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.