April 1, 2016
M E M O R A N D U M
TO: IRS Chapter Presidents
RE: Telework Issues Regarding Reporting to the Office Under Article 50, Section 1(A)(4)
At the Saratoga training conference earlier this week, we heard from our local leaders that IRS is demanding that employees approved for telework report to the office once a week or twice-a-pay-period or they may be removed from Frequent Telework. IRS is claiming that Article 50, Section 1, (A)(4) justifies this position. This is the second time in the past month that we have heard of this. This interpretation of our contract is incorrect. Article 50 Section 1(A)(4) provides:
The employee may be removed from Telework if he or she fails to report to his or her assigned POD within the locality pay area at least two (2) days each pay period; or if his or her work location varies on a recurring basis and he or she fails to regularly perform work within the locality pay area.
This provision must be read in conjunction with the rest of the Article 50, Section 1(A)(2) language that establishes that the telework location must be within a 150 mile radius of the employee’s assigned POD, the locality pay statute and OPM regulations found at 5 C.F.R. 531, Part F entitled Locality Based Comparability Payments.
Briefly, 5 U.S.C. Section 5304 establishes that locality pay shall be payable within each locality determined to have a pay disparity of greater than (5) five percent as determined by the Federal Salary Counsel or pay agent. OPM has then established over (30) thirty locality pay areas throughout the United States. Those areas not entitled to locality pay are called Rest of U.S. (RUS) 5 C.F.R. 531.603.
In order to ensure that employees receive the proper locality rate of pay, the OPM regulations establish the standards for determining where an employee’s official worksite is located. If your worksite is within the locality pay area you get the locality pay rate established for that area. 5 CFR 531.604. When determining the official worksite for locality pay purposes for an employee covered by a telework agreement, the regulations further provide that the employee’s official worksite is the regular worksite where the employee is scheduled to work at least twice each biweekly pay period on a regular and recurring basis, 5 C.F.R. 605(d)(1).
Significantly, the regulation also provides:
However, in the case of such an employee whose work locations varies on a recurring basis, the employee need not work at least twice each biweekly pay period at the regular official worksite (where the employees work activities are based) as long as the employee is regularly performing work within the locality pay area for that worksite.
The OPM Fact Sheet “Official Worksite for Location-Based Pay Purposes”, which I have attached, states this Section 531.605(d)(1) regulatory requirement for locality pay entitlement as follows:
In the case of a telework employee whose work location varies on a recurring basis, the employee need not report at least twice each biweekly pay period to the regular worksite established by the agency as long as the employee is performing work within the same geographic area (established for the purpose of a given pay entitlement) as the employee’s regular worksite. For example, if a telework employee with a varying work location works at least twice each biweekly pay period on a regular and recurring basis in the same locality pay area in which the established official worksite is located, the employee need not report at least twice each biweekly pay period to that official worksite to maintain entitlement to the locality payment for that area.
5 C.F.R. 531.605(d)(2) also provides for “temporary” exceptions to this twice per pay period rule such as recovery from an injury or medical condition, approved leave from work for an extended absence from work, an emergency such as severe weather, which temporarily prevents an employee from commuting to his/her official workstation or the employee is away from the area on temporary duty status or detail.
Indeed, IRM 6.800.2.8(2)(A) specifically acknowledges the following as an exception for the twice-a-pay-period reporting requirements:
If an employee’s work location varies on a daily basis (e.g. a revenue agent working at a taxpayer site) then the employee need not report for the official IRS duty station twice-a-pay-period as long as the employee is performing work within the locality pay area of their official IRS workstation on a regular and recurring basis.
The IRM incorrectly states this is a “temporary exception”. The regulations at 5 C.F.R. 531.605(d)(1) establishing this exception have nothing to do with the temporary nature of the work. 5 C.F.R. 531.605(d)(2) identifies the temporary exceptions and this is not one of them. Naturally, per Article 2, Section 1, the regulations, not the IRM govern this situation.
Thus, if a Frequent Telework approved employee works from home and his/her residence in the locality pay area, there is no twice-a-pay-period requirement to report to the office. If a Frequent Telework approved Field employee works from his/her home and/or at a taxpayer’s location in the locality pay area on a regular and recurring basis, the same applies.
In addition, we addressed this issue of the twice-a-pay-period reporting requirement for telework employees whose work locations are not in a designated locality pay area, but in the “rest of the United States” (RUS). The National Parties Implementation Letter for the 2016 National Agreement States:
Article 50 – Telework, Section 1A4
To meet the reporting requirement for employees whose locality pay area is in the “rest of the United States,” the employee must be regularly performing work within the commuting area of his or her assigned POD or in the geographic area where work has been assigned by his/her supervisor. This does not alter the reporting requirement contained in this subsection.
This makes clear that Frequent Telework approved employees located in the rest of the U.S. locality pay category satisfy the twice-a-pay-period reporting required by regularly performing work in the assigned POD’s commuting area or in the geographic area when the supervisor assigns the work.
The bottom line is that the language of Article 50, Section 1(A)(4) concerning an employee being removed from Telework if not reporting to the office twice-a-pay-period applies only in a situation where an employee fails to work in the locality pay area on a regular and recurring basis, thus making them ineligible for the locality pay rate designated for their official worksite. Removal from Frequent Telework was the solution that we negotiated with IRS to ensure compliance with the governing locality pay regulations.
Telework is one of the most significant benefits of our hard fought negotiations with IRS. In the past we have had to address misinformation put out by IRS concerning reporting to the office and the negotiated benefit of being able to work 150 miles from the POD. History may be repeating itself. Please inform telework employees that this twice-a-pay-period reporting requirement only applies to Frequent Telework employees who do not perform work either at home or in the field on a regular and recurring basis within the locality pay area. Feel free to provide a copy of this memo and the attachment to employees.
Most of the questions you may have on this will hopefully be contained in this memo. Your National Field Representative will be able to assist you if you need any further assistance.
Anthony M. Reardon