(a) General rule. A day of service in the maritime industry which
must, as a minimum, be counted for the purposes of determining a year of
service, a year of participation for benefit accrual, a break in service
and an employment commencement date (or reemployment commencement date)
under sections 202, 203 and 204 of the Act and sections 410 and 411 of
the Code by a plan that credits service by days of service rather than
hours of service (as prescribed in Sec. 2530.200b-2, or under
equivalencies permitted under Sec. 2530.200b-3) or elapsed time (as
permitted under Sec. 2530.200b-9), is a day of service as defined in
paragraphs (a)(1), (2) and (3) of this section.
(1) A day of service is each day for which an employee is paid or
entitled to payment for the performance of duties for the employer
during the applicable computation period.
(2) A day of service is each day for which an employee is paid, or
entitled to payment, by the employer on account of a period of time
during which no duties are performed (irrespective of
whether the employment relationship has terminated) due to vacation,
holiday, illness, incapacity (including disability), layoff, jury duty,
military duty or leave of absence. Notwithstanding the preceding
sentence:
(i) No more than 63 days of service are required to be credited
under this paragraph (a)(2) to an employee on account of any single
continuous period during which the employee performs no duties (whether
or not such period occurs in a single computation period);
(ii) A day for which an employee is directly or indirectly paid, or
entitled to payment, on account of a period during which no duties are
performed is not required to be credited to the employee if such payment
is made or due under a plan maintained solely for the purpose of
complying with applicable workmen's compensation (including maintenance
and care), or unemployment compensation or disability insurance laws;
and
(iii) Days of service are not required to be credited for a payment
which solely reimburses an employee for medical or medically related
expenses incurred by the employee.
For purposes of this paragraph (a)(2), a payment shall be deemed to be
made by or due from an employer regardless of whether such payment is
made by or due from the employer directly, or indirectly through, among
others, a trust, fund, or insurer, to which the employer contributes or
pays premiums, and regardless of whether contributions made or due to
the trust, fund, insurer or other entity are for the benefit of
particular employees or are made on behalf of a group of employees in
the aggregate.
(3) A day of service is each day for which back pay, irrespective of
mitigation of damages, has been either awarded or agreed to by the
employer. Days of service shall not be credited both under paragraph
(a)(1) or paragraph (a)(2), as the case may be, and under this
subparagraph. Thus, for example, an employee who receives a back pay
award following a determination that he or she was paid at an unlawful
rate for days of service previously credited will not be entitled to
additional credit for the same days of service. Crediting of days of
service for back pay awarded or agreed to with respect to periods
described in paragraph (a)(2) shall be subject to the limitations set
forth in that paragraph. For example, no more than 63 days of service
are required to be credited for payments of back pay, to the extent that
such back pay is agreed to or awarded for a period of time during which
an employee did not or would not have performed duties.
(b) Special rule for determining days of service for reasons other
than the performance of duties. In the case of a payment which is made
or due on account of a period during which an employee performs no
duties, and which results in the crediting of days of service under
paragraph (a)(3) of this section, or, in the case of an award or
agreement for back pay, to the extent that such award or agreement is
made with respect to a period described in paragraph (a)(2) of this
section, the number of days of service to be credited shall be
determined as follows:
(1) Payments calculated on the basis of units of time. In the case
of a payment made or due which is calculated on the basis of units of
time, such as days, weeks or months, the number of days of service to be
credited shall be the number of regularly scheduled working days
included in the units of time on the basis of which the payment is
calculated. For purposes of the preceding sentence, in the case of an
employee without a regular work schedule, a plan may provide for the
calculation of the number of days of service to be credited on the basis
of a 5-day workweek, or may provide for such calculation on any
reasonable basis which reflects the average days worked by the employee,
or by other employees in the same job classification, over a
representative period of time, provided that the basis so used is
consistently applied with respect to all employees within the same job
classifications, reasonably defined.
(2) Payments not calculated on the basis of units of time. Except as
provided in paragraph (b)(3) of this section, in the case of a payment
made or due, which is not calculated on the basis of units of time, the
number of days of service to be credited shall be equal to the amount of
the payment divided by the employee's most recent daily rate of
compensation before the period during which no duties are performed.
(3) Rule against double credit. Notwithstanding paragraphs (b)(1)
and (2) of this section, an employee is not required to be credited on
account of a period during which no duties are performed with a number
of days of service which is greater than the number of days regularly
scheduled for the performance of duties during such period. For purposes
of the preceding sentence, in the case of an employee without a regular
work schedule, a plan may provide for the calculation of the number of
days of service to be credited to the employee for a period during which
no duties are performed on the basis of a 5-day workweek, or may provide
for such calculation on any reasonable basis which reflects the average
hours worked by the employee, or by other employees in the same job
classification, over a representative period of time, provided that the
basis so used is consistently applied with respect to all employees in
the same job classifications, reasonably defined.
(c) Crediting of days of service to computation periods. (1) Except
as provided in paragraph (c)(4) of this section, days of service
described in paragraph (a)(1) of this section shall be credited to the
computation period in which the duties are performed.
(2) Except as provided in paragraph (c)(4) of this section, days of
service described in paragraph (a)(2) of this section shall be credited
as follows:
(i) Days of service credited to an employee on account of a payment
which is calculated on the basis of units of time, such as days, weeks
or months, shall be credited to the computation period or computation
periods in which the period during which no duties are performed occurs,
beginning with the first unit of time to which the payment relates.
(ii) Days of service credited to an employee by reason of a payment
which is not calculated on the basis of units of time shall be credited
to the computation period in which the period during which no duties are
performed occurs, or if the period during which no duties are performed
extends beyond one computation period, such hours of service shall be
allocated between not more than the first two computation periods on any
reasonable basis which is consistently applied with respect to all
employees within the same job classifications, reasonably defined.
(3) Except as provided in paragraph (c)(4) of this section, days of
service described in paragraph (a)(3) of this section shall be credited
to the computation period or periods to which the award or agreement for
back pay pertains, rather than to the computation period in which the
award, agreement or payment is made.
(4) In the case of days of service to be credited to an employee in
connection with a period of no more than 31 days which extends beyond
one computation period, all such days of service may be credited to the
first computation period or the second computation period. Crediting of
days of service under this paragraph must be done consistently with
respect to all employees with the same job classifications, reasonably
defined.
(d) Other federal law. Nothing in this section shall be construed to
alter, amend, modify, invalidate, impair or supersede any law of the
United States or any rule or regulation issued under any such law. Thus,
for example, nothing in this section shall be construed as denying an
employee credit for a day of service if credit is required by separate
federal law. Furthermore, the nature and extent of such credit shall be
determined under such law.
(e) Nondaily employees. For maritime employees whose compensation is
not determined on the basis of certain amounts for each day worked
during a given period, service shall be credited on the basis of hours
of service as determined in accordance with Sec. 2530.200b-2(a)
(including use of any equivalency permitted under Sec. 2530.200b-3) or
on the basis of elapsed time, as permitted under Sec. 2530.200b-9.
(f) Plan document. A plan which credits service on the basis of days
of service must state in the plan document the definition of days of
service set forth in paragraph (a) of this section, but is not required
to state the rules set forth in paragraphs (b) and (c) if they are
incorporated by reference.
