B-113301, APRIL 7, 1953, 32 COMP. GEN. 434

B-113301: Apr 7, 1953

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COMPENSATION - NIGHT WORK - COMPENSATORY LEAVE IN LIEU OF OVERTIME AN EMPLOYEE WHO RENDERS OCCASIONAL AND IRREGULAR NIGHT SERVICE IN EXCESS OF HIS REGULARLY SCHEDULED WORKWEEK AND WHO ELECTS TO BE GRANTED COMPENSATORY TIME OFF RATHER THAN RECEIVE OVERTIME COMPENSATION FOR THE EXTRA SERVICES IS ENTITLED. TO NIGHT DIFFERENTIAL PAY REGARDLESS OF WHETHER THE "EARNED" COMPENSATORY TIME OFF IS TAKEN DURING A DAY SHIFT OR A NIGHT SHIFT. MAY BE INCLUDED ON THE PAY ROLL COVERING THE PERIOD DURING WHICH THE SERVICES ARE RENDERED OR ON THE PAY ROLL COVERING THE PERIOD DURING WHICH THE COMPENSATORY TIME IS TAKEN. PROVIDED THE APPROPRIATION CURRENT AT THE TIME THE SERVICES WERE RENDERED IS CHARGED. HOWEVER FOR PRACTICAL PURPOSES SUCH DIFFERENTIAL SHOULD BE INCLUDED ON THE PAY ROLL COVERING THE PERIOD DURING WHICH THE NIGHT WORK WAS PERFORMED.

B-113301, APRIL 7, 1953, 32 COMP. GEN. 434

COMPENSATION - NIGHT WORK - COMPENSATORY LEAVE IN LIEU OF OVERTIME AN EMPLOYEE WHO RENDERS OCCASIONAL AND IRREGULAR NIGHT SERVICE IN EXCESS OF HIS REGULARLY SCHEDULED WORKWEEK AND WHO ELECTS TO BE GRANTED COMPENSATORY TIME OFF RATHER THAN RECEIVE OVERTIME COMPENSATION FOR THE EXTRA SERVICES IS ENTITLED, UNDER SECTION 301 OF THE FEDERAL EMPLOYEES ACT OF 1945, AS AMENDED, AND THE IMPLEMENTING REGULATIONS, TO NIGHT DIFFERENTIAL PAY REGARDLESS OF WHETHER THE "EARNED" COMPENSATORY TIME OFF IS TAKEN DURING A DAY SHIFT OR A NIGHT SHIFT. THE NIGHT DIFFERENTIAL TO BE PAID AN EMPLOYEE WHO RENDERS OCCASIONAL AND IRREGULAR NIGHT SUBSTITUTE SERVICES IN EXCESS OF A REGULARLY SCHEDULED WORKWEEK, AND WHO ELECTS TO BE GRANTED COMPENSATORY TIME OFF RATHER THAN RECEIVE OVERTIME COMPENSATION FOR THE EXTRA SERVICE, MAY BE INCLUDED ON THE PAY ROLL COVERING THE PERIOD DURING WHICH THE SERVICES ARE RENDERED OR ON THE PAY ROLL COVERING THE PERIOD DURING WHICH THE COMPENSATORY TIME IS TAKEN, PROVIDED THE APPROPRIATION CURRENT AT THE TIME THE SERVICES WERE RENDERED IS CHARGED, HOWEVER FOR PRACTICAL PURPOSES SUCH DIFFERENTIAL SHOULD BE INCLUDED ON THE PAY ROLL COVERING THE PERIOD DURING WHICH THE NIGHT WORK WAS PERFORMED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, APRIL 7, 1953:

REFERENCE IS MADE TO LETTER OF DECEMBER 30, 1952, FROM THE ACTING SECRETARY OF COMMERCE, REQUESTING A DECISION AS TO THE PROPER METHOD FOR THE PAYMENT OF NIGHT DIFFERENTIAL PAY TO CERTAIN EMPLOYEES OF THE WEATHER BUREAU WHO RENDER OCCASIONAL AND IRREGULAR NIGHT SERVICE IN EXCESS OF THEIR REGULARLY SCHEDULED WORKWEEK AS HEREINAFTER OUTLINED.

IT IS STATED IN THE LETTER OF THE ACTING SECRETARY THAT THE WEATHER BUREAU HAS PRESCRIBED REGULARLY SCHEDULED TOURS OF DUTY UNDER WHICH EMPLOYEES ARE REQUIRED TO WORK DURING THE NIGHT HOURS OF 6 P.M. TO 6 A.M.; THAT FREQUENTLY, BECAUSE OF ILLNESS OR EMERGENT ABSENCES, IT BECOMES NECESSARY FOR AN EMPLOYEE TO SUBSTITUTE FOR ANOTHER EMPLOYEE ON A REGULARLY SCHEDULED SHIFT, AND THAT IN SUCH CASES THE EMPLOYEE SUBSTITUTING USUALLY ELECTS TO BE GRANTED COMPENSATORY TIME OFF RATHER THAN TO RECEIVE OVERTIME COMPENSATION FOR THE EXTRA SERVICES RENDERED. THE LETTER ADVISES THAT IT HAS BEEN THE PRACTICE OF THE BUREAU TO PAY THE DIFFERENTIAL APPLICABLE TO THE NIGHT HOURS OF SUBSTITUTE SERVICE ON THE PAYROLL COVERING THE PERIOD DURING WHICH THE COMPENSATORY TIME OFF IS GRANTED, BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. ON A REGULARLY SCHEDULED TOUR OF DUTY. SUCH PRACTICE IS STATED TO HAVE BEEN PREDICATED UPON SECTION 25.232 (A) OF THE CIVIL SERVICE RULES AND REGULATIONS, EFFECTIVE JULY 1, 1946, WHICH PROVIDED FOR THE PAYMENT OF THE NIGHT DIFFERENTIAL WHEN COMPENSATORY TIME OFF "EARNED" BY NIGHT WORK IS TAKEN DURING THE NIGHT HOURS OF THE EMPLOYEE'S REGULARLY SCHEDULED TOUR OF DUTY.

HOWEVER THE REGULATION IN QUESTION WAS MODIFIED IN AUGUST 1950 TO ELIMINATE THE REQUIREMENT THAT COMPENSATORY TIME OFF BE TAKEN DURING THE NIGHT HOURS OF AN EMPLOYEE'S REGULAR TOUR OF DUTY, AND AGAIN IN AUGUST 1952 SO AS TO REMOVE ENTIRELY THE PREVIOUS REQUIREMENT AS TO THE HOURS DURING WHICH COMPENSATORY TIME OFF MUST BE GRANTED TO ENTITLE AN EMPLOYEE TO THE DIFFERENTIAL FOR NIGHT WORK PERFORMED WHILE ASSIGNED TEMPORARILY TO A REGULARLY SCHEDULED TOUR OF DUTY OTHER THAN HIS OWN. IN VIEW OF THE SAID CHANGES IN THE REGULATIONS, THE LETTER OF THE ACTING SECRETARY EXPRESSES DOUBT AS TO WHETHER THE PRESENT PRACTICE OF THE WEATHER BUREAU IS CORRECT AND REQUESTS THAT A DECISION BE RENDERED UPON THE FOLLOWING QUESTIONS:

1. IS THE PRESENT METHOD CORRECT, I.E., SHOULD THE NIGHT DIFFERENTIAL ON COMPENSATORY TIME EARNED BY NIGHT WORK BE PAID ONLY WHEN THE COMPENSATORY TIME IS TAKEN DURING THE NIGHT HOURS OF A REGULARLY SCHEDULED TOUR OF DUTY?

2. IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE--- MAY THE NIGHT DIFFERENTIAL ON COMPENSATORY TIME EARNED DURING THE NIGHT HOURS BE PAID REGARDLESS OF WHETHER THE COMPENSATORY TIME IS TAKEN DURING A DAY SHIFT OR A NIGHT SHIFT (REGULARLY-SCHEDULED IN EITHER CASE/?

3. IF THE ANSWER TO QUESTION 2 IS IN THE AFFIRMATIVE--- MAY THE NIGHT DIFFERENTIAL BE PAID FOR ON THE PAY-ROLL COVERING THE PERIOD DURING WHICH THE COMPENSATORY TIME WAS EARNED OR SHOULD IT BE PAID FOR ON THE PAY-ROLL COVERING THE PERIOD DURING WHICH THE COMPENSATORY TIME IS TAKEN?

THE STATUTORY AUTHORITY FOR NIGHT DIFFERENTIAL PAY IS THAT CONTAINED IN SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298, AS AMENDED BY SECTION 10 OF THE ACT OF MAY 24, 1946, 60 STAT. 218, 5 U.S.C. 921, AS FOLLOWS:

ANY OFFICER OR EMPLOYEE TO WHOM THIS SUBCHAPTER APPLIES WHO IS ASSIGNED TO A REGULAR SCHEDULED TOUR OF DUTY, ANY PART OF WHICH, INCLUDING OVERTIME, FALLS BETWEEN THE HOURS OF 6 O-CLOCK POST MERIDIAN AND 6 O-CLOCK ANTEMERIDIAN, SHALL, FOR DUTY BETWEEN SUCH HOURS, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, BE PAID COMPENSATION AT A RATE OF 10 PERCENTUM IN EXCESS OF HIS RATE OF BASIC COMPENSATION FOR DUTY BETWEEN OTHER HOURS: PROVIDED, THAT SUCH DIFFERENTIAL FOR NIGHT DUTY SHALL NOT BE INCLUDED IN COMPUTING ANY OVERTIME COMPENSATION TO WHICH THE OFFICER OR EMPLOYEE MAY BE ENTITLED: * * *

THE EXISTING REGULATIONS OF THE CIVIL SERVICE COMMISSION APPEARING IN THE FEDERAL PERSONNEL MANUAL, Z1-324, ARE, IN PART, AS FOLLOWS:

SEC. 25.232 COMPUTATION OF NIGHT PAY DIFFERENTIAL. * * * * *

(B) * * * THE AMOUNT OF THE NIGHT PAY DIFFERENTIAL WHICH AN EMPLOYEE EARNS FOR WORKING DURING A NIGHT OVERTIME PERIOD IS NOT AFFECTED BY WHETHER THE EMPLOYEE IS PAID IN CASH OR GRANTED COMPENSATORY TIME OFF FOR SUCH OVERTIME SERVICES. * * *

(C) * * * THE PAYMENT OF THE NIGHT PAY DIFFERENTIAL IS AUTHORIZED FOR NIGHT WORK PERFORMED WHEN AN EMPLOYEE IS ASSIGNED TEMPORARILY TO A REGULARLY SCHEDULED TOUR OF DUTY OTHER THAN HIS OWN REGULAR TOUR OF DUTY.

THERE IS NOTHING IN THE CONTROLLING STATUTE OR THE IMPLEMENTING REGULATIONS WHICH IMPOSES A LIMITATION AS TO THE HOURS DURING WHICH "EARNED" COMPENSATORY TIME OFF MUST BE TAKEN BY AN EMPLOYEE TO ENTITLE HIM TO DIFFERENTIAL PAY FOR NIGHT SERVICES PERFORMED DURING A REGULARLY SCHEDULED TOUR OF DUTY OTHER THAN HIS OWN. MOREOVER, IT REASONABLY MAY BE CONCLUDED THAT UNDER THE LAW AND PRESENT REGULATIONS AN EMPLOYEE BECOMES ENTITLED TO NIGHT DIFFERENTIAL PAY BY REASON OF HIS HAVING PERFORMED NIGHT WORK UNDER THE CONDITIONS SPECIFIED BY THE STATUTE. IN VIEW THEREOF, THE TIME DURING WHICH THE "EARNED" COMPENSATORY TIME OFF ACTUALLY IS TAKEN WOULD SEEM TO BE IMMATERIAL INSOFAR AS THE EMPLOYEE'S RIGHT TO PAYMENT OF THE NIGHT DIFFERENTIAL IS CONCERNED. QUESTIONS 1 AND 2 ARE ANSWERED "NO" AND "YES" RESPECTIVELY.

AS A MATTER OF LAW IT WOULD SEEM TO MAKE LITTLE DIFFERENCE WHETHER THE NIGHT DIFFERENTIAL IS INCLUDED ON THE PAYROLL COVERING THE PERIOD DURING WHICH THE SERVICES ARE RENDERED OR ON THE PAY ROLL COVERING THE PERIOD DURING WHICH THE COMPENSATORY TIME OFF IS TAKEN, SO LONG AS THE PROPER FISCAL YEAR APPROPRIATION--- APPROPRIATION CURRENT AT THE TIME THE SERVICES WERE RENDERED--- IS CHARGED. UNDER THE PRIOR REGULATIONS IT WAS NECESSARY TO WAIT UNTIL AN EMPLOYEE WAS GRANTED COMPENSATORY LEAVE TO DETERMINE WHETHER HE WOULD BE ENTITLED TO RECEIVE NIGHT DIFFERENTIAL PAY FOR SERVICES OF THE CHARACTER HEREIN CONSIDERED. HOWEVER, SINCE THE RIGHT TO NIGHT DIFFERENTIAL PAY FOR SERVICES OF THE TYPE IN QUESTION NO LONGER IS DEPENDENT UPON WHEN THE COMPENSATORY TIME OFF IS TAKEN, THERE IS PERCEIVED NO REASON WHY SUCH DIFFERENTIAL SHOULD NOT BE INCLUDED ON THE PAY ROLL COVERING THE PERIOD DURING WHICH THE NIGHT WORK WAS, IN FACT, PERFORMED, WHICH PROCEDURE WOULD APPEAR TO BE MORE REASONABLE AND ADVANTAGEOUS FROM A PRACTICAL VIEWPOINT. THE THIRD QUESTION IS ANSWERED ACCORDINGLY.