Night Differential While Working Variable Tour

GAO was asked for a decision concerning the claim of an employee for night differential pay for work performed between the hours of 6 p.m. and 6 a.m. The employee and others were periodically assigned to variable tours of duty with different starting times in connection with scheduled missile firings. Employees were notifed 2 weeks in advance of their assignment to a variable tour, and tentative work hours were announced at least 3 days in advance, subject to change on short notice. Since the agency considered such work regularly scheduled, it considered employees qualified for night differential only if it occurred at least twice in a workweek during the basic 8-hour tour. The employee submitted a claim requesting payment of night differential for all work performed at night from 1974 to the present. The authority for the payment of night differential to Federal employees defines nightwork as regularly scheduled work between the hours of 6 p.m. and 6 a.m. GAO has allowed payment of night differential to employees who habitually and recurrently perform overtime work at night where, by virtue of the inherent nature of their employment, they are required to remain on duty until the completion of their tasks or until relieved from duty. GAO has also allowed payment of night differential in the absence of an established tour of duty or shift where the nightwork to be performed is considered to be regularly scheduled work. This is to be distinguished from overtime or nightwork which is scheduled on a day-to-day or hour-to-hour basis. The agency conceded that the overtime work is rarely scheduled in advance and that it is usually scheduled on the same day in which it is worked. A review of the record indicated that, while assigned to the variable tour, the employee appeared to have performed nightwork with nearly the same frequency and regularity as he performed overtime work. Under the circumstances, GAO could not apply different standards for the payment of overtime compensation and night differential pay, since overtime and nightwork occurred with about the same frequency or regularity. Therefore, GAO concluded that the employee and any similarly situated employees were entitled to payment for night differential even when there was only one instance of work between 6 p.m. and 6 a.m. in a workweek. The employee's entitlement to additional compensation under this decision extended back only 6 years from the date of the receipt of the claim by GAO.