Pay for Sunday Work, 52537-52539 [2011-21397]
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Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations
the requirements of this rule. Therefore,
the effective date of these changes will
be 30 days from the date of publication
of this rule in the Federal Register.
Regulatory Flexibility Act
I certify that these regulations will not
have a significant economic impact on
a substantial number of small entities
because they would apply only to
Federal agencies and employees.
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.
List of Subjects in 5 CFR Part 293
Government employees, Privacy,
Records.
U.S. Office of Personnel Management.
John Berry,
Director.
Accordingly, OPM amends 5 CFR part
293, subpart C as follows:
PART 293—PERSONNEL RECORDS
Subpart C—Official Personnel Folder
1. The authority citation for part 293,
subpart C, is revised to read as follows:
■
Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 5
U.S.C. 1103; 5 U.S.C. 1104; 5 U.S.C. 1302, 5
U.S.C. 2951(2), 5 U.S.C. 3301; 5 U.S.C. 4315;
E.O. 12107 (December 28, 1978), 3 CFR
1954–1958 Compilation; E.O. 9830 (February
24, 1947); 3 CFR 1943–1948 Compilation.
■
2. Revise § 293.301 to read as follows:
rmajette on DSK89S0YB1PROD with RULES
§ 293.301
Applicability of regulations.
Except for those agencies specifically
excluded from Office of Personnel
Management (OPM) recordkeeping
requirements by statute, OPM
regulation, or formal agreement between
OPM and the agency, this subpart
applies to—and within this subpart
agency means—each executive
department and independent
establishment of the Federal
Government; each corporation wholly
owned or controlled by the United
States; and, with respect to positions
subject to civil service rules and
regulations, the legislative and judicial
branches of the Federal Government.
OPM will list agencies to which this
subpart does not apply in the Guide to
Personnel Recordkeeping, and will
amend the Guide from time to time to
update that list.
■ 3. Revise § 293.303 to read as follows:
§ 293.303 The roles and responsibilities of
the Office, agencies, and custodians.
(a) The Official Personnel Folder
(OPF) of each employee in a position
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14:22 Aug 22, 2011
Jkt 223001
subject to civil service rules and
regulations and of each former
employee who held such a position is
part of the records of the Office of
Personnel Management (Office).
(b) The Office has Government-wide
responsibility for developing
regulations, practices and procedures
for the establishment, maintenance, and
transfer of OPFs.
(c) Agencies shall be responsible for
the following:
(1) The establishment of the OPF for
a new appointee or a new employee for
whom no OPF has previously been
established; and
(2) The maintenance of a previously
existing OPF during the period any new
appointee or employee remains an
agency’s employee.
(d)(1) Custodian means the agency in
physical possession of an OPF. In the
case of an electronic OPF (eOPF), the
custodian is the agency that has primary
access to an eOPF contained within a
document management system
approved by the Office.
(2) A custodian shall be responsible
for the maintenance and transfer of the
OPF or eOPF, and the costs associated
with these activities.
(3) An agency is the custodian of an
OPF it requests from the National
Personnel Records Center (NPRC), for
any temporary use, from the date that
the OPF is transmitted by the NPRC to
the agency until the date that the NPRC
receives the OPF back from the agency.
(4) An agency is no longer the
custodian of an OPF once the OPF has
been transferred to and accepted by the
NPRC.
(5) Once NPRC has approved the
transfer, the Office is the custodian of
the OPF until the destruction date
established for the file pursuant to the
National Archive and Records
Administration’s General Records
Schedule, unless another agency
requests the OPF from the NPRC in the
interim.
(e) Agencies and custodians shall
carry out their responsibilities with
respect to the OPF or eOPF in
accordance with this subpart and the
Office’s Guide to Personnel
Recordkeeping.
■ 4. Amend § 293.307 by adding new
paragraphs (c) and (d) as follows:
§ 293.307 Disposition of folders of former
Federal employees.
*
*
*
*
*
(c) Agencies are responsible for all
costs associated with the establishment
and maintenance of OPFs and the
transfer of OPFs to the National
Personnel Records Center.
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52537
(d) Agencies are responsible for all
costs associated with agency-initiated
requests for OPFs or services from the
National Personnel Records Center.
[FR Doc. 2011–21395 Filed 8–22–11; 8:45 am]
BILLING CODE 6325–47–P
OFFICE OF PERSONNEL
MANAGEMENT
5 CFR Parts 532 and 550
RIN 3206–AM08
Pay for Sunday Work
Office of Personnel
Management.
ACTION: Final rule.
AGENCY:
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.
SUMMARY:
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 pay-leave-policy@opm.gov.
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 parttime employees are covered under the
Sunday premium pay statute at 5 U.S.C.
5546(a).
DATES:
Background
Under the Fathauer decision, the
United States Court of Appeals for the
Federal Circuit held that the definition
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52538
Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations
of ‘‘employee’’ in 5 U.S.C. 5546(a) is
unambiguous under the plain language
of the statute and concluded that parttime 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.
rmajette on DSK89S0YB1PROD with RULES
Eliminate Restriction for Sunday
Premium Pay to Full-Time Employees
Only
OPM’s final regulations amend
§§ 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 § 532.509 does not
reference either part-time or full-time
employees, we are making a clarifying
amendment to this section. Currently
§ 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
VerDate Mar<15>2010
14:22 Aug 22, 2011
Jkt 223001
under the provisions of 5 U.S.C. 5544.
We are amending § 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.
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Fmt 4700
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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 parttime 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.’’
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Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations
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
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.
§ 550.103
*
*
*
*
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.
*
*
*
*
*
■ 5. In § 550.171, revise paragraph (a) to
read as follows:
Authorization of pay for Sunday
(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 § 550.103).
*
*
*
*
*
RIN 3206–AM29
Federal Employees’ Retirement
System; Present Value Conversion
Factors for Spouses of Deceased
Separated Employees
1. The authority citation for part 532
continues to read as follows:
Authority: 5 U.S.C. 5343, 5346; § 532.707
also issued under 5 U.S.C. 552.
2. Revise § 532.509 to read as follows:
Office of Personnel
Management.
ACTION: Final rule.
AGENCY:
The Office of Personnel
Management (OPM) is issuing an
interim rule to revise the table of
reduction factors for early commencing
dates of survivor annuities for spouses
of separated employees who die before
the date on which they would be
eligible for unreduced deferred
annuities, and to revise the annuity
SUMMARY:
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.
Jkt 223001
Definitions.
*
5 CFR Part 843
■
rmajette on DSK89S0YB1PROD with RULES
4. In § 550.103, revise the definition of
Sunday work to read as follows:
■
OFFICE OF PERSONNEL
MANAGEMENT
PART 532—PREVAILING RATE
SYSTEMS
14:22 Aug 22, 2011
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.
BILLING CODE 6325–39–P
Accordingly, OPM amends 5 CFR
parts 532 and 550 as follows:
VerDate Mar<15>2010
3. The authority citation for subpart A
of part 550 continues to read as follows:
■
[FR Doc. 2011–21397 Filed 8–22–11; 8:45 am]
U.S. Office of Personnel Management.
John Berry,
Director.
§ 532.509
Subpart A—Premium Pay
§ 550.171
work.
5 CFR Part 532
■
PART 550—PAY ADMINISTRATION
(GENERAL)
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52539
factor for spouses of deceased
employees who die in service when
those spouses elect to receive the basic
employee death benefit in 36
installments under the Federal
Employees’ Retirement System (FERS)
Act of 1986. These rules are necessary
to ensure that the tables conform to the
economic, demographic and mortality
assumptions adopted by the Board of
Actuaries and published in the Federal
Register on June 3, 2011, as required by
5 U.S.C. 8461(i).
DATES: This rule is effective August 23,
2011.
FOR FURTHER INFORMATION CONTACT:
Roxann Johnson, (202) 606–0299.
SUPPLEMENTARY INFORMATION: OPM has
published a notice in the Federal
Register at 76 FR 32242 (June 3, 2011)
to revise the normal cost percentages
under the Federal Employees’
Retirement System (FERS) Act of 1986,
Public Law 99–335, 100 Stat. 514, as
amended, based on economic
assumptions, new demographic factors
and mortality assumptions adopted by
the Board of Actuaries of the Civil
Service Retirement System. By statute
under 5 U.S.C. 8461(i), the demographic
factors, economic and mortality
assumptions require corresponding
changes in factors used to produce
actuarially equivalent benefits when
required by the FERS Act.
Section 843.309 of title 5, Code of
Federal Regulations, regulates the
payment of the basic employee death
benefit. Under 5 U.S.C. 8442(b), the
basic employee death benefit may be
paid as a lump sum or as an equivalent
benefit in 36 installments. These rules
amend 5 CFR 843.309(b)(2) to conform
the factor used to convert the lump sum
to 36-installment payments with the
revised economic assumptions.
Section 843.311 of title 5, Code of
Federal Regulations, regulates the
benefits for the survivors of separated
employees under 5 U.S.C. 8442(c). This
section provides a choice of benefits for
eligible current and former spouses. If
the current or former spouse is the
person entitled to the unexpended
balance under the order of precedence
under 5 U.S.C. 8424, he or she may elect
to receive the unexpended balance
instead of an annuity.
Alternatively, an eligible current or
former spouse may elect to receive an
annuity commencing on the day after
the employee’s death or on the deceased
separated employee’s 62nd birthday. If
the annuity commences on the deceased
separated employee’s 62nd birthday, the
annuity will equal 50 percent of the
annuity that the separated employee
would have received had he or she
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]]>Agencies
[Federal Register Volume 76, Number 163 (Tuesday, August 23, 2011)]
[Rules and Regulations]
[Pages 52537-52539]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-21397]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 pay-leave-policy@opm.gov.
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
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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.
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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
