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Historical and Revision Notes
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1966 Act
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(a), (b)
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5 U.S.C. 944(a).
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June 30, 1945, ch. 212, § 604(a), 59 Stat. 303.
Sept. 1, 1954, ch. 1208, § 210, 68 Stat. 1112.
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(c)
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5 U.S.C. 944(d) (less last 27 words).
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June 30, 1945, ch. 212, § 604(e) (less last 27 words), 59 Stat. 304.
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In subsection (a), the words “in the departmental and the field services” are omitted as unnecessary.
In subsections (a) and (b), the words “an Executive agency, a military department” are coextensive with and substituted for “the several departments and independent establishments and agencies in the executive branch, including Government-owned or controlled corporations” and “such department, establishment, or agency” in view of the definitions in sections 105 and 102. The words “a military department” are included to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser’s note for section 301.
Subsection (d) is added on authority of former sections 901(d) and 2358(a) (as applicable to the Federal Employees Pay Act of 1945, as amended) which are carried into section 5541, and to include individuals employed by the government of the District of Columbia as they are not included in the definition of “employee” in section 2105.
Subsection (e) is added on authority of former section 945, which is carried into section 5548. The words “an Executive agency” are substituted for “the executive branch of the Government” to conform to the definition in section 105. Applicability of this section to employees of the General Accounting Office is based on former section 933a.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
In subsection (a)(4), the words “without regard to the requirements of such paragraph” are omitted as redundant in view of the words “notwithstanding paragraph (3) of this subsection” at the beginning thereof. The words “an Executive agency, a military department” are coextensive with and substituted for “each such department, establishment, or agency” and to conform to subsections (a)(2) and (a)(3). The words “officers” and “officer” are omitted as included in “employees” and “employee”. The word “pay” is substituted for “compensation” to conform to the style of title 5, United States Code.
Subsection (b)(1) is added on authority of former sections 901 and 902 of title 5, which are now codified in 5 U.S.C. 5541.
In subsection (b)(2), the words “head of an agency” are substituted for “head of any department, independent establishment, or agency, including Government-owned or controlled corporations, or of the municipal government of the District of Columbia, or the head of any legislative or judicial agency to which this title applies” to conform to the definition of “agency” in 5 U.S.C. 5541, which is made applicable to this subsection by subsection (b)(1). The word “officer” is omitted as included in “employee”.
Editorial Notes
Amendments
1978—Subsec. (c). Pub. L. 95–454 substituted “Office of Personnel Management” for “Civil Service Commission”.
1975—Subsec. (a)(4). Pub. L. 94–183 substituted “educational” for “education”.
1972—Subsec. (a)(1). Pub. L. 92–392 defined “employee” to include an employee whose pay is fixed and adjusted from time to time under section 5343 or 5349 of this title or by a wage board or similar administrative authority serving the same purpose and exclude certain employees “except as specifically provided under this paragraph”.
Statutory Notes and Related Subsidiaries
Termination Date of 1982 Amendment
Pub. L. 97–221, § 5, July 23, 1982, 96 Stat. 234, as amended by Pub. L. 99–69, July 22, 1985, 99 Stat. 167; Pub. L. 99–109, Sept. 30, 1985, 99 Stat. 482; Pub. L. 99–140, Oct. 31, 1985, 99 Stat. 563, which had provided that enactment of subchapter II of this chapter, amendment of sections 3401 and 6106 of this title, and enactment of provisions set out as notes under sections 6101 and 6106 of this title, should not be in effect after Dec. 31, 1985, was repealed by Pub. L. 99–190, § 140, Dec. 19, 1985, 99 Stat. 1324, and also by Pub. L. 99–196, Dec. 23, 1985, 99 Stat. 1350.
Short Title of 1982 Amendment
Pub. L. 97–221, § 1, July 23, 1982, 96 Stat. 227, provided:
“That this Act [enacting subchapter II of this chapter, amending sections
3401 and
6106 of this title, and enacting provisions set out as notes under this section and
section 6106 of this title] may be cited as the ‘Federal
Employees Flexible and Compressed Work Schedules Act of 1982’.”
Federal Employees Flexible and Compressed Work Schedules
Pub. L. 95–390, §§ 1–306, Sept. 29, 1978, 92 Stat. 755–762, as amended by Pub. L. 97–160, Mar. 26, 1982, 96 Stat. 21, provided that:
“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 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) [this note]—
“(1)
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);
“(3)
the term ‘Commission’ means the United States Civil Service Commission; and
“(4)
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.
(a)
(1)
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.
“(2)
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.
“(b) The 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 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—
“(1)
the efficiency of Government operations;
“(2)
mass transit facilities and traffic;
“(3)
levels of energy consumption;
“(4)
service to the public;
“(5)
increased opportunities for full-time and part-time employment; and
“(6)
individuals and families generally.
“(c)
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 [enacting
section 5550a of this title and this note].
“(d)
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 (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—
“(1)
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
“(2)
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.
(a) Notwithstanding section 6101 of title 5, United States Code, experiments may be conducted in agenices [agencies] to test flexible schedules which include—
“(1)
designated hours and days during which an
employee on such a schedule must be present for work; and
“(2)
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.
“(b) Notwithstanding any other provision of this Act [enacting section 5550a of this title and this note], but subject to the terms of any written agreement under section 302(a)—
“(1)
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
“(2) 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—
“(A)
restrict the
employees’ choice of arrival and departure time,
“(B)
restrict the use of credit hours, or
“(c)
Experiments under subsection (a) shall terminate not later than the first day of the second pay period beginning after July 4, 1982.
“computation of premium pay
“Sec. 103.
(a) For purposes of determining compensation for overtime hours in the case of an employee participating in an experiment under section 102—
“(1)
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 [
section 207 of Title 29, Labor], or any other provision of law; or
“(2)
the
employee shall be compensated for such overtime hours in accordance with such provisions, as applicable.
“(b)
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.
“(c)
(1) 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—
“(A) if an employee is on a flexible schedule under which—
“(i)
the number of hours during which such
employee must be present for work, plus
“(ii)
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
“(B)
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.
“(2) 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—
“(A)
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
“(B)
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.
(a)
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.
“(b) 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—
“(1)
in the case of a full-time
employee, not more than 10 credit hours accumulated by such
employee, or
“(2)
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—
“(1) the term ‘compressed schedule’ means—
“(A)
in the case of a full-time
employee, an 80-hour biweekly basic work requirement which is scheduled for less than 10 workdays, and
“(B)
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
“(2)
the term ‘overtime hours’ means any hours in excess of those specified hours which constitute the compressed schedule.
“compressed schedule experiments
“Sec. 202.
(a)
Notwithstanding
section 6101 of title 5, United States Code, experiments may be conducted in agencies to test a 4-day work-week or other compressed schedule.
“(b)
(1)
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.
“(2) 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—
“(A)
except such
employee from such experiment; or
“(B) reassign such employee to the first position within the agency—
“(i)
which becomes vacant after such determination,
“(ii)
which is not included within such experiment,
“(iii)
for which such
employee is qualified, and
“(iv)
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.
“(c)
Notwithstanding any other provision of this Act [enacting
section 5550a of this title and this note], 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.
“(d)
Experiments under subsection (a) shall terminate not later than the end of the first day of the second pay period beginning after July 4, 1982.
“computation of premium pay
“Sec. 203.
(a)
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 [
section 207 of Title 29, Labor], or any other law, which relate to premium pay for overtime work, shall not apply to the hours which constitute a compressed schedule.
“(b)
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.
“(c)
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.
“(d)
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 [
section 207 of Title 29, Labor], 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.
(a)
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.
“(b)
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.
(a) 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—
“(1)
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
“(2)
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, 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).
“(b) Any employee who violates the provisions of subsection (a) shall, upon a final order of the Commission, be—
“(1)
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;
“(2)
suspended without pay from such
employee’s position for such period as the Commission may prescribe; or
“(3)
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—
“(1)
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 [enacting
section 5550a of this title and this note], and
“(2)
submit copies of such report to the President, the Speaker 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 [enacting
section 5550a of this title and this note] 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 [enacting
section 5550a of this title and this note].
“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—
“(1)
the date of the enactment of this Act [Sept. 29, 1978], or
whichever date is later.”
Savings Provisions; 1982 Amendment
Pub. L. 97–221, § 4, July 23, 1982, 96 Stat. 234, provided that:
“(a)
Except as provided in subsection (b), each flexible or compressed work schedule established by any
agency under the Federal
Employees Flexible and Compressed Work Schedules Act of 1978 (
5 U.S.C. 6101 note) in existence on the date of enactment of this Act [
July 23, 1982] shall be continued by the
agency concerned.
“(b)
(1) During the 90-day period after the date of the enactment of this Act [July 23, 1982] any flexible or compressed work schedule referred to in subsection (a) may be reviewed by the agency concerned. If, in reviewing the schedule, the agency determines in writing that—
“(A)
the schedule has reduced the productivity of the
agency or the level of services to the public, or has increased the cost of the
agency operations, and
“(B)
termination of the schedule will not result in an increase in the cost of the
agency operations (other than a reasonable administrative cost relating to the process of terminating a schedule),
the
agency shall, notwithstanding any provision of a negotiated agreement, immediately terminate such schedule and such termination shall not be subject to negotiation or to administrative review (except as the President may provide) or to judicial review.
“(2)
If a schedule established pursuant to a negotiated agreement is terminated under paragraph (1), either the
agency or the exclusive representative concerned may, by written notice to the other party within 90 days after the date of such termination, initiate collective bargaining pertaining to the establishment of another flexible or compressed work schedule under subchapter II of
chapter 61 of title 5, United States Code, which would be effective for the unexpired portion of the term of the negotiated agreement.”
Executive Documents
Delegation of Functions
Functions vested in Office of Personnel Management under this section insofar as it affects officers and employees in or under the executive branch of the government to be performed without approval of President, see section 1(1) of Ex. Ord. No. 11228, June 14, 1965, 30 F.R. 7739, set out as a note under section 301 of Title 3, The President.
