B-182140, DEC 4, 1974

B-182140: Dec 4, 1974

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PRESIDENT OF NATIONAL FEDERATION OF FEDERAL EMPLOYEES WHO CHALLENGES CIVIL SERVICE COMMISSION'S (CSC) INTERPRETATION OF FAIR LABOR STANDARDS AMENDMENTS (FLSA) OF 1974 THAT NATIONAL GUARD TECHNICIANS ARE NOT COVERED BY FLSA. IS INFORMED THAT CSC BELIEVES AND WE AGREE NATIONAL GUARD TECHNICIANS ARE SUBJECT TO THE ACT. IT IS FOR CSC TO DETERMINE AS IT IS GIVEN AUTHORITY TO ADMINISTER FLSA FOR FEDERAL EMPLOYEES. WHETHER NATIONAL GUARD TECHNICIANS ARE EXEMPT FROM OVERTIME COMPENSATION PROVISIONS OF ACT AND SINCE THE TECHNICIANS ARE ENGAGED IN FIREFIGHTING OR LAW ENFORCEMENT ACTIVITIES. THE EXTENT OF THEIR COVERAGE UNDER FLSA WILL BE SPELLED OUT IN FUTURE CSC REGULATIONS AS THE ACT DOES NOT APPLY IN THEIR CASE UNTIL JANUARY 1.

B-182140, DEC 4, 1974

PRESIDENT OF NATIONAL FEDERATION OF FEDERAL EMPLOYEES WHO CHALLENGES CIVIL SERVICE COMMISSION'S (CSC) INTERPRETATION OF FAIR LABOR STANDARDS AMENDMENTS (FLSA) OF 1974 THAT NATIONAL GUARD TECHNICIANS ARE NOT COVERED BY FLSA, IS INFORMED THAT CSC BELIEVES AND WE AGREE NATIONAL GUARD TECHNICIANS ARE SUBJECT TO THE ACT. HOWEVER, IT IS FOR CSC TO DETERMINE AS IT IS GIVEN AUTHORITY TO ADMINISTER FLSA FOR FEDERAL EMPLOYEES, WHETHER NATIONAL GUARD TECHNICIANS ARE EXEMPT FROM OVERTIME COMPENSATION PROVISIONS OF ACT AND SINCE THE TECHNICIANS ARE ENGAGED IN FIREFIGHTING OR LAW ENFORCEMENT ACTIVITIES, THE EXTENT OF THEIR COVERAGE UNDER FLSA WILL BE SPELLED OUT IN FUTURE CSC REGULATIONS AS THE ACT DOES NOT APPLY IN THEIR CASE UNTIL JANUARY 1, 1975.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES--COVERAGE OF NATIONAL GUARD TECHNICIANS UNDER THE FAIR LABOR STANDARDS AMENDMENTS OF 1974:

THIS MATTER IS A REQUEST FOR A DECISION BY MR. NATHAN T. WOLKOMIR, PRESIDENT OF THE NAIONAL FEDERATION OF FEDERAL EMPLOYEES, AS TO WHETHER NATION GUARD CIVILIAN TECHNICIANS ARE INCLUDED IN THE COVERAGE OF THE FAIR LABOR STANDARDS AMENDMENTS OF 1974, PUBLIC LAW 93-259, APPROVED APRIL 8, 1974. THE FAIR LABOR STANDARD AMENDMENTS OF 1974 EXTENDED THE COVERAGE OF THE FAIR LABOR STANDARDS ACT OF 1938, PUBLIC LAW 75 718, APPROVED JUNE 25, 1938, AS AMENDED, TO INCLUDE FEDERAL EMPLOYEES. MR. WOLKOMIR STATES THAT THE CIVIL SERVICE COMMISSION (CSC) HAS RULED THAT THE FAIR LABOR STANDARDS ACT IS INAPPLICABLE TO NATIONAL GUARD TECHNICIANS. IT IS MR. WOLKOMIR'S CONTENTION THAT NATIONAL GUARD TECHNICIANS, BEING EMPLOYEES OF THE FEDERAL GOVERNMENT, ARE NOT EXCLUDED FROM THE BENEFITS EXTENDED BY THE PROVISIONS OF THE FAIR LABOR STANDARDS ACT. WE BELIEVE MR. WOLKMOMIR MAY HAVE MISUNDERSTOOD THE CSC POSITION.

THE CSC BY LETTER OF JULY 11, 1974, TO THIS OFFICE HAS STATED THAT--

"*** SECTION 2 OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968, AMENDING SECTION 709(D) OF TITLE 32, U.S. CODE, GIVES NATIONAL GUARD TECHNICIANS FEDERAL EMPLOYEE STATUS:

"'A TECHNICIAN EMPLOYED UNDER SUBSECTION (A) IS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY OR THE DEPARTMENT OF THE AIR FORCE, AS THE CASE MAY BE, AND AN EMPLOYEE OF THE UNITED STATES. HOWEVER, A POSITION AUTHORIZED BY THIS SECTION IS OUTSIDE THE COMPETITIVE SERVICE IF THE TECHNICIAN EMPLOYED THEREIN IS REQUIRED UNDER SUBSECTION (B) TO BE A MEMBER OF THE NATIONAL GUARD.'

"WE NOTE THAT UNDER SECTION 6 (A)(2) OF THE FAIR LABOR STANDARDS ACT AMENDMENTS OF 1974 THE TERM 'EMPLOYEE' MEANS--

"'(A) ANY INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE UNITED STATES -

"'(I) AS A CIVILIAN IN THE MILITARY DEPARTMENTS (AS DEFINED IN SECTION 102 OF TITLE 5, UNITED STATES CODE),

"'(II) IN ANY EXECUTIVE AGENCY (AS DEFINED IN SECTION 105 OF SUCH TITLE), "'(III) IN ANY UNIT OF THE LEGISLATIVE OR JUDICIAL BRANCH OF THE GOVERNMENT WHICH HAS POSITIONS IN THE COMPETITIVE SERVICE,

"'(IV) IN A NONAPPROPRIATED FUND INSTRUMENTALITY UNDER THE JURISDICTION OF THE ARMED FORCES, OR

"'(V) IN THE LIBRARY OF CONGRESS;'

"AND UNDER SECTION 102 OF TITLE 5, U.S. CODE, MILITARY DEPARTMENTS ARE DEFINED AS:

"'THE DEPARTMENT OF THE ARMY

THE DEPARTMENT OF THE NAVY

THE DEPARTMENT OF THE AIR FORCE'.

"HENCE, IT IS CLEAR THAT NATIONAL GUARD TECHNICIANS COME WITHIN THE TERM 'EMPLOYEE' AS THIS TERM IS USED IN THE FAIR LABOR STANDARDS ACT, AS AMENDED, AND ARE, CONSEQUENTLY, SUBJECT TO THE ACT."

IT IS THEREFORE APPARENT THAT THE CSC SHARES HIS OPINION THAT THE FLSA APPLIES TO NATIONAL GUARD TECHNICIANS. WE ALSO CONCUR. HOWEVER, WE WOULD POINT OUT THAT SECTION 7 OF THE FAIR LABOR STANDARDS ACT OF 1938 WHICH PERTAINS TO MAXIMUM HOURS OF WORK AND OVERTIME COMPENSATION, DOES NOT APPLY TO CERTAIN EXEMPT CATEGORIES OF EMPLOYEES NOR DOES IT APPLY TO EMPLOYEES ENGAGED IN FIRE PROTECTION OR LAW ENFORCEMENT ACTIVITIES UNTIL JANUARY 1, 1975, AND ONLY AT THAT TIME WITH CERTAIN MODIFICATIONS (FAIR LABOR STANDARDS ACT, SEC. 7(R) AND 13.)

SECTION 4(F) OF THE FSLA GIVES THE CSC THE AUTHORITY TO ADMINISTER THE PROVISIONS OF THE ACT WITH RESPECT TO FEDERAL EMPLOYEES, WITH EXCEPTIONS NOT PERTINENT HERE. THE EXTENT TO WHICH NATIONAL GUARD TECHNICIANS MAY BE COVERED BY THE OVERTIME PROVISIONS ABOVE CITED IS FOR THE COMMISSION'S DETERMINATION. AS YET, THE COMMISSION HAS NOT ISSUED ANY REGULATIONS PURSUANT TO ITS AUTHORITY. HOWEVER, WE UNDERSTAND THAT ALL THE TECHNICIANS IN QUESTION ARE REQUIRED TO BE MEMBERS OF THE NATIONAL GUARD WHICH IN TURN IS ENGAGED IN A LAW ENFORCEMENT OR FIREFIGHTING ACTIVITY. IT IS NOT UNREASONABLE TO CONCLUDE THAT THEY ARE NOT PRESENTLY COVERED BY THE OVERTIME PROVISIONS OF THE FAIR LABOR STANDARDS ACT AND THAT NO REGULATIONS ARE THEREFORE REQUIRED UNTIL AFTER JANUARY 1, 1975. AFTER THAT DATE THE EXTENT OF COVERAGE OF NATIONAL GUARD TECHNICIANS WILL BE SPELLED OUT IN THE COMMISSION REGULATIONS.