B-148874, AUG. 16, 1962

B-148874, AUG. 16, 1962

TO MISS LORNA M. STEWART:

THIS REFERS TO YOUR LETTER OF JULY 28, 1962, WHICH REQUESTS RECONSIDERATION OF OUR DECISION B-148874, JUNE 4, 1962. THAT DECISION, IN PART, DENIED OVERTIME COMPENSATION CLAIMED BY YOU INCIDENT TO YOUR EMPLOYMENT WITH THE INTERNATIONAL COOPERATION ADMINISTRATION (NOW AGENCY FOR INTERNATIONAL DEVELOPMENT) AT THE UNITED STATES OPERATIONS MISSION, BAGHDAD, IRAQ.

IN PREVIOUS CORRESPONDENCE WITH OUR OFFICE YOU HAVE CORRECTLY POINTED OUT THAT SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, CH. 212, 59 STAT. 296, AS AMENDED BY SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT AMENDMENTS OF 1954, APPROVED SEPTEMBER 1, 1954, CH. 1208, 68 STAT. 1109, 5 U.S.C. 911, PROVIDES THAT ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK SHALL BE CONSIDERED AS OVERTIME WORK AND SHALL BE COMPENSATED FOR AS OVERTIME WORK. SIMILARLY, YOU ARE CORRECT IN STATING THAT SECTION 25-221 OF CHAPTER Z1-323 OF THE FEDERAL PERSONNEL MANUAL (FEDERAL EMPLOYEES' PAY REGULATION), ISSUED BY THE CIVIL SERVICE COMMISSION, PROVIDES THAT OVERTIME WORK ORDERED OR APPROVED IN WRITING SHALL BE COMPENSATED AT OVERTIME RATES. IN VIEW OF THE CITED LAW AND REGULATIONS WHICH PROVIDE THAT OVERTIME OFFICIALLY ORDERED OR APPROVED SHALL BE PAID FOR AT SPECIFIED RATES, YOU QUESTION THE LEGALITY OF THE AGENCY REGULATION APPEARING IN ORDER NUMBER 424.1 OF THE FOREIGN OPERATIONS ADMINISTRATION MANUAL WHICH READS IN PERTINENT PART AS FOLLOWS:

"II. POLICY

"A: AUTHORIZATION

"IT IS THE POLICY OF FOA TO OPERATE WITHIN THE ESTABLISHED BASIC WORK WEEK, AND OVERTIME WHETHER FOR PAY OR FOR COMPENSATORY TIME, WILL BE AUTHORIZED ONLY IN EMERGENCY SITUATIONS WHEN IT IS CLEARLY NECESSARY TO MEET DEADLINES AND WHEN FUNDS (OVERTIME ALLOTMENTS IN TERMS OF WORK HOURS) ARE AVAILABLE TO MEET THE FINANCIAL OBLIGATIONS TO BE INCURRED.

"2. GENERALLY, EMPLOYEES EARNING MORE THAN $5,060 PER YEAR WILL NOT BE AUTHORIZED OVERTIME. IN MOST CASES SUCH EMPLOYEES ARE IN A POSITION TO PLAN THEIR OWN TIME AND DISCHARGE THEIR RESPONSIBILITIES WITHOUT OFFICIAL OVERTIME. HOWEVER, WHEN IT IS NECESSARY TO DIVERT SUCH EMPLOYEES TO WORK OVERTIME, DURING HOURS WHICH ARE NOT AT THEIR DISCRETION, OVERTIME PAY OR COMPENSATORY TIME MAY BE AUTHORIZED, SUBJECT TO LEGAL LIMITATIONS ON AGGREGATE SALARY. WEEKEND DUTY OFFICER WOULD BE AN EXAMPLE OF SUCH AN ASSIGNMENT.'

WE DO NOT VIEW THE QUOTED REGULATION AS ATTEMPTING TO ABROGATE THE REQUIREMENTS OF THE LAW CODIFIED AT 5 U.S.C. 911 OR THE CIVIL SERVICE REGULATIONS. NEEDLESS TO SAY, SUCH COULD NOT BE DONE BY AN ADMINISTRATIVE RULE. WE VIEW THE QUOTED REGULATION AS A STATEMENT OF POLICY WHICH DOES NOT IN ANY WAY PRECLUDE THE ORDERING OR APPROVAL OF OVERTIME WORK AND COMPENSATION.

MANIFESTLY, THE REQUIREMENT THAT OVERTIME MUST BE ORDERED OR APPROVED REMAINS. THE QUOTED POLICY LANGUAGE DOES NOT--- AS IT COULD NOT--- CHANGE THE REQUIREMENTS OF THE APPLICABLE LAW AND REGULATION.

WITH THE RECORD THAT YOU HAVE PRESENTED YOU HAVE FORCIBLY ARGUED THAT THE WORK PERFORMED WAS OF THE TYPE WHICH "IS CLEARLY NECESSARY TO MEET DEADLINES.' HOWEVER, IT IS NOT OUR FUNCTION TO APPLY THE AGENCY'S POLICY PRONOUNCEMENT AND THE FACT REMAINS THAT AS A CONDITION PRECEDENT TO THE PAYMENT OF OVERTIME, SUCH OVERTIME MUST BE ORDERED OR APPROVED IN WRITING. DESPITE CONSIDERABLE EFFORT, YOU HAVE FAILED TO CONVINCE THE APPROPRIATE OFFICIALS OF YOUR AGENCY TO MEET THE PRONOUNCED REQUISITE. THEREFORE, OUR OFFICE HAS NO ALTERNATIVE BUT TO SUSTAIN OUR PREVIOUS ACTIONS WHICH DENIED YOUR CLAIM.