B-159950, OCTOBER 19, 1966, 46 COMP. GEN. 337

B-159950, OCTOBER 19, 1966, 46 COMP. GEN. 337

COMPENSATION - PART-TIME EMPLOYEES - OVERTIME, PREMIUM PAY, ETC. ALTHOUGH PART-TIME EMPLOYEES WHO WORK ON SUNDAY ARE NOT ENTITLED TO THE PREMIUM PAY AUTHORIZED IN SECTION 405 OF THE FEDERAL SALARY AND FRINGE BENEFITS ACT OF 1966, THE LEGISLATIVE HISTORY OF THE PROVISION EVIDENCING THAT ONLY FULL-TIME EMPLOYEES WHOSE REGULARLY SCHEDULED 5 DAY WORKWEEK INCLUDES SUNDAY ARE INTENDED TO BE COVERED BY THE ACT, THEY ARE ENTITLED TO OVERTIME COMPENSATION FOR HOURS WORKED IN EXCESS OF 8 HOURS PER DAY, SECTION 404 OF THE ACT PROVIDING THE OVERTIME BENEFITS NOT RESTRICTING THE BENEFITS TO FULL-TIME EMPLOYEES. COMPENSATION - PREMIUM PAY - LIMITATIONS ON PAYMENT. FULL-TIME CLASSIFIED AND WAGE BOARD EMPLOYEES WHOSE REGULARLY SCHEDULED TOUR OF DUTY INCLUDES A PERIOD OF SERVICE LESS THAN 8 HOURS ANY PART OF WHICH FALLS BETWEEN MIDNIGHT SATURDAY AND MIDNIGHT SUNDAY ARE ENTITLED TO PREMIUM PAY FOR THE NUMBER OF HOURS WORKED THAT ARE NOT IN EXCESS OF THE NUMBER OF HOURS REGULARLY SCHEDULED FOR THE PERIOD, AS THE WORDS "EIGHT- HOUR PERIOD OF SERVICE" USED IN SECTION 405 OF THE FEDERAL SALARY AND FRINGE BENEFITS ACT OF 1966 ARE A LIMITATION UPON THE NUMBER OF HOURS FOR WHICH PREMIUM PAY MAY BE MADE FOR THE PERIOD OF SERVICE AND NOT A REQUIREMENT THAT AN EMPLOYEE HAVE A REGULARLY SCHEDULED 8-HOUR PERIOD OF DUTY ON THE DAY FOR WHICH THE PREMIUM COMPENSATION IS PAYABLE.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 19, 1966:

THIS REFERS TO YOUR LETTER OF AUGUST 24, 1966, SUBMITTING FOR OUR COMMENTS A COPY OF A PROPOSED FPM LETTER PERTAINING TO CERTAIN AMENDMENTS MADE BY THE FEDERAL SALARY AND FRINGE BENEFITS ACT OF 1966, PUBLIC LAW 89- 504, TO THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED. THE PROPOSED LETTER WOULD SUPPLEMENT THE INFORMATION CONTAINED IN FPM LETTER NO. 550- 16, DATED AUGUST 5, 1966, TO PROVIDE THAT PART-TIME EMPLOYEES ARE ENTITLED TO SUNDAY PREMIUM PAY IF OTHERWISE ELIGIBLE AND TO OVERTIME COMPENSATION FOR HOURS WORKED IN EXCESS OF 8 PER DAY.

REFERRING TO PREMIUM PAY FOR SUNDAY WORK UNDER SECTION 405 OF PUBLIC LAW 89-504 YOU NOW PROPOSE TO SAY THAT AN EMPLOYEE WITH A REGULARLY PREARRANGED TOUR OF LESS THAN 40 HOURS A WEEK IS ENTITLED TO PREMIUM PAY FOR SUNDAY WORK FOR THAT PART OF HIS REGULARLY SCHEDULED TOUR OF DUTY, ANY PART OF WHICH IS WITHIN THE PERIOD BEGINNING AT MIDNIGHT SATURDAY AND ENDING AT MIDNIGHT SUNDAY. IN SUPPORT OF SUCH ACTION YOU EXPRESS THE BELIEF THAT THE EVIDENT INTENT OF THE TWO PREMIUM PAY PROVISIONS CITED HEREIN IS TO DISCOURAGE AGENCIES FROM REQUIRING EMPLOYEES TO WORK MORE THAN 8 HOURS IN ANY DAY OR TO WORK ON SUNDAYS UNLESS IT IS UNAVOIDABLE WHICH IS CLEARLY AS APPLICABLE TO PART-TIME AS TO FULL-TIME EMPLOYEES. ADDITION, YOU POINT OUT THAT THE LANGUAGE OF THE STATUTE DOES NOT LIMIT THE COVERAGE OF SUCH PROVISIONS TO FULL-TIME EMPLOYEES.

SUBSECTIONS 405/C) AND 405/F) OF THE FEDERAL SALARY AND FRINGE BENEFITS ACT OF 1966 (5 U.S.C. 5546 AND 5544) AMENDED (1) THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AND (2) SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1935, TO REQUIRE PREMIUM COMPENSATION FOR SUNDAY WORK TO CLASSIFIED AND WAGE BOARD EMPLOYEES AS FOLLOWS:

* * * THAT EMPLOYEES SUBJECT TO THIS SECTION WHOSE REGULAR WORK SCHEDULE INCLUDES AN EIGHT-HOUR PERIOD OF SERVICE ANY PART OF WHICH IS WITHIN THE PERIOD COMMENCING AT MIDNIGHT SATURDAY AND ENDING AT MIDNIGHT SUNDAY SHALL BE PAID EXTRA COMPENSATION AT THE RATE OF 25 PER CENTUM OF HIS HOURLY RATE OF BASIC COMPENSATION FOR EACH HOUR OF WORK PERFORMED DURING THAT EIGHT- HOUR PERIOD OF SERVICE.

S. REPT. NO. 1187, 89TH CONG., 2ND SESS. 4, ON H. R. 14122 WHICH BECAME PUBLIC LAW 89-504 CONTAINS THE FOLLOWING PERTINENT STATEMENT IN EXPLANATION OF THE PROVISIONS OF SECTION 405:

SECTION 405 APPLIES TO CLASSIFIED AND WAGE BOARD EMPLOYEES A SIGNIFICANT LIBERALIZATION GRANTED POSTAL EMPLOYEES IN 1965. THIS SECTION REQUIRES A PREMIUM OF 25 PERCENT OF BASE PAY FOR ANY EMPLOYEE WHOSE REGULARLY SCHEDULED 5-DAY WORKWEEK INCLUDES SUNDAY. THE PREMIUM WILL BE PAID FOR THE ENTIRE 8-HOUR PERIOD OF SERVICE REGARDLESS OF THE NUMBERS OF HOURS WHICH ACTUALLY OCCUR ON SUNDAY. THIS IS IDENTICAL TO THE PROVISIONS FOR REGULAR POSTAL EMPLOYEES ENACTED LAST YEAR.

THE HEARINGS BEFORE THE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, UNITED STATES SENATE, 89TH CONG., 2ND SESS., ON H. R. 14122, HELD ON APRIL 20, 21, 22, 25, 26 AND 27, 1966, BEGINNING ON PAGE 4, SPEAKS IN PERTINENT PART AS FOLLOWS CONCERNING THE NEW SUNDAY PAY PROVISIONS:

THE HOUSE BILL, H. R. 14122, ADDS NEW * * * SUNDAY PAY BENEFITS FOR MOST FEDERAL EMPLOYEES. EQUITY ALLOWS NO ALTERNATIVE BUT TO CONCUR IN THE PROPOSALS TO EXTEND TO ADDITIONAL GROUPS * * * PREMIUM PAY AT 25 PERCENT OF BASE RATES FOR NONOVERTIME WORK ON SUNDAY.

* * * CONGRESS LAST YEAR PRESCRIBED PREMIUM PAY FOR NONOVERTIME SUNDAY WORK OF POSTAL MPLOYEES; IT IS EQUITABLE TO EXTEND THE SAME POLICY TO OTHER SALARIED EMPLOYEES AND TO THOSE PAID UNDER WAGE-BOARD SCHEDULES.

FROM THE FOREGOING STATEMENTS IT APPEARS TO HAVE BEEN THE INTENT OF CONGRESS TO GRANT TO EMPLOYEES SUBJECT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AS WELL AS TO WAGE BOARD EMPLOYEES, THE SAME PREMIUM PAY FOR SUNDAY WORK GRANTED TO POSTAL EMPLOYEES IN 1965. THE PROVISION FOR THE 25 PERCENT PREMIUM PAY FOR POSTAL EMPLOYEES IS CONTAINED IN SECTION 5/B) OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, PUBLIC LAW 89-301, APPROVED OCTOBER 29, 1965, AMENDING 39 U. S. C. 3573. IN S. REPT. NO. 896 ON H. R. 10281 WHICH BECAME PUBLIC LAW 89 301, THE FOLLOWING STATEMENT APPEARS (SPEAKING OF EMPLOYEES OF THE POSTAL SERVICE): "A SPECIAL PREMIUM PAY OF 25 PERCENT OF THE HOURLY RATE WILL BE PAID TO REGULAR EMPLOYEES WHOSE 5-DAY WORK SCHEDULE INCLUDES AN 8-HOUR SHIFT ANY PART OF WHICH OCCURS ON SUNDAY;,

WHILE THE LITERAL LANGUAGE OF SUBSECTIONS 405/C) AND 405/F) OF PUBLIC LAW 89-504 DOES NOT RESTRICT THE BENEFITS IN QUESTION TO FULL TIME EMPLOYEES WE BELIEVE THE LEGISLATIVE HISTORY PREVIOUSLY REFERRED TO SUPPORT THE VIEW THAT ONLY FULL-TIME EMPLOYEES WERE INTENDED TO BE COVERED THEREBY AND, THEREFORE, WE CONCLUDE THAT PART-TIME EMPLOYEES ARE NOT ENTITLED TO PREMIUM PAY FOR SUNDAY WORK.

ON THE OTHER HAND WE REGARD THE WORDS "EIGHT-HOUR PERIOD OF SERVICE" APPEARING IN THE QUOTED PROVISIONS AS A LIMITATION UPON THE NUMBER OF HOURS FOR WHICH PREMIUM PAY MAY BE MADE FOR THE PERIOD OF SERVICE AND NOT AS REQUIRING THAT THE EMPLOYEE HAVE A REGULARLY SCHEDULED 8-HOUR PERIOD OF DUTY FOR THE DAY FOR WHICH SUCH PREMIUM COMPENSATION IS OTHERWISE PAYABLE. THUS, A FULL-TIME EMPLOYEE WHOSE REGULARLY SCHEDULED TOUR OF DUTY INCLUDES A PERIOD OF SERVICE OF LESS THAN 8 HOURS ANY PART OF WHICH FALLS BETWEEN MIDNIGHT SATURDAY AND MIDNIGHT SUNDAY IS ENTITLED TO PREMIUM PAY FOR THE NUMBER OF HOURS WORKED NOT IN EXCESS OF THE NUMBER OF HOURS REGULARLY SCHEDULED FOR SUCH PERIOD.

AS TO THE OVERTIME COMPENSATION PROVISIONS CONTAINED IN SECTION 404 OF PUBLIC LAW 89-504 (5 U. S. C. 5542), WE AGREE THAT THE LANGUAGE THEREOF DOES NOT RESTRICT THE BENEFITS TO FULL-TIME EMPLOYEES AND WE HAVE FOUND NOTHING IN THE LEGISLATIVE HISTORY OF THIS OR RELATED STATUTES WHICH WOULD WARRANT A CONCLUSION THAT SUCH RESTRICTION WAS SO INTENDED. THEREFORE, UNDER SECTION 404 OUR VIEW IS THAT PART-TIME EMPLOYEES ARE ENTITLED TO OVERTIME COMPENSATION FOR HOURS WORKED IN EXCESS OF 8 PER DAY.

WE SUGGEST THE PROPOSED FPM LETTER BE REVISED TO ACCORD WITH THE FOREGOING.