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
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm
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