Never on Sundays

November 8, 2016

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Alan Gross is employed as a part-time field representative for the U.S. Census Bureau, conducting telephone interviews. Gross’s position allows him to set his own hours based on his assigned workload and the availability of survey respondents. Although Sunday interviewing is sometimes expected for all field representatives, part-time employees, such as Gross, never received premium pay for the work they performed on Sundays. When Gross became aware of a change in Census Bureau policy, based on a Federal Circuit decision that part-time employees are entitled to Sunday premium pay, he petitioned the Census Bureau Regional Office for back pay, but the Census Bureau never ruled on Gross’s claim.

Gross then filed suit in the U.S. Court of Federal Claims seeking to recover Sunday premium back pay from May 2003 to the present. He also filed a renewed motion for class certification. The Government filed a motion to dismiss and the parties filed cross-motions for summary judgment.

In its motion to dismiss, the Government argued that Gross’s back pay claim before 2005 was time-barred. Gross defended by stating that his claims were inherently unknowable before the issuance of a Federal Circuit decision in 2009 and that the Census Bureau concealed the change after the decision, thus suspending the time of accrual. But the Court found nothing in the record to indicate that the Census Bureau failed to make available to field representatives information concerning the Sunday premium pay administrative claims process, nor any authority supporting application of an accrual suspension, and therefore dismissed Gross’s claims prior to October 28, 2005.

On the merits, the Government asserted that employees who set their own schedules are not “regularly scheduled,” and thus not entitled to Sunday premium pay. Gross argued that the plain meaning of the statute included premium pay for all part-time Census Bureau field representatives whose work required performance on Sundays. In denying the Government’s motion and granting Gross’s, the Court held that Gross, and all other part-time field representatives who were required to work on Sundays were regularly scheduled, and entitled to Sunday premium pay. The Court agreed with Gross that the language of the statute was plain and unambiguous in its intent to cover part-time employees such as Gross, and that Congress could have used more narrow and restrictive language but did not.

The Court also granted Gross’s renewed motion to certify a class, holding that Gross met the requirements for class certification.

Read Judge Campbell-Smith’s full opinion here.

 



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