A-92537, JANUARY 2, 1945, 24 COMP. GEN. 483

A-92537, JANUARY 2, 1945, 24 COMP. GEN. 483

COMPENSATION - OVERTIME - CUSTOMS SERVICE EMPLOYEES CUSTOMS EMPLOYEES ARE NOT ENTITLED UNDER SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED, TO OVERTIME COMPENSATION FOR WORK ON WEEKDAYS OUTSIDE OF THEIR REGULAR TOUR OF DUTY, EXCEPT FOR WORK BETWEEN THE HOURS OF 5 P.M. AND 8 A.M. 24 COMP. GEN. 140, AMPLIFIED. INSIDE CUSTOMS EMPLOYEES ARE NOT ENTITLED UNDER SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED, TO OVERTIME COMPENSATION FOR OUTSIDE WORK ON WEEKDAYS BETWEEN THE HOURS 5 P.M. AND 8 A.M. DURING THEIR REGULAR TOUR OF DUTY, ON THE BASIS THAT SUCH WORK IS NOT WITHIN THE REGULAR TOUR OF DUTY OF OUTSIDE EMPLOYEES. 24 COMP. GEN. 140, AMPLIFIED. IN VIEW OF THE LONG-EXISTING ADMINISTRATIVE PRACTICE--- CONTRARY TO DECISION OF AUGUST 18, 1944, 24 COMP. GEN. 140--- WITH RESPECT TO THE HOURS DURING WHICH CUSTOMS EMPLOYEES ARE ENTITLED TO OVERTIME COMPENSATION UNDER SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED, PAYMENTS MADE PRIOR TO THE DATE OF SAID DECISION WILL NOT NOW BE QUESTIONED SOLELY UPON THE BASIS THAT THEY WERE NOT MADE IN ACCORDANCE WITH THE RULES STATED THEREIN.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, JANUARY 2, 1945:

I HAVE YOUR LETTER OF DECEMBER 5, 1944, AS FOLLOWS:

THE DEPARTMENT HAS RECEIVED YOUR LETTER OF AUGUST 18, 1944 (A 92537), REGARDING THE PAYMENT OF OVERTIME COMPENSATION AT PENSACOLA, FLORIDA, IN WHICH YOU SAY, IN PART:

"IN EXPRESS TERMS THE STATUTE (SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED ( U.S.C., TITLE 19, SEC. 267) ( AUTHORIZES PAYMENT OF OVERTIME COMPENSATION FOR OVERTIME WORK ONLY BETWEEN THE HOURS OF 5 P.M. AND 8 A.M., AND ON SUNDAYS AND HOLIDAYS, AND DOES NOT AUTHORIZE PAYMENT OF OVERTIME COMPENSATION FOR ANY SERVICE PERFORMED BETWEEN THE HOURS OF 8 A.M. AND 5 P.M. ON WEEK DAYS, WHETHER SUCH SERVICE IS PERFORMED DURING A REGULAR TOUR OF DUTY OR IS OVERTIME SERVICE IN ADDITION TO A REGULAR TOUR OF DUTY BETWEEN THOSE HOURS. WHILE IT IS TRUE THAT THE PROVISO IN THE STATUTE, SUPRA, AUTHORIZES THE COLLECTOR OF CUSTOMS "TO REGULATE THE HOURS OF CUSTOMS EMPLOYEES SO AS TO AGREE WITH PREVAILING WORKING HOURS IN SAID PORTS," THERE EXISTS NO AUTHORITY TO MAKE PAYMENTS OF OVERTIME COMPENSATION UNDER THE ABOVE QUOTED STATUTE FOR WORK PERFORMED BETWEEN 4 P.M. AND 5 P.M. ON WEEK DAYS, REGARDLESS OF WHETHER SUCH WORK IS PERFORMED DURING A REGULAR TOUR OF DUTY OR IS OVERTIME WORK IN ADDITION TO A REGULAR TOUR OF DUTY; NEITHER WOULD THERE BE ANY OBLIGATION UPON PRIVATE INTERESTS UNDER THE PROVISIONS OF ANY OF THE STATUTES TO PAY FOR SUCH SERVICE DURING SUCH HOURS AS APPEARS TO HAVE BEEN ASSUMED BY YOU. * * *

"THE AUTHORITY CONTAINED IN THE 1911 STATUTE, AS AMENDED, TO PAY OVERTIME COMPENSATION TO CERTAIN CUSTOMS EMPLOYEES RELATES SOLELY TO THE PERSONAL DUTY STATUS OF EACH EMPLOYEE. THAT IS, WHILE THE PROVISO AUTHORIZES ADJUSTMENT OF REGULAR TOURS OF DUTY TO INCLUDE ANY OF THE 24 HOURS OF THE DAY OF ANY EMPLOYEE OR CLASS OR GROUP OF EMPLOYEES, THE PAYMENT OF OVERTIME COMPENSATION IS AUTHORIZED ONLY FOR WORK OUTSIDE OF THE REGULAR TOUR OF DUTY OF EACH INDIVIDUAL EMPLOYEE, EXCEPT ON SUNDAYS AND HOLIDAYS. IT WAS WITHIN THE AUTHORITY OF THE COLLECTOR OF CUSTOMS TO ASSIGN OR DETAIL INSIDE EMPLOYEES TO PERFORM OUTSIDE WORK OF A CHARACTER TO ENTITLE THEM TO OVERTIME COMPENSATION UNDER THE TERMS OF THE STATUTE, BUT THERE WAS NO AUTHORITY IN THE CASES PRESENTED TO PAY OVERTIME COMPENSATION TO INSIDE EMPLOYEES WHOSE REGULAR TOUR OF DUTY WAS FROM 8:30 A.M. TO :15 P.M. FOR ANY WORK PERFORMED BY THEM BETWEEN THOSE HOURS ON WEEK DAYS UPON THE BASIS THAT SUCH WORK WAS BEYOND THE REGULAR TOUR OF DUTY OF OUTSIDE EMPLOYEES WHOSE TOUR WAS FROM 7 A.M. TO 4 P.M. OF COURSE, INSIDE EMPLOYEES WHO PERFORMED WORK BETWEEN 5:15 P.M. AND 8 A.M. OUTSIDE OF THEIR REGULAR TOUR OF DUTY, WOULD BE ENTITLED TO OVERTIME COMPENSATION UNDER THE TERMS OF THE STATUTE.'

YOUR CONCLUSION THAT OVERTIME COMPENSATION IS PAYABLE ONLY FOR SERVICES PERFORMED BETWEEN 5 P.M. AND 8 A.M. IN ALL CASES REGARDLESS OF THE REGULAR HOURS OF THE PORT WOULD SEEM TO BE CONTRARY TO THE TERMS OF THE PROVISO WHICH YOU MENTION AND WOULD FAIL TO GIVE EFFECT TO ITS INTENT AND PURPOSE AS PLAINLY SHOWN BY ITS LEGISLATIVE HISTORY. THE PROVISO WAS OFFERED ON THE FLOOR OF THE HOUSE, AS AN AMENDMENT, BY REPRESENTATIVE DUPRE OF LOUISIANA (59 CONG. REC. 2172, 2177). IT WAS ACCEPTED AS OFFERED, AND IT READS AS FOLLOWS:

"PROVIDED FURTHER, THAT IN THOSE PORTS WHERE CUSTOMARY WORKING HOURS ARE OTHER THAN THOSE HEREINABOVE MENTIONED, THE COLLECTOR OF CUSTOMS IS VESTED WITH AUTHORITY TO REGULATE THE HOURS OF CUSTOMS EMPLOYEES SO AS TO AGREE WITH PREVAILING WORKING HOURS IN SAID PORTS, BUT NOTHING CONTAINED IN THIS PROVISO SHALL BE CONSTRUED IN ANY MANNER TO AFFECT OR ALTER THE LENGTH OF A WORKING DAY FOR CUSTOMS EMPLOYEES OR THE OVERTIME PAY HEREIN FIXED.'

THE PURPOSE OF THE AMENDMENT WAS FULLY DISCUSSED (59 CONG. REC. 2172, ET SEQ.) AND WAS EXPLAINED BRIEFLY AS FOLLOWS (AT PAGE 2177):

" MR. DUPRE. * * * THIS AMENDMENT HAS THE APPROVAL OF THE TWO GENTLEMEN ON THE SUBCOMMITTEE OF THE COMMITTEE ON WAYS AND MEANS, THE GENTLEMAN FROM MASSACHUSETTS ( MR. TREADWAY) AND THE GENTLEMAN FROM CONNECTICUT ( MR. TILSON), WHO HAVE CONSIDERED THIS MEASURE. THE BILL IN QUESTION, IN PROVIDING FOR OVERTIME PAY, FIXED THE SAME BETWEEN 5 O CLOCK P.M. AND 8 O- CLOCK A.M. IT HAPPENS THAT IN THE CITY OF NEW ORLEANS THE WORKING HOURS OF THE LONGSHOREMEN ARE FROM 7 A.M. TO 4 P.M., AND IN ORDER THAT THERE SHALL BE NO CONFLICT BETWEEN THIS BILL AND THE WORKING HOURS OF THE LABORING MEN OF THAT CITY, AND POSSIBLY IN OTHER PORTS, THIS PROVISO SIMPLY AUTHORIZES THE COLLECTOR OF CUSTOMS TO ADJUST THE HOURS OF THE CUSTOMHOUSE EMPLOYEES WITH THOSE OF THE PREVAILING WORKING HOURS IN THAT CITY. IN OTHER WORDS, IF THE MEN BEGIN THEIR WORK AT 7 O-CLOCK AND WORK UNTIL 4, THE COLLECTOR OF CUSTOMS CAN PROVIDE THAT THE OVERTIME SHALL BE FROM 4 P.M. UNTIL 7 IN THE NEXT MORNING INSTEAD OF FROM 5 P.M. UNTIL 8 O-CLOCK THE NEXT MORNING. * * *" (ITALICS SUPPLIED.)

YOU HAVE RULED THAT, EVEN WHERE THE COLLECTOR OF CUSTOMS HAS FIXED THE REGULAR HOURS OF CUSTOMS EMPLOYEES AT 7 A.M. TO 4 P.M. INSTEAD OF 8 A.M. TO 5 P.M. TO AGREE WITH THE PREVAILING WORKING HOURS IN THE PORT, NO OVERTIME COMPENSATION IS PAYABLE FOR WORK PERFORMED BETWEEN 4 P.M. AND 5 P.M. IT IS REQUESTED THAT YOU RECONSIDER YOUR CONCLUSION.

IN ORDINARY CASES, WHERE THE USUAL HOURS OF 8 A.M. TO 5 P.M. ARE THE REGULAR WORKING HOURS, THIS DEPARTMENT HAS TAKEN THE POSITION THAT THERE IS NO AUTHORITY FOR THE PAYMENT OF OVERTIME COMPENSATION FOR SERVICES PERFORMED BETWEEN THOSE HOURS, EVEN THOUGH SUCH SERVICES ARE IN ADDITION TO A REGULAR EIGHT-HOUR TOUR OF DUTY. HOWEVER, AT SEVERAL PORTS OF ENTRY, NOTABLY NEW ORLEANS AND HONOLULU, WHERE THE HOURS FROM 8 A.M. TO 5 P.M. ARE NOT THE PREVAILING WORKING HOURS OF THE PORT, THE COLLECTORS OF CUSTOMS, UNDER THE ABOVE-MENTIONED PROVISO, HAVE FIXED OTHER NINE-HOUR PERIODS (WITH ONE HOUR FOR FOOD AND REST) AS THE REGULAR HOURS OF SERVICE SO AS TO AGREE WITH THE PREVAILING WORKING HOURS; AND IT HAS BEEN THE UNQUESTIONED PRACTICE FOR MANY YEARS TO PAY OVERTIME COMPENSATION FOR EXTRA SERVICES PERFORMED BETWEEN THE END OF ONE REGULAR WORKING DAY SO FIXED AND THE BEGINNING OF THE NEXT SUCH REGULAR WORKING DAY.

IF THE CONCLUSION EXPRESSED IN YOUR LETTER THAT OVERTIME COMPENSATION IS PAYABLE ONLY FOR WORK PERFORMED BETWEEN 5 P.M. AND 8 A.M. REGARDLESS OF THE REGULAR HOURS OF THE PORT, WERE TO BE APPLIED RETROACTIVELY, IT WOULD CAUSE A TREMENDOUS VOLUME OF WORK IN THE EXAMINATION OF OLD RECORDS, DISCRIMINATORY RESULTS WHERE RECORDS HAVE BEEN DESTROYED, UNJUST ENRICHMENT OF THE GOVERNMENT, AND UNFAIR TREATMENT OF EMPLOYEES WHO HAVE ACTUALLY RENDERED SERVICE FOR THE MONEYS PAID TO THEM. IF THE DECISION IS TO BE APPLIED IN THE FUTURE, IT WOULD NULLIFY THE STATUTORY AUTHORITY GRANTED TO COLLECTORS OF CUSTOMS TO REGULATE HOURS OF CUSTOMS EMPLOYEES TO AGREE WITH LOCAL PREVAILING WORKING HOURS AND WOULD SERIOUSLY IMPAIR THE EFFICIENCY OF THE CUSTOMS SERVICE.

IF YOU RECONSIDER THE MATTER AND AGREE THAT WHERE THE REGULAR OUTSIDE CUSTOMS HOURS ARE FIXED AT, SAY, 7 A.M. TO 4 P.M., TO AGREE WITH THE PREVAILING WORKING HOURS IN THE PORT, OVERTIME COMPENSATION IS PAYABLE FOR SERVICES PERFORMED BETWEEN 4 P.M. AND 7 A.M. INSTEAD OF 5 P.M. TO 8 A.M., IT IS REQUESTED THAT YOU ALSO RECONSIDER YOUR RULING THAT OVERTIME MUST BE COMPUTED ON THE BASIS OF THE REGULAR HOURS OF THE EMPLOYEE ASSIGNED INSTEAD OF THE REGULAR HOURS FOR THE PERFORMANCE OF THE PARTICULAR WORK OF THE ASSIGNMENT.

IN A CASE WHERE THE OUTSIDE CUSTOMS HOURS ARE FIXED AT 7 A.M. TO 4 P.M. TO AGREE WITH THE PREVAILING WORKING HOURS IN THE PORT, IT IS THE VIEW OF THIS DEPARTMENT THAT PARTIES IN INTEREST ARE ENTITLED TO FREE CUSTOMS SERVICE DURING THOSE HOURS BUT ARE REQUIRED TO PAY FOR SERVICES DURING OTHER HOURS (EXCEPT WHERE THE OTHER HOURS ARE COVERED BY REGULAR OUTSIDE TOURS OF DUTY). ACCORDINGLY, IT IS BELIEVED THAT SUCH PARTIES SHOULD NOT BE REQUIRED TO PAY FOR SERVICES PERFORMED AFTER 7 A.M., BUT SHOULD BE REQUIRED TO PAY FOR SERVICES PERFORMED AFTER 4 P.M., EVEN THOUGH, IN EITHER CASE, THE SERVICES ARE PERFORMED BY AN INSIDE EMPLOYEE THE HOURS OF WHOSE REGULAR POSITION ARE FROM 8 A.M. TO 5 P.M. IN SUCH A CASE THE INSIDE EMPLOYEE IS TEMPORARILY ACTING IN THE OUTSIDE POSITION, IS OFF HIS REGULAR INSIDE TOUR OF DUTY, AND, IN THE OPINION OF THIS DEPARTMENT, HIS RIGHT TO OVERTIME PAY IS GOVERNED BY THE OUTSIDE HOURS. THIS VIEW IS IN HARMONY WITH THE PROVISIONS OF THE CUSTOMS REGULATIONS RELATING TO REIMBURSABLE COMPENSATION OF CUSTOMS EMPLOYEES, WHICH PROVIDE THAT THE TIME CHARGED SHALL BE COMPUTED ON THE BASIS OF THE REGULAR HOURS FOR PERFORMANCE OF THE WORK TO WHICH THE EMPLOYEE IS ASSIGNED EVEN THOUGH SUCH HOURS DIFFER FROM THE REGULAR WORKING HOURS OF THE EMPLOYEE SO ASSIGNED. SECTIONS 19.5 AND 24.17 OF THE CUSTOMS REGULATIONS OF 1943, AS AMENDED BY T.D. 51075.

THE COMPUTATION OF OVERTIME ON THE BASIS OF THE REGULAR HOURS OF THE EMPLOYEE ASSIGNED RATHER THAN THE REGULAR HOURS FOR THE PERFORMANCE OF THE WORK TO WHICH HE IS ASSIGNED WOULD RESULT IN UNCERTAINTY AND CONFUSION. IN CASES WHERE THE HOURS ARE AS STATED ABOVE, A PARTY IN INTEREST OBTAINING CUSTOMS SERVICES BETWEEN 4 P.M. AND 5 P.M. WOULD BE REQUIRED TO PAY FOR THE SERVICES OF ANY OUTSIDE EMPLOYEE ASSIGNED TO THE WORK BUT WOULD NOT BE REQUIRED TO PAY FOR THE SERVICES OF ANY INSIDE EMPLOYEE SO ASSIGNED. IF EMPLOYEES OF BOTH CLASSES WERE ASSIGNED, THE PARTY IN INTEREST WOULD HAVE TO PAY FOR THE SERVICES OF SOME BUT WOULD RECEIVE THE BENEFIT OF THE SERVICES OF THE OTHERS WITHOUT CHARGE. IF SERVICES WERE REQUIRED BETWEEN 7 A.M. AND 8 A.M. THE SAME SITUATION WOULD EXIST AND IT WOULD ALSO BE UNCERTAIN WHETHER THE PARTY IN INTEREST WOULD OBTAIN FREE SERVICES DURING SUCH REGULAR PORT HOURS OR WOULD BE REQUIRED TO PAY OVERTIME COMPENSATION BECAUSE OF THE ASSIGNMENT OF INSIDE EMPLOYEES. IS BELIEVED THAT SUCH A RESULT WOULD BE CONTRARY TO THE INTENT AND PURPOSE OF THE LAW.

THE DEPARTMENT IS ADVISED BY THE DEPUTY COLLECTOR OF CUSTOMS IN CHARGE AT PENSACOLA THAT, DURING THE TIME WHEN THE OUTSIDE HOURS AT THAT PORT WERE FROM 7 A.M. TO 4 P.M., NO OVERTIME COMPENSATION WAS PAID FOR OUTSIDE WORK PERFORMED FROM 7 A.M. TO 8 A.M.; THAT WHEN OUTSIDE WORK BEGUN BY AN INSIDE EMPLOYEE AT 7 A.M. WAS COMPLETED AT OR PRIOR TO 4 P.M. THE EMPLOYEE REPORTED TO THE CUSTOMS OFFICE TO COMPLETE THE TOUR OF DUTY FOR INSIDE EMPLOYEES; AND THAT, ALTHOUGH THERE IS NO RECORD IN THE OFFICE OF THE ACTUAL NUMBER OF HOURS OF DUTY PERFORMED BY THE INSIDE EMPLOYEES, THE DEPUTY COLLECTOR CAN STATE OF HIS OWN KNOWLEDGE THAT DURING THE TIME INVOLVED EACH OF THE INSIDE EMPLOYEES AT THE PORT PERFORMED A NUMBER OF HOURS OF SERVICE GREATLY IN EXCESS OF THE NUMBER OF HOURS REQUIRED FOR EARNING HIS REGULAR SALARY AND THAT SUCH EXCESS HOURS WERE MORE THAN SUFFICIENT TO BALANCE OUT THE NUMBER OF HOURS OF DUTY PERFORMED BEFORE 5 P.M. FOR WHICH OVERTIME COMPENSATION WAS PAID.

IF YOU WILL GIVE THIS MATTER FURTHER CONSIDERATION IN VIEW OF THE FOREGOING DISCUSSION, IT WILL BE GREATLY APPRECIATED.

SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED BY THE ACT OF FEBRUARY 7, 1920, 41 STAT. 402 (19 U.S.C. 267), PROVIDES AS FOLLOWS:

THAT THE SECRETARY OF THE TREASURY SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF INSPECTORS, STOREKEEPERS, WEIGHERS, AND OTHER CUSTOMS OFFICERS AND EMPLOYEES WHO MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN THE HOURS OF FIVE O-CLOCK POST MERIDIAN AND EIGHT O-CLOCK ANTEMERIDIAN, OR ON SUNDAYS OR HOLIDAYS, TO PERFORM SERVICES IN CONNECTION WITH THE LADING OR UNLADING OF CARGO, OR THE LADING OF CARGO OR MERCHANDISE FOR TRANSPORTATION IN BOND OR FOR EXPORTATION IN BOND OR FOR EXPORTATION WITH BENEFIT OF DRAWBACK, OR IN CONNECTION WITH THE RECEIVING OR DELIVERY OF CARGO ON OR FROM THE WHARF, OR IN CONNECTION WITH THE UNLADING, RECEIVING, OR EXAMINATION OF PASSENGERS' BAGGAGE, SUCH RATES TO BE FIXED ON THE BASIS OF ONE HALF DAY'S ADDITIONAL PAY FOR EACH TWO HOURS OR FRACTION THEREOF OF AT LEAST ONE HOUR THAT THE OVERTIME EXTENDS BEYOND FIVE O-CLOCK POST MERIDIAN (BUT NOT TO EXCEED TWO AND ONE-HALF DAYS' PAY FOR THE FULL PERIOD FROM FIVE O-CLOCK POST MERIDIAN TO EIGHT O-CLOCK ANTEMERIDIAN), AND TWO ADDITIONAL DAYS' PAY FOR SUNDAY OR HOLIDAY DUTY. THE SAID EXTRA COMPENSATION SHALL BE PAID BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF SUCH VESSEL OR OTHER CONVEYANCE WHENEVER SUCH SPECIAL LICENSE OR PERMIT FOR IMMEDIATE LADING OR UNLADING OR FOR LADING OR UNLADING AT NIGHT OR ON SUNDAYS OR HOLIDAYS SHALL BE GRANTED TO THE COLLECTOR OF CUSTOMS, WHO SHALL PAY THE SAME TO THE SEVERAL CUSTOMS OFFICERS SND EMPLOYEES ENTITLED THERETO ACCORDING TO THE RATES FIXED THEREFOR BY THE SECRETARY OF THE TREASURY: PROVIDED, THAT SUCH EXTRA COMPENSATION SHALL BE PAID IF SUCH OFFICERS OR EMPLOYEES HAVE BEEN ORDERED TO REPORT FOR DUTY AND HAVE SO REPORTED, WHETHER THE ACTUAL LADING, UNLADING, RECEIVING, DELIVERY, OR EXAMINATION TAKES PLACE OR NOT. CUSTOMS OFFICERS ACTING AS BOARDING OFFICERS AND ANY CUSTOMS OFFICER WHO MAY BE DESIGNATED FOR THAT PURPOSE BY THE COLLECTOR OF CUSTOMS ARE HEREBY AUTHORIZED TO ADMINISTER THE OATH OR AFFIRMATION HEREIN PROVIDED FOR, AND SUCH BOARDING OFFICERS SHALL BE ALLOWED EXTRA COMPENSATION FOR SERVICES IN BOARDING VESSELS AT NIGHT OR ON SUNDAYS OR HOLIDAYS AT THE RATES PRESCRIBED BY THE SECRETARY OF THE TREASURY AS HEREIN PROVIDED, THE SAID EXTRA COMPENSATION TO BE PAID BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF SUCH VESSEL: PROVIDED FURTHER, THAT IN THOSE PORTS WHERE CUSTOMARY WORKING HOURS ARE OTHER THAN THOSE HEREINABOVE MENTIONED, THE COLLECTOR OF CUSTOMS IS VESTED WITH AUTHORITY TO REGULATE THE HOURS OF CUSTOMS EMPLOYEES SO AS TO AGREE WITH PREVAILING WORKING HOURS IN SAID PORTS, BUT NOTHING CONTAINED IN THIS PROVISO SHALL BE CONSTRUED IN ANY MANNER TO AFFECT OR ALTER THE LENGTH OF A WORKING DAY FOR CUSTOMS EMPLOYEES OR THE OVERTIME PAY HEREIN FIXED. (ITALICS SUPPLIED.)

SECTION 1401 (G), TITLE 19, U.S. CODE, PROVIDES:

THE WORD "NIGHT" MEANS THE TIME FROM FIVE O-CLOCK POST MERIDIAN TO EIGHT O-CLOCK ANTEMERIDIAN.

IN DECISION OF APRIL 22, 1941, 10 COMP. GEN. 487, WHEREIN WAS CONSIDERED SUBSTANTIALLY THE SAME LANGUAGE APPEARING IN THE ACT OF MARCH 2, 1931, 46 STAT. 1467, APPLICABLE TO THE IMMIGRATION SERVICE, IT WAS STATED, AT PAGE 489, AS FOLLOWS:

"OVERTIME" IN THE USUAL SENSE MEANS TIME ON DUTY IN ADDITION TO THE NUMBER OF HOURS FIXED ADMINISTRATIVELY AS THE REGULAR WORKDAY OF EMPLOYEES. TO CONSTITUTE OVERTIME FOR THE PURPOSE OF THIS ACT THERE MUST EXIST TWO FACTORS, TO WIT, (1) TIME ON DUTY IN ADDITION TO THE NUMBER OF HOURS FIXED ADMINISTRATIVELY AS THE REGULAR WORKDAY OF THE EMPLOYEES, AND (2) TIME ON DUTY FOR AT LEAST ONE HOUR BETWEEN 5 P.M. AND 8 A.M. ON ANY DAY. THEREFORE,"OVERTIME" FOR THE PURPOSE OF THIS ACT MAY BE DEFINED AS SERVICE OF THE CHARACTER MENTIONED IN THE ACT OF AT LEAST ONE HOUR BETWEEN 5 P.M. AND 8 A.M. OF ANY DAY BY INSPECTORS AND EMPLOYEES OF THE IMMIGRATION SERVICE IN ADDITION TO THE NUMBER OF HOURS ADMINISTRATIVELY PRESCRIBED AS THEIR REGULAR WORKDAY.

I DO NOT FIND THAT ANY COMPETENT AUTHORITY HAS GIVEN TO THE TERM "OVERTIME," AS USED IN THE CUSTOMS SERVICE LAW OR IN ANY OF THE OTHER STATUTES IN PARI MATERIA (SEE SECTION 7 OF THE WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, 57 STAT. 77), A DEFINITION INCONSISTENT WITH THE ABOVE SINCE THE DATE OF SAID DECISION.

THE STATUTE HERE UNDER CONSIDERATION IS SPECIFIC IN LIMITING OVERTIME COMPENSATION TO SERVICES PERFORMED BETWEEN 5 P.M. AND 8 A.M. ALSO, BASED UPON THE SPECIFIC PROVISIONS OF THE STATUTE, THERE CAN BE NO DOUBT BUT THAT PRIVATE INTERESTS COULD NOT BE REQUIRED TO PAY FOR OVERTIME COMPENSATION EXCEPT FOR SERVICES OF EMPLOYEES PERFORMED "AT NIGHT," THE WORD "NIGHT" SPECIFICALLY HAVING BEEN DEFINED AS THE PERIOD BETWEEN 5 P.M. AND 8 A.M. WHILE, GENERALLY, A PROVISO LIMITS OR QUALIFIES THE MAIN BODY OF A STATUTE, IT IS CLEAR THAT THE PROVISO HERE IN QUESTION, WHICH WAS ADDED TO THE STATUTE BY THE ACT OF FEBRUARY 7, 1920, 41 STAT. 402, DOES NOT, AS SUGGESTED BY CONGRESSMAN DUPRE ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES, JANUARY 28, 1940, HAVE THE EFFECT OF SO MODIFYING THE MAIN BODY OF THE STATUTE AS TO AUTHORIZE PAYMENT OF OVERTIME COMPENSATION FOR ANY PERIOD OF THE 24 HOURS OTHER THAN DURING THE PERIOD BETWEEN 5 P.M. AND 8 A.M. THE PRIMARY PURPOSE OF THE STATUTE WAS TO IMPOSE UPON PRIVATE INTERESTS THE OBLIGATION TO PAY FOR SERVICES PERFORMED AT NIGHT, WHICH TERM HAS BEEN DEFINED AS THE PERIOD BETWEEN 5 P.M. AND 8 A.M., THEREBY RELIEVING THE GOVERNMENT FROM PAYING THE COST OF SUCH SERVICES PERFORMED FOR THE CONVENIENCE OF PRIVATE INTERESTS. THE MEANING OF THE PROVISO, BASED UPON ITS EXPRESS TERMS, WITHOUT REFERENCE TO THE COMMENTS OF CONGRESSMAN DUPRE, MERELY IS TO AUTHORIZE ADJUSTMENTS IN THE REGULAR HOURS OF WORK OF CUSTOMS EMPLOYEES TO AGREE WITH PREVAILING WORKING HOURS AT THE SAME PORT, BUT THE PROVISO STATES FURTHER THAT "NOTHING CONTAINED IN THIS PROVISO SHALL BE CONSTRUED IN ANY MANNER TO AFFECT OR ALTER * * * THE OVERTIME PAY HEREIN FIXED," THAT IS, FOR OVERTIME SERVICE PERFORMED BETWEEN 5 P.M. AND 8 A.M. OR ON SUNDAYS AND HOLIDAYS, AS PROVIDED IN THE MAIN BODY OF THE STATUTE. THE VIEW STATED IN YOUR LETTER, IF ADOPTED, WOULD PERMIT THE FIXING OF REGULAR TOURS OF DUTY OF CUSTOMS EMPLOYEES, AS WELL AS EMPLOYEES OF OTHER SERVICES WHOSE OVERTIME IS COMPUTED AND PAID UNDER LAWS SIMILAR TO THE CUSTOMS SERVICE LAW, AT NIGHT, FOR WHICH NO ADDITIONAL COMPENSATION WOULD BE BE PAYABLE ( UNITED STATES V. MYERS, 320 U.S. 561) AND AUTHORIZE PAYMENT OF OVERTIME COMPENSATION FOR SERVICES PERFORMED DURING ANY PORTION OF THE DAYTIME AT OVERTIME RATES OF COMPENSATION ENTIRELY OUT OF LINE WITH THE USUAL RATES OF COMPENSATION FOR OVERTIME SERVICES, AND FOR WHICH PRIVATE INTERESTS WOULD BE REQUIRED TO PAY. SEE, IN THAT CONNECTION, THE FOLLOWING EXCERPT FROM THE DECISION OF THE SUPREME COURT IN THE CASE OF UNITED STATES V. MYERS, SUPRA:

* * * THE GOVERNMENT IS CORRECT IN ITS INTERPRETATION OF THE LAST PROVISO OF SEC. 5 AS PERMITTING SHIFTS IN AN INSPECTOR'S REGULAR HOURS OF WORK. NIGHT ASSIGNMENTS ARE AN OLD ADMINISTRATIVE PRACTICE. IT IS TRUE THAT THE PROVISO APPARENTLY WAS PASSED TO MEET A NEW ORLEANS SITUATION BUT THE LANGUAGE IS GENERAL. IT DOES NOT RESTRICT THE COLLECTOR TO MINOR VARIATIONS IN HOURS. * * *

I AM UNABLE TO PERCEIVE THAT THE CONGRESS COULD HAVE INTENDED BY THE PROVISO THAT OVERTIME SERVICE MAY BE PAID FOR AND CHARGED AGAINST PRIVATE INTERESTS WHEN PERFORMED DURING THE DAYTIME, THAT IS, BETWEEN THE HOURS OF 8 A.M. AND 5 P.M.

SECTION 1765, REVISED STATUTES, PROVIDES AS FOLLOWS:

NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

IT IS WELL SETTLED THAT DURING A PERIOD OF DETAIL OR ASSIGNMENTS FROM ONE POSITION TO ANOTHER THE EMPLOYEE CONTINUES TO RECEIVE THE SALARY OF HIS REGULAR POSITION. SECTION 1765, REVISED STATUTES, ABOVE QUOTED, WOULD PROHIBIT ANY OTHER RULE. HENCE, WHEN AN INSIDE EMPLOYEE OF THE CUSTOMS SERVICE WHOSE REGULAR TOUR OF DUTY HAS BEEN FIXED IS ASSIGNED TO PERFORM WORK OF AN OUTSIDE EMPLOYEE DURING THE REGULAR HOURS OF INSIDE EMPLOYEES, THE AUGMENTATION OF THE SALARY OF THE INSIDE EMPLOYEE FOR SERVICES PERFORMED DURING HIS REGULAR TOUR OF DUTY--- WHICH MAY NOT BE REGARDED AS ,OVERTIME" ON THE BASIS THAT SUCH WORK IS PERFORMED OUTSIDE OF THE REGULAR TOUR OF DUTY OF OUTSIDE EMPLOYEES--- WOULD BE PROHIBITED BY LAW.

ACCORDINGLY, THE DECISION OF AUGUST 18, 1944, 24 COMP. GEN. 140, MUST BE, AND IS, AFFIRMED, IN THE LIGHT OF WHICH THE ITALICIZED WORDS APPEARING IN THE FOLLOWING PORTION OF TD 51149 DATED NOVEMBER 18, 1944, ISSUED AFTER THE DECISION OF THIS OFFICE OF AUGUST 18, 1944, MAY NOT BE GIVEN LEGAL EFFECT IN THE AUDIT OF CUSTOMS ACCOUNTS:

NIGHT, SUNDAY, AND HOLIDAY DEFINED.--- FOR THE PURPOSES OF THIS SECTION THE WORD "NIGHT" SHALL MEAN THE TIME BETWEEN 5 P.M. OF ANY DAY AND 8 A.M. OF THE FOLLOWING DAY, OR BETWEEN THE CORRESPONDING HOURS AT PORTS OR STATIONS WHERE REGULAR HOURS FOR THE TRANSACTION OF THE GENERAL CLASS OF CUSTOMS BUSINESS INVOLVED OTHER THAN THOSE FROM 8 A.M. TO 5 P.M. HAVE BEEN ESTABLISHED TO AGREE WITH LOCAL PREVAILING WORKING HOURS, BUT SHALL NOT INCLUDE ANY SUCH TIME WITHIN THE 24 HOURS OF A SUNDAY OR HOLIDAY. THE NIGHT HOURS AT THE END OF THE REGULAR WORKDAY IMMEDIATELY PRECEDING A SUNDAY OR HOLIDAY AND THE NIGHT HOURS AT THE BEGINNING OF THE NEXT REGULAR WORKDAY SHALL BE CONSIDERED FOR THE PURPOSES OF THIS SECTION AS PART OF A SINGLE NIGHT. FOR SUCH PURPOSE THE TERM "HOLIDAY" SHALL INCLUDE ONLY DAYS ON WHICH CUSTOMS EMPLOYEES GENERALLY ARE NOT REQUIRED TO WORK AND WHICH ARE USUALLY OBSERVED AS NATIONAL HOLIDAYS 5. THE TIME ACCOUNTED FOR AS OVERTIME SHALL BE COMPUTED ON THE BASIS OF THE REGULAR HOURS FOR THE PERFORMANCE OF THE PARTICULAR WORK OF THE ASSIGNMENT, EVEN THOUGH SUCH HOURS DIFFER FROM THE REGULAR WORKING HOURS OF THE EMPLOYEE ASSIGNED 5A. (ITALICS SUPPLIED.)

HOWEVER, IN VIEW OF THE LONG-EXISTING ADMINISTRATIVE PRACTICE--- CONTRARY TO THE RULES STATED IN THE DECISION OF THIS OFFICE, SUPRA--- AS EXPLAINED IN YOUR PRESENT LETTER SHOWING THAT THE ADMINISTRATIVE VIEW WAS NOT WHOLLY WITHOUT SUPPORT, PAYMENTS MADE PRIOR TO AUGUST 18, 1944, THE DATE OF THE DECISION IN QUESTION, WILL NOT NOW BE QUESTIONED SOLELY UPON THE BASIS THAT THEY WERE NOT MADE IN ACCORDANCE WITH THE RULE STATED IN SAID DECISION.