Q: Reading your article on Sunday pay, I thought I’d ask about a situation I have witnessed in my organization. There is need for a Federal employee to cover hours at a facility until 8 p.m. Monday through Friday. Every month, there is a sign up roster for employees to volunteer to work these hours. This is because none of the staff’s regular hours go beyond 5 p.m. The staff who volunteer are allowed to record Compensatory Time for the extra hours worked, but they are not allowed to claim Overtime or Night Differential pay for the hours worked. This is not something that is temporary, but rather something that has been going on for more than two years. My question is: “Is this an acceptable way to cover later hours under the rules?”
A: Part 610 of Title 5 of the Code of Federal Regulations establishes the regulations covering the scheduling of work hours for Federal employees. One paragraph tells all those who establish employee work schedules that they “…shall schedule an employee’s regularly scheduled administrative workweek so that it corresponds with the employee’s actual work requirements.” (see 610.122(b)(1))
Further on the regulations caution those who create schedules that if it is determined that the schedule maker was aware of what time the work was to be performed and who was qualified to perform it but did not schedule that work, then the work will be treated as though it had been regularly scheduled and the employee(s) will be entitled to the appropriate premium pay for that work. (see 610.122(b)(3))
It sounds to me like the situation in your unit meets these requirements. The supervisor knows what work needs to be performed, knows what specific days and hours it is required, and knows who is qualified to perform the work, but is not adding that work requirement to individual work schedules. That means that the time should have been treated as regularly scheduled overtime and compensated with overtime pay. The use of comp time for this kind of assignment is not appropriate because it does not meet the definition of irregular or occasional overtime.
Wayne Coleman is a federal pay expert available to help your agency avoid premium pay claims through on-site training. Contact him for more information.