B-159950, JUN 6, 1973, 52 COMP GEN 923

B-159950, JUN 6, 1973, 52 COMP GEN 923

FUNDS - NONAPPROPRIATED - CIVILIAN EMPLOYEE ACTIVITIES - PREMIUM PAY FOR SUNDAY WORK PREVAILING RATE EMPLOYEES OF NONAPPROPRIATED FUND INSTRUMENTALITIES OF THE MILITARY DEPARTMENTS AND THE COAST GUARD WHO WORK REGULARLY SCHEDULED TOURS OF DUTY OF LESS THAN 40 HOURS A WEEK MAY NOT BE ALLOWED SUNDAY PREMIUM PAY UNDER 5 U.S.C. 5550, AS ADDED BY SECTION 10 OF PUBLIC LAW 92- 392, AUGUST 19, 1972. THE LEGISLATIVE HISTORY OF THE ACT SHOWS IT WAS THE INTENT OF CONGRESS TO PROVIDE SUNDAY PREMIUM PAY FOR NONAPPROPRIATED FUND EMPLOYEES IN THE SAME AMOUNTS AND UNDER THE SAME CONDITIONS AS SUCH PAY IS AUTHORIZED FOR OTHER FEDERAL PREVAILING RATE EMPLOYEES. ACCORDINGLY, THE CIVIL SERVICE COMMISSION REGULATIONS ISSUED PURSUANT TO 5 U.S.C. 5548(B) UNDER WHICH SUNDAY PREMIUM PAY IS ALLOWED PREVAILING RATE EMPLOYEES OF NONAPPROPRIATED FUND ACTIVITIES SHOULD REQUIRE THAT SUCH EMPLOYEES HAVE BASIC FULL-TIME WORKWEEKS OF 40 HOURS, EXCLUSIVE OF REGULARLY SCHEDULED OVERTIME, FOR ENTITLEMENT TO SUNDAY PREMIUM PAY.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, JUNE 6, 1973:

WE REFER TO YOUR LETTER OF APRIL 5, 1973, CONCERNING THE PAYMENT OF SUNDAY PREMIUM PAY TO PREVAILING RATE EMPLOYEES OF NONAPPROPRIATED FUND INSTRUMENTALITIES OF THE MILITARY DEPARTMENTS AND THE COAST GUARD UNDER THE PROVISIONS OF 5 U.S.C. 5550, AS ADDED BY SECTION 10 OF PUBLIC LAW 92- 392, AUGUST 19, 1972.

YOU REQUEST OUR DECISION WITH RESPECT TO THE PAYMENT OF SUNDAY PREMIUM PAY TO EMPLOYEES AT SUCH INSTRUMENTALITIES WHO WORK REGULARLY SCHEDULED TOURS OF DUTY OF LESS THAN 40 HOURS A WEEK IN VIEW OF THE DECISION 46 COMP. GEN. 337(1966) IN WHICH IT WAS HELD THAT THE PROVISIONS OF 5 U.S.C. 5544(A) WHICH AUTHORIZE SUNDAY PREMIUM PAY FOR PREVAILING RATE EMPLOYEES OTHER THAN THOSE EMPLOYED BY NONAPPROPRIATED FUND INSTRUMENTALITIES APPLY ONLY TO FULL-TIME EMPLOYEES. IN THAT CONNECTION YOU INDICATE THAT MANY NONAPPROPRIATED FUND EMPLOYEES WHO ARE CONSIDERED "FULL-TIME" EMPLOYEES HAVE BASIC WORKWEEKS OF A FEW HOURS LESS THAN 40. AS AN EXAMPLE YOU SAY THAT SUCH EMPLOYEES MAY WORK 5 - 7-HOUR DAYS FOR A TOTAL OF 35 HOURS PER WEEK.

THE LANGUAGE OF 5 U.S.C. 5550 WITH RESPECT TO SUNDAY PREMIUM PAY IS SIMILAR TO THAT CONTAINED IN 5 U.S.C. 5544(A) IN THAT PREMIUM PAY IS PRESCRIBED FOR EMPLOYEES WHOSE "REGULAR WORK SCHEDULE INCLUDES AN 8 HOUR PERIOD OF SERVICE, PART OF WHICH IS ON SUNDAY."

WE NOTE THAT 5 U.S.C. 5550 IN ADDITION TO PROVIDING FOR SUNDAY PREMIUM PAY PROVIDES FOR PAYMENT OF OVERTIME COMPENSATION TO PREVAILING RATE NONAPPROPRIATED FUND EMPLOYEES FOR WORK IN EXCESS OF 8 HOURS A DAY OR 40 HOURS A WEEK. THAT SECTION ALSO AUTHORIZES PAYMENT OF PREMIUM PAY FOR STANDBY OR ON-CALL DUTY BASED UPON A WORKWEEK IN EXCESS OF 40 HOURS. SEEMS CLEAR, THEREFORE, THAT THE CONGRESS IN ENACTING PREMIUM PAY PROVISIONS FOR NONAPPROPRIATED FUND PREVAILING RATE EMPLOYEES PREDICATED SUCH ALLOWANCES ON THE ASSUMPTION THAT THE BASIC WORKWEEK OF FULL-TIME EMPLOYEES IN THAT CATEGORY WAS 40 HOURS. MOREOVER, THE LEGISLATIVE HISTORY OF PUBLIC LAW 92-392 SHOWS THAT IT WAS THE INTENT OF CONGRESS TO PROVIDE SUNDAY PREMIUM PAY FOR PREVAILING RATE NONAPPROPRIATED FUND EMPLOYEES IN THE SAME AMOUNTS AND UNDER THE SAME CONDITIONS AS SUCH PAY IS AUTHORIZED FOR OTHER FEDERAL PREVAILING RATE EMPLOYEES. SEE H. REPT. 92- 339 AT PAGE 23.

ACCORDINGLY, IT IS OUR OPINION THAT THE COMMISSION'S REGULATIONS ISSUED PURSUANT TO 5 U.S.C. 5548(B) UNDER WHICH SUNDAY PREMIUM PAY IS ALLOWED PREVAILING RATE EMPLOYEES OF NONAPPROPRIATED FUND INSTRUMENTALITIES SHOULD REQUIRE THAT SUCH PREMIUM PAY WILL BE ALLOWED ONLY TO EMPLOYEES WHO HAVE BASIC FULL-TIME WORKWEEKS OF 40 HOURS EXCLUSIVE OF REGULARLY SCHEDULED OVERTIME.