01-0008
Office of Merit Systems Oversight and Effectiveness
Date: March 6, 2001
File Number: [01-0008]
Matter of: [Claimants Name]
OPM Contact: Melissa Drummond
The claimant is a former non-appropriated fund (NAF) employee at the [agency], [city,state]. She was employed as a staff barber, NA-7, in the Main Barbershop from July 1999 through September 2000. The claimant contends that she has not been appropriately compensated for hours worked, specifically overtime and Sunday hours, during this time period. (She also requests determination of the basic workweek at the [location]. The claims function addresses pay and leave issues only; we do not have jurisdiction over determining the basic workweek for an installation. However, based on information from the agency, we recommend that the claimant refer to the Nonappropriated Fund Personnel Manual, Marine Corps Order 5300.9C for the information.) For the reasons discussed herein, the claim is granted.
We accepted the claim on November 16, 2000 and requested information from the installation. This information, including excerpts from DoD Manual 1400.25-M, was provided on January 23, 2001. Although the claimant provided pay stubs for pay periods 9, 17, and 18 of calendar year 2000 during the claim period, we requested a copy of all of the claimant's pay records, in order to make an appropriate determination for the entire claim period. This additional information was received on January 26, 2001.
According to personnel at [agency], staff barbers at this installation are paid either on a commission basis (53% of regular haircut sales and 68% of specialty cut sales) or based on an administrative rate ($5.15 per hour) -- whichever is greater. They state that this policy is for the benefit of the employee, as the wage that is paid to the employee is based on the higher of the two. According to the installation's records, the administrative rate of $5.15 was used for the calculation of the claimant's pay based on hours worked. Compensation for the claimant's overtime hours was calculated at 1.5 times the administrative rate multiplied by the number of overtime hours worked. Barber's vacation leave, sick leave, holiday pay and administrative leave were based on the "hourly rate" established for Crafts and Trades employees by the DoD Civilian Personnel Management Service. This rate was used only for leave purposes and was not the rate used for determining pay.
After reviewing the claimant's and the installation's submissions, we contacted the Department of Defense's (DoD) NAF Policy Office. DoD has established procedures on NAF pay administration, which supplement and complement governing pay policies and procedures prescribed by the Office of Personnel Management (OPM) Operating Manual, Federal Wage System, NAF. In consulting with the DoD headquarters NAF Policy Office, their interpretation of the Manual is that all premium payments are computed on the basis of the "payline rate". The "payline rate" is the second step of the grade of the person's current classification. This rate of pay is very similar to the rate of pay used for leave purposes. However, the operating manual explains that, for leave purposes, the hourly rate of the current grade and step of the employee is to be used. For overtime purposes, the hourly rate of the second step of the current grade of the employee is to be used.
The NAF barbers in [city, state] are paid on a commission basis, with a floor-minimum wage ($5.15) for slow periods. For leave purposes, the rate of pay to be used is their current grade and step. At the beginning of the claim period, the leave rate for the claimant was $8.35. However, due to an increase in her hourly rate on July 10, 2000, it became $8.76. For overtime purposes, step 2 of the claimant's current grade, NA-7, is to be used. The hourly rate for a NA-7/2, according to the NAF Regular Wage Rate Schedule for [city, state] Wage Area provided by [agency], is $8.45.
According to the DoD headquarters NAF Policy Office, compensation for overtime should be calculated at 1.5 times the payline rate multiplied by the number of overtime hours worked. In the claimant's case, the overtime rate is $12.68 ($8.45 x 1.5). [Note: Hourly rates are rounded to the nearest cent.] Sunday premium pay is calculated by multiplying the Sunday hours worked times the payline rate times 25 percent. [Note: Premium pay is said to be paid in addition to regular pay, because 25 percent of the payline rate is added to the original payline rate to determine Sunday premium pay.] In the claimant's case, the Sunday premium pay rate is $10.56 ($8.45 x 1.25)
Based on these calculations, the employee is paid the highest of both rates but is not entitled to receive both the commission amount and the overtime amount. Therefore, according to the operating manual, the employee gets paid the highest of either commission pay or per hourly pay plus overtime. However, the employee is not entitled to receive both the commission amount and the overtime amount.
A review of the claimant's payroll journal for the claim period, supplied by [agency], found that overtime hours and Sunday hours were worked for pay periods 9, 14, 16, 17, and 18. These pay periods are specifically addressed in the attached sheets. Based on the five pay periods addressed in this decision, the claimant is owed $47.58 ($14.86 + $5.20 + $21.88 + $3.44 + $2.20) by the agency. The claim is granted.
This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimants right to bring an action in an appropriate United States Court.
Attachment
Pay Period 9:
Regular Rate of Pay - Week 1
32 hours of work @ $5.15 = $164.80
3 hours of overtime @ $12.68 = $ 38.04
$202.84
OR
Commission Rate - Week 1
1st week $159.59
The greater pay for week 1 is the regular rate of pay, which totals $202.84.
Combined with: $202.84
8 hours of vacation leave @ $8.35 = $ 66.80
Total pay for week 1 = $269.64
Regular Rate of Pay - Week 2
28 hours of work @ $5.15 = $144.20
OR
Commission Rate - Week 2
2nd week $214.50
The greater pay for week 2 is the commission rate of pay, which equals $214.50.
Combined with: $214.50
12 hours of sick leave @ $8.35 = $100.20
Total pay for week 2 = $314.70
The total of both greater rates of pay for week 1 and week 2 of pay period 9 ($269.64 + $314.70) is $584.34. Based on the pay stub for pay period 9, submitted by the claimant, her total earnings were $569.48. The claimant is owed $14.86 for pay period 9.
Pay Period 14:
Regular Rate of Pay - Week 1
36 hours of work @ $5.15 = $185.40
4 hours of Sunday premium @ $10.56 = $ 42.24
$227.64
OR
Commission Rate - Week 1
1st week $225.72
The greater pay for week 1 is the regular rate of pay, which equals $227.64.
Regular Rate of Pay - Week 2
32 hours of work @ $5.15 = $164.80
OR
Commission Rate - Week 2
2nd week $217.45
The greater pay for week 2 is the commission rate of pay, which equals $217.45.
Combined with: $217.45
8 hours of sick leave @ $8.76 = $ 70.08
Total pay for week 2 = $287.53
The total of both greater rates of pay for week 1 and week 2 of pay period 14 ($227.64 + $287.53) is $515.17. Based on the payroll journal for the claimant, submitted by MCAS New River, her total earnings were $509.97. The claimant is owed $5.20 for pay period 14.
Pay Period 16:
Regular Rate of Pay - Week 1
40 hours of work @ $5.15 = $206.00
OR
Commission Rate - Week 1
1st week $248.61
The greater pay for week 1 is the commission rate of pay, which equals $248.61.
Regular Rate of Pay - Week 2
32 hours of work @ $5.15 = $164.80
1 hour of overtime @ $12.68 = $ 12.68
4 hours of Sunday premium @ $10.56 = $ 42.24
$219.72
OR
Commission Rate - Week 2
2nd week $197.84
The greater pay for week 2 is the regular rate of pay, which equals $219.72.
Combined with: $219.72
4 hours of sick leave @ $8.76 = $ 35.04
Total pay for week 2 = $254.76
The total of both greater rates of pay for week 1 and week 2 of pay period 16 ($248.61 + $254.76) is $503.37. Based on the payroll journal for the claimant, submitted by MCAS New River, her total earnings were $481.49. The claimant is owed $21.88 for pay period 16.
Pay Period 17:
Regular Rate of Pay - Week 1
34.50 hours of work @ $5.15 = $177.68
1.75 hours of overtime @ $12.68 = $ 22.19
5.5 hours of Sunday premium @ $10.56 = $ 58.08
$257.95
OR
Commission Rate - Week 1
1st week $289.25
The greater pay for week 1 is the commission rate of pay, which equals $289.25.
Regular Rate of Pay - Week 2
24 hours of work @ $5.15 = $123.60
OR
Commission Rate - Week 2
2nd week $120.16
The greater pay for week 2 is the regular rate of pay, which equals $123.60.
Combined with: $123.60
4 hours of sick leave @ $8.76 = $ 35.04
12 hours of vacation leave @ $8.76 = $105.12
Total pay for week 2 = $263.76
The total of both greater rates of pay for week 1 and week 2 of pay period 17 ($289.25 + $263.76) is $553.01. Based on the pay stub for pay period 17, submitted by the claimant, her total earnings were $549.57. The claimant is owed $3.44 for pay period 17.
Pay Period 18:
Regular Rate of Pay - Week 1
30 hours of work @ $5.15 = $154.50
4 hours of Sunday premium @ $10.56 = $ 42.24
$196.74
OR
Commission Rate - Week 1
1st week $223.75
The greater pay for week 1 is the commission rate of pay, which equals $223.75.
Combined with: $223.75
4 hours of vacation leave @ $8.76 = $ 35.04
2 hours of annual leave @ $8.76 = $ 17.52
Total pay for week 1 = $276.31
Regular Rate of Pay - Week 2
32 hours of work @ $5.15 = $164.80
OR
Commission Rate - Week 2
2nd week $162.60
The greater pay for week 2 is the regular rate of pay, which equals $164.80.
Combined with: $164.80
7.5 hours of sick leave @ $8.76 = $ 65.70
Total pay for week 2 = $230.50
The total of both greater rates of pay for week 1 and week 2 of pay period 18 ($276.31 + $230.50) is $506.81. Based on the pay stub for pay period 18, submitted by the claimant, her total earnings were $504.61. The claimant is owed $2.20 for pay period 18.