[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]
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