Loading...
HomeMy WebLinkAboutResolution - 2104 - Trust Fund Agreement - NIMLO - Fair Labor Standards Act - 08/08/1985JCR:cl I7��ilIIiii ilk Resolution #2104 August 8, 1985 Agenda Item #28 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Trust Fund Agreement between the City of Lubbock and NIMLO, to participate in the litigation Trust Fund Agreement with NIMLO where NIMLO agrees to litigate the constitutional implications of Garcia v. San Antonio and its appli- cations to health, fire, police and other government functions, attached herewith, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 1.11201 M etre Boyd, ulty Secrerar APPROVED AS TO CONTENT: 8th day of August , 1985. 7 � Rita Harmon, Assistant City Manager APPROVED AS TO FORM: n C. Ross, Jr., City Altorney Resolution #2104 NIKD FLSA LITIGATION TRUST FUND ACS PZrU N TO: HTE; August 8, 1985 J. IaMR SMUM, PRESIDENT' NATICNAL INSrrjV E CF MUNICIPAL IM OFFICERS 1000 CoNNIDCrICUT AV NCiE, N.W., SUITE 800 WASHnJOT k1, D.C. 20036 The City of Lubbock hereby attaches its deck in the (State, City or County a=Mt of $2,000.00 (according to population _formula sh M on this agreement) payable to Nn�W FLSATLitigation Trust Fund to be placed in a NIMM Trust Fund for use for_the expenses, legal fees, experts and others who are employed by the Trustees to support litigation attacking the provisions of the Fair Labor Standards Act, (FLSA) as inter- preted in Garcia v. San Antonio as to transit workersasmexplained in NMM1 s letter to its members dated May 1., 1985, because of its burdensome, costly and unconstitu- tional impact upon -the City (State, City or County) In addition, the City attaches, or has already forwarded, to (State, City or County) NIMH a statement estimating the total cost to change its personnel records and sche- dules, and to cover increased personnel and overtime costs, of this legislation to the City . If considered necessary by NDW litigation counsel, the (State, City or County) City agrees that an offices of its municipality may act as a witness (State, City or County) at any hearing held by a Court before whan this case may came to find the facts as to the impact of FLSA upon the undersigned _ City If deemed helpful by (State, City or County) said counsel, the name of this City may be entered as an intervenin: (State, City or County) party and the undersigned counsel's name may be signed to pleadings, briefs and other papers in this litigation. All such papers will be cleared with all counsel before they are filed if time permits. Population of Participating Jurisdiction Suggested Trust Fund Payment 25,000 and Under $ 500 25,001 - 50,000 $ 11000 50,001 - 200,000 $ 2,000 200,001 - 500,000 $ 3,000 500,001 - 1,000,000 $ 7,500 : Over 1,000,000 $15,000 City of Lubbock MAYOR: Participating Jurisdiction John C. Ross, Jr., City Attorney Name, Title and Signature of Authori2 Counsel P.O. Box 2000, Lubbock, Texas 79457 (806) 762-6411, Ext. 2211 Mailing Address and Telephone Number of Authorized Counsel Please said in the signed "agreement" at your earliest convenience. e� hwt-d4ey, -0-11 . LaMarShelley NIDA President 1984-85 MONDAY, JULY 15, 1985 THE WASHINGTON POST Supreme Court Ruling G-o-stlyto Localitif OV, k6e layoffs, reduced services imam wage services from their em- Conte aides say the m or higher taxes. Officials in the La- pbyes. Crossing guards—frequent- urs would be opposed by organ Rulingt�y a>� Department and the White ly senior citizens working for little labor, and would stand little ch House say theyhave been flooded or no pay—will have to paid at least of passage in the Democratic. with calls and letters from mayors a minimum wage, for instance. This trolled House of Representative worried about the impact of the rul- provision is expected to hurt small "What happens on the House TO Lomliti(s ing an their budgets. towns, which frequently depend on depends on how much pressure Local governments attacked the volunteer workers to -a large de- can gin up," said one Senate e rating when it was announced, but who would like to see the Ci U t0 $1, Million � �y � only now beginning to gam' • Municipalities may have to decision undone by Congress. add up the likely casts as their bud- pay politically I Just don't think we �' get and personnel officers supply substantial sums of overtime wages do it . Expense fOT DI.StT1Ct them with more precise estimates. to police recruits in academies who Susan Meis' r "We are just now getting a handle devote long hours to their training. inge , deputy un on it, and it is very difficult," said "We've heard of an instance where secretary for employment s Bye Donald .Weinberg, the District's tmmces are paid at a higher rate dards in the Labor Deparm director of labor relations. "It is than police captains," said a White said she believes, legislation is A recent Supreme Court ruling causing a real problem." House official. The official, who sible. "There's a growing con, forcing state and local governments District officials say the impact of . asked not to be identified, said the about the impact,* she said. "V to adhere to federal wage and hour the ruling here will not be as severe likely effect in that instance would happens depends on how hard s laws will add $10 million to $15 as in some other large cities be- be a cutback in training time for and local governments push." million a year to the costs of oper- cause Washington already pays police officers. In a speech to the American ating the D.C. government and hun- overtime to many of its employes. s Public employes in some rural Association last week, Atto, dreds of thousands of dollars to sub- "If there are no other pressures jurisdictions who saved compensa- General Edwin Meese III bla urban governments, area officials then it is clearly manageable," said tory time by working long hours in the court for the Garcia ruling, say. Betsy Reveal, the District's budget the winter so they could plant their claring that it "undermines the That is only a small portion of director. But it cannot be seen m crops in the spring will be unable to bility" of state and local gov what is now estimated to be the tion. In combination with other overall $2 billion to $4 billion cost pp4maures it could cause problems." continue that practice. melts. to state and local governments from Tj District's annual payroll is • In Puerto Rico, implementing the Tcomply with the ruling, Angeles les will have to pay $100 the rating that forces the govern- abdtit $850 million. act is expected to cost millions of lion a year; San Francisco, $50 ments to pay overtime wages to V*Jer guidelines for the Fair La- dollars because the government lion, and New York, $40 million most of their workers instead of bon StandardA„ vrMict�clate and must start paying the minimum giving them compensatory time off. local governme snow must follow, wage to public employes who have cording to Cynthia M. Pols, cou "It's too much. money," com- police must receive overtime pay if been earning less. to the National League of Cities plained attorney Gilbert J. Gins- they work more than 171 hours in a Officials also express fears -of cur- Many municipalities are in burg, a labor lawyer who is an ad- 28 -day period. For firefighters, tailed work by public safety employ- process of determining how n viser to many cities, including Al- overtime must be paid after- 212 es, and cite the case of four D.C, of their workers are covered by exandria and New York. ! bours. homicide detectives whose inves- federal guidelines and how n The ruling "hits very, very hard Blue-collar employes in public 'ligation of a murder was cut short are not. Some personnel offi and is a burden," said Cornelius J. works as well as clerical and tech- last week to avoid paying them acknowledge privately that in O'Kane, Fairfax County's personnel nical employes, many of whom com- overtime. The incident occurred derline cases where there is r director. Officials there estimate monly work overtime hours, would shortly after police officials had cir- for discretion, governments the court's Feb. 19 ruling wilt cost also be covered. Teachers, as pro- culated a memorandum outlining tend to classify workers as exe Fairfax taxpayers $500,000 to Yessiooa) employes, are excluded steps to comply with the ruling. from the law, and therefore i $1 million a year. from coverage under the law. "There's an increasing degree of gible for premium pay. Most of the added costs will The Supreme Court ruing came alarm about the costs and the dis- State and local government come in overtime to police and fire- in a case known as Garcia n. San _ruption, both of which will be sub- ficials' also are afraid of the eft fighters,- who in the past have Antonio Metropolitan Transit Au- stantial," said the White House of - earned substantial amounts of com- ; thority on the question of whether ficial. of a provision in the federal law pensatory time off. overtime provisions in the act apply Congressional hearings on the is- allows employes to bring pri For example, one immediate im- sue are scheduled for July 25, and lawsuits to recover back over p to municipal workers. pact of the ruling is in western Joseph Garcia. a bus driver in San three governors as well as a host of pay. Because the court's ruling Antonio, had brought suit against states such as California, where local officials are expected to raise effective April 15, any munio thousands of firefighters will be col- the city, challenging its practice of the prospect of budget -busting ex- worker who wants to collect o lectinpay for battling the forest fires that pae-and-a-half' overtime ying time -and -a -half overtime Groups ups such as enses because of the therNational As- do so. along with time since that a penalty doe will be u only when bus drivers worked on Y were out of control in that region sociation of Counties ,and. the Na- the a line a ,�.,.,�„ last week. Paying the California their days off or on holidays. For all tional League -of Cities also are in-ronica y. a lough labor u firefighters overtime wages, rather other overtime hours worked, bus ' creasing pressure on the Reagan officials initially were elated by than compensating them with time drivers were paid at the normal administration to introduce legis- Supreme Court decision in Fe off later, will cost $10 million to hourly rate. The' city said it should lation that would repeal overtime any, some are now acknowled $20 million, according to James D. be exempt from the act; Garcia, provisions of the Fair Labor Stan- that their members are unh Mosman, the state's director of backed by labor unions, said it dards Act and effectively neutralize about losing compensatory time personnel administration, should not. the fiscal impact of the Supreme Cities, which are expected to be The 5 -to -4 high court ruling has Court's ruling. hit the hardest when the Labor De- diverse implications. For example: The White House official ac- partment starts enforcing the court ■ Municipalities will no longer be knowledged that the administration n1liina Oct. I ri orn rnicina the nnc- em,. to mrront vnhfntPPr nr quhmin- is considering backing such a bill. PHIL GRAMM TEXAS - ' �J �"r if eb ziates .senate WASHINGTON. D.C. 20510 July 29, 1985 Ms. Ranette Boyd P.O. Box 2000 Lubbock, Texas '79457 Dear Ms. Boyd: Resolution #2104 4 5 4&G 1985 "qfC,r� 4e,,,tr #® Thank yC't for C^TltaC`s.in me 3�3^:tt the i??mrc�_+ of the recent Supreme Court ruling in the case of Garcia v. San Antonio Metropolitan Transit Authority on state and local governments. I share your concern over the far-reaching implications of the Court's decision in Garcia and, as a result, have cosponsored legislation (S. 1434 which would relieve state and local governments and their employees from the maximum hour provisions of the Fair Labor Standards Act (FLSA). The legislation would exempt states and their political subdivisions from the FLSA mandatory time and one-half pay for overtime hours provisions, allowing employees of state and local governments to receive compensatory time -off in lieu of overtime pay, if negotiated in their contracts with their respective employers. S. 1434 does not, however, exempt state of local governments from the other FLSA provisions. I have also contacted William Brock, Secretary of Labor, to express my interest in that Department's plans to implement the FLSA as a result of the Court decision. You may be sure that I will do everything in my power to ensure that the state of Texas and its municipalities are not harmed by the Court's decision. I appreciate having the opportunity to work with you on behalf of the people of Texas. If I can ever be of service to you, please let me.,know. Yours sipectfully, , PHIL GRAMM United States Senator PG; mksr PHIL GRAMM TEXAS Resolution #2104 ,j � Z anate Ms. Ranette Boyd P.O. Box 2000 Lubbock, Texas 79457 Lear Ms. Boyd: WASa NGTON. D.C. 2OSiO October 30, 1985 '. P -J i.'- v ! 985 RECEIV[ L SECRETARY Knowing of your interest in the ap liva-,. ;n of the Far Labor Standards Act (FLSA) to :Mate and local government employees as a result of the Supreme Court's Garcia decision, you will be pleased to know that on October 24 the Senate passed the Fair Labor Standards Public Employee Overtime Compensation Act, S. 1570, which overturns the Court's decision. Similar legisla- tion was passed by the House of Representatives on October. 28. As you know, I cosponsored S. 1570, which makes compensatory time available to state and local employees in lieu of overtime pay and allows employees to continue volunteer work. The effective date of the legislation is April 15, 1986, to allow state and local governments the time needed to achieve compliance. Secre- tary of Labor William Brock has advised that the Department of Labor will defer overtime liability for traditional state and local government functions until the effective date. You may be sure I will continue my efforts to see that the onerous require- ments of Garcia are amended to allow the smooth functioning of our state and local governments. Yours Aspectfully, PHIL GRAMM United States Senator PG/mksm S f LARRY COMBEST 19TH DISTRICT, TEXAS COMMITTEE ON AGRICULTURE SUBCOMMITTEES: oatgrego of tjeite�tate� COTTON, RICE AND SUGAR ��" DEPARTMENT OPERATIONS, RESEARCH AND FOREIGN AGRICULTURE ouze ofere�entatibe� TOBACCO AND PEANUTS Wnbington, MC 20515 November 15, 1985 Ms. Ranette Boyd City Secretary City of Lubbock Post Office Box 2000 Lubbock, Texas 79+57 Dear Ranette: OFFICES: Room 1529 LONGWORTH HOUSE OFFICE BUILDING WASHINGTON, DC 20515 (202) 225-4005 Room 613 FEDERAL BUILDING LUBBOCK, TX 79401 (606) 763-1611 ROOM 201 400 WEST 4TH STREET ODESSA, TX 79761 (915) 337-1669 Knowing of your interest in the Garcia v. San Antonio Supreme Court decision, I am writing to update you on legislation recently passed by Congress to modify some of the effects of the decision. As you know, numerous legislative proposals were introduced to alleviate some of the most costly results of compliance with the Fair Labor Standards Act (FLSA). After numerous meetings between state and local officials and labor representatives, compromise legislation was drafted and approved overwhelmingly by both the House and Senate. The major provisions of the measure include an exemption from FLSA compliance for volunteers and an option for employers to pay overtime wages or award compensatory time -off for hours worked in excess of a regular workweek. A cap is imposed on the amount of compensatory time that can be accrued, and once the cap has been reached, any overtime hours must be compensated with overtime wages. Volunteers are exempt from compliance with FLSA requirements and government employees may perform volunteer work without affecting their regular work hours. A copy of the conference committee's report is enclosed for your information. The President signed the legislation on November 13, and FLSA compliance for state and local governments will be required as of April 15, 1986. The Department of Labor will not enforce compliance before that time, and no retroactive wages will be awarded. Although this compromise measure is not an ideal solution, I believe that it represents a worthy compromise. Your input in this matter was greatly appreciated. LC/lb Enclosure Sincerely, VOJVLA� Larry o best 1119640, CONGRESSIONAL RECORD — HOUSE November 1, 1985 Rahall Rangel Ray Regula Reid Richardson Ridge Rinaldo Ritter Roberts Robinson Rodin Roe Roemer Rogers Rose Rostenkowski Roukema Rowland (CT) Rowland (GA) Roybal Russo Sabo Savage Saxton Scheuer Schneider Schroeder Schuette Schulze Schumer Seiberling Sharp Shaw Shelby Shuster Archer Armey Bartlett Barton Bliley Brown (CO) Burton (IN) Chapple Cheney Coats Cobey Craig Crane Dannemeyer Daub Delay Dornan (CA) Dreier Fawell Fiedler Fields Sikorskl Sisisky Skeen Skelton Slattery Slaughter Smith (FL) Smith (IA) Smith (NE) Smith (NJ) Smith, Robert (OR) Snowe Snyder Solarz Spence Spratt St Germain Staggers Stallings Stenhoim Stokes Stratton Studds Sundquist Sweeney Swift Swindall Synar Tallon Tauke Tauzin Taylor Thomas (GA) Tones Torricelli NAYS -61 Franklin Frenzel Gingrich Gregg Hartnett Henry Hiler Hopkins Hubbard Hunter Hyde Kolbe Kramer Lewis (CA) Lowery (CA) Lungren Mack McCandless Molinari Monson Moorhead Towns Traficant Traxler Udall Valentine Vander Jagt Vento Visclosky Volkmer Walgren Watkins Waxman Weaver Weiss Wheat Whitley Whittaker Whitten Williams, Wilson Wirth Wise Wolf Wolpe Wortley Wright Wyden Wylie Yates Yatron Young<AK) Young<FL) Young (MO) 7schau Nielson Oxley Packard Roth Rudd Schaefer Sensenbrenner Shumway Sil jande r Smith, Denny (OR) Smith, Robert (NH) Solomon Stangeland Strang Stump Thomas (CA) Vucanovich Walker Weber NOT VOTING -16 Addabbo Hansen Morrison (CT) Badham Hatcher Neal Barnes Holt Stark de Is Garza Lundin Whitehurst Florio Marlene Fowler McEwen ❑ 1710 So the bill was passed. The result of the vote was an- nounced as above recorded. A motion to reconsider was laid on the table. CONFERENCE REPORT ON S. 1570, FAIR LABOR STANDARDS AMENDMENTS OF 1985 Mr. HAWKINS submitted the fol- lowing conference report and state- ment on the bill (S. 1570) to amend the Fair Labor Standards Act of 1938 to provide rules for overtime compen- satory time off for certain public agency employees, to clarify the appli- cation of that act to volunteers, and for other purposes: CONFERENCE REPORT (H. REPT. 99-357) The committee of conference on the dis- agreeing votes of the two Houses on the amendments of the House to the bill (S. 1570) to amend the Fair Labor Standards Act of 1938 to provide rules for overtime compensatory time off for certain public agency employees, to clarify the application of that Act to volunteers, and for other pur- poses, having met, after full and free confer- ence, have agreed to recommend and do rec- ommend to their respective Houses as fol- lows: That the Senate recede from its disagree- ment to the amendment of the House to the text of the bill and agree to the same with an amendment as follows: In lieu of the matter proposed to be in- serted by the House amendment insert the following: SHORT TITLE, REFERENCE TO ACT SECTION 1. ta) SHORT TITLE.—This Act may be cited as the `Fair Labor Standards Amendments of 1985". tb) REFERENCE TO ACT.—Whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be a reference to a sec- tion or other provision of the Fair Labor Standards Act of 1938. COMPENSATORY TIME SEC. 2. (a) COMPENSATORY TIME.—Section 7 (29 U.S.C. 207) is amended by adding at the end the following. "to)(1) Employees of a public agency which is a State, a political subdivision of a State, or an interstate governmental agency may receive, in accordance with this subsec- tion and in lieu of overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensa- tion is required by this section. '(2) A public agency may provide compen- satory time under paragraph (1) only— "(A) pursuant to— "(i) applicable provisions of a collective bargaining agreement, memorandum of un- derstanding, or any other agreement be- tween the public agency and representatives of such employees, or "(ii) in the case of employees not covered by subclause (i), an agreement or under- standing arrived at between the employer and employee before the performance of the work, and "(B) if the employee has not accrued com- pensatory time in excess of the limit appli- cable to the employee prescribed by para- graph (3). In the case of employees described in clause W(ii) hired prior to April 15, 1986, the regu- lar practice in effect on April 15, 1986, with respect to compensatory time off for such employees in lieu of the receipt of overtime compensation, shall constitute an agree- ment or understanding under such clause (A)(ii). Except as provided in the previous sentence, the provision of compensatory time off to such employees for hours worked after April 14, 1986, shall be in accordance with this subsection. "(3)(A) If the work of an employee for which compensatory time may be provided included work in a public safety activity, an emergency response activity, or a seasonal activity, the employee engaged in such work may accrue not more than 480 hours of com- pensatorl time for hours worked after April 15, 1986. If such work was any other work, the employee engaged in such work may accrue not more than 240 hours of compen- satory time for hours worked after April 15, 1986,. Any such employee who, after April 15, 1986, has accrued 480 or 240 hours, as the case may be, of compensatory time off shall, for additional overtime hours of work, be paid overtime compensation. '911) If compensation is paid to an em- ployee for accrued compensatory time off, such compensation shall be paid at the regu- lar rate earned by the employee at the time the employee receives such payment. "(4) An employee who has accrued com- pensatory time off authorized to be provided under paragraph (1) shall, upon termina- tion of employment, be paid for the unused compensatory time at a rate of compensa- tion not less than— `(A) the average regular rate received by such employee during the last 3 years of the employee's employment, or "(B) the final regular rate received by such employee, whichever is higher. "(5) An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency— "(A) who has accrued compensatory time off authorized to be provided under para- graph (1), and " (B) who has requested the use of such compensatory time, shall be permitted by the employee's employ- er to use such time within a reasonable, period after making the request if the use of the compensatory time does not unduly dis- rupt the operations of the public agency. `(6) For purposes of this subsection— "(A) the term overtime compensation' means the compensation required by subsec- tion (a), and `(B) the terms `compensatory time' and `compensatory time off' mean hours during which an employee is not working, which are not counted as hours worked during the applicable workweek or other work period for purposes of overtime compensation, and for which the employee is compensated at the employee's regular rate.': (b) EXISTING COLLECTIVE BARGAINING AGREEMENTS.—A collective bargaining agree- ment which is in effect on April 15, 1986, and which permits compensatory time off in lieu of overtime compensation shall remain in effect until its expiration date unless oth- erwise modified, except that compensatory time shall be provided after April 14, 1986, in accordance with section 7(o) of the Fair Labor Standards Act of 1938 (as added by subsection (a)). (c) LIABILITY AND DEFERRED PAYMENT.—(1) No State, political subdivision of a State, or interstate governmental agency shall be liable under section 16 of the Fair Labor Standards Act of 1938 for a violation of sec- tion 6 (in the case of a territory or posses- sion of the United States), 7, or 11(c) (as it relates to section 7) of such Act occurring before April 15, 1986, with respect to any em- ployee of the State, political subdivision, or agency who would not have been covered by such Act under the Secretary of Labor's spe- cial enforcement policy on January 1, 1985, and published in sections 775.2 and 775.4 of title 29 of the Code of Federal Regulations. (2) A State, political subdivision of a State, or interstate governmental agency may defer until August 1, 1986, the payment of monetary overtime compensation under section 7 of the Fair Labor Standards Act of 1938 for hours worked after April 14, 1986. SPECIAL DETAILS, OCCASIONAL OR SPORADIC EMPLOYMENT, AND SUBSTITUTION SEC. 3. (a) SPECIAL DETAIL WORK FOR FIRE PROTECTION AND LAw ENFORCEMENT EMPLOY- EES.—Section 7 (29 U.S.C. 207) is amended by adding after subsection fol (added by sec- tion 2) the following. "(p)(1) If an individual who is employed by a State, political subdivision of a State, or an interstate governmental agency in fire protection or law enforcement activities tin - November 2, 14'85 - CONGRESSIONAL RECORD — � OUSE eluding activities of security personnel in correctional institutions) and who, solely at such individual's option, agrees to be em- ployed on a special detail by a separate or inr--pendent employer in fire protection, law enforremmt or related activities, the *lours such individual was emptoyed by such separate and independent employer shall be excluded by the public ageency employing such individual in the calculation of the hours for which the employee is entitled to overtime compensation under this section if the public agency -- "(A) requires that its employees engaged in fire protection, law en iorceament, or security activities be hired by a separate and inde- pendent employer to perform the spejeW detail, "(BJ facilitates the employment of such employees by a separate and independent e:Taplo'yer, or "(C) otherwise affects the condition of eat- ployrsent of such employees by a separate and independent employer.". (b) OCCASIONAL OR SPORAnlC EMPLOY- uENT—Section 7(p) (29 U.S.C. Z07), as added by subsections (a/, is amended by adding at the end the )allou*W "(21 kf an emplay(ee of a public agency which is a State, political subdivision of a State, or an interstate" governmental agency z,.-ndertakes, on an occasional or sporadic h:zsis and solely at the employees option, part-time empioymsent for tete public agency; which is in a different capacity Prem am capacity in which the employee is regularly. employed with the public agency, the hours such employee was emptoyed in performiW the different employment shall be excluded by the public agency in the calculation of Ike hours for which the amployce is entitled to overtime compensation under this sec - lion. ". (c) SUBsTiTuTrox—(1) Section 7(p) (29 U.S.C. 207), as amended by susbection (b), is amouied by adding at the eyed the Mlowing.* "(3) If an individual who is employed in any capacity by a public agency which is a State, political subdivision of a State, or an interstate govensmental agency, agrees, with the approval of the public agency, and solely at the option of such individual;, to substi- tute during scheduled work hemrs for 4R - other individual who is employed by such agency in the same Capacity, the hours such f,mployee worked as a substitute shell be ea- cJuded by the public agency in the calcuLa- tion of the hours for which the employee is vatitb,d to overtime compensation under 'his section.': (2) Section 11(c) (Z9 U..S.C. Z11(ctJ is amended by adding at the end the f©llowing. -77" employer of an employee who perforn a substitute work described in section 7(pl(3) tray not be required under this subsection to keep a record of the hours of the substitute i •orL " VOLUNTEERS SEc. a. (a) DEFrsmoN.—Section 3(e) (29 U.S.C. 203(e)) is amended— (1) by striking out "Paragraphs (2l and �3)" in paragraph (I)and inserting in lieu thereof ' paragm-phs (2k f3), and (4)", and (2) by adding at the end the following: "(1)(A) The terra employee' does not in- clude any individual who volunteers to per- 'brnz services for a public agency which is a tate, a political subdivision of a State, or an interstate governmental agency; if— ­(i) the individual receives no compensa- tion or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and "tii) such services are not the same type of services which the individual is employed to perform for such public agency. "(B) An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency mar volunteer to perform, services ,for any other State; political subdivision, or inter- state governmental agency, including a State, political subdivision or agency with which the employing State; political subdi- vision, ubdfvision, or agency has a mutual aid agree- ment. (b) REGm.Arrom.—Not later than March 15, 1980 the Secretary of Labor shall issue regulations to carry out paragraph (4) of section. 3(e) (as amended by subsection (a) of this seetionl. (c) CURRENT PRAcncE. —If, before April 15, 1986, the practice of a public agency was to treat certain individuals as volunteers, such individuals shall until April 15, 1986, be considered, for purposes of the Fair Labor Standards Act of 1938, as volunteers and not as employees. No public agency which is a State, a political subdivision of a State, or an interstate governmental agency shall be lid fear a violation of section 6 occurring before April 15,1986, with respect to services deemed by that agency to have been per- formed for it by an individual an a volun- tary basis. STATE AND LOCAL LECt.'SLA.TIVS" EMPLOYEES Sac. 5. Clause (ii) of section 3(eHVW) (29 U.S.0 203(el (21(0l is amended (1) by striking out "Orr" at the end of sub- clause (Ill), (21 by striking oul "who" in subclause (IV), (3) by strking out the period at the end of subclause (IV) and inserting in lieu thereof ,or" and (4) by adding after subclause (11") the fel- lowing. "(V) is an employee in the legislative branch or legislative body of that Slate, po- litical subdivision, or agency and is not em- ployed by the legislative library of such State, political subdfvisimm or agency.". EFFECTdVE DATE Sr= 6. The amendments mads by this Act shall take effect April 15, 1986. The Secretary of Labor shall before such date promulgate such regulations as may be required to im- plement such amendments. EFFECT of AMENDMENTS SEC. 7. The amendments made by this Act shall not affect whether a public agency which is a State, political subdivision of a State, or an interstate governmental agency is liable under section 16 of the Fair Labor Standards Act of 1938 for a violation of sec- tion 6, 7, or 11 of such. Act occurring before April 15, 1986, with respect to any employee of such public agency who would have been covered by such Act under the Secretary of Labor's special enforcement policy on Janu- ary 1, 1985, and published in section 775.3 of title 29 of the Code of Federal Ixgulations. DISCRIMINATION SCC. 8. A public agency which is a State, political subdivision of a State, or an inter- state governmental agency and which dis- criminates or has discriminated against an employee with respect to the employee's wages or other terms or conditions of em- ployment because on or after February 19, 1985, the employee asserted coverage under section T of the Fair Labor Standards Act of 1938 shalt be held to have violated section 15(aH3) of such Act. The protection against discrimination afforded by the preceding sentence shall be available after August 1, 1986, only for an employee who takes an action described in section 15(al(3J' of such ACL And the House agree to the same. That the Senate recede from itis disagree- ment to the amendment of the House to the title of the bill and agree to the same. AuousTus F. HAWKINB, H"41 Avsnlr J. ldm Ny, W.L. CLAr; PAT WILLIAMS, JAMES M. JEFFORDS,. TOM PETRI. STEVE BARTLETT, Managers on the Part of the House. ORRIN G. HATCH, DO* NICKLES, ROBERT T. STAFFORD, HOWARD hL METZENBAUM. EDwAim M. KENNEDY, Managers on the Part of the Senate - JOINT EXPLANATORY STATLNMWr OF THE COMMITTEE OF CONFERENCE The managers on the part of the House and the Senate at the conference on the dis- agreeing votes of the two Houses on the amendments of the House to the bill (S. 1570) to amend the Fair Labor Standards Act of 1938 to provide rules for overtime compensatory time off for certain public agency employees, to clarify the application of that Act to volunteers, and for other pur- poses, submit the following Joint statement to the House and the Senate in explanation of the effect of the action agreed upon by the managers and recommended in the ac- companying conference report: The House amendment to the text of the bill struck out all of the Senate bill after the enacting clause and inserted a substi- tute tent. The Senate recedes from its disagreement to the amendment of the House with an amendment which is a substitute for thL S Late bill and the House amendment. The differences between the Senate bill, the House amendment, and the substitute agreed to in conference are noted helow, except for clerical corrections, conforming changes made necessary by agreements reached by the conferees, and minor draft- ing and clarifying changes. PAYMENT Poli COMPENSATORY TIME Lr'ON TEAMLNATIOR OF EAHPLOYMENT The Senate bill provides that upon termi- nation of emptoyment an employee shall be paid for unused compensatory time at the final regular rate received by such employ- ee. The House amendment prewidedd that pay- ment for unused compensatory time is to be, at a rate not Iess than the average regular rate received by an employee during the last 3 years of the employee's employment. The conference substitute combines the Senate and House provisions to provide that payment for unused compensatory time is to be at a rate not less than— (1) the average regular rate received by an employee during the last 3 years of the em- ployee's employment, or (2) the final regular rate received by an employee, whichever is higher. SCOPE OF SUBSTITUTE RILL Under the Senate bilk the rules for the treatment of hours of substitute employ- ment apply to, employees of a public agency engaged in the same activity. Under the House amendment the rules for the treatment of hours of substitute em- ployment apply only to employees engaged in fire protection or law enforcement activi- ties (including activities of security person- nel in correctional institutions). The conference substitute is the same as the Senate bill. COMPENSATORY TIME LIMIT Under the Senate bill an employee may not accrue more than 480 hours of compen- satory time. Under the House amendment if the work. of an employee included work in a public H 9642 CONGRESSIONAL RECORD -- HOUSE November 1, 1985 safety activity!; an emergency response activ- ity, or a seasonal activity the employee may accrue not more than 480 hours of compen- satory time. An employee engaged in any other work may accrue not more than 180 hours of compensatory time. The conference substitute provides that if the work of an employee included work in a public safety activity, an emergency re- sponse activity, or a seasonal activity the employee may accrue not more than 480 hours of compensatory time. An employee engaged in any other work may accrue not more than 240 hours of compensatory time. SCOPE OF PROTECTION AGAINST DISCRIMINATION The Senate bill prohibits discrimination as defined by section 15(a)(3) of the Fair Labor Standards Act of 1938. The House amendment prohibits discrimi- nation with respect to wages or other terms or condittons of employment. The conference substitute adopts the House amendment with the following un- derstandings as to the scope of protection provided by the House amendment: The antidiscrimination provision is meant to apply where one or more employees are singled out for adverse treatment in retalia- tion for an assertion that they are covered by the overtime provisions of the FLSA. The provision also is intended to apply where an employer's response to the asser- tion of FLSA coverage is to reduce wages or other monetary benefits for an entire unit of employees. In either instance, the actual victims of discrimination must show that coverage was asserted and they also must show actual discrimination, i.e., that the em- ployer's action constituted retaliation for the employee or employees' assertion of cov- erage and avoidance of the asserted protec- tions of Federal law. If a court so finds, that conduct would be unlawful under section 8. An employer's adjustment of work sched- ules to reduce overtime hours would not constitute discrimination under this provi- sion so long as it was not undertaken to re- taliate for an assertion of coverage. Such an adjustment is permissible under the Act but it does not supersede applicable require- ments of State law or a collective bargaining agreement. An employer who, after February 19, 1985, paid cash overtime at a time and one-half rate pursuant to the FLSA may not recoup these overtime payments from his employ- ees by whatever means without violating section 8. State and local government em- ployers are in no way obligated to comply with the Act's overtime provisions prior to April 15, 1986. But as stated in both Com- mittee reports, nothing in this legislation, particularly the deferred effective date, is intended to encourage employers to post- pone efforts to comply with the Act. Permit- ting employers who have voluntarily com- plied prior to April 1986 to negate their past compliance effort at some future date by re- capturing from their employees payments, already made would have precisely the effect that we intended to foreclose. Such Permission also would allow unscrupulous employers to use the threat of recoupment to pressure or otherwise manipulate em- ployees. Section 8 was meant to prohibit such retributive action. A unilateral reduction of regular pay or fringe benefits that is intended to nullify 'This legislative application of overtime com- pensation to State and local government employees is unlawful. Any other conclusion would in effect invite public employers to reduce regular rates of pay shortly after the date of enactment so as to negate the preml- um compensation mandated by this legisla- tion. The compensatory time and deferred effective date provision of these amend- ments are to relieve the economic impact of having to comply with the FLSA's premium rate requirements for overtime. Having pro- vided for this relief, we agreed to preserve the same premium rate requirement that has been a part of the FLSA for nearly 50 years. We did not, at the same time, author- ize employers to undermine that premium rate with impunity. In what we view as anal- ogous circumstances, DOL regulations ex- plicitly condemn employer efforts to adjust or recalculate regular rates of pay so as to evade the overtime requirements of the Act. (29 CFR 778.500). This provision is not intended to prohibit State or local government employers from adjusting rates of pay at some later point in response to fiscal concerns not directly at- tributable to the impact of extending FLSA coverage to their employees. This provision is intended to remain neu- tral with respect to any action by employees challenging the lawfulness of an employer's unilateral reduction of regular pay or fringe benefits instituted prior to enactment of these amendments. TIME LIMIT ON PROTECTION AGAINST DISCRIMINATION Section 6 of the Senate bill limits the pro- tection against discrimination to the period February 19, 1985, through April 15, 1986. Under section 8 of the House amendment the protection against discrimination is lim- ited to on or after February 19, 1985. The conference substitute is the same as the House amendment with one modifica- tion. After August 1, 1986, an employee must assert coverage pursuant to section 15(a)(3) of the Act in order to be entitled to the protection against discrimination pro- vided by the House amendment. LIABILITY OF TERRITORIES AND POSSESSIONS ' FOR VIOLATIONS OF SECTION 8 Under the Senate bill and the House amendment public agencies are shielded from liability for violations of section 7 of the FLSA which occur before the effective date, April 15, 1986. The conference substi- tute provides the same shield with regard to violations of section 6 of the FLSA for terri- tories and possessions of the United States. AUGUSTUS F. HAWKINS, AUSTIN J. MURPHY, W.L. CLAY, PAT WILLIAMS, JAMES M. JEFFORDS, TOM PETRI, STEVE BARTLETT, Managers on the Part of the House. ORRIN G. HATCH, DON NICKLES, ROBERT T. STAFFORD, HOWARD M. METZENBAUM, EDWARD M. KENNEDY, Managers on the Part of the Senate. LEGISLATIVE PROGRAM (Mr. MICHEL asked and was given permission to address the House for 1 minute.) Mr. MICHEL. Mr. Speaker,I have taken this time for the purpose of in- quiring of the distinguished minority leader as to the program for the bal- ance of the day and the program for next week. Mr. WRIGHT. If my distinguished friend from Illinois, the minority leader, would yield to me. Mr. MICHEL. I am happy to yield to the distinguished majority leader, the gentleman from Texas [Mr. WRIGHT]. Mr. WRIGHT. Mr. Speaker, this would complete our -legislative sched- ule for, the day and week. Monday, we would meet at noon. We hope not to have votes on Monday, but I think Members should be ad- vised it may be necessary for them to be present on Monday in order that we may take up votes at that time. The only vote that would require our having a recorded vote would be in the event the other body might have acteSi upon one of the bills just passed and amended it and sent it back to us. In that case, Members should be ad- vised that it would be in order for a motion to be made to agree to that amendment or to agree to that amend- ment with an amendment. Mr. Speaker, I do not think any Member would want to be absent if that were to occur. Therefore, all I can do, in candor, is suggest that the Members should plan to be here Monday at noon. It would be our purpose, if there is no motion of that type from the other body, to proceed in order, - We would take up the suspensions. There are three of them listed: House Joint Resolution 36, Memorial to Women Who Served In or With the Armed Services; House Joint Resolu- tion 142, Memorial Honoring Certain Black Americans in the American Rev- olution; and H.R. 2055, Korean War Memorial. ❑ 1725 We would postpone those votes until either Tuesday or Wednesday. We had hoped not to have votes prior to 2 o'clock on Tuesday in order to facilitate the convenience of Mem- bers whose States have primaries on next Tuesday. Once again, I must advise Members that they ought to follow what is hap- pening. You will read about it in the newspaper if the other body should pass our legislation on the debt ceiling extension in a form that would require our acting on it Monday or Tuesday. In any event, on Tuesday we would want to adopt the rule and do the gen- eral debate on the Water Resources Act of 1985, and for the remainder of the week, Wednesday, Thursday, and Friday, if necessary, we would take up the Water Resources Act and complete its consideration. That would be the only business we have scheduled for next week except, of course, that conference reports may be considered at any time, and this program will be subject to change. Mr. MICHEL. Mr. Speaker, Let me hypothesize for axnoment. If the other body, which I under- stand just a few moments ago began debating the conference report on the measure earlier today, fails to come to any agreement today, but maybe con- ceivably by Monday decided, as they are going to be in session Monday, I understand, probably not tomorrow, but on Monday, and if they were to LARRY COMBEST J9TH DISTRICT, TEXAS COMMITTEE ON AGRICULTURE SVSCOMMIT EES: COTTON, RICE AND SUGAR DEPARTMENT OPERATIONS, RESEARCH AND FOREIGN AGRICULTURE TOBACCO AND PEANUTS Ms. Ranette Boyd City Secretary City of Lubbock Post Office Box 2000 Lubbock, Texas 791457 Dear Ranette: Knowing of your interest in the Garcia v. San Antonio Supreme Court decision, I am writing to update you on legislation -recently passed by Congress to modify some of the effects of the decision. As you know, numerous legislative proposals were introduced to alleviate some of the most costly results of compliance with the Fair Labor Standards Act (FLSA). After numerous meetings between state and local officials and labor representatives, compromise legislation was drafted and approved overwhelmingly by both the House and Senate. The major provisions of the measure include an exemption from FLSA compliance for volunteers and an option for employers to pay overtime wages or award compensatory time -off for hours worked in excess of a regular workweek. A cap is imposed on the amount of compensatory time that can be accrued, and once the cap has been reached, any overtime hours must be compensated with overtime wages. Volunteers are exempt from compliance with FLSA requirements and government employees may perform volunteer work without affecting their regular work hours. A copy of the conference committee's report is enclosed for your information. The President signed the legislation on November 13, and FLSA compliance for state and local governments will be required as of April 15, 1986. The Department of Labor will not enforce compliance before that time, and no retroactive wages will be awarded. Although this compromise measure is not an ideal solution, I believe that it represents a worthy compromise. Your input in this matter was greatly appreciated. Sincerely, Larry drm best LC/lb Enclosure OFFICES: Room 1529 LONGWORTH HOUSE OFFICE BUILDING WASHINGTON, DC 20515 Congre�� of the Mniteb *tato (20 3 05 R000tsom 6 6113 FEDERAL BUILDING TCU Re L� TX 79401 Dine of regentatfbo 06) 7 1611 (806) 763-1611 Wa5bington, M 20515 Roots 201 400 WEST 4TH STREET ODESSA, TX 79761 — (915) 337-1669 November 15, 1985 Ms. Ranette Boyd City Secretary City of Lubbock Post Office Box 2000 Lubbock, Texas 791457 Dear Ranette: Knowing of your interest in the Garcia v. San Antonio Supreme Court decision, I am writing to update you on legislation -recently passed by Congress to modify some of the effects of the decision. As you know, numerous legislative proposals were introduced to alleviate some of the most costly results of compliance with the Fair Labor Standards Act (FLSA). After numerous meetings between state and local officials and labor representatives, compromise legislation was drafted and approved overwhelmingly by both the House and Senate. The major provisions of the measure include an exemption from FLSA compliance for volunteers and an option for employers to pay overtime wages or award compensatory time -off for hours worked in excess of a regular workweek. A cap is imposed on the amount of compensatory time that can be accrued, and once the cap has been reached, any overtime hours must be compensated with overtime wages. Volunteers are exempt from compliance with FLSA requirements and government employees may perform volunteer work without affecting their regular work hours. A copy of the conference committee's report is enclosed for your information. The President signed the legislation on November 13, and FLSA compliance for state and local governments will be required as of April 15, 1986. The Department of Labor will not enforce compliance before that time, and no retroactive wages will be awarded. Although this compromise measure is not an ideal solution, I believe that it represents a worthy compromise. Your input in this matter was greatly appreciated. Sincerely, Larry drm best LC/lb Enclosure H 9640, CONGRESSIONAL RECORD — HOUSE November 1, 1985 Rahall ` Slkorski Towns 1570) to amend the Fair Labor Standards "(B) If compensation is paid to an em - Range) Stsisky Traflcant Act of 1938 to provide rules for overtime ployee for accrued compensatory time off, Ray Re Skeen Skelton Traxler Udall compensatory time off for certain public such compensation shall be paid at the regu- Recdid Slattery Valentine agency employees, to clarify the application lar rate earned by the employee at the time Richardson Slaughter Vander Jagt of that Act to volunteers, and for other pur- the employee receives such payment. Ridge Smith (FL) Vento poses, having met, after full and free confer- "(4) An employee who has accrued com- Rinaldo Smith (IA) Vlsclosky ence. have agreed to recommend and do rec- pensatory time off authorized to be provided Ritter Smith (NE) Volkmer ommend to their respective Houses as fol- under paragraph (1) shall, upon termina- Roberts Robinson Smith (NJ) Smith, Robert Walgren Watkins lows: tion of employment, be paid for the unused Rodino (OR) Waxman That the Senate recede from its disagree- compensatory time at a rate of compensa- Roe Snowe Weaver ment to the amendment of the House to the tion not less than— Roemer Snyder Weiss text of the bill and agree to the same with "(A) the average regular rate received by Rogers Solarz Wheat an amendment as follows: such employee during the last 3 years of the Rose Spence Whitley In lieu of the matter proposed to be in- employee's employment, or Rostenkowski Roukema Spratt St Germain Whittaker Whitten serted by the House amendment insert the "(B) the final regular rate received by such Rowland (CT) Staggers Williams, following' employee, Rowland (GA) Stallings Wilson SHORT TITLE,' REFERENCE TO ACT _ whichever is higher: Russo Russo Stokes Stokes Wirth wise SECTION 1. (a) SHORT TITLE. -This Act may "(5) An employee of a public agency which Sabo Stratton Wolf be cited as the "Fair Labor Standards is a State, political subdivision of a State, or Savage Studds Wolpe Amendments of 1985': an interstate governmental agency— Saxton Sundquist Wortley .-_(b) REFERENCE. TO ACT.—Whenever in this PYA) who has accrued compensatory time Scheuer Sweeney Wright Act an amendment or repeal is expressed in off authorized to be provided under para - Schneider Swift Wyden terms of an amendment to, or repeal of, a graph (1), and Schroeder Schuette Swindall Synar Wylie Yates section or other provision, the reference 'YB) who has requested the use of such Schulze Tallon Yatron shall be considered to be a reference to a sec- compensatory time, Schumer Seiberling Tauke Tauzin Young (AK) Young tion or other provision of the Fair Labor o n orAct of provision shall be permitted by the employee's employ- Sharp Thomor (FL) Young (MO) 15 er to use such time within ¢ reasonable Shaw Thomas (GA) Zschau COMPENSATORY TIME Period after making the request the use of p i% Shelby Torres SEC. 2. (a) COMPENSATORY TIME.—Section 7 the compensatory time does not unduly dis- Shuster Torricelli (29 U.S.C. 207) is amended by adding at the rupt the operations of the public agency. NAYS -61 end the following: "(6) For purposes of this subsection— "(o)(1) Employees of a public agency "(A) the term `overtime compensation' Archer Armey Franklin Nielson which is a State, a political subdivision of a means the compensation required by svbsec- Barton Frenzel Gingrich Oxley Packard State, or an interstate governmental agency tion (a), and Barton Gregg Roth may receive, in accordance with this subsea- "(B) the terms compensatory lime' and B Hartnett Rudd tion and in lieu of overtime compensation, cr✓ ompensatotime off mean hours during Brown (CO) Henry Schaefer compensatory time off at a rate not less which an employee is not working, which Burton (IN) Hiler Sensenbrenner than one and one-half hours for each hour of are not counted as hours worked during the Chapple Hopkins Shumway employment for which overtime compensa- applicable workweek or other work period Cheney Coats Hubbard H Siljander Smith, Denny tion is required by this section. for purposes of Overtime Compensation, and C Hyydede (OR) (2) A public agency may provide compen- for which the employee is compensated at Crraigaig Kolbe Smith, Robert satory time under paragraph (1) only— the employee's regular rate.': Crane Kramer - (NH) : ;"(A) pursuant lo— (b) E%IST7NG COLLECTrvE BARGAINING Dannemeyer Lewis (CA) Solomon "(i) applicable provisions of a collective AGREEMENn.-A collective bargaining agree - Daub Lowery (CA) Stangetand bargaining agreement, memorandum of un- ment which is in effect on April 15, 1986, DeLay Dornan (CA) Lungren Mack Strang Stump derstanding, or any other agreement be- and which permits compensatory time off in Dreier McCandless Thomas (CA) tween the public agency and representatives lieu of overtime compensation shall remain Fawdl Molinari Vucanovich of such employees; or in effect until its expiration date unless oth- Fiedler Monson Walker "(ii).in the case of employees not covered erwise modified, except that Compensatory Fields Moorhead Weber by subclause (i), an agreement or under- time shall be provided after April 14, 1986, NOT VOTING -16 standing arrived at between the employer in accordance with section No) of the Farr and employee before the performance of the Labor Standards Act of 1958 (as added by Addabbo Hansen Morrison (CT) work; and subsection (a)). Barham Barnes Hatcher Holt Neal Stark "(B) if the employee has not accrued corn- (c) LIABILITY AND DEFERRED PAYMENT.—III 14 de la Gana Lundlne Whitehurst pewatory time in excess of the limit appli- No State, political subdivision of a State, or i Florio Marlenee cable to the employee prescribed by para- interstate governmental agency shall be Fowler McEwen graph (3). liable under section 16 of the Fair Labor 0 1710 In the case of employees described in clause Standards Act of 1938 for a violation of sec * (Allis! hired prior to April 15, 1986, the reu4e gu- tion 6 (in the case of a territory or posses- So the bill was passed. lar practice in effect on April 15, 1986, with sion of the United Stales), 7 or 11(c) (as it The result of the Vote was an- respect to compensatory time off for such relates to section 7) of such Act occurring nounced as above recorded. employees in lieu of the receipt of overtime More April 15, 1986, with respect to any em A motion to reconsider was laid on compensation, shall constitute an agree- ployee of the State, political subdivision, or the table. ment or understanding under such clause agency who would not have been covered by (A)(fi). Except as provided in the previous such Act under the Secretary of Labor's spa —'� --' sentence, the provision of compensatory tial enforcement policy on January 1. 1985 CONFERENCE REPORT ON S. line off to such employees for hours worked and published in sections 775.2 and 775.4 of 1570, FAIR LABOR STANDARDS after April 14, 1986, shall be in accordance title 29 of the Code of Federal Regulations. r` AMENDMENTS OF 1985 with this subsection "(3)(A) (2) A State, political subdivision of a State, or interstate governmental agency IJ the work of an employee for Mr. HAWKINS Submitted the fol which compensatory time may be provided may defer until August 1, 1986, the payment Sowing conference report and state included work in a public safety activity, an of monetary overtime compensation under meet on the bill (S. 1570) to amend emergency response activity, or a seasonal section 7 of the Fair Labor Standards Act of 1938 for hours worked after April 14, 1986. rT the Fair Labor Standards Act of 1938 activity, the employee engaged in such work to provide rules for overtime compen may accrue not more than 480 hours of com- SPECIAL DETAILS, OCCASIONAL OR SPORADIC � l "satory time off for certain public pensatorl time for hours worked after April EMPLOYMENT, AND SUBSTITUTION agency employees, to clarify the appli- 15, 1986. If such work was any other work, SEC. 3. (a) SPECIAL DETAIL WORK- FOR FIRE { cation of that act to volunteers, and the employee engaged in such work may accrue than PROTECTION AND LAW ENFORCEMENT EMPLOY 1. for other purposes: not more 240 hours of compen. time hours EEs.—Section 7 (29 U.S.C. 20 7) is amended r satory for worked after April 15, by adding after subsection (o) (added by sec CONVEP-MCE REPORT (H. REPT. 99-357) 1986,. Any such employee who, after April 15, tion 2) the following: t + 1986, has accrued 480 or 240 hours, as the "(p)(1) If an individual who is employed The committee of conference on the dis- case may be, of compensatory time off shall, by a State, political subdivision of a State, . t agreeing votes of the two amendments of the House Houses on the to the bill for additional overtime hours of work, be or an interstate governmental agency in fire (S. paid overtime compensation. protection or law enforcement activities (in November 1, 1885 — CONGRESSIONAL RECORD —HOUSE eluding activities of security personnel in correctional institutiousJ and who; solely at such individual's option, agrees to be em- ployed on a special detail by a separate or independent emploger in ffre protection, law enforcement, or related activities, the hours such individual was employed by such separate and independent employer shall be excluded by the public egency employing such individual in the calculation of the hours for which the employee is entitled to overtime compensation under this section if the public agency— '7A) requires that its employees engaged in fire protection, law eNorcement, or security reiivities be hired by a separate and inde- pendent employer to perform the special detail, "(B) facilitates the employment of such employees by a separate and independent employer, or "(C) otherwise effects the condition of em- ployment of suds employees by a separate and independent employer.': (b) OCCASIONAL OR SPORADIC E"LOY- miwr.—Seclion 7(p) (29 V.S.C. 207). as added by subsection (a), is amended by adding at the end the following: •'(2) If all employee of a public agesey which hs a State, political subdivision Qr a late, or an interstate governmental aWney undertakes, on an occasional. or sporadic basis aid solely at the employee's option, ,Mil -tine . employment for the p:blic agency which is in a different capacity !'mm any capacity in which the employee is regularly employed with the public agency, the hours such employee was emp&ryed in performing the different employment shall be excluded by the public agency in the calculation of the hours for which the employee is entitled to overtime compensation under this sec- tion.": (C) SUBSTITUTION.—(1J Section 7(p) (29 U.S.C. 207), as amended bysusbection (b), is amt!uded by adding at the cad the following: "(3) If an individual who is employed in any capacity by a public agency which is a State, political subdirision of a State, or an interstate governmental agency, agr= with the approval of the public agency and' solely at the option of such indixidu4 to substi- tute during scheduled work honor for an- other individual who is employed by such agency in the same capacity, the hours such rrnployee worked as a substitute shall be ex- cluded by the public agency in the calcula- tion of the hours for which the employee is entitled to o: ertime compensation under this srrtion. *: (,?I Section 111c) (Z9 USC ZII fclJ it amended by adding at the end the Allowing. "The employer of an employee who perforins substilute work described in section 7(pH3J may not be required under this subsection to keep a record of the hours of the substitute work. " VOLUNTEERS SF(-. 4. (a) DEFINn70N.—Section NO (29 U.S.C. 203(e)) is amended— (1) by striking out "paragraphs (2J and '3)" in paragraph (1) and inserting in lieu thereof "paramphs (2k e3), and (4)"; and (2) by adding at the end the followina: "(4)(A) Tie term 'employee' does not in- clude any individual who volunteers to per- form services for a public agency which is a !',late, a political subdirisioa of a State, or an interstate governmental agency, i - "(i) the indizidual receives no compensa- tion or is paid expenses, reasoahable benefits. or a nominal fee to perforin the services for u:hich the individual volunteered; and "(it) such services are not the same type of services which the individual is employed to perform for such public agency. '(B) An employee of a public agency v*ich is a State, political subdivision of a State, or an interstate governmental agency, may volunteer to perfom services for any other State, political subdivision, or inter- state governmental agency, including a State, political subdivision or agency with which the employing State, political subdi- vision, or agency has a mutual aid agree- ment't (b) RzGt LATroAm—Not later than March 15, 1986, the Secretary of Labor shall issue regulations to carry out paragraph (4) of section 3(e) (as amended by subsection (a) of this section!. (e) CURRENT PRACTICE. —If, before April 15, 1986, the practice of a public agency was to treat certain individuals as volunteers, such individuals shalt until April 15, 1986, be considered, for purposes of the Fair Labor Standards Act of 1938, as volunteers and not as employees. No public agency which is a State, a political subdivision of a State, or an interstate governmental agency shWZ be liable for a violation of section B occurring befoiv April 15, 1986, with respect to services tieemetl bet that agency to have been per- formed erformed for it by an individual on a volun- tary basis. STATE AND LOCAL LEGISLATIVr EXPLOYEES Sac. 5. Clause (ii) Ctf section 3(eR21CJ (29 U.S.0 203(e) (2)(C)) is amended— (1) by striking out "or" at the end 4f sub- clause (II1), (2J by siriking out "who" in subclause (IV), (3) by strking out Ute period at the end of subclause (IV) and inserting in lieu thereof ';or'; and (4) by adding after subclause (IV) the fel- lowing. "(W is an employee in the legislative branch or legislative body of that State, po- litical subdivision, or agency and is not em- ployed by the legislative library of such State, political subdivision, or agency.': EPTEC77VE DAPS Skm 6. The amendments ma.dy by this Act shall take effect April 15, 198& The Secretary of Labor shall before such date promulgate such regulations as may be required to im- plement such amendments. EFFECT OF AMENDMENTS SEC. 7. The amendments made by this Act shall not affect whether a public agency which is a State, political subdivision of a State, or an interstate governmental agency is liable under section 16 of the Fair Labor Standards Act of 1938 for a violation of sec- tion 6, 7, or 11 of such Act occurring before April 15, 1986, with respect to any employee of such public agency who woul t have been covered by such Act under the Secretary of Labor's special enforcement policy on Janu- ary 1, 1985, and published in section 775.3 of title 29 of the Code of Federal Regulations. DISCRIMINATION SEC, 8. A public agency which is a State, political subdivision of a State, or an inter- state governmental agency and which dis- criminates or has discriminated against an employee with. respect to the empZoyee's wages or other terms or conditions of em- ployment because on or otter February 19, 1985, the employee asserted coverage under section 7 of the Fair Labor Standards Act of 1938 shall be held to have violated section I5(a)f3) of such Act. The protection against discrimination afforded by tin preceding sentence shall be available after August 1, 1986, only for an employee who takes an action described in section 15(aH3,1 of such Act. And the House agree to the same. That the Senate recede from its disagree- ment to the amendment of the House to the title of the bill and agree to the same. AUCUsTus F. HAAWKINS, H "41 Aosrlrr J. btum FRY, , W.L. CLAY. PAT WILLIAMS. • JAMES M. JEFFORDS, Tom PETRI. STEVE BARTLETT � Managers on the Part cU the House. ORRIN G. HATCH, Dom NlcxLss, ROBERT T. STAPTOYD, HOWARD M. b1JM=BAUM. . .EDWARD M. E:ENN'EDY, Menagem on the Part of the Senate. JOINT EXPLANATORY STATE14fENT OF THE COMMITTEE OF CONFERENCE The managers on the part of the House r and the Senate at the conference on the dis- agreeing votes of the two Houses on the g amendments of the House to the bill (S. 1570) to amend the Fair Labor Standards Act of 1938 to provide rules fcr overtime compensatory time off for certain public agency employees, to clarify the application of that Act to volunteers, and for other pur- poses, submit the following Joint statement to the House and the Senate in explanation- xplanationof ofthe effect of the action agreed upon by the managers and recommended in the ac- companying conference report: 3 The House amendment to the text of the bill struck out all of the Senate bill after the enacting clause and inserted a subsLi- tute text. z The Senate recedes from its disagreement s " to the amendment o1 the House with an amendment which is a substitute for the Senate bill and the House amendment- The differences between the Senate bill. the j? House amendment, and the substitute agreed to in conference are noted below, except for clerical corrections, conforming changes made necessary by agreements s reached by the conferees, and minor drait- Ing and clarifying changes. PAYMENT FOR COMPENSATORY TIME UPON TEBMINdTION or EMPLOYMENT The Senate bill provides that upon termi- nation of employment an employee shall be paid for unused compensatory time at the final regular rate received by such employ- ec. :I The House amendment provided that pay- ment for unused compensatory time is to be at a rate not less than the average regtilsr rate received by an employee during the last 3 years of the employee's employment. The conference substitute combines the Senate and House provisions to provide that payment for unused compensatory time is to be at a rate not Iess than— _ (1) the average regular rate received by an employee during the last 3 years of the em- ployee's employment, or (2) the final regular rate received by an employee, whichever is higher. SCOPE OF SUBSTITUTE BILL Under the Senate bilk the rules for the treatment of hours of substitute employ- ment apply to employees of a public agency engaged in the same activity. Under the House amendment the rules for the treatment of hours of substitute em- i pioyment apply only to employees engaged in fire protection or law enforcement activi- ties (including activities of security person- nel in correctional institutions). The conference substitute Is the same as the Senate bill. COMPENSATORY TIME LIMIT Under the Senate Nll an employee may not accrue- more than 480 hours of compcn- satory time. Under the House amendment if the work of an employee included work In a public H 9642 CONGRESSIONAL RECORD — HOUSE November 1, 1985 safety actibitlt; an emergency response activ- ity, or a seasonal activity the employee may accrue not more than 480 hours of compen- satory time. An employee engaged in any other work may accrue not more than 180 hours of compensatory time. The conference substitute provides that if the work of an employee included work in a public safety activity, an emergency re- sponse activity, or a seasonal activity the employee may accrue not more than 480 hours of compensatory time. An employee engaged in any other work may accrue not more than 240 hours of compensatory time. SCOPE OF PROTECTION AGAINST DISCRIMINATION The Senate bill prohibits discrimination as defined by section 15(a)(3) of the Fair Labor Standards Act of 1938. The House amendment prohibits discrimI- nation with respect to wages or other terms or conditions of employment. The conference substitute adopts the House amendment with the following un- derstandings as to the scope of protection provided by the House amendment: The antidiscrimination provision is meant to apply where one or more employees are singled out for adverse treatment in retalia- tion for an assertion that they are covered by the overtime provisions of the FLSA. The provision also is intended to apply where an employer's response to the asser- tion of FLSA coverage is to reduce wages or other monetary benefits for an entire unit of employees. In either instance, the actual victims of discrimination must show that coverage was asserted and they also must show actual discrimination, i.e., that the em- Ployer's action constituted retaliation for the employee or employees' assertion of cov- erage and avoidance of the asserted protec- tions of Federal law. If a court so finds, that conduct would be unlawful under section 8. An employer's adjustment of work sched- ules to reduce overtime hours would not constitute discrimination under this provi- sion so long as it was not undertaken to re- taliate for an assertion of coverage. Such an adjustment is permissible under the Act but it does not supersede applicable require- ments of State law or a collective bargaining agreement. An employer who, after February 19, 1985, paid cash overtime at a time and one-half rate pursuant to the FLSA may not recoup these overtime payments from his employ- ees by whatever means without violating section 8. State and local government em- ployers are In no way obligated to coglply with the Act's overtime provisions prior to April 15, 1986. But as stated in both Com- mittec reports, nothing in this legislation. particularly the deferred effective date, Is Intended to encourage employers to post- pone efforts to comply with the Act. Permit- ting employers who have voluntarily com- plied prior to April 1986 to negate their past compliance effort at some future date by re- capturing from their employees payments - already made would have precisely the effect that we intended to foreclose. Such permission also would allow unscrupulous employers to use the threat of recoupment to pressure or otherwise manipulate em- ployees. Section 6 was meant to prohibit such retributive action. A unilateral reduction of regular pay or fringe benefits that is intended to nullify 'this legislative application of overtime com- pensation to State and local government employees is unlawful. Any other conclusion would in effect invite public employers to reduce regular rates of pay shortly after the date of enactment so as to negate the premi- um compensation mandated by this legisla- tion. The compensatory time and deferred effective date provision of these amend- ments are to relieve the economic impact of having to comply with the FLSA's premium rate requirements for overtime. Having pro- vided for this relief, we agreed to preserve the same premium rate requirement that has been a part of the FLSA for nearly 50 years. We did not, at the same time, author- ize employers to undermine that premium rate with impunity. In what we view as anal- ogous circumstances, DOL regulations ex- plicitly condemn employer efforts to adjust or recalculate regular rates of pay so as to evade the overtime requirements of the Act. (29 CFR 778.500). This provision is not intended to'prohibit State or local government employers from adjusting rates of pay at some later point in response to fiscal concerns not directly at- tributable to the impact of extending FLSA coverage to their employees. This provision is intended to remain neu- tral with respect to any action by employees challenging the lawfulness of an employer's unilateral reduction of regular pay or fringe benefits instituted prior to enactment of these amendments. TIME LIMIT ON PROTECTION AGAINST R DISCRIMINATION Section 8 of the Senate bill limits the pro- tection against discrimination to the period February 19, 1985, through April 15, 1986. Under section 8 of the House amendment the protection against discrimination is lim- ited to on or after February 19, 1985. The conference substitute is the same as the House amendment with one modifica- tion. After August 1, 1986, an employee must assert coverage pursuant to section 15(a)(3) of the Act In order to be entitled to the protection against discrimination pro- vided by the House amendment. LIABILITY OF TERRITORIES AND POSSESSIONS FOR VIOLATIONS OF SECTION 6 Under the Senate bill and the House amendment public agencies are shielded from liability for violations of section 7 of the FLSA which occur before the effective date. April 15, 1986. The conference substi- tute provides the same shield with regard to violations of section 6 of the FLSA for terri- tories and possessions of the United States. AUGUSTUS F. HAWKINS. AUSTIN J. MURPHY, W.L. CLAY, PAT WILLIAMS, ' "JAMES M.JEFFORDS, Tom PETRr, STEvt BARTL=. " Managers on the Part of the House. -. ORRIN G. HATCH. DON NICKLES. ROBERT T. STAFFORD, HOWARD M. METZENBAUM, EDWARD M. KENNEDY, Managers on the Part of the Senate. LEGISLATIVE PROGRAM (Mr. MICHEL asked and was given permission to address the House for I minute.) Mr. MICHEL. Mr. Speaker,I have taken this time for the purpose of in- quiring of the distinguished minority leader as to the program for the bal. ance of the day and the program for next week. Mr. WRIGHT. If my distinguished friend from Illinois, the minority leader, would yield to me. Mr. MICHEL. I am happy to yield to the distinguished majority leader, the gentleman from Texas [Mr. WRIGHT]. Mr.. WRIGHT. Mr. Speaker, this would complete our -legislative sched- ule for the day and week. Monday, we would meet at noon. We hope not to have votes on Monday, but I think Members should be ad- vised it may be necessary for them to be present on Monday in order that we may take up votes at that time. The only vote that would require our having a recorded vote would be in the event the other body might have acted upon one of the bills just passed and amended it and sent it back to us. In that case, Members should be ad- vised that it would be in order for a motion to be made to agree to that amendment or to agree to that amend- ment with an amendment. Mr. Speaker, I do not think any Member would want to be absent if that were to occur. Therefore, all I can do, in candor, is suggest that the Members should plan to be here Monday at noon. It would be our purpose, if there is no motion of that type from the other body, to proceed in order. - We would take up the suspensions. There are three of them listed: House Joint Resolution 36, Memorial to Women Who Served In or With the Armed Services; House Joint Resolu- tion 142, Memorial Honoring Certain Black Americans in the American Rev- olution: and H.R. 2055, Korean War Memorial. 01725 We would postpone those votes until either Tuesday or Welinesday. We had hoped not to have votes prior to 2 o'clock on Tuesday in order to facilitate the convenience of Mem- bers whose States have primaries on next Tuesday. . Once again, I must advise Members that they ought to follow what is hap- pening. You will read about it in the newspaper if the other body should pass our legislation on the debt ceiling extension in a form that would require our acting on it Monday or Tuesday. In any event, on Tuesday we would want to adopt the rule and do the gen- eral debate on the Water Resources Act of 1985, and for the remainder of the week, Wednesday, Thursday, and Friday, if necessary, we would take up the Water Resources Act and complete its consideration. That would be the only business we have scheduled for next week except, of course, that conference reports may be considered at any time, and this program will be subject to change. Mr. MICHEL. Mr. Speaker, Let me hypothesize for a moment. If the other body, which I under- stand just a few moments ago began debating the conference report on the measure earlier today, fails to come to any agreement today, but maybe con- ceivably by Monday decided, as they are going to be in session Monday, I understand, probably not tomorrow, but on Monday, and if they were to U.S. Department of Labor DEC 1 6 1?85 Employment Standards Administration Wage and Hour Division Washington, D.C. 20210 t V tT4rjS pi The Fair Labor Standards Amendments of 1985? which were signed into law by the President on November 13, change certain provi- sions of the Fair Labor Standards Act. (FLSA) as they relate to employees of State and local governments. This consensus legis- lation eases Federal overtime pay requirements by addressing many of the issues raised by public employers subsequent to the ruling by the U.S. Supreme Court in Garcia v. San Antonio Metropolitan Transit Authority et al. (Garcia), 105 S.Ct. 1005 (February 19, 1985). The amendments will become effective on April 15, 1986. Prior to that date, the Department of Labor will issue regula- tions as may be required to implement this legislation. Enclosed for your information is a copy of the Conference Report on the legislation and a summary of the amendments. Sincerely, Stephanie R. Glyder, Chief Branch of FLSA Enforcement Enclosures 99TH CONGRl88( RZPORT lat esscoR HOL SE OF REPRESENTATIVES It 99-357 FAIR LABOR STANDARDS AMENDMENTS OF 1985 Vovmwm 1. 1985.—Ordered to be printed Mr. HAw nos, from the committee of conference, submitted the following CONFERENCE REPORT [To amompaay S. 15701 The committee of conference on the disagreeing votes of the two Houses on the amendments of the House to the bill (S. 1570) to amend the Fair Labor Standards Act of 1938 to provide rulep for overtime compensatory time off for certain public agency employ- ees; to clarify the application of that Act to volunteers. and for other purposes, having met, after full and free conference, have agreed to recommend and do recommend to their respective Houses as follows: That the Senate recede from its disagreement to the amendment of the House to the text of the bill and agree to the same with an amendment as follows: In lieu of the matter proposed to be inserted by the House amendment insert the following: SHORT TITLE; REFERENCE TO ACT SECTION I. (a) SHORT TITLE.—This Act may be cited as the "Fair Labor Standards Amendments of 1985". (b) REPERENca TO ACT. -Whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repealof, a sec- tion or other provision, the reference shall be considered to bt a ref- erence to a section or other provision of the Fair Labor Standards Act of 108. COMPaNMTORY TIME Sec. 2. (a) COMpaNBATOa r nmx —Section T (29 U.S.C. 207) is amended by adding at the end the following. "(o)(l) Employees of a public agency which is a State, a political subdivision of a State, or an interstate governmental agency maY re- st-zu o z ceive, in accordance with this subsection and in lieu of overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required by this section. "(1) A public agency may provide compensatory time under para- graph (1) only— "(A) pursuant to— '(i) applicable provisions of a collective bargaining agree- ment, memorandum of understanding, or any other agree- ment between the public agency and representatives of such em,ployees, or `(ii) in the case of employees not covered by subclause (i), an agreement or understanding arrived at between the em- ployer and employee before the performance of the work; and "fB) if the employee has not accrued compensatory time in excess of the limit applicable to the employee prescribed by paragraph (3). In the case of employees described in clause (AXii) hiredprior to April 15, 1986, the regular practice in effect on April 15, 1986, with respect to compensatory time off for such employees in lieu of the receipt of overtime compensation, shall constitute an agreement or understanding under such clause (A)(ii). Except as provided in the previous sentence, the provision of compensatory time off to such em- ployees for. hours worked after April 1.1986, shall be in accordance with this subsection. "(3)(A) If the work of an employee for which compensatory time may be provided included work in a public safety activity, an emer- gency response activity, or a seasonal activity, the employee engaged in such work may accrue not more than 480 hours of compensatory time for hours worked after April 15, 1086. If such work was any other work, the employee engaged in such work may accrue not more than 240 hours or compensatory time for hours worked after April 15, 1986. Any such employee who, after April.15, 1986, has accrued 480 or 240 hours, as the case may be, of compensatory time off shall, for additional overtime hours of work, be paid overtime compensa- tion. "(B) If co m nation is paid to an employee for accrued compensa- tory time of�uch compensation shall be paid at the regular rate earned by thhee employee at the time the employee receives such pay- ment. "(4) An employee who has accrued compensatory time off author- ized to be provided under paragraph (1) shall, upon termination of employment, be paid for the unused compensatory time at a rate of compensation not leas than— "(A) the average regular rate received by such employee duri the last.? years of of the employee's employment, or "(B�the Fnal regular rate received by such employee, whichever is hiher. "(5) An employer of a public agency which is a State, political subdivision of a State, or an interstate governmental agency— "(A) who has accrued compensatory time off authorized to be provided under paragraph (1), and "(B) who has requested the use of such compensatory time, shall be permitted by the employee's employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency. "(6) For purpose of this subsection— "(A) the term 'overtime compensation' means the compensa. tion required by subsection (a), and "(B) the terms 'compensatory time ` and `compensatory time off' mean hours during which an employee is not working, which are not counted as hours worked during the applicable workweek or other work period for purposes of overtime compen. sation, and for which the employee is compensated at the em. ployee s regular rate. ". (b) EXISTING COLLECTIVE BARGAINING AGREEMENT9.--A collective bargaining agreement which is in effect on April 15, 1986, and which permits compensatory time off in lieu of overtime compensa- tion shall remain in effect until its expiration date unless otherwise modifed, except that compensatory time shall be provided after April 14, 1986, in accordance with section 7(o) of the Fair Labor Standards Act of 1938 (as added bj subsection (a)). (C) LJABILITY AND DBF3RRa'2) AYMENT.--�1) No State, political subdivision of a State, or interstate governmental agency shall be liable under section 16 of the Fair Labor Standards Act of 19,38 for a violation of section 6 (in the case of a territory or possession of the United States), 7, or 11(c) (as it relates to section 7) of such Act oc- curring before April 15, 1986, with respect to any employee of the State. political subdivision, or agency who would not have been cov- ered by such Act under the Secretary of Labor's special enforcement policy on January 1, 1985, and published in sections 775.2 and 775.4 of title 29 of the Code of Federal Regulations. (2) A Stag political subdivision of a State. or interstate govern- mental agency may defer until August 1, 1986, theyment of mone- tary overtime compensation under section 7 o the Fair Labor Standards Act of 1938 for hours worked after April 14, 1986. SPECLAL DETAILS, OCCASIONAL OR SPORADIC EMPLOYMENT, AND SUBSTITUTION SEC. 3. (a) SPECL4L DETAIL WOR3 FOR FIRE PROTECTION AND LAw ENFORCEMENT E1(PLOYZES.—Section 7 (29 US -C 207) is amended by adding after subsection (o) (added by section 2) the following: "(pXl) If an individual who is employed by a State. political sub- division of a State, or an interstate governmental agency in fire pro- tection or law enforcement activities (including activities of security personnel in correctional institutions) and who, solely at such indi- vidual's option, agrees to be employed on a special detail by a sepa- rate or independent employer in fire protection. law enforcement, or related activities, the hours such individual was employed by such separate and independent employer shall be excluded by the public agency employing such individual in the calculation of the hours for which the employee is entitled to overtime compensation under this section if the public agency— "(A) requires that its employees engaged in fire protection, law enforcement, or security activities be hired by a separate and independent employer to perform the special detail, "(B) facilitates the employment of such employees by a sepa- rate and independent employer, or "(C) otherwise affects the condition of employment of such employees by a separate and independent employer, ", (b) uccAszovAL oft SPORADic EMPLOYMENT.—SeCtion 7(p) (29 U.S.C. 207), as added by subsection (a), is amended by adding at the end the following. "(2) If an employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency under- takes, on an occasional or sporadic basis and solely at the employ- ee's option, part-time employment for the public agency which is in a different capacity from any capacity in which the employee is reg- ularly employed with the public agency, the hours such employee was employed in performing the different employment shall be ex- cluded by the public agency in the calculation of the hours for which the employee is entitled to overtime compensation under this section. ". (c) SuBSTrrc-rrON.--(I) Section 7(p) (29 U.S.C. 207), as amended by susbection (b), is amended by adding at the end the following.• "Y3) If an individual who is employed in any capacity by a public agency which is a State, political subdivision of a State, or an inter- state governmental agency, agrees, with the approval of the public agency and solely at the option of such individual, to substitute during schedule work hours for another individual who is em- ployed by such agency in the same capacity, the hours such employee worked as a substitute shall be excluded by the public agency in the calculation of the hours for which the employee is entitled to over. time compensation under this section.': (2) Section 11(c) (29 U.S.0 211(c)) is amended by adding at the end the following.• "The employer of an employee who performs substi- tute work described in section 7(pX3) may not be required under this subsection to keep a record of the hours of the substitute work.': VOLUNTEERS SEC. 4. (a) DEFINITION. -Section 3(e) (29 U.S.0 203(e)) is amend- ed— (1) by striking out "paragraphs (2) and (3)" in paragraph (1) and inserting in lieu thereof `paragraphs (2) (3), and (4) ; and (2) by adding at the end the following. "(4XA) The term `employee' does not include any individual who volunteers to perform servicesfor a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, i f— "(i) the individual receives no compensation or is paid ex- penses. reasonable benefits, or a nominal fee to perform the serv- ices for which the individual volunteered, • and "(ii) such services are not the same type of services which the `individual is employed to perform for such public agency. "(B) An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency may j volunteer to perform services for any other State. political subdivi- sion, or interstate governmental agency, �inStepolitical i State, politica! sub - subdivision or agency with which the employing divisiol% or agency has a mutual aid agreement. . (b) Rx0VZArl0N&_Not later than March 15, 1986, the Secretary issue regr� o f Labor shalllations to carry out paragraph (4) of section 3(e) (as amended by subsection (a) of this section)- (() CVR"NT pUcTrcx —If, before April 15, 1988, the practice o a public agency was to treat certain individuals as volunteers, suc individuals shall until April 15, 1986, be considered, for purposes of the Fair Labor Standards Act of 1938, as volunteers and not as em. pl . No public agency which is a State, a political subdivision of a State, or an interstate governmental agency shall be liable for a violation of section 6 occurring before April 15, 1986, with respect to services deemed by that agency to have been performed for it by an individual on a voluntary basis. STATE AND LOCAL LEGISLATIVE EMPLOYEES SEc. 5. Clause (ii) of section 3(e)(2)(C) (29 U.S.C. 203(e) (2XC)) is amended— (1) by striking out "or" at the end of subclause (III), (2) by striking out "who" in subclause (IV), (3) by strking out the period at the end of subclause JW and inserting in lieu thereof " or", and (4) by adding after subclause (IV) the following: M is an employee in the legislative branch or legisla- tive body of that State, political subdivision, or agency and is not employed by the legislative library of such State, po- litical subdivision, or agency. . EFFECTIVE DATE SEc. 6. The amendments made by this Act shall take effect April 15, 1986. The Secretary of Labor shall before such date promulgate such regulations as may be required to implement such amend- ments. EFFECT OF AMENDMENTS SEc. 7. The amendments made by this Act shall not affect wheth- er a public agency which is a State, political subdivision of a -State. or an interstate governmentalney is liable under section 16 of the Fair Labor Standards Act of1938 for a violation of section 6, 7. or 11 of such Act occurring before April 15, 1986, with respect to any employee of such public agency who would have been covered by such Act under the Secretary of Labor's special enforcement policy on January 1, 1985. and published in section 775.3 of title 29 of the Code of Federal Regulations. DISCAMINATION SEc. 8. A public agency which is a State, political subdivision of a State, or an interstate governmental agency and which discrimi- nates or has discriminated against an employee with respect to the employee's ux*w or other terms or conditions of employment be- M cause on or after February 19, 1985, the employee asserted coverage under section 7 of the Fair Labor Standards Act of 1938 shall be held to have violated section I5(a)(J) of such Act. The protection against discrimination afforded by the preceding sentence shall be available after August 1, 1986, only for an employee who takes an action described in section 15(40) of such Act. And the House agree to the same. That the Senate recede from its disagreement to the amendment of the House to the title of the bill and agree to the same. AUGUSTus F. HAwuxs, AusTuv J. MURPHY, W.L. CLAY, PAT WUJ.LAuA, Jana M. JzrroRDe, Toss Prm, STrvz BARTtxm, Managers on the Part of the House. ORwN G. HArcH, Dox NtcxLzs. RoBSRT T. STArno&D, Howmw M. Mrrzzmmum, EDWARD M. KZNwwy, Managers on the Part of the Senate. r JOINT EXPLANATORY STATEME=NT OF THE COMM=E OF CONFERENCE The managers on the part of the House and the Senate at the. conference on the disagreeing votes of the two Houses on the amendments of the House to the bili (S. 15 i 0) to amend the Fair Labor Standards Act of 1938 to provide rules for overtime compen- satory time off for certain public agency employees, to clarify the application of that Act to volunteers, and for other . purposes, submit the following joint statement to the House and the Senate in explanation of the effect of the action agreed upon by the man- agers and recommended in the accompanying conference report: The House amendment to the text of the bill struck out all of the Senate bill after the enacting clause and inserted a substitute text. The Senate recedes from its disagreement to the amendment of „ the House with an amendment which is a substitute for the Senate bill and the House amendment. The differences between`the Senate amendment, the House and the substitute agreed to in confer- ence are noted below, except for clerical i ached by the conferees. changes made necessary by agreements and minor drafting and clarifying changes. PAYMENT POR COMPENSATORY_ TME UPON TERMINATION OF EMPLOYMENT The Senate bill provides that upon termination of employment an employee shall be paid for unused compensatory time at the final regular rate received by such employee. The House amendment provided that payment for unused com- pensatory time is to be at a rate not less than the average regular rate received by an employee during the last 3 years of the employ- ee's employment. The conference substitute combines the Senate and House provi- sions to provide that payment for unused compensatory time is to be at a rate not less than - (1) the average regular rate received by an employee during the last 3years of the employee's employment, or (2) the final regular rate received by an employee, whichever is higher. SCOP! or sUBSTrrU nON RULE Under the Senate bill the rules for. the treatment of hours of sub- stitute employment apply to employees of a public agency engaged in the same activity. Under the House amendment the rules for the treatment of hours -of substitute employment apply only to emplo ees engaged in fire protection or law enforcement activities +including activities of security personnel in correctional institutions). �7) The conference substitute is the same as the Senate bill. Coh[PENSATOBY TTMX LIMrr Under the Senate bill an employee may not accrue more than 480 hours of compensatory time. Under the House amendment if the work of an employee includ- ed work in a public safety activity, an emergency response activity, or a seasonal activity the employee may accrue not more than 480 hours of compensatory time. An employee engaged in any other work may accrue not more than 180 hours of compensatory time. The conference substitute provides that if the work of an employ- ee included work in a public safety activity, an emergency response activity, or a seasonal activity the employee may accrue not more than 480 hours of compensatory time. An employee engaged in any other work may accrue not more than 240 hours of compensatory time. score or PROPM rION AGAINST DISCRIMINATION The Senate bill prohibits discrimination as defined by section 15(a)(3) of the Fair Labor Standards Act of 1938. The House amendment prohibits discrimination with respect to w ee or other terms or conditions of employment. The conference substitute adopts the House amendment with the following understandings as to the scope of protection provided by the House amendment: The antidiscrimination provision is meant to apply where one or more employees are singled out for adverse treatment in retalia- tion for an assertion that they are covered by the overtime provi- sions of the FLSA. The provision also is intended to apply where an employer's response to the assertion of FLSA coverage is to reduce wages or other monetary benefits for an entire unit of employees. In either instance, the actual victims of discrimination must show that coverage was asserted and they also must show actual discrim- ination. i.e., that the employer's action constituted retaliation for the employee or employees' assertion of coverage and avoidance of the asserted protections of Federal law. If a court so finds, that con- duct would be unlawful under section 8. An employer's adjustment of work schedules to reduce overtime hours would not constitute discrimination under this provision so long as it was not undertaken to retaliate for an assertion of cover- age. Such an adjustment is permissible under the Act but it does not supersede applicable requirements of State law or a collective bargaining agreement. An employer who, after February 19, 1985, paid cash overtime at a time and one-half rate pursuant to the ASA may not recoup these overtime payments from his employees by whatever means without violating section 8. State and local government employers are in no way obligated to comply with the Act's overtime provi- sions prior to April 15, 1986. But as stated in both Committee re- ports, nothing in this legislation, particularly the deferred effective date, in intended to encourage employers to postpone efforts to comply with the Act. Permitting employers who have voluntarily complied prior to April 1986 to negate their past compliance effort 9 at some future date by recapturing from their employees payments already made would have precisely the effect that we intended to foreclose. Such permission also would allow unscrupulous employ- ers to use the threat of recoupment to pressure or otherwise ma- nipulate employees. Section 8 was meant to prohibit such retribu- tive action. or fringe benefits that is A unilateral reduction of regular pay g intended to nullify this legislative application of overtime compen- sation to State and local government employees is unlawful. Any other conclusion would in effect invitepublic employers to reduce regular rates of pay shortly after the date of enactment so as to negate the premium compensation mandated by this legislation. The compensatory time and deferred effective date provision of these amendments are to relieve the economic impact of having to comply with the FISA's premium rate requirements for overtime. Having provided for this relief, we agreed to preserve the same pre- mium rate requirement that has been a part of the FLSA for nearly 50 years. We did not, at the same time. authorize employers to undermine that premium rate with impunity. In what we view as analogous circumstances, DOL regulations explicitly condemn employer efforts to adjust or recalculate regular rates of pad- so as to evade the overtime requirements of the Act. f29 CFR 7 i 8.500). This provision is not intended to prohibit State or local govern- ment employers from adjusting rates of pay at some later point in response to fiscal concerns not directly attributable to the impact of extending FLSA coverage to their employees. This provision is intended to remain neutral with respect to any action b employees challengingthe lawfulness of an employer's unilateral l reduction of regular pay or fringe benefits instituted prior to enactment of these amendments. TIME LIMIT ON PROTECTION AGAINST DISCRIMINATION Section 8 of the Senate bill limits the protection against discrimi- nation to the period February 19, 1985, through April 15, 1986. Under section 8 of the House amendment the protection against discrimination is limited to on or after February 19, 1985. The conference substitute is the same as the House amendment with one modification. After August 1, 1986, an employee must assert coverage pursuant to section 15(ax3) of the Act in order to be entitled to the protection against discrimination provided by the House amendment. LIABILITY OF TERRITORIES AND POSSESSIONS FOR VIOLATIONS OF SECTION 6 Under the Senate bill and the House amendment public agencies are shielded from liability for violations of section IT of the FLSA which occur before the effective date, April 15, 1986. The confer- ence substitute provides the same shield with regard to violations of section 6 of the FLSA for territories and possessions of the United States. AUGUSTUs F. HAWKINS, AUSTIN J. MURPHY, W.L. CLAY, 10 PAT WML AMS, JAMZS M. Ju►rosne, Toes PrM. STm HASTLM, Managers on the Part of the House. ORwN G. HATCH, Dorn N[CaLEs, RosraT T. STArrow, HOWARD M. MrrZXNBAUM, EDWARD M. K$NNEDY, Managers on the Part of the Senate. 0 On November 13, 1985, the Fair Labor Standards Amendments of 1985 were enacted. These amendments change certain provisions of the Fair Labor Standards Act (FLSA) as they relate to employees of State and local governments. After the decision by the U.S. Supreme Court in r-ar Za v. San a„ton o MetroMl itan Transit Authority at 11. (tea) , 105 S. Ct. 1005 (February 19, 1985) , many State and and local government employers and representatives of their employees identified -several areas in which they believed they would be adversely affected by immediate application of FLSA. This legislation responds to these concerns by amending certain FLSA provisions with respect to employees of State and local governments. The effective date of these amendments is April 15, 1986. The amendments are summarized below. State and local governments are permitted to give their employees compensatory time off in lieu of immediate overtime pay in cash, at a rate of not less than one and one-half hours for each hour of overtime worked, but only pursuant to a collective bargaining agreement, or an agreement or understanding arrived at between the employer and employee before performance of the work. The regular practice of granting compensatory time'off in lieu of overtime compensation in effect on April 15, 1986, shall be. considered an agreement or understanding. The maximum compensatory time which may be accrued by any affected employee shall be 480 hours for those engaged in a public safety, emergency response or seasonal activity, and 240 hours for all other employees for hours worked after April 15, 1986. An employee who has accrued the maximum number of compensatory hours shall be paid overtime compensation {n cash for any additional overtime hours of work. An employee shall be permitted to use accrued compensatory time within a reasonable period _ after it is requested if to do so would not unduly disrupt the operations of the employing public. agency. Payment for accrued compensatory time upon termination of employment shall be calculated at the average regular rate of pay for the final 3 years of employment, or the final regular rate received by the employee, whichever is the higher. "Compensatory time" and "compensatory time off" are defined as hours when an employee is not working and which are paid for at the employee's regular rate of pay. These hours are not counted as hours worked in the week in which they are paid. A collective bargaining agreement in effect on April 15, 1986, that permits compensatory time off in lieu of overtime pay remains in effect until .it expires or is modified, except that the compensatory time off after April 15,1986 shall be provided in accordance with provisions discussed above. employees of a State or local government agency who are employed in fire protection, law enforcement, or related activities may at their own option agree to a special detail to work for a separate or independent employer in such activities. The hours worked for the separate and independent employer (public or private) shall be excluded frau hours worked for overtime pay purposes by the original employing agency. This provision shall apply even if: the principal employer requires that only certain individuals may engage in the employment ty the separate and independent employer and facilitates or affects the conditions of employment. Employees of a State or local government agency may at their own option undertake employment for the same employer on an occasional or sporadic basis in a part-time job in a different capacity than their regular employment. The hours of work in the different job shall not be counted as hours worked for overtime pay purposes on the regular job. employees of State and local government agencies at their cwn option but with the approval of their employer may substitute during scheduled hours for other employees employed in the same capacity. In the case of such substitution, the hours involved are credited to the scheduled employee and not to the substitute employee. The employer need not maintain a record that the substitution has taken place. Individuals who volunteer their services to State or local governments and receive no compensation, are excluded from the definition of employee and are thus excluded from coverage. They may be paid expenses, reasonable benefits, nominal fees, or a combination of these. However, an employee of a State or local government may not volunteer to his own agency services of the same type the employee is employed to perform. An employee of a State or local government agency may volunteer services to any other State or local government agency, including agencies with which the employing agency has a mutual aid agreement. The Secretary of Labor -is required to issue regulations implementing this provision by March 15, 1986. Persons treated as volunteers by State or local gcverrment agencies prior to April 15, 1986, shall be considered volunteers _under' the EISA until :.pril 15, 1986. No State or local government agency shall be liable for a minimum wage violation occurring prior to April 15, 1986, with respect to individuals which it deemed to be volunteers. -;txtP and ent Leaia ative Lr weer The Amendnents exclude frau the definition of "employee", and thus from coverage of FLSA, employees of the legislative body of a State, political subdivision of a State, or agency, except that employees of legislative libraries would continue to be covered. rii cnrimi nati on A State or local goverrment agency that discriminates against an employee because the employee asserted overtime ooverage under FLSA after February 19; 1985, shall be held to have violated the anti -discrimination provisions of Section 15(a) (3) of FLSA. Ffertive Date The effective date of the Fair Labor Standards Amendnents of 1985 is April 15, 1986. Liahi 1 ity aerred Pav= No State or local government agency shall be liable under section 16 of FLSA for a violation, of overtime pay or related recordkeeping provisions which occurred before April 15, 1986, if the affected employee would not have been covered by FLSA under the Secretary of Labor's special enforcement policy on January 1, 1985, as published in sections 775.2 and 775.4 of 29 CFR Part 775. In addition, governmental employers in territories or possessions of the United States are not liable for a minimum wage violation which occurred before April 15, 1986 with respect to such an employee. A State or local goverrment may defer to August 1, 1986, the payment of monetary overtime. pay due employees for hours worked after April 14, 1986.. Fffactr of Amendr.ents The amendments do not affect liability under section 16 for minimum wage, overtime Fay or recordkeeping violations which occurred before April 15, 1986, if the affected employee xQl1 rj have been covered under the special enforcement policy in effect on January 1, 1985, and published at 29 CFR 775.3. For further information, please call your local office of the Department's Wage and Hour Division of the Employment Standards Administration,