B-141846, JUN. 30, 1970

B-141846, JUN. 30, 1970

TO MR. JAMES E. MCNALL:

YOUR LETTER OF MAY 15, 1970, REQUESTS RECONSIDERATION OF YOUR CLAIM FOR OVERTIME COMPENSATION INCIDENT TO STANDING OVERNIGHT TELEPHONE WATCHES AT YOUR HOME WHILE AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, ON THE BASIS OF DECISION OF THIS OFFICE DATED MARCH 24, 1970, B 169113, WHICH AUTHORIZED PAYMENT OF OVERTIME PAY FOR CERTAIN EMPLOYEES OF THE STATE DEPARTMENT.

YOUR CLAIM COVERS OCCASIONS ON WHICH YOU AS A STAFF DUTY OFFICER STOOD ON OVERNIGHT TELEPHONE WATCH AT HOME EXTENDING FROM THE CLOSE OF WORK ON ONE DAY UNTIL THE BEGINNING OF THE NEXT WORKDAY OR ON A 24-HOUR WATCH ON WEEKENDS, DURING WHICH YOU WERE REQUIRED TO REMAIN WITHIN HEARING DISTANCE OF THE TELEPHONE, TO CONDUCT YOURSELF IN A PROPER AND INTELLEGENT MANNER, INITIATE TELEPHONE CALLS AND PREPARE REPORTS THEREON.

YOU WERE ADVISED BY LETTER OF NOVEMBER 7, 1966, THAT, WHILE YOU MAY HAVE RECEIVED SEVERAL TELEPHONE CALLS IN THE COURSE OF EACH TOUR OF DUTY AS AN EMERGENCY STAFF DUTY OFFICER, NEVERTHELESS YOUR TIME DURING THE WATCH PERIOD WAS SPENT PREDOMINATLY FOR YOUR OWN BENEFIT IN THAT YOU WERE FREE TO READ, EAT, SLEEP, ENTERTAIN FRIENDS AND OTHERWISE FOLLOW YOUR NORMAL PURSUITS WHILE STANDING THE STAFF DUTY WATCH; THAT DUTY OF THAT TYPE DOES NOT CONSTITUTE "HOURS OF WORK" WITHIN THE MEANING OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 911 (NOW CODIFIED IN 5 U.S.C. 5542), AND THAT THEREFORE IN THE ABSENCE OF A STATUTE AUTHORIZING COMPENSATION FOR "PER ANNUM" EMPLOYEES FOR "ON CALL" TIME SPENT AT THEIR HOMES, AS DISTINGUISHED FROM STANDBY TIME WITHIN THE CONFINES OF THEIR OFFICIAL STATIONS, COMPENSATION MAY NOT BE ALLOWED FOR SUCH TIME.

THE DECISIONS OF THE U. S. COURT OF CLAIMS IN THE CASES OF RAPP AND HAWKINS V. UNITED STATES, 167 CT. CL. 852 (1964) AND MOSS V. UNITED STATES, 173 CT. CL. 1169 (1965), WERE CITED IN SUPPORT OF THAT CONCLUSION. FROM TIME TO TIME RAPP WAS REQUIRED TO ACT AS A DUTY OFFICER IN HIS HOME, OUTSIDE OF REGULAR BUSINESS HOURS AND IN EXCESS OF THE REGULAR 40-HOUR WORKWEEK. WHILE PERFORMING SUCH A TOUR OF DUTY RAPP WAS REQUIRED TO BE WITHIN HEARING DISTANCE OF HIS HOME TELEPHONE AT ALL TIMES IN ORDER TO RECEIVE FOR HIS AGENCY WARNINGS REGARDING NATURAL DISASTERS AND EITHER TAKE APPROPRIATE ACTION HIMSELF OR TELEPHONE TO HIGHER AUTHORITY AND REQUEST ADVICE AS TO THE ACTION THAT SHOULD BE TAKEN. THE COURT OF CLAIMS NOTED THAT, EXCEPT FOR THE REQUIREMENT THAT HE REMAIN WITHIN HEARING DISTANCE OF THE TELEPHONE, RAPP WAS FREE TO EAT, SLEEP, READ, ENTERTAIN FRIENDS, AND OTHERWISE ENJOY HIS NORMAL PURSUITS WHILE ACTING AS A DUTY OFFICER IN HIS HOME.

MOSS LIKEWISE PERFORMED TELEPHONE STANDBY DUTY IN HIS HOME FROM TIME TO TIME AT NIGHT AFTER REGULAR WORKING HOURS AND ON WEEKENDS UNDER SIMILAR CIRCUMSTANCES IN ACCORDANCE WITH INSTRUCTIONS FROM HIGHER AUTHORITY. EACH OF THOSE CASES THE COURT OF CLAIMS HELD THAT WHERE AN EMPLOYEE IS ALLOWED TO STAND BY IN HIS OWN HOME WITH NO DUTIES TO PERFORM FOR HIS EMPLOYER EXCEPT TO BE AVAILABLE TO ANSWER THE TELEPHONE, THE TIME SPENT IN SUCH STANDBY CAPACITY DOES NOT AMOUNT TO "HOURS OF WORK" UNDER THE ABOVE- CITED STATUTE AND IS NOT COMPENSABLE.

THE FACTS INVOLVED IN OUR DECISION OF MARCH 24, 1970, B-169113, WERE DIFFERENT FROM THOSE INVOLVED IN YOUR CASE. THE DUTY PERFORMED IN THEIR HOMES BY THE EMPLOYEES THERE INVOLVED CONSTITUTED THEIR REGULAR DUTIES, NOT MERELY RECEIVING AND RELAYING TELEPHONE MESSAGES, AND THAT DECISION DID NOT AUTHORIZE COMPENSATION FOR THE TIME SPENT ON A STANDBY BASIS. COMPENSATION WAS AUTHORIZED FOR ONLY "THE ACTUAL TIME SPENT ON EACH ITEM OF WORK PERFORMED." WE NOTED THAT THE ANALYSIS OF THE EXECUTIVE AGENCY CONCERNED "FOR A RANDOM 3-WEEK PERIOD" SHOWED "A MINIMUM OF 7 HOURS, 35 MINUTES AND A MAXIMUM OF 21 HOURS OF OVERTIME WORK PER WEEK AT THEIR HOMES" OF ALL THE EMPLOYEES CONCERNED. WE CONCLUDED THAT "THEY MAY BE COMPENSATED FOR SUCH WORK OR GRANTED TIME OFF IN LIEU THEREOF IN ACCORDANCE WITH 5 U.S.C. 5543."

ACCORDINGLY, OUR DECISION OF MARCH 24, 1970, B-169113, PROVIDES NO BASIS FOR PAYMENT OF YOUR CLAIM.