WHEN IS A MAXIFLEX EMPLOYEE TARDY?

MSPB just overturned the removal of an employee on a Maxiflex schedule.  The agency thought the employee had been tardy when he failed to report to work at an early enough time to fulfill his obligation to complete 80 hours of work in the pay period. This case shines a bright light on just what can the agency do, or be allowed to do by the collective bargaining agreement, when an employee fails to work the full 80 hours of a maxiflex pay period.

This particular maxiflex plan required that employees complete their work between 7 a.m. and 5 p.m. on Monday through Friday.  The agency assumed that meant that employee would have to report no later than 8:30 a.m. each day to complete eight hours of work with a 30 minute lunch period before 5 p.m. ended the day.  When the employee in question got to the end of two successive pay periods and failed to report to work early enough on the last day to log a total of 80 work hours over the pay period, the agency charged the employee with being tardy and fired him.

The Board decided that, “… the agency failed to establish by preponderant evidence that the appellant was required to report to work by 8:30 a.m.”  It pointed to the facts that –

• the maxiflex plan did not establish any specific core hours of start times, which rendered the de facto agency’s assumption of one irrelevant;
• when the employee previously did the same thing the agency charged him with AWOL, not tardiness; and
• two agency memoranda addressing the employee’s work hours contradicted one another.

The core of the Board’s view of the case is best described in the following passage:

The practical matter of having to report at 8:00 a.m. in order to log 8 hours and 30 minutes of work time on a given date does not equate to being scheduled to report at that time. Second, we disagree with the basic premise that the appellant failed to meet his 80-hour pay period requirement because he was “late” for work 1 day. Although the appellant could have met his 80-hour requirement by working from 8:00 a.m. to 5:00 p.m. on September 6, 2013, he could have met the requirement in other ways as well, such as working more hours on another day or requesting and obtaining leave to cover the deficiency. In other words, the appellant fell short of his 80-hour requirement not because of his arrival time on the last day of the pay period but because of the sum of his actions throughout the entire pay period. We therefore find that the appellant was not scheduled to report for duty at 8:00 a.m. on September 6, 2013, and, consequently, that the agency failed to show that he was tardy on that date.

This case is not about whether the agency has the authority to set the es work schedule or to place limits on any flexible schedule. Rather, this case concerns what schedule the agency actually sets for the appellant.

Nonetheless, it leaves practitioners with the question of what to do when a maxiflex employee fails to work a full 80 hours a pay period due to his personal scheduling decisions.  Obviously, the agency can fill in the gap by approving annual leave or granting LWOP.  But it appears the Board will allow it to charge the employee with AWOL and begin disciplinary action for AWOL, not tardiness.  Rather than send the employee and agency down those paths, it seems to us that the better course would be for contract negotiators to anticipate that this will happen occasionally and to spell out a penalty short of AWOL or discipline, e.g., two failures to work a full pay period over a set period of time permits the agency to remove the employee temporarily from maxiflex or to set specific start and quit times.