A-88038, AUGUST 11, 1937, 17 COMP. GEN. 135

A-88038: Aug 11, 1937

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IMMIGRATION AND NATURALIZATION FIELD SERVICE - OVERTIME - COMPENSATORY TIME FIELD EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE ARE NOT ENTITLED AS A MATTER OF RIGHT "TO COMPENSATORY OR LIEU TIME FOR WORK PERFORMED IN EXCESS OF THEIR USUAL HOURS OF DUTY. WHEN NO MONETARY COMPENSATION IS RECEIVED BY THEM FOR SUCH WORK.'. IS AS FOLLOWS: THE ACT OF MARCH 2. IT IS STATED THAT THE ACT OF MARCH 2. YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER FIELD EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE ARE ENTITLED TO COMPENSATORY OR LIEU TIME FOR WORK PERFORMED IN EXCESS OF THEIR USUAL HOURS OF DUTY. WHEN NO MONETARY COMPENSATION IS RECEIVED BY THEM FOR SUCH WORK. THE FOLLOWING QUESTION WAS STATED: I WOULD ALSO REQUEST AN EXPRESSION OF YOUR VIEWS AS TO WHETHER OFFICERS ARE ENTITLED TO TWO DAYS' EXTRA COMPENSATION FOR SUNDAY AND HOLIDAY WORK IF THEY ARE GIVEN A DAY OFF IN LIEU THEREOF.

A-88038, AUGUST 11, 1937, 17 COMP. GEN. 135

IMMIGRATION AND NATURALIZATION FIELD SERVICE - OVERTIME - COMPENSATORY TIME FIELD EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE ARE NOT ENTITLED AS A MATTER OF RIGHT "TO COMPENSATORY OR LIEU TIME FOR WORK PERFORMED IN EXCESS OF THEIR USUAL HOURS OF DUTY, AS FIXED BY THE SECRETARY OF LABOR UNDER THE PROVISIONS OF THE ACT APPROVED MARCH 14, 1936 (49 STAT. 1161), WHEN NO MONETARY COMPENSATION IS RECEIVED BY THEM FOR SUCH WORK.'

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF LABOR, AUGUST 11, 1937:

YOUR LETTER OF JULY 30, 1937, IS AS FOLLOWS:

THE ACT OF MARCH 2, 1931 (48 STAT. 1467), PROVIDES THAT THE SECRETARY OF LABOR SHALL FIX A REASONABLE RATE OF COMPENSATION FOR OVERTIME SERVICES FOR INSPECTORS AND EMPLOYEES OF THE IMMIGRATION SERVICE WHO MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN THE HOURS OF 5:00 P.M. AND 8:00 A.M., OR ON SUNDAYS OR HOLIDAYS, TO PERFORM DUTIES IN CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS ON CRUISERS, STEAMSHIPS, TRAINS, AIRPLANES, OR OTHER VEHICLES, ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT BY WATER, LAND, OR AIR.

IN A DECISION OF YOUR OFFICE DATED JUNE 3, 1931 (10 C.G. 537), IT IS STATED THAT THE ACT OF MARCH 2, 1931, DOES NOT CONTEMPLATE OR PERMIT BOTH PAYMENT OF EXTRA COMPENSATION AS FOR OVERTIME TO EMPLOYEES IN THE IMMIGRATION SERVICE AND THE GRANTING OF COMPENSATORY TIME FOR THE SAME PERIOD OF WORK. IN VIEW OF THIS RULING, YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER FIELD EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE ARE ENTITLED TO COMPENSATORY OR LIEU TIME FOR WORK PERFORMED IN EXCESS OF THEIR USUAL HOURS OF DUTY, AS FIXED BY THE SECRETARY OF LABOR UNDER THE PROVISIONS OF THE ACT APPROVED MARCH 14, 1936 (49 STAT. 1161), WHEN NO MONETARY COMPENSATION IS RECEIVED BY THEM FOR SUCH WORK.

IN LETTER DATED MAY 22, 1931, FROM THE SECRETARY OF LABOR, TO WHICH THE CITED DECISION OF JUNE 3, 1931, REPLIED, THE FOLLOWING QUESTION WAS STATED:

I WOULD ALSO REQUEST AN EXPRESSION OF YOUR VIEWS AS TO WHETHER OFFICERS ARE ENTITLED TO TWO DAYS' EXTRA COMPENSATION FOR SUNDAY AND HOLIDAY WORK IF THEY ARE GIVEN A DAY OFF IN LIEU THEREOF. MIGHT STATE IN THIS CONNECTION THAT PRIOR TO THE PROMULGATION OF REGULATIONS, OFFICERS WHO HAD WORKED SUNDAYS OR HOLIDAYS HAVE BEEN GIVEN A DAY OFF IN LIEU THEREOF.

THE FULL ANSWER TO THIS QUESTION WAS AS FOLLOWS:

AS TO YOUR SECOND QUESTION, REFERENCE IS MADE TO THE AMENDMENT SUGGESTED IN DECISION OF APRIL 22, 1931, 10 COMP. GEN. 487, TO PARAGRAPH (E) OF THE PROPOSED REGULATIONS, TO MAKE IT READ AS FOLLOWS:

"NO TIME OFF SHALL BE ALLOWED FOR TIME FOR WHICH EXTRA COMPENSATION MUST BE PAID UNDER THIS ORDER.'

IF THIS SUGGESTION HAS BEEN ADOPTED, NO QUESTION SHOULD ARISE OF EXTRA COMPENSATION FOR SUNDAY AND HOLIDAY WORK FOR WHICH TIME OFF IN LIEU THEREOF IS GRANTED. IT SHOULD BE UNDERSTOOD THAT IF THE REGULAR TRICK OF DUTY OF AN EMPLOYEE FALLS ON A SUNDAY OR A HOLIDAY BETWEEN THE HOURS OF 8 A.M. AND 5 P.M., NO EXTRA COMPENSATION AS FOR SUNDAY OR HOLIDAY WORK WOULD BE AUTHORIZED. THE STATUTE DOES NOT CONTEMPLATE NOR PERMIT BOTH THE PAYMENT OF EXTRA COMPENSATION AND THE GRANTING OF COMPENSATORY TIME FOR THE SAME PERIOD OF WORK.

THE COMPENSATORY TIME OFF DUTY CONSIDERED IN THE CITED DECISION OF APRIL 22, 1931, WAS THAT GRANTED BY THE SATURDAY HALF-HOLIDAY LAW OF MARCH 3, 1931, 46 STAT. 1482, FOR WORK REQUIRED ON SATURDAYS, OTHER THAN NATIONAL HOLIDAYS, IN EXCESS OF 4 HOURS.

SECTIONS 2 AND 3 OF THE ACT OF MARCH 14, 1936, 49 STAT. 1161, CITED BY YOU, PROVIDE AS FOLLOWS:

EACH HEAD OF A DEPARTMENT OR INDEPENDENT ESTABLISHMENT SHALL ISSUE GENERAL PUBLIC REGULATIONS, NOT INCONSISTENT WITH LAW, SETTING FORTH THE HOURS OF DUTY PER DAY AND PER WEEK FOR EACH GROUP OF EMPLOYEES. BEFORE ISSUING SUCH REGULATIONS, WHICH SHALL BE ISSUED WITHIN THREE MONTHS FROM THE DATE OF APPROVAL OF THIS ACT, THE HEADS OF DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS SHALL MEET AND CONSULT AMONG THEMSELVES AND MAKE SUCH REGULATIONS AS NEARLY UNIFORM AS POSSIBLE SO THAT ALL EMPLOYEES, TEMPORARY OR PERMANENT, IN ALL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS SHALL RECEIVE LIKE TREATMENT AS NEARLY AS MAY BE PRACTICABLE: PROVIDED, THAT HEADS OF DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS MAY APPOINT A SUBCOMMITTEE TO DRAFT SUCH REGULATIONS.

EACH HEAD OF A DEPARTMENT OR INDEPENDENT ESTABLISHMENT SHALL KEEP A RECORD OF ALL WORK PERFORMED, IN EXCESS OF THE WORK REQUIRED BY DEPARTMENTAL REGULATIONS ISSUED IN CONFORMANCE WITH SECTION 2 HEREOF, FOR THE PERIOD COMMENCING JULY 1, 1936, AND ENDING DECEMBER 31, 1936, AND SHALL REPORT SAME TO THE CIVIL SERVICE COMMISSION AT THE END OF EACH MONTH. THE CIVIL SERVICE COMMISSION SHALL MAKE A REPORT OF SUCH RECORD TO THE CONGRESS ON OR BEFORE JANUARY 31, 1937.

NEITHER THIS STATUTE, NOR THE ACT OF MARCH 2, 1931, 46 STAT. 1467, AUTHORIZING PAYMENT OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF CERTAIN EMPLOYEES OF THE IMMIGRATION SERVICE, NOR ANY OTHER STATUTE WITH THE EXCEPTION OF THE SATURDAY HALF-HOLIDAY LAW, SUPRA, SPECIFICALLY AUTHORIZES THE GRANTING OF COMPENSATORY OR LIEU TIME FOR WORK PERFORMED BY SAID EMPLOYEES IN EXCESS OF THEIR USUAL TOUR OF DUTY AS ADMINISTRATIVELY FIXED. THE GRANTING OF COMPENSATORY TIME OFF DUTY FOR OVERTIME WORK HAS NOT BEEN SPECIFICALLY AUTHORIZED BY STATUTE, EXCEPT WITH REFERENCE TO THE POSTAL SERVICE.

THEREFORE, YOU ARE ADVISED THAT THE EMPLOYEES IN QUESTION ARE NOT ENTITLED AS A MATTER OF RIGHT "TO COMPENSATORY OR LIEU TIME FOR WORK PERFORMED IN EXCESS OF THEIR USUAL HOURS OF DUTY, AS FIXED BY THE SECRETARY OF LABOR UNDER THE PROVISIONS OF THE ACT APPROVED MARCH 14, 1936 (49 STAT. 1161), WHEN NO MONETARY COMPENSATION IS RECEIVED BY THEM FOR SUCH WORK.' (QUOTING FROM YOUR LETTER.)