Authority To Permit Part-Time Employees To Work Regularly Scheduled Workweeks of 33 To 39 Hours

• Decision Date: 31 December 2015
• Docket Number: 15-3
• Citation: 39 Op. O.L.C. 1
• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Parties: Authority to Permit Part-Time Employees to Work Regularly Scheduled Workweeks of 33 to 39 Hours

39 Op. O.L.C. 1

Authority to Permit Part-Time Employees to Work Regularly Scheduled Workweeks of 33 to 39 Hours

No. 15-3

United States Department of Justice

December 31, 2015

BRIAN M. BOYNTON Deputy Assistant Attorney General Office of Legal Counsel

Authority to Permit Part-Time Employees to Work Regularly Scheduled Workweeks of 33 to 39 Hours

The statutes governing federal employment permit federal agencies to schedule part-time employees to work regularly scheduled workweeks of 33 to 39 hours.

The Federal Employees Part-Time Career Employment Act of 1978 does not limit agencies’ preexisting authority to schedule part-time employees to work any number of hours per week less than 40.

MEMORANDUM OPINION FOR THE PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION

The Civil Rights Division (“CRT”) has asked whether federal agencies may permit their part-time employees to work regularly scheduled workweeks of 33 to 39 hours.^[1] In CRT’s view, such arrangements are lawful because the statutes governing federal employment grant agencies broad authority to set their employees’ schedules and no statute prohibits part-time schedules of 33 to 39 hours per week.^[2] The Office of Personnel Management (“OPM”) disagrees. It observes that the Federal Employees Part-Time Career Employment Act of 1978, Pub. L. No. 95-437 92 Stat. 1055 (codified as amended at 5 U.S.C. §§ 3401 et seq. ) (the “Act”), defines “part-time career employment” for purposes of the Act as “part-time employment of 16 to 32 hours a week.” 5 U.S.C. § 3401(2). OPM argues that this provision sets forth the exclusive definition of part-time employment in the federal government and, as a result, bars part-time employees from working regular schedules of 33 to 39 hours per week.^[3] [ 2]

We conclude that the statutes governing federal employment permit regular part-time schedules of 33 to 39 hours per week. Before the enactment of the Act in October 1978 federal employment statutes permitted agencies to schedule part-time employees to work any number of hours per week less than 40, and in our view the Act did not alter that authority. The text of the Act does not prohibit any form of part-time employment, and the Act’s purpose, structure legislative history, and statutory context do not provide a basis to infer such a prohibition.

In reaching this conclusion, we do not address whether OPM has authority, independent of the Act, to prohibit agencies from offering part-time employment of more than 32 hours per week or whether agencies may as a policy matter elect to require their components not to offer such employment. Nor do we address what administrative steps, if any, CRT would need to undertake before scheduling part-time employees to work regular schedules of more than 32 hours per week.

I.

We begin with the relevant statutory and regulatory background the statutes that governed part-time employment before enactment of the Act in 1978, the provisions of the Act, and subsequent regulatory action relating to the Act.

A.

For many decades, agencies have been authorized to “employ such number of employees . . . as Congress may appropriate for from year to year.” 5 U.S.C. § 3101 (Supp. II 1966); see 5 U.S.C. § 43 (1934) (“There is authorized to be employed in each executive department . . . such number of employees . . . as may be appropriated for by Congress from year to year.”). Since the enactment of the Federal Employees Pay Act of 1945, Pub. L. No. 79-106, 59 Stat. 295, Congress has required agencies “to establish . . . for all full-time officers and employees . . . a basic administrative workweek of forty hours.” Id. § 604(a) (codified as amended at 5 U.S.C. § 6101(a)(2)(A)). But Congress has long made clear that agencies are not limited to hiring only full-time employees. It has enacted numerous statutes that set forth rules governing part-time employees who may work less than the standard 40-hour schedule.

One of the first statutes to address part-time federal employment was the 1945 Pay Act itself. In addition to establishing the basic 40-hour workweek, that statute instructed the Director of the Bureau of the Budget to “determine the numbers of full-time employees and man-months of part-time employment which in his opinion are required” for “the proper and efficient performance” of each agency’s authorized functions, and to order agencies to release or terminate “any personnel or employment . . . in excess thereof.” Id. § 607(b). Hence, at the same time that Congress codified the 40-hour workweek for full-time employees, it also acknowledged the existence of “part-time employment” and permitted agencies to [ 3] retain part-time personnel so long as they were not “in excess” of administrative personnel ceilings.

In the decades that followed, Congress enacted additional statutes addressing part-time federal employment. For instance, in 1949, after discovering that “the estimated 10, 000 part-time [federal] employees” working regular 5-day schedules were ineligible for sick and annual leave, H.R. Rep. No. 81-655, at 1, 5 (1949), Congress enacted a statute providing that “part-time officers and employees for whom there has been established a regular tour of duty covering not less than five days in any administrative workweek shall . . . be entitled to the benefits pro rata of the annual and sick leave Acts.” Act of Oct. 5, 1949, Pub. L. No. 81-316, § 1, 63 Stat. 703, 703 (codified as amended at 5 U.S.C. § 6302(c)). In 1964, Congress enacted the Dual Compensation Act, Pub. L. No. 88-448, 78 Stat. 484 (1964), which provided that federal employees could work in “more than one civilian office”—including more than one “temporary, part-time, or intermittent position”—for up to “an aggregate of forty hours of work in any one calendar week.” Id. §§ 101(3), 301(a) (codified as amended at 5 U.S.C. §§ 5531(a)(2), 5533(a)); see S. Rep. No. 88-935, at 17 (1964) (explaining that this statute would enable “part-time employees” to hold “a combination of part-time positions equaling one full-time position”). In 1971, seeing “no reasonable justification for depriving part-time and intermittent salaried employees of premium pay, ” S. Rep. No. 92-530, at 1–2 (1971), Congress made overtime pay available for federal employees working “full-time, part-time and intermittent tours of duty.” Act of Dec. 15, 1971, Pub. L. No. 92-194, 85 Stat. 648 (codified as amended at 5 U.S.C. § 5542(a)). And in September 1978, Congress enacted the Federal Employees Flexible and Compressed Work Schedules Act of 1978, Pub. L. No. 95-390, 92 Stat. 755, which authorized agencies to conduct three-year experiments “to test a . . . compressed schedule, ” defined “in the case of a part-time employee” as a “biweekly basic work requirement of less than 80 hours which is scheduled for less than 10 workdays.” Id. §§ 201(1)(B), 202(a), (d).^[4]

The Civil Service Commission—the agency charged with administering the federal personnel laws until the establishment of OPM in 1978—also acknowledged agencies’ authority to hire part-time employees. In 1954, for instance, the Commission promulgated regulations defining a “[r]egularly scheduled administrative workweek . . . [f]or part-time employees” to mean “the officially prescribed days and hours within an administrative workweek during which such employees are required to be on duty regularly.” 19 Fed. Reg. 7097, 7097 (Nov. 2, 1954). [ 4]

And in 1971, the Commission issued a version of its Federal Personnel Manual that defined a “part-time employee” for purposes of administrative personnel ceilings as an employee “who works less than 40 hours a week.” Federal Personnel Manual, ch. 312, app. B, § B-2(d) (Apr. 30, 1971).

B.

In October 1978, Congress enacted the Federal Employees Part-Time Career Employment Act. At that time, Congress was aware that part-time employment existed throughout the federal government. See H.R. Rep. No. 95-932, at 2–3 (1978) (noting that “1.9 percent of all nonpostal Federal employees work part time” and listing percentages of employees working part-time in numerous federal agencies); S. Rep. No. 95-1116, at 3–4 (1978) (stating that “2.3 percent of the Federal work force were permanent part-time employees” in 1977). But committees in both houses expressed concern that “[t]he Federal Government ha[d] lagged far behind the private sphere in providing and improving part-time employment opportunities of any type.” S. Rep. No. 95-1116, at 3; see H.R. Rep. No. 95-932, at 2. “The major obstacle[s] to part-time Federal employment, ” the committees found, were “agency personnel ceilings set by the Office of Management and Budget, ” under which a part-time employee occupied one of the limited number of positions allotted to each agency “whether the employee work[ed] two or 39 hours.” H.R. Rep. No. 95-932, at 3; see S. Rep. No. 95-1116, at 9. As a consequence of this system, the committees concluded, agencies had a tendency “to hire 39 hour per week ‘part timers, ’” rather than “truly part-time employees, ” H.R. Rep. No. 95-932, at 4, 7, and “in all likelihood employees falling into th[e] 35- to 39-hour a week category made up the vast majority of the new people hired to work part-time in the past year, ” S. Rep. No. 95-1116, at 10.

The Act was designed to address these problems. Its stated “purpose” is “to provide increased part-time career employment opportunities throughout the Federal Government.” Act § 2(b). It defines the term “part-time career employment” as follows:

For the purpose of this chapter . . . ‘part-time career employment’ means part-time employment of 16 to 32 hours a week (or 32 to 64 hours during a biweekly pay period in the case of a flexible or compressed work schedule under subchapter II of chapter 61 of this

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