B-106049, NOVEMBER 7, 1951, 31 COMP. GEN. 173

B-106049: Nov 7, 1951

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COMPENSATION - OVERTIME - EMPLOYEES ON COURT OR MILITARY TRAINING LEAVE AN EMPLOYEE ON COURT LEAVE OR MILITARY TRAINING LEAVE IS ENTITLED TO THE SAME COMPENSATION HE WOULD HAVE RECEIVED HAD SERVICE BEEN RENDERED IN HIS CIVILIAN POSITION. SO THAT AN EMPLOYEE WHO IS ABSENT ON SUCH LEAVE ON DAYS HE WOULD HAVE RECEIVED OVERTIME COMPENSATION HAD HE RENDERED SERVICE IN HIS CIVILIAN POSITION IS ENTITLED TO THE OVERTIME COMPENSATION HE WOULD HAVE RECEIVED BUT FOR SUCH ABSENCE. 1951: REFERENCE IS MADE TO LETTER OF OCTOBER 10. AN ORDER WAS ISSUED AT THAT STATION. THIS OVERTIME IS NECESSARY TO COMPLETE THE OVERHAUL AND MODIFICATION SCHEDULES ALONG WITH OTHER FLEET SUPPORT WORK. IT IS TO BE CONSIDERED A TEMPORARY MEASURE TO REMAIN IN EFFECT UNTIL FURTHER NOTICE.

B-106049, NOVEMBER 7, 1951, 31 COMP. GEN. 173

COMPENSATION - OVERTIME - EMPLOYEES ON COURT OR MILITARY TRAINING LEAVE AN EMPLOYEE ON COURT LEAVE OR MILITARY TRAINING LEAVE IS ENTITLED TO THE SAME COMPENSATION HE WOULD HAVE RECEIVED HAD SERVICE BEEN RENDERED IN HIS CIVILIAN POSITION, SO THAT AN EMPLOYEE WHO IS ABSENT ON SUCH LEAVE ON DAYS HE WOULD HAVE RECEIVED OVERTIME COMPENSATION HAD HE RENDERED SERVICE IN HIS CIVILIAN POSITION IS ENTITLED TO THE OVERTIME COMPENSATION HE WOULD HAVE RECEIVED BUT FOR SUCH ABSENCE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, NOVEMBER 7, 1951:

REFERENCE IS MADE TO LETTER OF OCTOBER 10, 1951, FROM THE ACTING SECRETARY OF THE NAVY, REQUESTING DECISION WHETHER OVERTIME COMPENSATION MAY BE PAID TO CERTAIN EMPLOYEES AT THE NAVAL AIR STATION, JACKSONVILLE, FLORIDA, WHILE ON COURT LEAVE OR MILITARY TRAINING LEAVE UNDER CONDITIONS SET FORTH BELOW.

ON MARCH 12, 1951, AN ORDER WAS ISSUED AT THAT STATION, AS FOLLOWS:

1. EFFECTIVE 10700 13 MARCH UNTIL FURTHER NOTICE THE WORKING HOURS FOR THIS DEPARTMENT AS PRESCRIBED IN PARAGRAPH TWO OF THE BASIC INSTRUCTION SHALL BE CHANGED TO READ:

"A" SHIFT----------------------0700-1645

"B" SHIFT---------------------- AS SCHEDULED TO MEET

REQUIREMENTS

"C" SHIFT---------------------- AS SCHEDULED TO MEET

REQUIREMENTS

2. THIS CHANGE IN SHIFT AMOUNTS TO ONE HOUR AND FIFTEEN MINUTES OVERTIME EACH WORKING DAY. THIS OVERTIME IS NECESSARY TO COMPLETE THE OVERHAUL AND MODIFICATION SCHEDULES ALONG WITH OTHER FLEET SUPPORT WORK. IT IS TO BE CONSIDERED A TEMPORARY MEASURE TO REMAIN IN EFFECT UNTIL FURTHER NOTICE.

(S) W. E. KENNA

W. E. KENNA

OVERHAUL AND REPAIR OFFICER

AMONG THE ENCLOSURES TRANSMITTED ALSO APPEARS A STATEMENT DATED MAY 17, 1951, BY THE SAME OFFICER, PROVIDING AS FOLLOWS:

2. THE REGULARLY SCHEDULED WORKDAY OF THIS DEPARTMENT WAS NINE (9) HOURS AND FIFTEEN (15) MINUTES BEGINNING 13 MARCH AND ENDING CLOSE OF BUSINESS 27 MARCH 1951.

THE ACT OF JUNE 29, 1940, 54 STAT. 689, PROVIDES:

THAT THE COMPENSATION OF ANY EMPLOYEE OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO MAY BE CALLED UPON FOR JURY SERVICE IN ANY STATE COURT OR COURT OF THE UNITED STATES SHALL NOT BE DIMINISHED DURING THE TERM OF SUCH JURY SERVICE BY REASON OF SUCH ABSENCE, EXCEPT AS PROVIDED IN SECTION 3, NOR SHALL SUCH PERIOD OF SERVICE BE DEDUCTED FROM THE TIME ALLOWED FOR ANY LEAVE OF ABSENCE AUTHORIZED BY LAW.

SEC. 2. ANY EMPLOYEE SPECIFIED IN SECTION 1 WHO MAY BE CALLED UPON FOR JURY SERVICE IN ANY COURT OF THE UNITED STATES SHALL NOT RECEIVE ANY COMPENSATION FOR SUCH SERVICE.

SEC. 3. THERE SHALL BE CREDITED AGAINST THE AMOUNT OF COMPENSATION PAYABLE BY THE UNITED STATES TO ANY EMPLOYEE SPECIFIED IN SECTION 1 FOR SUCH PERIOD AS SUCH EMPLOYEE MAY BE ABSENT ON ACCOUNT OF JURY SERVICE IN THE COURT OF ANY STATE ANY AMOUNTS WHICH SUCH EMPLOYEE MAY RECEIVE FROM SUCH STATE ON ACCOUNT OF SUCH JURY SERVICE.

SECTION 850 OF THE REVISED STATUTES, AS AMENDED BY SECTION 2 OF THE ACT OF DECEMBER 24, 1942, 56 STAT. 1088 PROVIDES:

WHEN ANY OFFICER OR EMPLOYEE OF THE UNITED STATES IS SUMMONED AS A WITNESS FOR THE GOVERNMENT, HIS NECESSARY EXPENSES INCIDENT TO TRAVEL BY COMMON CARRIER, AND IF TRAVEL IS MADE BY PRIVATELY OWNED AUTOMOBILE, MILEAGE AT A RATE NOT TO EXCEED 5 CENTS PER MILE, TOGETHER WITH A PER DIEM ALLOWANCE NOT TO EXCEED $6 IN LIEU OF SUBSISTENCE UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE ATTORNEY GENERAL, SHALL, WHEN SWORN TO, BE PAID BY THE UNITED STATES ATTORNEY, OR UNITED STATES COMMISSIONER, BUT NO OTHER MILEAGE OR COMPENSATION IN ADDITION TO HIS SALARY SHALL IN ANY CASE BE ALLOWED. WHENEVER ANY SUCH OFFICER OR EMPLOYEE OF THE UNITED STATES PERFORMS TRAVEL IN ORDER TO APPEAR AS A WITNESS ON BEHALF OF THE UNITED STATES IN ANY CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED, HIS TRAVEL EXPENSES AND PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE IN CONNECTION THEREWITH SHALL BE PAYABLE FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR THE TRAVEL EXPENSES OF SUCH OFFICER OR EMPLOYEE, SUCH PAYMENT TO BE MADE BY THE DISBURSING OFFICER CHARGED WITH THE DISBURSEMENT OF FUNDS UNDER THAT APPROPRIATION AFTER PROPER CERTIFICATION BY A CERTIFYING OFFICER OF THE DEPARTMENT OR AGENCY CONCERNED.

THE ACT OF MAY 12, 1917, 40 STAT. 71, 72, PROVIDES IN PERTINENT PART:

THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO SHALL BE MEMBERS OF THE OFFICERS' RESERVE CORPS SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING, ON ALL DAYS DURING WHICH THEY SHALL BE ORDERED TO DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR.

BY AMENDMENT OF JULY 1, 1947, 61 STAT. 238, THE PROVISIONS OF THE LAST ABOVE ACT WERE EXTENDED TO INCLUDE ENLISTED RESERVE CORPS.

YOUR DOUBT IN THE MATTER APPEARS TO ARISE FROM CERTAIN DECISIONS OF THIS OFFICE, INFRA, REFERRED TO IN THE ENCLOSED CORRESPONDENCE.

IN 26 COMP. GEN. 151 IT WAS HELD:

GOVERNMENT EMPLOYEES SUBPOENAED AS WITNESSES IN THE UNITED STATES COURTS ARE ENTITLED TO OVERTIME COMPENSATION WHEN THE EMPLOYERS' ADMINISTRATIVE WORKWEEK WOULD HAVE REQUIRED THEM TO PERFORM OVERTIME WORK ON THE DAYS ON WHICH THEY APPEARED IN COURT, BUT ARE NOT ENTITLED TO OVERTIME COMPENSATION WHEN THE DAYS IN QUESTION ARE NOT INCLUDED IN THEIR REGULARLY ESTABLISHED WORKWEEK.

ALSO, IN 27 COMP. GEN. 353, IT WAS HELD:

A CIVILIAN EMPLOYEE REGULARLY SCHEDULED TO WORK SIX 8-HOUR DAYS PER WEEK IS ENTITLED UNDER THE ACT OF MAY 12, 1917, AS AMENDED, GRANTING TO MEMBERS OF THE OFFICERS' RESERVE CORPS MILITARY LEAVE OF ABSENCE WITHOUT LOSS OF PAY, TO RECEIVE OTHERWISE PROPER OVERTIME COMPENSATION FOR THE SIXTH DAY OF THE WEEK ON WHICH HE WAS ABSENT ON MILITARY LEAVE AS A MEMBER OF THE OFFICERS' RESERVE CORPS.

THE REQUIREMENT OF THE RESPECTIVE STATUTES REGARDING COURT AND MILITARY LEAVE BROADLY IS THAT THE COMPENSATION OF THE EMPLOYEE SHALL NOT BE DIMINISHED BY SUCH ABSENCE. THE TEST, AS IT WERE, CONCERNS THE AMOUNT OF COMPENSATION THE EMPLOYEE WOULD HAVE RECEIVED HAD HE RENDERED SERVICE IN HIS CIVILIAN POSITION ON THE DAYS OTHERWISE REQUIRED TO BE ABSENT ON COURT LEAVE OR MILITARY TRAINING DUTY. WHILE THE TWO DECISIONS ABOVE REFERRED TO RELATE TO OVERTIME SERVICE RENDERED ON THE SIXTH DAY OF THE WEEK, THEY WERE CONCERNED WITH THE FACTS REPORTED IN THOSE CASES AND WERE NOT INTENDED AS CONFINING OVERTIME COMPENSATION TO THE SIXTH DAY OF THE WEEK. IF AS STATED, ALL THE EMPLOYEES IN THE PARTICULAR ORGANIZATION IN WHICH THEY WERE WORKING WERE REQUIRED TO RENDER OVERTIME SERVICE EVERY WORK DAY IN THE INVOLVED PERIOD FOR WHICH OVERTIME COMPENSATION WAS PAYABLE FOR THE EXCESS OVER 40 HOURS A WEEK IT FOLLOWS, IN LINE WITH THE DECISIONS, SUPRA, THAT THE EMPLOYEES ABSENT ON COURT LEAVE OR MILITARY TRAINING DUTY LIKEWISE ARE ENTITLED TO SUCH OVERTIME COMPENSATION UPON THE SAME BASIS.