B-160465, JUN. 6, 1967

B-160465, JUN. 6, 1967

TO AUTHORIZED CERTIFYING OFFICER:

THIS IS IN REPLY TO YOUR LETTER OF MAY 8, 1967, REFERENCE D:O:DC:F, REQUESTING A DECISION OF OUR OFFICE CONCERNING PAYMENT OF OVERTIME COMPENSATION TO CERTAIN EMPLOYEES OF THE INTERNAL REVENUE SERVICE WHOSE WORK SCHEDULES WERE VARIED FOR EDUCATIONAL PURPOSES RESULTING IN DAILY WORK TOURS IN EXCESS OF EIGHT HOURS.

YOU POINT OUT THAT PUB.L. 89-478, APPROVED JUNE 29, 1966, 80 STAT. 231, HAD BEEN INTERPRETED ADMINISTRATIVELY AS PRECLUDING ENTITLEMENT TO OVERTIME COMPENSATION. THE HOURS IN EXCESS OF EIGHT WERE,THEREFORE, PAID AT BASIC COMPENSATION RATES.

YOU INDICATE THAT FOLLOWING RECEIPT OF OUR DECISION B-160465, MARCH 9, 1967, SPECIAL TOURS OF DUTY FOR EDUCATIONAL PURPOSES REQUIRING WORK IN EXCESS OF EIGHT HOURS IN A DAY WERE ELIMINATED.

IN ORDER TO ACCOMMODATE THE SCHOLASTIC PROGRAMS OF EMPLOYEES WHO ARE PURSUING EDUCATION IN SCHOOLS AND COLLEGES WHICH WILL EQUIP THEM FOR MORE EFFECTIVE WORK IN THE AGENCY, HEADS OF DEPARTMENTS OR AGENCIES ARE AUTHORIZED UNDER PUB.L. 89-478 (5 U.S.C. 944 (A) (3) (FORMER TITLE 5) (, TO ESTABLISH SPECIAL TOURS OF DUTY. TO AVOID PAYMENT OF PREMIUM COMPENSATION ARISING FROM NIGHT OR HOLIDAY WORK THE STATUTE ALSO PROVIDES THAT:

"* * * NO PREMIUM COMPENSATION SHALL BE PAID TO ANY OFFICER OR EMPLOYEE SOLELY BECAUSE HIS SPECIAL TOUR OF DUTY ESTABLISHED PURSUANT TO THIS PARAGRAPH RESULTS IN HIS WORKING ON A DAY OR AT A TIME OF DAY FOR WHICH PREMIUM COMPENSATION IS OTHERWISE AUTHORIZED.' THIS PROVISION PROHIBITS PAYMENT OF PREMIUM COMPENSATION TO EMPLOYEES WITH SPECIAL TOURS OF DUTY WHO WORK AT NIGHT OR ON DAYS WHEN PREMIUM COMPENSATION IS PAYABLE SOLELY BECAUSE OF SUCH ADJUSTED WORKWEEK SCHEDULES. PRIOR TO AND FOR A SHORT TIME AFTER THE PASSAGE OF PUB.L. 89-478 OVERTIME WAS COMPENSABLE ONLY FOR WORK IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK. 5 U.S.C. 5542. CONSEQUENTLY, SINCE ENTITLEMENT TO OVERTIME COMPENSATION DID NOT ARISE AT THAT TIME FOLLOWING WORK IN EXCESS OF EIGHT HOURS IN A DAY THERE WAS NO NEED TO USE LANGUAGE IN THE STATUTE EXCLUDING PREMIUM PAY "FOR A NUMBER OF HOURS IN A DAY.'

SECTION 404 OF PUB.L. 89-504, APPROVED JULY 18, 1966, 80 STAT. 288, PROVIDES FOR OVERTIME PAY FOR WORK IN EXCESS OF EIGHT HOURS IN A DAY FOR ALL EMPLOYEES SUBJECT TO 5 U.S.C. 5542, WITH CERTAIN EXCEPTIONS NOT PERTINENT HERE. NO EXCEPTION IS MADE THEREIN FOR THOSE EMPLOYEES WHOSE WORK SCHEDULES ARE ADJUSTED TO ACCOMMODATE THEIR EDUCATIONAL PROGRAMS.

ACCORDINGLY, AND SINCE THERE IS NO PROHIBITION IN PUB.L. 89-478 AGAINST ENTITLEMENT TO PREMIUM PAY FOR OVERTIME FOR WORK IN EXCESS OF EIGHT HOURS IN A DAY FOR EMPLOYEES WHOSE WORKWEEKS HAVE BEEN VARIED FOR EDUCATIONAL PURPOSES THEREUNDER, THE EMPLOYEES REFERRED TO IN YOUR LETTER ARE ENTITLED TO OVERTIME PAY FOR ALL AUTHORIZED OR APPROVED WORK IN EXCESS OF EIGHT HOURS IN A DAY.

UPON PROPER VERIFICATION SUCH OVERTIME MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.