B-201039 L/M, MAR 8, 1982, OFFICE OF GENERAL COUNSEL

B-201039 L/M, MAR 8, 1982, OFFICE OF GENERAL COUNSEL

DIGESTS: 1. OFFICE OF PERSONNEL MANAGEMENT REQUESTS COMMENTS ON PROPOSED REGULATIONS GOVERNING PREMIUM PAY AND THE ESTABLISHMENT OF "REGULARLY SCHEDULED WORKWEEKS." IT IS WITHIN OPM'S AUTHORITY TO DEFINE THE TERM "REGULARLY SCHEDULED" AND LIMIT OVERTIME AND NIGHT DIFFERENTIAL PAY TO WORK PERFORMED WITHIN THE EMPLOYEE'S ADMINISTRATIVE WORKWEEK. HOWEVER, WE URGE THE REGULATIONS BE AMENDED TO SPECIFY THE AGENCY'S RESPONSIBILITY TO SCHEDULE THE EMPLOYEE IN A MANNER THAT REALISTICALLY REFLECTS ACTUAL WORK REQUIREMENTS. 2.OFFICE OF PERSONNEL MANAGEMENT REQUESTS COMMENTS ON PROPOSED REGULATIONS GOVERNING PREMIUM PAY WHICH WOULD TEND TO DECREASE ENTITLEMENT TO PREMIUM PAY AND OVERTIME BY LIMITING SUCH PAY TO WORK PERFORMED DURING THE EMPLOYEE'S REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK. REGULATIONS MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE RIGHTS, BUT, IN THE ABSENCE OF OBVIOUS ERROR, THEY MAY NOT BE AMENDED RETROACTIVELY. WE URGE THAT THE PROPOSED REGULATIONS EXPRESSLY STATE THAT THEY ARE PROSPECTIVE ONLY.

CRAIG B. PETTIBONE, OFFICE OF PERSONNEL MANAGEMENT:

WE HAVE REVIEWED THE PROPOSED REGULATIONS OF THE OFFICE OF PERSONNEL MANAGEMENT PUBLISHED IN 47 FED.REG. 958, JANUARY 8, 1982, WHICH WOULD REVISE SEVERAL PROVISIONS OF REGULATIONS GOVERNING PAY ADMINISTRATION AND HOURS OF DUTY. THE STATED PURPOSE OF OPM'S PROPOSAL IS "TO REVISE THE REGULATIONS PERTAINING TO AN AGENCY'S RESPONSIBILITY TO ESTABLISH REGULARLY SCHEDULED WORKWEEKS FOR ITS EMPLOYEES AND THE REGULATIONS PERTAINING TO AN EMPLOYEE'S ENTITLEMENT TO PREMIUM PAY FOR REGULARLY SCHEDULED WORK AT NIGHT, ON SUNDAY, OR ON A HOLIDAY, OR FOR OVERTIME WORK OUTSIDE HIS OR HER REGULARLY SCHEDULED BASIC WORKWEEK." WE OFFER THE FOLLOWING COMMENTS ON THESE PROPOSED REGULATIONS.

THE PROPOSED REGULATIONS WOULD AMEND SEVERAL DEFINITIONS IN 5 C.F.R. PARTS 550 AND 610 AND DEFINE THE CONCEPT OF A "REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK" (SECTION 550.103(N)) AS AN ADMINISTRATIVE WORKWEEK SCHEDULED IN ADVANCE AND CORRESPONDING TO THE EMPLOYEE'S ACTUAL WORK REQUIREMENTS. THE PAYMENT OF OVERTIME AND NIGHT DIFFERENTIAL FOR "REGULARLY SCHEDULED" WORK WOULD BE LIMITED TO WORK PERFORMED DURING THIS REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK, SINCE ANY WORK PERFORMED OUTSIDE OF THIS ADMINISTRATIVE WORKWEEK WOULD BE CONSIDERED "IRREGULAR OR OCCASIONAL."

THIS PROPOSED CHANGE WOULD HAVE AN IMPACT ON PRIOR DECISIONS OF OUR OFFICE IN TWO MAJOR AREAS. FIRST, OUR DECISIONS HAVE HELD THAT A GENERAL SCHEDULE EMPLOYEE WHO WORKS OCCASIONAL OVERTIME AT NIGHT DURING A REGULARLY SCHEDULED TOUR OF DUTY, BUT NOT HIS TOUR OF DUTY, IS ENTITLED TO NIGHT DIFFERENTIAL UNDER 5 U.S.C. SEC. 5545(A). SEE SOCIAL SECURITY ADMINISTRATION, 59 COMP.GEN. 101 (1979), AND DECISIONS CITED THEREIN. UNDER THE PROPOSED REGULATIONS AN EMPLOYEE WOULD BE ENTITLED TO NIGHT DIFFERENTIAL ONLY FOR NIGHTWORK PERFORMED DURING HIS OWN REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK. WORK AT NIGHT OUTSIDE THE EMPLOYEE'S SCHEDULED WORKWEEK WOULD BE CONSIDERED IRREGULAR OR OCCASIONAL WITH NO ENTITLEMENT TO NIGHT DIFFERENTIAL. PROPOSED 5 C.F.R. SEC. 550.103(E). THE ONLY EXCEPTION TO THIS LIMITATION WOULD BE A TEMPORARY ASSIGNMENT TO A DIFFERENT TOUR OF DUTY THAT INCLUDES NIGHTWORK. PROPOSED 5 C.F.R. SEC. 550.122(D).

THE SECOND AREA OF OUR DECISIONS AFFECTED BY THESE PROPOSED REGULATIONS INVOLVES THOSE DECISIONS CONCERNING THE PAYMENT OF OVERTIME OR NIGHT DIFFERENTIAL FOR "REGULARLY SCHEDULED WORK." AS WE HELD IN 59 COMP.GEN. 101, SUPRA, OVERTIME OR NIGHTWORK WHICH IS SCHEDULED AT LEAST 1 DAY IN ADVANCE AND WHICH IS SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS SO AS TO FALL WITHIN A PREDICTABLE AND DISCERNIBLE PATTERN HAS BEEN CONSIDERED TO BE "REGULARLY SCHEDULED" FOR THE PAYMENT OF OVERTIME UNDER 5 U.S.C. SEC. 5542 IN LIEU OF PREMIUM PAY UNDER 5 U.S.C. SEC. 5545(C)(2) AND FOR THE PAYMENT OF NIGHT DIFFERENTIAL UNDER 5 U.S.C. SEC. 5545(A).

THE PROPOSED REGULATIONS WOULD REQUIRE AGENCIES TO ESTABLISH SCHEDULES FOR EMPLOYEES IN ADVANCE OF THE ADMINISTRATIVE WORKWEEK SO AS TO MEET THE EMPLOYEE'S ACTUAL WORK REQUIREMENTS. PROPOSED 5 C.F.R. SEC. 610.121. THIS "REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK" WOULD THEREBY LIMIT THE EMPLOYEE'S ENTITLEMENT TO OVERTIME OR NIGHT DIFFERENTIAL SINCE "REGULARLY SCHEDULED" WORK WOULD BE DEFINED AS WORK SCHEDULED IN ADVANCE OF THE EMPLOYEE'S ADMINISTRATIVE WORKWEEK UNDER THE AGENCY'S PROCEDURES FOR ESTABLISHING WORKWEEKS. PROPOSED 5 C.F.R. SEC. 550.103(P).

WE NOTE THAT THE TERM "REGULARLY SCHEDULED" AS IT APPEARS IN 5 U.S.C. SEC. 5545(A) AND SEC. 5545(C)(2) IS NOT DEFINED IN THE STATUTES OR IN CURRENT REGULATIONS. IN VIEW OF OPM'S AUTHORITY TO PRESCRIBE REGULATIONS CONTAINED IN 5 U.S.C. SECS. 5548 AND 6101(C), WE MUST CONCLUDE THAT IT IS WITHIN OPM'S AUTHORITY TO SO DEFINE AN EMPLOYEE'S ADMINISTRATIVE WORKWEEK AND THUS LIMIT AN EMPLOYEE'S ENTITLEMENT TO OVERTIME AND NIGHT DIFFERENTIAL.

THE IMPACT OF THESE PROPOSED REGULATIONS ON OUR DECISIONS REMAINS UNCLEAR. WE NOTE IN THE "SUPPLEMENTARY INFORMATION" OF THE PROPOSED REGULATIONS THE FOLLOWING STATEMENT:

"IF AN AGENCY FAILS TO SCHEDULE ITS EMPLOYEES IN A MANNER THAT REALISTICALLY REFLECTS THE AGENCY'S ACTUAL WORK REQUIREMENTS, THE FAILURE TO SCHEDULE WILL CONSTITUTE A VIOLATION OF REGULATIONS WARRANTING PAYMENT OF PREMIUM PAY FOR 'REGULARLY SCHEDULED' WORK." 47 FED.REG. 959.

WE BELIEVE THAT UNLESS AGENCIES STRICTLY COMPLY WITH SCHEDULING REQUIREMENTS IN SECTION 610.121(B), THERE WILL BE CLAIMS FOR OVERTIME AND NIGHT DIFFERENTIAL FOR "REGULARLY SCHEDULED" WORK IN INSTANCES WHERE THE AGENCIES FAIL TO SCHEDULE OVERTIME WORK WHICH RECURS ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS IN PREDICTABLE AND DISCERNIBLE PATTERNS. SEE 59 COMP.GEN. 101, SUPRA. SINCE THIS ENTITLEMENT TO OVERTIME OR NIGHT DIFFERENTIAL FOR "REGULARLY SCHEDULED" WORK WHICH THE AGENCY FAILED TO SCHEDULE REPRESENTS A DEPARTURE FROM THE CONCEPT OF A "REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK," WE URGE THAT THE ABOVE- QUOTED GUIDANCE APPEAR IN THE PROPOSED REGULATIONS, PERHAPS AS AN ADDITION TO THE DEFINITION OF "REGULARLY SCHEDULED" WORK IN SECTION 550.103(P). FOR EXAMPLE, WE NOTE THAT THE PROPOSED REGULATIONS WOULD NOT CHANGE THE HOLDING IN OUR DECISION IN 59 COMP.GEN. 101, SUPRA, WITH RESPECT TO EMPLOYEES WHO HABITUALLY AND RECURRENTLY PERFORM OVERTIME WORK AT NIGHT DUE TO THE INHERENT NATURE OF THEIR DUTIES. IT APPEARS THAT, IF AN AGENCY FAILED TO PROPERLY SCHEDULE OVERTIME OR NIGHTWORK, EMPLOYEES IN THIS SITUATION WOULD BE ENTITLED TO OVERTIME OR NIGHT DIFFERENTIAL FOR "REGULARLY SCHEDULED" WORK.

ANOTHER SITUATION IN WHICH THE AGENCY SHOULD SCHEDULE OVERTIME OR NIGHTWORK IN ADVANCE IS WHERE THERE IS A LARGE VOLUME OF WORK WHICH IS PERFORMED BY EMPLOYEES ON OVERTIME ON A VOLUNTEER BASIS. SEE 59 COMP.GEN. 101, 103, SUPRA. BY FAILING TO SCHEDULE ITS EMPLOYEES, AN AGENCY COULD RELY ON VOLUNTEERS TO PERFORM THE OVERTIME AT NIGHT AND AVOID THE PAYMENT OF NIGHT DIFFERENTIAL UNDER THE PROPOSED REGULATIONS. WE SUGGEST THAT THE REGULATION ON SCHEDULING IN SECTION 610.121(B) BE EXPANDED TO INCLUDE SITUATIONS WHERE OVERTIME WORK MAY BE PERFORMED BY EMPLOYEES WHO VOLUNTEER TO PERFORM OVERTIME.

FINALLY, WE NOTE THAT THE PROPOSED REGULATIONS DO NOT CONTAIN A PROPOSED EFFECTIVE DATE. OUR OFFICE HAS LONG HELD THAT REGULATIONS MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE RIGHTS UNDER THEM, BUT, IN THE ABSENCE OF OBVIOUS ERROR, THEY MAY NOT BE AMENDED RETROACTIVELY. COMP.GEN. 39 (1979); 40 COMP.GEN. 242 (1960); AND 32 COMP.GEN. 315 (1953). FURTHERMORE, WE NOTE THAT YOUR STUDY OF THE TERM "REGULARLY SCHEDULED" WHICH PRECEDED THESE PROPOSED REGULATIONS (SEE OUR COMMENTS IN B-201039, MARCH 16, 1981) STATED ON PAGE 28 THAT THESE CHANGES WOULD BE EFFECTIVE PROSPECTIVELY ONLY.

SINCE THESE PROPOSED REGULATIONS REPRESENT A CHANGED INTERPRETATION OF THE STATUTES GOVERNING OVERTIME AND NIGHT DIFFERENTIAL PAY WHICH WILL TEND TO DECREASE ENTITLEMENT TO THIS PREMIUM PAY, WE URGE THAT THE PROPOSED REGULATIONS BE AMENDED TO EXPRESSLY STATE THAT THEY ARE PROSPECTIVE ONLY.

WE TRUST THAT THESE COMMENTS ARE OF ASSISTANCE TO YOU. ANY QUESTIONS ON THIS MATTER SHOULD BE DIRECTED TO MR. MICHAEL R. VOLPE ON 275-6410.