2010-8154. Pay for Sunday Work

AGENCY:

Office of Personnel Management.

ACTION:

Proposed rule.

SUMMARY:

The U.S. Office of Personnel Management is issuing proposed regulations that would 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 would eliminate references to “full-time” employees, which will permit Sunday premium payments to part-time employees, pursuant to 5 U.S.C. 5546(a). Prevailing rate employees are entitled to payment of Sunday premium pay, pursuant to 5 U.S.C. 5544(a). Consistent with the reasoning in the Fathauer decision, OPM has determined that part-time prevailing rate employees are covered under the provisions of 5 U.S.C. 5544(a).

DATES:

Comments must be received on or before June 8, 2010.

ADDRESSES:

You may submit comments, identified by RIN number “3206-AM08,” using either of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

Mail: Jerome D. Mikowicz, Deputy Associate Director, Employee Services, Pay and Leave, U.S. Office of Personnel Management, Room 7H31, 1900 E Street, NW., Washington, DC 20415-8200.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

The U.S. Office of Personnel Management (OPM) is issuing proposed regulations that would 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 employees covered under the provisions of 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). 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 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 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.

Change to Regulations

OPM's proposed regulations would amend §§ 550.103 and 550.171(a) to remove references to “full-time” employee. The intent is to eliminate the restriction on the payment of Sunday premium pay to full-time employees only. Therefore, the proposed regulations would 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.

Although OPM applied the reasoning in the Fathauer decision to determine that part-time prevailing rate employees are covered under the Sunday premium pay provisions under 5 U.S.C. 5544(a) (also effective as of May 26, 2009), there is no need for a change in the current regulations covering prevailing rate employees. Under § 532.509, 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. Since § 532.509 does not reference either part-time or full-time employees, there is no need to change this current regulation.

E.O. 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget in accordance with E.O. 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 in 5 CFR Part 550

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

John Berry,

Director, U.S. Office of Personnel Management.

Accordingly, OPM is proposing to amend 5 CFR part 550 as follows:

PART 550—PAY ADMINISTRATION (GENERAL)

Subpart A—Premium Pay

1. 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.

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

§ 550.103

Definitions.

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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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3. 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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