B-178401, JUN 6, 1973

B-178401, JUN 6, 1973

QUESTION PRESENTED OF PREMIUM PAY FOR SUNDAY WORK OF MR. THOMAS E. STERNER. PAYMENT AUTHORIZED.

TO MISS MYLDRED N. JONES:

THIS REFERS TO YOUR LETTER OF APRIL 6, 1973, WITH ENCLOSURES, REFERENCE MBM-ADM-FIN, REQUESTING WHETHER YOU MAY CERTIFY THE ENCLOSED VOUCHER IN THE AMOUNT OF $14.48 IN FAVOR OF MR. THOMAS E. STERNER REPRESENTING PREMIUM PAY FOR SUNDAY WORK PERFORMED UNDER THE FOLLOWING CONDITIONS.

MR. STERNER IS NORMALLY ON A MONDAY THROUGH FRIDAY TOUR OF DUTY, BUT FOR ONE WEEK ONLY WAS SCHEDULED SUNDAY THROUGH THURSDAY. YOU POINT OUT THAT FEDERAL PERSONNEL MANUAL SUPPLEMENTS 532 S8.4E AND 550 S1.10(2) STATE THAT AN EMPLOYEE IS ENTITLED TO PREMIUM PAY FOR SUNDAY WORK FOR EACH REGULARLY SCHEDULED TOUR OF DUTY THAT INCLUDES SUNDAY. YOUR CONCERN IN THE MATTER IS WHAT CONSTITUTES A REGULARLY SCHEDULED TOUR OF DUTY IN ORDER TO PAY SUNDAY PREMIUM PAY, AND ASK IN THIS REGARD WHETHER THE SAME DEFINITION AS SET OUT IN 36 COMP. GEN. 657 (1957), AS AMPLIFIED BY 39 COMP. GEN. 73 (1959) FOR PAYMENT OF NIGHT DIFFERENTIAL, IS APPLICABLE. IN THE CORRESPONDENCE FORWARDED WITH YOUR LETTER RELATING TO THE QUESTION GENERALLY, IT IS STATED THAT SOME OF THE EMPLOYEES AT THE LARAMIE ENERGY RESEARCH CENTER WILL BE SCHEDULED TO WORK EVERY OTHER SUNDAY AND IT IS IMPOSSIBLE TO PROVIDE AN EXTENDED SCHEDULE IN ADVANCE BECAUSE OF THE UNCERTAINTY INVOLVED IN CONDUCTING A RESEARCH EXPERIMENT.

IT WAS INDICATED IN 36 COMP. GEN. 657, THAT "REGULARLY SCHEDULED WORK" FOR PURPOSES OF NIGHT DIFFERENTIAL COMPENSATION MUST BE SCHEDULED ON AT LEAST ONE DAY OF EACH OF 2 CONSECUTIVE WORKWEEKS. THIS HOWEVER WAS NOT VIEWED AS EXCLUDING FROM CONSIDERATION AS "REGULARLY SCHEDULED WORK" NIGHT WORK SCHEDULED TO RECUR EVERY OTHER WEEK INSTEAD OF ON AT LEAST ONE DAY OF EACH OF 2 CONSECUTIVE WORKWEEKS. 39 COMP. GEN. 73. AS STATED IN YOUR LETTER SUCH DECISIONS CONCERNED PAYMENT OF NIGHT DIFFERENTIAL AND, IN ANSWER TO YOUR QUESTION, THEY ARE NOT TO BE VIEWED AS ESTABLISHING A DEFINITION FOR A "REGULARLY SCHEDULED TOUR OF DUTY" IN RELATION TO SUNDAY PREMIUM PAY.

5 U.S.C. 5546(A), THE LAW GOVERNING PAY FOR SUNDAY WORK, PROVIDES:

(A) AN EMPLOYEE WHO PERFORMS WORK DURING A REGULARLY SCHEDULED 8 HOUR PERIOD OF SERVICE WHICH IS NOT OVERTIME WORK AS DEFINED BY SECTION 5542(A) OF THIS TITLE A PART OF WHICH IS PERFORMED ON SUNDAY IS ENTITLED TO PAY FOR THE ENTIRE PERIOD OF SERVICE AT THE RATE OF HIS BASIC PAY, PLUS PREMIUM PAY AT A RATE EQUAL TO 25 PERCENT OF HIS RATE OF BASIC PAY.

WE BELIEVE THE TERM "REGULARLY SCHEDULED 8-HOUR PERIOD OF SERVICE" AS USED IN THIS STATUTE WAS INTENDED TO RELATE TO THE 40-HOUR WEEKLY TOUR OF DUTY GENERALLY ESTABLISHED FOR FEDERAL EMPLOYEES, NORMALLY 5 WORKING DAYS OF 8 HOURS EACH. OF COURSE, A 40-HOUR WEEKLY TOUR OF 8 HOURS EACH DAY DOES RECUR AND IN THAT SENSE SUCH TERM IS CONSISTENT WITH THE DECISIONS PREVIOUSLY REFERRED TO INVOLVING NIGHT DIFFERENTIAL. SEE ALSO 48 COMP. GEN. 334 CONCERNING REGULARLY SCHEDULED OVERTIME WORK.

IN VIEW OF THE FOREGOING, THE VOUCHER, WITH ATTACHMENTS, IS RETURNED HEREWITH AND MAY BE CERTIFIED FOR PAYMENT.