[Federal Register Volume 75, Number 68 (Friday, April 9, 2010)]
[Proposed Rules]
[Pages 18133-18134]
From the Federal Register Online via the Government Publishing 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 [email protected].
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.
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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).
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[FR Doc. 2010-8154 Filed 4-8-10; 8:45 am]
BILLING CODE 6325-39-P