B-194170, JULY 3, 1979, 58 COMP.GEN. 638

B-194170, JULY 3, 1979, 58 COMP.GEN. 638

COMPENSATION - NIGHT WORK - SUMMER AIDS INDIVIDUALS WHO ARE HIRED AS SUMMER AIDS UNDER 5 C.F.R. 213.3102(V), IN THE EXCEPTED SERVICE, WITH THEIR PAY SET AT THE FLSA MINIMUM WAGE, MAY BE PAID NIGHT DIFFERENTIAL UNDER 5 U.S.C. 5545(A). SUMMER AIDS ARE NOT EXCLUDED FROM THE DEFINITION OF EMPLOYEES ENTITLED TO RECEIVE NIGHT DIFFERENTIAL, AND, SINCE THERE ARE NO CONFLICTING REGULATORY PROVISIONS, THEY SHOULD BE PAID NIGHT DIFFERENTIAL PAY.

IN THE MATTER OF SUMMER AIDS - NIGHT DIFFERENTIAL, JULY 3, 1979:

WE HAVE BEEN ASKED WHETHER SUMMER AIDS, WHO ARE IN THE EXPECTED SERVICE, WITH THEIR PAY SET AT THE EQUIVALENT OF THE HIGHEST MINIMUM WAGE RATE ESTABLISHED BY THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, 29 U.S.C. 201 ET SEQ. (1976), (FLSA), SHOULD BE PAID NIGHT DIFFERENTIAL PAY UNDER 5 U.S.C. 5545(A) (1976). FOR THE REASONS SET OUT BELOW, WE HOLD THAT PAYMENT OF THE NIGHT DIFFERENTIAL IS PROPER.

THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION, BY LETTER OF FEBRUARY 8, 1979, REQUESTED OUR DECISION ON WHETHER SUMMER AIDS HIRED UNDER 5 C.F.R. 213.3102(V) (1977), WHO WERE ASSIGNED TO CUSTODIAL LABOR POSITIONS ON THE NIGHT SHIFT, SHOULD BE PAID NIGHT DIFFERENTIAL PAY. SECTION 213.3102(V) PROVIDES THAT:

TEMPORARY SUMMER AID POSITIONS WHOSE DUTIES INVOLVE WORK OF A ROUTINE NATURE NOT REGULARLY COVERED UNDER THE GENERAL SCHEDULE AND REQUIRING NO SPECIFIC KNOWLEDGE OF SKILLS, WHEN FILLED BY YOUTH APPOINTED FOR SUMMER EMPLOYMENT UNDER SUCH ECONOMIC OR EDUCATIONAL NEEDS STANDARDS AS THE COMMISSION MAY PRESCRIBE. A PERSON MAY NOT BE APPOINTED UNLESS HE HAS REACHED HIS SIXTEENTH BUT NOT HIS TWENTY-SECOND BIRTHDAY, OR EMPLOYED FOR MORE THAN 700 HOURS UNDER THIS PARAGRAPH. THIS PARAGRAPH SHALL APPLY ONLY TO THE POSITIONS WHOSE PAY IS FIXED AT THE EQUIVALENT OF THE HIGHEST MINIMUM WAGE RATE ESTABLISHED BY THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED. HOWEVER, DURING 1974 AN AGENCY SHALL NOT FIX THE PAY AT A RATE LESS THAN THAT PAID TO SUMMER AIDS BY FEDERAL AGENCIES (OTHER THAN THE POSTAL SERVICE) IN THE GEOGRAPHIC AREA CONCERNED IN 1973.

WE HAVE BEEN ADVISED THAT THERE IS NO SPECIFIC STATUTORY AUTHORITY FOR THIS PROGRAM; IT HAS BEEN AUTHORIZED YEARLY BY PRESIDENTIAL ORDER OR MEMORANDUM. WE HAVE BEEN UNABLE TO LOCATE ANY SPECIFIC GUIDANCE REGARDING PAYMENT OF PREMIUM PAY FOR INDIVIDUALS EMPLOYED IN THIS PROGRAM.

NIGHT DIFFERENTIAL PAY FOR GENERAL SCHEDULE EMPLOYEES IS AUTHORIZED BY 5 U.S.C. 5545(A) (1976). THIS SECTION IS PART OF SUBCHAPTER V OF CH. 55 OF TITLE 5, AND PROVIDES THAT:

EXCEPT AS PROVIDED BY SUBSECTION (B) OF THIS SECTION, NIGHT WORK IS REGULARLY SCHEDULED WORK BETWEEN THE HOURS OF 6:00 P.M. AND 6:00 A.M., AND INCLUDES--

(1) PERIODS OF ABSENCE WITH PAY DURING THESE HOURS DUE TO HOLIDAYS; AND

(2) PERIODS OF LEAVE WITH PAY DURING THESE HOURS IF THE PERIODS

OF LEAVE WITH PAY DURING A PAY PERIOD TOTAL LESS THAN 8 HOURS.

EXCEPT AS OTHERWISE PROVIDED BY SUBSECTION (C) OF THIS SECTION, AN EMPLOYEE IS ENTITLED TO PAY FOR NIGHT WORK AT HIS RATE OF BASIC PAY PLUS PREMIUM PAY AMOUNTING TO 10 PERCENT OF THAT BASIC RATE. THIS SUBSECTION AND SUBSECTION (B) OF THIS SECTION DO NOT MODIFY SECTION 180 OF TITLE 31, OR OTHER STATUTE AUTHORIZING ADDITIONAL PAY FOR NIGHT WORK.

FOR THE PURPOSES OF SUBCHAPTER V, EMPLOYEE IS DEFINED IN SECTION 5541. THE SUMMER AIDS ARE INCLUDED WITHIN THE GENERAL DEFINITION OF EMPLOYEE CONTAINED IN THAT SECTION, AND THEY ARE NOT WITHIN ANY OF THE EXCLUSIONS TO THE GENERAL DEFINITION.

IN FACT, IT IS EASIER TO SAY WHAT STATUS THESE SUMMER AIDS DO NOT HOLD THAN IT IS TO DEFINE WHAT THEIR ACTUAL STATUS IS. THEIR POSITIONS WOULD SEEM TO BE WITHIN 5 U.S.C. 5102(C)(19) (1976), AND, UNDER 5 U.S.C. 5342(B)(1) (1976), WHICH EXCLUDES MOST EMPLOYEES LISTED IN SECTION 5102(C) FROM THE DEFINITION OF PREVAILING RATE EMPLOYEE, THEY ARE EXCLUDED FROM THE COVERAGE OF THE PREVAILING RATE SYSTEM. THEREFORE, EVEN THOUGH THEIR POSITIONS WOULD GENERALLY BE PREVAILING RATE POSITIONS, THEY CANNOT BE CONSIDERED PREVAILING RATE EMPLOYEES.

SINCE WE CAN FIND NOTHING THAT SPECIFICALLY EXCLUDES THESE EMPLOYEES FROM THE RIGHT TO RECEIVE THE NIGHT PAY DIFFERENTIAL, WE HOLD THAT THEY ARE ENTITLED TO THAT BENEFIT. WE ARE PROVIDING THE OFFICE OF PERSONNEL MANAGEMENT WITH A COPY OF THIS DECISION, AND SUGGEST THAT APPROPRIATE ACTION BE TAKEN TO MORE SPECIFICALLY DELINEATE THE STATUS OF INDIVIDUALS HIRED AS SUMMER AIDS UNDER 5 C.F.R. 213.3102(V) (1977).