[Federal Register Volume 75, Number 68 (Friday, April 9, 2010)]
[Proposed Rules]
[Pages 18133-18134]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-8154]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 75, No. 68 / Friday, April 9, 2010 / Proposed 
Rules

[[Page 18133]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 550

RIN 3206-AM08


Pay for Sunday Work

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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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 (202) 
606-2858; by fax at (202) 606-0824; or by e-mail at pay-performance-policy@opm.gov.

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 Sec. Sec.  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 Sec.  
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 Sec.  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 Sec.  550.103, revise the definition of Sunday work to read 
as follows:


Sec.  550.103  Definitions.

* * * * *
    Sunday work means nonovertime work performed by an employee during

[[Page 18134]]

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.
* * * * *
    3. In Sec.  550.171, revise paragraph (a) to read as follows:


Sec.  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 Sec.  550.103).
* * * * *

[FR Doc. 2010-8154 Filed 4-8-10; 8:45 am]
BILLING CODE 6325-39-P