than the regular rate at which the eligible employee is employed on the date the eligible employee receives the compensation.

“(e) Prohibition of Coercion.--

“(1) In general.--An employer shall not directly or indirectly intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce, any eligible employee for the purpose of--

“(A) interfering with the rights of the eligible employee under this section to elect or not to elect to work a biweekly work schedule;

“(B) interfering with the rights of the eligible employee under this section to elect or not to elect to participate in a flexible credit hour program, or to elect or not to elect to work flexible credit hours (including working flexible credit hours in lieu of overtime hours);

“(C) interfering with the rights of the eligible employee under this section to use accrued flexible credit hours in accordance with subsection (d)(7); or

“(D) requiring the eligible employee to use the flexible credit hours.

“(2) Definition.--In paragraph (1), the term ‘intimidate, threaten, or coerce' includes promising to confer or conferring any benefit (such as appointment, promotion, or compensation) or effecting or threatening to effect any reprisal (such as deprivation of appointment, promotion, or compensation).

“(f) Definitions.--In this section:

“(1) Basic work requirement.--The term ‘basic work requirement' means the number of hours, excluding overtime hours, that an eligible employee is required to work or is required to account for by leave or otherwise.

“(2) Collective bargaining.--The term ‘collective bargaining' means the performance of the mutual obligation of the representative of an employer and the labor organization that has been certified or recognized as the representative of the eligible employees of the employer under applicable law to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such eligible employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph shall not compel either party to agree to a proposal or to make a concession.

“(3) Collective bargaining agreement.--The term ‘collective bargaining agreement' means an agreement entered into as a result of collective bargaining.

“(4) Election.--The term ‘at the election of', used with respect to an eligible employee, means at the initiative of, and at the request of, the eligible employee.

“(5) Employee.--The term ‘employee' means an individual--

“(A) who is an employee (as defined in section 3);

“(B) who is not an employee of a public agency; and

“(C) to whom section 7(a) applies.

“(6) Employer.--The term ‘employer'--

“(A) means an employer (as defined in section 3 or as defined in section 101 of the Family and Medical Leave Act of 1993 (29 U.S.C. 2611)); but

“(B) does not include the General Accounting Office, the Library of Congress, or a public agency.

“(7) Flexible credit hours.--The term ‘flexible credit hours' means any hours, within a flexible credit hour program established under subsection (d), that are in excess of the basic work requirement of an eligible employee and that, at the election of the eligible employee, the employer and the eligible employee jointly designate for the eligible employee to work so as to reduce the hours worked in a week on a day subsequent to the day on which the flexible credit hours are worked.

“(8) Overtime hours.--The term ‘overtime hours'--

“(A) when used with respect to biweekly work programs under subsection (c), means all hours worked in excess of the biweekly work schedule involved or in excess of 80 hours in the 2-week period involved, that are requested in advance by an employer; or

“(B) when used with respect to flexible credit hour programs under subsection (d), means all hours worked in excess of 40 hours in a week that are requested in advance by an employer, but does not include flexible credit hours.

“(9) Regular rate.--The term ‘regular rate' has the meaning given the term in section 7(e).”.

(b) Remedies.--

(1) Prohibitions.--Section 15(a)(3) of the Fair Labor Standards Act of 1938 (29 U.S.C. 215(a)(3)) is amended--

(A) by inserting “(A)” after “(3)”;

(B) by adding “or” after the semicolon; and

(C) by adding at the end the following:

“(B) to violate any of the provisions of section 13A;”.

(2) Remedies and sanctions.--Section 16 of the Fair Labor Standards Act of 1938 (29 U.S.C. 216) is amended--

(A) in subsection (c)--

(i) in the first sentence--

(I) by inserting after “7 of this Act” the following: “, or of the appropriate legal or monetary equitable relief owing to any eligible employee or eligible employees under section 13A”; and

(II) by striking “wages or unpaid overtime compensation and” and inserting “wages, unpaid overtime compensation, or legal or monetary equitable relief, as appropriate, and”;

(ii) in the second sentence, by striking “wages or overtime compensation and” and inserting “wages, unpaid overtime compensation, or legal or monetary equitable relief, as appropriate, and”; and

(iii) in the third sentence--

(I) by inserting after “first sentence of such subsection” the following: “, or the second sentence of such subsection in the event of a violation of section 13A,”; and

(II) by striking “wages or unpaid overtime compensation under sections 6 and 7 or” and inserting “wages, unpaid overtime compensation, or legal or monetary equitable relief, as appropriate, or”;

(B) in subsection (e)--

(i) in the second sentence, by striking “section 6 or 7” and inserting “section 6, 7, or 13A”; and

(ii) in the fourth sentence, in paragraph (3), by striking “15(a)(4) or” and inserting “15(a)(4), a violation of section 15(a)(3)(B), or”; and

(C) by adding at the end the following:

“(f)(1) In addition to any amount that an employer is liable under the second sentence of subsection (b) for a violation of a provision of section 13A, an employer that violates section 13A(e) shall be liable to the eligible employee affected for an additional sum equal to that amount.

“(2) The employer shall be subject to such liability in addition to any other remedy available for such violation under this section or section 17.”.

(c) 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 contained in section 516.4 of title 29, Code of Federal Regulations, to employers for purposes of a notice explaining the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) to eligible employees (as defined in section 13A of such Act) so that the notice reflects the amendments made to the Act by this section.

SEC. 663. TERMINATION.

The authority provided by this subtitle and the amendments made by this subtitle terminates 5 years after the date of enactment of this Act.