[Congressional Record Volume 141, Number 157 (Wednesday, October 11, 1995)]
[Senate]
[Pages S15029-S15030]
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 the Senate.
  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 
     the Senate and employees of the Senate, set forth the 
     recommendations of the Deputy Executive Director for the 
     Senate, 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: Deputy Executive Director 
     for the Senate, 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 Senate 
     usage, in formulating its definition, the Board has consulted 
     several Senate sources that use and define the term. For 
     example, 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.
       Section 2. An intern for the purposes of section 203(a)(2) 
     of the Act also includes an individual who is a senior 
     citizen intern appointed under S.Res. 219 (May 5, 1978, as 
     amended by S.Res. 96, April 9, 1991).
       Background: Part B--Irregular Work Schedules: 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 Senate.
       The proposed regulation develops a standard for determining 
     whether an individual's work schedule ``directly depends'' on 
     the schedule of 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 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 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 

[[Page S 15030]]
     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 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 the Senate's 
     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 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 Senate only if 
     the employee's normal workweek arrangement requires that the 
     employee be scheduled to work during the hours that the 
     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 Senate under the above definition regardless 
     of the employee's schedule on days when the 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 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 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 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 
     resolution of the Senate.
       Signed at Washington, DC, on this 10th day of October, 
     1995.

                                                Glen D. Nager,

                                               Chair of the Board,

     Office of Compliance.  

                          ____________________