Archive for April, 2010

Is it illegal for management to let union-represented employees have compressed workweeks or flexible work hours if that’s not provided for in the union contract?

April 2, 2010

Yes, it is illegal.  The law authorizing compressed workweeks and flexible work hours expressly says that these alternatives cannot be used unless agreed to in a union contract:
5 U.S.C. § 6130.  Application of programs in the case of collective bargaining agreements

(a) (1) In the case of employees in a unit represented by an exclusive representative, any flexible or compressed work schedule, and the establishment and termination of any such schedule, shall be subject to the provisions of this subchapter and the terms of a collective bargaining agreement between the agency and the exclusive representative.
(2) Employees within a unit represented by an exclusive representative shall not be included within any program under this subchapter except to the extent expressly provided under a collective bargaining agreement between the agency and the exclusive representative.

It might or might not be an unfair labor practice, as defined by 5 U.S.C. § 7116(a)(2), for management to allow these flexibilities without the written agreement of the union, but who cares?  Proving an unfair labor practice usually only results in a posting some years after the fact.  The important point is that management’s unilateral establishing of alternative work schedules entitles each employee to time and half for each hour of work over eight hours in a day:

5 C.F.R. § 551.501 Overtime pay.

(a) An agency shall compensate an employee who is not exempt under subpart B of this part for all hours of work in excess of 8 in a day or 40 in a workweek at a rate equal to one and one-half times the employee’s hourly regular rate of pay, except that an employee shall not receive overtime compensation under this part –

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(6) For hours of work that are not “overtime hours,” as defined in 5 U.S.C. 6121, for employees under flexible or compressed work schedules . . .

As I read this, if an agency lets employees work four 10 hour days, but this isn’t provided for in a union contract, those employees are entitled to time and half for two hours each day they worked.  Same thing with flexible work schedules.  If an employee works nine hours one day, and has been given a credit hour that he used to in order to work seven hours on another day, he is still entitled to time and half for the overtime hour if the flexibility is not provided for in the contract.

The entitlement goes back three years, by the way.