[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Rules and Regulations]
[Pages 28305-28308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13492]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 62, No. 100 / Friday, May 23, 1997 / Rules
and Regulations
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 532, 550, 551, and 610
RIN 3206-AH86
Holidays and Premium Pay
AGENCY: Office of Personnel Management.
ACTION: Interim rule with request for comments.
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SUMMARY: In compliance with recent changes in law, the Office of
Personnel Management (OPM) is issuing interim regulations on
compensatory time off for prevailing rate (wage) employees, ``in lieu
of'' holidays for employees on compressed work schedules, and premium
pay for nonappropriated fund (NAF) wage employees on flexible or
compressed work schedules.
DATES: The amendments made by section 1041 of The Department of Defense
Authorization Act of 1996 and the interim regulation in revised
Sec. 532.513 of title 5, Code of Federal Regulations, are effective
retroactively to February 10, 1996. The amendments made by sections
1610 and 1613 of The National Defense Authorization Act for Fiscal Year
1997 (Pub. L. 104-201) and the interim regulations in new Sec. 532.504
and revised Secs. 550.114, 551.531, and 610.202 of title 5, Code of
Federal Regulations, are effective retroactively to September 23, 1996.
Comments must be received on or before July 22, 1997.
ADDRESSES: Comments may be sent or delivered to Donald J. Winstead,
Assistant Director for Compensation Policy, Human Resources Systems
Service, Office of Personnel Management, Room 6H31, 1900 E Street NW.,
Washington, DC 20415. (FAX: (202) 606-0824 or Internet email:
payleave@opm.gov).
FOR FURTHER INFORMATION CONTACT: James Weddel, (202) 606-2858, FAX:
(202) 606-0824, or Internet email: payleave@opm.gov.
SUPPLEMENTARY INFORMATION: The regulatory changes set forth below are
necessary to conform with provisions of law as a result of enactment of
The Department of Defense Authorization Act for Fiscal Year 1996,
Public Law 104-106, February 10, 1996; and The National Defense
Authorization Act for Fiscal Year 1997, Public Law 104-201, September
23, 1996.
(1) Premium Pay for NAF Wage Employees Authorized to Work Under
Flexible and Compressed Work Schedules
Section 1041 of The National Defense Authorization Act For Fiscal
Year 1996 (Pub. L. 104-106) amended the definition of ``employee'' at 5
U.S.C. 6121 to extend the authority to establish flexible and
compressed work schedules (subchapter II of chapter 61 of title 5,
United States Code) to civilian employees of the Armed Services paid
from nonappropriated funds. Consistent with this change in law, an OPM
regulation stating that wage employees who are authorized to work
flexible or compressed work schedules shall be paid premium pay in
accordance with subchapter II of chapter 61 of title 5, United States
Code, has been amended to delete superseded language stating that this
paragraph does not apply to nonappropriated fund employees of the Armed
Services, as defined in 5 U.S.C. 2105(c). See revised Sec. 532.513. The
authority granted to agency heads by section 1041 became effective on
February 10, 1996.
(2) Compensatory Time Off for Prevailing Rate (Wage) Employees
The new interim regulations on compensatory time off reflect
amendments made by section 1610 of The National Defense Authorization
Act for Fiscal Year 1997 (Pub. L. 104-201, September 23, 1996). The
regulations are intended to be parallel to OPM's current regulations on
compensatory time off under title 5, United States Code, and the FLSA
to the maximum extent possible. Section 1610 amended 5 U.S.C. 5543 to
permit the head of any agency to approve a prevailing rate employee's
request for compensatory time off instead of overtime pay under either
5 U.S.C. 5544 or the FLSA for an equal amount of time spent in
irregular or occasional overtime work.
The new provision also permits the approval of requests from
prevailing rate employees under compressed work schedules for
compensatory time off instead of overtime pay in exchange for an equal
amount of time spent in irregular or occasional overtime work. The law
prohibits mandatory compensatory time off for all wage employees. The
authority granted to agency heads by section 1610 became effective on
September 23, 1996. This new authority is in addition to authority in
section 6123(a)(1) of title 5, United States Code, which authorizes
compensatory time off for prevailing rate employees who work under
flexible work schedules. Although this previously existing authority
has been included in the premium pay regulations at Sec. 550.114(b), it
has not previously been included in OPM's regulations in part 532 for
prevailing rate systems. Therefore, part 532 has been revised to
reflect this previously existing legal authority as well as the newly
enacted legal authority for approval of requests from wage employees
who are not under flexible work schedules for compensatory time off in
lieu of overtime pay for irregular or occasional overtime work.
Part 532 has also been amended to reflect the legal prohibition
against requiring that a prevailing rate employee be compensated for
overtime work with an equivalent amount of compensatory time off.
Finally, on the recommendation of the Federal Prevailing Rate Advisory
Committee, part 532 has been amended to provide that prevailing rate
employees may not be directly or indirectly intimidated, threatened, or
coerced for the purpose of interfering with his or her rights to
request or not to request compensatory time off. The regulation also
states that the same prohibited actions may not be attempted. See new
Sec. 532.504.
The change in law authorizing approval of requests for compensatory
time off is applicable to all prevailing rate employees, including
those who are covered by the FLSA. We have revised the FLSA regulations
to provide that an agency head (or designee) may approve a request from
any nonexempt employee for compensatory time off in lieu of overtime
pay for irregular or occasional overtime work. This is consistent with
[[Page 28306]]
the broad statutory language in 5 U.S.C. 5543, which provides that the
head of an agency may grant a request for compensatory time off from an
employee's scheduled tour of duty instead of payment under section 5542
or 5544 of title 5, United States Code, or section 7 of the FLSA for an
equal amount of time spent in irregular or occasional overtime work.
This change will, for example, permit the applicable agency heads to
approve requests for compensatory time off for nonexempt members of the
United States Secret Service Uniformed Division or nonexempt members of
the United States Park Police.
The revised FLSA regulations also provide that no employee covered
by the FLSA may be intimidated, threatened, or coerced to request or
not to request compensatory time off. The FLSA regulations on
compensatory time off already provide that compensatory time off may
not be required for nonexempt employees. This is consistent with the
new provisions in law on compensatory time off for prevailing rate
employees. It is also consistent with 5 U.S.C. 6132(a)(1), which
provides that an employee may not threaten, coerce, or intimidate any
other employee under a flexible work schedule (or threaten to do so)
for the purpose of interfering with such an employee's rights to
request or not to request compensatory time off. See revised
Sec. 551.531.
Since regulatory requirements on compensatory time off for
prevailing rate employees have been added to part 532 and part 551, the
current language authorizing compensatory time off for prevailing rate
employees under flexible work schedules has been deleted from part 550.
Limits on the accumulation and timely use of compensatory time off are
set by agency policy or negotiation with appropriate employee
representatives, as permitted by new Sec. 532.504(d).
(3) Designation of ``In lieu of'' Holidays for Employees on Compressed
Work Schedules
The interim regulations on ``in lieu of'' holidays reflect
amendments made by section 1613 of The National Defense Authorization
Act for Fiscal Year 1997 (Pub. L. 104-201, September 23, 1996). Section
1613 adds a new subsection (d) to 5 U.S.C. 6103 that allows an agency
head to designate a different ``in lieu of'' holiday than would be
required under 5 U.S.C. 6103(b) in certain circumstances--namely, for
full-time employees on compressed work schedules when the head of the
agency determines that a different ``in lieu of'' holiday is necessary
to prevent an ``adverse agency impact.'' The phrase ``adverse agency
impact'' is defined in 5 U.S.C. 6131(b) as ``(1) a reduction of the
productivity of the agency; (2) a diminished level of services
furnished to the public by the agency; or (3) an increase in the cost
of agency operations (other than a reasonable administrative cost
relating to the process of establishing a flexible or compressed work
schedule).''
This new flexibility is applicable to all agencies covered by
subchapters I and II of chapter 61 of title 5, United States Code, and
is granted to an agency head notwithstanding any other provision of law
or the terms of any collective bargaining agreement. However, a new
paragraph (c) has been added to 5 CFR 610.202 to provide that the ``in
lieu of'' holiday selected by the agency for an employee under a
compressed work schedule must be a workday in the same biweekly pay
period as the date of the actual holiday established by 5 U.S.C.
6103(a) or must be a workday in the pay period immediately preceding or
following that pay period. This provision is intended to (1) preclude a
long delay in providing an ``in lieu of'' holiday to an employee and
(2) prevent accumulation of holiday hours as if they were paid hours of
leave. The authority granted to agency heads by section 1613 became
effective on September 23, 1996.
(4) Appropriations Limitations on the Payment of Sunday Premium Pay and
Night Pay Differential in Certain Agencies
Section 630 of The Treasury, Postal Service, and General Government
Appropriations Act, 1997, as contained in section 101(f) of Public Law
104-208, The Omnibus Consolidated Appropriations Act, 1997, prohibits
the use of funds appropriated under the Act for the payment of Sunday
premium pay and night pay differential pay to employees who do not
actually perform work during the time corresponding to such Sunday
premium or night pay differential. This prohibition applies only to
agencies whose appropriations are provided by The Treasury, Postal
Service, and General Government Appropriations Act, 1997. Affected
agencies should be aware that this change in law restricts their
implementation of 5 CFR 532.505, 532.509, 550.122, and 550.171.
Within the covered agencies, this prohibition applies to any
employee who is paid from funds appropriated by the Act, including but
not limited to General Schedule and prevailing rate employees. This
provision has the effect of prohibiting the payment of Sunday premium
pay or night pay differential to covered employees during any period
when no work is performed, apparently including holidays and periods of
paid leave, excused absence with pay, compensatory time off, credit
hours when used (taken), or time off as an incentive or performance
award. Paid leave includes all types of paid leave, including paid
leave for jury or witness service under 5 U.S.C. 6322 and military
leave under 5 U.S.C. 6323.
This prohibition also appears to preclude a covered agency from
paying Sunday premium pay or night pay differential during a period of
continuation of pay under the authority of the Federal Employees'
Compensation Act (FECA) when the employee did not actually work on
Sunday or at night. Similarly, this prohibition appears to preclude a
covered agency from reimbursing the Department of Labor for FECA
benefits paid to its employees to the extent that the employees have
received FECA benefits that are based on Sunday premium pay or night
pay differential that the employees would have earned had they worked,
but did not earn because they did not actually work on Sunday or at
night. The Department of Labor may be able to waive overpayments that
occurred. OPM believes that is an issue to be worked out between
affected agencies and the Department of Labor. Section 630 became
effective on September 30, 1996.
A similar ban on the payment of Sunday premium pay was also in
effect for employees of the Federal Aviation Administration (FAA) under
The Transportation and Related Agencies Appropriations Acts for FY
1995, 1996, and 1997. This was included in the 1997 Transportation and
Related Agencies Appropriation Act even though Congress has authorized
FAA to implement its own personnel system. Since the application of
these appropriations restrictions is limited and the restrictions may
expire, we have not amended OPM regulations on payment of Sunday
premium pay and night pay differential. Nevertheless, affected agencies
must comply with these appropriations restrictions.
Waiver of Notice of Proposed Rule Making and Delay in Effective
Date
The authority for agencies to authorize flexible and compressed
work schedules for NAF employees of the Armed Services, provided by
section 1041 of The Department of Defense Authorization Act for Fiscal
Year 1996 (Public Law 104-106), became effective on February 10, 1996.
Authority for
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employer-employee agreements providing that commuting by use of a
Government vehicle shall not create hours of work for the purpose of
providing overtime pay under the FLSA is provided by The Employee
Commuting Flexibility Act of 1996, as contained in sections 2101
through 2103 of The Small Business Job Protection Act of 1996 (Pub. L.
104-188), and became effective on August 20, 1996.
The authority granted to agency heads under section 1610 of The
National Defense Authorization Act for Fiscal Year 1997 (Public Law
104-201) to approve requests from prevailing rate employees for
compensatory time off in lieu of overtime pay for irregular or
occasional overtime work became effective on September 23, 1996.
Section 1613 of the same Act, which allows an agency head to designate
a different ``in lieu of'' holiday than would be required under 5
U.S.C. 6103(b) for full-time employees on compressed work schedules,
also became effective on September 23, 1996.
In order to implement these changes on the effective dates
established for them by law, I find good cause to waive the general
notice of proposed rulemaking pursuant to 5 U.S.C. 553(b)(3)(B). Also,
I find that good cause exists for making this rule effective
retroactively. The retroactive effective dates are necessary in order
to implement the changes in law on their statutory effective dates.
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 Parts 532, 550, 551, and 610
Administrative practice and procedure, Claims, Freedom of
information, Government employees, Holidays, Reporting and
recordkeeping requirements, Wages.
Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM is amending parts 532, 550, 551, and 610 of title
5 of the Code of Federal Regulations 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; Sec. 532.707 also issued under 5
U.S.C. 552.
Subpart E--Premium Pay and Differentials
2. Section 532.504 is added to read as follows:
Sec. 532.504 Compensatory time off.
(a) At the request of an employee, the head of an agency may grant
compensatory time off from an employee's tour of duty instead of
payment under Sec. 532.503 or the Fair Labor Standards Act of 1938, as
amended, for an equal amount of irregular or occasional overtime work.
(b) At the request of an employee, the head of an agency may grant
compensatory time off from an employee's basic work requirement under a
flexible work schedule under 5 U.S.C. 6122 instead of payment under
Sec. 532.503 or the Fair Labor Standards Act of 1938, as amended, for
an equal amount of overtime work, whether or not irregular or
occasional in nature.
(c) An agency may not require that an employee be compensated for
overtime work with an equal amount of compensatory time off from the
employee's tour of duty. An employee may not directly or indirectly
intimidate, threaten, or coerce, or attempt to intimidate, threaten, or
coerce any other employee for the purpose of interfering with such
employee's rights to request or not to request compensatory time off in
lieu of payment for overtime hours.
(d) The head of a department may fix a time limit for an employee
to request or take compensatory time off and may provide that an
employee who fails to take compensatory time earned under paragraph (a)
or (b) of this section before the time limit fixed shall lose the right
to compensatory time off and to overtime pay unless the failure is due
to an exigency of the service beyond the employee's control.
3. Section 532.513 is revised to read as follows:
Sec. 532.513 Flexible and compressed work schedules.
Federal Wage System employees who are authorized to work flexible
and compressed work schedules under sections 6122 and 6127 of title 5,
United States Code, shall be paid premium pay in accordance with
subchapter II of chapter 61 of title 5, United States Code. Subpart D
of part 610 of this chapter supplements subchapter II and must be read
together with it.
PART 550--PAY ADMINISTRATION (GENERAL)
Subpart A--Premium Pay
4. The authority citation for subpart A of part 550 continues to
read as follows:
Authority: 5 U.S.C. 5304 note, 5305 note, 5541(2)(iv), 5548, and
6101(c); E.O. 12748, 3 CFR, 1991 Comp., p. 316.
5. In Sec. 550.114, paragraphs (a) and (b) are revised to read as
follows:
Sec. 550.114 Compensatory time off.
(a) At the request of an employee, the head of an agency (or
designee) may grant compensatory time off from an employee's tour of
duty instead of payment under Sec. 550.113 for an equal amount of
irregular or occasional overtime work.
(b) At the request of an employee, as defined in 5 U.S.C. 2105, the
head of an agency (or designee) may grant compensatory time off from an
employee's basic work requirement under a flexible work schedule under
5 U.S.C. 6122 instead of payment under Sec. 550.113 for an equal amount
of overtime work, whether or not irregular or occasional in nature.
* * * * *
PART 551--PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT
6. The authority citation for part 551 continues to read as
follows:
Authority: 5 U.S.C. 5542(c); Sec. 4(f) of the Fair Labor
Standards Act of 1938, as amended by Pub. L. 93-259, 88 Stat. 55 (29
U.S.C. 204f).
Subpart E--Overtime Pay Provisions
7. In Sec. 551.531, paragraphs (a) and (c) are revised to read as
follows:
Sec. 551.531 Compensatory time off.
(a) At the request of an employee who is not exempt under subpart B
of this part, the head of an agency (or designee) may grant
compensatory time off from an employee's tour of duty instead of
payment under Sec. 551.501 for an equal amount of irregular or
occasional overtime work.
* * * * *
(c) An agency may not require that an employee be compensated for
overtime work under this subpart with an equivalent amount of
compensatory time off from the employee's tour of duty. An employee may
not directly or indirectly intimidate, threaten, or coerce, or attempt
to intimidate, threaten, or coerce any other employee for the purpose
of interfering with such employee's rights to request or not to
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request compensatory time off in lieu of payment for overtime hours.
* * * * *
PART 610--HOURS OF DUTY
Subpart B--Holidays
8. The authority citation for subpart B of part 610 continues to
read as follows:
Authority: 5 U.S.C. 6101; sec. 1(1) of E.O. 11228, 3 CFR, 1964-
1965 Comp., p. 317.
9. In Sec. 610.202, paragraph (b) is revised, and paragraph (c) is
added, to read as follows:
Sec. 610.202 Determining the holiday.
* * * * *
(b) When a holiday falls on a nonworkday outside an employee's
basic workweek, the day to be treated as his or her holiday is
determined in accordance with sections 6103 (b) and (d) of title 5,
United States Code, and Executive Order 11582.
(c) When an agency determines the holiday in accordance with
section 6103(d) of title 5, United States Code, for an employee under a
compressed work schedule, the agency shall select a workday for the
holiday that is in the same biweekly pay period as the date of the
actual holiday designated under 5 U.S.C. 6103(a) or in the biweekly pay
period immediately preceding or following that pay period.
[FR Doc. 97-13492 Filed 5-22-97; 8:45 am]
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