Premium Pay for Part-time Employees

The U.S. Court of Appeals for the Federal Circuit recently overruled the U.S. Court of Federal Claims in holding that part-time employees are entitled to Sunday premium pay under 5 U.S.C. § 5546(a) and 5 C.F.R. § 550.171(a). Fathauer v. U.S., No. 2008-5112 (May 26, 2009). The court disagreed with the Office of Personnel Management's interpretation of the Sunday premium pay statute that limited the premium rate of 125 percent of regular pay to full-time employees. The successful appellants are meteorologists in the National Weather Service who participate in job-share arrangements but routinely work 8-hour shifts on Sundays along with their full-time colleagues.

In its analysis, the court relied upon the unambiguous statutory definition of an "employee" set forth in 5 U.S.C. § 5541(2)(a). Citing dictionary definitions of an "employee" as someone who works for pay, the court noted that the definitions "contain no suggestion that an individual's status as an 'employee' is dependent on whether he works full time." Likewise, Supreme Court cases, including Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40, 751-52 (1989) ("CCNV"), have construed the word "employee" based on the employer's degree of control:

"Thus, whether an individual is an 'employee' under the Supreme Court's approach depends not on the number of hours worked per week, but on the level of control exercised by
the hiring party. It cannot be disputed that Appellants are 'employees' under the test articulated in CCNV."

Therefore, the court concluded that since appellants were "employees" under the plain meaning of the word which clearly includes those who work part-time, the unambiguous language of the statute must be followed, citing Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461-62 (2002). The court declined "to sift through the legislative history in search
of ambiguity."

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com/ .

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