[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 2642 Introduced in Senate (IS)]
113th CONGRESS
2d Session
S. 2642
To permit employees to request changes to their work schedules without
fear of retaliation, and to ensure that employers consider these
requests; and to require employers to provide more predictable and
stable schedules for employees in certain growing low-wage occupations,
and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 22, 2014
Mr. Harkin (for himself, Ms. Warren, and Mr. Brown) introduced the
following bill; which was read twice and referred to the Committee on
Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To permit employees to request changes to their work schedules without
fear of retaliation, and to ensure that employers consider these
requests; and to require employers to provide more predictable and
stable schedules for employees in certain growing low-wage occupations,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; FINDINGS.
(a) Short Title.--This Act may be cited as the ``Schedules That
Work Act''.
(b) Findings.--Congress finds the following:
(1) The vast majority of the United States workforce today
is juggling responsibilities at home and at work. Women are
primary breadwinners or co-breadwinners in 63 percent of
families in the United States and 26 percent of families with
children are headed by single mothers.
(2) Despite the dual responsibilities of today's workforce,
workers across the income spectrum have very little ability to
make changes to their work schedules when those changes are
needed to accommodate family responsibilities. Only 27 percent
of employers allow all or most of their employees to
periodically change their starting and quitting times.
(3) Although low-wage workers are most likely to be raising
children on their own, as more than half of mothers of young
children in low-wage jobs are doing, low-wage workers have the
least control over their work schedules and the most
unpredictable schedules. For example--
(A) roughly half of low-wage workers reported very
little or no control over the timing of the hours they
were scheduled to work;
(B) many workers in low-wage jobs receive their
schedules with very little advance notice and have work
hours that vary significantly from week to week or
month to month;
(C) some workers in low-wage jobs are sent home
from work when work is slow without being paid for
their scheduled shift;
(D) in some industries, the use of ``call-in
shift'' requirements--requirements that workers call in
to work to find out whether they will be scheduled to
work later that day--has become common practice; and
(E) at the same time, 20 to 30 percent of workers
in low-wage jobs struggle with being required to work
extra hours with little or no notice.
(4) Unfair work scheduling practices make it difficult for
low-wage workers to--
(A) provide necessary care for children and other
family members, including arranging child care;
(B) qualify for and maintain eligibility for child
care subsidies, due to fluctuations in income and work
hours, or keep an appointment with a child care
provider, due to not knowing how many hours or when the
workers will be scheduled to work;
(C) pursue workforce training;
(D) get or keep a second job that some part-time
workers need to make ends meet; and
(E) arrange transportation to and from work.
(5) Unpredictable and unstable schedules are prevalent in
retail sales, food preparation and service, and building
cleaning occupations, which are among the lowest-paid and
fastest-growing occupations in the workforce today. For workers
in those occupations, often difficult and sometimes abusive
work scheduling practices combine with very low wages to make
it extremely challenging to make ends meet.
(6) Retail sales, food preparation and service, and
building cleaning occupations are among those most likely to
have unpredictable and unstable schedules. According to data
from the Bureau of Labor Statistics, 66 percent of food service
workers, 52 percent of retail workers, and 40 percent of
janitors and housekeepers know their schedules only a week or
less in advance. The average variation in work hours in a
single month is 70 percent for food service workers, 50 percent
for retail workers, and 40 percent for janitors and
housekeepers.
(7) Those are among the lowest-paid and fastest-growing
occupations, accounting for 18 percent of workers in the
economy, some 23,500,000 workers. The median pay for workers in
those 3 occupations is between $9.15 and $10.44 per hour, and
women make up more than half of the workers in those
occupations.
(8) Employers that have implemented fair work scheduling
policies that allow workers to have more control over their
work schedules, and provide more predictable and stable
schedules, have experienced significant benefits, including
reductions in absenteeism and workforce turnover, and increased
employee morale and engagement.
(9) This Act is a first step in responding to the needs of
workers for a voice in the timing of their work hours and for
more predictable schedules.
SEC. 2. DEFINITIONS.
As used in this Act:
(1) Bona fide business reason.--The term ``bona fide
business reason'' means--
(A) the identifiable burden of additional costs to
an employer, including the cost of productivity loss,
retraining or hiring employees, or transferring
employees from one facility to another facility;
(B) a significant detrimental effect on the
employer's ability to meet organizational needs or
customer demand;
(C) a significant inability of the employer,
despite best efforts, to reorganize work among existing
(as of the date of the reorganization) staff;
(D) a significant detrimental effect on business
performance;
(E) insufficiency of work during the periods an
employee proposes to work;
(F) the need to balance competing scheduling
requests when it is not possible to grant all such
requests without a significant detrimental effect on
the employer's ability to meet organizational needs; or
(G) such other reason as may be specified by the
Secretary of Labor (or the corresponding administrative
officer specified in section 8).
(2) Career-related educational or training program.--The
term ``career-related educational or training program'' means
an educational or training program or program of study offered
by a public, private, or nonprofit career and technical
education school, institution of higher education, or other
entity that provides academic education, career and technical
education, or training (including remedial education or English
as a second language, as appropriate), that is a program that
leads to a recognized postsecondary credential (as identified
under section 122(d) of the Workforce Innovation and
Opportunity Act), and provides career awareness information.
The term includes a program allowable under the Workforce
Investment Act of 1998 (29 U.S.C. 2801 et seq.), the Workforce
Innovation and Opportunity Act, the Carl D. Perkins Career and
Technical Education Act of 2006 (20 U.S.C. 2301 et seq.), or
the Higher Education Act of 1965 (20 U.S.C. 1001 et seq.),
without regard to whether or not the program is funded under
the corresponding Act.
(3) Caregiver.--The term ``caregiver'' means an individual
with the status of being a significant provider of--
(A) ongoing care or education, including
responsibility for securing the ongoing care or
education, of a child; or
(B) ongoing care, including responsibility for
securing the ongoing care, of--
(i) a person with a serious health
condition who is in a family relationship with
the individual; or
(ii) a parent of the individual, who is age
65 or older.
(4) Child.--The term ``child'' means a biological, adopted,
or foster child, a stepchild, a legal ward, or a child of a
person standing in loco parentis to that child, who is--
(A) under age 18; or
(B) age 18 or older and incapable of self-care
because of a mental or physical disability.
(5) Covered employer.--
(A) In general.--The term ``covered employer''--
(i) means any person engaged in commerce or
in any industry or activity affecting commerce
who employs 15 or more employees (described in
paragraph (7)(A));
(ii) includes any person who acts, directly
or indirectly, in the interest of such an
employer to any of the employees (described in
paragraph (7)(A)) of such employer;
(iii) includes any successor in interest of
such an employer; and
(iv) includes an agency described in
subparagraph (A)(iii) of section 101(4) of the
Family and Medical Leave Act of 1993 (29 U.S.C.
2611(4)), to which subparagraph (B) of such
section shall apply.
(B) Rule.--For purposes of determining the number
of employees who work for a person described in
subparagraph (A)(i), all employees (described in
paragraph (7)(A)) performing work for compensation on a
full-time, part-time, or temporary basis shall be
counted, except that if the number of such employees
who perform work for such a person for compensation
fluctuates, the number may be determined for a calendar
year based upon the average number of such employees
who performed work for the person for compensation
during the preceding calendar year.
(C) Person.--In this paragraph, and paragraph (7),
the term ``person'' has the meaning given the term in
section 3 of the Fair Labor Standards Act of 1938 (29
U.S.C. 203).
(6) Domestic partner.--The term ``domestic partner'' means
the person recognized as being in a relationship with an
employee under any domestic partnership, civil union, or
similar law of the State or political subdivision of a State in
which the employee resides.
(7) Employee.--The term ``employee'' means an individual
who is--
(A) an employee, as defined in section 3(e) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 203(e)),
who is not described in any of subparagraphs (B)
through (G);
(B) a State employee described in section 304(a) of
the Government Employee Rights Act of 1991 (42 U.S.C.
2000e-16c(a));
(C) a covered employee, as defined in section 101
of the Congressional Accountability Act of 1995 (2
U.S.C. 1301), other than an applicant for employment;
(D) a covered employee, as defined in section
411(c) of title 3, United States Code;
(E) a Federal officer or employee covered under
subchapter V of chapter 63 of title 5, United States
Code;
(F) an employee of the Library of Congress; or
(G) an employee of the Government Accountability
Office.
(8) Employer.--The term ``employer'' means a person--
(A) who is--
(i) a covered employer, as defined in
paragraph (4), who is not described in any of
clauses (ii) through (vii);
(ii) an entity employing a State employee
described in section 304(a) of the Government
Employee Rights Act of 1991;
(iii) an employing office, as defined in
section 101 of the Congressional Accountability
Act of 1995;
(iv) an employing office, as defined in
section 411(c) of title 3, United States Code;
(v) an employing agency covered under
subchapter V of chapter 63 of title 5, United
States Code;
(vi) the Librarian of Congress; or
(vii) the Comptroller General of the United
States; and
(B) who is engaged in commerce (including
government), in the production of goods for commerce,
or in an enterprise engaged in commerce (including
government) or in the production of goods for commerce.
(9) Family relationship.--The term ``family relationship''
means a relationship with a child, spouse, domestic partner,
parent, grandchild, grandparent, sibling, or parent of a spouse
or domestic partner.
(10) Grandchild.--The term ``grandchild'' means the child
of a child.
(11) Grandparent.--The term ``grandparent'' means the
parent of a parent.
(12) Minimum number of expected work hours.--The term
``minimum number of expected work hours'' means the minimum
number of hours an employee will be assigned to work on a
weekly or monthly basis.
(13) Parent.--The term ``parent'' means a biological or
adoptive parent, a stepparent, or a person who stood in a
parental relationship to an employee when the employee was a
child.
(14) Parental relationship.--The term ``parental
relationship'' means a relationship in which a person assumed
the obligations incident to parenthood for a child and
discharged those obligations before the child reached
adulthood.
(15) Part-time employee.--The term ``part-time employee''
means an individual who works fewer than 30 hours per week on
average during any 1-month period.
(16) Retail, food service, or cleaning employee.--
(A) In general.--The term ``retail, food service,
or cleaning employee'' means an individual employee who
is employed in any of the following occupations, as
described by the Bureau of Labor Statistics Standard
Occupational Classification System (as in effect on the
day before the date of enactment of this Act):
(i) Retail sales occupations consisting of
occupations described in 41-1010 and 41-2000,
and all subdivisions thereof, of such System,
which includes first-line supervisors of sales
workers, cashiers, gaming change persons and
booth cashiers, counter and rental clerks,
parts salespersons, and retail salespersons.
(ii) Food preparation and serving related
occupations as described in 35-0000, and all
subdivisions thereof, of such System, which
includes supervisors of food preparation and
serving workers, cooks and food preparation
workers, food and beverage serving workers, and
other food preparation and serving related
workers.
(iii) Building cleaning occupations as
described in 37-2011, 37-2012 and 37-2019 of
such System, which includes janitors and
cleaners, maids and housekeeping cleaners, and
building cleaning workers.
(B) Exclusions.--Notwithstanding subparagraph (A),
the term ``retail, food service, or cleaning employee''
does not include any person employed in a bona fide
executive, administrative, or professional capacity, as
defined for purposes of section 13(a)(1) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 213(a)(1)).
(17) Secretary.--The term ``Secretary'' means the Secretary
of Labor.
(18) Serious health condition.--The term ``serious health
condition'' has the meaning given the term in section 101 of
the Family and Medical Leave Act of 1993 (29 U.S.C. 2611).
(19) Sibling.--The term ``sibling'' means a brother or
sister, whether related by half blood, whole blood, or
adoption, or as a stepsibling.
(20) Split shift.--The term ``split shift'' means a
schedule of daily hours in which the hours worked are not
consecutive, except that--
(A) a schedule in which the total time out for
meals does not exceed one hour shall not be treated as
a split shift; and
(B) a schedule in which the break in the employee's
work shift is requested by the employee shall not be
treated as a split shift.
(21) Spouse.--
(A) In general.--The term ``spouse'' means a person
with whom an individual entered into--
(i) a marriage as defined or recognized
under State law in the State in which the
marriage was entered into; or
(ii) in the case of a marriage entered into
outside of any State, a marriage that is
recognized in the place where entered into and
could have been entered into in at least 1
State.
(B) Same-sex or common law marriage.--Such term
includes an individual in a same-sex or common law
marriage that meets the requirements of subparagraph
(A).
(22) State.--The term ``State'' has the meaning given the
term in section 3 of the Fair Labor Standards Act of 1938 (29
U.S.C. 203).
(23) Work schedule.--The term ``work schedule'' means those
days and times within a work period when an employee is
required by an employer to perform the duties of the employee's
employment for which the employee will receive compensation.
(24) Work schedule change.--The term ``work schedule
change'' means any modification to an employee's work schedule,
such as an addition or reduction of hours, cancellation of a
shift, or a change in the date or time of a work shift, by an
employer.
(25) Work shift.--The term ``work shift'' means the
specific hours of the workday during which an employee works.
(26) Various additional terms.--
(A) Commerce terms.--The terms ``commerce'' and
``industry or activity affecting commerce'' have the
meanings given the terms in section 101 of the Family
and Medical Leave Act of 1993 (29 U.S.C. 2611).
(B) Employ.--The term ``employ'' has the meaning
given the term in section 3 of the Fair Labor Standards
Act of 1938 (29 U.S.C. 203).
SEC. 3. RIGHT TO REQUEST AND RECEIVE A FLEXIBLE, PREDICTABLE OR STABLE
WORK SCHEDULE.
(a) Right To Request.--An employee may apply to the employee's
employer to request a change in the terms and conditions of employment
as they relate to--
(1) the number of hours the employee is required to work or
be on call for work;
(2) the times when the employee is required to work or be
on call for work;
(3) the location where the employee is required to work;
(4) the amount of notification the employee receives of
work schedule assignments; and
(5) minimizing fluctuations in the number of hours the
employee is scheduled to work on a daily, weekly, or monthly
basis.
(b) Employer Obligation To Engage in an Interactive Process.--
(1) In general.--If an employee applies to the employee's
employer to request a change in the terms and conditions of
employment as set forth in subsection (a), the employer shall
engage in a timely, good faith interactive process with the
employee that includes a discussion of potential schedule
changes that would meet the employee's needs.
(2) Result.--Such process shall result in--
(A) either granting or denying the request;
(B) in the event of a denial, considering
alternatives to the proposed change that might meet the
employee's needs and granting or denying a request for
an alternative change in the terms and conditions of
employment as set forth in subsection (a); and
(C) in the event of a denial, stating the reason
for denial.
(3) Information.--If information provided by the employee
making a request under this section requires clarification, the
employer shall explain what further information is needed and
give the employee reasonable time to produce the information.
(c) Requests Related to Caregiving, Enrollment in Education or
Training, or a Second Job.--If an employee makes a request for a change
in the terms and conditions of employment as set forth in subsection
(a) because of a serious health condition of the employee, due to the
employee's responsibilities as a caregiver, or due to the employee's
enrollment in a career-related educational or training program, or if a
part-time employee makes a request for such a change for a reason
related to a second job, the employer shall grant the request, unless
the employer has a bona fide business reason for denying the request.
(d) Other Requests.--If an employee makes a request for a change in
the terms and conditions of employment as set forth in subsection (a),
for a reason other than those reasons set forth in subsection (c), the
employer may deny the request for any reason that is not unlawful. If
the employer denies such a request, the employer shall provide the
employee with the reason for the denial, including whether any such
reason was a bona fide business reason.
SEC. 4. REQUIREMENTS FOR REPORTING TIME PAY, SPLIT SHIFT PAY, AND
ADVANCE NOTICE OF WORK SCHEDULES.
(a) Reporting Time Pay Requirement.--An employer shall pay a
retail, food service, or cleaning employee--
(1) for at least 4 hours at the employee's regular rate of
pay for each day on which the retail, food service, or cleaning
employee reports for work, as required by the employer, but is
given less than four hours of work, except that if the retail,
food service, or cleaning employee's scheduled hours for a day
are less than 4 hours, such retail, food service, or cleaning
employee shall be paid for the employee's scheduled hours for
that day if given less than the scheduled hours of work; and
(2) for at least 1 hour at the employee's regular rate of
pay for each day the retail, food service, or cleaning employee
is given specific instructions to contact the employee's
employer, or wait to be contacted by the employer, less than 24
hours in advance of the start of a potential work shift to
determine whether the employee must report to work for such
shift.
(b) Split Shift Pay Requirement.--An employer shall pay a retail,
food service, or cleaning employee for one additional hour at the
retail, food service, or cleaning employee's regular rate of pay for
each day during which the retail, food service, or cleaning employee
works a split shift.
(c) Advance Notice Requirement.--
(1) Initial schedule.--On or before a new retail, food
service, or cleaning employee's first day of work, the employer
shall inform the retail, food service, or cleaning employee in
writing of the employee's work schedule and the minimum number
of expected work hours the retail, food service, or cleaning
employee will be assigned to work per month.
(2) Providing notice of new schedules.--Except as provided
in paragraph (3), if a retail, food service, or cleaning
employee's work schedule changes from the work schedule of
which the retail, food service, or cleaning employee was
informed pursuant to paragraph (1), the employer shall provide
the retail, food service, or cleaning employee with the
employee's new work schedule not less than 14 days before the
first day of the new work schedule. If the expected minimum
number of work hours that a retail, food service, or cleaning
employee will be assigned changes from the number of which the
employee was informed pursuant to paragraph (1), the employer
shall also provide notification of that change, not less than
14 days in advance of the first day this change will go into
effect. Nothing in this subsection shall be construed to
prohibit an employer from providing greater advance notice of a
retail, food service, or cleaning employee's work schedule than
is required under this section.
(3) Work schedule changes made with less than 24 hours'
notice.--An employer may make work schedule changes as needed,
including by offering additional hours of work to retail, food
service, or cleaning employees beyond those previously
scheduled, but an employer shall be required to provide one
extra hour of pay at the retail, food service, or cleaning
employee's regular rate for each shift that is changed with
less than 24 hours' notice, except in the case of the need to
schedule the retail, food service, or cleaning employee due to
the unforeseen unavailability of a retail, food service, or
cleaning employee previously scheduled to work that shift.
(4) Notifications in writing.--The notifications required
under paragraphs (1) and (2) shall be made to the employee in
writing. Nothing in this subsection shall be construed as
prohibiting an employer from using any additional means of
notifying a retail, food service, or cleaning employee of the
employee's work schedule.
(5) Schedule posting requirement.--Every employer employing
any retail, food service, or cleaning employee subject to this
Act shall post the schedule and keep it posted in a conspicuous
place in every establishment where such retail, food service,
or cleaning employee is employed so as to permit the employee
to observe readily a copy. Availability of that schedule by
electronic means accessible by all retail, food service, or
cleaning employees of that employer shall be considered
compliance with this subsection.
(6) Employee shift trading.--Nothing in this subsection
shall be construed to prevent an employer from allowing a
retail, food service, or cleaning employee to work in place of
another employee who has been scheduled to work a particular
shift as long as the change in schedule is mutually agreed upon
by the employees. An employer shall not be subject to the
requirements of paragraph (2) or (3) for such voluntary shift
trades.
(d) Exception.--The requirements in subsections (a), (b), and (c)
shall not apply during periods when regular operations of the employer
are suspended due to events beyond the employer's control.
SEC. 5. PROHIBITED ACTS.
(a) Interference With Rights.--It shall be unlawful for any
employer to interfere with, restrain, or deny the exercise or the
attempt to exercise, any right of an employee as set forth in section 3
or of a retail, food service, or cleaning employee as set forth in
section 4.
(b) Retaliation Prohibited.--It shall be unlawful for any employer
to discharge, threaten to discharge, demote, suspend, reduce work hours
of, or take any other adverse employment action against any employee in
retaliation for exercising the rights of an employee under this Act or
opposing any practice made unlawful by this Act. For purposes of
section 3, such retaliation shall include taking an adverse employment
action against any employee on the basis of that employee's eligibility
or perceived eligibility to request or receive a change in the terms
and conditions of employment, as described in such section, on the
basis of a reason set forth in section 3(c).
(c) Interference With Proceedings or Inquiries.--It shall be
unlawful for any person to discharge or in any other manner
discriminate against any individual because such individual--
(1) has filed any charge, or has instituted or caused to be
instituted any proceeding, under or related to this Act;
(2) has given or is about to give, any information in
connection with any inquiry or proceeding relating to any right
provided under this Act; or
(3) has testified, or is about to testify, in any inquiry
or proceeding relating to any right provided under this Act.
SEC. 6. REMEDIES AND ENFORCEMENT.
(a) Investigative Authority.--
(1) In general.--To ensure compliance with this Act, or any
regulation or order issued under this Act, the Secretary shall
have, subject to paragraph (3), the investigative authority
provided under section 11(a) of the Fair Labor Standards Act of
1938 (29 U.S.C. 211(a)).
(2) Obligation to keep and preserve records.--Each employer
shall make, keep, and preserve records pertaining to compliance
with this Act in accordance with regulations issued by the
Secretary under section 8.
(3) Required submissions generally limited to an annual
basis.--The Secretary shall not under the authority of this
subsection require any employer to submit to the Secretary any
books or records more than once during any 12-month period,
unless the Secretary has reasonable cause to believe there may
exist a violation of this Act or any regulation or order issued
pursuant to this Act, or is investigating a charge pursuant to
subsection (c).
(4) Subpoena powers.--For the purposes of any investigation
provided for in this section, the Secretary shall have the
subpoena authority provided for under section 9 of the Fair
Labor Standards Act of 1938 (29 U.S.C. 209).
(b) Civil Action by Employees.--
(1) Liability.--Any employer who violates section 5(a)
(with respect to a right set forth in section 4) or subsection
(b) or (c) of section 5 (referred to in this section as a
``covered provision'') shall be liable to any employee affected
for--
(A) damages equal to the amount of--
(i) any wages, salary, employment benefits
(as defined in section 101 of the Family and
Medical Leave Act of 1993 (29 U.S.C. 2611)), or
other compensation denied, lost, or owed to
such employee by reason of the violation; or
(ii) in a case in which wages, salary,
employment benefits (as so defined), or other
compensation have not been denied, lost, or
owed to the employee, any actual monetary
losses sustained by the employee as a direct
result of the violation;
(B) interest on the amount described in
subparagraph (A) calculated at the prevailing rate;
(C) an additional amount as liquidated damages
equal to the sum of the amount described in
subparagraph (A) and the interest described in
subparagraph (B), except that if an employer who has
violated a covered provision proves to the satisfaction
of the court that the act or omission which violated
the covered provision was in good faith and that the
employer had reasonable grounds for believing that the
act or omission was not a violation of a covered
provision, such court may, in the discretion of the
court, reduce the amount of liability to the amount and
interest determined under subparagraphs (A) and (B),
respectively; and
(D) such equitable relief as may be appropriate,
including employment, reinstatement, and promotion.
(2) Right of action.--An action to recover the damages or
equitable relief set forth in paragraph (1) may be maintained
against any employer (including a public agency) in any Federal
or State court of competent jurisdiction by any one or more
employees for and on behalf of--
(A) the employees; or
(B) the employees and other employees similarly
situated.
(3) Fees and costs.--The court in such an action shall, in
addition to any judgment awarded to the plaintiff, allow a
reasonable attorney's fee, reasonable expert witness fees, and
other costs of the action to be paid by the defendant.
(4) Limitations.--The right provided by paragraph (2) to
bring an action by or on behalf of any employee shall terminate
on the filing of a complaint by the Secretary in an action
under subsection (c)(3) in which a recovery is sought of the
damages described in paragraph (1)(A) owing to an employee by
an employer liable under paragraph (1) unless the action
described is dismissed without prejudice on motion of the
Secretary.
(c) Actions by the Secretary.--
(1) Administrative action.--The Secretary shall receive,
investigate, and attempt to resolve complaints of violations of
this Act in the same manner that the Secretary receives,
investigates, and attempts to resolve complaints of violations
of sections 6 and 7 of the Fair Labor Standards Act of 1938 (29
U.S.C. 206 and 207), and may issue an order making
determinations, and assessing a civil penalty described in
paragraph (3) (in accordance with paragraph (3)), with respect
to such an alleged violation.
(2) Administrative review.--An affected person who takes
exception to an order issued under paragraph (1) may request
review of and a decision regarding such an order by an
administrative law judge. In reviewing the order, the
administrative law judge may hold an administrative hearing
concerning the order, in accordance with the requirements of
sections 554, 556, and 557 of title 5, United States Code. Such
hearing shall be conducted expeditiously. If no affected person
requests such review within 60 days after the order is issued
under paragraph (1), the order shall be considered to be a
final order that is not subject to judicial review.
(3) Civil penalty.--An employer who willfully and
repeatedly violates--
(A) paragraph (1), (4), or (5) of section 4(c)
shall be subject to a civil penalty in an amount to be
determined by the Secretary, but not to exceed $100 per
violation; and
(B) subsection (b) or (c) of section 5 shall be
subject to a civil penalty in an amount to be
determined by the Secretary, but not to exceed $1,100
per violation.
(4) Civil action.--The Secretary may bring an action in any
court of competent jurisdiction on behalf of aggrieved
employees to--
(A) restrain violations of this Act;
(B) award such equitable relief as may be
appropriate, including employment, reinstatement, and
promotion; and
(C) in the case of a violation of a covered
provision, recover the damages and interest described
in subparagraphs (A) through (C) of subsection (b)(1).
(d) Limitation.--
(1) In general.--Except as provided in paragraph (2), an
action may be brought under this section not later than 2 years
after the date of the last event constituting the alleged
violation for which the action is brought.
(2) Willful violation.--In the case of such action brought
for a willful violation of section 5, such action may be
brought within 3 years of the date of the last event
constituting the alleged violation for which such action is
brought.
(3) Commencement.--In determining when an action is
commenced by the Secretary under this section for the purposes
of this subsection, it shall be considered to be commenced on
the date when the complaint is filed.
(e) Other Administrative Officers.--
(1) Board.--In the case of employees described in section
2(7)(C), the authority of the Secretary under this Act shall be
exercised by the Board of Directors of the Office of
Compliance.
(2) President; merit systems protection board.--In the case
of employees described in section 2(7)(D), the authority of the
Secretary under this Act shall be exercised by the President
and the Merit Systems Protection Board.
(3) Office of personnel management.--In the case of
employees described in section 2(7)(E), the authority of the
Secretary under this Act shall be exercised by the Office of
Personnel Management.
(4) Librarian of congress.--In the case of employees of the
Library of Congress, the authority of the Secretary under this
Act shall be exercised by the Librarian of Congress.
(5) Comptroller general.--In the case of employees of the
Government Accountability Office, the authority of the
Secretary under this Act shall be exercised by the Comptroller
General of the United States.
SEC. 7. NOTICE AND POSTING.
(a) In General.--Each employer shall post and keep posted, in
conspicuous places on the premises of the employer where notices to
employees and applicants for employment are customarily posted, a
notice, to be prepared or approved by the Secretary (or the
corresponding administrative officer specified in section 8) setting
forth excerpts from, or summaries of, the pertinent provisions of this
Act and information pertaining to the filing of a complaint under this
Act.
(b) Penalty.--Any employer that willfully violates this section may
be assessed a civil money penalty not to exceed $100 for each separate
offense.
SEC. 8. REGULATIONS.
(a) In General.--Except as provided in subsections (b) through (f),
not later than 180 days after the date of enactment of this Act, the
Secretary shall issue such regulations as may be necessary to implement
this Act.
(b) Board.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Board of Directors of the Office of
Compliance shall issue such regulations as may be necessary to
implement this Act with respect to employees described in
section 2(7)(C).
(2) Consideration.--In prescribing the regulations, the
Board shall take into consideration the enforcement and
remedies provisions concerning the Board, and applicable to
rights and protections under the Family and Medical Leave Act
of 1993 (29 U.S.C. 2611 et seq.), under the Congressional
Accountability Act of 1995 (2 U.S.C. 1301 et seq.).
(3) Modifications.--The regulations issued under paragraph
(1) to implement this Act shall be the same as substantive
regulations issued by the Secretary to implement this Act,
except to the extent that the Board may determine, for good
cause shown and stated together with the regulations issued by
the Board, that a modification of such substantive regulations
would be more effective for the implementation of the rights
and protections under this Act.
(c) President.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the President shall issue such
regulations as may be necessary to implement this Act with
respect to employees described in section 2(7)(D).
(2) Consideration.--In prescribing the regulations, the
President shall take into consideration the enforcement and
remedies provisions concerning the President and the Merit
Systems Protection Board, and applicable to rights and
protections under the Family and Medical Leave Act of 1993,
under chapter 5 of title 3, United States Code.
(3) Modifications.--The regulations issued under paragraph
(1) to implement this Act shall be the same as substantive
regulations issued by the Secretary to implement this Act,
except to the extent that the President may determine, for good
cause shown and stated together with the regulations issued by
the President, that a modification of such substantive
regulations would be more effective for the implementation of
the rights and protections under this Act.
(d) Office of Personnel Management.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Office of Personnel Management shall
issue such regulations as may be necessary to implement this
Act with respect to employees described in section 2(7)(E).
(2) Consideration.--In prescribing the regulations, the
Office shall take into consideration the enforcement and
remedies provisions concerning the Office under subchapter V of
chapter 63 of title 5, United States Code.
(3) Modifications.--The regulations issued under paragraph
(1) to implement this Act shall be the same as substantive
regulations issued by the Secretary to implement this Act,
except to the extent that the Office may determine, for good
cause shown and stated together with the regulations issued by
the Office, that a modification of such substantive regulations
would be more effective for the implementation of the rights
and protections under this Act.
(e) Librarian of Congress.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Librarian of Congress shall issue
such regulations as may be necessary to implement this Act with
respect to employees of the Library of Congress.
(2) Consideration.--In prescribing the regulations, the
Librarian shall take into consideration the enforcement and
remedies provisions concerning the Librarian of Congress under
title I of the Family and Medical Leave Act of 1993 (29 U.S.C.
2611 et seq.).
(3) Modifications.--The regulations issued under paragraph
(1) to implement this Act shall be the same as substantive
regulations issued by the Secretary to implement this Act,
except to the extent that the Librarian may determine, for good
cause shown and stated together with the regulations issued by
the Librarian, that a modification of such substantive
regulations would be more effective for the implementation of
the rights and protections under this Act.
(f) Comptroller General.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Comptroller General shall issue such
regulations as may be necessary to implement this Act with
respect to employees of the Government Accountability Office.
(2) Consideration.--In prescribing the regulations, the
Comptroller General shall take into consideration the
enforcement and remedies provisions concerning the Comptroller
General under title I of the Family and Medical Leave Act of
1993.
(3) Modifications.--The regulations issued under paragraph
(1) to implement this Act shall be the same as substantive
regulations issued by the Secretary to implement this Act,
except to the extent that the Comptroller General may
determine, for good cause shown and stated together with the
regulations issued by the Comptroller General, that a
modification of such substantive regulations would be more
effective for the implementation of the rights and protections
under this Act.
SEC. 9. RESEARCH, EDUCATION, AND TECHNICAL ASSISTANCE PROGRAM.
(a) In General.--The Secretary shall provide information and
technical assistance to employers, labor organizations, and the general
public concerning compliance with this Act.
(b) Program.--In order to achieve the objectives of this Act--
(1) the Secretary, acting through the Administrator of the
Wage and Hour Division of the Department of Labor, shall issue
guidance on compliance with this Act regarding providing a
flexible, predictable, or stable work environment through
changes in the terms and conditions of employment as provided
in section 3(a); and
(2) the Secretary shall carry on a continuing program of
research, education, and technical assistance, including--
(A)(i) conducting pilot programs that implement
fairer work schedules, including by promoting cross
training, providing three weeks or more advance notice
of schedules, providing employees with a minimum number
of hours of work, and using computerized scheduling
software to provide more flexible, predictable, and
stable schedules for employees; and
(ii) evaluating the results of such pilot programs
for employees, employee's families, and employers;
(B) publishing and otherwise making available to
employers, labor organizations, professional
associations, educational institutions, the various
communication media, and the general public the
findings of studies regarding fair work scheduling
policies and other materials for promoting compliance
with this Act;
(C) sponsoring and assisting State and community
informational and educational programs; and
(D) providing technical assistance to employers,
labor organizations, professional associations, and
other interested persons on means of achieving and
maintaining compliance with the provisions of this Act.
(c) GAO Study.--
(1) Study.--The Comptroller General of the United States
shall conduct a study on--
(A) the impact of difficult scheduling practices on
employees and employers, including unpredictable and
unstable schedules and schedules over which employees
have little control, and particularly how these
scheduling practices impact absenteeism, workforce
turnover, and employees' ability to meet their
caregiving responsibilities;
(B) the prevalence in occupations not described in
section 2(16)(A) of employees routinely receiving
inadequate advance notice of the shifts or hours of the
employees, being assigned split shifts, being sent home
from work prior to the completion of their scheduled
shift without being paid for the hours in their
scheduled shift, being assigned call-in shifts (where
the employee is required to contact the employer, or
wait to be contacted by the employer, less than 24
hours in advance of the potential work shift to
determine whether the employee must report to work), or
being called into work outside of scheduled hours;
(C) the effects on employees in occupations not
described in section 2(16)(A) of providing advance
notice of work schedules, reporting time pay when
employees are sent home without working their full
scheduled shift or are assigned to call-in shifts but
given no work for those shifts, and split shift pay
when employees are assigned split shifts; and
(D) the effects on employers in occupations not
described in section 2(16)(A) of providing advance
notice of work schedules, reporting time pay when
employees are sent home without working their full
scheduled shift or assigned to call-in shifts but given
no work for those shifts, and split shift pay when
employees are assigned split shifts.
(2) Reports.--Not later than 18 months after the date of
enactment of this Act, the Comptroller General of the United
States shall prepare and submit a report to the appropriate
committees of Congress concerning the initial results of the
study conducted pursuant to paragraph (1). Not later than 5
years after the date of enactment of this Act, the Comptroller
General shall prepare and submit a follow-up report to such
committees concerning the results of such study.
SEC. 10. RIGHTS RETAINED BY EMPLOYEES.
This Act provides minimum requirements and shall not be construed
to preempt, limit, or otherwise affect the applicability of any other
law, regulation, requirement, policy, or standard that provides for
greater rights for employees than are required in this Act.
SEC. 11. EXEMPTION.
This Act shall not apply to any employee covered by a bona fide
collective bargaining agreement if the terms of the collective
bargaining agreement include terms that govern work scheduling
practices.
SEC. 12. EFFECT ON OTHER LAW.
Nothing in this Act shall be construed as creating or imposing any
requirement in conflict with any Federal or State law or regulation
(including the Americans with Disabilities Act of 1990 (42 U.S.C. 12101
et seq.), the Family and Medical Leave Act of 1993 (29 U.S.C. 2611 et
seq.), the National Labor Relations Act (29 U.S.C. 151 et seq.), and
title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.)),
nor shall anything in this Act be construed to diminish or impair the
rights of an employee under any valid collective bargaining agreement.
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