[Federal Register Volume 76, Number 163 (Tuesday, August 23, 2011)]
[Rules and Regulations]
[Pages 52537-52539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21397]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 532 and 550
RIN 3206-AM08
Pay for Sunday Work
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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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 (202)
606-2858; by fax at (202) 606-0824; or by e-mail at [email protected].
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
[[Page 52538]]
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 Sec. Sec. 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 Sec. 532.509 does not reference
either part-time or full-time employees, we are making a clarifying
amendment to this section. Currently Sec. 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 Sec. 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.''
[[Page 52539]]
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
0
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.
0
2. Revise Sec. 532.509 to read as follows:
Sec. 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
0
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.
0
4. 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
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.
* * * * *
0
5. 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. 2011-21397 Filed 8-22-11; 8:45 am]
BILLING CODE 6325-39-P