[Congressional Record Volume 141, Number 157 (Wednesday, October 11, 1995)]
[Senate]
[Pages S15027-S15029]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOTICE OF PROPOSED RULEMAKING

  Mr. THURMOND. Mr. President, pursuant to section 304(b) of the 
Congressional Accountability Act of 1995 (2 U.S.C. sec. 1384(b)), a 
notice of proposed rulemaking was submitted by the Office of 
Compliance, U.S. Congress. The notice relates to the Congressional 
Accountability Act and the Extension of Rights and Protections under 
the Fair Labor Standards Act of 1938, as applied to interns and 
irregular work schedules in all employing offices except the Senate and 
the House of Representatives.
  Section 304(b) requires this notice to be printed in the 
Congressional Record, therefore I ask unanimous consent that the notice 
be printed in the Record.
  There being no objection, the notice was ordered to be printed in the 
Record, as follows:

 The Congressional Accountability Act of 1995: Extension of Rights and 
   Protections Under the Fair Labor Standards Act of 1938 (Interns; 
                       Irregular Work Schedules)


                     NOTICE OF PROPOSED RULEMAKING

       Summary: The Board of Directors of the Office of Compliance 
     is publishing proposed rules to implement section 203(a)(2) 
     and 203(c)(3) of the Congressional Accountability Act (P.L. 
     104-1). The proposed regulations, which are to be applied to 
     all covered employees and employing offices except the Senate 
     and the House of Representatives and employees of the Senate 
     and the House of Representatives, set forth the 
     recommendations of the Executive Director, Office of 
     Compliance, as approved by the Board of Directors, Office of 
     Compliance.
       Dates: Comments are due within 30 days after publication of 
     this notice in the Congressional Record.
       Addresses: Submit written comments to the Chair of the 
     Board of Directors, Office of Compliance, Room LA 200, 
     Library of Congress, Washington, DC 20540-1999. Those wishing 
     to receive notification of receipt of comments are requested 
     to include a self-addressed, stamped post card. Comments may 
     also be transmitted by facsimile (``FAX'') machine to (202) 
     252-3115. This is not a toll-free call. Copies of comments 
     submitted by the public will be available for review at the 
     Law Library Reading Room, Room LM-201, Law Library of 
     Congress, James Madison Memorial Building, Washington, DC, 
     Monday through Friday, between the hours of 9:30 a.m. and 
     4:00 p.m.
       For Further Information Contact: Executive Director, Office 
     of Compliance at (202) 252-3100. This notice is also 
     available in the following formats: large print, braille, 
     audio tape, and electronic file on computer disk. Requests 
     for this notice in an alternative format should be made to 
     Mr. Russell Jackson, Director, Service Department, Office of 
     the Sergeant at Arms and Doorkeeper of the Senate, (202) 244-
     2705.
       Supplementary Information: Background--General: The 
     Congressional Accountability Act of 1995 (``CAA''), PL 104-1, 
     was enacted into law on January 23, 1995. In general, the CAA 
     applies the rights and protections of eleven federal labor 
     and employment law statutes to covered employees and 
     employing offices within the legislative branch. Section 
     203(a) of the CAA applies the rights and protections of 
     subsections (a)(1) and (d) of section 6, section 7, and 
     section 12(c) of the Fair Labor Standards Act of 1938 (29 
     U.S.C. 206(a)(1) and (d), 207, 212(c), to covered employees 
     and employing offices. Section 203(c) of the CAA directs the 
     Board of Directors of the Office of Compliance established 
     under the CAA to issue regulations to implement the section. 
     Section 203(c)(2) further states that such regulations, with 
     the exception of certain irregular work schedule regulations 
     to be issued under section 203(a)(3), ``shall be the same as 
     substantive regulations issued by the Secretary of Labor to 
     implement the statutory provisions referred to in subsection 
     (a) except insofar as the Board may determine, for good cause 
     shown and stated together with the regulation, that a 
     modification of such regulations would be more effective for 
     the implementation of the rights and protections under this 
     section.'' Section 203(a)(2) of the CAA provides that ``the 
     term `covered employee' [for the purpose of FLSA rights and 
     protections] does not include an intern as defined in 
     regulations. . .'' issued by the Board pursuant to section 
     203(c).
       Background: Part A--Interns: Part A of the proposed 
     regulations defines the term ``intern.''
       While there appears to be no definitive interpretation of 
     the term ``intern'' for FLSA purposes in current House usage, 
     the Board has consulted several sources in formulating the 
     proposed definition set forth herein. For example, the House 
     Ethics Manual gives the following definition of the term 
     ``intern'':
       ``An intern means an individual performing services in a 
     House office on a temporary basis incidental to the pursuit 
     of the individual's educational objectives. Some interns 
     receive no compensation from any source, while some receive 
     compensation or other assistance from an educational 
     institution or other sponsoring entity.''

     House Comm. on Standards of Official Conduct, House Ethics 
     Manual, a p. 196 (1992)(``Ethics Manual''). See also 
     ``Guidance on Intern, Volunteer and Fellow Programs,'' dated 
     June 29, 1990, reprinted at Ethics Manual, p. 206 (utilizing 
     identical definition).
       Interpretive Ruling No. 442 issued by the Senate Select 
     Committee on Ethics on April 15, 1992, states that intern 
     programs designed for the educational benefit of the 
     participants are deemed to be '`officially connected'' 
     expenses that are related to the performance of a Senator's 
     official responsibilities and that the supervising Senator is 
     responsible for determining if such program ``is primarily 
     for the benefit of the intern.'' Similarly, the Senate 
     Edition of the Congressional Handbook (1994) (``Senate 
     Handbook'') states that ``Interns may be employed on a 
     temporary basis for a few weeks to several months...''. 
     (Senate Handbook at p. I-10)
       The proposed definition has drawn upon these sources. This 
     proposed regulation is not intended to cover other similar 
     job positions such as volunteers or fellows, nor does it 
     cover pages.
       Part A--Interns: Section 1. An intern is an individual who:
       (a) is performing services in an employing office as part 
     of the pursuit of the individual's educational objectives, 
     and
       (b) is appointed on a temporary basis for a period not to 
     exceed one academic semester (including the period between 
     semesters); provided that an intern may be reappointed for 
     one succeeding temporary period.
       Background: Part B--Irregular Work Schedules: 

[[Page S 15028]]

       Section 203(c)(3) of the Act directs the Board to issue 
     regulations for employees ``whose work schedules directly 
     depend on the schedule of the House of Representatives or the 
     Senate that shall be comparable to the provisions of the Fair 
     Labor Standards Act of 1938 that apply to employees who have 
     irregular work schedules.''
       Section 7(f) of the Fair Labor Standards Act (29 U.S.C. 
     207(f)) provides that ``No employer shall be deemed to have 
     violated subsection (a) [requiring overtime pay after an 
     employee has worked 40 hours in a workweek] by employing any 
     employee in a workweek in excess of the maximum workweek 
     applicable [currently 40 hours] if such employee is employed 
     pursuant to a bona fide individual contract, or pursuant to 
     an agreement made as a result of collective bargaining by 
     representatives of employees, if the duties of such employee 
     necessitate irregular hours of work and the contract or 
     agreement (1) specifies a regular rate of pay not less than 
     the minimum provided in . . . section 6 [currently set at 
     $4.25 per hour] . . . and compensation at not less than one 
     and one-half times that rate for all hours worked in excess 
     of such maximum workweek and (2) provides a weekly guarantee 
     of pay for not more than sixty hours based on the rates so 
     specified.'' Part B of the proposed regulations implements 
     the provisions of section 203(a)(3) of the CAA by developing 
     FLSA overtime pay requirements for employees of covered 
     employing offices whose schedules directly depend on the 
     schedule of the House of Representatives or the Senate.
       The proposed regulation develops a standard for determining 
     whether an individual's work schedule ``directly depends'' on 
     the schedule of the House of Representatives or the Senate. 
     In setting the remaining requirements for such employees, the 
     proposed regulations adopt almost verbatim the requirements 
     of sections 7(f) and 7(o) of the FLSA, (29 U.S.C. 
     Sec. Sec. 207(f) and (o)).
       Section 203(a)(3) directs the Board to adopt regulations 
     ``comparable'' to the irregular work provisions of the FLSA. 
     Section 2 of the proposed regulation incorporates the 
     provisions of section 7(f) of the FLSA. The Board has not 
     proposed to vary the requirements of section 7(f) because the 
     Board is not currently aware of any working conditions which 
     would require modification of the requirements for covered 
     employees who work irregular hours, as compared to employees 
     who work irregular hours in the private sector. However, 
     there may be aspects to the House of Representatives' or the 
     Senate's operations, such as very wide variations in weekly 
     hours of work of some covered employees whose schedules 
     directly depend on the schedule of the House or Senate or 
     times when such employees may work a large number of overtime 
     hours for extended periods, which commentors may believe 
     would require a modification of the proposed regulation. 
     Accordingly, the Board invites comments on whether the 
     contracts or agreements referenced in Section 2 of the 
     proposed regulation can or should be permitted to provide for 
     a guaranty of pay for more than 60 hours and whether the 
     terms and use of such contracts or agreements should differ 
     in some other manner from those permitted in the private 
     sector. The Board further invites comment on whether and to 
     what extent the regulations in this subpart may and should 
     vary in any other respect from the provisions of section 7(f) 
     of the FLSA.
       The Board also invites comment on whether this proposed 
     regulation should be considered the sole irregular work 
     schedule provision applicable to covered employees or 
     whether, in addition, section 203 of the CAA applies the 
     irregular hours provision of section 7(f) of the FLSA with 
     respect to covered employees whose work schedules do not 
     directly depend on the schedule of the House or Senate.
       Pursuant to section 203(a)(3) of the CAA, the proposed 
     regulation also authorizes employing offices to compensate 
     covered employees with compensatory time off in lieu of 
     overtime compensation where such employees' work schedules 
     meet the irregular schedule definition of Section 1 of the 
     proposed regulation. The Secretary of Labor has not 
     promulgated regulations regarding the receipt of compensatory 
     time in lieu of overtime compensation by employees who work 
     irregular work schedules and no comparable authority exists 
     for employees covered by the FLSA in the private sector to 
     accrue compensatory time in lieu of paid overtime. The 
     proposed regulation's terms regarding compensatory time are 
     derived from the provisions of section 7(o) of the FLSA which 
     permits public employers to continue the practice of 
     providing compensatory time in lieu of monetary payment for 
     overtime worked. The Board is not currently aware of any 
     working conditions in the House of Representatives or the 
     Senate which would require a different approach to the 
     accrual and use of compensatory time than that applied to 
     public employers and employees under the FLSA. However, there 
     may be aspects of House or Senate operations which commentors 
     may believe warrant a different approach.
       Section 7(o) was incorporated into the FLSA as part of the 
     Fair Labor Standards Amendments of 1985. The legislative 
     history of those amendments reflects that the amendments 
     ``respond[ed] to [concerns of state and local governments] by 
     adjusting certain FLSA principles with respect to employees 
     of states and their political subdivisions.'' S. Rep. No. 
     159, 99th Cong., 1st Sess. 4 (1985), reprinted in 1985 
     U.S.C.C.A.N. 651, 655. In this regard there was a recognition 
     that ``the financial costs of coming into compliance with the 
     FLSA--particularly the overtime provisions of section 7--
     [were] a matter of grave concern'' and that ``many state and 
     local government employers and their employees voluntarily 
     [had] worked out arrangements providing for compensatory time 
     off in lieu of pay for hours worked beyond the normally 
     scheduled work week. These arrangements . . . reflect[ed] 
     mutually satisfactory solutions that [were] both fiscally and 
     socially responsible. To the extent practicable, [Congress 
     sought] to accommodate such arrangements''. Id. at 8-9. In 
     arriving at the maximum number of hours that could be 
     accrued, the original Senate bill provided for a cap of 480 
     hours of compensatory time for all employees. The House 
     proposed a cap of 180 hours for all employees except public 
     safety employees, who would be permitted to accrual of 480 
     hours. The current provisions of section 7(o) were agreed to 
     in conference. See H.R. CONF. Rep. No. 357, 99th Cong., 1st 
     Sess. 8 (1985), reprinted in 1985 U.S.C.C.A.N. 669.
       The Board invites comment on whether and to what extent 
     Section 7(o) is an appropriate model for the Board's 
     regulations. The Board also invites comment, if Section 7(o) 
     does provide an appropriate model, on whether and to what 
     extent the regulations, including the accrual and use of 
     compensatory time off and the limits on the maximum number of 
     hours that can be accrued, should vary from the provisions of 
     section 7(o) of the FLSA.
       Part B--Irregular Work Schedules: Section 1. For the 
     purposes of this Part, a covered employee's work schedule 
     ``directly depends'' on the schedule of the House of 
     Representatives only if the employee's normal workweek 
     arrangement requires that the employee be scheduled to work 
     during the hours that the House or Senate is in session and 
     the employee may not schedule vacation, personal or other 
     leave or time off during those hours, absent emergencies and 
     leaves mandated by law. A covered employee's schedule 
     ``directly depends'' on the schedule of the House of 
     Representatives or the Senate under the above definition 
     regardless of the employee's schedule on days when the House 
     or Senate is not in session.
       Section 2. No employing office shall be deemed to have 
     violated section 203(a)(1) of the CAA, which applies the 
     protections of section 7(a)(1) of the Fair Labor Standards 
     Act (``FLSA'') to covered employees and employing offices, by 
     employing any employee for a workweek in excess of the 
     maximum workweek applicable to such employee under section 
     7(a) of the FLSA if such employee is employed pursuant to a 
     bona fide individual contract, or pursuant to an agreement 
     made as a result of collective bargaining by representatives 
     of employees, if the employee's work schedule directly 
     depends on the schedule of the House of Representatives or 
     the Senate within the meaning of Section 1, and the contract 
     or agreement (1) specifies a regular rate of pay of not less 
     than the minimum hourly rate provided in subsection (a) of 
     section 6 of the FLSA and compensation at not less than one 
     and one-half times such rate for all hours worked in excess 
     of such maximum workweek [currently 40 hours], and (2) 
     provides a weekly guaranty of pay for not more than sixty 
     hours based on the rates of pay so specified.
       Section 3. Covered employees whose work schedules directly 
     depend on the schedule of the House of Representatives or the 
     Senate within the meaning of Section 1 must be compensated 
     for all hours worked in excess of the maximum workweek 
     applicable to such employees at time-and-a-half either in pay 
     or in time off, pursuant to the relevant collective 
     bargaining agreement, employment agreement or understanding 
     arrived at before the performance of the work. However, those 
     employees employed under a contract or agreement under 
     Section 2 may be compensated in time off only for hours 
     worked in excess of the weekly guaranty. In the case of a 
     covered employee hired prior to the effective date of this 
     regulation, the regular practice in effect immediately prior 
     to the effective date with respect to the grant of 
     compensatory time off in lieu of the receipt of overtime 
     compensation shall constitute an agreement or understanding 
     for purposes of this section. A covered employee under this 
     section may not accrue compensatory time in excess of 240 
     hours of compensatory time for hours worked, except that if 
     the work of such employee for which compensatory time may be 
     provided includes work in a public safety activity, an 
     emergency response activity or seasonal activity, the 
     employee may accrue not more than 480 hours of compensatory 
     time. Any employee who has accrued the maximum hours of 
     compensatory time off shall, for additional overtime hours of 
     work, be paid overtime compensation. If compensation is paid 
     to an employee for accrued compensatory time, such 
     compensation shall be paid at the regular rate earned by the 
     employee at the time the employee receives such payment. The 
     employee shall be permitted by the employing office to use 
     compensatory time within a reasonable period after making the 
     request if the use of such time does not unduly disrupt the 
     operations of the employing office.
       An employee who has accrued compensatory time authorized by 
     this Section shall, upon termination of employment, be paid 
     for the unused compensatory time at a rate of compensation 
     not less than (A) the average 

[[Page S 15029]]
     regular rate received by such employee during the last 3 years of the 
     employee's employment, or (B) the final regular rate received 
     by such employee, whichever is higher.
       Method of Approval:
       The Board recommends that these regulations be approved by 
     concurrent resolution as neither the House of Representatives 
     nor the Senate has exclusive responsibility for the employing 
     offices covered by these regulations.
       Signed at Washington, DC, on this 10th day of October, 
     1995.
                                                Glen D. Nager,    
                                           Chair of the Board,    
     Office of Compliance.

                          ____________________