FAIR LABOR STANDARDS

Summary

Section 203 of the Congressional Accountability Act (CAA) applies certain rights and protections of the Fair Labor Standards Act of 1938 (FLSA) to covered employees. These rights and protections require payment of the minimum wage and overtime compensation to nonexempt employees, restrict child labor, and prohibit sex discrimination in wages paid to men and women.

The CAA requires the Board to issue regulations that must ordinarily be the same as the substantive regulations promulgated by the Secretary of Labor ("Secretary") under the FLSA. The CAA also specifically requires the Board to issue regulations: (i) defining interns, who are exempt from coverage, and (ii) establishing special requirements regarding overtime pay and compensatory time off for covered employees whose work schedules depend directly on the schedule of the House or the Senate.

The Secretary, through the Wage and Hour Division, has issued numerous Interpretive Bulletins and other interpretations and opinions regarding the FLSA. The Board has stated that it will give due consideration to the Secretary's interpretations of the FLSA, and that employing offices may rely on the Secretary's interpretations, in understanding FLSA rights and protections as applied by the CAA, in certain circumstances as explained below.

This summary describes the Fair Labor Standards rights and protections applied by the CAA, followed by "questions and answers."

1. Coverage

The CAA provides that interns, as defined in regulations of the Board, are not covered by the Fair Labor Standards provisions of the CAA. The Board's regulations define an intern as an individual who:

• is performing services in an employing office as part of a demonstrated educational plan, and
  
• is appointed on a temporary basis for a period not to exceed 12 months, provided that, if the intern is appointed for a shorter period, the intern may be reappointed as long as the total length of the internship does not exceed 12 months.

The Board's regulations further provide that the definition of intern does not include volunteers, fellows, or pages, so the definition does not cause such individuals to be excluded
from coverage.

The covered employees and employing offices subject generally to the CAA are described in the Introductory section.

2. Basic Wage and Hour Standards

Except for employees to whom a specific exemption or exclusion applies, all covered employees are entitled to the following minimum wage and overtime compensation:

• Minimum wage. Covered employees are entitled to be paid a minimum wage rate, currently $5.15 an hour.
  
• Overtime compensation. Covered employees are entitled to be paid for all hours worked over 40 in a workweek at a rate not less than one-and-one-half times the employee's regular rate of pay.

The hours of employment that are subject to overtime requirements may include hours in addition to time the employee is required to work, if the employing office suffers or permits the employee to work the additional hours.

Generally, minimum wage and overtime need not be paid for --

• travel time to and from the workplace, and
  
• other preliminary and postliminary activities,

3. Exempt Employees

a. Executive, administrative, and professional employees

Covered employees employed in a bona fide executive, administrative, or professional capacity are exempt from the basic wage and hour standards. The criteria for these exemptions are set forth in the Board's regulations. The Board emphasized that actual function, and not description or job title, determines the exempt status of a covered employee. The key criteria are --

Executive capacity --

• primary duty is management of his or her employing office or of a department or subdivision thereof; and
  
• primary duty includes directing the work of two or more other employees; and
  
• compensation is on a salary basis, not less than $250/week.

Administrative capacity --

• primary duty is office or nonmanual work directly related to management policies or general business operations of the employer or its customers; and
  
• primary duty includes work requiring the exercise of discretion and independent judgment; and
  
• compensation is on a salary or fee basis, not less than $250/week.

Professional capacity --

• primary duty consists of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study (as distinguished from a general academic education); and
  
• primary duty includes work requiring consistent exercise of discretion and judgment; and
  
• compensation is on a salary or fee basis, not less than $250/week.

Separate rules apply for artists, teachers and academic administrative personnel in elementary and secondary schools, and persons in certain highly specialized, computer-related occupations.

The regulations issued by the Board also provide that a salaried executive, administrative, or professional employee does not become non-exempt because the employee's pay is reduced or the employee is placed on unpaid leave, in certain circumstances, for partial day absences.

b. Partial exemption for law enforcement and fire protection employees

The regulations of the Board provide a partial overtime-pay exemption for covered employees in law enforcement and fire protection positions. For law enforcement employees who have a work period of at least 7 but less than 28 consecutive days, no overtime compensation is required until the number of hours worked exceeds the number of hours that bears the same relationship to 171 as the number of days in the work period bears to 28. For fire protection employees who have a work period of at least 7 but less than 28 consecutive days, no overtime compensation is required until the number of hours worked exceeds the number of hours that bears the same relationship to 212 as the number of days in the work period bears to 28. Compensatory time, in lieu of overtime pay, may be available insofar as covered employees perform duties that satisfy the standard that is explained in Section 4(a) below.

4. Irregular Work Schedules

a. Compensatory time off for employees whose schedules directly depend on the schedule of the House of Representatives and the Senate

The Board has issued regulations authorizing employing offices to provide compensatory time off, instead of overtime pay, for covered employees whose work schedules "directly depend" on the schedule of the House of Representatives and the Senate.

A covered employee's work schedule directly depends on the schedule of the House or the Senate if the eligible employee --

• performs work that directly supports the conduct of business in the chamber, and
  
• works hours that regularly change in response to the schedule of the House and the Senate.

• pay, at the rate of time-and-a-half, for all hours in excess of 40 and up to 60 in a work week, and
  
• pay or time off, at the rate of time-and-a-half, for all hours in excess of 60 in a work week.

Furthermore, the Board has concluded that these regulations do not apply to compensatory time off that accrued under other rules prior to January 23, 1996 (the effective date of the CAA), and disputes over the use of such time off should be directed to the authorities previously responsible for the rules.

b. Other methods used to compute overtime for irregular or fluctuating hours

The Board has identified three additional methods that may be used to stabilize or reduce payroll costs for employees who work irregular or fluctuating hours. These methods are allowed under the FLSA, and the Board has stated that these methods are available to employing offices under the CAA as well:

• Time-off plan for the same pay period.

An essential feature of a time-off plan is that the employer can control earnings by controlling the number of hours an employee is permitted to work. For this reason, such a plan cannot be applied to an employee whose pay period is weekly, nor to a salaried employee who is paid a fixed salary to cover all hours he or she may work in any particular work week or pay period. Further, the overtime hours cannot be accumulated for time off to be given in another pay period.

• Fixed salary for fluctuating hours.

This "fixed salary for fluctuating hours" method allows an employing office to stabilize the amount paid per pay period, without need for the close supervision and control of the employee's hours that is required for a time-off plan. However, the amount of pay will fluctuate somewhat whenever the employee works overtime, because the fixed salary must be supplemented with an overtime premium, for the overtime hours worked, of one-half the regular rate of pay.

• Guaranteed compensation plan for irregular hours; "Belo" Contracts.

(1) the arrangement is pursuant to a specific agreement between the employee and the employer, or a collective bargaining agreement;

(2) the employee's duties necessitate irregular hours of work;

(3) the fluctuation in the employee's hours is not entirely in the overtime range; and

(4) the contract guarantees a weekly overtime payment not to exceed 60 hours per week and the employee receives that payment regardless of the number of hours actually worked.

5. Matters Not Regulated by the Fair Labor Standards Provisions of the CAA

While the wage and hour provisions of the CAA set basic minimum wage and overtime pay standards, there are many employment practices regarding hours and pay that the FLSA does not regulate. For example, the CAA does not require:

• vacation, holiday, severance, or sick pay;
  
• meal or rest periods, holidays off, or vacations;
  
• premium pay for weekend or holiday work;
  
• premium pay for work in excess of 8 hours per day, provided work does not exceed 40 hours in a workweek;
  
• discharge notice, reason for discharge, or immediate payment of final wages to terminated employees;
  
• severance pay.

Although not regulated under the CAA, some of these and similar matters are regulated for certain employing offices by applicable House or Senate rules, civil service laws, or regulations established by the individual employing office. Furthermore, an employing office's personnel practices with respect to these matters may be unlawful if they discriminate on the basis of race, color, religion, sex, national origin, age, or disability. (See sections of the Manual on employment discrimination.)

6. Equal Pay Provisions

Section 203 of the CAA also applies the rights and protections of the Equal Pay Act provisions of the FLSA, which prohibit employers from discriminating between men and women on the basis of sex in the payment of wages when they perform substantially equal work under similar working conditions in the same establishment. The law also prohibits employing offices from reducing the wages of either sex to comply with the law.

The law does not apply to pay differences based on factors other than sex, such as seniority, merit, or systems that determine wages based upon the quantity or quality of items produced or processed.

The Board has not adopted regulations on the Equal Pay rights and protections as applied by the CAA. However, employing offices and covered employees may find it helpful to refer to court decisions interpreting Title VII, as well as the interpretations, opinions, and other materials issued by the Equal Employment Opportunity Commission (EEOC), which is responsible for implementing the Equal Pay Act. The Board has stated that it will recognize these interpretations, as appropriate.

7. Child Labor Standards

The law provides that covered employees 18 years or older may perform any job, whether hazardous or not, for unlimited hours.

Covered employees 16 and 17 years old may perform any nonhazardous job for unlimited hours. The Board has issued regulations, applicable to the congressional instrumentalities, declaring certain occupations to be too dangerous for covered employees between 16 and 18 years of age to perform. The Board has stated that such regulations are included given the hazardous nature of some of the support functions conducted by the instrumentalities, such as maintenance and repair.

Under the Board's regulations, covered employees 14 and 15 years old may work outside school hours in various nonhazardous jobs under the following conditions: No more than 3 hours on a school day, 18 hours in a school week, 8 hours on a nonschool day, or 40 hours in a nonschool week. Also, work may not begin before 7 a.m., nor end after 7 p.m., except from June 1 through Labor Day, when evening hours are extended to 9 p.m. The Board has not issued regulations authorizing employment of youths 14 and 15 years old in the House of Representatives, however, because the House by law sets a minimum age of 16 for its employees.

8. Intimidation or Reprisal

Intimidation, reprisal, or discrimination against a covered employee for opposing practices or for initiating or participating in a proceeding is prohibited, as described in the Introductory section.

9. Remedies

In case of a violation of the Fair Labor Standards provisions of the CAA, the covered
employee may recover --

• unpaid minimum wages, or unpaid overtime compensation, and
• an additional equal amount as liquidated damages.

Regulations of the Board state that an employing office may not be held liable for a failure to pay minimum wage or overtime compensation if the employing office proves that it relied in good faith on a written administrative regulation, order, ruling, approval or interpretation of the Wage and Hour Administrator of the Department of Labor. The Board has also indicated that liquidated damages may be excused if the employing office shows that its act or omission was in good faith.

These remedies and defenses should apply as well in the case of Equal Pay rights and protections applied by the CAA. The Board has stated that interpretations made by the EEOC, which is responsible for implementing the Equal Pay provisions of the FLSA, would be recognized under the CAA, as appropriate.

FAIR LABOR STANDARDS

Questions and Answers

1. Q. What are the basic wage and hour requirements of the Fair Labor Standards Act, as applied by section 203 of the CAA?

A. Section 203 of the CAA establishes a minimum wage rate (currently $5.15 per hour) and requires overtime compensation at time-and-a-half the regular rate of pay after 40 hours of work during a given work week for all nonexempt employees. The FLSA also contains restrictions on the use of child labor and, as added by the Equal Pay Act, prohibits discrimination in wages on the basis of sex.

2. Q. What employment practices are not regulated by section 203?

A. The law does not require vacation, holiday, severance, or sick pay; it does not require meal or rest periods, holidays off, or vacations; it does not require premium pay for weekend or holiday work; it does not mandate pay raises or fringe benefits; it does not require a discharge notice, reason for discharge, or immediate payment of final wages to a terminated employee. (It should be noted that under the Worker Adjustment and Retraining Act (WARN), as applied by Section 205 of the CAA, does impose a 60-day notice requirement in certain circumstances in connection with prospective closings or layoffs.)

3. Q. Must an employing office count as hours worked the time spent on a meal break?

A. No, if the meal break is a bona fide meal period (ordinarily 30 minutes or longer is long enough) and the employing office does not require or permit an employee to engage in any work activity during the meal break. On the other hand, if the employing office requires or permits the employee to engage in any work through the meal period, that time is counted as hours worked. For example, it is considered compensable work for an employee to answer the phone while eating at his or her desk during the break.

4. Q. Must an employing office count as hours worked time when the employee is "on-call"?

A. An employee who is required to remain "on call" at or near the employer's premises so that he cannot use the time effectively for his own personal pursuits is considered to be working and such time will be counted as hours worked for FLSA purposes. An employee is not necessarily considered working where he or she is required to leave a telephone number, either at home or with the employing office so that he or she may be reached while "on call," or where the employee needs only to respond to a page received during the "on call period." If such an employee relieved from duty for a long enough period that he or she is free to use the time effectively for his or her own purposes, the "on call" time is not work time.

5. Q. Are employing offices required to implement a specific type of annual leave policy?

A. No. Employing offices may set any annual leave policy they wish, as long as it is not administered in a discriminatory fashion.

6. Q. Is there a limitation on the number of hours an employee may work in a day or work week?

A. No. There is no limitation on the number of hours an employee may work in any workday or work week. An employee may work as many hours as the employee and the employer see fit, as long as the employee is paid in accordance with the FLSA's requirements. For example, an employing office could adopt a 4-day, 10-hour work week.

7. Q. May an employing office pay a nonexempt employee on a monthly salary basis rather than an hourly basis?

A. Yes. A nonexempt employee for whom an employing office must meet the minimum wage and overtime requirements of the FLSA may still be paid on a monthly salary basis. To determine whether an employee is being compensated in accordance with the FLSA, an employing office must calculate the salary in terms of a regular hourly wage rate. For purposes of determining overtime compensation, an employing office must utilize a 40-hour work week unless the employee is compensated for a fluctuating work week as described below. For example, a monthly salary can be converted to its equivalent weekly wage by multiplying by 12 (the number of months) and dividing by 52 (the number of weeks). The regularly hourly rate of pay is then computed by dividing the weekly salary by the number of hours that the salary is intended to compensate. For example, if an employee is hired at a monthly salary of $3,000,and it is understood that this salary is compensation for a regular work week of 40 hours, the regular hourly rate of pay is $17.31 [$3,000 x 12 = $36,000; $36,000 ÷ 52 = $692.31; $692.31 ÷ 40 = $17.31]. In this example, the employee is entitled to receive $17.31 for each of the first 40 hours and $25.97 (time and one-half) for each hour thereafter.

8. Q. May an employee be paid a monthly salary, with the understanding that it is considered straight time compensation for all hours worked and that the hours of work may fluctuate from week to week?

A. Yes. A salaried employee may have work hours that fluctuate from week to week and the salary may be paid pursuant to an understanding that such fixed amount is straight time pay for whatever hours the employee is called upon to work in a work week, whether few or many. There must be a clear mutual understanding of the parties that the fixed salary is compensation (apart from overtime premiums) for the hours worked in each work week, whatever their number, rather than for a fixed weekly work period such as 40 hours. However, the employing office is obligated to compensate the employee for overtime hours worked, as explained in the following question and answer.

9. Q. Where a fixed salary is paid for fluctuating hours of work, how is the overtime obligation satisfied?

A. Where an employee's work hours in a given week exceed 40 hours, overtime must be paid for the hours worked in excess of 40. However, since the salary is intended to compensate the employee at straight time rates for whatever hours are worked in a work week, the regular hourly wage rate of the employee will vary from week to week and is determined by dividing the number of hours worked in the work week by the amount of the salary to obtain the applicable hourly rate for the week. The overtime obligation is satisfied by multiplying the number of overtime hours at one-half (rather than time-and-a-half) the hourly rate. This is because those hours over 40 have already been compensated at the straight time regular rate under the mutual salary arrangement.

For example, suppose an employee is paid a weekly salary of $250 with the understanding that it constitutes compensation (except overtime premiums) for whatever hours are worked in a work week. If during the course of 4 weeks, the employee works 40, 44, 50, and 48 hours, his or her regular hourly rate of pay in each of these weeks is approximately $6.25, $5.68, $5, and $5.21, respectively. Since the employee has already received straight-time compensation on a salary basis for all hours worked, only additional half-time pay is due for hours over 40. For the first week the employee is entitled to be paid $250; for the second week $261.36 ($250 plus 4 hours at $2.84 [1/2 of $5.68]); for the third week $275 ($250 plus 10 hours at $2.50 [1/2 of $5]); for the fourth week approximately $270.88 ($250 plus 8 hours at $2.61 [1/2 of $5.21]).

10. Q. When must overtime be paid?

A. Overtime compensation does not have to be paid weekly. The general requirement is that overtime pay earned in a particular work week must be paid on the regular pay day for the period in which the work week ends. If the correct amount of overtime pay cannot be determined until some time after the regular pay period, the employing office must pay the overtime compensation as soon as practicable. Payment may not be delayed for a period longer than is necessary for the employing office to compute and arrange for payment, and in no event may payment be delayed before the next pay day after such computation can be made.

11. Q. Does an employing office have discretion to establish the relevant work week for overtime purposes?

A. Yes. An employing office may use any seven consecutive 24-hour periods, such as Monday to Sunday or Saturday to Friday, as the relevant work week. It must be fixed and regularly recurring, but may be changed if the change is intended to be permanent and is not designed to evade the overtime requirements of the FLSA.

12. Q. Which employees are exempt from the minimum wage and overtime requirements of the FLSA?

A. The exemptions that are likely to be most relevant to employing offices in the legislative branch are the so-called "white collar" exemptions for bona fide executive, administrative and professional employees. To qualify for such exempt status, an employee must be paid on a salary basis (not an hourly basis) and have job duties that meet certain criteria set forth in Part [S][H][C]541 of the regulations. The salary requirements for the administrative or professional exemption may be satisfied by employees who are compensated on a "fee basis," but only if the fee payments meet, by reference to a 40 hour work week, at least the minimum prescribed for professional and administrative employees (currently $170 and $155 per week, respectively, under the short test).

13. Q. Are written job descriptions legally determinative of whether an employee falls into one of the "white collar" exemptions?

A. No. Written job descriptions are useful for clarifying the responsibilities that an employee is expected to fulfill in a particular position. However, it is the job duties actually performed by an employee that are determinative of whether he or she is an exempt employee.

14. Q. Is there a limit on the number of exempt staff positions an employing office may have?

A. No. There is no numerical limit. However, if an employing office deems everyone in the office an exempt employee, it may have difficulty sustaining its burden of proof in litigation. As a practical matter, it is likely that there are nonexempt duties that must be performed in an employing office. To the extent that those nonexempt duties are performed by assertedly "exempt" employees, such employees may ultimately be found to be nonexempt (and therefore entitled to minimum wage and overtime).

15. Q. Are part-time employees entitled to overtime on the same basis as full-time employees?

A. Yes. The same criteria for determining whether an employee is non-exempt or exempt apply to part-time employees as to full time employees. Further, the 40-hour threshold remains the same. In other words, even if a part-time employee's normal work schedule is 30 hours a week, only the employee who works over 40 hours is eligible for overtime.

16. Q. May an employing office require an employee to sign a statement indicating the employee's exempt or non-exempt status?

A. Although an employing office may require an employee that it believes to be exempt to execute an agreement stipulating to the employee's exempt status, such agreement is not legally dispositive. The actual job duties of the employee are what determine the employee's exempt or non-exempt status. Thus, an employee required to sign a statement indicating that he or she is exempt may nonetheless pursue a claim against the employing office for any overtime that may be owed, and the burden of proof will be on the employing office to demonstrate that the employee's job duties render him or her exempt.

17. Q. May an employing office satisfy its overtime obligation by giving an employee compensatory time-off in lieu of overtime pay?

A. An employee whose work schedule directly depends on the schedule of the House or Senate is eligible for compensatory time-off for those hours worked over sixty in a work week. Except as may be permitted under a time-off plan (described below), other employees may not otherwise choose to accept compensatory time-off in lieu of overtime pay.

18. Q. What are time-off plans and how are they used?

A. Time-off plans allow employing offices to control earnings by controlling the number of hours an employee is permitted to work in a pay period. If an employee works over forty hours in one week, the employing office may lay off the employee (or an employee may, if permitted, chose not to work) during some other week or weeks of the same pay period to compensate the employee, at time and a half, for hours worked over forty in the earlier weeks. Obviously, if the pay period is only one week long, or if the overtime is worked in the last week of the pay period, the employing office may not use a time-off plan as an option, and must pay the employee for the overtime accrued.

Because time-off plans control the number of hours an employee may work, the Secretary of Labor has taken the position that such plans may not be used for salaried employees who are paid a fixed salary to cover all hours they may work in a work week or pay period.

19. Q. May employees waive their rights to overtime under the FLSA?

A. No. Employees may not waive their rights to overtime compensation. If the employing office does not want to pay for overtime, the employee may not work hours over 40 in a work week.

20. Q. How are federal holidays factored into computing compensable work time for purposes of both the minimum wage and overtime?

A. The law requires minimum wage and overtime pay only for all hours worked in a work week. If an employee does not come to work because the office is closed for the holiday, the holiday does not constitute work time for purposes of minimum wage and overtime. However, if an employee is authorized or suffered to work on the holiday even though the office is technically closed, that work time is considered work time.

21. Q. Would time spent by non-exempt employees at receptions after work count as work hours?

A. If the employee attends a reception at the employing office's request or attends for business reasons, primarily for the benefit of the employing office, the hours spent at the reception would count as work hours.

22. Q. Must an employing office compensate an outside contractor for overtime?

A. No. The FLSA applies only to employing office-employee relationships. Independent contractors are not considered to be employees. However, the mere designation of an individual as an independent contractor alone will not be enough to allow the individual to be considered an independent contractor. In determining whether an individual is an employee or an independent contractor under the FLSA, a variety of factors are considered including the degree of control exercised by the employer; the skill and initiative required in performing the job; and the permanency of the relationship. In assessing whether an individual is an employee or a contractor, the focus will be on what the individual actually did in the relationship, not what the individual could have done.

23. Q. If an employee attends a training session or seminar, does the time spent at the training session or seminar count as hours worked?

A. If the training is at the employing office's request, and is primarily for the benefit of the employing office, then the time spent at the training will be considered work time. If the training is conducted outside of regular work hours, is completely voluntary, does not result in productive work for the employing office, and is not intended to make the employee more proficient in his or her present job, attendance at the training would not be considered work time. Generally, all time spent performing an employee's principal and essential ancillary duties must be counted as work time. Principal duties would include an employee's productive tasks, while ancillary duties might include distribution of work, training, and attending functions on behalf of the employing office.

24. Q. If two individuals, one man and one woman, hold the same position, have the same level of experience, the same education, and perform the same work, may the employing office pay them at different rates?

A. No. The Equal Pay Act, which is part of the FLSA as applied by the CAA, requires employing offices to pay equal rates for equal work and employing offices may not discriminate on the basis of sex. It should be noted that the protections of the Equal Pay Act extend to employees who are bona fide executive, administrative, or professional employees and thus are otherwise exempt from the minimum wage and overtime requirements of the FLSA. (Section 201(a), which applies Title VII under the CAA, may also be implicated.)

25. Q. If an employing office is paying two individuals at a wage rate differential that violates the Equal Pay Act, may the office lower the salary of the higher paid employee to make it correspond with the salary of the lower paid employee?

A. No. The employing office must give a raise to the lower paid employee so that his or her salary matches that of the higher paid employee.

26. Q. Does the requirement to provide equal pay apply only to salary and wages?

A. No. The equal pay obligation extends to all forms of compensation including hourly wages, commissions, salaries, bonuses, vacation pay, health benefits, and other fringe benefits.

OFFICE OF COMPLIANCE

The Congressional Accountability Act of 1995: Extension of Rights and Protections Under the Fair Labor Standards Act of 1938 [Senate]

NOTICE OF ADOPTION OF REGULATIONS AND SUBMISSION FOR APPROVAL AND ISSUANCE OF INTERIM REGULATIONS

SUMMARY:

The Board of Directors of the Office of Compliance, after considering comments to its general Notice of Proposed Rulemaking published on November 28, 1995 in the Congressional Record, has adopted, and is submitting for approval by the Congress, final regulations to implement sections 203(a) and 203(c)(1) and (2) of the Congressional Accountability Act of 1995 ("CAA"), which apply certain rights and protections of the Fair Labor Standards Act of 1938. The Board is also adopting and issuing such regulations as interim regulations for the House, the Senate and the employing offices of the instrumentalities effective on January 23, 1996 or on the dates upon which appropriate resolutions are passed, whichever is later. The interim regulations shall expire on April 15, 1996 or on the dates on which appropriate resolutions concerning the Board's final regulations are passed by the House and the Senate, respectively, whichever is earlier.

FOR FURTHER INFORMATION CONTACT: Executive Director, Office of Compliance, Room LA 200, Library of Congress, Washington, D.C. 20540-1999. Telephone: (202) 724-9250.

SUPPLEMENTARY INFORMATION:

I. Background and Summary

The Congressional Accountability Act of 1995 ("CAA"), Pub. L. 104-1, 109 Stat. 3, was enacted on January 23, 1995. 2 U.S.C. §§ 1301 et seq. In general, the CAA applies the rights and protections of eleven federal labor and employment law statutes to covered employees and employing offices within the legislative branch. In addition, the statute establishes the Office of Compliance ("Office") with a Board of Directors ("Board") as "an independent office within the legislative branch of the Federal Government." Section 203(a) of the CAA applies the rights and protections of subsections a(1) and (d) of section 6, section 7, and section 12(c) of the Fair Labor Standards Act of 1938 ("FLSA") (29 U.S.C. 206(a)(1) and (d), 207, and 212(c)) to covered employees and employing offices. 2 U.S.C. § 1313. Section 203(c)(2) of the CAA directs the Board to issue substantive regulations that "shall be the same as substantive regulations issued by the Secretary of Labor . . . except insofar as the Board may determine, for good cause shown . . . that a modification of such regulations would be more effective for the implementation of the rights and protections under" the CAA. 2 U.S.C. § 1313(c)(2). On September 28, 1995, the Board of the Office of Compliance issued an Advance Notice of Proposed Rulemaking ("ANPR") soliciting comments from interested parties in order to obtain participation and information early in the rulemaking process. 141 Cong. Rec. S14542 (daily ed., Sept. 28, 1995).

On November 28, 1995, the Board published in the Congressional Record a Notice of Proposed Rulemaking (NPR) (141 Cong. Rec. S17603-27 (daily ed.)). In response to the NPR, the Board received six written comments, three of which were from offices of the Congress and three of which were from organizations associated with the business community and organized labor. The comments included requests that the Board should provide additional guidance to employing offices on complying with the CAA and compliance issues raised by the ambiguities in the Secretary of Labor's regulations.

Parenthetically, it should also be noted that, on October 11, 1995, the Board published a Notice of Proposed Rulemaking in the Congressional Record (141 Cong. R. S15025 (daily ed., October 11, 1995) ("NPR")), inviting comments from interested parties on the proposed FLSA regulations which the CAA directed the Board to issue on the definition of "intern" and on "irregular work schedules." Final regulations on those matters were separately adopted by the Board on January 16, 1996. However, because they are regulations implementing the rights and protections of the FLSA made applicable by the CAA, the Board has incorporated those regulations into the body of final regulations being adopted pursuant to this Notice. The definition of "intern" may be found in section [H or S]501.102(c) & (h), and the "irregular work schedules" regulation may be found in sections [H or S or C]553.301-553.304.

II. Consideration of public comments; the Board's response and modifications to the NPR's rules.

A. Requests that the Board provide additional guidance, including interpretative bulletins and opinion letters. The Board first turns to the issue of whether and in what circumstances the Board can and should give authoritative guidance to employing offices about issues arising from ambiguities in and uncertain applications of the Secretary's regulations. Commenters have formally and informally requested such guidance in various forms: that the Board change the Secretary's regulations to clarify ambiguities; that the Board adopt the Secretary's interpretive bulletins; that the Board issue the Secretary of Labor's interpretative bulletins as its own regulations; that the Board issue opinion letters constituting safe harbors from litigation; that the Board give its imprimatur, either formally or informally, to employee handbooks and other human resource activities of employing offices. Mindful that the Board's first decisions on these matters will have important institutional and legal implications, the Board has carefully considered these requests, as well as the underlying concerns they reflect.

At the outset, the Board must decline the suggestion that it modify the Secretary's regulations in order to remove the ambiguities and resulting uncertainties that Congressional offices will face in complying with the CAA once it takes effect. The Board's authority to modify the regulations of the Secretary is explicitly limited by the requirement that the substantive regulations issued by the Secretary of Labor " shall be the same as substantive regulations issued by the Secretary of Labor . . . except insofar as the Board may determine, for good cause shown . . . that a modification of such regulations would be more effective for the implementation of the rights and protections under" the CAA. As is true of many regulatory issues, ambiguity and uncertainty are part of the the FLSA regulatory regime that is presently imposed -- with much criticism and protest--on private sector and state and local government employers.

The example of the executive, administrative and professional employee exemptions illustrates this point. The Board specifically highlighted this problem and asked for comment in its ANPR (141 Cong. Rec. S14542, S14543) on September 28, 1995. Although the Board received many comments on this issue and is sympathetic with the concerns of employing offices confronting such ambiguity and uncertainty, the Board has neither been given nor can find appropriate justification for relieving employing offices of the compliance burdens that all employers face under the FLSA. The CAA was intended not only to bring covered employees the benefits of the FLSA and other incorporated laws, but also to require Congress to experience the same compliance burdens faced by other employers so that it could more fairly legislate in this area. The Board cannot agree with suggestions that would rob the CAA of one of its principal intended effects.

The Board must also decline the suggestion that it adopt, as either formal regulations or as its own interpretive authority, the interpretive bulletins found in Subpart B of Part 541 and elsewhere in the Secretary of Labor's regulations. Section 203(c)(2) of the CAA requires the Board to promulgate regulations that are the same as the substantive regulations promulgated by the Secretary. But, as explained in the NPR, the interpretive bulletins set forth in Subpart B of Part 541 and elsewhere in the Secretary of Labor's regulations are not substantive regulations within the meaning of the law. Moreover, with respect to the concern expressed by some commenters that congressional employing offices would be at a distinct disadvantage if the Board does not adopt the Secretary's interpretative bulletins, the Board again notes, as it did in the NPR, that the Board need not adopt the Secretary's interpretive bulletins in order for them to be available as guidance for employing offices. While the Board is not adopting these interpretive bulletins, the Board reiterates that, like the myriad judicial decisions under the FLSA that are available as guidance for employing offices, the Secretary's interpretive bulletins remain available as part of the corpus of interpretive materials to which employing offices may look in structuring their FLSA-related compliance activities. Indeed, as the Board also noted in the NPR, since the CAA may properly be interpreted as incorporating the defenses and exemptions set forth in the Portal-to-Portal Act, an employing office that relies in good faith on an applicable interpretive bulletin of the Secretary may in fact have a statutory defense to an enforcement action brought by a covered employee. In short, contrary to the suggestion of these commenters, the Board need not adopt the Secretary's interpretive bulletins in order to give employing offices the benefit of them.

One commenter went so far as to suggest that, by not adopting the Secretary's interpretive bulletins, the Board has somehow signaled its intent to engage in a wholesale reinterpretation of the FLSA and its implementing regulations. No such signal was sent; no such signal was intended. Since the CAA does not require adoption of these interpretive bulletins, and since they are independently available to employing offices, the Board merely determined that it need not adopt the Secretary's interpretative bulletins as its own. Moreover, like the Administrator and the courts, the Board intends to depart from the interpretive bulletins only where their persuasive force is lacking or the law otherwise requires (just as courts or the Administrator would do). See Skidmore v. Swift & Co., 323 U.S. 134, 137-38 (1944); Reich v. Interstate Brands Corp., 57 F.3d 574, 577 (7th Cir. 1995) ("[W]e give the Secretary's bulletins the respect their reasoning earns them."); Dalheim v. KDFW-TV, 918 F.2d 1220, 1228 (5th Cir. 1990) ("the persuasive authority of a given interpretation obtains only so long as 'all those factors which give it power to persuade' persist.") (quoting Skidmore).

As an alternative to modifying the regulations and adopting the interpretive bulletins of the Secretary, several commenters also suggested that the Board clarify regulatory ambiguities by issuing interpretive bulletins and advisory opinions of its own and thereby confer a Portal-to-Portal Act defense on employing offices that rely upon any such bulletins or advisory opinions of the Board. Indeed, at least one commenter suggested that the Board should provide advisory opinions and other counsel to employing offices that pose questions to it concerning, for example, the propriety of proposed model personnel practices, the exempt status of employees with specified job descriptions, the legality of proposed handbooks, and the qualification of certain House and Senate programs (such as the Federal Thrift Savings Plan) for defenses or exemptions recognized in the FLSA and the Secretary's regulations. The Board has considered these suggestions and, although empathizing with the concerns motivating these requests, finds these suggestions raise intractable legal and practical problems.

To begin with, the Board upon further study has determined that, contrary to the suggestion of the commenters, the Board cannot confer a Portal-to-Portal Act defense on employing offices for any reliance on pronouncements of the Board (as opposed to the Secretary). By its own terms, in the context of the FLSA, the Portal-to-Portal Act applies only to written administrative actions of the Wage and Hour Administrator of the Department of Labor. See 29 U.S.C. § 259. The Portal-to-Portal Act does not mention the Board; and the Board's authority to amend the Secretary's regulations for "good cause" plainly does not extend to amending statutes such as the Portal-to-Portal Act. Thus, as the federal court of appeals which has jurisdiction over such matters under the CAA has held in an almost identical context, the Portal-to-Portal Act would not confer a defense upon employing offices that might rely upon a pronouncement of the Board. See Berg v. Newman, 982 F.2d 500, 503-504 (Fed Cir. 1992) ("To apply the statute to a regulation issued by OPM, an agency not referred to in section 259, would extend the section 259 exception beyond its scope"; "OPM's absence from section 259 prevents the Government from both adopting and shielding itself from liability for faulty regulations.") The final regulations so state.

Second, contrary to the assumption of these commenters, the Board has neither the legal basis nor the practical ability to issue the kind of interpretive bulletins or advisory opinions being requested. While the Administrator of the Wage and Hour Division entertains questions posed by employers about enforcement-related issues, the Administrator's willingness and ability to respond to such questions derives from and is constrained by her investigatory and enforcement responsibilities under the FLSA. As the Supreme Court stated over 50 years ago in Skidmore v. Swift & Co., 323 U.S. 134, 137-38 (1944) (citations omitted):

Congress did not utilize the services of an administrative agency to find facts and to determine in the first instance whether particular cases fall within or without the Act. Instead, it put these responsibilities on the courts. But it did create the office of Administrator, impose upon him a variety of duties, endow him with powers to inform himself of conditions in industries and employments subject to the Act, and put on him the duties of bringing injunction actions to restrain violations. Pursuit of his duties has accumulated a considerable experience in the problems of ascertaining working time in employments involving periods of inactivity and a knowledge of the customs prevailing in reference to their solution. From these he is obliged to reach conclusions as to conduct without the law, so that he should seek injunctions to stop it, and that within the law, so that he has no call to interfere. He has set forth his views of the application of the Act under different circumstances in an interpretative bulletin and in informal rulings. They provide a practical guide to employers and employees as to how the office representing the public interest in its enforcement will seek to apply it.

In contrast, the Board has no investigative power by which it can inform itself of conditions, circumstances and customs of employment in the legislative branch; its resources for finding and considering such information are smaller by orders of substantial magnitude; and, most importantly, the Board has no cause to advise employees and employing offices concerning how it will seek to enforce the statute, since it has no enforcement powers under the CAA.

Indeed, on reflection, it seems unwise, if not legally improper, for the Board to set forth its views on interpretive ambiguities in the regulations outside of the adjudicatory context of individual cases. As noted above, the Board's rulemaking authority is quite restricted. Moreover, the Board has no enforcement authority and, in contrast to the FLSA scheme (where the Administrator has no adjudicatory authority to find facts and to determine in the first instance whether particular cases fall within or without the statute), the CAA contemplates that the Board will adjudicate cases brought by covered employees and that, in such adjudications, the Board must be of independent and open mind, bound to and limited by a factual record developed through an adversarial process governed by rules of law, and subject to judicial review of its decisions. See 2 U.S.C. §§ 1405-1407 (procedure for complaint, hearing, board review and judicial review; requiring hearings to be conducted in accordance with 5 U.S.C. §§ 554-557); 29 U.S.C. §§ 554-557. These legal safeguards and the institutional objectives they seek to promote--i.e., the accuracy of the Board's adjudicative decisions and the integrity of the Board's processes--would be undermined if the Board were to attempt to prejudge ambiguous or disputed interpretive matters in advisory opinions that were developed in non-adversarial, non-public proceedings. The Board thus cannot acquiesce in requests for such advisory opinions.

Some commenters suggested that the Board could properly issue such interpretive bulletins and advisory opinions under the rubric of the "education" and "information" programs allowed and, indeed, mandated by section 301(h) of the CAA. Of course, the Office's education and information programs are not the subject of this notice and comment and thus a discussion of "education" and "information" programs is not necessary to this rulemaking effort. But, upon due consideration of matter, it appears that this suggestion is based upon a fundamental misunderstanding of the institutional powers and responsibilities conferred upon and withheld from the Board and the Office by Congress in the CAA. Thus, it is both fair and prudent to address the issue at this point.

At the outset, the Board notes that Section 301(h)'s reference to "education" and "information" programs is not the broad mandate that these comments suggest. In contrast to other statutory schemes, section 301(h) does not authorize, much less compel, the development by the Board or the Office of "training" or "technical assistance" programs such as those that are included in the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, the Occupational Safety and Health Act of 1970, the Employee Polygraph Protection Act of 1988, and the Age Discrimination in Employment Act of 1967. Nor does the CAA authorize, much less compel, the issuance of interpretive bulletins, advisory opinions or enforcement guidelines, as agencies with investigative and prosecutorial powers (and matching resources) are sometimes allowed (although almost never compelled) to issue. Rather, section 301(h) directs the Office to carry out "a program of education for members of Congress and other employing authorities of the legislative branch of the Federal Government respecting the laws made applicable to them"; and "a program to inform individuals of their rights under laws applicable to the legislative branch of the Federal Government." 2 U.S.C. § 1381(h). Such admonitions are, however, contained in almost all federal employment laws; and those experienced in the field understand them to concern only programs that ensure general "awareness" of rights and responsibilities under the pertinent law.

Section 301(h) must be read in the context of the powers granted to and withheld from the Board in the statutory scheme created by the CAA. The CAA authorizes the Board to engage in rulemaking, but requires the Board to follow specified procedures in doing so and, at least in the context of the FLSA, requires the Board to have "good cause" for departing from the Secretary of Labor's substantive regulations. Moreover, the CAA authorizes the Board to engage in adjudication, but only after a complaint is filed with the Office, a record is properly developed through an adversarial process governed by rules of law, and judicial review is assured. And the CAA rather pointedly declines to confer upon the Board the investigatory and prosecutorial authority that is necessary for sound decisionmaking and interpretation outside of the regulatory and adjudicatory contexts. Given this statutory scheme, section 301(h)'s "education and information" mandate cannot reasonably be construed to require (or even allow) the Board to engage in the kind of advisory counselling requested here -- i.e., authoritative opinions developed in nonpublic, nonadversarial proceedings.

Indeed, Congress appears effectively to have considered this issue in the CAA and to have rejected the kind of relationship between the Board and employing offices that is contemplated by this request. The legislative history reflects a recognition that "the office must, in appearance and reality, be independent in order to gain and keep the confidence of the employees and employers who will utilize the dispute resolution process created by this act." 141 Cong. Rec. at S627. The legislative history further reflects a recognition that "laws cannot be enforced in a fair and uniform manner -- and employees and the public cannot be convinced that the laws are being enforced in a fair and uniform manner -- unless Congress establishes a single enforcement mechanism that is independent of each House of Congress." 141 Cong. Rec. at S444. The statute thus declares that the Office of Compliance is an "independent office" in the legislative branch; that the Office is governed by a Board of Directors whose members were appointed on a bi-partisan basis for non-partisan reasons, who may be removed in only quite limited circumstances, and whose incomes are largely derived from work in the private sector; and that the Board must follow formal public comment and adjudicatory procedures in making any decisions with legal effect. 2 U.S.C. §§1381(a), (b), (e), (f), (g), 1384, 1405-6. The call for issuing advisory opinions in the "education" and "information" process -- opinions that would be issued in non-public, non-adversarial proceedings without regard to the statutorily-required public comment and adjudicatory procedures -- is in intolerable tension with the institutional independence, inclusiveness and procedural regularity contemplated for the Board by the CAA.

In all events, the Board would in the exercise of its considered judgment decline to provide authoritative opinions to employing offices as part of its "education" and " information" programs. Without investigatorial and prosecutorial authority (and matching resources), the Board has insufficient information and thus is practicably unable to provide such authoritative opinions. With severely restricted rulemaking authority, the Board cannot properly provide regulatory clarifications for employing offices when those clarifications have not been provided by the Secretary to private sector and state and local government employers. And, with its adjudicatory powers, the Board should not resolve disputed interpretive matters in the absence of a specific factual controversy, a record developed through an adversarial process governed by rules of law, and an opportunity for judicial review. To do otherwise would simply impair the independence, impartiality, and irreproachability of the Board's actions. In short, for much the same reasons that federal courts do not issue advisory opinions or ex parte decisions, neither should the Board. See United States v. Freuhauf, 365 U.S. 146, 157 (1961) (Frankfurter, J.) (discussing vices of advisory opinions).

To be sure, "education" and "information" programs are of central importance to the CAA scheme. Such programs are needed, in part, to help employing offices in their efforts to understand and satisfy their compliance obligations under the CAA. And the Board reiterates its intention, stated in the NPR, that the Office sponsor, and participate in, seminars on the obligations of employing offices, distribute a comprehensive manual to address frequently arising questions under the CAA (including questions relating to FLSA exemptions), and be available generally to discuss compliance-related issues when called upon by employing offices. But the Board itself will not and should not in this education and information process issue authoritative opinions about such matters as the exemption status of employees with specified job duties, the propriety of particular model handbooks and policies developed by employing offices, and the qualification of certain House and Senate programs (such as the Federal Thrift Savings Plan) for particular defenses and exemptions that are available under the regulations. Characterizing such interpretive activity as "educational" or "informational" does not in any way address, much less satisfactorily resolve, the serious legal and institutional concerns that make it unwise, if not improper, for the Board to engage in such interpretive activities outside of the adjudicative processes established by the CAA.

The Board recognizes that, by declining to provide such authoritative advisory opinions, the Board is forcing employing offices to rely to a greater extent upon their own counsel and human resources officials and in a sense is frustrating the efforts of employing offices to obtain desirable safe-harbors. The FLSA as currently applied to private employers contains few such safe-harbors, particularly in the area of exemptions. But many knowledgeable labor lawyers and human resources officials are available to provide employing offices with the kind of learned counsel and human resources advice that the employing offices are seeking from the Board; indeed, the House and Senate have centralized administrations and committees that can provide this legal support to employing offices. And employing offices have the benefit of the same legal safe-harbors that the Secretary of Labor has made available to private sector and State and local government employers. Under the CAA, they are legally entitled to no more.

Even more importantly, however, the Board finds that the long-term institutional harm to the CAA scheme that would result from the Board's providing such advisory opinions in non-public, non-adversarial proceedings far outweighs whatever short-term legal or political benefits might result for employing offices. As noted above, provision by the Board of such opinions could impair confidence in the independence, impartiality and irreproachability of the Board's decisionmaking processes. Such a lack of confidence could unfortunately induce employees to take their cases to court rather than bring them to the Board's less costly, confidential and expedited alternative dispute resolution process. Even more seriously, such a lack of confidence could cause the public and other interested persons to question the Board's commitment, and thus the sincerity of the CAA's promise, generally to provide covered employees the same benefits, and to subject the legislative branch to the same legal burdens, as exist with regard to private sector and State and local government employers that are subject to the FLSA. We are confident that, like the bi-partisan Congressional leadership who appointed us and who placed their trust in our experience and judgment concerning how best to implement this statute, those in Congress who voted for the CAA or who would support it today would want us to prefer the long term viability, integrity, and efficacy of this noble statutory enterprise over the short-term demands of employing offices.

B. Specific comments and Board action.

1. §§541.1,.2,.3 -- "White collar" exemptions -- Use of job descriptions to determine exempt status. The Board received several comments urging the Board, on the basis of generic job descriptions, to give advice to employing offices on whether covered employees are exempt as bona fide executive, administrative, or professional employees under FLSA §13(a)(1) as applied by the CAA. As noted above, it would not be appropriate to attempt to give such advice in the context of this rulemaking. The Board would note, as a further point, that submission of such descriptions which may describe functions of congressional employees would not, in any event, provide the detail necessary to determine the exempt or nonexempt status of the job. Job descriptions that utilize language or phraseology derived from the regulations today adopted by the Board do not provide the specificity of conclusions regarding exempt or nonexempt status. The Secretary's regulations, as adopted by the Board, speak for themselves. It would serve no purpose, and provide no guidance, simply to repeat the statutory standards for exemption in a job description without reference to the particular functions of a particular employee. The Fair Labor Standards Act is clear that actual function, and not description or job title, govern the exempt status of an employee. See, e.g., 29 C.F.R. §541.201 (3)(b)(1),(2). 2. §541.5d -- Special rule for "white collar" employees of a public agency.

Under §13(a)(1) of the FLSA, which is incorporated by reference under §225(f)(1) of the CAA, a salaried employee who is a bona fide executive, administrative, or professional employee need not be paid overtime compensation for hours worked in excess of the statutory maximum. Sections 541.1, 541.2, and 541.3, 29 C.F.R., of the Secretary of Labor's regulations respectively define the criteria for each of these "white collar" exemptions. Since they are substantive regulations, the Board in its NPR proposed to adopt them.

Among the regulations not proposed for adoption was §541.5d. This regulation provides that an employee shall not lose his or her "white collar" exemption where a "public agency" employer reduces an exempt employee's pay or places the employee on unpaid leave in certain circumstances for partial-day absences.. As explained in the Federal Register Notice announcing its adoption, the Secretary of Labor issued §541.5d in response to concerns that the application of the FLSA to State and local governments would undermine well-settled "policies of public accountability" that require public employees (including those who would otherwise be exempt) to incur a reduction in pay if they absent themselves from work under certain circumstances. 57 Fed. Reg. 37677 (Aug. 19, 1992).

The Board originally did not propose adoption of this regulation. However, one commenter pointed out that, by its terms, §541.5d covers a "public agency," which is a statutory term defined in §3(x) of the FLSA to include "the government of the United States." As a definitional provision, §3(x) is incorporated into the CAA by virtue of §225(f)(1), and Congress is undeniably a branch of the "government of the United States."

The Board finds merit in the commenter's argument. Moreover, the adoption of this regulation is well in keeping with the Board's mandate to promulgate rules that are "the same as substantive regulations promulgated by the Department of Labor to implement" those FLSA statutory provisions made applicable by the CAA. Accordingly, §541.5d will be adopted with a minor change that substitutes for the citation to §541.118 (an interpretative bulletin) the phrase "being paid on a salary basis," which is derived directly from the substantive regulations defining the "white collar" exemptions (i.e., 29 C.F.R. §§541.1,.2,.3).

3. Partial Overtime Exemption for Law Enforcement Officers.

The Board did not propose to adopt any sections of 29 C.F.R. Part 553, which govern the application of the FLSA to employees of State and local governments. Subparts A and B of that Part address a variety of issues, including certain exclusions pertaining to elected legislative offices, the use of compensatory time off, recordkeeping, and the employment of volunteers. Subpart C addresses the special provisions which Congress enacted in §7(k) in connection with fire protection and law enforcement employees of public agencies.

Section 7(k) of the FLSA also provides a partial overtime exemption for fire protection and law enforcement employees of a public agency. Based on tour-of-duty averages that were determined by the Secretary of Labor in 1975, an employer need not pay overtime if, in a work period of 28 consecutive days, the employee receives a tour of duty which in the aggregate does not exceed 212 hours for fire protection activity or does not exceed 171 hours for law enforcement activity. Thus, for law enforcement personnel, work in excess of 171 hours during the 28-day period triggers the requirement to pay overtime compensation. For a work period of at least 7 but less than 28 consecutive days, overtime must be paid when the ratio of the number of hours worked to the number of days in the work period exceeds the 171-hours-to-28-days ratio (rounded to the nearest whole hour).

Although the regulations by their terms apply only to "public agencies" of State and local governments, one commenter observed that the underlying statutory provisions are not so limited but rather apply to any "public agency," which by definition includes the Federal government (See §3(x) of the FLSA). Accordingly, it was argued that the Board should adopt those regulations implementing the §7(k) partial overtime exemption insofar as it would apply to the law enforcement work of the Capitol Police.

For the reasons noted above that support adoption of §541.5d, the Board finds that the pertinent sections of Subpart C of Part 553 should also be adopted. Section 7(k) provides a direct textual basis for applying the relevant regulations. Thus, under the regulations, the Capitol Police as an employing office of law enforcement personnel shall have two options: It may pay such personnel overtime compensation on the basis of a 40-hour workweek. Alternatively, it may claim the section 7(k) exemption by establishing a valid work period that follows the criteria set forth in the regulations.

The Board is aware that Congress has enacted special provisions governing overtime compensation and compensatory time off for Capitol Police officers. 40 U.S.C. §206b (for police on the House's payroll) and §206c (for police on the Senate's payroll). However, the regulations being adopted here do not purport to modify those statutory provisions; and whether 40 U.S.C. §§206b-206c grant rights and protections to law enforcement employees that preclude the Capitol Police from availing itself of §7(k) of the FLSA is a question that the Board does not address. The regulations simply specify the rules for overtime policies that conform to the FLSA.

4. §570.35a -- Work experience programs for minors

The CAA makes applicable to the legislative branch FLSA §12(c), which prohibits the use of oppressive child labor, and FLSA §3(l), which defines "oppressive child labor." In its NPR, the Board proposed adopting as part of the CAA rules applicable to the Senate certain substantive regulations of Part 570, 29 C.F.R., implementing these statutory provisions. This proposal was based on the Board's understanding that the Senate has a practice of appointing pages under 18 years of age.

One commenter confirmed this understanding by reporting that the Senate Page Program does employ minors under the age of 16. Thus, under the proposed regulations, there are limitations on the periods and the conditions under which such minors can work. Without disputing the applicability of this regulation, the commenter sought to mitigate its impact by urging the adoption of an additional regulation found in 29 C.F.R. Part 570, Subpart C, namely the rule that varies some of the provisions of Subpart C in the context of school-supervised and school-administered work-experience or career exploration programs that have been individually approved by the Wage and Hour Administrator. 29 C.F.R. §570.35a.

After carefully reviewing the provisions of §570.35a, the Board finds that it would not be appropriate to adopt this regulation. There is no available "State Educational Agency" in the context of the CAA; State law is not properly applicable here; and the Board is obviously not competent to set educational standards. In short, there are legal and practical reasons why this regulation is unworkable in the context of Federal legislative branch employment, and the Board thus has "good cause" not to adopt it.

5. Board determination on regulations "required" to be issued in connection with §411 default provision

Section 411 of the CAA provides in pertinent part that "if the Board has not issued a regulation on a matter for which [the CAA] requires a regulation to be issued the hearing officer, Board, or court, as the case may be, shall apply, to the extent necessary and appropriate, the most relevant substantive executive agency regulation promulgated to implement the statutory provision at issue." By its own terms, this provision comes into play only where it is determined that the Board has not issued a regulation that is required by the CAA. Thus, before a Department of Labor regulation can be invoked, an adjudicator must make a threshold determination that the regulation concerns a matter as to which the Board was obligated under the CAA to issue a regulation.

As noted in the NPR, it was apparent in reviewing Chapter V of 29 C.F.R., which contains all the regulations of the Secretary of Labor issued to implement the FLSA generally, many of those regulations were not legally "required" to be issued as CAA regulations because the underlying FLSA provisions were not made applicable under the CAA. And there are other regulations that the Board has "good cause" not to issue because, for example, they have no applicability to legislative branch employment.

None of the comments to the NPR quarrelled with the Board's conclusion not to adopt those regulations that have little practical application. Therefore, the Board is not issuing regulations predicated upon the following Parts of 29 C.F.R.: Parts 519-528, which authorize subminimum wages for full-time students, student-learners, apprentices, learners, messengers, workers with disabilities, and student workers; Part 548, which authorizes in the collective bargaining context the establishment of basic wage rates for overtime compensation purposes; and Part 551, which implements an overtime exemption for local delivery drivers and helpers.

The comments did identify several individual regulations as to which there is not good cause to not adopt. As explained elsewhere, those regulations are being included in the final rules. However, in the main, the comments did not dispute the inapplicability of those Parts of 29 C.F.R. deemed legally irrelevant.

Accordingly, in keeping with its announced intent in the NPR, the Board is including in its final rules a declaration to the effect that the Board has issued those regulations that, as both a legal and practical matter, it is "required" to promulgate to implement the statutory provisions of the FLSA that are made applicable to the legislative branch by the CAA.

The Board has carefully reviewed the entire corpus of the Secretary's regulations, has sought comment on its proposal concerning the regulations that it should (and should not adopt), and has considered those comments in formulating its final rules. The Board has acted based on this review and consideration and in order to prevent wasteful litigation about whether the omission of a regulation from the Secretary in the Board's regulations was intended or not.

6. Recordkeeping and notice posting

One comment essentially requested that the Board revisit an issue which it resolved after receiving comments to its Advance Notice of Proposed Rulemaking (ANPR) published on October 11, 1995. The ANPR had solicited public comments on certain questions to assist the Board in drafting proposed FLSA regulations, including the question of whether the FLSA provisions regarding recordkeeping and the notice posting were made applicable by the CAA. As explained in the NPR, after evaluating the comments and carefully reviewing the CAA, the Board concluded that "the CAA explicitly did not incorporate the notice posting and recordkeeping requirements of Section 11, 29 U.S.C. §211 of the FLSA." The most recent comment offered no further statutory evidence to support a change in the Board's original conclusion.

7. Technical and nomenclature changes

A commenter suggested a number of technical and nomenclature changes to the proposed regulations to make them more precise in their application to the legislative branch. The Board has incorporated many of the suggested changes. However, by making these changes, the Board does not intend a substantive difference in meaning of these sections of the Board's regulations and those of the Secretary from which the Board's regulations are derived.

III. Adoption of Proposed Rules as Final Regulations under Section 304(b)(3) and as Interim Regulations

Having considered the public comments to the proposed rules, the Board pursuant to section 304(b)(3) & (4) of the CAA is adopting these final regulations and transmitting them to the House and the Senate with recommendations as to the method of approval by each body under section 304(c). However, the rapidly approaching effective date of the CAA's implementation necessitates that the Board take further action with respect to these regulations. For the reasons explained below, the Board is also today adopting and issuing these rules as interim regulations that will be effective as of January 23, 1996 or the time upon which appropriate resolutions of approval of these interim regulations are passed by the House and/or the Senate, whichever is later. These interim regulations will remain in effect until the earlier of April 15, 1996 or the dates upon which the House and Senate complete their respective consideration of the final regulations that the Board is herein adopting.

The Board finds that it is necessary and appropriate to adopt such interim regulations and that there is "good cause" for making them effective as of the later of January 23, 1996, or the time upon which appropriate resolutions of approval of them are passed by the House and the Senate. In the absence of the issuance of such interim regulations, covered employees, employing offices, and the Office of Compliance staff itself would be forced to operate in regulatory uncertainty. While section 411 of the CAA provides that, "if the Board has not issued a regulation on a matter for which this Act requires a regulation to be issued, the hearing officer, Board, or court, as the case may be, shall apply, to the extent necessary and appropriate, the most relevant substantive executive agency regulation promulgated to implement the statutory provision at issue in the proceeding," covered employees, employing offices and the Office of Compliance staff might not know what regulation, if any, would be found applicable in particular circumstances absent the procedures suggested here. The resulting confusion and uncertainty on the part of covered employees and employing offices would be contrary to the purposes and objectives of the CAA, as well as to the interests of those whom it protects and regulates. Moreover, since the House and the Senate will likely act on the Board's final regulations within a short period of time, covered employees and employing offices would have to devote considerable attention and resources to learning, understanding, and complying with a whole set of default regulations that would then have no future application. These interim regulations prevent such a waste of resources.

The Board's authority to issue such interim regulations derives from sections 411 and 304 of the CAA. Section 411 gives the Board authority to determine whether, in the absence of the issuance of a final regulation by the Board, it is necessary and appropriate to apply the substantive regulations of the executive branch in implementing the provisions of the CAA. Section 304(a) of the CAA in turn authorizes the Board to issue substantive regulations to implement the Act. Moreover, section 304(b) of the CAA instructs that the Board shall adopt substantive regulations "in accordance with the principles and procedures set forth in section 553 of title 5, United States Code," which have in turn traditionally been construed by courts to allow an agency to issue "interim" rules where the failure to have rules in place in a timely manner would frustrate the effective operation of a federal statute. See, e.g., Philadelphia Citizens in Action v. Schweiker, 669 F.2d 877 (3d Cir. 1982). As noted above, in the absence of the Board's adoption and issuance of these interim rules, such a frustration of the effective operation of the CAA would occur here.

In so interpreting its authority, the Board recognizes that in section 304 of the CAA, Congress specified certain procedures that the Board must follow in issuing substantive regulations. In section 304(b), Congress said that, except as specified in section 304(e), the Board must follow certain notice and comment and other procedures. The interim regulations in fact have been subject to such notice and comment and such other procedures of section 304(b).

In issuing these interim regulations, the Board also recognizes that section 304(c) specifies certain procedures that the House and the Senate are to follow in approving the Board's regulations. The Board is of the view that the essence of section 304(c)'s requirements are satisfied by making the effectiveness of these interim regulations conditional on the passage of appropriate resolutions of approval by the House and/or the Senate. Moreover, section 304(c) appears to be designed primarily for (and applicable to) final regulations of the Board, which these interim regulations are not. In short, section 304(c)'s procedures should not be understood to prevent the issuance of interim regulations that are necessary for the effective implementation of the CAA.

Indeed, the promulgation of these interim regulations clearly conforms to the spirit of section 304(c) and, in fact promotes its proper operation. As noted above, the interim regulations shall become effective only upon the passage of appropriate resolutions of approval, which is what section 304(c) contemplates. Moreover, these interim regulations allow more considered deliberation by the House and the Senate of the Board's final regulations under section 304(c).

The House has in fact already signalled its approval of such interim regulations both for itself and for the instrumentalities. On December 19, 1995, the House adopted H. Res. 311 and H. Con. Res. 123, which approve "on a provisional basis" regulations "issued by the Office of Compliance before January 23, 1996." The Board believes these resolutions are sufficient to make these interim regulations effective for the House on January 23, 1996, though the House might want to pass new resolutions of approval in response to this pronouncement of the Board.

To the Board's knowledge, the Senate has not yet acted on H. Con. Res. 123, nor has it passed a counterpart to H. Res. 311 that would cover employing offices and employees of the Senate. As stated herein, it must do so if these interim regulations are to apply to the Senate and the other employing offices of the instrumentalities (and to prevent the default rules of the executive branch from applying as of January 23, 1996).

IV. Method of Approval

The Board received no comments on the method of approval for these regulations. Therefore, the Board continues to recommend that (1) the version of the regulations that shall apply to the Senate and employees of the Senate should be approved by the Senate by resolution; (2) the version of the regulations that shall apply to the House of Representatives and employees of the House of Representatives should be approved by the House of Representatives by resolution; and (3) the version of the regulations that shall apply to other covered employees and employing offices should be approved by the Congress by concurrent resolution.

With respect to the interim version of these regulations, the Board recommends that the Senate approve them by resolution insofar as they apply to the Senate and employees of the Senate. In addition, the Board recommends that the Senate approve them by concurrent resolution insofar as they apply to other covered employees and employing offices. It is noted that the House has expressed its approval of the regulations insofar as they apply to the House and its employees through its passage of H. Res. 311 on December 19, 1995. The House also expressed its approval of the regulations insofar as they apply to other employing offices through passage of H. Con. Res. 123 on the same date; this concurrent resolution is pending before the Senate.

ADOPTED REGULATIONS -- AS INTERIM AND AS FINAL REGULATIONS: Subtitle B -- Regulations Relating to the House of Representatives and Its Employing Offices -- H Series

CHAPTER III -- REGULATIONS RELATING TO THE RIGHTS AND PROTECTIONS UNDER THE FAIR LABOR STANDARDS ACT OF 1938

PART S501 -- GENERAL PROVISIONS

§S501.00Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance.
§S501.101Purpose and scope.
§S501.102Definitions.
§S501.103Coverage.
§S501.104Administrative authority.
§S501.105Effect of Interpretations of the Labor Department.
§S501.106Application of the Portal-to-Portal Act of 1947.
§S501.107Duration of interim regulations. §S501.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance.

The following table lists the parts of the Secretary of Labor Regulations at Title 29 of the Code of Federal Regulations under the FLSA with the corresponding parts of the Office of Compliance (OC) Regulations under Section 203 of the CAA:

Secretary of Labor Regulations

OC Regulations

Part 531	Wage payments under the Fair Labor Standards Act of 1938	Part S531
Part 541	Defining and delimiting the terms "bona fide executive," "administrative," and "professional" employees	Part S541
Part 547	Requirements of a "Bona fide thrift or savings plan"	Part S547
Part 553	Application of the FLSA to employees of public agencies	Part S553

SUBPART A - Matters of General Applicability.

§S501.101 Purpose and scope.

(a) Section 203 of the Congressional Accountability Act (CAA) provides that the rights and protections of subsections (a)(1) and (d) of section 6, section 7, and section 12(c) of the Fair Labor Standards Act of 1938 (FLSA) (29 U.S.C. §§206(a)(1) & (d), 207, 212(c)) shall apply to covered employees of the legislative branch of the Federal government. Section 301 of the CAA creates the Office of Compliance as an independent office in the legislative branch for enforcing the rights and protections of the FLSA, as applied by the CAA.

(b) The FLSA as applied by the CAA provides for minimum standards for both wages and overtime entitlements, and delineates administrative procedures by which covered worktime must be compensated. Included also in the FLSA are provisions related to child labor, equal pay, and portal-to-portal activities. In addition, the FLSA exempts specified employees or groups of employees from the application of certain of its provisions.

(c) This chapter contains the substantive regulations with respect to the FLSA that the Board of Directors of the Office of Compliance has adopted pursuant to Sections 203(c) and 304 of the CAA, which require that the Board promulgate regulations that are "the same as substantive regulations promulgated by the Secretary of Labor to implement the statutory provisions referred to in subsection (a) [of §203 of the CAA] except insofar as the Board may determine, for good cause shown . . . that a modification of such regulations would be more effective for the implementation of the rights and protections under this section."

(d) These regulations are issued by the Board of Directors, Office of Compliance, pursuant to sections 203(c) and 304 of the CAA, which directs the Board to promulgate regulations implementing section 203 that are "the same as substantive regulations promulgated by the Secretary of Labor to implement the statutory provisions referred to in subsection a [of section 203 of the CAA] except insofar as the Board may determine, for good cause shown . . .that a modification of such regulations would be more effective for the implementation of the rights and protections under this section." The regulations issued by the Board herein are on all matters for which section 203 of the CAA requires a regulations to be issued. Specifically, it is the Board's considered judgment, based on the information available to it at the time of the promulgation of these regulations, that, with the exception of regulations adopted and set forth herein, there are no other "substantive regulations promulgated by the Secretary of Labor to implement the statutory provisions referred to in subsection (a) [of section 203 of the CAA]."

(e) In promulgating these regulations, the Board has made certain technical and nomenclature changes to the regulations as promulgated by the Secretary. Such changes are intended to make the provisions adopted accord more naturally to situations in the legislative branch. However, by making these changes, the Board does not intend a substantive difference between these regulations and those of the Secretary from which they are derived. Moreover, such changes, in and of themselves, are not intended to constitute an interpretation of the regulation or of the statutory provisions of the CAA upon which they are based.

§S501.102 Definitions.

For purposes of this chapter:

(a) CAA means the Congressional Accountability Act of 1995 (P.L. 104-1, 109 Stat. 3, 2 U.S.C. §§1301-1438).

(b) FLSA or Act means the Fair Labor Standards Act of 1938, as amended (29 U.S.C. §201 et seq.), as applied by section 203 of the CAA to covered employees and employing offices.

(c) Covered employee means any employee of the House of Representatives, including an applicant for employment and a former employee, but shall not include an intern.

(d) Employee of the House of Representatives includes any individual occupying a position the pay for which is disbursed by the Clerk of the House of Representatives, or another official designated by the House of Representatives, or any employment position in an entity that is paid with funds derived from the clerk-hire allowance of the House of Representatives but not any such individual employed by (1) the Capitol Guide Service; (2) the Capitol Police; (3) the Congressional Budget Office; (4) the Office of the Architect of the Capitol; (5) the Office of the Attending Physician; (6) the Office of Compliance; or (7) the Office of Technology Assessment.

(e) Employing office and employer mean (1) the personal office of a Member of the House of Representatives; (2) a committee of the House of Representatives or a joint committee; or (3) any other office headed by a person with the final authority to appoint, hire, discharge, and set the terms, conditions, or privileges of the employment of an employee of the House of Representatives.

(f) Board means the Board of Directors of the Office of Compliance.

(g) Office means the Office of Compliance.

(h) Intern is an individual who (a) is performing services in an employing office as part of a demonstrated educational plan, and (b) is appointed on a temporary basis for a period not to exceed 12 months; provided that if an intern is appointed for a period shorter than 12 months, the intern may be reappointed for additional periods as long as the total length of the internship does not exceed 12 months; provided further that the defintion of intern does not include volunteers, fellows or pages.

§S501.103 Coverage.

The coverage of Section 203 of the CAA extends to any covered employee of an employing office without regard to whether the covered employee is engaged in commerce or the production of goods for interstate commerce and without regard to size, number of employees, amount of business transacted, or other measure.

§S501.104 Administrative authority.

(a) The Office of Compliance is authorized to administer the provisions of Section 203 of the Act with respect to any covered employee or covered employer.

(b) The Board is authorized to promulgate substantive regulations in accordance with the provisions of Sections 203(c) and 304 of the CAA.

§S501.105 Effect of Interpretations of the Department of Labor.

(a) In administering the FLSA, the Wage and Hour Division of the Department of Labor has issued not only substantive regulations but also interpretative bulletins. Substantive regulations represent an exercise of statutorily-delegated lawmaking authority from the legislative branch to an administrative agency. Generally, they are proposed in accordance with the notice-and-comment procedures of the Administrative Procedure Act (APA), 5 U.S.C. §553. Once promulgated, such regulations are considered to have the force and effect of law, unless set aside upon judicial review as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977). See also 29 C.F.R. §790.17(b) (1994). Unlike substantive regulations, interpretative statements, including bulletins and other releases of the Wage and Hour Division, are not issued pursuant to the provisions of the APA and may not have the force and effect of law. Rather, they may only constitute official interpretations of the Department of Labor with respect to the meaning and application of the minimum wage, maximum hour, and overtime pay requirements of the FLSA. See 29 C.F.R. §790.17(c) (citing Final Report of the Attorney General's Committee on Administrative Procedure, Senate Document No.8, 77th Cong., 1st Sess., at p. 27 (1941)). The purpose of such statements is to make available in one place the interpretations of the FLSA which will guide the Secretary of Labor and the Wage and Hour Administrator in the performance of their duties unless and until they are otherwise directed by authoritative decisions of the courts or conclude, upon reexamination of an interpretation, that it is incorrect. The Supreme Court has observed: "[T]he rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in the consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Skidmore v. Swift, 323 U.S. 134, 140 (1944).

(b) Section 203(c) of the CAA provides that the substantive regulations implementing Section 203 of the CAA shall be "the same as substantive regulations promulgated by the Secretary of Labor" except where the Board finds, for good cause shown, that a modification would more effectively implement the rights and protections established by the FLSA. Thus, the CAA by its terms does not mandate that the Board adopt the interpretative statements of the Department of Labor or its Wage and Hour Division. The Board is thus not adopting such statements as part of its substantive regulations.

§S501.106 Application of the Portal-to-Portal Act of 1947.

(a) Consistent with Section 225 of the CAA, the Portal to Portal Act (PPA), 29 U.S.C. §§216 and 251 et seq., is applicable in defining and delimiting the rights and protections of the FLSA that are prescribed by the CAA. Section 10 of the PPA, 29 U.S.C. §259, provides in pertinent part:

[N]o employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended, . . . if he pleads and proves that the act or omission complained of was in good faith in conformity with and reliance on any written administrative regulation, order, ruling, approval or interpretation of [the Administrator of the Wage and Hour Division of the Department of Labor] . . . or any administrative practice or enforcement policy of such agency with respect to the class of employers to which he belonged. Such a defense, if established shall be a bar to the action or proceeding, notwithstanding that after such act or omission, such administrative regulation, order, ruling, approval, interpretation, practice or enforcement policy is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect.

§S501.107 Duration of interim regulations

These interim regulations for the House, the Senate and the employing offices of the instrumentalities are effective on January 23, 1996 or on the dates upon which appropriate resolutions are passed, whichever is later. The interim regulations shall expire on April 15, 1996 or on the dates on which appropriate resolutions concerning the Board's final regulations are passed by the House and the Senate, respectively, whichever is earlier.

PART S531 - WAGE PAYMENTS UNDER THE FAIR LABOR STANDARDS ACT OF 1938

SUBPART A -- Preliminary Matters

§S531.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance.
§S531.1 Definitions.
§S531.2 Purpose and scope.

SUBPART B -- Determinations of "Reasonable Cost;" Effects of Collective Bargaining Agreements

§S531.3 General determinations of 'reasonable cost'.
§S531.6 Effects of collective bargaining agreements.

SUBPART A -- Preliminary Matters.

§S531.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance.

The following table lists the sections of the Secretary of Labor Regulations at Title 29 of the Code of Federal Regulations under the FLSA with the corresponding sections of the Office of Compliance (OC) Regulations under Section 203 of the CAA:

Secretary of Labor Regulations

OC Regulations

531.1Definitions.	§S531.1
531.2 Purpose and scope.	§S531.2
553.3 General determinations of "reasonable cost"	§S531.3
531.6 Effects of collective bargaining agreements.	§S531.6

§S531.1 Definitions.

(a) Administrator means the Administrator of the Wage and Hour Division or his authorized representative. The Secretary of Labor has delegated to the Administrator the functions vested in him under section 3(m) of the Act.
(b) Act means the Fair Labor Standards Act of 1938, as amended.

§S531.2 Purpose and scope.

(a) Section 3(m) of the Act defines the term 'wage' to include the 'reasonable cost', as determined by the Secretary of Labor, to an employer of furnishing any employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by the employer to his employees. In addition, section 3(m) gives the Secretary authority to determine the 'fair value.' of such facilities on the basis of average cost to the employer or to groups of employers similarly situated, on average value to groups of employees, or other appropriate measures of 'fair value.' Whenever so determined and when applicable and pertinent, the 'fair value' of the facilities involved shall be includable as part of 'wages' instead of the actual measure of the costs of those facilities. The section provides, however, that the cost of board, lodging, or other facilities shall not be included as part of 'wages' if excluded therefrom by a bona fide collective bargaining agreement. Section 3(m) also provides a method for determining the wage of a tipped employee.
(b) This part 531 contains any determinations made as to the 'reasonable cost' and 'fair value' of board, lodging, or other facilities having general application.

SUBPART B -- Determinations of "Reasonable Cost" and "Fair Value"; Effects of Collective Bargaining Agreements

§S531.3 General determinations of 'reasonable cost.'

(a) The term reasonable cost as used in section 3(m) of the Act is hereby determined to be not more than the actual cost to the employer of the board, lodging, or other facilities customarily furnished by him to his employees.

(b) Reasonable cost does not include a profit to the employer or to any affiliated person.

(c) The reasonable cost to the employer of furnishing the employee with board, lodging, or other facilities (including housing) is the cost of operation and maintenance including adequate depreciation plus a reasonable allowance (not more than 5 1/2 percent) for interest on the depreciated amount of capital invested by the employer: Provided, That if the total so computed is more than the fair rental value (or the fair price of the commodities or facilities offered for sale), the fair rental value (or the fair price of the commodities or facilities offered for sale) shall be the reasonable cost. The cost of operation and maintenance, the rate of depreciation, and the depreciated amount of capital invested by the employer shall be those arrived at under good accounting practices. As used in this paragraph, the term good accounting practices does not include accounting practices which have been rejected by the Internal Revenue Service for tax purposes, and the term depreciation includes obsolescence.

(d)(1) The cost of furnishing 'facilities' found by the Administrator to be primarily for the benefit or convenience of the employer will not be recognized as reasonable and may not therefore be included in computing wages.

(2) The following is a list of facilities found by the Administrator to be primarily for the benefit of convenience of the employer. The list is intended to be illustrative rather than exclusive:

(i) Tools of the trade and other materials and services incidental to carrying on the employer's business;

(ii) the cost of any construction by and for the employer;

(iii) the cost of uniforms and of their laundering, where the nature of the business requires the employee to wear a uniform.

§S531.6 Effects of collective bargaining agreements.

(a) The cost of board, lodging, or other facilities shall not be included as part of the wage paid to any employee to the extent it is excluded therefrom under the terms of a bona fide collective bargaining agreement applicable to the particular employee.

(b) A collective bargaining agreement shall be deemed to be "bona fide" when pursuant to the provisions of section 7(b)(1) or 7(b)(2) of the FLSA it is made with the certified representative of the employees under the provisions of the CAA.

PART S541 -- DEFINING AND DELIMITING THE TERMS "BONA FIDE EXECUTIVE," "ADMINISTRATIVE," OR "PROFESSIONAL" CAPACITY (INCLUDING ANY EMPLOYEE EMPLOYED IN THE CAPACITY OF ACADEMIC ADMINISTRATIVE PERSONNEL OR TEACHER IN SECONDARY SCHOOL).

SUBPART A -- General Regulations.

§S541.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance.

§S541.01 Application of the exemptions of section 13(a)(1) of the FLSA.

§S541.1 Executive.

§S541.2 Administrative.

§S541.3 Professional.

§S541.5b Equal pay provisions of section 6(d) of the FLSA as applied by the CAA extend to executive, administrative, and professional employees.

§S541.5d Special provisions applicable to employees of public agencies.

SUBPART A -- General Regulations.

§S541.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance.

The following table lists the sections of the Secretary of Labor Regulations at Title 29 of the Code of Federal Regulations under the FLSA with the corresponding sections of the Office of Compliance (OC) Regulations under Section 203 of the CAA:

Secretary of Labor Regulations

OC Regulations

541.1 Executive	§S541.1
541.2 Administrative.	§S541.2
541.3 Professional.	§S541.3
541.5b Equal pay provisions of section 6(d) of the FLSA apply to executive, administrative, and professional employees.	§S541.5b
541.5d Special provisions applicable to employees of public agencies.	§S541.5d

§S541.01 Application of the exemptions of section 13 (a)(1) of the FLSA.

(a) Section 13(a)(1) of the FLSA, which provides certain exemptions for employees employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in a secondary school), applies to covered employees by virtue of Section 225(f)(1) of the CAA.

(b) The substantive regulations set forth in this part are promulgated under the authority of sections 203(c)and 304 of the CAA, which require that such regulations be the same as the substantive regulations promulgated by the Secretary of Labor except where the Board determines for good cause shown that modifications would be more effective for the implementation of the rights and protections under §203.

§S541.1 Executive.

The term employee employed in a bona fide executive * * * capacity in section 13(a) (1) of the FLSA as applied by the CAA shall mean any employee:

(a) Whose primary duty consists of the management of an employing office in which he is employed or of a customarily recognized department of subdivision thereof; and

(b) Who customarily and regularly directs the work of two or more other employees therein; and

(c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and

(d) Who customarily and regularly exercises discretionary powers; and

(e) Who does not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent, of his hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (d) of this section: Provided, That this paragraph shall not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment; and

(f) Who is compensated for his services on a salary basis at a rate of not less than $155 per week, exclusive of board, lodging or other facilities: Provided, That an employee who is compensated on a salary basis at a rate of not less than $250 per week, exclusive of board, lodging or other facilities, and whose primary duty consists of the management of the employing office in which the employee is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular direction of the work of two or more other employees therein, shall be deemed to meet all the requirements of this section

§S541.2 Administrative.

The term employee employed in a bona fide * * * administrative * * * capacity in section 13(a)(1) of the FLSA as applied by the CAA shall mean any employee:

(a) Whose primary duty consists of either:

(1) The performance of office or nonmanual work directly related to management policies or general operations of his employer or his employer's customers, or

(2) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and

(c)(1) Who regularly and directly assists the head of an employing office, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined in the regulations of this subpart), or

(2) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge, or

(3) Who executes under only general supervision special assignments and tasks; and

(e)(1) Who is compensated for his services on a salary or fee basis at a rate of not less than $155 per week, exclusive of board, lodging or other facilities, or

(2) Who, in the case of academic administrative personnel, is compensated for services as required by paragraph (e)(1) of this section, or on a salary basis which is at least equal to the entrance salary for teachers in the school system, educational establishment or institution by which employed: Provided, That an employee who is compensated on a salary or fee basis at a rate of not less than $250 per week, exclusive of board, lodging or other facilities, and whose primary duty consists of the performance of work described in paragraph (a) of this section, which includes work requiring the exercise of discretion and independent judgment, shall be deemed to meet all the requirements of this section.

§S541.3 Professional.

The term employee employed in a bona fide * * * professional capacity in section 13(a)(1) of the FLSA as applied by the CAA shall mean any employee:

(a) Whose primary duty consists of the performance of:

(1) Work requiring knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or

(2) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee, or

(3) Teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in the school system, educational establishment or institution by which employed, or

(4) Work that requires theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering, and who is employed and engaged in these activities as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer software field; and