Volume 92 · 755
Public Law 95–390
To authorize Federal agencies to experiment with flexible and compressed employee work schedules.
Approved September 29, 1978
Statutory text
An Act
To authorize Federal agencies to experiment with flexible and compressed employee work schedules.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
short title
Section 1.
This Act may be cited as the “Federal Employees Flexible and Compressed Work Schedules Act of 1978”.
congressional findings
Sec. 2.
The Congress finds that new trends in the usage of 4-day
workweeks, flexible work hours, and other variations in workday and workweek schedules in the private sector appear to show sufficient promise to warrant carefully designed, controlled, and evaluated experimentation by Federal agencies over a 3-year period to determine whether and in what situations such varied work schedules can be successfully used by Federal agencies on a permanent basis. The Congress also finds that there should be sufficient flexibility in the work schedules of Federal employees to allow such employees to meet the obligations of their faith.
definitions
Sec. 3.
For purposes of this Act (other than title IV)
—
the term “agency” means an Executive agency and a military department (as such terms are defined in sections 105 and 102, respectively, of title 5, United States Code);
the term “employ” has the meaning given it by section 2105 of title 5, United States Code;
the term “Commission” means the United States Civil Service Commission; and
the term “basic work requirement” means the number of hours, excluding overtime hours, which an employee is required to work or is required to account for by leave or otherwise.
experimental programs
Sec. 4.
Within 180 days after the effective date of this section,
and subject to the requirements of section 302 and the terms of any written agreement referred to in section 302(a), the Commission shall establish a program which provides for the conducting of experiments by the Commission under titles I and II of this Act. Such experimental program shall cover a sufficient number of positions throughout the executive branch, and a sufficient range of worktime alternatives, as to provide an adequate basis on which to evaluate the effectiveness and desirability of permanently maintaining flexible or compressed work schedules within the executive branch.
Each agency may conduct one or more experiments under titles I and II of this Act. Such experiments shall be subject to such regulations as the Commission may prescribe under section 305 of this Act.
The
Master plan.
Commission shall, not later than 90 days after the effective date of this section, establish a master plan which shall contain guidelines and criteria by which the Commission will study and evaluate experiments
Study.
conducted under titles I and II of this Act. Such master plan shall provide for the study and evaluation of experiments within a sample of organizations of different size, geographic location, and functions and activities, sufficient to insure adequate evaluation of the impact of varied work schedules on—
the efficiency of Government operations;
mass transit facilities and traffic;
levels of energy consumption;
service to the public;
increased opportunities for full-time and part-time employment; and
individuals and families generally.
The Commission shall provide educational material, and technical aids and assistance, for use by an agency before and during the period such agency is conducting experiments under this Act.
if the head of an agency determines that the implementation of an experimental program referred to in subsection (a) would substantially disrupt the agency in carrying out its functions, such agency head shall request the Commission to exempt such agency from the requirements of any experiment conducted by the Commission under subsection
Report.
(a). Such request shall be accompanied by a report detailing the reasons for such determination. The Commission shall exempt an agency from such requirements only if it finds that including the agency within the experiment would not be in the best interest of the public, the Government, or the employees. The filing of such a request with the Commission shall exclude the agency from the experiment until the Commission has made its determination or until 180 days after the date the request is filed, whichever first occurs.
TITLE I— FLEXIBLE SCHEDULING OF WORK HOURS
definitions
Sec. 101.
For
purposes of this title—
the term “credit hours” means any hours, within a flexible schedule established under this title, which are in excess of an employee’s basic work requirement and which the employee elects to work so as to vary the length of a workweek or a workday; and
the term “overtime hours” means all hours in excess of 8 hours in a day or 40 hours in a week which are officially ordered in advance, but does not include credit hours.
flexible scheduling experiments
Sec. 102.
Notwithstanding
section 6101 of title 5, United States Code, experiments may be conducted in agenices to test flexible schedules which include—
designated hours and days during which an employee on such a schedule must be present for work; and
designated hours during which an employee on such a schedule may elect the time of such employee’s arrival at and departure from work, solely for such purpose or, if and to the extent permitted, for the purpose of accumulating credit hours to reduce the length of the workweek or another workday.
An election by an employee referred to in paragraph (2) shall be subject to limitations generally prescribed to ensure that the duties and requirements of the employee’s position are fulfilled.
Notwithstanding any other provision of this Act, but subject to the terms of any written agreement under section 302(a)—
any experiment under subsection (a) of this section may be terminated by the Commission if it determines that the experiment is not in the best interest of the public, the Government, or the employees; or
if the head of an agency determines that any organization within the agency which is participating in an experiment under subsection (a) is being substantially disrupted in carrying out its functions or is incurring additional costs because of such participation, such agency head may—
restrict the employees’ choice of arrival and departure time,
restrict the use of credit hours, or
exclude from such experiment any employee or group of employees.
Experiments under subsection (a) shall terminate not later than the end of the 3-year period which begins on the effective date of this title.
computation of premium pay
Sec. 103.
For purposes of determining compensation for overtime
hours in the case of an employee participating in an experiment under section 102—
the head of an agency may, on request of the employee, grant the employee compensatory time off in lieu of payment for such overtime hours, whether or not irregular or occasional in nature and notwithstanding the provisions of sections 5542(a), 5543(a)(1), 5544(a), and 5550 of title 5, United States Code, section 4107(e)(5) of title 38, United States Code, section 7 of the Fair Labor Standards Act, as amended, or any other provision
of law; or
the employee shall be compensated for such overtime hours in accordance with such provisions, as applicable.
Notwithstanding the provisions of law referred to in paragraph (1) of subsection (a), an employee shall not be entitled to be compensated for credit hours worked except to the extent authorized under section 106 or to the extent such employee is allowed to have such hours taken into account with respect to the employee’s basic work requirement.
Notwithstanding section 5545(a) of title 5, United States Code, premium pay for nightwork will not be paid to an employee otherwise subject to such section solely because the employee elects to work credit hours, or elects a time of arrival or departure, at a time of day from which such premium pay is otherwise authorized; except that—
if an employee is on a flexible schedule under which—
the number of hours during which such employee must be present for work, plus
the number of hours during which such employee may elect to work credit hours or elect the time of arrival at and departure from work,
which occur outside of the night work hours designated in or under such section 5545 (a) total less than 8 hours, such premium pay shall be paid for those hours which, when combined with such total, do not exceed 8 hours, and
if an employee is on a flexible schedule under which the hours that such employee must be present for work include any hours designated in or under such section 5545(a), such premium pay shall be paid for such hours so designated.
Notwithstanding section 5343(f) of title 5, United States Code, and 4107(e)(2) of title 38, United States Code, night differential will not be paid to any employee otherwise subject to either of such sections solely because such employee elects to work credit hours, or elects a time of arrival or departure, at a time of day for which night differential is otherwise authorized; except that such differential shall be paid to an employee on a flexible schedule under this title—
in the case of an employee subject to such section 5343(f), for which all or a majority of the hours of such schedule for any day fall between the hours specified in such section, or
in the case of an employee subject to such section 4107(e)(2), for which 4 hours of such schedule fall between the hours specified in such section.
holidays
Sec. 104.
Notwithstanding
sections 6103 and 6104 of title 5, United States Code, if any employee on a flexible schedule under this title is relieved or prevented from working on a day designated as a holiday by Federal statute or Executive order, such employee is entitled to pay with respect to that day for 8 hours (or, in the case of a part-time employee, an appropriate portion of the employee’s biweekly basic work requirement as determined under regulations prescribed by the Commission).
time-recording devices
Sec. 105.
Notwithstanding
section 6106 of title 5, United States Code, the Commission or an agency may use recording clocks as part of its experiments under this title.
credit hours; accumulation and compensation
Sec. 106.
Subject
to any limitation prescribed by the Commission or the agency, a full-time employee on a flexible schedule can accumulate not more than 10 credit hours, and a part-time employee can accumulate not more than one-eighth of the hours in such employee’s biweekly basic work requirement, for carryover from a biweekly pay period to a succeeding biweekly pay period for credit to the basic work requirement for such period.
Any employee who is on a flexible schedule experiment under this title and who is no longer subject to such an experiment shall be paid at such employee’s then current rate of basic pay for—
in the case of a full-time employee, not more than 10 credit hours accumulated by such employee, or
in the case of a part-time employee, the number of credit hours (not in excess of one-eighth of the hours in such employee’s biweekly basic work requirement) accumulated by such employee.
TITLE II— 4-DAY WEEK AND OTHER COMPRESSED WORK SCHEDULES
definitions
Sec. 201.
For purposes of this title
—
the term “compressed schedule” means—
in the case of a full-time employee, an 80-hour biweekly basic work requirement which is scheduled for less than 10 workdays, and
in the case of a part-time employee, a biweekly basic work requirement of less than 80 hours which is scheduled for less than 10 workdays; and
the term “overtime hours” means any hours in excess of those specified hours which constitute the compressed schedule.
compressed schedule experiments
Sec. 202.
Notwithstanding section 6101 of title 5, United States
Code, experiments may be conducted in agencies to test a 4-day workweek or other compressed schedule.
An employee in a unit with respect to which an organization of Government employees has not been accorded exclusive recognition shall not be required to participate in any experiment under subsection (a) unless a majority of the employees in such unit who, but for this paragraph, would be included in such experiment have voted to be so included.
Upon written request to any agency by an employee, the agency, if it determines that participation in an experiment under subsection (a) would impose a personal hardship on such employee, shall—
except such employee from such experiment; or
reassign such employee to the first position within the agency—
which becomes vacant after such determination,
which is not included within such experiment,
for which such employee is qualified, and
which is acceptable to the employee.
A determination by an agency under this paragraph shall be made not later than 10 days after the day on which a written request for such determination is received by the agency.
Notwithstanding any other provision of this Act, but subject to the terms of any written agreement under section 302(a), any experiment under subsection (a) may be terminated by the Commission, or the agency, if it determines that the experiment is not in the best interest of the public, the Government, or the employees.
Experiments under subsection (a) shall terminate not later than the end of the 3-year period which begins on the effective date of this title.
computation of premium pay
Sec. 203.
The provisions of sections 5542(a), 5544(a), and
5550(2) of title 5, United States Code, section 4107(e)(5) of title 38, United States Code, section 7 of the Fair Labor Standards Act, as amended,
or any other law, which relate to premium pay for overtime work, shall not apply to the hours which constitute a compressed schedule.
In the case of any full-time employee, hours worked in excess of the compressed schedule shall be overtime hours and shall be paid for as provided by whichever statutory provisions referred to in subsection (a) are applicable to the employee. In the case of any part-time employee on a compressed schedule, overtime pay shall begin to be paid after the same number of hours of work after which a full-time employee on a similar schedule would begin to receive overtime pay.
Notwithstanding section 5544(a), 5546(a), or 5550(1) of title 5, United States Code, or any other applicable provision of law, in the case of any full-time employee on a compressed schedule who performs work (other than overtime work) on a tour of duty for any workday a part of which is performed on a Sunday, such employee is entitled to pay for work performed during the entire tour of duty at the rate of such employee’s basic pay, plus premium pay at a rate equal to 25 percent of such basic pay rate.
Notwithstanding section 5546(b) of title 5, United States Code, an employee on a compressed schedule who performs work on a holiday designated by Federal statute or Executive order is entitled to pay at the rate of such employee’s basic pay, plus premium pay at a rate equal to such basic pay rate, for such work which is not in excess of the basic work requirement of such employee for such day. For hours worked on such a holiday in excess of the basic work requirement for such day, the employee is entitled to premium pay in accordance with the provisions of section 5542 (a) or 5544 (a) of title 5, United States Code, as applicable, or the provisions of section 7 of the Fair Labor Standards Act, as amended, whichever provisions are more beneficial to the employee.
TITLE III— ADMINISTRATIVE PROVISIONS
administration of leave and retirement provisions
Sec. 301.
For
purposes of administering sections 6303(a), 6304, 6307 (a) and (c), 6323, 6326, and 8339(m) of title 5, United States Code, in the case of an employee who is in any experiment under title I or II, references to a day or workday (or to multiples or parts thereof) contained in such sections shall be considered to be references to 8 hours (or to the respective multiples or parts thereof).
application of experiments in the case of negotiated contracts
Sec. 302.
Employees
within a unit with respect to which an organization of Government employees has been accorded exclusive recognition shall not be included within any experiment under title I or II of this Act except to the extent expressly provided under a written agreement between the agency and such organization.
The Commission or an agency may not participate in a flexible or compressed schedule experiment under a negotiated contract which contains premium pay provisions which are inconsistent with the provisions of section 103 or 203 of this Act, as applicable.
prohibition of coercion
Sec. 303.
An employee may not directly or indirectly intimidate,
threaten, or coerce, or attempt to intimidate, threaten, or coerce, any other employee for the purpose of interfering with—
such employee’s rights under title I to elect a time of arrival or departure, to work or not to work credit hours, or to request or not to request compensatory time off in lieu of payment for overtime hours; or
such employee’s right under section 202(b)(1) to vote whether or not to be included within a compressed schedule experiment or such employee’s right to request an agency determination under section 202(b)(2).
For the purpose of the preceding sentence, the term “intimidate,
“Intimidate, threaten, or coerce.”
threaten, or coerce” includes, but is not limited to, promising to confer or conferring any benefit (such as appointment, promotion, or compensation), or effecting or threatening to effect any reprisal (such as deprivation of appointment, promotion, or compensation).
Any employee who violates the provisions of subsection (a)
Penalty.
shall, upon a final order of the Commission, be—
removed from such employee’s position, in which event that employee may not thereafter hold any position as an employee for such period as the Commission may prescribe;
suspended without pay from such employee’s position for such period as the Commission may prescribe; or
disciplined in such other manner as the Commission shall deem appropriate.
The commission shall prescribe procedures to carry out this subsection under which an employee subject to removal, suspension, or other disciplinary action shall have rights comparable to the rights afforded an employee subject to removal or suspension under subchapter III of chapter 73 of title 5, United States Code, relating to certain prohibited
political activities.
reports
Sec. 304.
Not later than 2½ years after the effective date of titles I
and II of this Act, the Commission shall—
prepare an interim report containing recommendations as to what, if any, legislative or administrative action shall be taken based upon the results of experiments conducted under this Act, and
submit copies of such report to the President, the Speaker
Transmittal to President and Congress.
of the House, and the President pro tempore of the Senate.
The Commission shall prepare a final report with regard to experiments conducted under this Act and shall submit copies of such report to the President, the Speaker of the House, and the President pro tempore of the Senate not later than 3 years after such effective date.
regulations
Sec. 305.
The Commission shall prescribe regulations necessary for
the administration of the foregoing provisions of this Act.
effective date
Sec. 306.
The
provisions of section 4 and titles I and II of this Act shall take effect on the 180th day after—
the date of the enactment of this Act, or
October 1, 1978,
whichever date is later.
TITLE IV— ADJUSTMENT OF WORK SCHEDULES FOR RELIGIOUS OBSERVANCES
compensatory time off for religious observances
Sec. 401.
Subchapter V of chapter 55 of title 5, United States Code, is amended by adding at the end thereof the following new section:
Ҥ 5550a. Compensatory time off for religious observances
“(a) Not later than 30 days after the date of the enactment of this section, the Civil Service Commission shall prescribe regulations providing for work schedules under which an employee whose personal religious beliefs require the abstention from work during certain periods of time, may elect to engage in overtime work for time lost for meeting those religious requirements. Any employee who so elects such overtime work shall be granted equal compensatory time off from his scheduled tour of duty (in lieu of overtime pay) for such religious reasons, notwithstanding any other provision of law.
“(b) In the case of any agency described in subparagraphs (C) through (G) of section 5541 (1) of this title, the head of such agency (in lieu of the Commission) shall prescribe the regulations referred to in subsection (a) of this section.
“(c) Regulations under this section may provide for such exceptions as may be necessary to efficiently carry out the mission of the agency or agencies involved.”.
The analysis for chapter 55 of title 5, United States Code, is amended by adding after the item relating to section 5550 the following:
Approved September 29, 1978.