Telework for Executive Agency Employees: A Side-by-Side Comparison of Legislation Pending in the 111th Congress
Released: 2010-10-05T00:00:00

Background

The 111 th Congress is considering legislation ( S. 707 and H.R. 1722 ) to foster the development of telework in executive agencies of the federal government.

Senator Daniel Akaka, for himself and Senator George Voinovich, introduced S. 707 , the Telework Enhancement Act of 2009, on March 25, 2009, and it was referred to the Senate Committee on Homeland Security and Governmental Affairs. In his statement upon introducing the bill, Senator Akaka stated that the legislation would "provide Federal agencies with an important tool to remain competitive in the modern workplace and would offer a flexible option for human capital management." Furthermore, he stated that the bill "prohibits discrimination against employees who chose to telework, guaranteeing those employees will not be disadvantaged in performance evaluations, pay, or benefits." Senator Voinovich's statement emphasized that the legislation "helps ensure that executive agencies better integrate telework into their human capital planning, establishes a level playing field for employees who voluntarily elect to telework, and improves program accountability." He noted that, telework "participation is far short of what it should be and what the Federal workforce needs if our government is to remain an employer of choice." The committee marked up the legislation on May 20, 2009, and, by voice vote, ordered it to be reported with an amendment favorably. The amendment, offered by Senator Tom Coburn and agreed to by voice vote, would amend 5 U.S.C. §5710 by amending subsections (a)(1) and (e) and adding a subsection (f) to authorize a test program for travel expenses at the Patent and Trademark Office. An estimate prepared by the Congressional Budget Office determined that administrative costs in the federal agencies would increase by $5 million in 2010, and by $25 million over the 2010-2014 period as S. 707 is implemented. The Senate Committee on Homeland Security and Governmental Affairs reported S. 707 ( S.Rept. 111-177 ) on May 3, 2010. The Senate agreed to the committee amendments, including a title change, and passed S. 707 , the Telework Enhancement Act of 2010, under unanimous consent on May 24, 2010.

Representative John Sarbanes, for himself and Representatives Frank Wolf, Gerald Connolly, Stephen Lynch, Danny Davis, Jim Moran, and C.A. Dutch Ruppersberger, introduced H.R. 1722 , the Telework Improvements Act of 2010, on March 25, 2009, and the bill was referred to the House Committee on Oversight and Government Reform. The legislation would amend Title 5 of the United States Code by adding a new Chapter 65 entitled "Telework." Representative Sarbanes, upon introducing the bill, stated that it "encourages a uniform and consistent telework policy across the federal government, while imposing strict oversight and accountability that will ensure the success of this pragmatic yet innovative workforce management policy." He expressed the expectation that the bill will "bolster the federal workforce, reduce traffic and carbon emissions, and improve the quality of life for our dedicated civil servants." The House Subcommittee on Federal Workforce, Postal Service, and the District of Columbia marked up H.R. 1722 on March 24, 2010. The subcommittee, by voice vote, agreed to a manager's amendment, offered by Subcommittee Chairman Representative Lynch, and an amendment, offered by Representative Connolly, related to continuity of operations and telework, and then reported the bill to the House Committee on Oversight and Government Reform, favorably, as amended. Representative Connolly withdrew a second amendment before it could be considered that would have provided for the establishment and operation of a National Telework Research Center at an institution of higher education. The full committee marked up the bill on April 14, 2010, and, by voice vote, agreed to a manager's amendment, offered by Committee Chairman Representative Edolphus Towns, and amendments offered by Representatives Jason Chaffetz, related to telework managing officers, and Gerald Connolly, related to OPM research on telework. The committee then ordered H.R. 1722 to be reported, as amended, to the House of Representatives. The House Committee on Oversight and Government Reform reported H.R. 1722 ( H.Rept. 111-474 ) on May 4, 2010. An estimate prepared by the CBO determined that administrative costs in the federal agencies would increase by $2 million in 2010, and by $30 million over the 2010-2015 period as H.R. 1722 is implemented. The House began consideration of the bill on May 5, 2010. A motion to suspend the rules and pass H.R. 1722 , as amended, failed by the Yeas and Nays (2/3 required) 268-147 ( Roll No. 251 ) on May 6, 2010.

On July 13, 2010, the House Committee on Rules reported the rule for the consideration of H.R. 1722 , H.Res. 1509 , to the House. The next day the House agreed to the rule on a 238-180 (Roll No. 438) vote after the previous question was ordered on a 232-184 (Roll No. 437) vote. Pursuant to the rule, the amendment in the nature of a substitute recommended by the House Committee on Oversight and Government Reform was considered as adopted. Following debate on the bill, the House agreed to a motion offered by Representative Darrell Issa to recommit the bill to the committee with instructions to report the bill back to the House forthwith with an amendment. The House agreed to the motion on a 303-119 (Roll No. 440) vote. Subsequently, Representative Lynch reported the bill back to the House with the amendment and the amendment was agreed to by voice vote. The House passed H.R. 1755 , as amended, on a 290-131 (Roll No. 441) vote on July 14, 2010. The title of the bill also was amended. The amendment placed specific limitations on the authorization of telework. An employee would not be authorized to telework if any of the following apply to him or her:

(A) The employee has a seriously delinquent tax debt. Such a debt would be defined as an outstanding debt under the Internal Revenue Code of 1986 for which a notice of lien has been filed in public records pursuant to section 6323 of such Code. Not included under the definition would be a debt that is being paid in a timely manner under an agreement under sections 6159 or 7122 of the Code; a debt for which a levy has been issued under section 6331 of the Code upon accrued salary or wages (or, in the case of an applicant for employment, a debt for which the applicant agrees to be subject to a levy issued upon accrued salary or wages); and a debt for which a collection due process hearing under section 6330 of the Code, or relief under subsection (a), (b), or (f) of section 6105 of the Code, is requested or pending. OPM would prescribe regulations to implement this provision. The regulations would provide that an individual would be given a reasonable amount of time to demonstrate that his or her debt is not included under the definition of a seriously delinquent tax debt.

(B) The employee has been officially disciplined for violations of subpart G of the Standards of Ethical Conduct for Employees of the Executive Branch for viewing, downloading, or exchanging pornography, including child pornography on a federal government computer or while performing official federal government duties.

(C) The employee received a payment under the Low-Income Home Energy Assistance Act of 1981 but was ineligible to receive the payment under the criteria described in 42 U.S.C. §8624(b)(2).

(D) The employee has been officially disciplined for being absent without permission for more than five days in any calendar year.

Furthermore,

An agency could not permit employees to telework unless the agency head certifies to the OPM Director that implementation of the policy will result in savings to the agency.

Any time during which an employee teleworks may not be treated as 'official time' for purposes of the authority to carry out any activity under 5 U.S.C. §7131[on official time for negotiation of collective bargaining agreement].

Any employee who, while teleworking pursuant to a policy established under Chapter 65 of Title 5, United States Code , creates or receives a Presidential record or Vice-Presidential record within the meaning of Chapter 22 of Title 44, United States Code , through a non-official electronic mail account, a social media account, or any other method (electronic or otherwise), would electronically copy the record into the employee's official electronic mail account.

The Senate received H.R. 1722 on July 15, 2010, and it was referred to the Committee on Homeland Security and Governmental Affairs. The committee discharged the bill under unanimous consent on September 29, 2010. The Senate agreed to an amendment (S.Amndt. 4689) in the nature of a substitute to H.R. 1722 , offered by Senator Richard Durbin, under unanimous consent, and then passed H.R. 1722 , as amended, under unanimous consent, on September 30, 2010. The amendment, among other provisions, incorporated several provisions from the House-passed bill related to employees who would not be eligible to telework, information and security protections for systems used while teleworking, guidance on purchasing computer systems that enable and support telework, and research on telework to be undertaken by the OPM Director. The amendment added a provision that would require OPM to consult with the National Archives and Records Administration on policy and guidance for telework related to efficient and effective records management and preservation, including records of the President and Vice President. Any House action to concur in the Senate amendment may occur in the lame duck session scheduled to convene on November 15, 2010.

As passed by both the Senate and the House, H.R. 1722 would define telework as a work flexibility arrangement under which an employee performs the duties and responsibilities of his or her position, and other authorized activities, from an approved worksite other than the location from which the employee would otherwise work.

The bill would require the heads of executive agencies to establish policies under which employees (with some exceptions) could be eligible to participate in telework. The policies on telework would have to be established within 180 days after enactment (Senate-passed H.R. 1722 ) or within one year after the enactment (House-passed H.R. 1722 ) of the new Chapter 65 of Title 5 United States Code . Employee participation in telework must not diminish either employee performance or agency operations (Senate-passed H.R. 1722 ) or agency operations and performance (House-passed H.R. 1722 ).

In the executive agencies, employees not eligible for telework generally would include those whose duties involve the daily direct handling of secure materials determined to be inappropriate for telework by the agency head or on-site activity that cannot be handled remotely or at an alternative worksite (Senate-passed H.R. 1722 ) or the daily direct handling of classified information or are such that their performance requires on-site activity which cannot be carried out from a site removed from the employee's regular place of employment (House-passed H.R. 1722 ). Under the Senate-passed version of the bill, an employee would have to enter into a written agreement with the agency to participate in telework. H.R. 1722 , as passed by the Senate and the House, would require that a Telework Managing Officer, who would be responsible for implementing the telework policies, be appointed for each executive agency. Each agency also would be required to provide training to managers, supervisors, and employees participating in telework.

Telework would be incorporated into Continuity of Operations (COOP) plans under the legislation. The Senate-passed H.R. 1722 provides that each executive agency would incorporate telework into its COOP plan and, when operating under COOP, that plan would supersede any telework policy. Under the House-passed H.R. 1722 , the agency head, for agencies named in 31 U.S.C. §901(b)(1)(2), would be required to ensure that telework is incorporated into its COOP plans and uses telework in response to emergencies.

The Senate-passed and House-passed H.R. 1722 also would require the Director of the Office of Personnel Management (OPM) to submit annual reports on telework to Congress, and the Comptroller General (CG) to review the OPM report and then annually report to Congress on the progress of executive agencies in implementing telework. The CG would be required to annually submit a report to Congress on telework at the Government Accountability Office (GAO). H.R. 1722 , as passed by the Senate, would require the Chief Human Capital Officers (CHCOs) to annually report to the CHCO Council chair and vice-chair on telework implementation by their agencies.

Under the Senate-passed and House-passed H.R. 1722 , test programs for telework travel expenses would be authorized. Such programs would be authorized for seven years and no more than 10 programs could be conducted simultaneously. As passed by the Senate, H.R. 1722 also would authorize a test program for telework travel expenses at the Patent and Trademark Office.

Table 1 , below, compares the provisions of S. 707 , as passed by the Senate, and H.R. 1722 , as passed by the House of Representatives and the Senate.