a. Basic Work Requirement
The basic work requirement of
a flexible work schedule is the number of
hours, excluding overtime hours, an employee must work or otherwise account for by
leave, credit hours, holiday hours,
excused absence, compensatory time off, or time off as an award.
(1) A full-time employee must work 80 hours/biweekly pay period, or a multiple of
this requirement, as determined by the agency head. Agencies may also establish daily or
weekly basic work requirements.
(2) A part-time employee works fewer hours than a full-time employee
within a specified period of time, as determined by the agency head consistent
with 5 U.S.C. 3401 through 3408 and 5 CFR
part 340.
b. Tour of Duty
(1) In general, the tour of duty
comprises all hours and days for which flexible and core hours have been designated, including those
days within a maxiflex schedule for which only flexible hours
are scheduled. (See Appendix B.) The tour of duty defines the limits within
which an employee must complete his
or her basic work requirement.
Note: Overtime hours are not included in the definition of a tour
of duty for employees under AWS.
(2) The types of FWS vary significantly.
Agencies have the authority to establish
flexible and core hours to meet their needs. Agencies are encouraged to
delegate this authority to the lowest practicable organizational levels.
(Appendix B suggests some possible AWS schedules.
These models are not all-inclusive; they illustrate alternatives that
agencies may adapt to fit their specific needs.)
(3) Temporary changes in the tour of duty may be made under the terms
of a negotiated agreement, if applicable, or agency policy.
c. Credit Hours
(1) Credit hours may be worked
only by employees covered by FWS
programs. If the agency's FWS plan permits credit hours, the agency
may approve an employee's request to work credit hours to be applied to
another workday, workweek, or biweekly pay period. Not all FWS programs
provide for credit hours.
(2) Credit hours are worked at the election of the employee consistent
with agency policies; they are distinguished from overtime hours in that they are not officially
ordered and approved in advance by management. Credit hours must be
worked within an employee's non-overtime tour
of duty (see subsection b(1) above) .
(3) An employee's right to use earned credit hours is governed by policies
established under an agency FWS program. See 5 U.S.C. 6122(a) .
(4) When an employee uses credit hours, such hours are to be counted
as a part of the basic work requirement
to which they are applied. An employee is entitled to his or her rate
of basic pay for credit hours, and credit hours may not be used by an
employee to create or increase entitlement to overtime pay.
(5) An agency may place a limit on the number of credit hours an employee
may earn during a biweekly pay period. An agency also may limit the number
of credit hours an employee may earn on a daily or weekly basis. Further,
a time frame may be set within which employees may use credit hours after
they have been earned. Section 6126(a) of title 5, United States Code,
limits the number of credit hours an employee may carry over from a biweekly
pay period to a succeeding biweekly pay period to 24 hours for a full-time
employee (one-fourth of a part-time employee's biweekly work requirement).
An agency may further limit the number of credit hours carried forward
from one biweekly pay period to the next.
(6) When an employee is no longer subject to an FWS program, the employee
must be paid for accumulated credit hours at his or her current
rate of pay. Payment for accumulated credit hours is limited to a maximum
of 24 hours for a full-time employee. For a part-time employee, the limit
is one-quarter of the employee's biweekly work requirement. (See 5 U.S.C. 6126(b).) An employee may not
be compensated for credit hours for any other reason (e.g., excess, unused
credit hours that cannot be carried forward into the next pay period).
(See 5 U.S.C. 6123(b).)
(7) An employee may not be paid overtime pay, Sunday premium pay, or
holiday premium pay for credit hours. Credit hours must always be part
of the employee's non-overtime basic work requirement. Sunday premium
pay may be paid only when an employee works on Sunday, with the exception
of paid leave and excused absence, and then only when permitted by law.
Holiday premium pay may be paid only for work on a holiday. See 5 U.S.C. 6121(3) and 5 U.S.C. 5546(a)
and (b).
(8) Whether an employee is entitled to night pay for credit hours on
the day on which such hours are earned (worked) depends on the rules for
night pay. (See 5 U.S.C. 6123(c) and section f. below.)
Note: Credit hours must be considered daytime hours whenever possible.
(9) In the event of an agency closure or early dismissal before the beginning
of an employee's daily tour of duty, an employee may retain credit hours
that have not been used, to the extent permitted by law and regulation
(e.g., full-time employees may not carry over more than 24 credit hours
to a new biweekly pay period). If an early dismissal occurs during or
after the employee's daily tour of duty, the employee will be charged
for credit hours that have already been used.
(10) Agencies may permit Senior Executive Service (SES) members to participate
in FWS programs; however, SES members may not accumulate credit hours.
(See 5 CFR 610.408.)
Note: See "Travel" for information about credit hours and
travel.
d. Overtime Work Determinations
(1) For employees under FWS programs, overtime hours are all hours of work in excess
of 8 hours in a day or 40 hours in a week which are officially ordered
in advance by management. (See the definition of "overtime hours"
at 5 U.S.C. 6121(6). The requirement that
overtime hours be officially ordered in advance also applies to nonexempt
employees under the Fair Labor Standards Act (FLSA). Employees on flexible
work schedules may not earn overtime pay as a result of including
"suffered or permitted" hours (under the FLSA) as hours of work.
See 5 CFR 551.401(a)(2).
(2) Management may order an employee who is covered by an FWS program
to work hours that are in excess of the number of hours the employee planned
to work on a specific day. If the hours ordered to be worked are not in
excess of 8 hours in a day or 40 hours in a week at the time they are
performed, the agency, at its discretion, may permit or require
the employee to--
(i) take time off from work on a subsequent workday for a period of time
equal to the number of extra hours of work ordered;
(ii) complete his or her basic work
requirement as scheduled and count the extra hours of work ordered
as credit hours; or
(iii) complete his or her basic work requirement as scheduled if the
agency policy permits. This will result in an employee entitlement to
be compensated at the rate of basic pay for any hours of work equal to
or less than 8 hours in a day or 40 hours in a week. An employee also
would be entitled to overtime pay for hours of work ordered in excess
of 8 hours in a day or 40 hours in a week.
e. Compensatory Time Off
(1) "Compensatory time off" is time off on an hour-for-hour
basis in lieu of overtime pay. For employees under FWS, the overtime hours of work may be regularly scheduled
or irregular or occasional. An agency may grant compensatory time off in lieu of
overtime pay at the request of the employee (including prevailing
rate employees and nonexempt employees) under a flexible work schedule. (See 5 U.S.C. 6123(a).)
(2) Compensatory time off, in lieu of overtime pay, may not be required
for--
(i) any prevailing rate employee;
(ii) any employee who is nonexempt from the FLSA; or
(iii) any FLSA-exempt employee whose rate of basic pay is equal to or
less than the rate for GS-10, step 10.
(3) Mandatory compensatory time off, in lieu of overtime pay for irregular
or occasional overtime work, may be ordered for employees who are FLSA
exempt and whose rate of basic pay exceeds the rate for GS-10, step 10.
However, this does not apply to prevailing rate employees who are FLSA
exempt. The rate of basic pay for GS-10, step 10, includes any applicable
special rate of pay for law enforcement officers or special pay adjustment
for law enforcement officers under section 403 or 404 of the Federal Employees
Pay Comparability Act of 1990 (Pub. L. 101-509), respectively; an applicable
locality-based comparability payment under 5 U.S.C.
5304; and any applicable special rate of pay under 5 U.S.C. 5305 or similar
provision of law).
f. Night Pay (General Schedule and
Other Employees Covered by Section 5545(a) of Title 5, United States Code)
(1) If an employee's tour of duty includes 8 or more hours available
for work during daytime hours (i.e., between 6 a.m. and 6 p.m.), he or
she is not entitled to night pay even though he or she voluntarily elects
to work during hours for which night pay is normally required (i.e., between
6 p.m. and 6 a.m.).
(2) Agencies must pay night pay for those
hours that must be worked between 6 p.m. and 6 a.m. to complete an 8-hour
daily tour of duty.
(3) An employee is entitled to night pay for any nonovertime work performed
between 6 p.m. and 6 a.m. during designated core hours.
Note: An employee who performs regularly scheduled overtime work at
night is also entitled to night pay.
g. Night Differential (Prevailing Rate Employees)
Night differential will not be paid solely because a prevailing rate employee elects
to work credit hours, or elects a time of arrival or departure at a time
of day when night differential is otherwise authorized, except that prevailing
rate employees are entitled to night differential for regularly scheduled
nonovertime work when a majority of the hours of a FWS schedule for a
daily tour of duty occur during the night. (See 5 U.S.C. 5343(f) and 6123(c)(2).)
h. Holiday Pay (When No Work Is Performed)
(1) Under an FWS program, a full-time employee
who is relieved or prevented from working on a day designated as a holiday
(or an "in lieu of" holiday under 5 U.S.C. 6103(b) or section 3 of E.O.
11582) by Federal statute or Executive order is entitled to his or her
rate of basic pay on that day for 8 hours. (See 5 U.S.C. 6124.)
(2) If a holiday falls on a day during a part-time FWS employee's
tour of duty and the employee is relieved or prevented from working
on that day, the employee is entitled to his or her rate of basic pay
for the typical, average, or scheduled number of hours of work for that
day toward his or her basic work
requirement (not to exceed 8 hours). If a part-time FWS employee has
maintained a reasonably consistent schedule for several pay periods, the
employee may be paid for the number of hours he or she would have worked
had the holiday not relieved or prevented the employee from working (not
to exceed 8 hours). If a part-time employee has no typical schedule, the
agency may average the number of hours worked in
prior weeks on days corresponding to the holiday to determine an employee's
pay entitlement for that holiday (not to exceed 8 hours). (See 5 CFR 610.405.)
A work schedule submitted in advance of the administrative work week
also may be used by an agency as the basis for determining the number
of hours to pay a part-time employee on a holiday. However, agencies should
ensure that there is no abuse of entitlement. For example, an employee
should not schedule more hours of work on a holiday than he or she has
scheduled in prior weeks on days corresponding to the holiday.
(3) Determining "In Lieu of" Holidays when Holidays Fall on
Nonworkdays
(i) Nonworkdays Other than Sunday. If a holiday falls on a nonworkday
of the employee--except for holidays falling on a Sunday nonworkday--the
employee's preceding workday will be the designated "in lieu of"
holiday. (See 5 U.S.C. 6103(b).)
(ii) Sunday Nonworkday. If the holiday falls on the Sunday nonworkday
of an employee, the subsequent workday will be the employee's designated
"in lieu of" holiday. (See section 3 of Executive Order 11582
of February 11, 1971.)
(iii) Part-time employees. Part-time employees are not entitled to an
"in lieu of" holiday when a holiday falls on a nonworkday for
the employee. (See 5 CFR 610.405.)
i. Pay for Holiday Work
(1) A full-time employee under an FWS
program who performs non-overtime work on a holiday (or a day designated
as the "in lieu of" holiday under 5 U.S.C. 6103(b) or section 3 of E.O.
11582) is entitled to his or her rate of basic pay plus premium pay equal
to his or her rate of basic pay for that holiday work. Holiday premium
pay is limited to a maximum of 8 hours.
Note: Agencies must
designate the 8 holiday hours applicable to each FWS employee. The 8 hours
designated as holiday hours must include all applicable core
hours .
(2) An employee under an FWS program who works during non-overtime and
non-holiday hours that are part of the employee's
basic work requirement on a holiday is paid his or her rate of basic
pay for those hours of work.
Example: An employee who works 10 hours on a holiday (including 1 hour
of overtime work ordered by a supervisor) and who has a 9-hour basic work
requirement on that day would earn holiday premium pay for the 8 holiday
hours designated by the agency, his or her rate of basic pay for 1 hour
(within the basic work requirement), and 1 hour of overtime pay.
(3) A part-time employee under an FWS program is entitled to holiday
premium pay only for work performed during his or her basic work requirement
on a holiday (not to exceed 8 hours). A part-time employee, scheduled
to work on a day designated as an "in lieu of" holiday for full-time
employees under 5 U.S.C. 6103(b) or section 3 of E.O. 11582, is not entitled
to holiday premium pay for work performed on that day. (See 5 CFR 610.405.)
j. Pay for Sunday Work
(1) A full-time employee who performs
regularly scheduled nonovertime work, a part of which is performed on
Sunday, is entitled to Sunday premium pay for the entire daily
tour of duty, not to exceed 8 hours. It is possible for an employee
to have two daily tours of duty that begin or end on the same Sunday.
(2) A full-time employee is entitled to Sunday premium pay for the entire
daily tour of duty, up to 8 hours, based upon electing to work any flexible
hours on a Sunday. However, an agency
may preclude employees from working flexible hours on a Sunday. See Comptroller
General opinion B-245772, May 7, 1992; 5 CFR 610.111(d); and section c.(7) above.
(3) A part-time employee is not entitled to Sunday premium pay. (See
5 U.S.C 5546(a) and 46 Comptroller
General 337 (1966).)
k. Paid Time Off
(1) Paid time off during an employee's
basic work requirement must be
charged to the appropriate leave category, credit hours, compensatory time off, or to
excused absence if warranted.
(2) There is no requirement that employees use flexible hours for medical or dental appointments
or other personal matters if the employee wishes to charge this time to
leave. To the extent permitted by the agency,
an employee may choose to charge time off during flexible hours to an
appropriate leave category or use credit hours when time off is scheduled
during flexible hours in order to preserve leave.
(3) An employee may apply no more sick or annual leave to a given day
than he or she is scheduled to work on that day. In organizations in which employees are not required
to schedule their daily work hours in advance, agencies should develop
policies to ensure that sick leave is not abused.
l. Excused Absence
(1) The head of an agency may grant excused
absence with pay to employees covered
by an FWS program under the same circumstances
as excused absence would be granted to employees covered by other work
schedules. For employees on a flexible work schedule, the amount of excused absence
to be granted should be based on the employee's established basic
work requirement in effect for the period covered by the excused absence.
(2) If an agency determines that excused absence should be granted to
employees based upon individual patterns of arrival and departure, the
following methods for discerning these patterns may be used:
(i) Constant Pattern of Arrival. The majority of employees tend to arrive
within 5 to 10 minutes of the same time each day. Once a pattern has been
established, it should be used as a reference point.
(ii) Predominant Pattern of Arrival. If an employee maintains a schedule
in which one particular arrival time predominates, this arrival time should
be used to determine the amount of excused absence to be granted.
(iii) Variable Pattern of Arrival. Where there is such variation in an
employee's arrival time that there is no discernible pattern, the mathematical
average of the employee's arrival time for the previous 2-week period
may be computed and the average arrival time used as a reference for determining
excused absence.
(3) When employees who would otherwise be required to report to work
are excused from work because of an office closure due to a weather emergency
or furlough, other employees who do not have a scheduled workday(s) during
the office closure or furlough may not be granted another nonworkday.
In Comptroller General opinion B-217080 (June 3, 1985), the Comptroller
General determined that employees taking a day off under a flexible work
schedule are in a non-pay status on those days. Therefore, if the agency
is closed because of weather conditions, the employees have no entitlement
to an additional day off.
m. Temporary Duty
When an employee covered by an
FWS program is assigned to a temporary duty station using another
schedule--either traditional or AWS--the
agency may allow the employee to continue to use
the schedule used at his or her permanent work site (if suitable) or require
the employee to change the schedule to conform to operations at the temporary
work site.
n. Travel
(1) When an Fair Labor Standards Act (FLSA)-exempt or nonexempt employee
under an FWS program is in a travel status during the hours of
his or her regularly scheduled administrative workweek, including regularly
scheduled overtime hours, that time is considered to
be hours of work and must be used for the purpose of overtime pay calculations,
as applicable. See the definitions of "regularly scheduled administrative
workweek" and "regularly scheduled" in 5 CFR 610.102. Note, however, that overtime
hours are initially scheduled for work, not travel.
(2) Because time spent in a travel status outside regularly scheduled
hours is not compensable in many cases (see paragraph (3), below), agencies
must determine what constitutes regularly scheduled work for employees
covered by an FWS program when they travel.
Agencies must also determine the number of corresponding hours for an
employee on a nonworkday under the FLSA overtime provisions in 5 CFR 551.422(a)(4).
For both purposes, agencies may apply the guidance outlined under "Excused
Absence," above. Also, see 5 CFR 610.111(d).
(3) For FLSA-exempt employees under flexible
work schedules, hours of work for time spent in a travel status outside
the regularly scheduled administrative workweek and away from the official
duty station are determined in accordance with 5 CFR 550.112(g) or 5 U.S.C. 5544 (for prevailing rate employees). For
nonexempt employees, the total number of hours of work for travel outside
the regularly scheduled administrative workweek and away from the official
duty station is determined by applying both 5 CFR 550.112(g) or 5 U.S.C.
5544 and 5 CFR 551.422. (See 5 CFR 551.401(h).)
(4) An agency may require an employee to follow a traditional fixed schedule
(8 hours a day, 40 hours a week) during pay periods he or she travels.
(5) An employee may not earn credit
hours for travel because travel in connection with Government work
is not voluntary in nature. In other words, travel itself does not meet
the definition of credit hours in 5 U.S.C. 6121(4), which provides that
credit hours are hours within a flexible work schedule in excess of the
employee's basic work requirement which the employee
elects to work so as to vary the length of a workweek or a workday. If
travel time creates overtime hours of work (see the previous
paragraphs of this section, above) the employee must be compensated by
payment of overtime pay or under the rules for granting or requiring compensatory
time off.
o. Application of Flexible Work
Schedules in Unorganized Units
Agencies may unilaterally install FWS
programs in unorganized units. There is no requirement for a vote by affected
employees.
p. Appeals to the Office of the Special Counsel
(OSC)
(1) Within the guidelines established by the agency's FWS program,
section 6132 of title 5, United States Code, protects an employee's
right to elect a time of arrival or departure, to work or not to work
credit hours, and/or to request or not to request
compensatory time off in lieu of payment for overtime
hours under an FWS program.
(2) Employees may contact the Office of Special Counsel (OSC) and file
a complaint with that agency regarding allegations of coercion prohibited
by 5 U.S.C. 6132. Violations of 5 U.S.C.
6132 are subject to investigation by the Office of Special Counsel as
provided in 5 CFR part 1810.
Negotiating Flexible
and Compressed Work Schedules | Compensation
Administration
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