FEDERAL EMPLOYEES FLEXIBLE AND COMPRESSED WORK SCHEDULES ACT OF 1982

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000300070007-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 28
• Document Creation Date: December 20, 2016
• Document Release Date: May 3, 2007
• Sequence Number: 7
• Publication Date: April 28, 1982
• Content Type: OPEN SOURCE

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Calendar No.518
'FEDERAL. EMPLOYEES FLEXIBLE AND COMPRESSED
WORK. SCHEDULES ACT" OF 1982
Mr. ROTH; from the Committee on Governmental Affairs,
submitted the following
RE.POR.T
together with
ADDITIONAL VIEWS
[To accompany S. 2240]
The Committee on Governmental Affairs, to which was referred the
bill (S. 2240) to amend title 5, United States Code, to provide perma-
nent uthorization for Federal agencies to use flexible and compressed
employees work schedules, having considered the same, reports favor-
ably thereon with amendments and recommends. that the bill as
amended do pass.
AMENDMENTS
The amendments are as follows:-
On page 3, between lines 21.-and 22, add the following new para-.
graph :
(8) "collective bargaining", "collective bargaining agree-
ment", and "exclusive representative" have the same meanings.
given such terms-
(A) by section 7103 (a) (12), (8), and (16) of this title,
respectively, in the case of any unit covered by chapter
71 of this title; and - -
(B) in the.case of any other unit, by the corresponding
provisions applicable under the personnel system cover-
ing this unit.
On page 8, beginning with line 19,-strike all through page 9, line 2
and insert in lieu thereofthe following-.: .
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(b) Any employee who-"is'on a flexible schedule program
under section 6122 of this title and who is no longer, subject
to such a program shall be paid at such employee's then cur-
rent rate of basic pay for-
(1), in the case of a full-time employee, not more than
24 credit hours accumulated by such employee, or
(2) in the case of a part-time employee, the number of
credit hours (not excess of one fourth of the hours in such
employee's biweekly basic work requirement) accumu-
lated by such employee.
On page 12, beginning with line 1, strike all through line 25 and
insert in lieu thereof the following :
6130 Application of programs in the case of collective bar-
gaining agreements
(a) (1) In the case of employees in a unit represented by an
exclusive representative, any flexible or compressed work
schedule, and the establishment and termination of any such
schedule, shall be subject to the provisions of this subchapter
and' the terms of a collective bargaining agreement between
the agency and the exclusive representative.
(2) Employes within a unit represented by an exclusive
representative shall not be included within any program-under
this subchapter except.to the extent expressly provided under
a collective bargaining agreement between the agency and the
exclusive representative.
(b) An agency-may not participate in a flexible or compres-
sed schedule program under a collective bargaining agreement
which contains premium pay provisions which are inconsist-
ent with the provisions of section 6123 or 6128 of this title,
as applicable.
On page 13. beginning with line 2. strike all through page 15, line
3 and insert in lieu thereof the following :
(a) Notwithstanding the preceding provisions of this sub-
chapter or any collective bargaining agreement and subject
to subsection (c) of this section, if the head of an agency finds
that--a -particular flexible or compressed schedule under this
subchapter has had or would have an adverse agency impact,
the agency shall promptly determine not to-
(1) establish such schedule; or
(2) continue such schedule, if the schedule has already
been established.
(b) For purposes of this section, `adverse agency impact'
means-
(1) a reduction of the productivity of the agency;
(2) a diminished level of services furnished to the pub-
lic by the agency; or
(3) an increase in the cost of agency operations.
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. (c) (1) This subsection shall apply in the case of any
schedule covering emloyees in a unit represented by an ex-
elusive representative.'
(2) (A) If an agency and an exclusive representative reach
an impasse in collective bargaining with respect to an agency
determination under subsection (a) (1) - not to establish a
flexible or compressed schedule, the impasse shall be pre-
sented to the Federal Service Impasses Panel (hereinafter in
this section referred to as the `Panel').
(B) The Panel shall promptly consider any case presented
under subparagraph (A), and shall take final action in favor
of the agency's determination if the finding on which it is
based is supported by evidence that the schedule is likely to
cause an adverse agency impact.
(3) (A) If an agency and an exclusive representative have
entered into a collective bargaining agreement providing for
use of a flexible or compressed schedule under this subchapter
and the head of the agency determines under subsection (a)
(2) to terminate a flexible or compressed schedule, the agent
may reopen the agreement to seek termination of the sched
ule involved.
(B) If the agency and exclusive representative reach an
impasse in collective bargaining with respect to terminating
such schedule, the impasse shall be presented to the Panel.
(C) The Panel shall promptly consider any case presented
under subparagraph (B), and shall rule on such impasse not
later than 60 days after the date the Panel is presented the
impasse. The Panel shall take final action in favor of the
agency's determination to terminate a schedule if the finding
on which the determination is based is supported by evidence
that the schedule has caused an adverse agency impact.
(D) Any such schedule may not be terminated until-
(i) the, agreement covering such schedule is renego-
tiated or expires or terminates pursuant to the terms
of that agreement; or
(ii) the date of the Panel's final decision, if an im-
passe arose in the reopening of the agreement under sub-
paragraph (A) of this paragraph.
(d) This section shall not apply with respect to flexible
schedules that may be established without regard to the au-
thority provided under this subchapter.
EXPLANATION OF AMENDMENTS
The first Committee amendment defines the terms "collective bar-
gaining", "collective bargaining agreement", and "exclusive repre-
sentative".
The second Committee amendment is a technical amendment.
The third Committee amendment is primarily a technical amend-
ment which clarifies that the establishment and termination of alter-
native work schedules which cover employees represented .by an ex-
clusive representative are fully negotiable, subject to the provisions
of the rest of'the bill.
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4
The fourth Committee amendment is primarily a technical amend-
ment which clarifies :the criteria for the use of alternative work
schedules and review of impasses resulting from the institution and
termination of a schedule covering employees in -a unit represented
by an exclusive representative.
BACKGROUND AND STATEMENT
During the past three years, more than 325,000 federal employees
in 1,500 organizations participated in a generally.su3cessful experi-
mental alternative work schedules program. The experiment, author-
ized by the 95th Congress for three years, involved the use of both
flexible and compressed work schedules. Flexible work.schedules allow
employees, within limits, to vary the times they report for duty and
depart from work. Compressed work schedules allow employees to
complete their same hourly requirements in fewer days; e.g., four, ten-
hour days in contrast to five, eight-hour days.
The Final Report To The President And The Congress regarding
the Alternative Work Schedules' Experimental Program asserts that
the program, in most cases, was beneficial to the public and to the em-
ployees themselves. However, there were some notable examples of
failures.
The benefits of' these schedules to employees were overwhelming.
Working parents could structure their work schedules to best,attend
to their children's needs. Appointments outside of the office could be
more easily scheduled without the necessity of taking sick or-annual
leave. Travel times to and from the office were reduced. Employees
generally had a greater degree of control over their work lives which
provided them with more time to devote to non-work activities.
The benefits of these schedules to government, when utilized in a
proper fashion, were also significant. Hours of service to the public
increased. Tardiness and absenteeism of employees were reduced. En-
ergy consumption in buildings decreased: General productivity was _
enhanced. .
On the other hand, improper use of alternative work schedules did
have some serious repercussions. In some , cases,, productivity and work
performance declined. Service to the public was delayed and hindered.
Workerswere unavailable when needed. Costs increased.
The result of. the experimental program showed that the use of al-
ternative work schedules can be beneficial to all concerned when the
schedules are used'properly. The most important consideration in the
utilization of these schedules is whether service to the public is being
harmed in any significant way. Government exists to serve the people.
Although it is not often recognized these days, government employ-
ment remains public service. When one joins the federal workforce,
he is assuming the significant responsibility of serving the public. Ac-
tions or programs, regardless or their merit, which hinder service tq
the public, need to be changed. Those responsible for the effectual
workings of government are the managers. If government managers
find that their unit's mission is not being effectively accomplished due
to scheduling arrangements of their employees, they need the flexi-
bility to alter these arrangements within the confines of certain basic
erpployee protections.
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On the other hand, one of the most protected rights gained by the
organized labor movement is the inviolability, of the collective bar-
gaining process. Once an item is deemed a bargainable issue, it takes
an extraordinary situation to show that bargaining itself is not in the
public interest. The increased standard of living during this century
is in large part attributable to hard-won employees protections by
the organized labor movement. In light of the fact that alternative
work schedules under the experimental program were bargainable,
the question becomes "Has bargaining over alternative work schedules
hindered the effective management of government and thereby re-
duced service to the public?" The Committee finds the answer to be
generally no. The Committee finds that in certain situations alterna-
tive work schedules do not and will not work. The remedy for such
situations lies in building standards in the law for when a particular
schedule is inappropriate, not encroaching into the sphere of negotia-
tion. The Committee reasserts the position that the use of alternative
work schedules is negotiable.
However, as previously discussed, the operation of government is to
serve the public. The Committee feels that an alternative work sched-
ule which is likely to reduce productivity, hinder service to the public,
or increase agency costs, should never be instituted. In a bargaining
situation, the question as to who makes this determination is an all
important one. The agency, representing management, is responsible
for making the initial determination that a particular schedule will
have an adverse impact: However, empowering the agency to make the
final determination amounts to a unilateral, right to not negotiate
which could ultimately lend itself to capricious decisions by each new
Administration. The Committee expects full negotiation on all aspects
of an alternative work schedule. Thus, if an agency feels that a par-
ticular schedule will have an adverse impact and reaches an impasse
with the exclusive representative over this issue, the issue will be re-
solved by the Federal Service Impasses Panel.
The burden will be on the. agency to show that the schedule will
likely result'in an adverse 'impact. If the agency makes that showing,
the Panel will have no choice but to uphold the agency's decision to not
institute the particular schedule.
Sometimes, however, a particular schedule, initially considered to
be a positive arrangement, turns sour after implementation. The
agency must be permitted to seek a change. Normally, the pure bar-
gaining process would prohibit one party from unilaterally reopen-
ing a. negotiated agreement: The Committee finds, however, that such
an extraordinary remedy is. prudent in this case. There may well be,
and have been, cases where a particular schedule is not working. In
these cases, an agency is granted the limited right to reopen an agree-
ment to seek. termination of an egregious schedule. Once an agreement
is reopened, the termination of a schedule will be fully negotiable.
Once again, if A he parties reach an impasse, they may request the
Federal Service Impasses Panel to resolve the issue of termination.
In no circumstances may an agency terminate a schedule which is
subject to.:a negotiated agreement before the Panel makes a final de-
termination. The burden again will be on the agency to show there
has been an adverse agency impact. The Panel must make a decision
Qn this issue within 60 days of its initial' involvement:
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Lastly, the legislation authorizes agencies to unilaterally terminate
alternative work schedules established pursuant to the experimental
program. This legislation is not simply a reauthorization. The experi-
mental program is an experiment. This legislation is a. program
authorization. Therefore, schedules established pursuant to- the ex-
periment may only continue under the authority of section 4 of the
Act.
LETTER TO THE CHAIRMAN FROM THE DIRECTOR OF THE OFFICE OF
PERSONNEL MANAGEMENT
U.S. OFFICE OF PERSONNEL MANAGEMENT,
'Washington, D.C., April 16,1982.
Hon. WILLIAM V. ROTH, Jr.,
Chairman, Committee on Governmental Affairs,
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN : This is in reply to an oral request from a mem-
ber of your staff, for the views of the Office of Personnel Management
on S. 2240, a bill "To amend title 5, United States Code, to provide per-
manent authorization for Federal agencies to use flexible and com=
pressed employee work schedules.". You have asked that we address ,
these comments to S. 2240 as it has been amended by the Committee on
Governmental Affairs.
Under Public Law 95-390, the Federal Employees Flexible and
Compressed Work Schedules Act of 1978, the Government has con-
ducted a three-year experiment with the use of alternative work sched-
ules. This experiment (which has been temporarily extended by Public
Law 97-160). has shown that alternative work schedules can be valuable
and should be continued where appropriate, but the experiment has
also shown that there is a serious need for greater management controls
over the use of such schedules than was provided by. Public Law
95-390. .
S. 2240,.as amended, would accomplish these goals. The authority to
utilize flexible and compressed schedules in the Federal Government
would be continued for three more years, and the law would also- pro-
vide a. review mechanism whereby agency management could ensure.
that the use of such alternative work schedules .would not adversely
affect agency productivity or service to the public, or increase the cost
of agency operations. The bill would also permit agency management
to terminate" unilaterally any existing flexible or - compressed. work
schedules that management finds to be having such adverse effects.
We believe that S. 2240, as amended, represents a satisfactory~com-
promise between the normal processes of labor-management relations
in the Government and the need to ensure that the public interest is
protected in the area of alternative work schedules. Accordingly, the
Office of Personnel. Management supports the enactment of S. 2240, as
amended.
The Office of Management and Budget advises that, from the stand-
point of the Administration's program, there is no objection to the
submission of this report on S. 2240, as amended.
Sincerely yours,
DONALD J. DEvINE, Director.
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SECTION-BY-SECTION ANALYSIS
The first section provides that the Act maybe cited as the "Federal
Employees Flexible and Compressed Work Schedules Act of 1982".
The second section amends. chapter 61 of title 5, United States Code;
by adding a new subchapter TI. Unless otherwise noted, section ref-
erences below are to sections of title 5, as added by the bill.
Section 6120 states the purpose for the legislation. Congress sees
the benefit of these schedules, being potential improved productivity
and greater service to the public.
Definitions.
Section 6121 of new subchapter II defines certain terms used in that
subchapter.
Paragraph (1) defines the term "agency"_...to mean an Executive
agency (see 5 U.S.C. 105) and a military department (see 5 U.S.C.
102) . This definition has been expanded from the experimental' period
to now include the Library of Congress. The term does not include the
Postal Service or the Postal Rate Commission.
Paragraph (2) provides that "employee" has the meaning given it
by section 2105 of title 5.
Paragraph (3) defines the term "basic work requirement" to mean
the number of hours, excluding overtime hours, which an employee is
required to work or is required to account for by leave or otherwise.
In view of the nature of a flexible schedule or compressed schedule
experiment, any standard for determining what constitutes a regular
work period must be adaptable to the particular flexible or compressed
schedule. Accordingly, an, employee's "basic work requirement" may
be, calculated on a daily, weekly, or biweekly basis depending on the
hours which a particular employee is required to work or to otherwise
account for. For example, a full-time employee working the stand-
ard 8-hour/5-day week has an 8-hour daily basic work requirement,
a 40-hour' weekly basic work requirement, and an 80-hour biweekly
basic work . requirement. An employee under a compressed schedule
such as the 5-4-9 program; which consists of a 9-hour day/5-day
workweek followed by an approximately 9-hour day/workweek has
a 9-hour daily basic work requirement, one 45-hour weekly basic work
requirement (first week), one 35-hour weekly basic work requirement
(second week), and an 80-hour biweekly basic work requirement. Sim-
ilarly, an employee under a compressed schedule which consists of
four 10-hour days each week, has a 10-hour daily basic work require-
ment. a 40-hour weekly basic work requirement, and an 80-hour bi-
weekly basic work requirement.
The phrase "is required to work or is required to account for by
leave or otherwise", indicates that in fulfilling a basic work require-
ment an employee may account for all or a portion of the required
,time through annual leave., sick leave, or other officially approved ab=
sence, or under a flexible schedule experiment,: through credit hours.
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. Paragraph (4) defines the term "credit hours" to mean any hours
within a flexible schedule which are in excess of the number of hours
in an employee's basic work requirement and which the employee
elects to work so as to vary the length of a workweek or workday.
Three requirements must be met before time worked qualifies as credit
hours : (1) the hours worked must fall within the flexible schedule,
i.e., within the designated hours during which an employee must
be present for work or the designated hours during which an employee
is. permitted to elect a time of arrival and time of departure from
work (see section 6122 discussed below) ;? (2) the hours worked must
be in excess of the employee's basic work requirement; and (3) the
employee must elect to work the hours.
Paragraph (5) defines the term "compressed schedule" to mean :
(A) in the case of a full-time employee, an 80-hour biweekly basic
work requirement which is scheduled for less than 10 full workdays;
and (B) in the case of a part-time employee, a biweekly basic work
requirement ,of less than 80 hours established for less than 10 days.
Paragraph (6) defines the term "overtime hours", when used with
respect to flexible schedule programs, to mean all hours in excess of
8 hours in a day or 40 hours in a week, which are officially ordered
in advance. Since overtime hours are those hours of work ordered in
advance, not those elected by the employee, overtime hours cannot
include credit hours.
Paragraph (7) of section 6121 defines the term "overtime hours",
when used with respect to compressed schedule programs, to mean
any hours in excess of those hours which constitute the compressed
schedule.
Flexible schedules
Section 6122 of new subchapter II authorizes agencies to use flexible
schedules and sets forth specific requirements and conditions with
respect to their use.
Section 6122(a) provides that flexible schedules may be used
"[n]otwithstanding section 6101 of title 5, United States Code". Sec-
tion 6101 of title 5 establishes certain requirements relating to work
schedules and workweeks, one of which is that each agency head must
establish a basic administrative workweek of 40 hours. This require-
ment precludes the use of flexible schedules designed to permit an
employee to vary the length of a workweek. If the requirements of
section 6101 conflict with a flexible schedule, those requirements shall be
deemed inapplicable.
Paragraph (1) and (2) of section 6122(a) set forth requirements
for flexible schedules. Paragraph (1) provides a flexible schedule
must include designated hours during which an employee must be
present for work. These designated hours are referred to as "core
time".
Paragraph (2) provides flexible schedules must also include des-
ignated hours during which an employee may elect the time of ar-
rival at and departure. from work, for the purpose of varying arrival
or departure times, or if and to the extent permitted, for the purpose
of accumulating credit hours. These designated hours are referred to
as "flexible hours". The last sentence of section 6122(a) provides that
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an employee's election with respect to his arrival or departure from
work is subject, to limitations generally prescribed, if any, to en-
sure that the duties and requirements of the employee's position are
fulfilled.
Section 6122(b) provides that if the head of an agency determines
that an organization . within the agency which is participating in. a
flexible schedule program is being substantially disrupted in carrying
out its functions or is incurring additional costs because of participa-
tion in the program, the agency head may : (A) -restrict the employee's
choice of arrival and departure time; (B) restrict the use of credit
hours; or (C) exclude from the program any employee or group of
employees.
Section 6122(b) specifically provides that actions by an agency are
subject to the requirements of section 6130 of new subchapter II.
Compensation for overtime hours and nightwork
Section 6123 of new subchapter II describes methods for computing
.premium pay for employees under a flexible schedule.
Section 6123(a) sets forth the method for determining compensa-
tion for overtime hours (as defined in section 6121(6), discussed
above) under a flexible schedule.
Paragraph (1) of section 6123 (a) permits liberal use of compen-
satory time off. (Compensatory time off, which permits an employee to
exchange an amount of time spent in overtime work for an equal
amount of time off, is analogous to credit hours.) Under existing law
(5 U.S.C. 5543(a) (1) ), compensatory time off may be granted only
for time spent in irregular or occasional overtime work. Paragraph
(1) provides an . employee may request compensatory time for all
overtime worked, not just that overtime which is irregular or occa-
sional in nature. Compensatory time, may be granted, upon request of
the employees, notwithstanding the provisions of section 5542 (a),
5543(a) (1), 5544(a), and 5550 of title 5, United States Code, section
4107(e) (5) of title'38, United States Code, or section 7 of the Fair
Labor Standards Act, as amended, each of which pertains to requiring
premium pay for tune warked in excess of 8 hours per day or 40 hours
per week. Since compensatory time aff may be granted nly upon the
request of the employee, the employee retains the right too receive over-
time pay if it is preferable to compensatory time off. Paragraph (2)
specifically states that unless an employee has requested and been.
granted compensatory time off, the employee shall be compensated for
overtime worked in accordance with applicable provisions of law.
This legislation does not relieve an agency of its existing statutory
.obligation to compensate an employee for? "overtime -hours", i.e., those
worked in excess of 8 ,hours in a day or 40 hours in a week. However,
due to the permissive nature of a flexible work schedule which allows
an employee to voluntarily extend his work hours to accumulate
credit hours, an accommodation with existing statutory provisions
relating to overtime entitlement is necessary.
For instance, section 5542(a) of title 5, United States Code, relating
to overtime rates, provides that "hours of work officially ordered or
approved" shall be compensated as overtime. Section 6121(6) of new
subchapter II, however, defines "overtime hours", for purposes of
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flexible schedules, as all hours in excess of 8 hours per day or 40'hours
per week which are "officialy ordered in advance". The requirement
that overtime be ordered in advance eliminates the problem which
would arise under a flexible schedule if an. agency were required to
determine, after the fact, whether it is appropriate to approve as "over-
time", hours in' excess of 8 hours per day or 40 hours per week which
an employee voluntarily elected to work.
? Similarly, section 7 of the Fair Labor Standards ?Act, as amended,
provides that "no employer. shall employ any of his employees .. .
for a.workweek longer than forty hours unless such employee receives
compensation for his employment in excess of the hours above speci-
fied at a rate not less than one and one-half times the regular rate at
which he is employed." Section 3 (g) of that act provides that " 'Em-
ploy' means to suffer or permit work." Thus, 'under 'that act an
employee under a flexible schedule may not voluntarily extend the
length of one workweek to-reduce the length of a subsequent work-
week.
Section 6123(b) of new subchapter II provides that notwithstanding
the provisions of law referred to in paragraph (1) of section 6123(a),
relating to compensation for overtime, an employee is not entitled to
compensation for credit hours worked except to the extent authorized
under section 6126 of-new subchapter II, or_ to. the extent he is allowed
to have the credit hours taken into account with respect to his basic
work requirement.
Section 6123(c) governs night-shift differentials for employees.
under flexible schedules. Premium pay for. night work (night-shift
differential) is authorized, under several statutory provisions.
Section 5545 (a) of title 5, United-States Code, provides that night-
shift differential shall be paid to employees subject to that section for
all regularly scheduled work between the hours of 6 p.m. and 6 a.m.
Under flexible schedules,'the provisions of section 5545 (a), would en-
able an employee to earn night-shift differential simply by arriving or
departing, or working credit hours, during those hours for which
night-shift differential is required. Paragraph (1) of section 6123(c)
prevents this situation from occurring. It does note however, deny an
employee night-shift differential for overtime hours worked during a,
period when it is authorized; or for hours which must be worked during
such a period in order to fulfill a basic work requirement.
Paragraph (1) describes two situations in which the night-shift
differential must be paid. Subparagraph (A) provides that if (i) the
number of hours during which an employee must be present for work
("core time") plus (ii) the number of hours during which he may
elect to work credit hours or- elect the time of his arrival or departure
("flexible hours"), which occur outside the night work hours desig-
nated in or under section 5545 (a) of title 5, total less than 8 full hours,
the employee is entitled to night-shift differential for those hours ,
worked between 6 p.m. and 6 a.m. which, when combined with such'
total, do not exceed 8. hours.
For example, if the flexible schedule is established from 11 a.m. to
11 p.m. with the employee required to be present during the period
from 2 to 6 p.m., the maximum number of hours which the employee
can work prior to 6 p.m. is 7 hours. Accordingly, the employee is en-
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titled to night-shift differential for 1 hour worked between 6 p.m. and
11 p.m. since 1 hour must be worked during the night-shift period to
complete an 8-hour day under the flexible schedule. If the employee,
as a matter of personal preference, elects to work from 2 p.m. until 8
p.m., he still is entitled to only 1 hour of night-shift differential since
under the flexible schedule, he could have worked 7 hours prior to 6 p.m.
If, on the other hand, the flexible schedule is established from 9 a.m.
to 9 p.m. with employees required to be present from 12 noon to 3:30
p.m., an employee would have adequate opportunity to work 8 full
hours prior to 6 p.m. If as a matter of personal preference an employee
elected to begin work dne day at noon and work until 9 p.m., there
would be no entitlement to night-shift differential, although one credit
hour would be earned.
A second situation in which an employee assigned to a flexible sched-
ule is entitled to night-shift differential under section 5545 (a) of title 5,
is covered under subparagraph (B) of section 6123(c) (1). It provides
that if an employee is on a flexible schedule under which the hours dur-
ing which he, must be present for work ("core time") include any
hours designated in or under section 5545 (a) night-shift differential is
paid for hours so designated.
Paragraph (2) of section 6123(c) relates to night-shift differential
which, but for that paragraph, would be authorized for employees
under section 5343 (f) of title 5, United States Code, relating to night-
shift differential for prevailing rate employees, or section 4107(e) (2)
of title 38, United States Code, relating to night-shift differential for
nurses in veterans' hospitals.
Under section 5343 (f) a prevailing rate employee is entitled to night-
shift differential if a majority of the hours of his regularly scheduled
nonovertime work occur between the hours specified in that section.
Under section 4107(e) (2), a nurse is entitled to a differential when at
least 4 hours of regularly scheduled nonovertime work fall between .
the hours specified in that section.
Paragraph (2) of section 6123(c) preserves the existing statutory
bas Pis for entitlement to night-shift differential for employees subject
to sections 4343(f) of title 5, and 41.07(e) (2) of title 38, but. provides
those employee are not entitled to night-shift differential solely because
they elect to work credit hours, or. elect to arrive or depart at a time
of day for which night-shift differential is otherwise authorized.
Holidays
Section 6124 of new subchapter IT provides that notwithstanding
sections 6103 and 6104 of title 5, United States Code, an employee under
a flexible schedule who. is prevented or relieved from working on a day
designated as a holiday 'by Federal statute or Executive order is en-
titled to pay with respect to that day for 8 hours (or in the case of a
part-time employee, an appropriate portion of the employee's biweekly
basic work requirement, as determined under regulations prescribed by
the Office).
'Sections 6103 and 6104 of title 5, which govern pay for legal public
holidays, speak in terms of "workday" and "day on which an ordinary
day's work is performed". Under many flexible schedules, such terms
have no fixed meaning since under those schedules the "workday" or
"an ordinary day's work". may vary. Accordingly, section 6124 provides
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a fixed measure, he., 8 hours. for determining holiday pay for employees
under a flexible schedule. This provision ensures that an employee's
pay for a legal holiday under new subchapter II will be consistent with
existing law.
Time recording devices
Section 6125 of new subchapter II provides that notwithstanding
section 6106 of title 5, United States Code, an agency may use record-
ing clocks as part of flexible. schedule programs. Section 6106 pro-
hibits the use by an agency of a. recording clock in the District of
Columbia.
Additionally, the Bureau of Engraving and Printing of the De-
partment of the Treasury has been exempted from the time clock pro-
hibition of section 6106 for non-alternative work, schedules. This ex-
emption will allow the Bureau to operate economically and to be reim-
bursed by 'its customers for the direct and indirect costs of operation..
Credit hours; accumulation and compensation - -
Section 6126 of new subchapter IT limits the accumulation of credit
hours by an.employee under a flexible schedule and provides com-
pensation for accumulated credit hours in the event an employee ceases
to he subject to a flexible schedule.
Subsection (a) of section 6126 permits a full-time employee under
a flexible schedule to carry over, subject to any limitation prescribed
by the agency, a maximum of 24 credit hours from one biweekly pay
period to a subsequent biweekly pay period. A limitation on the num-
ber of credit hours which may be- carried over is necessary to- ensure
that credit hours are not accumulated and used as a basis for long
term leave. Section 6126 (a) also provides that accumulation of credit
hours for part-time employees is on a pro rata basis, and those em-
ployees are entitled to accumulate and carry over-a, number of credit
hours equal to one-fourth of a biweekly basic work requirement.
Subsection (b) of section 6126 provides compensation for unused
credit hours for an employee who is no longer subject to a flexible
schedule. A full-time employee is entitled to be paid at his then cur-
rent rate-of basic pay for not. more than 24 accumulated credit hours.
A part-time employee is entitled to compensation for those credit
hours accumulated which are not in excess of one-fourth of his bi-
weekly work requirement.-
Compressed schedules - -
- Section 6127 of new subchapter IT. authorizes agencies to use com-
pressed schedules.
Section 6127 (a) provides that. compressed 'schedule programs -may
be used "{nlotwithstanding section 6101 of title' 5, United States
Code." Section 6101 (a) (3) provides that except. when the head of an
agency determines that his organization would be seriously handi-
capped in carrying out its functions or that costs would be substan-
tially increased, he must, among .other things. establish a 5-day/8-
hour-day workweek. This is inconsistent with the use of compressed
schedules.
Section 6127(b) provides protections for employees when a majority
of employees in a unit do not wish to participate in a compressed
schedule program, or when participation would impose a personal
hardship.
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Paragraph (1) of section 6127(b) provides that an employee in a
unit with respect to which an organization of Government employees
has not been accorded exclusive recognition shall not be required to
participate in a compressed schedule program unless a majority of em-
ployees in the unit who would be included in the proposed program
have voted to be so included.
Paragraph (2) of section 6127(b) requires an agency to take cer-
tain steps, upon the request of an employee, if it determines that par-
ticipation in a compressed schedule would impose personal hardship.
To alleviate the personal hardship, the.agency must (A) except the
employee from the compressed schedule; or (B) reassign the employee
to the first position within the agency (i) which becomes vacant after
the determination of personal hardship has been made, (ii) which is
not included within the program, (iii) for which the employee is qual-
ified, and (iv) which is acceptable to the employee. The last sentence
of section 6127 (b) (2) requires that an agency make a personal hard-
ship determination within 10 days after written request for such. a
determination has been received.
Premium pay
Section 6128 of new subchapter II governs premium pay for over-
time hours worked by employees under compressed schedules.
Subsection (a) of section 6128 provides that the provisions of sec-
tions 5542(a), 5544(x), and 5550(2) of title 5, United States Code,
section 4107 (e) (5) of title 38, United States Code, and section 7 of the'
Fair Labor Standards Act, as amended, or the provisions of any other
law relating to premium pay for overtime work, shall not apply to
hours of work which constitute a compressed schedule. These sections
generally require premium pay for work in excess of 8 hours in a day.
Since a compressed schedule, by definition, entails workdays longer
than 8 hours, the existing laws relating to overtime make these sched-
ules, in terms of payroll costs, more expensive, than the standard
8-hour day/5-da workweek. Also by definition, a compressed schedule
cannot consist o7 a basic work requirement of greater than 80 hours in
any biweekly period, and section 6128 ('b) provides that hours worked
in excess of the compressed schedule shall be overtime and shall be paid
as provided under whatever statutory provisions referred in section
6128 (a) of new subchapter II are applicable to the employee. In the
case of a , part-time employee working under the same compressed
schedule as a full-time employee, overtime shall be paid after the same
number of hours of work in a day after which a full-time employee
receives overtime pay.
Premium pay for Sunday work
Section 6128 (e) provides that notwithstanding sections 5544 (a),
5546 (a), or 5550 (1) of 'title 5, United States,Code, or any other appli-
cable provision of law, in the case of any employee on a compressed'
schedule who performs work (other than overtime work) on a tour of
duty for any workday a part of which is performed on a Sunday, the
employee is entitled to pay for work performed during the entire tour
of duty at the rate of his basic pay, plus premium pay at a rate equal
to 25 percent of his rate of basic pay. Sections 5544(a), 5546(a), and
5550(1) of title 5,.United States Code, each limit the premium pay
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differenti i for Sunday work to no more than 8 hours, as that period
represents a basic workday for a full-time employee. Under a com-
pressed schedule the daily basic work requirement normally consists
of more than 8 hours and the 8-hour restriction on payment of pre-
mium pay is inequitable. Section 6128 (c) ensures that employees on a .
compressed schedule receive Sunday premium pay for all hours
worked on Sunday.
Premium pay for holiday work
Section 5546 (b) of title 5, United States Code, provides that an
employee who performs work on a holiday will not receive holiday
pay for work in excess of 8 hours, since hours worked in excess of 8 on
any day, including a holiday, are compensated as overtime hours.
Under a compressed schedule, the daily basic work requirement nor-
mally consists of more than 8 hours, and, as is the case with Sunday
premium pay discussed above, the 8-hour restriction on payment of
premium pay would be inequitable. Acycordingly, suction 6128 (d) pro-
vides that notwithstanding section 5546 (b) of title 5, an employee on
a compressed schedule who performs work on a holiday designated by
statute or Executive order is entitled to pay at,the rate of his basic pay,
plus premium pay at a rate equal to the rate of his basic pay, for such
work which is not in excess of. his basic work requirement. -If an
employee works hours in excess of his basic work requirement, those
hours would be overtime hours and section 6128(d) further provides
that the employee. is entitled . to premium pay in accordance with
applicable provisions of law relating to premium pay. for such over-
time hours.
Administration of leave and retirement provisions
Section 6129 of new subchapter II provides that for purposes of
administering sections 6303(a), 6304, 6307 (a) and (c), 6323, 6326, and
8339 (m) of title 5. United States Code, in the case of an employee who
is under any flexible schedule or compressed schedule references to a
day (or to multiples of parts thereof) contained in the above-stated
sections shall be considered to be reference to 8 hours -(or"to the respec-
tive multiples thereof).
The current provisions in title 5, United States Code, relating to sick,
annual, military, and funeral leave, and in some cases creditable service
for retirement purposes, have as a frame of reference the 8-hour day
with the result that the provisions are stated in terms of "days". Under
either a flexible or a compressed schedule experiment the basic work
requirement of a "day" could be more or less than 8 hours. Section 6129
translates the term "day" into an equivalent number of hours. This
section neither decreases nor increases any employee's existing entitle-
ment to leave, or. to creditable service for retirement purposes. Part-
time employees will continue to earn such entitlements on a pro rata
basis.
Application of programs in the. case of collective bargaining agree-
ments
Section 6130 provides for the application of alternative work sched-.
ules in the case of collective bargaining agreements.
Paragraph (1) of subsection (a) clarifies that the. institution; imple-
mentation, administration and termination of alternative work sched-
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ules is within the- collective bargaining process, subject to the other
provisions of the subchapter.
Paragraph (2) of subsection (a) provides that.employees within a
unit with respect to which an organization of Government employees
has been accorded exclusive recognition shall not be included under any
flexible or compressed schedule program except to the extent expressly
provided under, a written. agreement between the agency and such
organization.
Section 6130(b) prohibits any agency 'from participating in any
flexible or compressed schedule program if there is an agreement in
effect which contains, requirements to pay overtime which are incon-
sistent with the provisions of either section 6123 or 6128 or new sub-
chapter II, -as applicable. Sections 6123 and 6128, discussed above,
establish the conditions for payment of overtime under flexible and
compressed schedule programs. Therefore, any provisions of the con-
tract, which conflict with either section 6123 or 6128, as applicable, will
,have to be renegotiated for employees designated to participate in a
program before the program may commence.
Section 6131 establishes.criteria for alternative work schedules and a
review of agency decisions to not institute and to terminate alternative
work schedules.
Subsection (a) states that, subject to the provisions of subsection
(c), an agency shall not establish and shall promptly terminate a sched-
ule which.has had or would have an adverse agency impact. Subsection
(b) defines an adverse agency impact to be a reduction in agency pro-
ductivity, a dimunition in the level of service to the public or an in-
crease in the cost of agency operations. An increase. in agency costs
should-not be construed to mean de minimis costs. Reasonable admin-
istrative costs to institute, modify, or terminate a schedule cannot be
singled out as --sole proof of an adverse agency impact. These costs
should be considered in -relationship to the normal costs of administer-
ing a traditional work schedule. If in comparison to the traditional
work schedule it is apparent that costs have increased, grounds exist
for an adverse agency impact. However, agency evidence of undue
managerial burdens resulting from the operation and monitoring of the
program.is a proper consideration for determining an adverse agency
impact.
'Subsection (c) provides a resolution procedure if an impasse arises
between an agency and an exclusive representative over the institution
or termination of an alternative work schedule.
Paragraph (2) of subsection (c) provides that an impasse resulting
from an agency ? determination to not establish an alternative work
schedule. be presented to - the Federal' Service Impasses Panel. The
agency will bear the burden in showing that such a schedule is likely
to have an adverse agency impact. This-burden is not to be construed
to require the application of an overly rigorous evidentiary standard
since the issues will often involve the imprecise matters of productivity
and the level of service to the public. It is expected the Panel will hear
both sides of the issue and make its determination on the totality of
evidence presented. If the evidence presented indicates that an adverse
agency impact is likely to occur,, the Panel must uphold the -agency's
decision not to institute the. particular schedule at issue. If the Panel
finds that there is not sufficient evidence to support a conclusion that
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impose it on the agency.
Paragraph (3) of subsection (c) allows an agency at, any time to
reopen a collective bargaining agreement to seek termination of a
schedule if the agency determines that the schedule is having an
adverse impact. The agency must attempt to negotiate with the ex-
clusive representative over the question of termination. It is expected
that the agency will consider a less drastic alternative to termination
if that is possible. Any modification to the schedule is subject to the
noripal collective bargaining process, the authority of which resides
in other provisions of the-Code. If, however, the parties reach an
impasse over termination, the impasse shall be presented to and
resolved by the Panel. The burden again is on the agency to show
that the schedule has caused an adverse agency impact. If a suffi-
cient showing is made, the Panel must uphold the agency decision to
terminate. The Panel must rule on the'impasse within 60 days of its
presentation. Finally, an agency may not terminate a schedule until
the agreement covering such schedule is renegotiated, expires or ter-
minated pursuant to the agreement or where an impasse arose in the
reopening of the agreement, the date of the Panel's final decision.
The Committee does not intend for this section to preclude the
pursuit of other forms of relief where applicable. This section applies
solely, to impasses resulting from agency decisions to not establish
or to terminate a particular schedule. Refusals to negotiate, for in-
stance, will continue to be handled under the authority of chapter 71
of this title.
Subsection (d) provides for a restricted definition of a flexible
schedule. This restricted definition is only applicable to the provi-
sions of this section and section 4 of this Act. In this section, flexible
schedules means schedules which waive or utilize sections 5343(f),
5542(a), 5543(a) (1), 5544(a), 5545(a), and 1550 of this title and
sections 4107(e) (2) and (3) (5) of title 38, section 7 of the Fair
Labor Standards Act or any other law which deals with premium
pay, overtime, and night differentials. The intent of this section 'is_
to constrict the normal negotiation process only over alternative
work schedules that could not have been established prior to Public
Law 95-390. Flexible schedules that fall under this definition are
variable day, variable week, and maxiflex. All' are defined and dis-
cussed in the "Interim Report To The President And The Congress"
on the-alternative' work schedules experimental program.
Prohibition of coercion '
Section 6132 of new subchapter II provides protection against the
coercion of employees concerning participation in flexible or com-
pressed schedule programs. This provision recognizes the possibility
that an overly zealous agency supervisor or manager who recognizes
that certain payroll or other savings may accrue to his agency through
the introduction or implementation of a flexible or compressed sched-
ule could exert pressure on employees with" regard to such introduc-
tion or implementation.
Accordingly, subsection (a) of section 6132 prohibits an employee
from intimidating, threating, or coercing, or attempting to intimidate,
an adverse impact will occur, it is expected the Panel will direct the
parties to fully negotiate out the particular schedule and not to simply
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threaten, or coerce an employee for the-purpose of interfering with:
(1) the employee's right under section 6122 and 6123 to elect the time
of his arrival or departure, to work or not to work credit hours, or
to request compensatory time off in lieu of payment for overtime hours;
or (2) such employee's right under section 61.27(b) (1) to vote whether
or not to be included under a compressed schedule or such employee's
right to request an agency determination as to personal hardship under
section 6127(b) (2). Subsection -(b) of section 6132 defines the terms
"intimidate, threaten, or coerce" as including, but not limited to,
promising to confer or conferring any benefit (such as appointment,
promotion, or compensation), or effecting or threatening any reprisal
(such as .deprivation of appointment, promotion, or compensation).
Existing law authorizing flexible and compressed schedule experi-
ments provides procedures for disciplining employees who coerce
other employees (see Public Law 95-390, section 303 (b)) . The passage
of the Civil Service Reform Act of 1978 (Public Law 95-454) has
made these procedures unnecessary. Under that Act, the Special Coun-
sel of the Merit Systems Protection Board 'is responsible for investi-
gating violations of civil service laws (see 5 U.S.C. 1206(c) (1) (D) ),
and the procedures for initiating disciplinary action in such cases, as
well as the penalties which may be imposed, are spelled out (see 5
U.S.C. 1206, 1207).'
Regvlations; technical assistance; program review
Section 6133'(a) - requires the Office of Personnel Management to
prescribe regulations necessary for the administration of flexible and
compressed schedule programs.
Section 6132(b) (1) requires the Office to provide: educational ma-
terial, and technical aids and assistance, for use by agencies in con=
nection with establishing and maintaining flexible and compressed
schedule programs.
Section 6133 (b) (2) provides that in order to provide the most ef-
fective materials, aids, and asistance, the Office shall conduct periodic
reviews of flexible and compressed schedule programs particularly
insofar as those programs may affect: (1) the efficiency of Govern-
ment operations; (2) mass transit facilities and traffic; (3) levels of
energy consumption; (4) service to the public; (5) increased oppor-
tunities for full-time and part-time employment; and (6)' employees
job satisfaction and nonwork-life.
Section 6133 (c) provides. that, with respect to employment in the
Library of Congress, the Librarian of Congress will prescribe regula-
tions necessary for the administration of flexible and compressed sche-
dule programs.
This section would amend the definition of "part-time career' em-
ployment" in section 3401 of title 5, United States Code, to reflect the
possibility of part-time employment under an alternative work
schedule.
SECTION 4
This section authorizes an agency to continue a schedule established
pursuant to Public Law 95-390 subject to a review within 90 days
following the date of enactment. If an agency finds a schedule to have
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reduced productivity, diminished service to the public, or increased
cost in agency operations, the agency shall immediately terminate
such a schedule irrespective of any negotiated agreement. Such - a
termination is nonreviewable.
Section 5 provides that the authorization for this program ends
three years after the date of enactment.
COST
In accordance with Rule XXVI, paragraph 11(a) of the Standing
Rules of the Senate, the Committee received the following cost esti-
mate for S. 2240:
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFIUE,
Washington, D.C., April 16,1982.
Hon. WILLIAM V. ROTH, Jr.,
Chairman, Committee on Governmental Affairs, U.S. Senate, Wash-
ington, D.C.
DEAR MR. CHAIRMAN: Pursuant to Section'403 bf the Congressional
Budget Act of 1974, the Congressional Budget Office has prepared the
attached cost estimate for S. 2240, the Federal Employees Flexible and
Compressed- Work Schedules Act of 1982.
Should the. Committee so desire, we would be pleased to provide
further details on
Sincerely,
ALICE M. Ri_viaN, Director.
1 . Bill number : S. 2240.
2. Bill title: Federal Employees Flexible and Compressed Work
Schedules Act of 1982.
3. Bill status : As ordered reported by the Senate Committee on Gov-
ernmental Affairs, April 12, 1982.
4. Bill purpose : This bill would provide permanent authorization
for federal agencies to use flexible and compressed employee work
schedules. The bill would also authorize the use of time clocks by the
Bureau of Engraving. and Printing.
5. Cost estimate :
Authorization level :
Fiscal year :
Millions
.,1983 -------------------------------------------------------
- $0.4
1984 -------------------------------------------------------
- -1.0
1985 -------------------------------------------------------
- -1.1
1986 --------------------------------------------------------
- -1.2
1987 -------------------------------------------------------
- -1.2
Estimated outlays :
Fiscal year:
1983
--------------------------------------------------------
.4
1984
--------------------------------------------------------
-1.0
1985
---------------------------------------------------------
-1.1
1986
---------------------------------------------------------
-1.2
1987
--------------------------------------------------------
-1.2
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6. Basis of estimate : The primary cost impact of this bill would result
from the provision permitting the use of time clocks by the Bureau of
Engraving and Printing. Initial implementation costs for this provi-
sion include $500,000 for installation of time-keeping equipment. The
Bureau of Engraving and Printing expects to eliminate approximately
55 clerical positions as a result of the utilization of time clocks. The
labor force reduction would result in savings of approximately $1.1 to
$1.3 million annually in fiscal years 1984 through 1987, assuming the
system is fully operational by the beginning of fiscal year 1984. The
labor force reductions would result-in smaller savings of about $200,000
in fiscal year 1983, as positions are vacated through attrition and are
not filled.
Costs incurred and savings realized by the Bureau of Engraving and
Printing would be reflected in the Bureau's charges to. its customer
agencies. This estimate assumes that the labor force reduction at the
Bureau of Engraving-and Printing is achieved through attrition and
by reassigning displaced employees to other positions at the Bureau.
If any layoffs are required, severance pay and related costs would re-
duce the estimate savings.
It is estimated that there will be little additional cost, and perhap's
some initial savings, resulting from extension of the authority for flexi-
ble and compressed employee work schedules. Since regulations and
educational materials have already been developed, requirements of the
bill relating to these items are not expected to have significant budg-
etary impact. The costs of reviewing agency programs will depend on
the level of effort the Office of Personnel Management devotes to this
requirement. Costs for this effort are not likely. to exceed $100,000 per
year. In 1982, some savings might be realized because agencies won't
have to undertake the administrative and educational tasks associated
with changing to more restrictive work schedules when the current au-
thorization expires in March..
7. Estimate comparison : The Department of the Treasury estimates
savings of approximately $1 million per year would result from enact-
ment of the time clock provision of this bill. This is consistent with the
CBO estimate.
8. Previous CBO estimate : CBO prepared a cost estimate for H.R.
5366, the House version of S. 2240, on February 9;1982 for the House
Committee on Post Office and Civil Service. The earlier cost estimate
did not provide for the use of time clocks by the Bureau of Engraving
and Printing.
9. Estimate prepared by : Judy L. Walker.
10. Estimate approved by :
JAMES L. BLUM,
Assistant Director for Budget Analysis.
EVALUATION OF REGULATORY IMPACT
Paragraph 11(b) (1) of Rule XXVI requires each report accom-
panyinn a bill to evali;La,te "the regulatory impact which would be in-
curred in carrying out the bill."
S. 2240 will not have any re?-ulatorv impact. It does not authorize
any additional regulation of activities in the private sector, impose any
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new record keeping or.reporting requirements on any segment of the
public, or abolish any existing regulations.
COMMITTEE ACTION
In compliance with paragraph 7 (c) of rule XXVI of the Standing
Rules of the Senate, .the committee voted to favorably report S. 2240
as follows:
YEAS-14 NAYS-1
Senator Percy
Senator Stevens
Senator Mathias
Senator Danforth'
Senator Cohen
Senator Durenberger
Senator Mattingly
Senator Eagleton
Senator Chiles
Senator Nunn
Senator Glenn
Senator Pryor
Senator Levin
Senator Roth
CHANGES IN EXISTING LAW
In compliance with subsection 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill, as re-
ported are shown as follows (existing law proposed to be omitted is
enclosed in black brackets, new matter is printed in italic, and existing
law in which no changes are proposed is shown in roman) :
TITLE 5,. UNITED STATES CODE
PART III-EMPLOYEES
? 3401. Definitions
(2) "part-time career employment" means part-time employment
of 16 to 32 hours a week (or. 32 or 6If hours during a biweekly pay
period in the case of a flexible or compressed work schedule under sub-
chapter II of chapter 61 of this title) under a schedule consisting of
an equal or varied number of'hours per day, whether in a position
which would be part-time without regard to this section or one estab-
lisehd to allow job-sharing or comparable arrangements, but does not
include employment on a temporary or intermittent basis.
* s * * * q * *
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Subpart E-Attendance and Leave
CHAPTER 61-HOURS OF WORK
Subchapter I-General Provisions
sec.
6101. Basic 40-hour workweek ; work schedules ; regulations.
6102. [Repeated.]
6103. Holidays.
6104. Holidays ; daily, hourly, and piece-work basis employees.
6105. Closing of Executive departments.
6106. Time clocks ; restrictions.
SUBCHAPTER II-FLEXIBLE AND COMPRESSED WORK SCHEDULE
6121. Definitions.
6122. Flexible schedules; agencies authorized to use.
6123. Flexible schedules; computation of premium pay.
6124. -Flexible schedules; holidays.
6125. Flexible schedules; time-recording devices.
6126. Flexible schedules; credit hours.
6127. Compressed schedules; agencies authorized to use.
6128. Compressed schedules; computation of premium pay.
6129. Administration,of leave and retirement provisions.
6130. Application.of programs in the case of collective bargaining agreements.
6131. Criteria and review.
6132. Prohibition of coercion.
6133. Regulations; technical assistance; program review.
Subchapter I-General Provisions
? 6101. Basic 40-hour workweek; work schedules; regulations
(a) (1) For the purpose of this subsection, "employee" includes an
employee of the government of the District of Columbia and an em-
ployee whose pay is fixed and adjusted from time to time under section
5343 or 5349 of this title, or by a wage board or similar administrative
authority serving the same purpose, but does not include an employee
or individual excluded from the definition of employee in section
5541(2) of this title, except as specifically provided under this
paragraph.
s * * s s ? ?
Subchapter 11-Flexible and Compressed Work Schedules
? 6120. Purpose
"The Congress finds that the use of flexible and compressed work
schedules has the potential to improve productivity in the Federal
Government and provide greater service to the public.
? 6121. Definitions
For purposes.of this subehapter-
(1) "agency" means any Executive agency, any military de-
partment, and the Library of Congress ? -
(2) "employee" has the meaniing given it by section 2105 of
this title
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(3) "basic work requirement" means the number of hours, ex-
cluding overtime hours, which an employee is required to work
or is required to account for by leave or otherwise;
(4) "credit. hours" means any hours, within a flexible schedule
established under section 6122 of this title, which are in excess of
an employee's basic work requirement and which the employee
elects to work so as to vary the length of a workweek or a workday;
(5) "compressed schedule" means-
(A) in the case of a full-time employee, an 80-hour bi-
weekly basic work requirement which is scheduled for less
than 10 workdays, and
(B) in the case of a part-time employee,-a biweekly basic
work requirement of less than 80 hours which is scheduled
for less than 10 workdays;
(6) "overtime. hours", when used with respect to flexible sched-
ule programs under sections 6122 through 6126 of this. title,
means all hours in excess of 8 hours in a day or 40 hours in a*week
which are officially ordered in advance, but does not include credit
hours; and -
(7) "overtime hours", when used with respect to compressed
schedule programs under sections 6127 and 6128 of this title,
means any hours .in excess of those specified hours which con-
stitute the compressed schedule.
(8) "collective bargaining", "collective bargaining agreement",
and "exclusive representative" have the same meanings given
such terms-
(A) by section 7103(a) (12), (8), and (16) of this title,
respectively, in the case of any unit covered by chapter 71 of
this title; and
(B) in the case of any other unit, by the corresponding
provisions applicable under the personnal system covering
this unit.
? 6122. Flexible schedules; agencies authorized to use
(a) Notwithstanding section 6101 of this title, each agency may
establish, in accordance with this subchapter, programs which allow
the use of flexible schedules which include-
(1). designated hours and days during which an employee on
such a schedulemiust be present for work; and
(2) designated hours during which an employee on such a sched-
ule may elect the time of such employee's arrival at and departure
from work, solely for such purpose or, if and to the extent per-
mitted, for the purpose Hof accumulating credit hours to reduce
the length of the workweek or another workday.
An election by an employee referred to in paragraph (2) shall be
subject to limitations generally prescribed to ensure that the duties
and requirements of the employee's position are fulfilled.
(b) Notwithstanding any other provision of this subchapter, but
suh?ect to the terms of. any written agreement referred to in section
6130 (a) of this title, if the head of an agency determines that any
organization within the agency which is participating in a program
under subsection (a) is, being substantially disrupted in carrying out
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? 6123. Flexible schedules; computation of premium pay
(a) For purposes of determining, compensation for overtime hours
in the case of an employee participating in a program under section
6122 o f this title
(1) the head of an agency may, on request of the employee,
grant the' employee compensatory time off in lieu of payment for
such overtime hours, whether or not irregular or occasional in
nature and notwithstanding the provisions of sections 5542 (a),
5543(a) (1), 5544(a), and 5550 of this title, section 4107(e) (5)
of title 38, section 7 of the Fair Labor Standards Act (29 U.S.C.
207), or any other provision of law; or
(2) the employee shall be compensated for such overtime hours
in accordance eoith such provisions, as applicable.
(b) Notwithstanding the provisions of law referred to in subsection
(a) (1),of this section, an employee shall not be entitled to be compen-
sated for credit hours worked except to the extent authorized under
section 6126 of this title or to the extent such employee is allowed to
have such hours taken into account with respect to the employee's
basic work requirement.
(c) (1) Notwithstanding section 5545(a) of this title, premium pay
for nighticork will not be paid to an employee otherwise subject to
such section solely because the employee elects to work credit hours,
or elects a time of' arrival or departure, at a time of day for which
such premium pay is otherwise authorized, except'that-
(A) if an employee is on a flexible schedule under which-
(i) the number of hours during which such employee must
be present, for work, plus
(ii) the number of hours during which such employee may
elect to work credit hours or elect the time of arrival at and
departure from work,
which occur outside of the niahtwork hours designated in or
under such section 5545(a) total less than 8 hours, such premium
pay shall be paid for those hours which, when combined with
such. total, do not exceed 8 hours. and
(B) if an employee is on a flexible schedule under which the
hours that such employee must be present for work include any
hours designated in or under such section.55.G5(a), such premium
Dail shall he paid for such hours so desian.ated.
(2) Notwithstanding section 5345(f) of this title, and section 4107
(e). (2) of title 38, night differential will not he paid to any employee
otherwise sicb;ect to either of such sections solely because such employee
elects to work credit hours. or elects a time of arrival or departure, at a
time of rlafi for which nI.ryht differential is oth.erwise.authorized, except
that, such differential shall he paid to an employee on a flexible schedule
under this subchapter-
its functions or is incurring additional costs because of such partici-
pation, such agency head may-
(1) restrict the employees' choice of arrival and departure time,
(2) restrict the use of credit hours, or
(3) exclude from such program any employee or group of
employees.
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(A) in the case of an employee subject to subsection, (f) of such
section 5343, for which all or a majority of the hours of such
schedule for any -day fall between the hours specified in such sub-
section, or
(B) in the case of .a employee subject to subsection (e) (2) of
such section 4107, for which 4 hours Of such schedule fall between
the hours specified in such subsection.
?.6124.. Flexible schedules; holidays
Notwithstanding sections 6103 and 6104 of this title, if any employee
on a flexible schedule under section 6122 of this title is relieved or pre-
vented from working on a day designated as a holiday by Federal
statute or Executive order,such employee is entitled to pay with respect
to that day for 8 hours (or, in the case of a. part-time employee, an
appropriate portion of the employee's biweekly basic work requirement
as determined under regulations, prescribed by the Office of Personnel
Management).
? 6125. Flexible schedules; time-recording devices
Notwithstanding section 6106 Of this 'title, the Office of Personnel
Management or any agency may use recording clocks as part of pro-
grams under section 6122 of this title, and the Bureau of Engraving
and Printing may use recording clocks to record time and attendance
of employees of such Bureau without regard to whether the use of
recording clocks is part of a program under section 61922 ' o f this title.
? 6126. Flexible schedules; credit hours; accumulation and
compensation
(a) Subject to any limitation prescribed by the Office of Personnel
Management or the agency, ao full-time employee on a flexible schedule
ean.accumulate not more than 24 credit hours, and apart-time employee
can accumulate not more than one-fourth of the hours in such employ-
ee's biweekly basic work requirement, for carryover from a biweekly
pay period to a succeeding biweekly pay period for credit to the basic
work requirement for such period.
(b.) Any employee who is on a flexible schedule program under sec-
tion 6122 of this title and who is no longer subject to such a program
shall be paid at such employee's then current rate of basic pay for--
' (1) in the case of a full-time employee, not more than 24 credit
hours accumulated by such employee, or
(2) in the case of a part-time employee, the number of credit
hours (not in excess of one-fourth of the hours in such employee's
biweekly basic work requirement) accumulated by such employee.
? 6127. Compresed schedules; . agencies authorized to use
(a) Notwithstanding section 6401 of this title, each agency may
establish programs which use a 4-day workweek or other compressed
schedule.
(b) (1) An employee in a unit with respect to which an organization
of Government employees has not been accorded exclusive recognition
shall not be required to participate in any program under subsection
('a) unless a majority of the employees in such unit who, but for this
paragraph, would be included in such program have voted to be so
included.
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25
(2) Upon written request to any agency by an employee, the agency,
if it determines that participation in a program under subsection (a)
would impose a personal hardship on such employee, shall-
(A) except such employee from such program; or
(B) reassign such employee to the first position within the
(i) which becomes vacant after such determination,
(ii) which is not included within such program,
(iii) for which such employee is qualified, and
(iv) which is acceptable to the employee.
A determination by an agency under this paragraph shall be made not
later than 10 days after the day on which a written request for such
determination is received by the agency.
? 6128. Compressed schedules; computation of premium pay
(a) The provisions of sections 5542(a), 5544 (a), and 5550 (2) of this
title, section 4107 (e) (5) of title 38, section 7 of the Fair Labor Stand-
ards Act (29 U.S.C. 207), or any other law, which relate to premium
pay for overtime work, shall not apply to the hours which constitute a
compressed schedule.
(b) In the case of any full-time employee, hours worked in excess of
the compressed schedule shall be overtime hours and shall be paid for
as provided by the applicable provisions referred to'in subsection (a)
of this section. In the case of any part-time employee on a compressed
schedule, overtime pay shall begin to be paid after the same number of
hours of work after which a full-time employee on a similar schedule.
would begin to receive overtime pay.
(c) Notwithstanding section 5544(a), 5546(a), or 5550(1) of this
title, or any other applicable provision of law,.in the case of any full-
time employee on a compressed schedule who performs work (other
than overtime work) on a tour of duty for any workday a part of
which is performed on a. Sunday, such employee is entitled to pay
for work performed during the entire tour of duty at the rate of
such employee's basic pay, plus premium pay at a rate equal to 25
percent Of such basic pay rate.
(d) Notwithstanding section 5546(b) of this title, an employee on
a compressed. schedule who performs work on a holiday designated
by Federal statute or Executive order is entitled to pay at the rate
of such employee's basic pay, plus premium pay at a rate equal to
such basic pay rate, for such work which is not in excess of the basic
work requirement of such employee for such clay. For hours worked
on such a holiday in excess. of the basic work requirement for such
day, the employee is entitled to premium p in accordance with the
provisions of section 5542(a)' or 5544(a) othis title, as applicable,
or the provisions of section 7 of the Fair Labor Standards Act (29
U.S.C. 207) whichever. provisions are more beneficial to the employee.
? 6129. Administration of leave and, retirement provisions
For, purposes of. administering sections 6303(a), 6304, 6307 (a)
and 7c) . 6323, 6326, and 8339 (m) of this title, in the case of an em-
ployee who is in any program under this subchapter, references to a.
clay or workday (or to multiples or parts thereof) contained in such
sections shall be considered to be references to 8 hours (or to the re-
spective multiples or parts thereof).
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? 6130. Application of programs in the case of collective bargain-
in; agreements
(a) (1) In the case of employees in a unit represented by an ex-
clusive representative, any flexible or compressed work schedule, and
the establishment and .termination of any such schedule, shall be sub-
ject to the provisions of this subchapter and, the terms of a collective
bargaining agreement between the agency.and the exclusive repre-
sentative.
(2) Employees within a unit represented by an exclusive repre-
sentative shall not be' included. within any program under this Sub-
chapter except to the extent expressly provided under a collective
bargaining agreement between the agency and the exclusive repre-
sentative.
(b) An agency may not participate.in a flexible or compressed
schedule program under a collective bargaining agreement which con-
tains premium pay provisions which are inconsistent with the pro-
visions of section 6123 or 6128 of this title, as applicable.
? 6131. Criteria. and review
(a) Notwithstanding, the preceding provisions of this subchapter or
any collective .bargaining .agreement and subject to subsection (c) of
this section, if the head of an agency finds that a particular flexible or
compressed schedule under this 'subchapter has had or would have an
adverse agency impact, the agency shall promptly determine not to-
1) establish such schedule; or
(1) continue such.schedule, if the schedule has already been es-
tablished.
(b) For purposes of this section, "adverse agency impact" means-
(1), a ,reduction of the productivity of the agency;
(2) a diminished level of services furnished to the public by
the agency; or
(3) an increase in the cost of agency operations.
(c) (1) This subsection shall apply in-the case of any, schedule cov-
ering employees in a unit represented by an exclusive representative.
(2) (A) If an agency and an exclusive representative reach an im-
passe in collective bargaining with respect to an agency determination
under subsection (a) (1) not to establish a flexible or compressed sched-
ude, the impasse shall be presented to the Federal Service Impasses
Panel (hereinafter in this section referred to as the "Panel"').
(B) The Panel shall promptly consider any case presented under
subparagraph (A), and shall take final action'in favor of the agency's
determination if the findina on which it is based is supported by evi-
dence that the schedule .is likely to cause an adverse agency impact.
(3) (A) If an agency. and an exclusive representative have en-
tered into a collective bargaining agreement providing for use of a
flexible or compressed schedule under this subchapter and the head of
the agency determines under subsection (a) (2) to terminate a flexible
or compressed schedule, the agency may reopen the agreement to seek
termination of the schedule involved.
(B) If the agency and exclusive representative reach an impasse in
collective bargaining with respect to terminating such schedule, the
impasse shall be presented to the Panel.
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27
(C) The Panel shall promptly consider any case presented under
subparagraph (B), and shall rule on such impasse not later than 60
days after the date the Panel is presented the impasse. The Panel shall
take final action in favor of the agency's determination to terminate a
schedule if the finding on which the determination is based is supported
by evidence that the schedule has caused an adverse agency impact.
(D) Any such schedule may not be terminated until-
(i) the agreement covering such schedule is renegotiated or ex-
pires or terminates pursuant to the terms of that agreement; or
(ii) the date of the Panel's final decision, if an impasse arose in
the reopening of the agreement under, subparagraph (A) of this
paragraph.
(d) This section shall not apply with respect to flexible schedules
that may be established without regard to the authority provided un-
der this subchapter.
? 6132. Prohibition of coercion
(a) An employee may not directly or indirectly intimidate, threaten,
,or coerce, or attempt to intimidate, threaten, or coerce, any other em-`
plo yee for the purpose of interfering with-- ,
(1) such employee's rights under sections 6122 through 6126 of
this title to elect a time of arrival or departure, to work or not to
work credit hours, or to request or not to request compensatory
time off in lieu of payment for overtime hours; or
(L) such employee's right under section 6127 (b) (1) of this title
to vote whether or not to be included within a compressed schedule
program or such employee's right to request an agency determina-
tion under section 6127 (b) (2) of this title.
(b) For the purpose of subsection (a), the term "intimidate, threat-
en, or coerce" includes, but is not limited to, promising to confer or
conferring any benefit (such as appointment, promotion, or compen-
sation), or 'effecting or threatening to effect any reprisal (such as
deprivation of appointment, promotion, or compensation).
? 6113. Regulations; technical assistance; program review
(a) The Office of Personnel Management shall prescribe regulations
necessary for the administration of the programs established under this
subcha ter.
(b) (1) The Office shall provide educational material, and technical
aids and assistance, for use by an agency in connection with establish-
ing and maintaining programs under this subchapter.
(2) In order to provide the most effective materials, aids, and assist-.
once under paragraph (1), the O fjlce shall conduct periodic reviews of
programs established by agencies under this subchapter particularly
insofar as such programs may affect-
(A) the efficiency of Government operations;
(B) mass transit facilities and traffic;
(C) levels of energy consumption;
(D) service to the public;
(E) increased opportunities for full-time and part-time employ-
mentt, and
(F) employees' job satisfaction and nonworklife.
(c) With respect to employees in the Library of Congress, the au-
thority granted to the Office of Personnel Management under this sub-
chapter shall be exercised by the Librarian of Congress.
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ADDITIONAL VIEWS OF MR. RUDMAN
Before providing for permanent authorization for federal agencies.
to use flexible and compressed work schedules, I think we should con-
sider the service aspects of the federal government and the actual bene-
fits which have been derived from the three-year flexible and com-
pressed work schedules. experiment. My own experience with flexitime
leads me to question the whole concept. Because some federal em-
ployees are on work schedules that differ from normal work hours,
constituents in need of their expertise are many times unable to con-
tact them. Most people in the country are on- a normal working sched-
ule, and agencies were established, in large part, to provide services for
those people. This service is somewhat impaired when agency em-
ployees are on flexitime. Consequently, .1 wonder whether or not we are
going too far in accommodating the wishes of the.individuals in gov-
ernment who are supposed to serve the country. Additionally, I think
it is interesting to note. that the OPM report on flexitime indicates that
flexitime did not significantly reduce productivity. This is interesting
in light of the fact that the argument has been that flexitime would
raise morale and increase productivity. If there has been no appreci-
able increase in productivity due to flexitime, I question the merit of
extending the experimental program to the status of permanent author-
ization.
WARREN B. RUDMAN.
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