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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.
For the Senate, the Board's regulations also provide that the term intern includes a senior citizen
intern
appointed under applicable Senate resolutions.

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.
Overtime compensation owed to an employee may not be reduced by compensatory time off except as authorized by regulations of the Board for employees whose schedules directly depend on the schedule of the House of Representatives and the Senate and certain law enforcement employment, as described below.

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,
which occur before or after the principal work activities on any particular workday.

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.
(Additional criteria apply for lower-paid executives.)

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.
(Additional criteria apply for lower-paid administrative employees.)

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.
(Additional criteria apply for lower-paid professional employees.)

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.
Compensatory time off may be provided, instead of overtime pay, for any hours worked in excess of 60 in a workweek by a covered employee whose work schedule directly depends on the schedule of the House or the Senate. Accordingly, the employing office must provide --
  • 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.
The Board has stated that, if the necessary conditions are met, pay for the first 60 hours of employment in a workweek could be governed by a "Belo" contract, discussed below.

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.
Under such a plan, when an employee works overtime in one week, the employing office lays off the employee, or the employee may if permitted, choose not to work, a sufficient number of hours during some other week or weeks of the same pay period to offset the amount of compensation owed for the overtime worked (i.e., at the one and one-half rate). Consequently, the desired wage or salary of the pay period covers the total amount of compensation, including overtime compensation, due the employee for each work week taken separately.

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.
The employing office and the employee may have an understanding or agreement that a fixed salary is to be considered straight-time pay for all hours, whether few or many, worked in a work week. Such an arrangement is allowed when two conditions are satisfied: (1) the salary is sufficient to provide not less than the minimum wage in every work week, and (2) in addition to the salary, the employee receives extra compensation for all overtime hours worked (i.e., the hours over 40 in a work week), at a rate not less than one-half the employee's regular rate of pay. The regular rate of pay will vary from week to week, and is determined by dividing the number of hours worked in the work week into the amount of the salary.

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.
In some situations, variation in overtime costs may be reduced by use of a so-called "Belo" contract. A Belo contract guarantees a certain amount of compensation, including an amount for overtime. The Board has stated that employing offices may use Belo contracts if the following four requirements are met:
(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.
A Belo contract can afford even greater stability than a fixed salary for fluctuating hours, because the guaranteed payment under a Belo contract includes the overtime premium for all hours worked, whether few or many, up to the limits of the guarantee. However, in weeks when the guaranteed level of hours is exceeded, additional overtime compensation must be paid for the additional overtime hours. Furthermore, many employment situations do not satisfy the legal prerequisites for the use of a Belo contract.

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.
Also, the CAA does not limit the number of hours in a day or days in a week that an employee may be required or scheduled to work if the employee is at least 16 years old.

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.
A description of the generally applicable remedies (attorneys fees, interest) and limitations (no civil penalties or punitive damages) is found in the Introductory section of the Manual.

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.
(b) In defending any action or proceeding based on any act or omission arising out of section 203 of the CAA, an employing office may satisfy the standards set forth in subsection (a) by pleading and proving good faith reliance upon any written administrative regulation, order, ruling, approval or interpretation, of the Administrator of the Wage and Hour Division of the Department of Labor: Provided, that such regulation, order, ruling approval or interpretation had not been superseded at the time of reliance by any regulation, order, decision, or ruling of the Board or the courts.

§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
(b) Who customarily and regularly exercises discretion and independent judgment; 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
(d) 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 worked in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (c) of this section; 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
(b) Whose work requires the consistent exercise of discretion and judgment in its performance; and

(c) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; and

(d) Who does not devote more than 20 percent of his hours worked in the workweek to activities which are not an essential part of and necessarily incident to the work described in paragraphs (a) through (c) of this section; and

(e) Who is compensated for services on a salary or fee basis at a rate of not less than $170 per week, exclusive of board, lodging or other facilities: Provided, That this paragraph shall not apply in the case of an employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and who is actually engaged in the practice thereof, nor in the case of an employee who is the holder of the requisite academic degree for the general practice of medicine and is engaged in an internship or resident program pursuant to the practice of medicine or any of its branches, nor in the case of an employee employed and engaged as a teacher as provided in paragraph (a)(3) of this section: Provided further, 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 either of work described in paragraph (a) (1), (3), or (4) of this section, which includes work requiring the consistent exercise of discretion and judgment, or of work requiring invention, imagination, or talent in a recognized field of artistic endeavor, shall be deemed to meet all of the requirements of this section: Provided further, That the salary or fee requirements of this paragraph shall not apply to an employee engaged in computer-related work within the scope of paragraph (a)(4) of this section and who is compensated on an hourly basis at a rate in excess of 6 1/2 times the minimum wage provided by section 6 of the FLSA as applied by the CAA.

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

The FLSA, as amended and as applied by the CAA, includes within the protection of the equal pay provisions those employees exempt from the minimum wage and overtime pay provisions as bona fide executive, administrative, and professional employees (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools) under section 13(a)(1) of the FLSA. Thus, for example, where an exempt administrative employee and another employee of the employing office are performing substantially "equal work," the sex discrimination prohibitions of section 6(d) are applicable with respect to any wage differential between those two employees.

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

(a) An employee of a public agency who otherwise meets the requirement of being paid on a salary basis shall not be disqualified from exemption under Sec. S541.1, S541.2, or S541.3 on the basis that such employee is paid according to a pay system established by statute, ordinance, or regulation, or by a policy or practice established pursuant to principles of public accountability, under which the employee accrues personal leave and sick leave and which requires the public agency employee's pay to be reduced or such employee to be placed on leave without pay for absences for personal reasons or because of illness or injury of less than one work-day when accrued leave is not used by an employee because -

(1) permission for its use has not been sought or has been sought and denied;

(2) accrued leave has been exhausted; or

(3) the employee chooses to use leave without pay.
(b) Deductions from the pay of an employee of a public agency for absences due to a budget-required furlough shall not disqualify the employee from being paid 'on a salary basis' except in the workweek in which the furlough occurs and for which the employee's pay is accordingly reduced.

PART S547 -- REQUIREMENTS OF A "BONA FIDE THRIFT OR SAVINGS PLAN."

§S547.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance.

§S547.0 Scope and effect of part.

§S547.1 Essential requirements of qualifications.

§S547.2 Disqualifying provisions.

§S547.00 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 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

547.0Scope and effect of part. §S547.0
547.1 Essential requirements of qualifications. §S547.1
547.2 Disqualifying provisions. §S547.2

§S547.0 Scope and effect of part.

(a) The regulations in this part set forth the requirements of a "bona fide thrift or savings plan" under section 7(e)(3)(b) of the Fair Labor Standards Act of 1938, as amended (FLSA), as applied by the CAA. In determining the total remuneration for employment which section 7(e) of the FLSA requires to be included in the regular rate at which an employee is employed, it is not necessary to include any sums paid to or on behalf of such employee, in recognition of services performed by him during a given period, which are paid pursuant to a bona fide thrift or savings plan meeting the requirements set forth herein. In the formulation of these regulations due regard has been given to the factors and standards set forth in section 7(e)(3)(b) of the Act.

(b) Where a thrift or savings plan is combined in a single program (whether in one or more documents) with a plan or trust for providing old age, retirement, life, accident or health insurance or similar benefits for employees, contributions made by the employer pursuant to such thrift or savings plan may be excluded from the regular rate if the plan meets the requirements of the regulation in this part and the contributions made for the other purposes may be excluded from the regular rate if they meet the tests set forth in regulations.

§S547.1 Essential requirements for qualifications.

(a) A "bona fide thrift or savings plan" for the purpose of section 7(e)(3)(b) of the FLSA as applied by the CAA is required to meet all the standards set forth in paragraphs (b) through (f) of this section and must not contain the disqualifying provisions set forth in §S547.2.

(b) The thrift or savings plan constitutes a definite program or arrangement in writing, adopted by the employer or by contract as a result of collective bargaining and communicated or made available to the employees, which is established and maintained, in good faith, for the purpose of encouraging voluntary thrift or savings by employees by providing an incentive to employees to accumulate regularly and retain cash savings for a reasonable period of time or to save through the regular purchase of public or private securities.

(c) The plan specifically shall set forth the category or categories of employees participating and the basis of their eligibility. Eligibility may not be based on such factors as hours of work, production, or efficiency of the employees: Provided, however, That hours of work may be used to determine eligibility of part-time or casual employees.

(d) The amount any employee may save under the plan shall be specified in the plan or determined in accordance with a definite formula specified in the plan, which formula may be based on one or more factors such as the straight-time earnings or total earnings, base rate of pay, or length of service of the employee.

(e) The employer's total contribution in any year may not exceed 15 percent of the participating employees' total earnings during that year. In addition, the employer's total contribution in any year may not exceed the total amount saved or invested by the participating employees during that year.

(f) The employer's contributions shall be apportioned among the individual employees in accordance with a definite formula or method of calculation specified in the plan, which formula or method of calculation is based on the amount saved or the length of time the individual employee retains his savings or investment in the plan: Provided, That no employee's share determined in accordance with the plan may be diminished because of any other remuneration received by him.

§S547.2 Disqualifying provisions.

(a) No employee's participation in the plan shall be on other than a voluntary basis.

(b) No employee's wages or salary shall be dependent upon or influenced by the existence of such thrift or savings plan or the employer's contributions thereto.

(c) The amounts any employee may save under the plan, or the amounts paid by the employer under the plan may not be based upon the employee's hours of work, production or efficiency.

PART S553 -- OVERTIME COMPENSATION: PARTIAL EXEMPTION FOR EMPLOYEES ENGAGED IN LAW ENFORCEMENT AND FIRE PROTECTION; OVERTIME AND COMPENSATORY TIME-OFF FOR EMPLOYEES WHOSE WORK SCHEDULE DIRECTLY DEPENDS UPON THE SCHEDULE OF THE HOUSE

Introduction

§S553.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance.

§S553.1 Definitions

§S553.2 Purpose and scope

SUBPART C -- Partial Exemption for Employees Engaged in Law Enforcement and Fire Protection

§S553.201 Statutory provisions: section 7(k).

§S553.202 Limitations.

§S553.211 Law enforcement activities.

§S553.212 Twenty percent limitation on nonexempt work.

§S553.213 Public agency employees engaged in both fire

protection and law enforcement activities.

§S553.214 Trainees.

§S553.215 Ambulance and rescue service employees.

§S553.216 Other exemptions.

§S553.220"Tour of duty" defined.

§S553.221 Compensable hours of work.

§S553.222 Sleep time.

§S553.223 Meal time.

§S553.224 "Work period" defined.

§S553.225 Early relief.

§S553.226 Training time.

§S553.227 Outside employment.

§S553.230 Maximum hours standards for work periods of 7 to 28 days - section 7(k).

§S553.231 Compensatory time off.

§S553.232 Overtime pay requirements.

§S553.233 "Regular rate" defined.

SUBPART D - Compensatory Time-off for Overtime Earned by Employees Whose Work Schedule Directly Depends upon the Schedule of the House

§S553.301 Definition of "directly depends."

§S553.302 Overtime compensation and compensatory time off for an employee whose work schedule directly depends upon the schedule of the House.

§S553.303 Using compensatory time off.

§S553.304 Payment of overtime compensation for accrued compensatory time off as of termination of service.

Introduction

§S553.00 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 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

553.1 Definitions

§S553.1
553.2 Purpose and scope

§S553.2
553.201Statutory provisions: section 7(k). §S553.201
553.202 Limitations.

§S553.202
553.211Law enforcement activities. §S553.211
553.212 Twenty percent limitation on nonexempt work. §S553.212
553.213 Public agency employees engaged in both fire protection and law enforcement activities. §S553.213
553.214 Trainees. §S553.214
553.215 Ambulance and rescue service employees. §S553.215
553.216 Other exemptions. §S553.216
553.220 "Tour of duty" defined. §S553.220
553.221 Compensable hours of work. §S553.221
553.222 Sleep time. §S553.222
553.223 Meal time. §S553.223
553.224 "Work period" defined. §S553.224
553.225 Early relief. §S553.225
553.226 Training time. §S553.226
553.227 Outside employment. §S553.227
553.230 Maximum hours standards for work periods of 7 to 28 days - section 7(k). §S553.230
553.231 Compensatory time off. §S553.231
553.232 Overtime pay requirements. §S553.232
553.233 "Regular rate" defined. §S553.233

INTRODUCTION

§S553.1 Definitions

(a) Act or FLSA means the Fair Labor Standards Act of 1938, as amended (52 Stat. 1060, as amended; 29 U.S.C. 201-219), as applied by the CAA.

(b) 1985 Amendments means the Fair Labor Standards Amendments of 1985 (Pub. L. 99-150).

(c) Public agency means an employing office as the term is defined in §501.102 of this chapter, including the Capitol Police..

(d) Section 7(k) means the provisions of §7(k) of the FLSA as applied to covered employees and employing offices by §203 of the CAA.

§S553.2 Purpose and scope

The purpose of part S553 is to adopt with appropriate modifications the regulations of the Secretary of Labor to carry out those provisions of the FLSA relating to public agency employees as they are applied to covered employees and employing offices of the CAA. In particular, these regulations apply section 7(k) as it relates to fire protection and law enforcement employees of public agencies.

SUBPART C -- PARTIAL EXEMPTION FOR EMPLOYEES ENGAGED IN LAW ENFORCEMENT AND FIRE PROTECTION

§S553.201 Statutory provisions: section 7(k).

Section 7(k) of the Act provides a partial overtime pay exemption for fire protection and law enforcement personnel (including security personnel in correctional institutions) who are employed by public agencies on a work period basis. This section of the Act formerly permitted public agencies to pay overtime compensation to such employees in work periods of 28 consecutive days only after 216 hours of work. As further set forth in §S553.230 of this part, the 216-hour standard has been replaced,pursuant to the study mandated by the statute, by 212 hours for fire protection employees and 171 hours for law enforcement employees. In the case of such employees who have a work period of at least 7 but less than 28 consecutive days, overtime compensation is required when the ratio of the number of hours worked to the number of days in the work period exceeds the ratio of 212 (or 171) hours to 28 days.

§S553.202 Limitations.

The application of §7(k), by its terms, is limited to public agencies, and does not apply to any private organization engaged in furnishing fire protection or law enforcement services. This is so even if the services are provided under contract with a public agency.

EXEMPTION REQUIREMENTS

§S553.211 Law enforcement activities.

(a) As used in §7(k) of the Act, the term 'any employee . . . in law enforcement activities' refers to any employee

(1) who is a uniformed or plainclothed member of a body of officers and subordinates who are empowered by law to enforce laws designed to maintain public peace and order and to protect both life and property from accidental or willful injury, and to prevent and detect crimes,

(2) who has the power to arrest, and

(3) who is presently undergoing or has undergone or will undergo on-the-job training and/or a course of instruction and study which typically includes physical training, self-defense, firearm proficiency, criminal and civil law principles, investigative and law enforcement techniques, community relations, medical aid and ethics.
(b) Employees who meet these tests are considered to be engaged in law enforcement activities regardless of their rank, or of their status as 'trainee,' 'probationary,' or 'permanent,' and regardless of their assignment to duties incidental to the performance of their law enforcement activities such as equipment maintenance, and lecturing, or to support activities of the type described in paragraph (g) of this section, whether or not such assignment is for training or familiarization purposes, or for reasons of illness, injury or infirmity. The term would also include rescue and ambulance service personnel if such personnel form an integral part of the public agency's law enforcement activities. See Sec. S553.215.

(c) Typically, employees engaged in law enforcement activities include police who are regularly employed and paid as such. Other agency employees with duties not specifically mentioned may, depending upon the particular facts and pertinent statutory provisions in that jurisdiction, meet the three tests described above. If so, they will also qualify as law enforcement officers. Such employees might include, for example, any law enforcement employee within the legislative branch concerned with keeping public peace and order and protecting life and property.

(d) Employees who do not meet each of the three tests described above are not engaged in 'law enforcement activities' as that term is used in sections 7(k). Employees who normally would not meet each of these tests include:

(1) Building inspectors (other than those defined in Sec. S553.213(a)),

(2) Health inspectors,
(3) Sanitarians,

(4) civilian traffic employees who direct vehicular and pedestrian traffic at specified intersections or other control points,

(5) Civilian parking checkers who patrol assigned areas for the purpose of discovering parking violations and issuing appropriate warnings or appearance notices,

(6) Wage and hour compliance officers,

(7) Equal employment opportunity compliance officers, and

(8) Building guards whose primary duty is to protect the lives and property of persons within the limited area of the building.
(e) The term 'any employee in law enforcement activities' also includes, by express reference, 'security personnel in correctional institutions. Typically, such facilities may include precinct house lockups. Employees of correctional institutions who qualify as security personnel for purposes of the section 7(k) exemption are those who have responsibility for controlling and maintaining custody of inmates and of safeguarding them from other inmates or for supervising such functions, regardless of whether their duties are performed inside the correctional institution or outside the institution. These employees are considered to be engaged in law enforcement activities regardless of their rank or of their status as 'trainee,' 'probationary,' or 'permanent,' and regardless of their assignment to duties incidental to the performance of their law enforcement activities, or to support activities of the type described in paragraph (f) of this section, whether or not such assignment is for training or familiarization purposes or for reasons of illness, injury or infirmity.

(f) Not included in the term 'employee in law enforcement activities' are the so-called 'civilian' employees of law enforcement agencies or correctional institutions who engage in such support activities as those performed by dispatcher, radio operators, apparatus and equipment maintenance and repair workers, janitors, clerks and stenographers. Nor does the term include employees in correctional institutions who engage in building repair and maintenance, culinary services, teaching, or in psychological, medical and paramedical services. This is so even though such employees may, when assigned to correctional institutions, come into regular contact with the inmates in the performance of their duties.

§S553.212 Twenty percent limitation on nonexempt work.

(a) Employees engaged in fire protection or law enforcement activities as described in Sec. S553.210 and S553.211, may also engage in some nonexempt work which is not performed as an incident to or in conjunction with their fire protection or law enforcement activities. For example, firefighters who work for forest conservation agencies may, during slack times, plant trees and perform other conservation activities unrelated to their firefighting duties. The performance of such nonexempt work will not defeat the §7(k) exemption unless it exceeds 20 percent of the total hours worked by that employee during the workweek or applicable work period. A person who spends more than 20 percent of his/her working time in nonexempt activities is not considered to be an employee engaged in fire protection or law enforcement activities for purposes of this part.

(b) Public agency fire protection and law enforcement personnel may, at their own option, undertake employment for the same employer on an occasional or sporadic and part-time basis in a different capacity from their regular employment. The performance of such work does not affect the application of the §7(k) exemption with respect to the regular employment. In addition, the hours of work in the different capacity need not be counted as hours worked for overtime purposes on the regular job, nor are such hours counted in determining the 20 percent tolerance for nonexempt work discussed in paragraph (a) of this section.

§S553.213 Public agency employees engaged in both fire protection and law enforcement activities.

(a) Some public agencies have employees (often called 'public safety officers') who engage in both fire protection and law enforcement activities, depending on the agency needs at the time. This dual assignment would not defeat the section 7(k) exemption, provided that each of the activities performed meets the appropriate tests set forth in Sec. S553.210 and S553.211. This is so regardless of how the employee's time is divided between the two activities. However, all time spent in nonexempt activities by public safety officers within the work period, whether performed in connection with fire protection or law enforcement functions, or with neither, must be combined for purposes of the 20 percent limitation on nonexempt work discussed in Sec. S553.212.

(b) As specified in Sec. S553.230, the maximum hours standards under section 7(k) are different for employees engaged in fire protection and for employees engaged in law enforcement. For those employees who perform both fire protection and law enforcement activities, the applicable standard is the one which applies to the activity in which the employee spends the majority of work time during the work period.

§S553.214 Trainees.

The attendance at a bona fide fire or police academy or other training facility, when required by the employing agency, constitutes engagement in activities under section 7(k) only when the employee meets all the applicable tests described in Sec. S553.210 or Sec. S553.211 (except for the power of arrest for law enforcement personnel), as the case may be. If the applicable tests are met, then basic training or advanced training is considered incidental to, and part of, the employee's fire protection or law enforcement activities.

§S553.215 Ambulance and rescue service employees.

Ambulance and rescue service employees of a public agency other than a fire protection or law enforcement agency may be treated as employees engaged in fire protection or law enforcement activities of the type contemplated by §7(k) if their services are substantially related to firefighting or law enforcement activities in that (1) the ambulance and rescue service employees have received training in the rescue of fire, crime, and accident victims or firefighters or law enforcement personnel injured in the performance of their respective, duties, and (2) the ambulance and rescue service employees are regularly dispatched to fires, crime scenes, riots, natural disasters and accidents. As provided in Sec. S553.213(b), where employees perform both fire protection and law enforcement activities, the applicable standard is the one which applies to the activity in which the employee spends the majority of work time during the work period.

§S553.216 Other exemptions.

Although the 1974 Amendments to the FLSA as applied by the CAA provide special exemptions for employees of public agencies engaged in fire protection and law enforcement activities, such workers may also be subject to other exemptions in the Act, and public agencies may claim such other applicable exemptions in lieu of §7(k). For example, section 13(a)(1) as applied by the CAA provides a complete minimum wage and overtime pay exemption for any employee employed in a bona fide executive, administrative, or professional capacity, as those terms are defined and delimited in Part S541. The section 13(a)(1) exemption can be claimed for any fire protection or law enforcement employee who meets all of the tests specified in part S541 relating to duties, responsibilities, and salary. Thus, high ranking police officials who are engaged in law enforcement activities, may also, depending on the facts, qualify for the section 13(a)(1) exemption as 'executive' employees. Similarly, certain criminal investigative agents may qualify as "administrative" employees under section 13(a)(1).

TOUR OF DUTY AND COMPENSABLE HOURS OF WORK RULES

§S553.220 "Tour of duty" defined.

(a) The term "tour of duty" is a unique concept applicable only to employees for whom the section 7(k) exemption is claimed. This term, as used in section 7(k), means the period of time during which an employee is considered to be on duty for purposes of determining compensable hours. It may be a scheduled or unscheduled period. Such periods include 'shifts' assigned to employees often days in advance of the performance of the work. Scheduled periods also include time spent in work outside the "shift" which the public agency employer assigns. For example, a police officer may be assigned to crowd control during a parade or other special event outside of his or her shift.

(b) Unscheduled periods include time spent in court by police officers, time spent handling emergency situations, and time spent working after a shift to complete an assignment. Such time must be included in the compensable tour of duty even though the specific work performed may not have been assigned in advance.

(c) The tour of duty does not include time spent working for a separate and independent employer in certain types of special details as provided in Sec. S553.227.

§S553.221 Compensable hours of work.

(a) The rules under the FLSA as applied by the CAA on compensable hours of work are applicable to employees for whom the section 7(k) exemption is claimed. Special rules for sleep time (Sec. S553.222) apply to both law enforcement and firefighting employees for whom the section 7(k) exemption is claimed. Also, special rules for meal time apply in the case of firefighters (Sec. S553.223).

(b) Compensable hours of work generally include all of the time during which an employee is on duty on the employer's premises or at a prescribed workplace, as well as all other time during which the employee is suffered or permitted to work for the employer. Such time includes all pre-shift and post-shift activities which are an integral part of the employee's principal activity or which are closely related to the performance of the principal activity, such as attending roll call, writing up and completing tickets or reports, and washing and re-racking fire hoses.

(c) Time spent away from the employer's premises under conditions that are so circumscribed that they restrict the employee from effectively using the time for personal pursuits also constitutes compensable hours of work. For example, where a police station must be evacuated because of an electrical failure and the employees are expected to remain in the vicinity and return to work after the emergency has passed, the entire time spent away from the premises is compensable. The employees in this example cannot use the time for their personal pursuits.

(d) An employee who is not required to remain on the employer's premises but is merely required to leave word at home or with company officials where he or she may be reached is not working while on call. Time spent at home on call may or may not be compensable depending on whether the restrictions placed on the employee preclude using the time for personal pursuits. Where, for example, a firefighter has returned home after the shift, with the understanding that he or she is expected to return to work in the event of an emergency in the night, such time spent at home is normally not compensable. On the other hand, where the conditions placed on the employee's activities are so restrictive that the employee cannot use the time effectively for personal pursuits, such time spent on call is compensable.

(e) Normal home to work travel is not compensable, even where the employee is expected to report to work at a location away from the location of the employer's premises.

(f) A police officer, who has completed his or her tour of duty and who is given a patrol car to drive home and use on personal business, is not working during the travel time even where the radio must be left on so that the officer can respond to emergency calls. Of course, the time spent in responding to such calls is compensable.

§S553.222 Sleep time.

(a) Where a public agency elects to pay overtime compensation to firefighters and/or law enforcement personnel in accordance with section 7(a)(1) of the Act, the public agency may exclude sleep time from hours worked if all the conditions for the exclusion of such time are met.

(b) Where the employer has elected to use the section 7(k) exemption, sleep time cannot be excluded from the compensable hours of work where

(1) The employee is on a tour of duty of less than 24 hours, and

(2) Where the employee is on a tour of duty of exactly 24 hours.
(c) Sleep time can be excluded from compensable hours of work, however, in the case of police officers or firefighters who are on a tour of duty of more than 24 hours, but only if there is an expressed or implied agreement between the employer and the employees to exclude such time. In the absence of such an agreement, the sleep time is compensable. In no event shall the time excluded as sleep time exceed 8 hours in a 24-hour period. If the sleep time is interrupted by a call to duty, the interruption must be counted as hours worked. If the sleep period is interrupted to such an extent that the employee cannot get a reasonable night's sleep (which, for enforcement purposes means at least 5 hours), the entire time must be counted as hours of work.

§S553.223 Meal time.

(a) If a public agency elects to pay overtime compensation to firefighters and law enforcement personnel in accordance with section 7(a)(1) of the Act, the public agency may exclude meal time from hours worked if all the statutory tests for the exclusion of such time are met.

(b) If a public agency elects to use the section 7(k) exemption, the public agency may, in the case of law enforcement personnel, exclude meal time from hours worked on tours of duty of 24 hours or less, provided that the employee is completely relieved from duty during the meal period, and all the other statutory tests for the exclusion of such time are met. On the other hand, where law enforcement personnel are required to remain on call in barracks or similar quarters, or are engaged in extended surveillance activities (e.g., stakeouts'), they are not considered to be completely relieved from duty, and any such meal periods would be compensable.

(c) With respect to firefighters employed under section 7(k), who are confined to a duty station, the legislative history of the Act indicates Congressional intent to mandate a departure from the usual FLSA 'hours of work' rules and adoption of an overtime standard keyed to the unique concept of 'tour of duty' under which firefighters are employed. Where the public agency elects to use the section 7(k) exemption for firefighters, meal time cannot be excluded from the compensable hours of work where (1) the firefighter is on a tour of duty of less than 24 hours, and (2) where the firefighter is on a tour of duty of exactly 24 hours.

(d) In the case of police officers or firefighters who are on a tour of duty of more than 24 hours, meal time may be excluded from compensable hours of work provided that the statutory tests for exclusion of such hours are met.

§S553.224 "Work period" defined.

(a) As used in section 7(k), the term 'work period' refers to any established and regularly recurring period of work which, under the terms of the Act and legislative history, cannot be less than 7 consecutive days nor more than 28 consecutive days. Except for this limitation, the work period can be of any length, and it need not coincide with the duty cycle or pay period or with a particular day of the week or hour of the day. Once the beginning and ending time of an employee's work period is established, however, it remains fixed regardless of how many hours are worked within the period. The beginning and ending of the work period may be changed, provided that the change is intended to be permanent and is not designed to evade the overtime compensation requirements of the Act.

(b) An employer may have one work period applicable to all employees, or different work periods for different employees or groups of employees.

§S553.225 Early relief.

It is a common practice among employees engaged in fire protection activities to relieve employees on the previous shift prior to the scheduled starting time. Such early relief time may occur pursuant to employee agreement, either expressed or implied. This practice will not have the effect of increasing the number of compensable hours of work for employees employed under section 7(k) where it is voluntary on the part of the employees and does not result, over a period of time, in their failure to receive proper compensation for all hours actually worked. On the other hand, if the practice is required by the employer, the time involved must be added to the employee's tour of duty and treated as compensable hours of work.

§S553.226 Training time.

(a) The general rules for determining the compensability of training time under the FLSA apply to employees engaged in law enforcement or fire protection activities.

(b) While time spent in attending training required by an employer is normally considered compensable hours of work, following are situations where time spent by employees in required training is considered to be noncompensable:

(1) Attendance outside of regular working hours at specialized or follow-up training, which is required by law for certification of public and private sector employees within a particular governmental jurisdiction (e.g., certification of public and private emergency rescue workers), does not constitute compensable hours of work for public employees within that jurisdiction and subordinate jurisdictions.

(2) Attendance outside of regular working hours at specialized or follow-up training, which is required for certification of employees of a governmental jurisdiction by law of a higher level of government, does not constitute compensable hours of work.

(3) Time spent in the training described in paragraphs (b) (1) or (2) of this section is not compensable, even if all or part of the costs of the training is borne by the employer.
(c) Police officers or firefighters, who are in attendance at a police or fire academy or other training facility, are not considered to be on duty during those times when they are not in class or at a training session, if they are free to use such time for personal pursuits. Such free time is not compensable.

§S553.227 Outside employment.

(a) Section 7(p)(1) makes special provision for fire protection and law enforcement employees of public agencies who, at their own option, perform special duty work in fire protection, law enforcement or related activities for a separate and independent employer (public or private) during their off-duty hours. The hours of work for the separate and independent employer are not combined with the hours worked for the primary public agency employer for purposes of overtime compensation.

(b) Section 7(p)(1) applies to such outside employment provided (1) the special detail work is performed solely at the employee's option, and (2) the two employers are in fact separate and independent.

(c) Whether two employers are, in fact, separate and independent can only be determined on a case-by-case basis.

(d) The primary employer may facilitate the employment or affect the conditions of employment of such employees. For example, a police department may maintain a roster of officers who wish to perform such work. The department may also select the officers for special details from a list of those wishing to participate, negotiate their pay, and retain a fee for administrative expenses. The department may require that the separate and independent employer pay the fee for such services directly to the department, and establish procedures for the officers to receive their pay for the special details through the agency's payroll system. Finally, the department may require that the officers observe their normal standards of conduct during such details and take disciplinary action against those who fail to do so.

(e) Section 7(p)(1) applies to special details even where a State law or local ordinance requires that such work be performed and that only law enforcement or fire protection employees of a public agency in the same jurisdiction perform the work. For example, a city ordinance may require the presence of city police officers at a convention center during concerts or sports events. If the officers perform such work at their own option, the hours of work need not be combined with the hours of work for their primary employer in computing overtime compensation.

(f) The principles in paragraphs (d) and (e) of this section with respect to special details of public agency fire protection and law enforcement employees under section 7(p)(1) are exceptions to the usual rules on joint employment set forth in part 791 of this title.

(g) Where an employee is directed by the public agency to perform work for a second employer, section 7(p)(1) does not apply. Thus, assignments of police officers outside of their normal work hours to perform crowd control at a parade, where the assignments are not solely at the option of the officers, would not qualify as special details subject to this exception. This would be true even if the parade organizers reimburse the public agency for providing such services.

(h) Section 7(p)(1) does not prevent a public agency from prohibiting or restricting outside employment by its employees.

OVERTIME COMPENSATION RULES

§S553.230 Maximum hours standards for work periods of 7 to 28 days - section 7(k).

(a) For those employees engaged in fire protection activities who have a work period of at least 7 but less than 28 consecutive days, no overtime compensation is required under section 7(k) until the number of hours worked exceeds the number of hours which bears the same relationship to 212 as the number of days in the work period bears to 28.

(b) For those employees engaged in law enforcement activities (including security personnel in correctional institutions) who have a work period of at least 7 but less than 28 consecutive days, no overtime compensation is required under section 7(k) until the number of hours worked exceeds the number of hours which bears the same relationship to 171 as the number of days in the work period bears to 28.

(c) The ratio of 212 hours to 28 days for employees engaged in fire protection activities is 7.57 hours per day (rounded) and the ratio of 171 hours to 28 days for employees engaged in law enforcement activities is 6.11 hours per day (rounded). Accordingly, overtime compensation (in premium pay or compensatory time) is required for all hours worked in excess of the following maximum hours standards (rounded to the nearest whole hour):

------------------------------------------------------------------------

Maximum hours standards

Work period (days) Fire protection Law enforcement----------

--------------------------------------------------------------

28 212 171

27 204 165

26 197 159

25 189 153

24 182 147

23 174 141

22 167 134

21 159 128

20 151 122

19 144 116

18 136 110

17 129 104

16 121 98

15 114 92

14 106 86

13 98 79

12 91 73

11 83 67

10 76 61

9 68 55

8 61 49

7 53 43

------------------------------------------------------------------------

§S553.231 Compensatory time off.

(a) Law enforcement and fire protection employees who are subject to the section 7(k) exemption may receive compensatory time off in lieu of overtime pay for hours worked in excess of the maximum for their work period as set forth in Sec. S553.230.

(b) Section 7(k) permits public agencies to balance the hours of work over an entire work period for law enforcement and fire protection employees. For example, if a firefighter's work period is 28 consecutive days, and he or she works 80 hours in each of the first two weeks, but only 52 hours in the third week, and does not work in the fourth week, no overtime compensation (in cash wages or compensatory time) would be required since the total hours worked do not exceed 212 for the work period. If the same firefighter had a work period of only 14 days, overtime compensation or compensatory time off would be due for 54 hours (160 minus 106 hours) in the first 14 day work period.

§S553.232 Overtime pay requirements.

If a public agency pays employees subject to section 7(k) for overtime hours worked in cash wages rather than compensatory time off, such wages must be paid at one and one-half times theemployees' regular rates of pay.

§S553.233 'Regular rate' defined.

The statutory rules for computing an employee's 'regular rate', for purposes of the Act's overtime pay requirements are applicable to employees or whom the section 7(k) exemption is claimed when overtime compensation is provided in cash wages.

SUBPART D - Compensatory Time-off for Overtime Earned by Employees Whose Work Schedule Directly Depends upon the Schedule of the House

§S553.301 Definition of "directly depends."

For the purposes of this Part, a covered employee's work schedule "directly depends" on the schedule of the House of Representatives only if the eligible employee performs work that directly supports the conduct of legislative or other business in the chamber and works hours that regularly change in response to the schedule of the House and the Senate.

§S553.302 Overtime compensation and compensatory time off for an employee whose work schedule directly depends upon the schedule of the House.

No employing office shall be deemed to have violated section 203(a)(1) of the CAA, which applies the protections of section 7(a) of the Fair Labor Standards Act ("FLSA") to covered employees and employing office, by employing any employee for a workweek in excess of the maximum workweek applicable to such employee under section 7(a) of the FLSA where the employee's work schedule directly depends on the schedule of the House of Representatives within the meaning of §S553.301, and: (a) the employee is compensated at the rate of time-and-a-half in pay for all hours in excess of 40 and up to 60 hours in a workweek, and (b) the employee is compensated at the rate of time-and-a-half in either pay or in time off for all hours in excess of 60 hours in a workweek.

§S553.303 Using compensatory time off.

An employee who has accrued compensatory time off under §S553.302 upon his or her request, shall be permitted by the employing office to use such time within a reasonable period after making the request, unless the employing office makes a bona fide determination that the needs of the operations of the office do not allow the taking of compensatory time off at the time of the request. An employee may renew the request at a subsequent time. An employing office may also, upon reasonable notice, require an employee to use accrued compensatory time-off.

§S553.304 Payment of overtime compensation for accrued compensatory time off as of termination of service.

An employee who has accrued compensatory time authorized by this regulation shall, upon termination of employment, be paid for the unused compensatory time at the rate earned by the employee at the time the employee receives such payment.

The Congressional Accountability Act of 1995: Extension of Rights and Protections Under the Fair Labor Standards Act of 1938 (Interns; Irregular Work Schedules)

NOTICE OF ADOPTION OF REGULATIONS AND SUBMISSION FOR APPROVAL

SUMMARY:

The Board of Directors, Office of Compliance, after considering comments to its general Notice of Proposed Rulemaking published October 11, 1995 in the Congressional Record, has adopted, and is submitting for approval by the Congress, final regulations to implement sections203(a)(2) and 203(c)(3) of the Congressional Accountability Act of 1995 ( CAA").

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:

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. Sections 203(c) and 304 of the CAA directs the Board to issue regulations to implement the section. 2 U.S.C. §§ 1313(c), 1384.

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). However, section 203(a)(2) excludes interns" as defined by Board regulations from the definition of covered employee" for the purpose of FLSA rights and protections. Additionally, section 203(c)(3) of the CAA directs the Board to issue regulations for employees whose work schedules directly depend on the schedule of the House of Representatives or the Senate" that shall be comparable to", rather than the same as", the provisions of the FLSA that apply to employees who have irregular work schedules.

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 regulations relating to "interns" and "irregular work schedules." Six comments were received in response to the proposed regulatory definition of interns," and thirteen on the proposed irregular work schedules regulation. Comments were received from employing offices, trade and professional associations, advocacy organizations, a labor organization, and Members of Congress. In addition, the Office has sought consultations with the Department of Labor regarding the proposed regulations, pursuant to section 304(g) of the CAA. After considering the comments received in response to the proposed rule, the Board has adopted and is submitting these regulations for approval by the Congress.

I. DEFINITION OF INTERNS"

    A. Summary of Proposed Regulation

The proposed regulation defined the term intern" to be any individual who meets the following two criteria: (a) is performing services in an employing office as part of the pursuit of the individual s educational objectives," and (b) is appointed on a temporary basis for a period not to exceed one academic semester (including the period between semesters); provided that an intern may be reappointed for one succeeding temporary period."

    B. Summary of Comments

Six comments were received regarding the proposed definition of "intern" in the Notice of Proposed Rulemaking. The commenters agreed with the approach taken in the proposed regulation. However, commenters suggested that the proposed definition of "interns" was vague or overbroad in one or more respects. After considering these comments, the Board has decided to modify the regulation, as discussed below.

    1. Subpart (a): Requirement that an intern "perform[] service as part of the pursuit of the individual s educational objectives."

Subpart 1(a) of the proposed regulation established as the first criterion for eligibility as an "intern" that the individual must be performing services in an employing office as part of the pursuit of the individual s educational objectives" (emphasis added).

Two commenters expressly approved of this subpart, and recommended that the Board not change it. One commenter argued that this criterion was overbroad and would be subject to potential abuse by employing offices because the intern need not be enrolled in an educational program in a degree awarding institution. This commenter opined that virtually all employees view their employment as a way to achieve some educational objective," since most hope to get on-the-job experience that will qualify them for better paying opportunities. In the view of this commenter, an employing office could easily characterize the individual s work as in pursuit of educational objectives" to avoid its FLSA obligations. This commenter recommended that an alternative definition of "intern" be adopted -- one that would be modeled on the elements used to determine the status of "trainees" under the FLSA, which specifies that the individual must be a student enrolled in a degree program at an educational institution to qualify.

In the Board s considered judgment, requiring an intern to be enrolled in a degree program at an educational institution would be unduly restrictive because such a requirement would exclude arrangements considered valid under current internship practice. The Board does not believe Congress intended to preclude internships during a teacher's sabbatical year or between undergraduate and graduate school as arrangements. Therefore, the Board does not recommend that such a requirement be imposed, as suggested by this single commenter. Instead, the Board shall modify subpart (a) of the regulation to state that an employee must be performing services in the employing office as part of a demonstrated educational plan which should be in writing and signed by both. In the Board s view, this requirement would be satisfied where the intern is enrolled in a degree program at an educational institution or where the intern s employment is part of an educational program or plan agreed upon between the employing office and the intern. In the Board s view, these requirements will satisfactorily decrease the risk of abuse of this provision by any employing office.

    2. Subpart (b): Requirement that the individual be appointed "on a temporary basis for a period not to exceed one academic semester (including the period between semesters); provided that an intern may be reappointed for one succeeding temporary period."

Subpart (b) of the proposed rule set out the second criterion for determining whether an individual in an employing office would be an "intern": that the individual be appointed "on a temporary basis for a period not to exceed one academic semester (including the period between semesters); provided that an intern may be reappointed for one succeeding temporary period."

All six commenters suggested that the Board modify the proposed regulation to define a specific, determinative time limit for an internship to qualify under the regulation's definition. The commenters suggested that the length of time for a qualifying internship (and any extension thereof) under this part be expressed as a defined term of days or months. Commenters suggested periods ranging from 120 days in any 12-month period," to 5 months," to 9 months."

Three commenters suggested that the term "academic semester" is ambiguous because many educational institutions divide their academic calendars into trimesters" or terms" of varying duration as well as semesters." Similarly, some commenters found the provision that an intern may be reappointed for one succeeding temporary period" ambiguous because the term temporary period" was not defined and could be subject to varying interpretations.

One commenter quoted the following provision of section 3 of H.Res. 359, contained in 2 U.S.C. 䆘 (Note): interns shall be employed primarily for their educational experience in Washington, District of Columbia, for a period not to exceed one hundred and twenty days in one year . . ."

This commenter suggested that the reference to one academic semester be changed to "120 days in any 12 month period" to ensure consistency with this provision.

One commenter stated that the one semester time limit may be too short, since many of the schools from which employing offices recruit interns administer their internship programs on an annual, as opposed to semester, basis. This commenter suggested that, under the current definition, employing offices will be unable to attract top level interns and the efficiency of the offices will be undermined. The commenter suggested the applicable time limit for an intern position should be one year, defined as two consecutive semesters.

Another commenter suggested the regulation should specify that summer internships are acceptable under the rule. This commenter also recommended that the regulation expressly state that the definition of "intern" "is not intended to cover other similar job positions such as volunteers or fellows, nor does it cover pages," which is stated in the Summary section of the NPR regarding this proposed regulation (141 Cong. R. S15025 (daily ed., October 11, 1995).

The Board agrees that subpart (b) of the proposed regulation should be modified (1) to allow for the appointment and reappointment of interns for periods of varying length and (2) to state a definite maximum term for the entire internship, including any reappointment periods. After considering the alternatives suggested by the commenters, the Board shall modify the proposed regulation to state that an intern may be appointed for periods of any length, so long as the total period of internship does not exceed 12 months. This definition expresses the Board s understanding of the term academic semester" in the proposed regulation and adopts the suggestion that the internship be subject to a defined time period unconnected to the academic calendar of any particular educational institution.

The Board notes that, since the final regulation allows internships for periods of longer than 120 days in one year, under H.Res. 359, a Member who chooses to employ an intern for longer than 120 days in a year may be required by House rules to count that intern against the 18 permanent clerk-hire allotment. However, nothing in the Board's final regulation requires an employing office to employ an intern for the entire period permitted by the definition; the final regulation simply sets a maximum period within which an internship may qualify to meet the exclusion of section 203(a)(2) of the CAA. Employing offices (or the House itself) are free to impose more stringent limitations on their employment of interns. The definition of "intern" in the final regulation establishes only the CAA's ceiling on the period of time an intern may be employed and still meet the exclusion of section 203(a)(2) of the CAA.

The regulation shall also state that the definition of "intern" does not cover volunteers, fellows or pages, as suggested by a commenter. The Board believes that, as modified, this definition makes clear that summer internships may meet the definition, provided that the other criteria of the regulation are met. Therefore, the explicit statement to that effect suggested by a commenter is unnecessary.

II. IRREGULAR WORK SCHEDULES

A. Introduction

Section 203(c)(3) of the CAA directs the Board to issue regulations for employees whose work schedules directly depend on the schedule of the House of Representatives or the Senate that shall be comparable to the provisions of the Fair Labor Standards Act of 1938 that apply to employees who have irregular schedules." Section 203(a)(3) states that, [e]xcept as provided in regulations under subsection (c)(3), covered employees may not receive compensatory time in lieu of overtime compensation."

Section 1 of the rule proposed in the NPR developed a standard for determining whether an individual s work schedule directly depends" on the schedule of the House of Representatives or the Senate." In Sections 2 and 3 of the rule proposed in the NPR, the Board proposed two irregular work schedule provisions which would be applicable to such employees. Section 2 of the proposed regulation, which allowed for the use of so-called Belo" agreements, was modeled almost verbatim on the requirements of section 7(f) of the FLSA. (See 29 U.S.C. section 207(f)). Section 3 of the proposed regulation, which was modeled on section 7(o) of the FLSA, established conditions under which employing offices could provide compensatory time off in lieu of overtime compensation to employees whose work schedules "directly depended" on the schedules of the House or the Senate. (See 29 U.S.C Section 207 (o)).

In addition to inviting general comments on the regulation proposed in the NPR, the Board invited comments on four specific issues: (1) whether the regulation should be considered the sole irregular work schedules provision applicable to covered employees or whether, in addition, section 203 of the CAA applies the irregular hours provision of section 7(f) of the FLSA with respect to covered employees whose work schedules do not directly depend on the schedules of the House or the Senate; (2) whether the contracts and agreements referenced in section 2 of the proposed regulation (so-called Belo" agreements) can or should be permitted to provide for a guaranty of pay for more than 60 hours and whether the terms and use of such contracts and agreements should differ in some other matter from those permitted in the private sector; (3) whether and to what extent the regulations may and should vary in any other respect from the provisions of section 7(f) of the FLSA; and (4) whether and to what extent section 7(o) of the FLSA is an appropriate model for the Board's compensatory time off regulations and whether and to what extent the Board's regulations should vary from the provisions of section 7(o) of the FLSA.

The Board has carefully reviewed the public comments received in response to the NPR and has further studied both the text and the legislative history of sections 203(a)(3) and 203(c)(3), as well as the provisions governing overtime compensation under section 7 of the FLSA. After doing so, the Board has concluded that the regulations relating to irregular work schedules should, consistent with both the special rules of sections 203(a)(3) and 203(c)(3) and established interpretations of the FLSA, be as follows:

First, for employees whose schedules directly depend upon the schedules of the House of Representatives or the Senate, the substantive regulations shall provide that an eligible employee is entitled to overtime compensation for working in excess of 40 hours but less than 60 hours in a workweek and is further entitled to overtime compensation or compensatory time off for hours worked in excess of 60 hours in a workweek. An employee's schedule shall be deemed to "directly depend" upon the schedule of the House or the Senate where the eligible employee performs work that directly supports the conduct of legislative or other business in the chamber and works hours that regularly change in response to the schedule of the House or the Senate.

Second, for other employees whose schedules do not "directly depend" upon the House or Senate schedule but who nevertheless work irregular or fluctuating work schedules, the provisions of sections 203(a)(3) and 203(c)(3) of the CAA do not apply and compensatory time off should not be available. Employing offices may nevertheless adopt any of several options, generally available under the FLSA, which satisfy overtime payment requirements in the context of irregular or fluctuating work schedules. The availability of these options addresses many of the concerns expressed in the comments received in response to the NPR.

    B. Summary of Comments.

    1. Applicability of 7(f) of the FLSA under the CAA.

In the NPR the Board asked several questions regarding the applicability of section 7(f) of the FLSA under the CAA. The commenters were divided on the question of whether the proposed regulation should be considered the sole irregular schedule provision applicable to covered employees or whether, in addition, section 203 of the CAA applies the irregular hours provision of section 7(f) of the FLSA to covered employees whose work schedules do not directly depend on the schedule of the House or Senate.

    Two commenters believed that the CAA allows an irregular work schedule provision only for employees whose work schedules directly depend on the schedules of the House or the Senate. Thus, the proposed regulation should be the sole irregular work schedule provision.

    Conversely, three commenters suggested that the proposed rule should not be the sole irregular work schedule provision but that the Board should implement a second rule on irregular schedules which applies to covered employees other than those whose schedules directly depend on the schedule of the House or Senate. These commenters noted that section 203 of the CAA expressly applies the entirety of section 7 of the FLSA to covered employees. Consequently, under the view of these commenters, section 7(f), the irregular work schedule provision of the FLSA, should apply to all covered employees, not just to those whose schedules directly depend on that of the House or Senate.

In addition to the issue of the general applicability of 7(f), the NPR posed the more specific questions of (1) whether the contracts or agreements referenced in 7(f) can or should be incorporated into the CAA's regulations so as to provide for a guaranty of pay for more than 60 hours; and (2) whether the terms and use of such contracts or agreement should differ in some other manner from those permitted in the private sector.

    Three commenters specifically stated that the 60-hour maximum should apply to the proposed regulation, again relying on the rationale that the CAA requires that the Board's rules be the same as those which apply to the private sector. Further, several commenters stated that, in general, the Board's regulations which implement the CAA should not deviate from those regulations applicable under the FLSA to the private sector--which implicitly includes "Belo" plans.

    Several commenters addressed the question of whether, as a general matter, the rule on irregular work schedules should vary from section 7(f) of the FLSA. All agreed that the regulation should not vary from Section 7(f) of the FLSA. Two commenters contended that the CAA applies the FLSA to the legislative branch in the identical manner that the FLSA applies to the private sector. One commenter argued that the rule on irregular work schedules should include provisions for compensatory time off because the Board's rule need only be "comparable" to section 7(f) of the FLSA.

2. Definition of "directly depends" under Section 1 of the Proposed Regulation.

Section 1 of the proposed regulation stated that a covered employee s work schedule directly depends" on the schedule of the House of Representatives only if the employee s workweek arrangement requires that the employee be scheduled to work during the hours that the House or Senate is in session and the employee may not schedule vacation, personal or other leave or time off during those hours, absent emergencies and leaves mandated by law." The proposed rule further stated that an employee s schedule on days the House or Senate is not in session does not affect the question of whether the employee s schedule directly depends on that of the House or the Senate. Seven commenters had concerns about the definition of when an employee's work schedule "directly depends" on the schedule of the House or Senate.

Four commenters found the definition too narrow, citing examples of covered employees who work for committees or support offices or agencies who they thought would not fit into a strict reading of the proposed regulation. These commenters said that employees of those offices who frequently must serve the Senate or the House "until the conclusion of specified legislative sessions or specified legislative business" have schedules that are determined by the House or the Senate, and not by their employing offices. Further, these commenters said that employing offices frequently limit severely their employees ability to take leave during these times, absent an emergency. The commenters claimed that, because the proposed rule requires that the employee s position must require them to be on duty whenever the House or Senate is in session, it excludes the employees of those offices and committees whose schedules are clearly mandated by that of the House or Senate but who are not necessarily required to be at work during every hour the House or Senate is in session. These commenters further asserted that these employees may, on occasion, take leave while the House or the Senate is in session, when their issue areas or responsibilities are not scheduled for debate and that this too would make them ineligible under the proposed irregular work schedule provision. These commenters expressed concern that, if such employees do not qualify for the irregular work schedule provision, many employing offices will not be able to afford the overtime their employees presently put in on a regular basis. Apart from the actual monetary cost, these commenters could not see how such offices would be able to anticipate adequately the amounts of overtime they will have to pay when planning their budgets because of the uncertainty in their schedules.

Another commenter suggested that the rule should also make clear that employees can be granted time away from work, or work on a reduced hour schedule, while the House or Senate is not in session, and still be covered by the irregular work schedule provision. This commenter also suggested that the regulations should give employing offices authority to determine whether schedules for their employees directly depend on the schedule of the House or Senate.

A third commenter suggested that the Board specifically state in the rule that the irregular work schedule provisions apply to employees of committees, joint committees, and (presumably) other offices in similar situations. Alternatively, this commenter suggested that, if the Board does not wish to take that approach, the rule should be changed to state that the employee s work schedule directly depends" on the schedule of the House or Senate if that employee s normal workweek schedule is determined based in whole or in part on the hours the House or Senate is in session and on the legislative calendar of the House or the Senate."

Conversely, two commenters believed that the definition in the proposed regulation of when an employee s schedule directly depends" on that of the House or Senate was too broad. One of these commenters suggested that the definition in the NPR (1) is not in keeping with what the Secretary of Labor deems an irregular work schedule in the private sector and (2) is subject to abuse by employing offices because it is too easy to meet, in this commenter s view.

This commenter asserted that the Department of Labor's regulations make it clear that employees who fall within the irregular work schedule provisions must have schedules that fall above and below the normal work week." According to this commenter, section 774.406 of those regulations states that, if the employee s hours fluctuate only above the maximum workweek prescribed in the statute, the employee's schedule is not considered irregular. This commenter insisted that the Board s proposed rule failed to include a provision that would require the employee s hours, at some point, to fall below the normal workweek schedule. This commenter saw this omission as creating an opportunity for employing offices simply to mandate that these employees be at work whenever the House or Senate is in session, as well as working a regular forty hour week when the House or Senate is not in session.

A second commenter read the proposed rule as potentially allowing employing offices to include employees under the irregular work schedule provision when, in fact, those employees do not work irregular hours or have workweeks of fewer than forty hours. This commenter suggested that the Board should clarify the rule to provide that an employee s schedule directly depends" on the schedule of the House or Senate when the employees must, as a result of that schedule, actually work workweeks which fluctuate significantly."

Finally, one commenter read the proposed definition as either too narrow, or too broad, depending on the intended meaning of the phrase during the hours of that the House or Senate is in session." This commenter observed that, if one interprets this phrase as requiring only that some of the employee s work hours coincide with the hours the House or Senate is in session, the definition is too broad because virtually every House or Senate employee that works on Capitol Hill would qualify. This commenter also observed that, if the phrase is read strictly to mean that an employee must work all of the hours that the House or Senate is in session, the definition is too narrow, for the same reasons given by the four commenters discussed above. This commenter suggested that a better definition of when an employee s schedule directly depends" on the schedule of the House or Senate is when the employee s work schedule is dictated primarily by the schedule of the [House or] Senate."

    3. Availability of compensatory time off and the applicability of section 7(o) of the FLSA.

In the regulations proposed in the NPR, the Board also invited comment on the propriety and advisability of using section 7(o) of the FLSA, which authorizes public sector employees to give compensatory time off in lieu of overtime compensation to public sector employees, as the model for determining whether employees whose schedules directly depend on the schedule of the House or the Senate should receive compensatory time off. The commenters were divided on this issue.

Six commenters opposed the provision of compensatory time off, asserting that the Board should not use section 7(o) as a model for the Board s regulations. These commenters stated that authorization of compensatory time off under section 203(c)(3) of the CAA would be inconsistent with the strict private sector prohibition against the use of compensatory time off in lieu of overtime compensation under the FLSA.

In these commenters view, compensatory time off under section 7(o) is not available to the private sector and, consequently, should not be available to Congress, since the CAA allegedly requires Congress to live by the rules of the private sector." Moreover, these commenters cite legislative activity of the 103rd Congress, in which various compensatory time provisions were proposed and rejected. Finally, these commenters cite various floor statements given during the debate on the CAA, which, they claim, state that compensatory time off is not available under the CAA.

One commenter argued that section 203(c)(3) of the CAA gives the Board discretion to authorize the use of compensatory time only if the provisions of the [FLSA] that apply to employees who have irregular schedules" authorize such overtime. This commenter pointed to the Interpretative Bulletin found at 29 C.F.R. 𨽢.114, which allows fixed salaries for fluctuating workweeks, and argued that the Board is not permitted to authorize compensatory time off under its irregular work schedule regulation except insofar as time off would have to be offered and utilized pursuant to this Interpretative Bulletin, i.e. not at all.

Conversely, five commenters suggested that authorizing compensatory time off in lieu of overtime pay under the proposed regulations is appropriate under the FLSA as applied by section 203 of the CAA. Further, three of these commenters specifically stated that section 7(o) of the FLSA is an appropriate model for the Board s regulations on compensatory time off. One commenter, citing a report that accompanied H.R. 4822, in the 103rd Congress, the predecessor to the CAA (S. Rep. No. 397, 103d Cong., 2d Sess. 18 (1994)), stated that the question of compensatory time off was specifically addressed by the Congress and that section 7(o) of the FLSA was approved as the appropriate model for determining accrual and use of compensatory time off. Since H.R. 4822 was substantially the same as S.2, the bill which ultimately was enacted as the CAA, this commenter concluded that this legislative history" suggests that a regulation authorizing compensatory time off and modeled after section 7(o) must also be acceptable under the CAA.

One commenter offered two further comments on the proposed rule. First, this commenter suggested that compensatory time off earned prior to January 23, 1996, should be used in accordance with the policies in effect at the time that the compensatory time was accrued, including policies governing payment for unused compensatory time upon termination of employment. According to this commenter, if no prior policies existed for use of compensatory time off, then the use of that accrued compensatory time should be governed by the new regulations. Further, this commenter argued that the 240-hour cap on accrued compensatory time should only apply to compensatory time accrued as of January 23, 1996 and that anything earned prior to that date (under the old system) should not count toward the 240-hour cap.

    C. Final Regulation: The Board shall authorize employing offices to provide compensatory time off, subject to limitations, for employees whose work schedules directly depend" on the schedule of the House or the Senate. In addition, the provisions of the FLSA as applied to covered employers under section 203 of the CAA authorize employing offices to utilize several methods of computing pay for employees who work irregular or fluctuating hours.

In addition to the options available to private sector employers under the FLSA for addressing irregular or fluctuating work hours, the regulations adopted by the Board shall allow employing offices additional flexibility in the case of employees whose work schedules directly depend" on the schedule of the House or the Senate. Specifically, for these employees, the Board's regulations shall modify the requirements of section 7(f) of the FLSA and provide for compensatory time off in lieu of overtime compensation to a limited extent.

    1. Compensatory time-off.

At the outset, the Board rejects the argument made by several commenters that allowing compensatory time off in lieu of overtime pay is not within the Board s discretion. Section 203(c)(3) provides that the Board may issue regulations for covered employees whose schedules "directly depend" on the schedule of the House or the Senate that shall be comparable to the provisions of the [FLSA] that apply to employees who have irregular schedules." In turn, section 203(a)(3) of the CAA provides that, [e]xcept as provided in regulations under subsection (c)(3), covered employees may not receive compensatory time in lieu of overtime compensation." The plain import of this statutory language is that the Board may provide for compensatory time off in its irregular work schedule regulations; indeed, any other construction of the statute would render the exception clause of section 203(a)(3) meaningless, which traditional canons of construction generally forbid.

While legislative history cannot in any event rewrite such statutory text, the Board also notes that, contrary to the argument of some commenters, nothing in the CAA's legislative history in fact forbids the Board from authorizing compensatory time off in lieu of overtime compensation for employees whose schedules directly depend on the schedule of the House or Senate. The only legislative materials of the 104th Congress referenced by these commenters are a floor statement by a Senator and the section-by-section analysis submitted during the Senate s consideration of the CAA. See 141 Cong. Rec. S445 (daily ed., Jan. 5, 1995); 141 Cong. Rec. S623-S624 (daily ed., Jan. 9, 1995). However, the referenced floor statement and section-by-section analysis were made in the context of discussing the general prohibition of compensatory time off under section 203(a)(3) of the CAA (and under section 7(a) of the FLSA). They were not made in reference to the specific terms of sections 203(a)(3), which explicitly do not proscribe the authorization of compensatory time off in the context of employees whose schedules directly depend on the schedule of the House or Senate. Indeed, not only do these sections not explicitly proscribe the authorization of compensatory time-off in this context, they in fact implicitly authorize compensatory time-off in this one specified circumstance.

Some commenters referred to legislative activity of the 103rd Congress in arguing that compensatory time-off may not be allowed. But, as noted above, legislative history is not law and cannot properly be used to rewrite statutory text. Moreover, to the extent that legislative history of a prior Congress is relevant in determining the meaning of an act passed by the current Congress (but see Landgraf v. USI Film Products, 114 S.Ct. 1483, 1496 (1994)), the legislative history" cited is, in all events, consistent with the approach taken by the Board.

For example, S. 1824, which was considered by the 103rd Congress, applied the protections of the FLSA to the Senate, but exempted employees whose work schedules are dependent on the legislative schedule of the Senate. See S. 1824, section 304(b); S. Rep. N. 103-297 at p.31 (103d Cong., 2d Sess. 31 (1994). Because employees whose schedules are dependent" on the Senate s schedule were completely excluded from FLSA protections under S. 1824, there was no need to consider the compensatory time off issue for those employees. Similarly, H.R. 4822, was sent to the Senate on August 12, 1994, expressly allowed compensatory time off for all covered employees to the same extent that section 7(o) of the FLSA authorized compensatory time off for state and local government employees. See H.R. 4822, section 103(a)(3); S. Rep. No. 397 (103d Cong., 2d Sess. 18)(1994). Finally, H.R. 4822, as reported by the House, gave the Office of Compliance authority to consider the appropriate rule for employees with irregular schedules. See H.Rep. 650 (Part 2) (103d Cong., 2d Sess. 15 (1994). Clearly, to the extent that it is relevant, the available legislative history from the 103rd Congress does not reflect an intent categorically to prohibit the Board from allowing compensatory time off for employees with schedules that directly depend on the schedules of the House or the Senate.

Some commenters also referred to statements of legislators written after the CAA was passed regarding the Congress s alleged intent regarding compensatory time off. However, courts do not view after-the-fact statements by proponents of a particular interpretation of a statute as a reliable indication of what Congress intended when it passed a law, even assuming that extra-textual sources are to any extent reliable for this purpose. See Gustafson v. Alloyd Co., Inc., 115 S.Ct. 1061, 1071 (1995). The Board thus does not find such statements to limit its discretion under the statute as enacted.

The Board also does not agree with the commenters who asserted that the CAA uniformly adopts all aspects of private sector law in applying rights and protections to covered and employing offices within the legislative branch. The Board notes, for example, that section 225(c) of the CAA prohibits any award of civil penalties or punitive damages against offending employers, even though such penalties and damages would be available in private sector actions. Similarly, the Board notes that section 203(a)(2) excludes "interns" from the rights and protections of the FLSA, even though in many cases such interns would be entitled to such rights and protections under the same circumstances in the private sector. The Board further notes that covered employees asserting FLSA rights and protections must first exhaust confidential counseling and mediation remedies prior to filing an action in federal court; in contrast, private sector FLSA plaintiffs may proceed directly to court. In addition, the Board notes that, whereas private sector FLSA plaintiffs enjoy a limitations period of two years (three in the case of willful violations), 29 U.S.C. 𨵗, covered employees must initiate claims within 180 days of an alleged violation. See sections 402 and 225(d)(1). In short, private sector employers and employing offices under the CAA are treated differently in several instances; and Sections 203(a)(3) and (c)(3) indicate that the use of compensatory time off in the context of employees whose schedules directly depend on the schedules of the House and the Senate is one of the allowable differences.

That the CAA does not foreclose the Board from authorizing compensatory time off, of course, does not end the inquiry. The question remains whether the Board in its discretion should allow for use of compensatory time off in connection with employees whose schedules directly depend on the schedules of the House and the Senate, and if so, to what extent it should do so. In the rule proposed in the NPR, the Board proposed to do so and to use Section 7(o) as the model for doing so. However, in the NPR, the Board also specifically invited comment on both its approach and the advisability of using section 7(o) as the regulatory model for this purpose. Upon both further reflection and consideration of the comments received, the Board has determined that, while use of compensatory time off should still be allowed in this context, section 7(o) may not be the most apt analogy.

The Board continues to find that the use of compensatory time off in lieu of overtime pay should be allowed in the context of employees whose schedules "directly depend" upon the schedules of the House or the Senate. The import of section 203(a)(3) is that Congress contemplated that compensatory time off could be allowed in this unique context. Moreover, section 203(c)(3) suggests a special concern and desire by Congress for providing flexibility in connection with employees whose schedules "directly depend" on the schedules of the House and the Senate. The comments received confirm that the work schedules of these unique employees justify special rules that both protect these employees' rights and yet allow for flexibility and cost-control on the part of their employing offices. In the Board's judgment, use of compensatory time off is thus appropriate in this context.

The Board is now convinced, however, that section 7(o) of the FLSA is not the proper model for compensatory time off regulations in this context. Section 7(o) was not designed for and is not limited to employees with irregular work schedules; nor was section 7(o) designed for or limited to employees whose schedules directly depend upon the schedules of the House and Senate. Accordingly, the Board has concluded that its regulations in this context should not be modeled after section 7(o), though it would be permissible for them to be so modeled.

Rather, the Board has concluded that section 7(f) of the FLSA is the more appropriate starting point for integrating compensatory time off into the CAA scheme. Section 7(f) was expressly designed for employees with irregular work schedules. It thus provides a more apt starting point for the development of regulations concerning employees whose irregular work schedules arise from the schedules of the House and the Senate. Moreover, using section 7(f) as the starting point for regulations has the advantage of building on a structure that already attempts to accommodate the needs of employers of employees with irregular work schedules and the FLSA rights of those employees.

Of course, section 7(f) was not explicitly designed for employers of employees whose schedules directly depend on the schedules of the House or the Senate. And section 203(c)(3) instructs that the Board's regulations for those employees need only be "comparable" and not the "same as" the provisions of the FLSA that address employees with irregular work schedules. Thus, the provisions of section 7(f) may properly be adjusted in order best to address the FLSA rights and obligations under the CAA of employees and employing offices in this special context.

Upon both further reflection and consideration of the comments received, the Board in its considered judgment has concluded that the irregular work schedule provisions of section 7(f) should be modified for employees whose work schedules "directly depend" on the schedule of the House or Senate as follows:

    1) No agreement between the employee and the employing office should be required in this context; the authorization for differential treatment of such employees derives from section 203(c)(3) and the Board's regulations implementing that section of the CAA;

    2) The employee's duties need not necessitate irregular hours of work within the meaning of section 7(f); instead, the employee need only be one of those employees whose work "directly depends" on the schedule of the House or the Senate (as defined in these regulations);

    3) The employee's hours may permissibly fluctuate only in the overtime range, as the statutory concern here is obviously the unpredictability in work schedules that derives from the conduct of the nation's federal legislative business;

    4) Compensatory time off may be paid in lieu of overtime compensation for any hours worked in excess of 60 hours in a workweek. For overtime hours over 40 and up to 60 hours, the employing office must pay appropriate overtime compensation as otherwise required by the CAA. Of course, if the requirements of section 7(f) are met, pay for the first 60 hours of employment could be governed by that section. This limited use of compensatory time off rules is consistent with the language and evident purpose of sections 203(c)(3) and (a)(3); it provides employing offices with some flexibility and control over costs in this context; and, by requiring employing offices to pay overtime for the first 20 hours of overtime in a week, it provides sufficient disincentives for employing offices to abuse the use of the provision; and,

    5) An employee who has accrued compensatory time off under section 2, upon his or her request, shall be permitted by the employing office to use such time within a reasonable period after making the request, unless the employing office makes a bona fide determination that the needs of the operations of the office do not allow the taking of compensatory time off at the time of request. An employee may renew the request at a subsequent time. Upon termination of employment, the employee shall be paid for any unused compensatory time.

The above rules are sufficiently similar to the provisions of section 7(f) as be "comparable" within the meaning of section 203(c)(3). See Webster's Third New International Dictionary 461 (1968)("comparable" defined as "having enough like characteristics or qualities to make comparison appropriate," "permitting or inviting comparison often in one or two salient points," "equivalent, similar"). In the Board's judgment, these rules also best balance and accommodate the rights and obligations of covered employees and employing offices under the CAA.

Finally, as to issues relating to compensatory time off that accrued under other rules prior to January 23, 1996, the effective date of the CAA, the Board concludes its regulations do not apply. Disputes over the use of such accrued time off, even if they arise after January 23, 1996, are not governed by these regulations and should be directed to the authorities previously responsible for such rules.

    2. The standard for determining when an employee s schedule directly depends" on the schedule of the House or the Senate.

Just as it is clear that the Board may authorize compensatory time off in lieu of overtime compensation for employees whose schedules "directly depend" upon the schedules of the House or Senate, it is equally evident that Congress did not intend that it be made available to all covered employees. Using words of limitation, the CAA states that only those employees whose work schedules "directly depend" on the schedule of the House or the Senate may qualify for compensatory time off in lieu of overtime pay.

Of course, as the comments demonstrate, the phrase "directly depend" is not entirely free of ambiguity. In a broad sense, the times in which the House or the Senate convene to conduct legislative business will impact in varying degrees on the schedule of practically all who work on Capitol Hill or for members of Congress, much like the ripple effect of a pebble tossed into water. Thus, an expansive interpretation of "directly depends"--i.e. if it need only be demonstrated that an employee's work hours at any point was influenced to some extent by a daily session of either legislative body--would make compensatory time off almost universally available.

There is no reason to believe that Congress intended such an expansive interpretation of the statutory phrase. The term "directly" connotes a narrower rather than a broader meaning and indeed, suggests that a relatively immediate connection between the employees' work schedule and changes in the schedule of the House or the Senate was contemplated. Moreover, since sections 203(a)(3) and 203(c)(3) textually refer to each other, and since the allowance of compensatory time off in the context of regulations implementing section 203(c)(3) was to be the exception rather than the rule, a narrower definition of "directly depend" is necessary to honor the statutory text and structure (as well as the general legislative history on the limited availability of compensatory time off).

The question remains, of course, how the term "directly depend" should be defined. In the Board's judgment, the following considerations are relevant:

First, in making the "schedule" of the House and the Senate determinative, Congress appears to have been focusing on the floor activities that occur in each chamber. Each body's "schedule" generally has meaning only in reference to the times at which each House's respective leadership plans to convene a daily session in order to conduct legislative business. While the congressional leaders can decide when to convene a session and what to place on the calendar, the dynamic nature of the legislative process often makes it difficult to control when business will be concluded. For example, a session of the Senate may be unexpectedly protracted by unlimited debate on an issue. Similarly, the schedule of the House may be upset if a bill is brought to the floor under an "open rule" that allows unlimited amendments. Also, as recent experience has demonstrated once again, both Houses are often required to remain in session for extended hours in an effort to resolve differences between the two Houses or between the Congress and the President. This dynamic makes the schedules of the House and the Senate highly irregular and, at times, long, thereby requiring certain employees to work in excess of the maximum workweek prescribed by the FLSA.

Second, in using the adverb "directly" to modify "depend," Congress also appears to have required a relatively close nexus between the floor activities of each body and the work schedule of an eligible covered employee. (See the floor statement of Senator Grassley at 141 Cong. Rec. S 624, Jan. 9, 1995: " Directly' is to be strictly limited to those employees who are essentially floor staff.") From a functional standpoint, the practical reality is that the conduct of legislative business in each chamber requires the efforts of those who literally work in or adjacent to each chamber -- such as the legislative clerks, those who staff the cloakrooms, those who provide security, the reporters of debates, and the parliamentarian's staff. Practically, the conduct of legislative business also requires the efforts of some who are not located in either chamber but whose work is directly linked to floor activity on a day-to-day basis -- such as those who operate the microphones or the remote cameras that televise the proceedings, those in the Document Room, those who maintain the various legislative computer systems that control the House voting system or that track the proceedings, and those, like the staff of the legislative counsel's office, who must be available to address substantive matters that may arise in the course of deliberations. These personnel must generally be in attendance, and their employing offices open and staffed, if the two Houses of Congress are to conduct legislative business. By the same token, during those periods when the House or the Senate is not in session, the level of required work may be considerably diminished, thus affording such employees ample opportunity to utilize accrued compensatory time-off.

The Board recognizes that, in a sense, the work of employing offices such as legislative committees and joint committees is linked to the schedules of the House and the Senate--at least when legislation reported out of such committees is placed on the calendar for debate. The Board also recognizes that, in the same sense, employees of committee offices may sometimes have irregular work hours that balloon with protracted consideration of their bills on the floor. However, it is also true that the work of such offices and employees tends not to ebb and flow in the same sense or to the same degree as that of those offices and employees more closely tied to floor activity. Moreover, during those days when the House or the Senate is not in session or has only an abbreviated pro forma session, these committees still conduct hearings or at the very least their staffs are likely to be engaged in a full range of activities associated with considering legislation for hearing, for markup or for oversight. These employing offices, thus, maintain a schedule of activities that is separate from and independent of the schedule of the House or the Senate. It, therefore, makes much less sense to say that their employees have schedules that "directly depend" upon the schedule of either body, as contemplated by section 203(c)(3).

Based on these considerations, the Board shall adopt a definition of "directly depends" that requires the eligible employee to perform work that directly supports the conduct of business in legislative areas in the chamber and to work hours that regularly change in response to the schedule of the House or the Senate.

    3. The provisions of the FLSA as applied to covered employers under section 203 of the CAA authorize employing offices to utilize several methods to compute overtime for employees who work irregular or fluctuating hours.

In so framing its rules, the Board understands that its regulations under section 203(c)(3) will not themselves resolve all of the concerns raised by commenters regarding the ability of employing offices to anticipate and control payroll costs associated with employees who work fluctuating or irregular hours. But the Board frankly finds that many of these concerns are simply concerns with the obligations that the CAA has imposed on employing offices (just as the FLSA imposes them on other employers); and the Board must reiterate that it generally cannot and should not, in the absence of authority to do so, attempt to resolve for employing offices cost and other such concerns that derive from FLSA compliance obligations under the CAA. Moreover, many of the concerns that have been raised may be addressed by employing offices by resort to methods available under the FLSA to employers generally to potentially control their total payroll and to offset costs due to overtime compensation obligations incurred in a particular workweek. Such methods are also available to employing offices under the CAA, and many of the concerns raised by employing offices may be adequately addressed through the use of these mechanisms.

    a. Section 7(f) of the FLSA and Belo Contracts."

One method of reducing overtime costs available in some situations under the FLSA is the so-called Belo" contract, a form of guaranteed compensation that includes a certain amount of overtime. Codified by section 7(f) of the FLSA, Belo contracts allow an employer to pay the same total compensation each week to an employee who works overtime and whose hours of work vary from week to week." 29 C.F.R. § 778.403. See 29 C.F.R. § 778.404, citing Walling v. A.H. Belo Co., 316 U.S. 624 (1942). Such a contract affords to the employee the security of a regular weekly income and benefits the employer by enabling it to anticipate and control in advance at least some part of its labor costs. A guaranteed wage plan also provides a means of limiting overtime computation costs so that wide leeway is provided for having employees work overtime without increasing the cost to the employer. 29 C.F.R. § 778.404.

Belo contracts may be used by employers where the following four requirements of section 7(f) are met:

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

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

    3) the fluctuation in the employee s hours is not be 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.

29 U.S.C. 𨴧(f); 29 C.F.R. §𨽢.406, 778.407.

Section 7(f) of the FLSA is applicable to covered employees and employing offices under section 203(a) of the CAA. Therefore, an employing office may utilize a Belo" contract where the above-referenced requirements of section 7(f)are satisfied.

    b. Time off plans.

An alternative approach that is less complex than a "Belo" contract is a time off plan. Under such a plan, an employer lays off the employee a sufficient number of hours during some other week or weeks of the pay period to offset the amount of overtime worked (i.e., at the one and one-half rate) so that the desired wage or salary for the pay period covers the total amount of compensation, including the overtime compensation, due the employee for each workweek taken separately.

A simple illustration of such a plan is as follows: An employee is paid on a bi-weekly basis of $400 at the rate of $200 per week for a 40 hour workweek. In the first week of the pay period, the employee works 44 hours and would be due 40 hours times $5 plus 4 hours times $7.50, for a total of $230 for the week. Payment of $400 at the end of the biweekly pay period satisfies the monetary requirements of the FLSA, if the employer permits the employee to work only 34 hours during the second week of the pay period.

The control of earnings by control of the number of hours that an employee is permitted to work is the essential principle of the time off plan. 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 that the employee may work in any particular workweek or pay period. Further, the overtime hours cannot be accumulated and the time off given in another pay period.

Time off plans are authorized under section 7(a) of the FLSA. See, e.g. Wage and Hour Administrator Opinion Letter, issued 1950; Wage and Hour Opinion letter dated December 27, 1968. Thus, employing offices are authorized to use such plans under section 203 of the CAA.

    c. Fixed salary for fluctuating hours.

A third approach for dealing with fluctuating or irregular work schedules of a salaried employee is for an employer to have an understanding with the employee that the fixed salary amount is to be considered straight time pay for all hours, whatever the number, worked in a week. The FLSA permits such an arrangement where two conditions are satisfied: (1) the salary is sufficient to provide compensation to the employee at a rate not less than the applicable minimum wage rate for every hour worked in those workweeks in which the number of hours that the employee works is greatest; and (2) the employee receives extra compensation, in addition to such salary, for all overtime hours worked at a rate not less than one-half the employee s regular rate of pay. Since the salary in such a situation is intended to compensate the employee at straight time rates for whatever hours are worked in the workweek, the regular rate of the employee will vary from week to week and is determined by dividing the number of hours worked in the workweek into the amount of the salary to obtain the applicable hourly rate for the week. Payment for overtime hours at one-half such rate in addition to the salary satisfies the overtime pay requirement because such hours have already been compensated at the straight time regular rate under the salary arrangement.

As with time off plans, fixed salaries for fluctuating hours are permitted under section 7(a) of the FLSA. See generally 29 C.F.R. § 778.114. Thus, employing offices are authorized to implement such schedules under the CAA, provided that they meet the requirements thereunder.

    III. 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 proposed 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 proposed 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 proposed regulations that shall apply to other covered employees and employing offices should be approved by the Congress by concurrent resolution.

The Board notes that on December 19, 1995, the House adopted H. Res. 311 and H. Con. Res. 123. The stated purpose of these resolutions was to approve "on a provisional basis" regulations "issued by the Office of Compliance before January 23, 1996," the date the statutory provisions which are currently the subject of Board rulemaking are effectively applied to covered employees and employing offices in the legislative branch. These resolutions were designed to avoid possible default application of the relevant executive agency regulations by courts, hearing officers and the Board in cases under the CAA -- a default application that becomes possible under section 411 of the CAA in circumstances where the Board has not issued an applicable regulation.

The passage of these resolutions creates an additional interpretative issue for the Board. On the one hand, the resolutions do not strictly follow the precise terms of section 304(c) and thus could arguably be understood not yet to authorize issuance of the Board's final regulations. On the other hand, the resolutions clearly that contemplate the Board's regulations, and not the executive agency regulations, may be put in place by the Board on January 23, 1996. Thus, the Board must decide whether to treat these resolutions as allowing issuance of the regulations (and establishment of an effective date) under section 304(d)(3).

After due consideration of the matter, the Board has concluded that these resolutions allow issuance of regulations under section 304(d)(3). Although the House has not strictly followed the precise terms of section 304(c), its has expressed its approval of the Board's regulations, and the CAA does not purport to require different procedures. Furthermore, the intent of the House's resolutions would be frustrated if the Board does not treat them as authorizing issuance of regulations that would be effective on January 23, 1996. In these circumstances, the Board believes that its is permissible to interpret the CAA to give effect to these resolutions and to allow issuance of the Board's regulations; indeed, consultation by staff of the Office with the staff of the House confirms that the House do intended. (The House upon reconvening could, of course, resolve all ambiguity about its intentions by passage of a resolution that more literally follows the terms of section 304(c)).

In so interpreting the CAA, the Board recognizes that the House has purported only to "provisionally" approve the Board's regulations and apparently to reserve the right for later disapproval. But, pursuant to section 304(f), the House may always petition the Board for amendment or repeal of a regulation with which it may later find itself in disagreement. Accordingly, the Board does not believe that its interpretation of the House's action in any frustrates either the House's apparent reservation or, for that matter, any concern of the CAA with approval by the House of the Board's regulations.

The question remains whether "good cause" exists under section 304(d)(3) of the CAA for an effective date earlier than 60 days after the issuance of these regulations. The Board finds that such "good cause" plainly exists. If the adopted regulations that are approved by the House are not effective as of January 23, 1996, employing offices and employees will have to comply with the regulations through the CAA's default provisions until the effective date of the Board's regulations; and yet, shortly thereafter, employing offices and employees would then have to concern themselves the Board's new regulatory scheme. The result would be wasted resources and confusion; and the education and information efforts of the Office would be hampered by having to anticipate an address two bodies of regulations. Accordingly, the Board concludes that the regulations adopted for and approved by the House should be effective as of January 23, 1996.

The Board notes that, while the Senate has not yet passed a resolution of approval, it is apparently considering whether to do so; and the Senate is also apparently considering whether to pass the concurrent resolution of approval that the House has passed. Until the Senate does so, the Board cannot issue as final regulations under section 304(d) the regulations subject to Senate and concurrent resolutions. Obviously, when and if the Senate acts, the Board will move expeditiously to issue final regulations that are approved by such resolutions and to establish appropriate effective dates for such regulations.

Adopted Regulations

Regulation Defining Interns" (Implementing Section 203(a)(3) of the CAA)

    Section 1. An 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.

    Section 2. The definition of intern does not include volunteers, fellows or pages.

[Senate version:] Section 2. An intern for the purposes of section 203(a)(2) of the Act also includes an individual who is a senior citizen intern appointed under S.Res. 219 (May 5, 1978, as amended by S. Res. 96, April 9, 1991), but does not include volunteers, fellows or pages.

Regulation Concerning Employees Whose Work Schedules Directly Depend on the Schedule of the House of Representatives or the Senate (Implementing Section 203(c)(3) of the CAA)

Section 1. For the purposes of this Part, a covered employee s work schedule directly depends" on the schedule of the House of Representatives [the Senate] only if the eligible employee performs work that directly supports the conduct of legislative or other business in the chamber and works hours that regularly change in response to the schedule of the House and the Senate.

Section 2. No employing office shall be deemed to have violated section 203(a)(1) of the CAA, which applies the protections of section 7(a) of the Fair Labor Standards Act ( FLSA") to covered employees and employing office, by employing any employee for a workweek in excess of the maximum workweek applicable to such employee under section 7(a) of the FLSA where the employee s work schedule directly depends on the schedule of the House of Representatives [Senate] within the meaning of Section 1, and: (a) the employee is compensated at the rate of time-and- a-half in pay for all hours in excess of 40 and up to 60 hours in a workweek, and (b) the employee is compensated at the rate of time-and-a half in either pay or in time off for all hours in excess of 60 hours in a workweek.

Section 3. An employee who has accrued compensatory time off under section 2, upon his or her request, shall be permitted by the employing office to use such time within a reasonable period after making the request, unless the employing office makes a bona fide determination that the needs of the operations of the office do not allow the taking of compensatory time off at the time of the request. An employee may renew the request at a subsequent time.

Section 4. An employee who has accrued compensatory time authorized by this Section shall, upon termination of employment, be paid for the unused compensatory time at the rate of time-and-a half.

[Note: Sections 1-4 were incorporated into the final regulations as Sections §§[H][S][C] 553.301-.304, respectively.]

 

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