Visit FedSmith.com to subscribe to our free email list!

Premium Pay for Part-Time Federal Employees

Part-time employees have long been denied premium pay. A new decision from a federal court may change that practice as the court sends a case back to the lower court after concluding that an employee includes “those who work for pay.”

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.

 

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.