United States General Services Administration

Interagency Telework Issues Working Group Subcommittee DRAFT Reports

United States Office of Personnel Management

(Revised 5/30/01)

1. Introduction

Hours of work flexibility is a critical element in the effectiveness of teleworking programs. By its very nature, teleworking provides the opportunity for employees to tailor their work days and hours to those periods when they are most productive, without concern for the time and stress involved with a long commute and associated preparation for the traditional workplace. Without the time constraints of the traditional office environment, teleworkers are potentially available to work anytime throughout the day (or night) subject to operational requirements and family or personal commitments.

By taking advantage of this potential flexibility, in a way that preserves the employee's availability to his or her supervisor and clients, maintains security, and the quality and output of work, teleworking provides an ideal benefit for employees and employers alike.

This paper examines existing work schedule arrangements in the Federal Government and how they assist or impede flexibility for teleworkers. It then addresses how some organizations have sought to overcome barriers to maximizing work schedule flexibilities for teleworkers, and employees generally. Finally, the paper recommends ways that Federal agencies can tailor their telework policies to optimize working hours arrangements for their employees, by taking advantage of existing flexibilities in work schedule legislation and through changes to Government-wide policies, and in some cases, through legislative change.

The paper incorporates and discusses formal advice from the Office of Personnel Management (OPM) on key issues, and includes advice from the Food and Drug Administration with respect to current work schedule flexibilities.

2. Existing Arrangements
Standard and "non-standard" hours of work

A standard work schedule for full-time employees is 8 hours per day and 5 days per week in an administrative workweek (Monday through Friday), for a total of 40 hours per week. A "non-standard" work schedule includes any schedule in which full-time employees work other than the standard schedule of 8 hours per day and 5 days per week in an administrative workweek. Such schedules include first 40-hour tours of duty, work schedules for employees receiving annual premium pay for regularly scheduled standby duty or administratively uncontrollable overtime, work schedules for employees receiving availability pay, and any schedule in which employees work more than 8 hours per day or 40 hours per week. (5 U.S.C. 6101).

An employee's basic work requirement is the number of hours, excluding overtime hours, an employee is required to work or to account for by charging leave, credit hours, excused absence, holiday hours, compensatory time off, or time off as an award. An employee's tour of duty comprises the hours during which employees must work to fulfill the basic work requirement.

Alternative Work Schedules

An agency may implement for its employees an alternative work schedule (AWS) instead of traditional fixed work schedules, as prescribed in the OPM Handbook on Alternative Work Schedules (December 1996) (refer also to 5 U.S.C. 6122-6126). Within rules established by the agency, AWS can enable employees to have work schedules that help employees balance work and family or personal responsibilities. AWS can also assist organizations and workgroups in meeting various business needs - for example, by allowing a group to establish extended office coverage and/or customer service hours. There are two categories of AWS: flexible work schedules (FWS) and compressed work schedules (CWS).

Under 5 U.S.C. 6122, a FWS consists of workdays with (1) core hours and (2) flexible hours. Core hours are the designated period of the day when all employees must be at work. Flexible hours are the part of the workday when employees may (within limits or "bands") choose their time of arrival and departure. Within limits set by their agencies, FWS can enable employees to select and alter their work schedules to better fit personal needs and help balance work, personal, and family responsibilities. There are various types of FWS arrangements that provide different degrees of flexibility. These include flexitour, gliding, variable day, variable week, and maxiflex schedules. The authority for maxiflex work schedules is 5 U.S.C. 6121, 6130-6132 and this represents the most flexible AWS work schedule.

Under 5 U.S.C. 6121(5), a compressed work schedule means that an employee's basic work requirement for each pay period is scheduled (by the agency) for less than 10 workdays (refer to the definition and requirements for regularly scheduled work in 5 CFR 610.102 and 5 CFR 610.111(d)). CWS are fixed work schedules, but they enable full-time employees to complete the basic 80-hour biweekly work requirement in less than 10 workdays.

There is no authority to establish hybrid work schedules that borrow selectively from the authority for flexible work schedules and the authority for compressed work schedules. (See Comptroller General report B-179810, December 4, 1979, and 50 FLRA No. 28, February 23, 1995). However, it should be noted that some forms of flexible work schedules (e.g., maxiflex) allow work to be compressed in fewer than 10 workdays in a biweekly pay period.

Overtime

Overtime pay provided under title 5, United States Code, is pay for hours of work officially ordered or approved in excess of 8 hours in a day, or 40 hours in an administrative workweek. FLSA exempt employees, as defined in 5 U.S.C. 5541(2), who work full-time, part-time, or intermittent tours of duty are eligible for title 5 overtime pay.

Overtime hours, for the purposes of FWS refers to all hours in excess of 8 hours in a day or 40 hours in a week that are officially ordered in advance, but does not include credit hours for the purposes of flexible work schedules. With respect to CWS, overtime hours refers to any hours in excess of those specified hours for full-time employees that constitute the compressed work schedule. For part-time employees, overtime hours are hours in excess of the compressed work schedule for a day (but must be more than 8 hours) or, for a week (but must be more than 40 hours).

Night Pay

The premium pay rules for night pay are prescribed in 5 CFR 550.121 and 122 for General Schedule employees and 5 CFR 532.505 for prevailing rate employees. In general, premium pay for night work is not paid to a General Schedule (GS) employee solely because the employee elects to work credit hours, or elects a time of arrival or departure, at a time when night pay is authorized. However, agencies must pay night pay to GS employees for those hours that must be worked between 6 p.m. and 6 a.m. to complete an 8-hour tour of duty. Agencies must also pay night pay for all designated core hours worked between 6 p.m. and 6 a.m. and for any regularly scheduled overtime work between those hours.

The suspension of premium pay and scheduling provisions of title 5, United States Code, and the overtime pay provisions of the Fair Labor Standards Act of 1938, as amended (FLSA), as specified in 5 U.S.C. 6123 and 6128, apply only to organizational units participating in an AWS program. All other provisions of title 5 and the FLSA remain in effect for nonparticipating organizations (OPM Handbook on Alternative Work Schedules, section 6(d)).

3. Areas of Concern

The following issues have been identified by employees and employers (footnote 1) as presenting impediments to the flexibility and effectiveness of existing telework programs. While many agencies have adopted a number of flexible work schedules, employees argue that more needs to be done to optimize telework arrangements.

(footnote 1: International Telework Association and Council (ITAC) and the U.S. General Services Administration (GSA) Telework Practices Survey, 2000 Results)

a) Teleworkers need work schedules that allow them to be more flexible at the alternative worksite. One Federal employee described his own teleworking arrangement by way of example:

I must work between the hours of 10:00 a.m. and 3:00 p.m. every day or account for that time with some type of leave. If I want to sit down at my computer at 10:00 p.m. and work on a project, I cannot because of overtime rules. And forget working on Saturday and Sunday. I agree that employees working at alternate work sites need to be accessible, but there does not have to be a strict 9-5 schedule.

b) There needs to be a government-wide policy that allows teleworking employees, where feasible, to be excluded from standard hours of duty regulations, and permits them to work on schedules mutually agreed upon by supervisor and employee i.e., the idea of "anytime - anywhere":

i. teleworkers should have the flexibility to work the hours that are most conducive to productivity, in the context of the needs of the work group and management;

ii. is whatever is agreed upon by the manager, teleworker, and work group acceptable? For example, would it be okay if everyone knows that the employee will not be available between 11:00 and 3:00 because s/he is putting in the required number of hours for her/his tour at other times? Or does this violate personnel policies? The ability to have a flexible schedule is, after all, one of the main benefits of teleworking;

c) Is there any prohibition to combining telework with other flexibilities? eg., could an employee who teleworks one day per week still work a flexible or compressed work schedule? There needs to be a government-wide policy clarifying the rules for combining telework with other flexibilities e.g., flexible and compressed work schedules.

d) In relation to overtime:

i. are teleworkers able to work overtime?

ii. if so, what are the rules? There needs to be a government-wide policy that clarifies the use of overtime by teleworkers;

iii. should overtime arrangements be applied any differently to teleworkers?

Existing Flexibilities

In considering ways to address and overcome the difficulties currently impeding working hours flexibilities for teleworkers, and employees generally, it is useful to first examine what organizations are already doing in this area, and any relevant research or studies. This Section outlines flexible working hours approaches already adopted by organizations which have increased flexibility and so enhanced the overall effectiveness of their telework programs. Some of these flexibilities directly address the areas of concern identified by agencies in Section 2. The Section also reports on outcomes of some studies in this area.

4.1 Hours of Work

OPM guidance in relation to existing maxiflex work schedules is that this type of schedule gives employees a lot of discretion in determining when work will be performed. OPM states that the minimum requirements for a maxiflex work schedule are:

• a full-time employee must work 80 hours in a biweekly pay period (to earn basic pay);
• agencies must establish some core hours and employees must work during core hours;
• agencies must establish time bands for working flexible hours (theoretically, could allow completion of flexible hours of work around the clock);
• employees must account for all basic work hours (core hours and flexible hours totaling 80 hours per pay period) by working, taking leave, or using accrued credit hours, compensatory time off, or time off as an award;
• overtime work is work that is ordered in excess of 8 hours in a day or 40 hours in a week. Flexible hours or credit hours worked voluntarily do not create an entitlement to overtime compensation;
• any limitations on arrival or departure times are established by the agency (and reflect, at a minimum, core hours that must be worked).

Food and Drug Administration (FDA) - "Any 80"

The FDA (with a workforce of about 10,000 employees) operates a maxiflex schedule, defined as a type of flexible work schedule that contains core hours on less than 10 days in the biweekly pay period, and in which a full-time employee has a basic work requirement of 80 hours for the pay period. Employees may vary the number of hours worked on a given workday or the number of hours each week within limits set by their Office/Center plan.

One option for FDA employees under the maxiflex schedule is the "Any 80" work schedule whereby:

• the basic work requirement must be completed between Monday 12:00 a.m. - Saturday 11:59 p.m;
• there is no entitlement to night pay, because the employee's tour of duty includes 8 or more hours available for work during daytime hours (i.e., between 6:00 a.m. and 6:00 p.m.), even though he/she voluntarily elects to work during hours for which night pay is normally required (i.e., between 6:00 p.m. and 6:00 a.m.)
• if management prescribes core hours after 6:00 p.m., employees would be entitled to night pay for those hours. In addition, night pay must be paid for those hours that must be worked between 6 p.m. and 6 a.m. to complete an 8-hour daily tour of duty;
• the regulations on entitlement to the Sunday differential do not permit work on Sunday without premium pay, so Sunday is not available for regularly scheduled work and so does not count toward the basic work requirement (employees can earn credit hours (footnote 2), overtime etc. on Sunday);
• eligible employees can work their prescribed 80 hours per period at any time of the day or night, as long as hours are "regularly scheduled" and approved by the supervisor, within the basic work requirement;
• the work schedule can be varied from week to week, although most employees maintain a fairly constant schedule;
• core hours for all FDA employees are: Wednesday 10:00 a.m. - 12:00 noon (although there is scope for FDA organizations to vary core hours); and
• FDA's official work hours are 8:00 a.m. to 4:30 p.m., Monday through Friday, and adequate staff coverage must be provided during these times.

(footnote 2: FDA's flexible bands are 7 days a week for the purpose of earning credit hours, but they only permit flexible hours to be earned on Mon. through Saturday to fulfill the employee's basic work requirement. Some FDA supervisors do not permit flexible hours to be earned on Saturday either.

The Any 80 schedule has been operating successfully for about two years, and about 25 percent of the FDA workforce currently work an Any 80 schedule, including many teleworkers. In one FDA organization, 100 percent of employees, at all levels and in all occupations and series, use the Any 80 schedule. About 12 percent of FDA employees work at home at least one day per pay period. Barriers to implementation of the program within FDA have been the "typical" cultural and attitudinal barriers to telework (and there is still management resistance in some areas), although a major driver has been that Senior Executive Service officers support and use the program, and so are obliged to provide access to the program by their employees. This top management endorsement has been critical to the success of the initiative. FDA advises that the Any 80 schedule has proven to be an invaluable quality of life initiative for employees to balance their work and family obligations, and is an excellent retention and attraction tool.

Department of Energy Flexiplace Program

Participants may work any locally approved work schedule. Supervisors schedule work hours in accordance with the individual employee's work requirements regardless of work location.

The supervisor and participant agree on the days and times that the employee will work in the main office and at the alternative workplace. The schedule can parallel those in the main office or be specific to the alternative workplace:

• for example, a participant who works from 7.00am to 3:30pm at the main office, may be assigned the same schedule when working at the alternative workplace;
• alternatively, the participant may be permitted to work from 9:30am to 6:00 pm, or some other schedule, at the alternative workplace.

As long as the schedules are consistent with local policies and applicable labor contracts, the variety of such schedule combinations is unlimited and should be geared to the employee's personal and job requirements. The process of establishing work schedules should be sufficiently flexible to permit periodic adjustments, if any, to achieve an optimal schedule suiting employee and organizational requirements.

Department of Labor Flexiplace Handbook

Work schedules can parallel those in the office or be specific to the flexible work arrangement. The process of establishing work schedules should be sufficiently flexible to allow periodic work schedule adjustments, when appropriate, to achieve optimal scheduling to suit employee and organizational requirements. (II, E. 1)

In terms of average hours and spread of hours worked by teleworkers, Telework America (TWA) undertook research in 2000 which showed that:

On average, both home-based and center-based teleworkers telework about 20 hours per week, although home-based teleworkers tend to telework more during non-business hours. 30% of the telework center teleworkers are there at least 35 hours per week. About 20% of the home-based teleworkers telework at least 35 hours per week, although less than 15% do it entirely during normal business hours.

A 1999 Telework America National Telework Survey, for the International Telework Association & Council, entitled "Cost/benefits of Teleworking to Manage Work/life Responsibilities", by Joanne H. Pratt - October 1999, found that:

• those employees who telework average 11 hours per week worked at home, but only 3 hours per week are worked at home during normal business hours
• other hours worked at home are before or after normal business hours, with less than 3 hours worked at home on weekends,
• teleworkers tend to extend the business day, working up to 10 hours either at the beginning or end of the day but reserve their weekends for themselves;
• teleworkers typically work 1-2 days per week at home, or 5.5 days/month, based on the median reported in the survey;
• by working at home, teleworkers save 52.9 minutes each workday, or, in effect, one hour per day. This is the equivalent of 6 days/year, assuming one day of work-at-home per week, less two weeks' vacation time; and
• annually, telecommuting decreases round trip commuting by roughly 1,800 miles per year per teleworker, representing a significant cost savings for individual teleworkers.

4.2 Combining Telework with Alternative Work Schedules

A number of agencies already permit their teleworkers to also participate in alternative work schedules, consistent with existing OPM Government-wide policy.

OPM Government-wide policy:

Telecommuters can follow an alternative work schedule. Telecommuting work schedules should be sufficiently flexible to permit periodic work schedule adjustments. Initial telecommuting schedules may require trial and error adjustments to determine the optimal schedule to meet the needs of the employee and the organization. (footnote 3)

(footnote 3: OPM website (http://www1.opm.gov/wrkfam/telecomm/telecomm.htm), Answers to Frequently Asked Questions.

Department of Transportation Telecommuting Handbook

Telecommuting can be used in conjunction with Alternative Work Schedules and other scheduling provisions in Title 5 U.S.C. for premium pay and hours of duty@ certain situations, reviewed on a case-by-case basis, may require substantial flexibility in setting a work schedule. (IX)

General Services Administration Telework Handbook

Employees could work the same hours as their colleagues at the office or follow an alternative work schedule. (16(a))

4.3 Overtime

The 1999 Telework America National Telework Survey, for The International Telework Association & Council, entitled "Cost/benefits of Teleworking to Manage Work/life Responsibilities", by Joanne H. Pratt - October 1999, found that:

• 10% of teleworkers reported that they receive overtime pay, averaging 6.2 hours per week of paid overtime work; and
• employees work long hours, significantly above the "standard" 35-hours work week. Forty-two percent work 50-75 hours per week.

The provision in the Department of Transportation Telecommuting Handbook on overtime for teleworkers is typical of that found in other Federal agency telework policies:

Overtime (time worked at official duties in excess of the scheduled tour of duty) must be ordered and approved by the supervisor, in advance. The supervisor must provide clear direction and control of work rules and activities. (Clause IX)

The Food and Drug Administration's maxiflex program prescribes that:

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 and approved in advance by management. The requirement that overtime hours be officially ordered and approved in advance also applies to nonexempt employees under the Fair Labor Standards Act (FLSA).

Management may order an employee who is covered by the maxiflex program to work hours that are in excess of the number of hours the employee "planned" to work on a specific day. Employees will receive overtime only for those hours of work officially ordered in advance that exceed 8 hours in a day or 40 hours in a week.

Note: If an employee elects to work over 8 hours a day or 40 hours in a week to meet his/her basic work requirement, he/she will not earn overtime for those hours. All hours an employee elects to work that are in excess of the basic work requirement will be recorded as credit hours.

Section 12d(2) of OPM's Handbook on Alternative Work Schedules (footnote 4) provides clarification of the second paragraph above.

(footnote 4: "12d(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 a day or 40 hours in a week at the time they are performed, the agency, at its discretion, may permit 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."

Possible New Approaches

This Section outlines possible new approaches that could be adopted by agencies in maximizing the flexibility of their telework programs, and work schedule arrangements more generally. It draws on the views of contemporary teleworking advocates, and attempts to reconcile these with the legislative, cultural and practical constraints often facing telework programs in the Federal Government.

Hours of Work

Jack Nilles in his book "Managing Telework - Strategies for Managing the Virtual Workforce" (footnote 5) addresses "scheduling work periods" as follows:

"Most home teleworkers work on schedules that are either evolved to fit their individual preferences and household constraints or are determined by the nature of the job. Programmers, for example, tend to work late at night during hours when response times are fastest on mainframe computers. Most people work by the clock, but not necessarily by the same time periods as for on-site work. Several teleworkers list the main virtue of teleworking as its metabolism equalizer nature. It allows them to work during their most energetic periods - that are not consistent with normal office hours."

"A common change is schedule chunking: from the traditional nine-hour continuous day (with lunch in the middle), to two or more chunks of two to four hours, only some of which are during conventional office hours. As another variation, some teleworkers change to a more flexible twenty-four hour day, seven-day week of interspersed work and leisure. If interaction with on-site peers is required as part of the tasks performed at home, those work hours need to be synchronized. Where use of electronic- or voice-mail satisfies the work communications needs, the time periods worked at home need not overlap on-site work hours." (page 194)

(footnote 5: Nilles, Jack M., Managing Telework: Strategies for Managing the Virtual Workforce, published by John Wiley and Sons, Inc., 1998, ISBN 0-471-296316-4. Jack Nilles is known internationally as the "father of telecommuting." He founded his own company, JALA, which consults with major corporations and governments world-wide on telecommuting projects and prospects.

Dr Wendell Joice, a leading Government advocate for teleworking, states that:

"the need to limit telework to business hours and/or a range covering a few hours on either end of the typical business day has diminished. Some telework organizations are trying 'work anytime' arrangements. Such arrangements can involve work time shifting that can cover an eight-hour day, one or more days a week. Limited versions of work anytime have been around for a while and known as flexitime, maxi-flex, or alternative work schedules. Thus, some organizations are moving telework from a flexible workplace arrangement to a totally flexible work arrangement."

"One of the benefits of teleworking is the flexibility of work hours. Teleworkers may choose to start early and take an afternoon break or start later and work later into the evening. Hours worked should be clearly defined in a written agreement between employee and supervisor. Most employers set core hours when the teleworker must be accessible for teleconferences and phone calls."

It is apparent that work schedule flexibility is fundamental to the effectiveness of teleworking arrangements and that some agencies, notably the FDA with its "Any 80" policy, have recognized this and are making significant inroads towards freeing up working hours arrangements for all employees.

The challenge for Federal agencies in determining work schedules for teleworkers is to achieve the right balance between maximizing the flexibility of teleworking work schedules, while at the same time ensuring the teleworker is accessible and responsive to the needs of the main office and his or her supervisor as required.

A major obstacle to increasing the flexibility of telework schedules is that which already faces telework arrangements - managers' reluctance to allow their staff to work away from the main worksite would be exacerbated by proposals to allow teleworkers to work during unconventional hours.

To address this reluctance, however, the traditional argument remains - the success of the teleworking arrangement should be measured by the quality and timeliness of the work output of the teleworker, consistent with their agreed workplan. The details of the days/hours configuration worked by the teleworker is secondary to this, as long as the teleworker is scheduled for work in the main worksite as required, or is available by phone, as required and specified.

Regardless of the working hours arrangements agreed, supervisors must schedule an employee's actual work requirements. All such arrangements provide a structure for scheduling work and accounting for time and leave. Completely unstructured arrangements, where employees simply work at will, violate legal requirements and public policy.

Possible options for increasing hours of work flexibility for Federal employees include:

OPTION A: Telworker works a different work schedule at home than at the main worksite, but still within the traditional parameters of approved work schedules for main worksite

The work schedule allows teleworkers to work alternative hours to those worked in the main worksite, but still within traditional work schedule parameters. For example, an employee who works from 7.00 am to 3.30 pm at the main office, may be assigned a different schedule when working at the alternative worksite, such as working from 9.30 am to 6.00 pm.

Under this option, it is open to the employer and employee to agree on:

any need for the teleworker to be available during established "core hours" supervisors may wish to define core hours for employees on their telework days (e.g. the employee must be available by phone between 10am-2pm); alternatively, supervisors may agree a more flexible arrangement without any specification of core hours, depending on the nature of the work being done by the teleworker (e.g. long term project work would not normally require daily contact with the supervisor); the number of days spent teleworking vs "in office" days; and the minimum number of hours per day spent in the main worksite.

OPTION B: "Any 80 (Monday through Saturday)"

The teleworker is permitted to work an Any 80 schedule between Monday 12.01am and Saturday 11.59pm, as mutually agreed by supervisor and employee. The variety of work schedule arrangements would be unlimited and should be geared to the employee's job requirements and personal circumstances, as well as to maximizing operational efficiency. Employees should have the flexibility to work the hours that are most conducive to productivity, in the context of the needs of the work group and management.

In developing work schedules under this option, the following would apply:

• again, maximum flexibility in any specification of "core hours", number of days telworking and minimum daily hours in the main worksite, as described under Option A;
• no specification of daily bandwidth - supervisors may allow employees maximum flexibility in work schedules to allow work to be done during optimum productivity periods
• for example, an employee may work most effectively from 5:00am until 2:00pm, or from 6:00pm until 3:00am;
• there is no entitlement to night pay, because the employee's tour of duty includes 8 or more hours available for work during daytime hours

The process of establishing work schedules under this Option should be sufficiently flexible to permit periodic adjustments, if any, to achieve an optimal schedule suiting the employee and organizational requirements. It is worth noting that GSA telecenters are open 24 hours a day and that agencies would get maximum value for their dollar by making more use of telecenters throughout the full 24 hour daily period for which they are charged. Agencies are charged for the use of the work station for the 24 hour period, not per person at the work station. Therefore, the cost is the same whether the agency uses the center for 8 hours or 24 hours in a full 24 hour period, and regardless of how many people use the work station during the period.

OPTION C: "Any 80 (Monday Through Friday)"

This option is the same as Option B except that the work schedules for teleworkers are only approved for work anytime Monday through Friday, and excludes work on weekends or Public Holidays, where this is not normally approved for office based employees. This option is similar to that already possible under a FWS, whereby FWS employees do not get night premium for hours they "elect to work" during the night period, but which they don't really have to work to fulfill their daily work requirement.

OPTION D: "Anytime-Anywhere"

Under this option, the employee is permitted to work any schedule anytime (Monday through Sunday), as mutually agreed by supervisor and employee, from any place approved by the supervisor.

Implementation of this option in the Federal government would require the legal requirement for core hours to be changed or eliminated noting that core hours are designated hours and days during which an employee on such flexible work schedule must be present for work. (See 5 U.S.C. 6122(a)(1).).

In addition, employees would be entitled to Sunday pay under existing regulations and, while there are no statutory or regulatory constraints to the concept of working "anywhere", determining entitlement to locality-based comparability payments and whether the employee's duty station has changed are important considerations for employees working away from their designated official duty stations for a significant period of time.

OPTION E: Confine the "Any 80" Schedule to teleworkers who are disabled or teleworking due to health problems.

Under this Option, the "Any 80" Schedule is only approved for teleworkers who are disabled or suffering ill health.

In determining the viability of these options, the following questions were submitted to OPM, which provided responses as follows:

1. If we proposed that teleworkers could work "anytime/anywhere", what legal obstacles would you envisage?

Answer: In order for flexible work schedules to accommodate a "work anytime" concept, the legal requirement for core hours would have to be changed or eliminated. Core hours are designated hours and days during which an employee on such flexible work schedule must be present for work. (See 5 U.S.C. 6122(a)(1).) We note that agencies need not require more than one or two core hours under a maxiflex work scheduling policy. For example, the "any-80" work schedule under the AWS plan for the U.S. Food and Drug Administration requires 2 core hours on Wednesday and does not permit employees to work flexible hours on Sunday.

There are no statutory or regulatory constraints to the concept of working "anywhere." However, for employees working away from their designated official duty stations for a significant period of time, determining entitlement to locality-based comparability payments and whether the employee's duty station has changed are important considerations.

Note that a "first-40" tour of duty authorized by 5 U.S.C. 5542(a) does not provide increased work scheduling flexibility for employees, but rather increases a manager's ability to schedule work to meet work needs. Employees under "first-40" work schedules generally object to them because they often cannot predict when work will be required.

2. Is there any legislation or regulations that prohibit employees from working outside "standard hours" - however they are defined?

Answer: Under 5 U.S.C. 6101 and 5 CFR 610.111 and 610.121, agency heads (or their designated representatives) are required to establish work schedules in advance for full-time employees. The legislative history of the law establishing alternative work schedules indicates that the work scheduling requirements in 5 U.S.C. 6101 apply only to the extent that they are compatible with the authority to establish flexible and compressed work schedules.

The Office of Personnel Management shows great deference to an agency's determination that its operations would be seriously handicapped or that its costs would be substantially increased if employees are scheduled to work only on Monday through Friday. In addition, 5 U.S.C. 6101 states that the basic 40-hour workweek must be scheduled on Monday through Friday "when possible." The requirements in 5 U.S.C. 6101 should not be viewed as an impediment to establishing alternative work schedules to accomplish agency work requirements. Employees who work under flexible work schedules may work outside "standard hours" (e.g. Monday through Friday, 8:30 a.m. to 5:00 p.m.) voluntarily without an entitlement to overtime pay. Agencies may also permit employees under flexible work schedules to earn credit hours voluntarily.

3. Is it possible for employees to work outside the "standard hours" without being entitled to night pay differential?

Answer: Yes. This can be done under the flexible work schedule program if flexible time bands (hours when employees may work flexible hours) are broad enough. If an employee's tour of duty includes 8 or more hours available for work during daytime hours (i.e., between 6:00 a.m. and 6:00 p.m.), he or she is not entitled to night pay for voluntarily working during hours for which night pay is normally required (i.e., between 6:00 p.m. and 6:00 a.m.).

However, agencies must pay night pay for those hours that must be worked between 6:00 p.m. and 6:00 a.m. to complete an 8-hour daily tour of duty. If an agency requires employees to work at night, including core hours, employees are entitled to night pay.

4. Is it possible for employees to work weekends and/or public holidays without being entitled to premium pay?

Answer: Employees are not entitled to overtime pay or compensatory time off for voluntarily working flexible hours or for earning credit hours. See the definitions of overtime hours in 5 U.S.C. 6121(6) and (7). For credit hours, see 5 U.S.C. 6123(b) and 6126.

Flexible hours are considered to be regularly scheduled work for premium pay purposes. See 5 CFR 610.111(d). If an agency's flexible time bands include hours on Sunday, and employees under flexible work schedules work flexible hours on Sunday, the employees are entitled to Sunday premium pay for up to 8 hours of a tour of duty that begins or ends on Sunday.

A full-time employee under a flexible work schedule is entitled to holiday premium pay for non-overtime work, including working flexible hours, on a holiday. Agencies can prohibit employees under flexible work schedules from working flexible hours during their 8-hour holiday tour of duty.

No night pay may be paid when credit hours are earned, since employees must voluntarily work credit hours and earning credit hours is not considered to be regularly scheduled work. Likewise, employees may not earn Sunday premium pay or holiday premium pay for earning credit hours. This is because credit hours are not considered to be regularly scheduled hours and are not part of the employee's basic work requirement. (Note that holiday hours and hours for which Sunday premium pay may be paid are part of an employee's basic work requirement.)

5. Would it make any difference if we confined "anytime/anywhere" to Mon-Fri or Mon-Sat?

Answer: An agency can avoid a requirement to pay Sunday premium pay if it does not permit the employee to work flexible hours on Sunday and does not schedule core hours on Sunday.

5.1 Could such a policy also be extended to employees who do not telework?

Answer: The work scheduling and premium pay requirements discussed above apply equally to employees who telework and those who do not.

5.2 Alternative Work Schedules

In justifying the need for more flexible hours for teleworkers, Nilles (footnote 6) explains that:

Many teleworkers also work on compressed schedules such as 9-80 (8 nine-hour-plus-lunch days and 1 eight-hour-plus-lunch day in two weeks) or 4-10 (4 ten-hour-plus-lunch days per week)@ however, managers are even more reluctant to accept teleworking for compressed-week employees, arguing that they are already spending diminished time in the office. Our data indicate that the benefits of teleworking are relatively insensitive to these different schedule options; they work for all of them. (page 194)

(footnote 6 - Nilles, Jack M., Managing Telework: Strategies for Managing the Virtual Workforce, published by John Wiley and Sons, Inc., 1998)

Consistent with OPM advice, employees who work alternative work schedules, such as flexible work schedules and compressed work schedules, may also telework. Supervisors may approve any work schedule according to the individual's work requirements regardless of work location.

Given the clarity of government-wide policy in this area, agencies are able to, and should be encouraged to, allow employees to both telework and work an alternative work schedule.

Options in this area include:

OPTION A: Teleworkers who also work AWS can telework on fewer days than teleworkers who do not work AWS

To address concerns about office visibility, agencies could decide that teleworkers who also work AWS work at home less frequently than teleworkers who otherwise work "standard" hours.

OPTION B: Teleworkers only telework in those weeks where they do not have a scheduled "day off" under AWS

OPTION C: Agencies may determine that teleworkers, like all employees, are eligible to work AWS, without restriction, based on the employee's job requirements and personal circumstances;

5.3 Number of Days Teleworking and "In Office" per Week

Experience has shown that most long-term arrangements should provide for a minimum work time in the traditional worksite, e.g., 2 to 3 days per week. Most teleworkers spend part of the workweek in the regular worksite to improve communication, minimize isolation, and use facilities not available offsite. Agencies are encouraged to develop flexible procedures that allow supervisors and teleworkers to determine the best balance for individual situations.

Employees participating in short-term arrangements (e.g., recuperating from surgery, maternity reasons, etc.) typically do not have in-office days; they work a full or part-time schedule from their home. Similarly, long-term teleworkers may be allowed to work their full schedules at the alternative worksite, particularly when the employee is physically unable to commute.

5.4 Overtime

In considering new work schedule flexibilities, and the implications for overtime entitlements, the following question was put to OPM:

Would overtime entitlements be affected by a work "anytime/anywhere" policy, or can the existing arrangements continue to apply (i.e. as directed and pre-approved (acknowledging the special circumstances for non-exempt employees under FLSA)?

Answer: See the answer above to question 4. Also, the flexible work scheduling authority affords statutory protection against an entitlement to overtime pay for "suffered or permitted" overtime work under the Fair Labor Standards Act of 1938, as amended (FLSA). This is because overtime hours for employees under flexible work schedules must be "officially ordered in advance." (See 5 U.S.C. 6121(6)).

Government-wide policy on telework and overtime should be clarified as follows:

a) employers should follow the same overtime guidelines for both teleworkers and traditional employees;
b) employees, regardless of where they work, are not entitled to overtime pay or compensatory time off for voluntarily working flexible hours or for earning credit hours. (refer to the definitions of overtime hours in 5 U.S.C. 6121(6) and (7) and for credit hours, see 5 U.S.C. 6123(b) and 6126);
c) supervisors should ensure that employees, whether teleworking or working in the main office, only work overtime with prior approval and are paid only for overtime officially ordered and approved;
d) for teleworkers who work a flexible work schedule, the flexible work scheduling authority affords statutory protection against an entitlement to overtime pay for "suffered or permitted" overtime work under the FLSA, as amended. This is because overtime hours for employees under flexible work schedules must be "officially ordered in advance." (See 5 U.S.C. 6121(6));

- nonexempt employees who telework under a standard work schedule, may earn overtime pay even though the overtime work was voluntary and not officially ordered or approved. Agencies must pay not only for officially ordered and approved overtime, but also for any overtime a supervisor "suffers" or "permits" (footnote 7) his subordinates to work. For employees who perform work in the home, supervisors have less control over suffered or permitted overtime.

e) clearly established tours of duty and clear expectations concerning work to be performed can minimize the possibility of employees working unauthorized overtime hours and scheduling work to avoid unnecessary overtime is a long standing public policy.

(footnote 7: "Suffered and permitted " overtime is any overtime work performed for the benefit of the agency, whether ordered or not, provided the supervisor know or had reason to believe that the work was being performed and had a chance to stop it. Agencies should be careful about potential liability for "suffered or permitted" overtime under FLSA which can strain personnel budgets and employee relations. (See Title 5, USC, DFR 551.401, 411, and 421.))

6. Recommendations

6.1 Hours of Work

In recommending new approaches for work schedules for Federal employees, it is important to take account of:

• the legislative mandate (pursuant to Section 359 of Public Law No. 106-346) for agencies to increase participation in teleworking; the administrative ease with which new work schedules can be introduced and maintained;
• the scope of existing legislation and regulations to accommodate the new work schedule, and any need for legislative or government-wide policy change required to implement the new work schedule;
• the need for equitable treatment of all employees, including those who do and those who do not telework; and
• the traditional Federal government culture, which has not embraced telework in any significant way to date.

Taking these things into account, it is recommended that Government-wide policy be developed specifically on the issue of work schedules for all employees and be implemented in two stages as follows:

In the short-term, agencies will adopt maximum flexibility in determining work schedules for all employees, including those who telework to optimize the effectiveness of these arrangements. Agencies will choose from an unlimited range of work schedules within existing legislative parameters to maximize flexibility, including "Any 80 (Monday through Friday)" and " Any 80 (Monday through Saturday)" work schedules (as described under Options B and C of the supporting research paper).

In the long-term, the existing impediments to work schedule flexibility will be removed to allow agencies to adopt an "Anytime-Anywhere" system (as described under Option D of the supporting research paper). This will require amendment to: 5 U.S.C. 6122(a)(1) to remove the legal requirement for core hours: 5 CFR 610.111(d) to remove the entitlement to Sunday pay for employees whose tour of duty include hours on Sunday; and 5 U.S.C. 6101 to amend the definition of standard and non-standard work schedules to accommodate the increased flexibility.

6.2 Telework Days

It is recommended that Government-wide policy state that :

There are no limits on the number of telecommuting days vs. "in-office" days per week for teleworkers, and agencies will develop flexible procedures that allow supervisors and teleworkers to determine the best balance for individual situations.

6.3 Combining Teleworking with Alternative Work Schedules

It is recommended that Government-wide policy state that:

Teleworkers, like all employees, are eligible to work AWS, without restriction, based on the employee's job requirements and personal circumstances (as described in Option C of supporting research paper).

6.4 Overtime

It is recommended that Government-wide policy on overtime for teleworkers be clarified as outlined in Section 5.4 of the supporting research paper, to make it clear that:

Supervisors will ensure that employees, whether telecommuting or working in the main office, only work overtime with prior approval and are paid only for overtime officially ordered and approved.

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