[Congressional Record Volume 142, Number 7 (Monday, January 22, 1996)]
[Senate]
[Pages S189-S196]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 NOTICE OF ADOPTION OF PROCEDURAL RULES

  Mr. THURMOND. Mr. President, pursuant to the Congressional 
Accountability Act of 1995, a Notice of Adoption of Regulations and 
Submission for Approval and Issuance of Interim Regulations, together 
with a copy of the adopted regulations, was submitted by the Office of 
Compliance, U.S. Congress. These regulations relate to irregular work 
schedules and interns. The notice announces the adoption of the final 
regulation as an interim regulation on the same matters. The 
Congressional Accountability Act specifies that the Notice and 
regulations be printed in the Congressional Record, therefore I ask 
unanimous consent that the notice and adopted regulations be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page S190]]


  Office of Compliance--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 ADOPTION OF REGULATIONS AND SUBMISSION FOR APPROVAL AND 
                    ISSUANCE OF INTERIM REGULATIONS

       Summary: The Board of Directors, Office of Compliance, 
     after considering comments to its general Notice of Proposed 
     Rulemaking published October 11, 1995 in the Congressional 
     Record, has adopted, and is submitting for approval by the 
     Congress, final regulations to implement sections 203(a)(2) 
     and 203(c)(3) of the Congressional Accountability Act of 1995 
     (``CAA''). The Board is also adopting and issuing such 
     regulations as interim regulations for the House, the Senate 
     and the employing offices of the instrumentalities effective 
     on January 23, 1996 or on the dates upon which appropriate 
     resolutions are passed, whichever is later. The interim 
     regulations shall expire on April 15, 1996 or on the dates on 
     which appropriate resolutions concerning the Board's final 
     regulations are passed by the House and the Senate, 
     respectively.
       For Further Information Contact: Executive Director, Office 
     of Compliance, Room LA 200, Library of Congress, Washington, 
     D.C. 20540-1999. Telephone: (202) 724-9250.

                         Background and Summary

       Supplementary Information: The Congressional Accountability 
     Act of 1995 (``CAA''), Pub. L. 104-1, 109 Stat. 3, was 
     enacted on January 23, 1995. 2 U.S.C. sections 1301 et seq. 
     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. In addition, the statute establishes the Office of 
     Compliance (``Office'') with a Board of Directors (``Board'') 
     as ``an independent office within the legislative branch of 
     the Federal Government.'' 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 (``FLSA'') (29 U.S.C. 206(a)(1) and 
     (d), 207, and 212(c)) to covered employees and employing 
     offices. 2 U.S.C. section 1313. Sections 203(c) and 304 of 
     the CAA directs the Board to issue regulations to implement 
     the section. 2 U.S.C. sections 1313(c), 1384.
       Section 203(c)(2) of the CAA directs the Board to issue 
     substantive regulations that ``shall be the same as 
     substantive regulations issued by the Secretary of Labor . . 
     . except insofar as the Board may determine, for good cause 
     shown . . . that a modification of such regulations would be 
     more effective for the implementation of the rights and 
     protections under'' the CAA. 2 U.S.C. section 1313(c)(2). 
     However, section 203(a)(2) excludes ``interns'' as defined by 
     Board regulations from the definition of ``covered employee'' 
     for the purpose of FLSA rights and protections. Additionally, 
     section 203(c)(3) of the CAA 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'', rather than ``the 
     same as'', the provisions of the FLSA that apply to employees 
     who have irregular work schedules.
       On October 11, 1995, the Board published a Notice of 
     Proposed Rulemaking (``NPR'') in the Congressional Record 
     (141 Cong. R. S15025 (daily ed., October 11, 1995)), inviting 
     comments from interested parties on the proposed regulations 
     relating to ``interns'' and ``irregular work schedules.'' Six 
     comments were received responding to the proposed regulatory 
     definition of ``interns,'' and thirteen on the proposed 
     irregular work schedules regulation. Comments were received 
     from employing offices, trade and professional associations, 
     advocacy organizations, a labor organization, and Members of 
     Congress. In addition, the Office has sought consultations 
     with the Department of Labor regarding the proposed 
     regulations, pursuant to section 304(g) of the CAA. After 
     considering the comments received in response to the 
     proposed rule, the Board has adopted and is submitting 
     these regulations for approval by the Congress. Moreover, 
     pursuant to sections 411 and 304, the Board is issuing 
     such regulations as interim regulations. The Board is also 
     adopting and issuing such regulations as interim 
     regulations for the House, the Senate and the employing 
     offices of the instrumentalities effective on January 23, 
     1996 or on the dates upon which appropriate resolutions 
     are passed, whichever is later. The interim regulations 
     shall expire on April 15, 1996 or on the dates on which 
     appropriate resolutions concerning the Board's final 
     regulations are passed by the House and the Senate, 
     respectively.


                      I. DEFINITION OF ``INTERNS''

                   A. Summary of Proposed Regulation

       The proposed regulation defined the term ``intern'' to be 
     any 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.''

                         B. Summary of Comments

       Six comments were received regarding the proposed 
     definition of ``intern'' in the Notice of Proposed 
     Rulemaking. The commenters agreed with the approach taken in 
     the proposed regulation. However, commenters suggested that 
     the proposed definition of ``interns'' was vague or overbroad 
     in one or more respects. After considering these comments, 
     the Board has decided to modify the regulation, as discussed 
     below.

1. Subpart (a): Requirement that an intern ``perform[] service as part 
      of the pursuit of the individual's educational objectives''

       Subpart 1(a) of the proposed regulation established as the 
     first criterion for eligibility as an ``intern'' that the 
     individual must be ``performing services in an employing 
     office as part of the pursuit of the individual's educational 
     objectives'' (emphasis added).
       Two commenters expressly approved of this subpart, and 
     recommended that the Board not change it. One commenter 
     argued that this criterion was overbroad and would be subject 
     to potential abuse by employing offices because the intern 
     need not be enrolled in an educational program in a degree-
     awarding institution. This commenter opined that virtually 
     all employees view their employment as a way to achieve some 
     ``educational objective,'' since most hope to get on-the-job 
     experience that will qualify them for better paying 
     opportunities. In the view of this commenter, an employing 
     office could easily characterize the individual's work as 
     ``in pursuit of educational objectives'' to avoid its FLSA 
     obligations. This commenter recommended that an alternative 
     definition of ``intern'' be adopted--one that would be 
     modeled on the elements used to determine the status of 
     ``trainees'' under the FLSA, which specifies that the 
     individual must be a student enrolled in a degree program at 
     an educational institution to qualify.
       In the Board's considered judgment, requiring an intern to 
     be enrolled in a degree program at an educational institution 
     would be unduly restrictive because such a requirement would 
     exclude arrangements considered valid under current 
     internship practice. The Board does not believe Congress 
     intended to preclude internships during a teacher's 
     sabbatical year or between undergraduate and graduate school. 
     Therefore, the Board does not recommend that such a 
     requirement be imposed. Instead, the Board shall modify 
     subpart (a) of the regulation to state that an employee must 
     be performing services in the employing office as part of a 
     demonstrated educational plan which should be in writing and 
     signed by both. In the Board's view, this requirement would 
     be satisfied where the intern is enrolled in a degree program 
     at an educational institution or where the intern's 
     employment is part of an educational program or plan agreed 
     upon between the employing office and the intern. In the 
     Board's view, these requirements will satisfactorily decrease 
     the risk of abuse of this provision by any employing office.
       2. Subpart (b): Requirement that the individual be 
     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''
       Subpart (b) of the proposed rule set out the second 
     criterion for determining whether an individual in an 
     employing office would be an ``intern'': that the individual 
     be 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.''
       All six commenters suggested that the Board modify the 
     proposed regulation to define a specific, determinative time 
     limit for an internship to qualify under the regulation's 
     definition. The commenters suggested that the length of time 
     for a qualifying internship (and any extension thereof) under 
     this part be expressed as a defined term of days or 
     months. Commenters suggested periods ranging from ``120 
     days in any 12-month period,'' to ``5 months,'' to ``9 
     months.''
       Three commenters suggested that the term ``academic 
     semester'' is ambiguous because many educational institutions 
     divide their academic calendars into ``trimesters'' or 
     ``terms'' of varying duration as well as ``semesters.'' 
     Similarly, some commenters found the provision that an intern 
     may be reappointed for one succeeding ``temporary period'' 
     ambiguous because the term ``temporary period'' was not 
     defined and could be subject to varying interpretations.
       One commenter quoted the following provision of section 3 
     of H.Res. 359, contained in 2 U.S.C. section 92 (Note): 
     ``interns shall be employed primarily for their educational 
     experience in Washington, District of Columbia, for a period 
     not to exceed one hundred and twenty days in one year . . .'' 
     This commenter suggested that the reference to one academic 
     semester be changed to ``120 days in any 12 month period'' to 
     ensure consistency with this provision.
       One commenter stated that the one semester time limit may 
     be too short, since many of the schools from which employing 
     offices recruit interns administer their internship programs 
     on an annual, as opposed to semester, basis. This commenter 
     suggested that, under the current definition, employing 
     offices will be unable to attract top-level interns and the 
     efficiency of the offices will be undermined. The commenter 
     suggested the applicable time limit for an intern position 
     should be one year, defined as two consecutive semesters.
       Another commenter suggested the regulation should specify 
     that summer internships are acceptable under the rule. This 
     commenter also recommended that the regulation expressly 
     state that the definition of 

[[Page S191]]
     ``intern'' ``is not intended to cover other similar job positions such 
     as volunteers or fellows, nor does it cover pages,'' which is 
     stated in the Summary section of the NPR regarding this 
     proposed regulation (141 Cong. R. S15025 (daily ed., October 
     11, 1995)).
       The Board agrees that subpart (b) of the proposed 
     regulation should be modified (1) to allow for the 
     appointment and reappointment of interns for periods of 
     varying length and (2) to state a definite maximum term for 
     the entire internship, including any reappointment periods. 
     After considering the alternatives suggested by the 
     commenters, the Board shall modify the proposed regulation to 
     state that an intern may be appointed for periods of any 
     length, so long as the total period of internship does not 
     exceed 12 months. This definition expresses the Board's 
     understanding of the term ``academic semester'' in the 
     proposed regulation and adopts the suggestion that the 
     internship be subject to a defined time period unconnected to 
     the academic calendar of any particular educational 
     institution.
       The Board notes that, since the final regulation allows 
     internships for periods of longer than 120 days in one year, 
     under H.Res. 359, a Member who chooses to employ an intern 
     for longer than 120 days in a year may be required by House 
     rules to count that intern against the 18 permanent clerk-
     hire allotment. However, nothing in the Board's final 
     regulation requires an employing office to employ an intern 
     for the entire period permitted by the definition; the final 
     regulation simply sets a maximum period within which an 
     internship may qualify to meet the exclusion of section 
     203(a)(2) of the CAA. Employing offices (or the House itself) 
     are free to impose more stringent limitations on their 
     employment of interns. The definition of ``intern'' in the 
     final regulation establishes only the CAA's ceiling on the 
     period of time an intern may be employed and still meet the 
     exclusion of section 203(a)(2) of the CAA.
       The regulation shall also state that the definition of 
     ``intern'' does not cover volunteers, fellows or pages, as 
     suggested by a commenter. The Board believes that, as 
     modified, this definition makes clear that summer internships 
     may meet the definition, provided that the other criteria of 
     the regulation are met. Therefore, the explicit statement to 
     that effect suggested by a commenter is unnecessary.


                      II. IRREGULAR WORK SCHEDULES

                            A. Introduction

       Section 203(c)(3) of the CAA 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 schedules.'' Section 203(a)(3) states that, 
     ``[e]xcept as provided in regulations under subsection 
     (c)(3), covered employees may not receive compensatory time 
     in lieu of overtime compensation.''
       Section 1 of the rule proposed in the NPR developed a 
     standard for determining whether an individual's work 
     schedule ``directly depends'' on the schedule of the House of 
     Representatives or the Senate.'' In sections 2 and 3 of the 
     rule proposed in the NPR, the Board proposed two irregular 
     work schedule provisions which would be applicable to such 
     employees. Section 2 of the proposed regulation, which 
     allowed for the use of so-called ``Belo'' agreements, was 
     modeled almost verbatim on the requirements of section 7(f) 
     of the FLSA. (See 29 U.S.C. section 207(f)). Section 3 of the 
     proposed regulation, which was modeled on section 7(o) of the 
     FLSA, established conditions under which employing offices 
     could provide compensatory time off in lieu of overtime 
     compensation to employees whose work schedules ``directly 
     depended'' on the schedules of the House or the Senate. (See 
     29 U.S.C section 207 (o)).
       In addition to inviting general comments on the regulation 
     proposed in the NPR, the Board invited comments on four 
     specific issues: (1) whether the regulation should be 
     considered the sole irregular work schedules 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 schedules 
     of the House or the Senate; (2) whether the contracts and 
     agreements referenced in section 2 of the proposed regulation 
     (so-called ``Belo'' agreements) 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 and agreements 
     should differ in some other matter from those permitted in 
     the private sector; (3) whether and to what extent the 
     regulations may and should vary in any other respect from the 
     provisions of section 7(f) of the FLSA; and (4) whether and 
     to what extent section 7(o) of the FLSA is an appropriate 
     model for the Board's compensatory time off regulations and 
     whether and to what extent the Board's regulations should 
     vary from the provisions of section 7(o) of the FLSA.
       The Board has carefully reviewed the public comments 
     received in response to the NPR and has further studied both 
     the text and the legislative history of sections 203(a)(3) 
     and 203(c)(3), as well as the provisions governing overtime 
     compensation under section 7 of the FLSA. After doing so, the 
     Board has concluded that the regulations relating to 
     irregular work schedules should, consistent with both the 
     special rules of sections 203(a)(3) and 203(c)(3) and 
     established interpretations of the FLSA, be as follows:
       First, for employees whose schedules directly depend upon 
     the schedules of the House of Representatives or the Senate, 
     the substantive regulations shall provide that an eligible 
     employee is entitled to overtime compensation for working in 
     excess of 40 hours but less than 60 hours in a workweek and 
     is further entitled to overtime compensation or compensatory 
     time off for hours worked in excess of 60 hours in a 
     workweek. An employee's schedule shall be deemed to 
     ``directly depend'' upon the schedule of the House or the 
     Senate where the eligible employee performs work that 
     directly supports the conduct of legislative or other 
     business in the chamber and works hours that regularly change 
     in response to the schedule of the House or the Senate.
       Second, for other employees whose schedules do not 
     ``directly depend'' upon the House or Senate schedule but who 
     nevertheless work irregular or fluctuating work schedules, 
     the provisions of sections 203(a)(3) and 203(c)(3) of the CAA 
     do not apply and compensatory time off should not be 
     available. Employing offices may nevertheless adopt any of 
     several options, generally available under the FLSA, which 
     satisfy overtime payment requirements in the context of 
     irregular or fluctuating work schedules. The availability of 
     these options addresses many of the concerns expressed in the 
     comments received in response to the NPR.

                         B. Summary of Comments

           1. Applicability of 7(f) of the FLSA under the CAA

       In the NPR the Board asked several questions regarding the 
     applicability of section 7(f) of the FLSA under the CAA. The 
     commenters were divided on the question of whether the 
     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 to 
     covered employees whose work schedules do not directly depend 
     on the schedule of the House or Senate.
       Two commenters believed that the CAA allows an irregular 
     work schedule provision only for employees whose work 
     schedules directly depend on the schedules of the House or 
     the Senate. Thus, the proposed regulation should be the sole 
     irregular work schedule provision.
       Conversely, three commenters suggested that the proposed 
     rule should not be the sole irregular work schedule provision 
     but that the Board should implement a second rule on 
     irregular work schedules which applies to covered employees 
     other than those whose schedules directly depend on the 
     schedule of the House or Senate. These commenters noted that 
     section 203 of the CAA expressly applies the entirety of 
     section 7 of the FLSA to covered employees. Consequently, 
     under the view of these commenters, section 7(f), the 
     irregular work schedule provision of the FLSA, should apply 
     to all covered employees, not just to those whose schedules 
     directly depend on that of the House or Senate.
       In addition to the issue of the general applicability of 
     7(f), the NPR posed the more specific questions of (1) 
     whether the contracts or agreements referenced in 7(f) can or 
     should be incorporated into the CAA's regulations so as to 
     provide for a guaranty of pay for more than 60 hours; and (2) 
     whether the terms and use of such contracts or agreement 
     should differ in some other manner from those permitted in 
     the private sector.
       Three commenters specifically stated that the 60-hour 
     maximum should apply to the proposed regulation, again 
     relying on the rationale that the CAA requires that the 
     Board's rules be the same as those which apply to the private 
     sector. Further, several commenters stated that, in general, 
     the Board's regulations which implement the CAA should not 
     deviate from those regulations applicable under the FLSA to 
     the private sector--which implicitly includes ``Belo'' plans.
        Several commenters addressed the question of whether, as a 
     general matter, the rule on irregular work schedules should 
     vary from section 7(f) of the FLSA. All agreed that the 
     regulation should not vary from section 7(f) of the FLSA. Two 
     commenters contended that the CAA applies the FLSA to the 
     legislative branch in the identical manner that the FLSA 
     applies to the private sector. One commenter argued that the 
     rule on irregular work schedules should include provisions 
     for compensatory time off because the Board's rule need only 
     be ``comparable'' to section 7(f) of the FLSA.

 2. Definition of ``directly depends'' under section 1 of the proposed 
                               regulation

        Section 1 of the proposed regulation stated that a covered 
     employee's work schedule ``directly depends'' on the schedule 
     of the House of Representatives ``only if the employee's 
     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.'' The proposed rule 
     further stated that an employee's schedule on days the House 
     or the Senate is not in session does not affect the question 
     of whether the employee's schedule directly depends on that 
     of the House or the Senate. Seven commenters had concerns 
     about the definition of when an employee's work schedule 
     ``directly depends'' on the schedule of the House or the 
     Senate. 
     
[[Page S192]]

       Four commenters found the definition too narrow, citing 
     examples of covered employees who work for committees or 
     support offices or agencies who they thought would not fit 
     into a strict reading of the proposed regulation. These 
     commenters said that employees of those offices who 
     frequently must serve the Senate or the House ``until the 
     conclusion of specified legislative sessions or specified 
     legislative business'' have schedules that are determined by 
     the House or the Senate, and not by their employing offices. 
     Further, these commenters said that employing offices 
     frequently limit severely their employees'' ability to take 
     leave during these times, absent an emergency. The commenters 
     claimed that, because the proposed rule requires that the 
     employee's position must require them to be on duty whenever 
     the House or the Senate is in session, it excludes the 
     employees of those offices and committees whose schedules are 
     clearly mandated by that of the House or the Senate but who 
     are not necessarily required to be at work during every hour 
     the House or the Senate is in session. These commenters 
     further asserted that these employees may, on occasion, take 
     leave while the House or the Senate is in session, when their 
     issue areas or responsibilities are not scheduled for debate 
     and that this too would make them ineligible under the 
     proposed irregular work schedule provision. These commenters 
     expressed concern that, if such employees do not qualify for 
     the irregular work schedule provision, many employing offices 
     will not be able to afford the overtime their employees 
     presently put in on a regular basis. Apart from the actual 
     monetary cost, these commenters could not see how such 
     offices would be able to anticipate adequately the amounts of 
     overtime they will have to pay when planning their budgets 
     because of the uncertainty in their schedules.
       Another commenter suggested that the rule should also make 
     clear that employees can be granted time away from work, or 
     work on a reduced hour schedule, while the House or the 
     Senate is not in session, and still be covered by the 
     irregular work schedule provision. This commenter also 
     suggested that the regulations should give employing offices 
     authority to determine whether schedules for their employees 
     directly depend on the schedule of the House or the Senate.
        A third commenter suggested that the Board specifically 
     state in the rule that the irregular work schedule provisions 
     apply to employees of committees, joint committees, and 
     (presumably) other offices in similar situations. 
     Alternatively, this commenter suggested that, if the Board 
     does not wish to take that approach, the rule should be 
     changed to state that the employee's work schedule ``directly 
     depends'' on the schedule of the House or the Senate if that 
     employee's ``normal workweek schedule is determined based in 
     whole or in part on the hours the House or Senate is in 
     session and on the legislative calendar of the House or the 
     Senate.''
        Conversely, two commenters believed that the definition in 
     the proposed regulation of when an employee's schedule 
     ``directly depends'' on that of the House or the Senate was 
     too broad. One of these commenters suggested that the 
     definition in the NPR (1) is not in keeping with what the 
     Secretary of Labor deems an irregular work schedule in the 
     private sector and (2) is subject to abuse by employing 
     offices because it is too easy to meet, in this commenter's 
     view.
        This commenter asserted that the Department of Labor's 
     regulations make it clear that employees who fall within the 
     irregular work schedule provisions must have schedules that 
     ``fall above and below the normal work week.'' According to 
     this commenter, section 774.406 of those regulations states 
     that, if the employee's hours fluctuate only above the 
     maximum workweek prescribed in the statute, the employee's 
     schedule is not considered irregular. This commenter insisted 
     that the Board's proposed rule failed to include a provision 
     that would require the employee's hours, at some point, to 
     fall below the normal workweek schedule. This commenter saw 
     this omission as creating an opportunity for employing 
     offices simply to mandate that these employees be at work 
     whenever the House or the Senate is in session, as well as 
     working a regular forty-hour week when the House or the 
     Senate is not in session.
        A second commenter read the proposed rule as potentially 
     allowing employing offices to include employees under the 
     irregular work schedule provision when, in fact, those 
     employees do not work irregular hours or have workweeks of 
     fewer than forty hours. This commenter suggested that the 
     Board should clarify the rule to provide that an 
     employee's schedule ``directly depends'' on the schedule 
     of the House or the Senate when ``the employees must, as a 
     result of that schedule, actually work workweeks which 
     fluctuate significantly.''
        Finally, one commenter read the proposed definition as 
     either too narrow, or too broad, depending on the intended 
     meaning of the phrase ``during the hours that the House or 
     Senate is in session.'' This commenter observed that, if one 
     interprets this phrase as requiring only that some of the 
     employee's work hours coincide with the hours the House or 
     the Senate is in session, the definition is too broad because 
     virtually every House or Senate employee that works on 
     Capitol Hill would qualify. This commenter also observed 
     that, if the phrase is read strictly to mean that an employee 
     must work all of the hours that the House or the Senate is in 
     session, the definition is too narrow, for the same reasons 
     given by the four commenters discussed above. This commenter 
     suggested that a better definition of when an employee's 
     schedule ``directly depends'' on the schedule of the House or 
     the Senate is when ``the employee's work schedule is dictated 
     primarily by the schedule of the [House or the] Senate.''

   3. Availability of compensatory time off and the applicability of 
                        section 7(o) of the FLSA

       In the regulations proposed in the NPR, the Board also 
     invited comment on the propriety and advisability of using 
     section 7(o) of the FLSA, which authorizes public sector 
     employees to give compensatory time off in lieu of overtime 
     compensation to public sector employees, as the model for 
     determining whether employees whose schedules directly depend 
     on the schedule of the House or the Senate should receive 
     compensatory time off. The commenters were divided on this 
     issue.
       Six commenters opposed the provision of compensatory time 
     off, asserting that the Board should not use section 7(o) as 
     a model for the Board's regulations. These commenters stated 
     that authorization of compensatory time off under section 
     203(c)(3) of the CAA would be inconsistent with the strict 
     private sector prohibition against the use of compensatory 
     time off in lieu of overtime compensation under the FLSA.
       In these commenters' view, compensatory time off under 
     section 7(o) is not available to the private sector and, 
     consequently, should not be available to Congress, since the 
     CAA allegedly requires Congress to ``live by the rules of the 
     private sector.'' Moreover, these commenters cite legislative 
     activity of the 103rd Congress, in which various compensatory 
     time provisions were proposed and rejected. Finally, these 
     commenters cite various floor statements given during the 
     debate on the CAA, which, they claim, state that compensatory 
     time off is not available under the CAA.
       One commenter argued that section 203(c)(3) of the CAA 
     gives the Board discretion to authorize the use of 
     compensatory time only if the ``provisions of the [FLSA] that 
     apply to employees who have irregular schedules'' authorize 
     such overtime. This commenter pointed to the Interpretative 
     Bulletin found at 29 C.F.R. section 778.114, which allows 
     fixed salaries for fluctuating workweeks, and argued that the 
     Board is not permitted to authorize compensatory time off 
     under its irregular work schedule regulation except insofar 
     as time off would have to be offered and utilized pursuant to 
     this Interpretative Bulletin, i.e., not at all.
       Conversely, five commenters suggested that authorizing 
     compensatory time off in lieu of overtime pay under the 
     proposed regulations is appropriate under the FLSA as applied 
     by section 203 of the CAA. Further, three of these commenters 
     specifically stated that section 7(o) of the FLSA is an 
     appropriate model for the Board's regulations on compensatory 
     time off. One commenter, citing a report that accompanied 
     H.R. 4822, in the 103rd Congress, the predecessor to the CAA 
     (S. Rep. No. 397, 103d Cong., 2d Sess. 18 (1994)), stated 
     that the question of compensatory time off was specifically 
     addressed by the Congress and that section 7(o) of the FLSA 
     was approved as the appropriate model for determining accrual 
     and use of compensatory time off. Since H.R. 4822 was 
     substantially the same as S.2, the bill which ultimately was 
     enacted as the CAA, this commenter concluded that this 
     ``legislative history'' suggests that a regulation 
     authorizing compensatory time off and modeled after section 
     7(o) must also be acceptable under the CAA.
       One commenter offered two further comments on the proposed 
     rule. First, this commenter suggested that compensatory time 
     off earned prior to January 23, 1996, should be used in 
     accordance with the policies in effect at the time that the 
     compensatory time was accrued, including policies governing 
     payment for unused compensatory time upon termination of 
     employment. According to this commenter, if no prior policies 
     existed for use of compensatory time off, then the use of 
     that accrued compensatory time should be governed by the new 
     regulations. Further, this commenter argued that the 240-hour 
     cap on accrued compensatory time should only apply to 
     compensatory time accrued as of January 23, 1996 and that 
     anything earned prior to that date (under the old system) 
     should not count toward the 240-hour cap.

  C. Final Regulation: The Board shall authorize employing offices to 
 provide compensatory time off, subject to limitations, for employees 
 whose work schedules ``directly depend'' on the schedule of the House 
 or the Senate. In addition, the provisions of the FLSA as applied to 
  covered employers under section 203 of the CAA authorize employing 
 offices to utilize several methods of computing pay for employees who 
                  work irregular or fluctuating hours.

       In addition to the options available to private sector 
     employers under the FLSA for addressing irregular or 
     fluctuating work hours, the regulations adopted by the Board 
     shall allow employing offices additional flexibility in the 
     case of employees whose work schedules ``directly depend'' on 
     the schedule of the House or the Senate. Specifically, for 
     these employees, the Board's regulations shall provide for 
     compensatory time off in lieu of overtime compensation to a 
     limited extent.
     
[[Page S193]]


                        1. Compensatory time-off

       At the outset, the Board rejects the argument made by 
     several commenters that allowing compensatory time off in 
     lieu of overtime pay is not within the Board's discretion. 
     Section 203(c)(3) provides that the Board may issue 
     regulations for covered employees whose schedules ``directly 
     depend'' on the schedule of the House or the Senate ``that 
     shall be comparable to the provisions of the [FLSA] that 
     apply to employees who have irregular schedules.'' In turn, 
     section 203(a)(3) of the CAA provides that, ``[e]xcept as 
     provided in regulations under subsection (c)(3), covered 
     employees may not receive compensatory time in lieu of 
     overtime compensation.'' The plain import of this statutory 
     language is that the Board may provide for compensatory time 
     off in its irregular work schedule regulations; indeed, any 
     other construction of the statute would render the exception 
     clause of section 203(a)(3) meaningless, which traditional 
     canons of construction generally forbid.
       While legislative history cannot in any event rewrite such 
     statutory text, the Board also notes that, contrary to the 
     argument of some commenters, nothing in the CAA's legislative 
     history in fact forbids the Board from authorizing 
     compensatory time off in lieu of overtime compensation for 
     employees whose schedules directly depend on the schedule of 
     the House or the Senate. The only legislative materials of 
     the 104th Congress referenced by these commenters are a floor 
     statement by a Senator and the section-by-section analysis 
     submitted during the Senate's consideration of the CAA. See 
     141 Cong. Rec. S445 (daily ed., Jan. 5, 1995); 141 Cong. Rec. 
     S623-S624 (daily ed., Jan. 9, 1995). However, the referenced 
     floor statement and section-by-section analysis were made in 
     the context of discussing the general prohibition of 
     compensatory time off under section 203(a)(3) of the CAA (and 
     under section 7(a) of the FLSA). They were not made in 
     reference to the specific terms of sections 203(a)(3), which 
     explicitly do not proscribe the authorization of compensatory 
     time off in the context of employees whose schedules directly 
     depend on the schedule of the House or the Senate. Indeed, 
     not only do these sections not explicitly proscribe the 
     authorization of compensatory time-off in this context, they 
     in fact implicitly authorize compensatory time-off in this 
     one specified circumstance.
       Some commenters referred to legislative activity of the 
     103rd Congress in arguing that compensatory time-off may not 
     be allowed. But, as noted above, legislative history is not 
     law and cannot properly be used to rewrite statutory text. 
     Moreover, to the extent that legislative history of a prior 
     Congress is relevant in determining the meaning of an act 
     passed by the current Congress (but see Landgraf v. USI Film 
     Products, 114 S.Ct. 1483, 1496 (1994)), the ``legislative 
     history'' cited is, in all events, consistent with the 
     approach taken by the Board.
       For example, S. 1824, which was considered by the 103rd 
     Congress, applied the protections of the FLSA to the Senate, 
     but exempted employees whose work schedules are dependent on 
     the legislative schedule of the Senate. See S. 1824, section 
     304(b); S. Rep. 103-297 (103d Cong., 2d Sess.) at p. 31 
     (1994). Because employees whose schedules are ``dependent'' 
     on the Senate's schedule were completely excluded from FLSA 
     protections under S. 1824, there was no need to consider the 
     compensatory time off issue for those employees. Similarly, 
     H.R. 4822, which was sent to the Senate on August 12, 1994, 
     expressly allowed compensatory time off for all covered 
     employees to the same extent that section 7(o) of the FLSA 
     authorized compensatory time off for state and local 
     government employees. See H.R. 4822, section 103(a)(3); S. 
     Rep. 103-397 (103d Cong., 2d Sess.) at p. 18 (1994). Finally, 
     H.R. 4822, as reported by the House, gave the Office of 
     Compliance authority to consider the appropriate rule for 
     employees with irregular schedules. See H.Rep. 103-650 (Part 
     2) (103d Cong., 2d Sess.) at p. 15 (1994). Clearly, to the 
     extent that it is relevant, the available legislative history 
     from the 103rd Congress does not reflect an intent 
     categorically to prohibit the Board from allowing 
     compensatory time off for employees with schedules that 
     directly depend on the schedules of the House or the Senate.
       Some commenters also referred to statements of legislators 
     written after the CAA was passed regarding Congress's alleged 
     intent regarding compensatory time off. However, courts do 
     not view after-the-fact statements by proponents of a 
     particular interpretation of a statute as a reliable 
     indication of what Congress intended when it passed a law, 
     even assuming that extra-textual sources are to any extent 
     reliable for this purpose. See Gustafson v. Alloyd Co., Inc., 
     115 S.Ct. 1061, 1071 (1995). The Board thus does not find 
     such statements to limit its discretion under the statute as 
     enacted.
       The Board also does not agree with the commenters who 
     asserted that the CAA uniformly adopts all aspects of private 
     sector law in applying rights and protections to covered 
     employees and employing offices within the legislative 
     branch. The Board notes, for example, that section 225(c) of 
     the CAA prohibits any award of civil penalties or punitive 
     damages against offending employers, even though such 
     penalties and damages would be available in private sector 
     actions. Similarly, the Board notes that section 203(a)(2) 
     excludes ``interns'' from the rights and protections of the 
     FLSA, even though in many cases such interns would be 
     entitled to such rights and protections under the same 
     circumstances in the private sector. The Board further 
     notes that covered employees asserting FLSA rights and 
     protections must first exhaust confidential counseling and 
     mediation remedies prior to filing an action in federal 
     court; in contrast, private sector FLSA plaintiffs may 
     proceed directly to court. In addition, the Board notes 
     that, whereas private sector FLSA plaintiffs enjoy a 
     limitations period of two years (three in the case of 
     willful violations), 29 U.S.C. section 255, covered 
     employees must initiate claims within 180 days of an 
     alleged violation. See sections 402 and 225(d)(1) of the 
     CAA. In short, private sector employers and employing 
     offices under the CAA are treated differently in several 
     instances; and sections 203 (a)(3) and (c)(3) indicate 
     that the use of compensatory time off in the context of 
     employees whose schedules directly depend on the schedules 
     of the House and the Senate is one of the allowable 
     differences.
       That the CAA does not foreclose the Board from authorizing 
     compensatory time off, of course, does not end the inquiry. 
     The question remains whether the Board in its discretion 
     should allow the use of compensatory time off in connection 
     with employees whose schedules directly depend on the 
     schedules of the House and the Senate, and if so, to what 
     extent it should do so. In the rule proposed in the NPR, the 
     Board proposed to do so and to use section 7(o) as the model 
     for doing so. However, in the NPR, the Board also 
     specifically invited comment on both its approach and the 
     advisability of using section 7(o) as the regulatory model 
     for this purpose. Upon both further reflection and 
     consideration of the comments received, the Board has 
     determined that, while use of compensatory time off should 
     still be allowed in this context, section 7(o) may not be the 
     most apt analogy.
       The Board continues to find that the use of compensatory 
     time off in lieu of overtime pay should be allowed in the 
     context of employees whose schedules ``directly depend'' upon 
     the schedules of the House or the Senate. The import of 
     section 203(a)(3) is that Congress contemplated that 
     compensatory time off could be allowed in this unique 
     context. Moreover, section 203(c)(3) suggests a special 
     concern and desire by Congress for providing flexibility in 
     connection with employees whose schedules ``directly depend'' 
     on the schedules of the House and the Senate. The comments 
     received confirm that the work schedules of these unique 
     employees justify special rules that both protect these 
     employees' rights and yet allow for flexibility and cost-
     control on the part of their employing offices. In the 
     Board's judgment, use of compensatory time off is thus 
     appropriate in this context.
       The Board is now convinced, however, that section 7(o) of 
     the FLSA is not the proper model for compensatory time off 
     regulations in this context. Section 7(o) was not designed 
     for and is not limited to employees with irregular work 
     schedules; nor was section 7(o) designed for or limited to 
     employees whose schedules directly depend upon the schedules 
     of the House and the Senate. Accordingly, the Board has 
     concluded, as a matter of discretion, that its regulations in 
     this context should not be modeled after section 7(o).
       Rather, the Board has concluded that section 7(f) of the 
     FLSA is the more appropriate starting point for integrating 
     compensatory time off into the CAA scheme. Section 7(f) was 
     expressly designed for employees with irregular work 
     schedules. It thus provides a more apt starting point for the 
     development of regulations concerning employees whose 
     irregular work schedules arise from the schedules of the 
     House and the Senate. Moreover, using section 7(f) as the 
     starting point for regulations has the advantage of building 
     on a structure that already attempts to accommodate the needs 
     of employers of employees with irregular work schedules and 
     the FLSA rights of those employees.
       Of course, section 7(f) was not explicitly designed for 
     employers of employees whose schedules directly depend on the 
     schedules of the House or the Senate. And section 203(c)(3) 
     instructs that the Board's regulations for those employees 
     need only be ``comparable'' and not the ``same as'' the 
     provisions of the FLSA that address employees with irregular 
     work schedules. Thus, the provisions of section 7(f) may 
     properly be adjusted in order best to address the FLSA rights 
     and obligations under the CAA of employees and employing 
     offices in this special context.
       Upon both further reflection and consideration of the 
     comments received, the Board in its considered judgment has 
     concluded that the irregular work schedule provisions of 
     section 7(f) should be modified for employees whose work 
     schedules ``directly depend'' on the schedule of the House or 
     Senate as follows:
       (1) No agreement between the employee and the employing 
     office should be required in this context; the authorization 
     for differential treatment of such employees derives from 
     section 203(c)(3) and the Board's regulations implementing 
     that section of the CAA;
       (2) The employee's duties need not necessitate irregular 
     hours of work within the meaning of section 7(f); instead, 
     the employee need only be one of those employees whose work 
     ``directly depends'' on the schedule of the House or the 
     Senate (as defined in these regulations);
       (3) The employee's hours may permissibly fluctuate only in 
     the overtime range, as the statutory concern here is 
     obviously the unpredictability in work schedules that derives 


[[Page S194]]
     from the conduct of the nation's federal legislative business;
       (4) Compensatory time off may be paid in lieu of overtime 
     compensation for any hours worked in excess of 60 hours in a 
     workweek. For overtime hours over 40 and up to 60 hours, the 
     employing office must pay appropriate overtime compensation 
     as otherwise required by the CAA. Of course, if the 
     requirements of section 7(f) are met, pay for the first 60 
     hours of employment could be governed by that section. This 
     limited use of compensatory time off rules is consistent with 
     the language and evident purpose of sections 203 (a)(3) and 
     (c)(3); it provides employing offices with some flexibility 
     and control over costs in this context; and, by requiring 
     employing offices to pay overtime for the first 20 hours of 
     overtime in a week, it provides sufficient disincentives 
     for employing offices to abuse the use of the provision; 
     and,
       (5) An employee who has accrued compensatory time off under 
     section 2, upon his or her request, shall be permitted by the 
     employing office to use such time within a reasonable period 
     after making the request, unless the employing office makes a 
     bona fide determination that the needs of the operations of 
     the office do not allow the taking of compensatory time off 
     at the time of request. An employee may renew the request at 
     a subsequent time. An employing office may, upon reasonable 
     notice, require an employee to use accrued compensatory time-
     off. Upon termination of employment, the employee shall be 
     paid for any unused compensatory time at the rate earned by 
     the employee at the time the employee receives such payment.
       The above rules are sufficiently similar to the provisions 
     of section 7(f) as to be ``comparable'' within the meaning of 
     section 203(c)(3). See Webster's Third New International 
     Dictionary 461 (1968) (``comparable'' defined as ``having 
     enough like characteristics or qualities to make comparison 
     appropriate,'' ``permitting or inviting comparison often in 
     one or two salient points,'' ``equivalent, similar''). In the 
     Board's judgment, these rules also best balance and 
     accommodate the rights and obligations of covered employees 
     and employing offices under the CAA.
       Finally, as to issues relating to compensatory time off 
     that accrued under other rules prior to January 23, 1996, the 
     effective date of the CAA, the Board concludes that its 
     regulations do not apply. Disputes over the use of such 
     accrued time off, even if they arise after January 23, 1996, 
     are not governed by these regulations and should be directed 
     to the authorities previously responsible for such rules.

2. The standard for determining when an employee's schedule ``directly 
          depends'' on the schedule of the House or the Senate

       Just as it is clear that the Board may authorize 
     compensatory time off in lieu of overtime compensation for 
     employees whose schedules ``directly depend'' upon the 
     schedules of the House or the Senate, it is equally evident 
     that Congress did not intend that it be made available to all 
     covered employees. Using words of limitation, the CAA states 
     that only those employees whose work schedules ``directly 
     depend'' on the schedule of the House or the Senate may 
     qualify for compensatory time off in lieu of overtime pay.
       Of course, as the comments demonstrate, the phrase 
     ``directly depend'' is not entirely free of ambiguity. In a 
     broad sense, the times in which the House or the Senate 
     convene to conduct legislative business will impact in 
     varying degrees on the schedule of practically all who work 
     on Capitol Hill or for Members of Congress, much like the 
     ripple effect of a pebble tossed into water. Thus, an 
     expansive interpretation of ``directly depends''--i.e., if it 
     need only be demonstrated that an employee's work hours at 
     any point were influenced to some extent by a daily session 
     of either legislative body--would make compensatory time off 
     almost universally available.
       There is no reason to believe that Congress intended such 
     an expansive interpretation of the statutory phrase. The term 
     ``directly'' connotes a narrower rather than a broader 
     meaning and, indeed, suggests that a relatively immediate 
     connection between the employee's work schedule and changes 
     in the schedule of the House or the Senate was contemplated. 
     Moreover, since sections 203(a)(3) and 203(c)(3) textually 
     refer to each other, and since the allowance of compensatory 
     time off in the context of regulations implementing section 
     203(c)(3) was to be the exception rather than the rule, a 
     narrower definition of ``directly depend'' is necessary to 
     honor the statutory text and structure (as well as the 
     general legislative history on the limited availability of 
     compensatory time off).
       The question remains, of course, how the term ``directly 
     depend'' should be defined. In the Board's judgment, the 
     following considerations are relevant:
       First, in making the ``schedule'' of the House and the 
     Senate determinative, Congress appears to have been focusing 
     on the floor activities that occur in each chamber. Each 
     body's ``schedule'' generally has meaning only in reference 
     to the times at which each House's respective leadership 
     plans to convene a daily session in order to conduct 
     legislative business. While the congressional leaders can 
     decide when to convene a session and what to place on the 
     calendar, the dynamic nature of the legislative process often 
     makes it difficult to control when business will be 
     concluded. For example, a session of the Senate may be 
     unexpectedly protracted by unlimited debate on an issue. 
     Similarly, the schedule of the House may be upset if a bill 
     is brought to the floor under an ``open rule'' that allows 
     unlimited amendments. Also, as recent experience has 
     demonstrated once again, both Houses are often required to 
     remain in session for extended hours in an effort to resolve 
     differences between the two Houses or between the Congress 
     and the President. This dynamic makes the schedules of the 
     House and the Senate highly irregular and, at times, long, 
     thereby requiring certain employees to work in excess of the 
     maximum workweek prescribed by the FLSA.
       Second, in using the adverb ``directly'' to modify 
     ``depend,'' Congress also appears to have required a 
     relatively close nexus between the floor activities of each 
     body and the work schedule of an eligible covered employee. 
     (See the floor statement of Senator Grassley at 141 Cong. 
     Rec. S624, Jan. 9, 1995: `` `Directly' is to be strictly 
     limited to those employees who are essentially floor 
     staff.'') From a functional standpoint, the practical reality 
     is that the conduct of legislative business in each chamber 
     requires the efforts of those who literally work in or 
     adjacent to each chamber--such as the legislative clerks, 
     those who staff the cloakrooms, those who provide security, 
     the reporters of debates, and the parliamentarians' staff. 
     Practically, the conduct of legislative business also 
     requires the efforts of some who are not located in either 
     chamber but whose work is directly linked to floor activity 
     on a day-to-day basis--such as those who operate the 
     microphones or the remote cameras that televise the 
     proceedings, those in the Document Rooms, those who 
     maintain the various legislative computer systems that 
     control the House voting system or that track the 
     proceedings, and those, like the staff of the legislative 
     counsel's offices, who must be available to address 
     substantive matters that may arise in the course of 
     deliberations. These personnel must generally be in 
     attendance, and their employing offices open and staffed, 
     if the two Houses of Congress are to conduct legislative 
     business. By the same token, during those periods when the 
     House or the Senate is not in session, the level of 
     required work may be considerably diminished, thus 
     affording such employees ample opportunity to utilize 
     accrued compensatory time-off.
        The Board recognizes that, in a sense, the work of 
     employing offices such as legislative committees and joint 
     committees is linked to the schedules of the House and the 
     Senate--at least when legislation reported out of such 
     committees is placed on the calendar for debate. The Board 
     also recognizes that, in the same sense, employees of 
     committee offices may sometimes have irregular work hours 
     that balloon with protracted consideration of their bills on 
     the floor. However, it is also true that the work of such 
     offices and employees tends not to ebb and flow in the same 
     sense or to the same degree as that of those offices and 
     employees more closely tied to floor activity. Moreover, 
     during those days when the House or the Senate is not in 
     session or has only an abbreviated pro forma session, these 
     committees still conduct hearings or at the very least their 
     staffs are likely to be engaged in a full range of activities 
     associated with considering legislation for hearing, for 
     markup or for oversight. These employing offices, thus, 
     maintain a schedule of activities that is separate from and 
     independent of the schedule of the House or the Senate. It, 
     therefore, makes much less sense to say that their employees 
     have schedules that ``directly depend'' upon the schedule of 
     either body, as contemplated by section 203(c)(3).
       Based on these considerations, the Board shall adopt a 
     definition of ``directly depends'' that requires the eligible 
     employee to perform work that directly supports the conduct 
     of business in legislative areas in the chamber and to work 
     hours that regularly change in response to the schedules of 
     the House or the Senate.

 3. The provisions of the FLSA as applied under section 203 of the CAA 
   authorize employing offices to utilize several methods to compute 
     overtime for employees who work irregular or fluctuating hours

        In so framing its rules, the Board understands that its 
     regulations under section 203(c)(3) will not themselves 
     resolve all of the concerns raised by commenters regarding 
     the ability of employing offices to anticipate and control 
     payroll costs associated with employees who work fluctuating 
     or irregular hours. But the Board frankly finds that many of 
     these concerns are simply concerns with the obligations that 
     the CAA has imposed on employing offices (just as the FLSA 
     imposes them on other employers); and the Board must 
     reiterate that it generally cannot and should not, in the 
     absence of authority to do so, attempt to resolve for 
     employing offices cost and other such concerns that derive 
     from FLSA compliance obligations under the CAA. Moreover, 
     many of the concerns that have been raised may be addressed 
     by employing offices by resort to methods available under the 
     FLSA to employers generally to potentially control their 
     total payroll and to offset costs due to overtime 
     compensation obligations incurred in a particular workweek. 
     Such methods are also available to employing offices under 
     the CAA, and many of the concerns raised by employing offices 
     may be adequately addressed through the use of these 
     mechanisms.
     
[[Page S195]]


           a. Section 7(f) of the FLSA and ``Belo Contracts''

        One method of reducing overtime costs available in some 
     situations under the FLSA is the so-called ``Belo'' contract, 
     a form of guaranteed compensation that includes a certain 
     amount of overtime. Codified by section 7(f) of the FLSA, 
     Belo contracts allow an employer ``to pay the same total 
     compensation each week to an employee who works overtime and 
     whose hours of work vary from week to week.'' 29 CFR section 
     778.403. See 29 CFR section 778.404, citing Walling v. A.H. 
     Belo Co., 316 U.S. 624 (1942). Such a contract affords to the 
     employee the security of a regular weekly income and benefits 
     the employer by enabling it to anticipate and control in 
     advance at least some part of its labor costs. A guaranteed 
     wage plan also provides a means of limiting overtime 
     computation costs so that wide leeway is provided for having 
     employees work overtime without increasing the cost to the 
     employer. 29 CFR section 778.404.
        Belo contracts may be used by employers where the 
     following four requirements of section 7(f) are met:
       (1) the arrangement is pursuant to a specific agreement 
     between the employee and the employer or to a collective 
     bargaining agreement;
       (2) the employee's duties necessitate irregular hours of 
     work;
       (3) the fluctuation in the employee's hours is not entirely 
     in the overtime range; and
       (4) the contract guarantees a weekly overtime payment not 
     to exceed 60 hours per week and the employee receives that 
     payment regardless of the number of hours actually worked.
       29 U.S.C. section 207(f); 29 C.F.R. sections 778.406, 
     778.407.
        Section 7(f) of the FLSA is applicable to covered 
     employees and employing offices under section 203(a) of the 
     CAA. Therefore, an employing office may utilize a ``Belo'' 
     contract where the above-referenced requirements of section 
     7(f) are satisfied.

                            b. Time off plans

        An alternative approach that is less complex than a 
     ``Belo'' contract is a time off plan. Under such a plan, an 
     employer lays off the employee a sufficient number of hours 
     during some other week or weeks of the pay period to offset 
     the amount of overtime worked (i.e., at the one and one-half 
     rate) so that the desired wage or salary for the pay period 
     covers the total amount of compensation, including the 
     overtime compensation, due the employee for each workweek 
     taken separately.
        A simple illustration of such a plan is as follows: An 
     employee is paid on a biweekly basis of $400 at the rate of 
     $200 per week for a 40 hour workweek. In the first week of 
     the pay period, the employee works 44 hours and would be due 
     40 hours times $5 plus 4 hours times $7.50, for a total of 
     $230 for the week. Payment of $400 at the end of the biweekly 
     pay period satisfies the monetary requirements of the FLSA, 
     if the employer permits the employee to work only 34 hours 
     during the second week of the pay period.
        The control of earnings by control of the number of hours 
     that an employee is permitted to work is the essential 
     principle of the time off plan. For this reason, such a plan 
     cannot be applied to an employee whose pay period is weekly, 
     nor to a salaried employee who is paid a fixed salary to 
     cover all hours that the employee may work in any particular 
     workweek or pay period. Further, the overtime hours cannot be 
     accumulated and the time off given in another pay period.
        Time off plans are authorized under section 7(a) of the 
     FLSA. See, e.g., Wage and Hour Administrator Opinion Letter, 
     issued 1950; Wage and Hour Opinion letter dated December 27, 
     1968. Thus, employing offices are authorized to use such 
     plans under section 203 of the CAA.

                 c. Fixed salary for fluctuating hours

        A third approach for dealing with fluctuating or irregular 
     work schedules of a salaried employee is for an employer to 
     have an understanding with the employee that the fixed salary 
     amount is to be considered straight time pay for all hours, 
     whatever the number, worked in a week. The FLSA permits such 
     an arrangement where two conditions are satisfied: (1) the 
     salary is sufficient to provide compensation to the employee 
     at a rate not less than the applicable minimum wage rate for 
     every hour worked in those workweeks in which the number of 
     hours that the employee works is greatest; and (2) the 
     employee receives extra compensation, in addition to such 
     salary, for all overtime hours worked at a rate not less than 
     one-half the employee's regular rate of pay. Since the salary 
     in such a situation is intended to compensate the employee at 
     straight time rates for whatever hours are worked in the 
     workweek, the regular rate of the employee will vary from 
     week to week and is determined by dividing the number of 
     hours worked in the workweek into the amount of the salary to 
     obtain the applicable hourly rate for the week. Payment for 
     overtime hours at one-half such rate in addition to the 
     salary satisfies the overtime pay requirement because such 
     hours have already been compensated at the straight time 
     regular rate under the salary arrangement.
       As with time off plans, fixed salaries for fluctuating 
     hours are permitted under section 7(a) of the FLSA. See 
     generally 29 CFR section 778.114. Thus, employing offices are 
     authorized to implement such schedules under the CAA, 
     provided that they meet the requirements thereunder.

   II. Adoption of Proposed Rules as Final Regulations under Section 
                  304(b)(3) and as Interim Regulations

        Having considered the public comments to the proposed 
     rules, the Board pursuant to section 304(b) (3) and (4) of 
     the CAA is adopting these final regulations and transmitting 
     them to the House and the Senate with recommendations as to 
     the method of approval by each body under section 304(c). 
     However, the rapidly approaching effective date of the CAA's 
     implementation necessitates that the Board take further 
     action with respect to these regulations. For the reasons 
     explained below, the Board is also today adopting and issuing 
     these rules as interim regulations that will be effective as 
     of January 23, 1996 or the time upon which appropriate 
     resolutions of approval of these interim regulations are 
     passed by the House and/or the Senate, whichever is later. 
     These interim regulations will remain in effect until the 
     earlier of April 15, 1996 or the dates upon which the House 
     and Senate complete their respective consideration of the 
     final regulations that the Board is herein adopting.
       The Board finds that it is necessary and appropriate to 
     adopt such interim regulations and that there is ``good 
     cause'' for making them effective as of the later of January 
     23, 1996, or the time upon which appropriate resolutions of 
     approval of them are passed by the House and the Senate. In 
     the absence of the issuance of such interim regulations, 
     covered employees, employing offices, and the Office of 
     Compliance staff itself would be forced to operate in 
     regulatory uncertainty. While section 411 of the CAA provides 
     that, ``if the Board has not issued a regulation on a matter 
     for which this Act requires a regulation to be issued, the 
     hearing officer, Board, or court, as the case may be, shall 
     apply, to the extent necessary and appropriate, the most 
     relevant substantive executive agency regulation promulgated 
     to implement the statutory provision at issue in the 
     proceeding,'' covered employees, employing offices and the 
     Office of Compliance staff might not know what regulation, 
     if any, would be found applicable in particular 
     circumstances absent the procedures suggested here. The 
     resulting confusion and uncertainty on the part of covered 
     employees and employing offices would be contrary to the 
     purposes and objectives of the CAA, as well as to the 
     interests of those whom it protects and regulates. 
     Moreover, since the House and the Senate will likely act 
     on the Board's final regulations within a short period of 
     time, covered employees and employing offices would have 
     to devote considerable attention and resources to 
     learning, understanding, and complying with a whole set of 
     default regulations that would then have no future 
     application. These interim regulations prevent such a 
     waste of resources.
       The Board's authority to issue such interim regulations 
     derives from sections 411 and 304 of the CAA. Section 411 
     gives the Board authority to determine whether, in the 
     absence of the issuance of a final regulation by the Board, 
     it is necessary and appropriate to apply the substantive 
     regulations of the executive branch in implementing the 
     provisions of the CAA. Section 304(a) of the CAA in turn 
     authorizes the Board to issue substantive regulations to 
     implement the Act. Moreover, section 304(b) of the CAA 
     instructs that the Board shall adopt substantive regulations 
     ``in accordance with the principles and procedures set forth 
     in section 553 of title 5, United States Code,'' which have 
     in turn traditionally been construed by courts to allow an 
     agency to issue ``interim'' rules where the failure to have 
     rules in place in a timely manner would frustrate the 
     effective operation of a federal statute. See, e.g., 
     Philadelphia Citizens in Action v. Schweiker, 669 F.2d 877 
     (3d Cir. 1982). As noted above, in the absence of the Board's 
     adoption and issuance of these interim rules, such a 
     frustration of the effective operation of the CAA would occur 
     here.
       In so interpreting its authority, the Board recognizes that 
     in section 304 of the CAA, Congress specified certain 
     procedures that the Board must follow in issuing substantive 
     regulations. In section 304(b), Congress said that, except as 
     specified in section 304(e), the Board must follow certain 
     notice and comment and other procedures. The interim 
     regulations in fact have been subject to such notice and 
     comment and such other procedures of section 304(b).
       In issuing these interim regulations, the Board also 
     recognizes that section 304(c) specifies certain procedures 
     that the House and the Senate are to follow in approving the 
     Board's regulations. The Board is of the view that the 
     essence of section 304(c)'s requirements are satisfied by 
     making the effectiveness of these interim regulations 
     conditional on the passage of appropriate resolutions of 
     approval by the House and/or the Senate. Moreover, section 
     304(c) appears to be designed primarily for (and applicable 
     to) final regulations of the Board, which these interim 
     regulations are not. In short, section 304(c)'s procedures 
     should not be understood to prevent the issuance of interim 
     regulations that are necessary for the effective 
     implementation of the CAA.
       Indeed, the promulgation of these interim regulations 
     clearly conforms to the spirit of section 304(c) and, in fact 
     promotes its proper operation. As noted above, the interim 
     regulations shall become effective only upon the passage of 
     appropriate resolutions of approval, which is what section 
     304(c) contemplates. Moreover, these interim regulations 
     allow more considered deliberation by 

[[Page S196]]
     the House and the Senate of the Board's final regulations under section 
     304(c).
       The House has in fact already signalled its approval of 
     such interim regulations both for itself and for the 
     instrumentalities. On December 19, 1995, the House adopted H. 
     Res. 311 and H. Con. Res. 123, which approve ``on a 
     provisional basis'' regulations ``issued by the Office of 
     Compliance before January 23, 1996.'' The Board believes 
     these resolutions are sufficient to make these interim 
     regulations effective for the House on January 23, 1996, 
     though the House might want to pass new resolutions of 
     approval in response to this pronouncement of the Board.
       To the Board's knowledge, the Senate has not yet acted on 
     H. Con. Res. 123, nor has it passed a counterpart to H. Res. 
     311 that would cover employing offices and employees of the 
     Senate. As stated herein, it must do so if these interim 
     regulations are to apply to the Senate and the other 
     employing offices of the instrumentalities (and to prevent 
     the default rules of the executive branch from applying as of 
     January 23, 1996).


                        III. METHOD OF APPROVAL

       The Board received no comments on the method of approval 
     for these regulations. Therefore, the Board continues to 
     recommend that (1) the version of the proposed regulations 
     that shall apply to the Senate and employees of the Senate 
     should be approved by the Senate by resolution; (2) the 
     version of the proposed regulations that shall apply to the 
     House of Representatives and employees of the House of 
     Representatives should be approved by the House of 
     Representatives by resolution; and (3) the version of the 
     proposed regulations that shall apply to other covered 
     employees and employing offices should be approved by the 
     Congress by concurrent resolution.
       With respect to the interim version of these regulations, 
     the Board recommends that the Senate approve them by 
     resolution insofar as they apply to the Senate and employees 
     of the Senate. In addition, the Board recommends that the 
     Senate approve them by concurrent resolution insofar as they 
     apply to other covered employees and employing offices. It is 
     noted that the House has expressed its approval of the 
     regulations insofar as they apply to the House and its 
     employees through its passage of H. Res. 311 on December 
     19, 1995. The House also expressed its approval of the 
     regulations insofar as they apply to other employing 
     offices through passage of H. Con. Res. 123 on the same 
     date; this concurrent resolution is pending before the 
     Senate.
       Accordingly, the Board of Directors of the Office of 
     Compliance hereby adopts and submits for approval by the 
     Congress and issues on an interim basis the following 
     regulations:


  Adopted Regulations--As Interim Regulations and As Final Regulations

Regulation defining ``Interns'' (implementing section 203(a)(3) of the 
                                  CAA)

       Section 1. An intern is an individual who:
       (a) is performing services in an employing office as part 
     of a demonstrated educational plan, and
       (b) is appointed on a temporary basis for a period not to 
     exceed 12 months; provided that if an intern is appointed for 
     a period shorter than 12 months, the intern may be 
     reappointed for additional periods as long as the total 
     length of the internship does not exceed 12 months.
       Section 2. The definition of intern does not include 
     volunteers, fellows or pages.
       [Senate version:] 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), but does 
     not include volunteers, fellows or pages.

                    Duration of interim regulations

       These interim regulations for the House, the Senate and the 
     employing offices of the instrumentalities are effective on 
     January 23, 1996 or on the dates upon which appropriate 
     resolutions are passed, whichever is later. The interim 
     regulations shall expire on April 15, 1996 or on the dates on 
     which appropriate resolutions concerning the Board's final 
     regulations are passed by the House and the Senate.


  Adopted Regulations--As Interim Regulations and As Final Regulations

Regulation concerning employees whose work schedules directly depend on 
      the schedule of the House of Representatives or the Senate 
              (implementing section 203(c)(3) of the CAA)

       Section 1. For the purposes of this Part, a covered 
     employee's work schedule ``directly depends'' on the schedule 
     of the House of Representatives [the Senate] only if the 
     eligible employee performs work that directly supports the 
     conduct of legislative or other business in the chamber and 
     works hours that regularly change in response to the schedule 
     of the House and the Senate.
       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) of the Fair Labor Standards Act 
     (``FLSA'') to covered employees and employing office, by 
     employing any employee for a workweek in excess of the 
     maximum workweek applicable to such employee under section 
     7(a) of the FLSA where the employee's work schedule directly 
     depends on the schedule of the House of Representatives 
     [Senate] within the meaning of section 1, and: (a) the 
     employee is compensated at the rate of time-and-a-half in pay 
     for all hours in excess of 40 and up to 60 hours in a 
     workweek, and (b) the employee is compensated at the rate of 
     time-and-a half in either pay or in time off for all hours in 
     excess of 60 hours in a workweek.
       Section 3. An employee who has accrued compensatory time 
     off under section 2, upon his or her request, shall be 
     permitted by the employing office to use such time within a 
     reasonable period after making the request, unless the 
     employing office makes a bona fide determination that the 
     needs of the operations of the office do not allow the taking 
     of compensatory time off at the time of the request. An 
     employee may renew the request at a subsequent time. An 
     employing office may also, upon reasonable notice, require an 
     employee to use accrued compensatory time-off.
       Section 4. An employee who has accrued compensatory time 
     authorized by this regulation shall, upon termination of 
     employment, be paid for the unused compensatory time at the 
     rate earned by the employee at the time the employee receives 
     such payment.

                    Duration of interim regulations

       These interim regulations for the House, the Senate and the 
     employing offices of the instrumentalities are effective on 
     January 23, 1996 or on the dates upon which appropriate 
     resolutions are passed, whichever is later. The interim 
     regulations shall expire on April 15, 1996 or on the dates on 
     which appropriate resolutions concerning the Board's final 
     regulations are passed by the House and the Senate.

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