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Premium Pay for Part-Time Federal Employees

By Susan Smith

Tuesday, May 26, 2009

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Susan McGuire Smith spent most of her 26-year federal government career with NASA, first at NASA Headquarters Office of General Counsel and then at Marshall Space Flight Center, serving as Chief Counsel there for more than 14 years. Her expertise is in government contracts, ethics, and personnel law. Ms. Smith has a J.D and a B.A. degree from the George Washington University. Her publications include Practical Ethics for the Federal Employee.

Five part-time meteorologists with the National Weather Service have caused some problems for the Office of Personnel Management's long-standing policy—formulated based on advice of the Comptroller General—that has denied premium pay for part-time employees. (Fathauer v. United States, C.A.F.C. No. 2008-5112, 5/26/2009)

The appeals court parses the meaning of "employee" in the applicable overtime pay law (5 U.S.C. 5542), pointing out that the end result depends upon whether Congress intended to include part-timers when referring to employees for this purpose. (Opinion pp. 5-6) The court concludes that Congress intended that the work be given its "ordinary meaning." (p. 7)

Apparently unimpressed with the definition used by the Office of Personnel Management (that was supported by the U.S. Court of Federal Claims in denying overtime to part-timers), the court instead relies on the dictionary definition of "employees" as "those who work for pay." (Citing, among others, the Oxford English Dictionary, Opinion p. 7)

Once the appeals court spells out the plain meaning of the term, it "decline[s] to sift through legislative history in search of ambiguity…" which is what the claims court had done in its analysis supporting OPM. (p. 9)

The lower court's decision has been vacated and the case remanded to the claims court to be dealt with "consistent with this opinion." (p. 9)

How OPM will handle this rebuke of its overtime regulations remains to be seen but we are confident that part-timers will be keeping a close eye on developments.

 

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Readers' Comments

  • Yah, it's easy to complain about having to pay for employees but the fact of the matter is that it's routine management practice to create "part-time" positions requiring people to work 39 hours in order to avoid paying premiums. Also a fact is the commercial system is in place to make money, no...
    Posted: May 28, 2009 9:07 AM
  • Just a few comments to clarify the above article. To briefly summarize the premise of the lawsuit in layman's terms; part time employees were denied Sunday premium pay even though their full time co-workers were eligible for the premium pay for the same work. The positive ruling in this lawsuit pa...
    Posted: May 28, 2009 1:35 AM
  • The article refers to premium pay which will cover a variety of situations. If you are really curious, you could download the case from the article and check it out--or just post a comment and complain that you need more information....
    Posted: May 27, 2009 9:02 AM

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