2011-21397. Pay for Sunday Work

AGENCY:

Office of Personnel Management.

ACTION:

Final rule.

SUMMARY:

The U.S. Office of Personnel Management is issuing final regulations to implement the ruling in the case of Fathauer v. United States, 566 F.3d 1352 (Fed. Cir. 2009). In this decision, the United States Court of Appeals for the Federal Circuit ruled that part-time employees are covered under the provisions of 5 U.S.C. 5546(a), the statute governing the payment of Sunday premium pay for work performed on Sundays. The revised Sunday premium pay regulations eliminate references to “full-time” employees, which will permit Sunday premium payments to part-time employees, in accordance with 5 U.S.C. 5546(a). Consistent with the reasoning in the Fathauer decision, OPM has determined that part-time prevailing rate employees are also entitled to payment of Sunday premium pay, pursuant to 5 U.S.C. 5544(a). Intermittent employees continue to be excluded from earning Sunday premium pay because of the nature of their appointment.

DATES:

This rule is effective September 22, 2011.

FOR FURTHER INFORMATION CONTACT:

David Barash by telephone at [phone]; by fax at [phone]; or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

On April 9, 2010, the U.S. Office of Personnel Management (OPM) issued proposed regulations at 75 FR 18133 to implement the decision in Fathauer v. United States, 566 F.3d 1352 (Fed. Cir. 2009), in which the court determined that part-time employees are covered under the Sunday premium pay statute at 5 U.S.C. 5546(a).

Background

Under the Fathauer decision, the United States Court of Appeals for the Federal Circuit held that the definition of “employee” in 5 U.S.C. 5546(a) is unambiguous under the plain language of the statute and concluded that part-time employees are covered under the Sunday premium pay statute at 5 U.S.C. 5546(a). Consequently, we have revised the Sunday premium pay regulations to provide that part-time employees are entitled to premium pay for Sunday work.

OPM issued a compensation policy memorandum (CPM-2009-21, December 8, 2009) to inform departments and agencies of the Fathauer decision and to provide guidance for processing administrative claims for back pay. The guidance covers General Schedule and other employees covered by 5 U.S.C. 5546(a) and 5 CFR 550.171(a) and prevailing rate employees (wage grade employees) covered by 5 U.S.C. 5544(a) and 5 CFR 532.509. Based on the Fathauer decision, eligible part-time employees are entitled to Sunday premium pay under 5 U.S.C. 5546(a), effective as of May 26, 2009.

Eliminate Restriction for Sunday Premium Pay to Full-Time Employees Only

OPM's final regulations amend §§ 550.103 and 550.171(a) to remove references to “full-time” employee, which eliminate the restriction on the payment of Sunday premium pay to full-time employees only. The final regulations clarify, in accordance with the Fathauer decision, that part-time employees who are regularly scheduled to perform work on a Sunday are entitled to Sunday premium pay for the non-overtime hours worked. However, intermittent employees will continue to be excluded from earning Sunday premium pay because of the nature of their appointment and irregular work schedule. Sunday premium pay may be paid only to full-time and part-time employees who have Sundays as part of their non-overtime regularly scheduled tour of duty.

Prevailing Rate Employees

OPM applied the reasoning in the Fathauer decision to determine that part-time prevailing rate employees are covered under the Sunday premium pay provisions of 5 U.S.C. 5544(a) (also effective as of May 26, 2009). While OPM's regulation at § 532.509 does not reference either part-time or full-time employees, we are making a clarifying amendment to this section. Currently § 532.509 states that a wage employee whose regular work schedule includes an 8-hour period of service which is not overtime work, a part of which is on Sunday, is entitled to additional pay under the provisions of 5 U.S.C. 5544. We are amending § 532.509 to clarify that a wage employee is entitled to Sunday pay for a period of service, a part of which is on Sunday, of up to 8 hours. This clarification is based on a Comptroller General opinion (46 Comp. Gen. 337 (1966)), that the period of service entitling an employee to Sunday premium pay may be less than 8 hours.

Discussion of Comments

The 60-day comment period for the proposed regulations ended on June 8, 2010. We received five comments in response to the proposed regulations, one from a national union organization and four from individual commenters. As explained below, OPM is adopting the proposed regulations as final regulations without further changes.

Two of the commenters questioned the use of Sunday premium pay and questioned the cost to taxpayers. These two comments are beyond the scope of this regulation. Sunday premium pay is authorized by statute. We are merely altering the Sunday premium pay regulations to ensure part-time employees are not excluded from receiving this entitlement pursuant to the statute at 5 U.S.C. 5546(a), consistent with a decision of the United States Court of Appeals for the Federal Circuit.

Administrative Claims

The union organization supported the proposed rules, but expressed concern that agencies may not notify employees in a timely manner of their right to file administrative pay claims. The union urged OPM to take more aggressive action by requiring agencies to advise part-time employees promptly of their right to file claims. While agencies are responsible for notifying their employees regarding actions that affect them, OPM took a proactive role in advising agencies in CPM 2009-21 that they should inform employees of the holding by the Court of Appeals in order to give notice to potential claimants. OPM provided thorough guidance in its memorandum and advised on the effective date of the decision and the time limitations for back pay claims permitted by the Barring Act of 1940, and noted that agencies could use the memorandum to inform employees of the Fathauer decision. OPM also provided notification to employees through its Web site and list server, published the proposed Sunday premium pay rule changes in the Federal Register as official notice to the public, and required agencies to post a notice of the rule change in a prominent place for employees to view.

The union organization also believes that OPM should issue regulations directing agencies to pay employees Sunday premium pay retroactive to May 26, 2009, without the need to file an administrative claim. It asserts that no administrative claim is necessary, which it believes would be consistent with the approach OPM used in issuing regulations to implement agency reimbursement provisions of Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act). However, Title II of the No FEAR Act contains provisions for agency reimbursement of the Judgment Fund for payment made to employees because of violations of antidiscrimination and whistleblower protection laws, and/or retaliation claims arising from the assertion of rights under those laws. Unlike the compensation claims process, the No FEAR reimbursement rules are not subject to the provisions of the Barring Act or the Back Pay Act of 1966 (as amended) and apply specifically to one Government agency reimbursing another. Therefore, the administrative claims process is the appropriate means for employees to recover any unpaid Sunday premium pay owed them as a result of the Fathauer decision.

Employee Coverage

One commenter thought OPM diverged from the analysis of the Fathauer decision by limiting Sunday premium pay only to full-time and part-time employees in which Sundays are part of their regularly scheduled tour of duty. The commenter asserted that the proposed regulations do not reflect the Court of Appeals conclusions regarding the definition of “employee,” (i.e., generally, “those who work for pay”), and “full-time and part-time” workers do not encompass all types of employees who should be eligible to earn Sunday premium pay. The commenter also stated that the statutory requirement in which an employee performs work during a “regularly scheduled” period of service is unduly restrictive.

Another commenter also recommended that intermittent employees should receive Sunday premium pay. The individual reasoned that since intermittent employees may earn overtime pay under 5 U.S.C. 5542(a), they should also be permitted to earn Sunday premium pay. The commenter further noted that Sunday work imposes an inconvenience on all employees, and referred to the Court of Appeals conclusion regarding the definition of an “employee.”

OPM disagrees with the commenters' recommendations. Employees, within the meaning of 5 U.S.C. 5546(a), are entitled to Sunday premium pay when they work a “regularly scheduled” 8 hour period of service which is not overtime work, a part of which falls on Sunday. OPM, by regulation, has defined “intermittent employment” as “employment without a regularly scheduled tour of duty.” (See 5 CFR 340.401(b)). Accordingly, employees who are correctly classified as intermittent employees may not receive Sunday premium pay because, by definition, they do not perform regularly scheduled work.

Executive Order 13563 and Executive Order 12866

The Office of Management and Budget has reviewed this rule in accordance with E.O. 13563 and 12866.

Regulatory Flexibility Act

I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will apply only to Federal agencies and employees.

List of Subjects

5 CFR Part 532

• Administrative practice and procedure
• Freedom of information
• Government employees
• Reporting and recordkeeping requirements

5 CFR Part 550

• Administrative practice and procedure
• Claims
• Government employees
• Wages

U.S. Office of Personnel Management.

John Berry,

Director.

Accordingly, OPM amends 5 CFR parts 532 and 550 as follows:

PART 532—PREVAILING RATE SYSTEMS

1. The authority citation for part 532 continues to read as follows:

Authority: 5 U.S.C. 5343, 5346; § 532.707 also issued under 5 U.S.C. 552.

2. Revise § 532.509 to read as follows:

§ 532.509

Pay for Sunday work.

A wage employee whose regular work schedule includes a period of service of up to 8 hours which is not overtime work, a part of which is on Sunday, is entitled to additional pay under the provisions of section 5544 of title 5, United States Code.

PART 550—PAY ADMINISTRATION (GENERAL)

Subpart A—Premium Pay

3. The authority citation for subpart A of part 550 continues to read as follows:

Authority: 5 U.S.C. 5304 note, 5305 note, 5504(d), 5541(2)(iv), 5545a(h)(2)(B) and (i), 5547(b) and (c), 5548, and 6101(c); sections 407 and 2316, Pub. L. 105-277, 112 Stat. 2681-101 and 2681-828 (5 U.S.C. 5545a); E.O. 12748, 3 CFR, 1992 Comp., p. 316.

4. In § 550.103, revise the definition of Sunday work to read as follows:

§ 550.103

Definitions.

* * * * *

Sunday work means nonovertime work performed by an employee during a regularly scheduled daily tour of duty when any part of that daily tour of duty is on a Sunday. For any such tour of duty, not more than 8 hours of work are Sunday work, unless the employee is on a compressed work schedule, in which case the entire regularly scheduled daily tour of duty constitutes Sunday work.

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5. In § 550.171, revise paragraph (a) to read as follows:

§ 550.171

Authorization of pay for Sunday work.

(a) An employee is entitled to pay at his or her rate of basic pay plus premium pay at a rate equal to 25 percent of his or her rate of basic pay for each hour of Sunday work (as defined in § 550.103).

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