B-178084, APR 21, 1975, 54 COMP GEN 890

B-178084, APR 21, 1975, 54 COMP GEN 890

COMPENSATION - WAGE BOARD EMPLOYEES - NIGHT DIFFERENTIAL - MAJORITY OF HOURS OUR DECISION 53 COMP. GEN. 814 (1974) INTERPRETED THE PHRASE "MAJORITY OF HOURS," AS CONTAINED IN 5 U.S.C. 5343(F), REGARDING ENTITLEMENT OF PREVAILING RATE EMPLOYEES TO NIGHT DIFFERENTIAL, TO MEAN A NUMBER OF WHOLE HOURS HOURS GREATER THAN ONE-HALF. PRIOR INTERPRETATION WAS MADE BY THE CIVIL SERVICE COMMISSION TO INCLUDE ANY TIME PERIOD OVER 4 HOURS IN AN 8- HOUR SHIFT. SINCE OUR DECISION 53 COMP. GEN. 814 WAS TANTAMOUNT TO A CHANGED CONSTRUCTION OF LAW, IT NEED NOT BE GIVEN RETROACTIVE APPLICATION.

IN THE MATTER OF PROSPECTIVE APPLICATION OF 53 COMP. GEN. 814, APRIL 21, 1975:

THIS ACTION IS TAKEN AT THE REQUEST OF THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, WHO REQUESTS THAT PROSPECTIVE-ONLY EFFECT BE GIVEN TO OUR DECISION OF MAY 1, 1974, 53 COMP. GEN. 814. IN THAT DECISION WE POINTED OUT THAT THE PROVISIONS OF 5 U.S.C. SEC. 5343(F), AS ENACTED BY PUBLIC LAW 92-392, APPROVED AUGUST 19, 1972, 86 STAT. 568, PROVIDE THAT A PREVAILING RATE EMPLOYEE IS ENTITLED TO PAY AT HIS SCHEDULED RATE PLUS A NIGHT DIFFERENTIAL:

(1) AMOUNTING TO 7 1/2 PERCENT OF THAT SCHEDULED RATE FOR REGULARLY SCHEDULED NONOVERTIME WORK A MAJORITY OF THE HOURS OF WHICH OCCUR BETWEEN 3 P.M. AND MIDNIGHT; AND

(2) AMOUNTING TO 10 PERCENT OF THAT SCHEDULED RATE FOR REGULARLY SCHEDULED NONOVERTIME WORK A MAJORITY OF THE HOURS OF WHICH OCCUR BETWEEN 11 P.M. AND 8 A.M.

WE CONCLUDED THAT UNDER THE AFORE STATED LANGUAGE, A PREVAILING RATE EMPLOYEE MAY BE PAID NIGHT DIFFERENTIAL ONLY WHEN 5 OR MORE HOURS OF HIS REGULARLY SCHEDULED 8-HOUR SHIFT OCCUR DURING THE SPECIFIED HOURS SINCE THE TERM "MAJORITY OF HOURS" MUST BE GIVEN ITS OBVIOUS MEANING - A NUMBER OF WHOLE HOURS GREATER THAN ONE-HALF.

AFTER REVIEWING THE LEGISLATIVE HISTORY OF SECTION 5343(F), SUPRA, WE WERE UNABLE TO FIND AUTHORITY THAT WOULD PERMIT SPLITTING THE AMOUNT OF NIGHT DIFFERENTIAL. WE FURTHER STATED THAT:

*** UNDER CFWS (COORDINATED FEDERAL WAGE SYSTEM) NIGHT DIFFERENTIAL WAS PAYABLE FOR WORK PERFORMED DURING THE HOURS OF 6 P.M. TO 6 A.M. UNDER 5 U.S.C. 5343(F) NIGHT DIFFERENTIAL IS PAYABLE FOR WORK PERFORMED DURING A LONGER PERIOD OF TIME - 3 P.M. TO 8 A.M. - AND THERE IS AN OVERLAP OF THE 7 1/2 PERCENT PERIOD OF 3 P.M. TO MIDNIGHT AND THE 10 PERCENT PERIOD OF 11 P.M. TO 8 A.M. THIS RESULTS IN A SUBSTANTIALLY DIFFERENT NIGHT DIFFERENTIAL SYSTEM FROM THAT ESTABLISHED UNDER THE INSTRUCTIONS APPLICABLE TO CFWS. IN VIEW OF THE SUBSTANTIAL LIBERALIZATION OF NIGHT SHIFT DIFFERENTIAL IN PUBLIC LAW 92-392, WE SEE NO PERSUASIVE BASIS FOR GIVING A MEANING TO THE PHRASE "MAJORITY OF THE HOURS" OTHER THAN ITS OBVIOUS MEANING IN ORDER TO PRESERVE ONE FEATURE OF CFWS WHICH WOULD HAVE, IF CONTINUED, AFFORDED EVEN GREATER BENEFITS. THEREFORE, WE CONCLUDE THAT A PREVAILING RATE EMPLOYEE MUST WORK 5 HOURS OF A SCHEDULED 8-HOUR SHIFT DURING THE PERIOD COVERED BY NIGHT DIFFERENTIAL IN ORDER TO QUALIFY FOR PAYMENT. (PARENTHESIS ADDED FOR CLARITY.)

THE CHAIRMAN STATES THAT HIS AGENCY HAD INTERPRETED THE TERM "MAJORITY OF HOURS" LITERALLY, I.E., AS ANY TIME PERIOD OVER 4 HOURS IN AN 8-HOUR SHIFT. FOR EXAMPLE, IF AN EMPLOYEE WORKED 4 1/2 HOURS OF HIS REGULARLY SCHEDULED 8-HOUR SHIFT DURING A TIME PERIOD FOR WHICH NIGHT DIFFERENTIAL IS AUTHORIZED, SUCH EMPLOYEE WOULD BE ENTITLED TO NIGHT DIFFERENTIAL FOR THE ENTIRE 8-HOUR SHIFT. HE FURTHER POINTS OUT THAT UNDER THE CFWS, A NIGHT DIFFERENTIAL WAS PAID TO AN EMPLOYEE WHEN "HALF OR MORE OF THE REGULARLY SCHEDULED HOURS" FELL BETWEEN 6 P.M. AND 6 A.M. HE STATES THAT WHEN CONGRESS ENACTED PUBLIC LAW 92-392, COMMONLY REFERRED TO AS THE "FEDERAL WAGE SYSTEM," IT AUTHORIZED A NIGHTSHIFT DIFFERENTIAL FOR AN EMPLOYEE'S ENTIRE SHIFT IF A MAJORITY OF THE EMPLOYEE'S REGULARLY SCHEDULED WORK FELL WITHIN THE TIME PERIODS DESIGNATED IN 5 U.S.C. SEC. 5343(F). THE CHAIRMAN CONCLUDES THAT:

SINCE IT WAS THE INTENT OF CONGRESS TO CONTINUE THE LONG-ESTABLISHED PAY PRACTICES OF THE COORDINATED FEDERAL WAGE SYSTEM WHEN IT ENACTED P.L. 92- 392, WE BELIEVED THAT OUR INTERPRETATION WAS A REASONABLE ONE IN LIGHT OF PAY PRACTICES UNDER THE CFWS. WE ALSO POINTED OUT TO YOU THAT SINCE OVERTIME PAY IS PAID FOR FRACTIONAL HOURS IN EXCESS OF EIGHT HOURS IN A DAY OR 40 HOURS IN A REGULARLY SCHEDULED WORKWEEK, WE FELT THAT NIGHT- SHIFT DIFFERENTIAL SHOULD ALSO BE PAID WHEN AN EMPLOYEE HAS WORKED MORE THAN FOUR HOURS IN AN EIGHT-HOUR SHIFT. ***

IN VIEW OF THE FACT THAT THOUSANDS OF EMPLOYEES HAVE BEEN PAID A NIGHT DIFFERENTIAL BETWEEN NOVEMBER 17, 1972, THE EFFECTIVE DATE OF THE NIGHTSHIFT DIFFERENTIAL PROVISIONS OF PUBLIC LAW 92-392, AND MAY 1, 1974, THE DATE OF OUR DECISION 53 COMP. GEN. 814, AND THE FACT THAT AGENCIES WOULD BE REQUIRED TO WAIVE OVERPAYMENTS OF PAY THEMSELVES, OR SEEK WAIVER BY THE COMPTROLLER GENERAL WHEN THE AMOUNTS EXCEED $500, OR IN THE ALTERNATIVE, SEEK REFUNDS FROM EMPLOYEES WHO HAVE BEEN ERRONEOUSLY PAID THE NIGHT DIFFERENTIAL, THE CHAIRMAN REQUESTS, AS WAS OUR CONCLUSION IN B- 170589, AUGUST 8, 1974, THAT A PROSPECTIVE-ONLY EFFECT RULE BE GIVEN TO OUR MAY 1, 1974 DECISION.

ORDINARILY AN ORIGINAL CONSTRUCTION OF A STATUTE, OR OF A REGULATION HAVING THE FORCE AND EFFECT OF LAW, IS EFFECTIVE FROM THE DATE OF THE STATUTE OR REGULATION. IN OUR DECISION B-170589, SUPRA, WE STATED THAT:

*** WHERE, AS HERE, A DECISION OF THIS OFFICE HAS THE EFFECT OF CLARIFYING THE PURPOSE OF A STATUE IN A MANNER THAT IS INCONSISTENT WITH A NOT UNREASONABLE INTERPRETATION GIVEN THAT STATUTE BY THE AGENCY RESPONSIBLE FOR ITS IMPLEMENTATION, THAT DECISION IS TANTAMOUNT TO A CHANGE IN CONSTRUCTION OF THE LAW AND NEED NOT BE GIVEN RETROACTIVE EFFECT. ***

WE VIEW SECTION 5343(F) AS BEING SUSCEPTIBLE OF THE INTERPRETATION GIVEN IT BY THE COMMISSION AND SUCH INTERPRETATION WAS REASONABLE, PARTICULARLY IN LIGHT OF THE PRIOR PAY PRACTICES WHICH EXISTED UNDER THE CFWS AS ENUMERATED BY THE CHAIRMAN. SINCE OUR DECISION 53 COMP. GEN. 814 (1974) WAS TANTAMOUNT TO A CHANGED CONSTRUCTION OF LAW, IT NEED NOT BE GIVEN RETROACTIVE APPLICATION. ACCORDINGLY, AND SINCE IT WOULD APPEAR TO BE IN THE BEST INTERESTS OF THE GOVERNMENT NOT TO APPLY THE DECISION OF MAY 1, 1974, RETROACTIVELY SO AS TO REQUIRE COLLECTION OF ERRONEOUS OVERPAYMENTS TO THE NUMEROUS AFFECTED EMPLOYEES, SUCH DECISION MAY BE TREATED AS EFFECTIVE FROM THE DATE IT WAS ISSUED.