B-235641.2, Jul 18, 1991, Office of General Counsel

B-235641.2: Jul 18, 1991

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Is advised that his agency has complete discretion in determining an employee's workweek and the scheduling within the workweek. The employee is advised that Office of Personnel Management regulations in 5 C.F.R. The head of an agency is responsible for establishing a basic administrative workweek and for scheduling work within that workweek. This scheduling is subject to OPM regulations. 5 U.S.C. The matter of the establishment of workweeks and the scheduling of work is entirely within the discretion of the agency. Any specific questions you have concerning your scheduling should be addressed to your employing agency. When the employee is reimbursed for premium pay on an annual basis for regularly scheduled standby duty beginning at 20 percent of basic pay.

B-235641.2, Jul 18, 1991, Office of General Counsel

CIVILIAN PERSONNEL - Compensation - Compensation restrictions - Rates - Amount determination CIVILIAN PERSONNEL - Compensation - Overtime - Standby overtime - Eligibility DIGEST: Employee, a firefighter, is advised that his agency has complete discretion in determining an employee's workweek and the scheduling within the workweek. In response to his specific question concerning Sunday work in return for additional annual premium pay for standby overtime, the employee is advised that Office of Personnel Management regulations in 5 C.F.R. Sec. 550.144(a)(4) (1991), clearly bases any increase in the basic rate of premium pay over 20 percent upon the average number of Sundays worked over a calendar year.

Gordon Dibble:

We refer to your letter of March 18, 1991, concerning your inquiry into pay policies for federal firefighters. Your specific question relates to the payment of annual premium pay for standby overtime under the provisions of 5 U.S.C. Sec. 5545(c)(l) (1988), and its relation to Sunday duty.

Under the provisions of 5 U.S.C. Sec. 5545(c)(1), the head of an agency, with the approval of the Office of Personnel Management (OPM), may authorize the payment of annual premium pay for standby overtime, not in excess of 25 percent. In addition, under the provisions of 5 U.S.C. Sec. 6101 (1988), the head of an agency is responsible for establishing a basic administrative workweek and for scheduling work within that workweek. Again, this scheduling is subject to OPM regulations. 5 U.S.C. Sec. 6101(c) (1988). The matter of the establishment of workweeks and the scheduling of work is entirely within the discretion of the agency. William Kohler, B-216756, Feb. 19, 1985. Therefore, any specific questions you have concerning your scheduling should be addressed to your employing agency.

However, we point out that OPM has established regulations concerning the payment of annual premium pay and, in particular, its application to Sunday work. We presume that your duties as a firefighter require you to remain on standby duty and to work a schedule which, in accordance with OPM regulations, allows the agency to reimburse you at 20 percent of your basic pay. 5 C.F.R. Sec. 550.144(a)(1),(2),(3) (1991). When the employee is reimbursed for premium pay on an annual basis for regularly scheduled standby duty beginning at 20 percent of basic pay, then OPM regulations provide that the agency shall increase this rate by adding 2-1/2 percent when the employee is required to perform Sunday work on an average of 20 to 40 Sundays over a year's period. The regulations further provide that 5 percent is added to the employee's basic rate of pay when the employee is required to perform Sunday work on an average of 41 or more Sundays over a year's period, but the increased rate may not exceed 25 percent. C.F.R. Sec. 550.144(a)(4) (1991).

Therefore, the regulations are clear that it is the average number of Sundays actually worked during a calendar year that govern the employee's entitlement to the additional percentage of 2-1/2 or 5 percent. See Randy W. Hoffman, B-239493, Feb. 7, 1991. And, as stated above, the scheduling of work is entirely within the discretion of the agency.

We are furnishing you with copies of the decisions and OPM regulations cited to above.