A-83010, FEBRUARY 12, 1937, 16 COMP. GEN. 757

A-83010: Feb 12, 1937

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- OR ON A NONWORK DAY ON WHICH NO OTHER WORK IS PERFORMED. IS AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION OF APRIL 22. YOUR DECISION IS THEREFORE REQUESTED UPON THE FOLLOWING QUESTIONS: 1. TUESDAY OFF IN LIEU OF A REGULAR EIGHT-HOUR SHIFT OF DUTY PERFORMED ON A PRECEDING SUNDAY CHARGE OVERTIME IF HE IS DIRECTED TO PERFORM DUTY OF AT LEAST ONE HOUR AFTER 5 P.M. IMMIGRATION OFFICERS ASSIGNED TO INSPECTION DUTY ARE ON A FIVE AND ONE HALF DAY WEEK OF FORTY-FOUR HOURS AND ARE ENTITLED TO ONE AND ONE-HALF DAYS OFF DUTY DURING EACH WEEK. HE IS GIVEN A DAY OFF ON SOME OTHER DAY OF THE WEEK. IF AN OFFICER IS REQUIRED TO PERFORM DUTY OF AT LEAST ONE HOUR AFTER 5 P.M. HE IS ENTITLED TO EXTRA COMPENSATION NOTWITHSTANDING THE FACT THAT HE DID NOT PERFORM A REGULAR SHIFT OF DUTY ON SUNDAY. 2.

A-83010, FEBRUARY 12, 1937, 16 COMP. GEN. 757

COMPENSATION - OVERTIME - IMMIGRATION AND NATURALIZATION SERVICE THE REGULAR TOUR OF DUTY OF EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE MAY BE FIXED AT NOT TO EXCEED A WEEK OF FIVE DAYS OF EIGHT HOURS AND ONE DAY OF FOUR HOURS, A TOTAL OF 44 HOURS, IN VIEW OF THE PROVISIONS OF THE ACT OF MARCH 2, 1931, 46 STAT. 1467, REGARDING OVERTIME COMPENSATION, AND THE SATURDAY HALF-HOLIDAY ACT OF MARCH 3, 1931, 46 STAT. 1482, AND THERE MAY BE SPECIFIED WHICH DAYS OF THE WEEK AND WHICH HOURS OF THE DAY SHALL BE WITHIN THE REGULAR TOUR OF DUTY. AN EMPLOYEE OF THE IMMIGRATION AND NATURALIZATION SERVICE WHO WORKS HIS REGULAR PROPERLY PRESCRIBED TOUR OF DUTY DURING THE WEEK, MAY BE PAID OVERTIME COMPENSATION FOR ADDITIONAL WORK PERFORMED BETWEEN 5 P.M. AND 8 A.M., EITHER ON A WORK DAY--- WHETHER EIGHT OR FOUR HOURS IN LENGTH--- OR ON A NONWORK DAY ON WHICH NO OTHER WORK IS PERFORMED, AND A DAY OF ABSENCE ON ANNUAL OR SICK LEAVE WITHIN A REGULAR TOUR OF DUTY MAY BE REGARDED AS A DAY OF REGULAR SERVICE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF LABOR, FEBRUARY 12, 1937:

YOUR LETTER OF JANUARY 13, 1937, IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF APRIL 22, 1931 (10 COMP. GEN. 487) REGARDING COMPENSATION FOR OVERTIME PERFORMED BY EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE UNDER THE ACT OF MARCH 2, 1931 (46 STAT. 1467).

IN RESPONSE TO THE QUESTION "WHAT CONSTITUTES OVERTIME FOR THE PURPOSE OF THE ACT? " YOU STATE ON 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 WORK DAY 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 WORK DAY 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 WORK DAY.'

THIS DEPARTMENT HAS ADMINISTRATIVELY FIXED EIGHT HOURS AS THE REGULAR WORK DAY FOR EMPLOYEES ENGAGED ON INSPECTION WORK, EXCEPT ON SATURDAYS, WHEN FOUR HOURS CONSTITUTES A DAY'S WORK, AND IT HAS BEEN THE PRACTICE TO REQUIRE OFFICERS TO ACTUALLY PERFORM DUTY FOR THE SPECIFIED NUMBER OF HOURS BEFORE PERMITTING THEM TO CHARGE OVERTIME. HOWEVER, THIS PRACTICE RESTRICTS TO SOME EXTENT THE ASSIGNMENT OF OFFICERS, AND BECAUSE OF THE LIMITED PERSONNEL AND THE INCREASE IN TRAFFIC A SERIOUS ADMINISTRATIVE PROBLEM HAS ARISEN AT SOME OF THE PORTS, PARTICULARLY SINCE THE PASSAGE OF THE ACT OF MARCH 14, 1936 (PUBLIC, NO. 471, 74TH CONGRESS), GRANTING TWENTY-SIX DAYS ANNUAL LEAVE TO OFFICERS AND EMPLOYEES. YOUR DECISION IS THEREFORE REQUESTED UPON THE FOLLOWING QUESTIONS:

1. MAY AN OFFICER WHO HAS BEEN GRANTED, SAY, TUESDAY OFF IN LIEU OF A REGULAR EIGHT-HOUR SHIFT OF DUTY PERFORMED ON A PRECEDING SUNDAY CHARGE OVERTIME IF HE IS DIRECTED TO PERFORM DUTY OF AT LEAST ONE HOUR AFTER 5 P.M. TUESDAY AND BEFORE 8 A.M. THE FOLLOWING MORNING?

IMMIGRATION OFFICERS ASSIGNED TO INSPECTION DUTY ARE ON A FIVE AND ONE HALF DAY WEEK OF FORTY-FOUR HOURS AND ARE ENTITLED TO ONE AND ONE-HALF DAYS OFF DUTY DURING EACH WEEK; HENCE, IF AN OFFICER PERFORMS DUTY ON SUNDAY, HE IS GIVEN A DAY OFF ON SOME OTHER DAY OF THE WEEK. UNDER EXISTING PRACTICE, IF AN OFFICER IS REQUIRED TO PERFORM DUTY OF AT LEAST ONE HOUR AFTER 5 P.M. SUNDAY AND BEFORE 8 A.M. THE FOLLOWING MORNING, HE IS ENTITLED TO EXTRA COMPENSATION NOTWITHSTANDING THE FACT THAT HE DID NOT PERFORM A REGULAR SHIFT OF DUTY ON SUNDAY.

2. MAY AN OFFICER WHO HAS WORKED FOUR HOURS ON, SAY, TUESDAY AND HAS BEEN GRANTED FOUR HOURS OFF DUTY IN LIEU OF EXTRA DUTY PERFORMED ON THE PRECEDING SATURDAY CHARGE OVERTIME IF HE IS REQUIRED TO PERFORM EXTRA DUTY OF AT LEAST ONE HOUR AFTER 5 P.M. TUESDAY AND BEFORE 8 A.M. THE FOLLOWING MORNING?

AS THE ACT OF MARCH 3, 1931 (46 STAT. 1482), ESTABLISHES FOUR HOURS AS A DAY'S WORK ON SATURDAYS, OFFICERS OF THE IMMIGRATION AND NATURALIZATION SERVICE WHO ARE REQUIRED TO PERFORM EXTRA DUTY OF AT LEAST ONE HOUR AFTER 5 P.M. SATURDAY AND BEFORE 8 A.M. THE FOLLOWING MORNING ARE PERMITTED TO CHARGE OVERTIME COMPENSATION IF THEY HAVE COMPLETED THEIR REGULAR FOUR- HOUR SHIFT OF DUTY. WHEN AN OFFICER IS REQUIRED TO WORK MORE THAN FOUR HOURS ON SATURDAY, HIS SHIFT OF DUTY IS SHORTENED BY AN EQUAL NUMBER OF HOURS ON SOME OTHER WORK DAY, AND FOR ADMINISTRATIVE REASONS IT IS DESIRABLE TO TREAT THE SHORTENED WORK DAY THE SAME AS SATURDAY FOR THE PURPOSE OF COMPUTING OVERTIME COMPENSATION.

3. MAY AN OFFICER WHO HAS BEEN GRANTED ANNUAL LEAVE TO COVER HIS REGULAR EIGHT-HOUR SHIFT OF DUTY CHARGE OVERTIME FOR WORK OF AT LEAST ONE HOUR PERFORMED AFTER THE EXPIRATION OF HIS REGULAR EIGHT-HOUR SHIFT AND BETWEEN THE HOURS OF 5 P.M. AND 8 A.M.?

SINCE ANNUAL LEAVE IS MANDATORY UNDER THE ACT OF MARCH 14, 1936, THE EMPLOYEE IS ENTITLED TO TWENTY-SIX WORKING DAYS OFF DUTY DURING EACH CALENDAR YEAR, AND IF ONE OF HIS REGULAR EIGHT-HOUR SHIFTS OF DUTY IS COVERED BY ANNUAL LEAVE, WITH THE APPROVAL OF THE PROPER ADMINISTRATIVE OFFICER, IT WOULD SEEM THAT HE IS ENTITLED TO OVERTIME COMPENSATION FOR EXTRA DUTY PERFORMED AFTER THE EXPIRATION OF HIS REGULAR SHIFT AND BETWEEN THE HOURS OF 5 P.M. AND 8 A.M. IN OTHER WORDS, IT IS THE VIEW OF THIS DEPARTMENT THAT THE EMPLOYEE IS ENTITLED TO OVERTIME COMPENSATION IF HE IS REQUIRED TO PERFORM EXTRA DUTY OF AT LEAST ONE HOUR BETWEEN 5 P.M. AND 8 A.M. AFTER PROPERLY ACCOUNTING FOR HIS REGULAR SHIFT OF DUTY.

SECTION 1 OF THE ACT OF MARCH 2, 1931 (46 STAT. 1467), PROVIDES AS FOLLOWS:

THAT THE SECRETARY OF LABOR SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF INSPECTORS AND EMPLOYEES OF THE IMMIGRATION SERVICE 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 DUTIES IN CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS AND CREWS OF STEAMSHIPS, TRAINS, AIRPLANES, OR OTHER VEHICLES, ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT BY WATER, LAND, OR AIR, SUCH RATES TO BE FIXED ON A 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 AND HOLIDAY DUTY; IN THOSE PORTS WHERE THE CUSTOMARY WORKING HOURS ARE OTHER THAN THOSE HERETOFORE MENTIONED, THE SECRETARY OF LABOR IS VESTED WITH AUTHORITY TO REGULATE THE HOURS OF IMMIGRATION EMPLOYEES SO AS TO AGREE WITH THE PREVAILING WORKING HOURS IN SAID PORTS, BUT NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED IN ANY MANNER TO AFFECT OR ALTER THE LENGTH OF A WORKING DAY FOR IMMIGRATION EMPLOYEES OR THE OVERTIME PAY HEREIN FIXED.

UNDER THIS STATUTE AND THE ACT OF MARCH 3, 1931 (46 STAT. 1482), PRESCRIBING 4 HOURS AS A DAY'S WORK ON SATURDAYS WITH A PROVISION FOR COMPENSATORY TIME OFF DUTY ON SOME OTHER DAY OF THE WEEK IN LIEU OF WORK IN EXCESS OF 4 HOURS ON SATURDAYS, THE ADMINISTRATIVE OFFICE MAY FIX THE REGULAR TOUR OF DUTY OF EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE AT NOT TO EXCEED A WEEK OF 5 DAYS OF 8 HOURS AND 1 DAY OF 4 HOURS, A TOTAL OF 44 HOURS, AND TO SPECIFY WHICH DAYS OF THE WEEK AND WHICH HOURS OF THE DAY SHALL BE WITHIN SUCH REGULAR TOUR OF DUTY. 10 COMP. GEN. 487; 11 ID. 19; 16 ID. 243.

OVERTIME COMPENSATION IS PAYABLE UNDER THE TERMS OF THE QUOTED STATUTE FOR WORK OF AT LEAST 1 HOUR BETWEEN 5 P.M. AND 8 A.M. ON ANY DAY IN ADDITION TO THE REGULAR TOUR OF DUTY OF THE EMPLOYEE THUS ADMINISTRATIVELY PRESCRIBED WITHIN STATUTORY LIMITATIONS. IF AN EMPLOYEE OTHERWISE WORKS HIS REGULAR TOUR OF DUTY DURING THE WEEK HE IS ENTITLED TO OVERTIME COMPENSATION UNDER THE TERMS OF THE STATUTE FOR ADDITIONAL WORK PERFORMED BETWEEN 5 P.M. AND 8 A.M. EITHER ON A WORK DAY--- WHETHER 8 HOURS OR 4 HOURS IN LENGTH--- OR ON A NONWORK DAY ON WHICH NO OTHER WORK IS PERFORMED. A DAY OF ABSENCE ON ANNUAL OR SICK LEAVE WITHIN A REGULAR TOUR OF DUTY MAY BE REGARDED AS A DAY OF REGULAR SERVICE. 13 COMP. GEN. 370.