The U.S. House of Representatives has passed the “Working Families Flexibility Act of 2013” (H.R. 1406), which would amend the Fair Labor Standards Act of 1938 to allow private employers to provide compensatory time off to employees in lieu of overtime under certain conditions. Representative Martha Roby (R-Alabama) introduced the legislation. The bill was received in the Senate and referred to the Committee on Health, Education, Labor, and Pensions.

The legislation would permit employers to provide compensatory time in lieu of paid overtime at a rate of 1-1/2 hours per hour of employment for which overtime would be required. Employers could provide compensatory time only in accordance with an applicable collective bargaining agreement, or, if the employee is not represented by a union, only if the employer and the employee entered into a knowing and voluntary written agreement providing for such compensatory time before the performance of any work. The agreement could not be required as a condition of employment. 

Under the proposed legislation, employers must give employees 30 days’ notice before ending a compensatory time program, and employees, at any time, may request in writing to be paid for any accrued, but unused, compensatory time. Such payments must be made within 30 days of receiving a request. 

The bill would prohibit employees from accruing more than 160 hours of compensatory time and, after the end of each calendar year, would require employers to pay to employees for any unused compensatory time accrued during the preceding year. Employers also would have to pay accrued compensatory time upon termination of employment. Payments for compensatory time would be made at the employee’s regular rate or final rate of pay, whichever is higher.

Employers would be prohibited from interfering with employees’ rights under the proposed legislation or from requiring employees to use compensatory time. Employers that violated the law would be liable for the amount of the compensation rate for each hour of accrued compensatory time, plus an additional equal amount as liquidated damages.