B-169113, MAR. 24, 1970

B-169113, MAR. 24, 1970

COMPENSATION--OVERTIME--DUTY OFFICERS--TELEPHONE DUTIES AT HOME SECRETARY OF STATE IS ADVISED THAT TELEPHONE WORK PERFORMED OUTSIDE REGULAR TOURS OF DUTY IN HOMES OF DESIGNATED EMPLOYEES (DUTY OFFICERS) OF PASSPORT OFFICE AND OFFICE OF SPECIAL CONSULAR SERVICES, WASH; D.C; AND DULY LOGGED BY SUCH OFFICES, MAY BE REGARDED AS OVERTIME WORK UNDER 5 U.S.C. 5542, AND EMPLOYEES THEREFORE MAY BE COMPENSATED FOR SUCH WORK OR GRANTED TIME OFF IN LIEU THEREOF IN ACCORDANCE WITH 5 U.S.C. 5543.

TO MR. SECRETARY:

BY LETTER OF FEBRUARY 17, 1970, YOUR DEPUTY UNDER SECRETARY REQUESTS OUR DECISION CONCERNING THE PAYMENT OF OVERTIME COMPENSATION UNDER THE CIRCUMSTANCES HEREINAFTER RELATED.

THE DEPUTY UNDER SECRETARY POINTS OUT THAT IT IS FREQUENTLY NECESSARY TO TAKE IMMEDIATE ACTION UPON MATTERS PRESENTED TO THE DEPARTMENT OUTSIDE NORMAL WORKING HOURS WHICH REQUIRES A 24-HOUR CAPABILITY PERMITTING OFFICIAL DISPOSITION OF THESE EMERGENCY SITUATIONS. TO HANDLE THESE SITUATIONS THERE HAS BEEN ESTABLISHED BY REGULATION, 3 FAM 1417, A DUTY OFFICER SYSTEM WHEREBY AN OFFICER REMAINS AVAILABLE BY TELEPHONE AFTER HIS NORMAL TOUR OF DUTY. PARAGRAPH 1417.2 THEREOF PROVIDES AS FOLLOWS:

"DUTY OFFICER MEANS A DESIGNATED OFFICER IMMEDIATELY ACCESSIBLE BY TELEPHONE AT ALL TIMES (IN THE OFFICE OR AT HOME) DURING THE NONWORKING HOURS OF A SPECIFIED PERIOD." PARAGRAPH 1417.4B READS AS FOLLOWS:

"THE DUTY OFFICER IS RESPONSIBLE FOR GETTING PROMPT ACTION OR A PROMPT RESPONSE (COMPLETED STAFF WORK) IN HIS UNIT. MERELY REFERRING THE MATTER TO SOMEONE ELSE IN THE BUREAU FAILS TO FULFILL THIS RESPONSIBILITY."

IT IS POINTED OUT THAT TWO PARTICULAR OFFICES OF THE DEPARTMENT HAVE SO MANY EMERGENCY SITUATIONS ARISING OUTSIDE THE NORMAL WORKING HOURS THAT THE DUTY OFFICERS ARE REQUIRED TO DO CONSIDERABLE WORK BY TELEPHONE FROM THEIR HOMES. THESE OFFICES ARE IDENTIFIED AS THE PASSPORT OFFICE AND THE OFFICE OF SPECIAL CONSULAR SERVICES, WASHINGTON, D. C. WE NOTE THAT IN THE CASE OF THE PASSPORT OFFICE EMPLOYEES, GRADES GS-9 THROUGH GS-13, ARE EXPECTED TO PERFORM SUCH DUTIES APPROXIMATELY TWO OR MORE WEEKS EACH YEAR WHILE EMPLOYEES OF THE OTHER OFFICE, GRADES GS-9 THROUGH GS-15, SERVE AS DUTY OFFICERS ON A DAILY BASIS FOR A TOTAL OF FROM 24 TO 30 DAYS PER YEAR.

IT IS FURTHER STATED THAT IT IS NOT BELIEVED FEASIBLE TO ATTEMPT TO QUALIFY SUCH EMPLOYEES FOR PREMIUM PAY ON AN ANNUAL PERCENTAGE BASIS UNDER 5 U.S.C. 5545 (C) (1). RATHER, THE QUESTION IS ASKED WHETHER THE WORK AT HOME MAY BE REGARDED AS OVERTIME WORK WITHIN THE MEANING OF 5 U.S.C. 5542, SINCE FROM THE LOGS KEPT BY SUCH OFFICES IT IS POSSIBLE TO ASCERTAIN DEFINITELY THE ACTUAL TIME SPENT ON EACH ITEM OF WORK PERFORMED AND RECORD THE SAME ON A WEEKLY BASIS. WE NOTE THE ANALYSIS OF THE PASSPORT OFFICE DUTY OFFICER LOGS AND WORKSHEETS FOR A RANDOM 3 WEEK PERIOD SHOWS A MINIMUM OF 7 HOURS, 35 MINUTES AND A MAXIMUM OF 21 HOURS OF OVERTIME WORK PER WEEK AT THEIR HOMES. THE PROVISIONS OF 5 U.S.C. 5542 ARE IN PERTINENT PART AS FOLLOWS:

"(A) HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR * * * IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR, EXCEPT AS OTHERWISE PROVIDED BY THIS SUBCHAPTER, AT THE FOLLOWING RATES:

"(1) FOR AN EMPLOYEE WHOSE BASIC PAY IS AT A RATE WHICH DOES NOT EXCEED THE MINIMUM RATE OF BASIC PAY FOR GS-10, THE OVERTIME HOURLY RATE OF PAY IS AN AMOUNT EQUAL TO ONE AND ONE-HALF TIMES THE HOURLY RATE OF BASIC PAY OF THE EMPLOYEE, AND ALL THAT AMOUNT IS PREMIUM PAY.

"(2) FOR AN EMPLOYEE WHOSE BASIC PAY IS AT A RATE WHICH EXCEEDS THE MINIMUM RATE OF BASIC PAY FOR GS-10, THE OVERTIME HOURLY RATE OF PAY IS AN AMOUNT EQUAL TO ONE AND ONE-HALF TIMES THE HOURLY RATE OF THE MINIMUM RATE OF BASIC PAY FOR GS-10, AND ALL THAT AMOUNT IS PREMIUM PAY."

WE SEE NO REASON WHY THE TELEPHONE WORK PERFORMED IN THE HOMES OF THE DESIGNATED EMPLOYEES OUTSIDE THEIR REGULAR TOURS OF DUTY SHOULD NOT BE REGARDED AS OVERTIME WORK UNDER THE PROVISIONS OF 5 U.S.C. 5542, QUOTED ABOVE. THUS, THEY MAY BE COMPENSATED FOR SUCH WORK OR GRANTED TIME OFF IN LIEU THEREOF IN ACCORDANCE WITH 5 U.S.C. 5543.