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Family Friendly and Workplace Flexibility Act

Floor Speech

Location: Washington, DC

Mr. McCONNELL. Mr. President, given that October is National Work and Family Month, I wish to take the opportunity to discuss an issue that has become increasingly important to working families, and that is the need for workplace flexibility.

Yesterday my colleague Senator Ayotte and I introduced the Family Friendly and Workplace Flexibility Act of 2013, which we hope will provide America's workers with the flexible work arrangements they need. Countless Americans have become increasingly familiar over the past several years with the same reality: more and more to do, with less and less time to do it. And while Congress can't legislate another hour in the day, we can help working Americans better balance the demands of work and family.

The Family Friendly and Workplace Flexibility Act is a commonsense measure Congress can pass to help alleviate that burden for millions of families by providing greater flexibility in managing their time. We all know working moms who are stretched between a job and supporting their kids, and baby boomers with elderly parents who require care and attention. A 2010 study conducted by the White House Council of Economic Advisers found that work flexibility programs can ``reduce turnover and improve recruitment, [increase] the productivity of an employer's workforce, and are associated with improved employee health and decreased absenteeism.''

Another study conducted by the Society for Human Resource Managers found that women's responsibilities have increased at work and men's responsibilities have increased at home, resulting in 60 percent of wage and salaried employees believing they do not have enough time to spend with their loved ones. The American workplace has evolved dramatically since the industrial workplace of the post-Depression era. Yet the labor laws written during this time period are still in place today and the makeup of our workforce has also changed dramatically.

Today, 60 percent of working households have two working parents. Sixty-six percent of single moms and 79 percent of single dads work as well. American workers have had to adapt to keep pace with this changing environment. So should our laws. Instead of sticking with an antiquated labor law, I believe we need to update the Fair Labor Standards Act to actually meet the changing needs of workers.

That is why I am introducing the Family Friendly and Workplace Flexibility Act.

This bill will allow flexible workplace arrangements such as compensatory time and flexible credit hour agreements, which are currently available to employees working for the Federal Government--Federal employees already have this--to be extended to businesses regulated by the Fair Labor Standards Act.

Currently, the FLSA prohibits employers from offering compensatory time or comptime to their hourly employees. This bill would amend the FLSA to allow private employers to offer comptime to employees at a rate of 1 1/2 hours for every hour of overtime work. I should add that this would be a completely voluntary process. An employee could still choose to receive monetary payments as their overtime compensation. This bill simply allows the option for employees to choose paid time off over work instead. There is no need for Washington to stand in the way of families earning the time that they need.

This bill also institutes a flexible credit-hour program under which the employer and employee can enter into agreements that allow the employee to work excess hours, beyond the typical number of hours he or she is typically required to work, in order to accrue hours to be taken off at a later time. This option is for employees who do not get the opportunity to work overtime, but still want a way to build up hours to use as paid leave. Like comptime, this program is voluntary and may not affect collective bargaining agreements that are in place.

Under this legislation, employers would not be mandated to offer flexible workplace arrangements, just as employees are not mandated to choose their benefits, rather than direct compensation for overtime work. Both parties are free to choose what works best for them.

I would like to take a moment to focus on some of the protections in the bill. Under this bill, an employee may accrue up to 160 hours of comptime per year. At any point in the year, a participating employee may request to revert back to receiving traditional overtime compensation in exchange for their accrued comptime, essentially cashing out their banked time. Further, the bill also requires employers to provide monetary payment at the end of the year for any unused comptime or flextime.

I have also included a provision that safeguards unpaid comptime and flextime in the case of bankruptcy. Thus, the bill takes steps to protect against any potential for lost wages in these kinds of circumstances.

If anyone understands the benefits of comptime, it is our public employees. That is because flexible work arrangements have been available to Federal employees since 1978. If the Federal law already provides these beneficial workplace arrangements to Federal and State workers, why should we not make them available to all employees? Public employees enjoy these arrangements so much that the unions representing them frequently fight for comptime arrangements when negotiating collective bargaining agreements.

It is very important to note this legislation does not do anything to alter the 40-hour work week. Let me repeat that: This bill in no way alters a 40-hour work week or how overtime is calculated.

Another way in which the Family Friendly and Workplace Flexibility Act protects employees is by prohibiting employers from coercing employees into accepting or rejecting comptime or flextime arrangements.

When we look at today's modern workplace, we see some companies such as Dell, Bank of America, and GE that already provide flexible workplace arrangements to their salaried employees who are not subject to the rules under FLSA. Perhaps it is no coincidence that workplaces such as these are also among the highest-ranked companies at which to work.

Now is the time to allow private companies to provide the benefits of flexible arrangements like comptime to their nonexempt workers as well. After all, it is not just workers at some places of employment who are parents or family members who need to be able to take time off to attend a function for their child's school, to see a son or daughter's supporting event, or to care for an aging parent. It is workers at all places of employment.

A report by the White House Council of Economic Advisers shows that nearly one-third of all American workers consider work-life balance and flexibility to be the most important factor in considering job offers.

Let me say that again. Nearly one-third of all American workers consider work-life balance and flexibility to be the most important factor in considering job offers.

It also shows that 66 percent of human resource managers cite family-supportive policies and flexible hours as the single most important factor in attracting and retaining employees. These numbers are pretty telling.

I am pleased that the Kentucky Chamber of Commerce has endorsed this legislation. I also thank my friend Congresswoman Martha Roby for her leadership and dedication in advancing this cause over in the House. She introduced a bill to accomplish similar ends as the Family Friendly and Workforce Flexibility Act and actually saw her bill to passage. Now it is time for the Senate to act.

The effort to provide greater flexibility and support for families in the workplace is one I have long supported. I have previously supported legislation allowing flexible workplace arrangements. This is the fifth time I have sponsored legislation to establish comptime, and I am proud to continue that fight today.

I consider myself very fortunate to be joined by Senator Ayotte in this effort. I suspect her predecessor, former Senator Judd Gregg, would be proud to see her leadership on this issue as well. Senator Gregg was a champion for flexible work arrangements throughout his entire Senate career, I was thankful to work with him on the issue in the past, and I am gratified to work with Senator Ayotte on this issue moving forward.

Yesterday Senator Lee introduced a similar measure that seeks to provide for comptime for American workers. Senator Lee is helping with the effort, working with conservatives to find out-of-the-box solutions to the challenges Americans face today. I applaud Senator Lee for his commitment to this effort and look forward to working with him in the future on this issue.

In closing, I urge my colleagues on both sides of the aisle to support this commonsense bill because it is the right thing to do for working families.


Finally, I will be voting against cloture on the Millett nomination, and I would like to discuss why. Ms. Millett is no doubt a fine person. This is nothing personal.

Peter Keisler, of course, is a fine person too. But our Democratic colleagues pocket-filibustered his nomination to the DC Circuit for 2 years on the grounds that the court's workload did not warrant his confirmation. They did so despite his considerable skill as a lawyer and his personal qualities. His nomination languished until the end of the Bush administration. He waited almost 1,000 days for a vote that never came.

The criteria our Democratic friends cited to block Mr. Keisler's nomination then clearly show the court is even less busy now. For example, the seat to which Ms. Millett is nominated is not a judicial emergency--far from it. The number of appeals at the court is down almost 20 percent, and the written decisions per active judge are down almost 30 percent.

In addition to these metrics, the DC Circuit has provided another. The chief judge of the court, who was appointed to the bench by President Clinton, provided an analysis showing that oral arguments for each active judge are also down almost 10 percent since Mr. Keisler's nomination was blocked.

These analyses show that not only is the court less busy in absolute terms now than it was then, it is less busy in relative terms as well, when one takes into account the number of active judges serving on the court. The court's caseload is so low, in fact, that it has canceled oral argument days in recent years because of lack of cases. After we confirmed the President's last nominee to the DC Circuit just a few months ago--and by the way we confirmed him unanimously--one of the judges on the court said that if more judges were confirmed there would not be enough work to go around. So if the court's caseload clearly does not meet their own standards for more judges, why are Senate Democrats pushing to fill more seats on a court that doesn't need them? What is behind this push to fill seats on the court that is canceling oral argument days for lack of cases, and according to the judges who serve on it will not have enough work to go around if we do?

We don't have to guess. Our Democratic colleagues and the administration's supporters have been actually pretty candid about it. They have admitted they want to control the court so it will advance the President's agenda. As one administration ally put it, ``The President's best hope for advancing his agenda is through executive action, and that runs through the DC Circuit.''

Let me repeat, the reason they want to put more judges on the DC Circuit is not because it needs them, but because ``The President's best hope for advancing his agenda is through executive action, and that runs through the DC Circuit.''

Another administration ally complained that the court ``has made decisions that have frustrated the President's agenda.'' Really? The court is evenly divided between Republican and Democratic appointees. According to data compiled by the Federal courts, the DC Circuit has ruled against the Obama administration in administrative matters less often than it ruled against the Bush administration.

Let me say that again. According to data compiled by the Federal courts, the DC Circuit has ruled against the Obama administration in administrative matters less often than it ruled against the Bush administration. So it is not that the court has been more unfavorable to President Obama than it was to President Bush. Rather, the administration and its allies seem to be complaining that the court has not been favorable enough. Evidently they do not want any meaningful check on the President. You see, there is one in the House of Representatives, but the administration can circumvent that with aggressive agency rulemaking. That is if the DC Circuit allows it to do so.

A court should not be a rubberstamp for any administration, and our Democratic colleagues told us again and again during the Bush administration that the Senate confirmation process should not be a rubberstamp for any administration. For example, they said President Bush's nomination of Miguel Estrada to the DC Circuit was ``an effort to pack the Federal courts.'' And they filibustered his nomination--seven times, in fact.

We have confirmed nearly all of President Obama's judicial nominees. As I said, we confirmed a judge to the DC Circuit unanimously just a few months ago. This year we have confirmed 34 circuit and district court judges. At this time in President Bush's second term the Senate had confirmed only 14.

Let me say that again. This year we have confirmed 34 circuit and district court judges. At this time in President Bush's second term the Senate had confirmed only 14 of those nominees. In fact, we confirmed President Obama's nominees even during the Government shutdown.

In writing to then-Judiciary Committee Chairman Arlen Specter to oppose the nomination of Peter Keisler, Senate Democrats said:

Mr. Keisler should under no circumstances be considered--much less confirmed ..... before we first address the very need for the judgeship ..... and deal with the genuine judicial emergencies identified by the judicial conference.

That course of action ought to be followed here too. Senator Grassley has legislation that will allow the President to fill seats on courts that actually need judges. The Senate should support that legislation, not transparent efforts to politicize a court that doesn't need judges in an effort to create a rubberstamp for the administration's agenda.

I yield the floor.

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