B-125628, APR. 25, 1957

B-125628, APR. 25, 1957

TO MR. WILLIAM G. HARDING:

YOUR LETTER OF MARCH 16, 1957, REQUESTS REVIEW OF THE SETTLEMENT OF JANUARY 7, 1957, DISALLOWING YOUR CLAIM FOR ADDITIONAL COMPENSATION ALLEGED TO BE DUE FOR OVERTIME SERVICES AS AN EMPLOYEE OF THE TREASURY DEPARTMENT, INTERNAL REVENUE SERVICE, ALCOHOL AND TOBACCO TAX DIVISION FOR THE PERIOD SEPTEMBER 18, 1955, THROUGH JULY 8, 1956.

THE CLOSING PARAGRAPH OF THE SETTLEMENT CONTAINED A STATEMENT THAT YOU WERE ELIGIBLE FOR AND WERE PAID THE FULL AMOUNT OF PREMIUM OVERTIME COMPENSATION FOR "THE SECOND FISCAL QUARTER (OCTOBER TO DECEMBER) OF 1956.' YOUR EXPRESSED VIEW THAT THE STATEMENT WAS IN ERROR IS CORRECT. THE QUOTED PHRASE SHOULD HAVE READ: "THE SECOND QUARTER (OCTOBER THROUGH DECEMBER), OF THE FISCAL YEAR 1956.'

YOU REQUEST THAT YOUR RECORD FOR THE QUARTER SEPTEMBER TO DECEMBER 1955 BE CHECKED TO ASCERTAIN THE CORRECTNESS OF THE STATEMENT THAT YOU DID NOT QUALIFY FOR THE PAYMENT OF PREMIUM COMPENSATION FOR THE QUARTER JANUARY TO MARCH 1956.

THE DETERMINATION OF THE RIGHT TO PREMIUM PAY IS PRIMARILY AN ADMINISTRATIVE MATTER SUBJECT TO CERTAIN MINIMUM REQUIREMENTS AS SET FORTH IN CIVIL SERVICE REGULATIONS SECTION 25.263, Z1-329-330 SUBSECTION (B) MAKING THE FOLLOWING REQUIREMENT:

"/B) IN ORDER TO SATISFACTORILY DISCHARGE THE DUTIES OF SUCH POSITIONS, EMPLOYEES ARE REQUIRED TO PERFORM SUBSTANTIAL AMOUNTS OF "IRREGULAR, UNSCHEDULED, OVERTIME DUTY, AND DUTY AT NIGHT AND ON HOLIDAYS.'

"/1) A SUBSTANTIAL AMOUNT OF IRREGULAR, UNSCHEDULED OVERTIME DUTY MEANS AN AVERAGE OF AT LEAST 6 HOURS OF SUCH OVERTIME DUTY A WEEK.

"/2) THE IRREGULAR, UNSCHEDULED, OVERTIME DUTY IS A CONTINUAL REQUIREMENT, GENERALLY AVERAGING MORE THAN ONCE A WEEK.

"/3) THERE MUST BE A DEFINITE BASIS FOR ANTICIPATING THAT THE IRREGULAR, UNSCHEDULED, OVERTIME DUTY WILL CONTINUE OVER AN APPROPRIATE PERIOD OF TIME WITH A DURATION AND FREQUENCY SUFFICIENT TO MEET THE REQUIREMENTS UNDER SUBPARAGRAPHS (1) AND (2) OF THIS PARAGRAPH AND THAT NIGHT AND HOLIDAY DUTY WILL BE PERFORMED FROM TIME TO TIME.'

THE RECORD SHOWS THAT YOU RECEIVED OVERTIME COMPENSATION DURING THE QUARTER ENDING DECEMBER 1955 BY QUALIFYING THEREFORE IN THE QUARTER ENDING SEPTEMBER 1955. YOU SAY YOU WORKED 42 1/2 HOURS OVERTIME IN THE QUARTER SEPTEMBER 18, 1955, TO DECEMBER 17, 1955, WHICH IS ADMINISTRATIVELY VERIFIED. THAT AMOUNT OF OVERTIME DOES NOT MEET THE MINIMUM REQUIREMENT SET FORTH IN THE ABOVE CIVIL SERVICE REGULATION (13 WEEKS OF 6 HOURS EACH) AND ACCORDINGLY DOES NOT QUALIFY YOU FOR PREMIUM COMPENSATION DURING THE SUCCEEDING THIRD QUARTER.

YOU ACKNOWLEDGE RECEIPT OF OVERTIME PAY ON THE LAST PAY CHECK FROM THE TREASURY DEPARTMENT BUT APPEAR TO BE OF THE OPINION THAT OVERTIME PREMIUM PAY SHOULD HAVE BEEN CONTINUED INTO YOUR EMPLOYMENT WITH THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE.

THE HEAD OF AN AGENCY HAS NO JURISDICTION OVER THE PAYMENT OF PREMIUM COMPENSATION BY ANOTHER AGENCY. THUS, THE FACT THAT YOU QUALIFIED FOR PREMIUM COMPENSATION FOR THE FIRST QUARTER, 1957, WITH THE INTERNAL REVENUE SERVICE CONFERS NO RIGHT TO PREMIUM COMPENSATION AFTER YOUR TRANSFER TO THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE. A NEW DEPARTMENTAL DETERMINATION OF YOUR ELIGIBILITY WOULD BE REQUIRED AS A CONDITION PRECEDENT TO FURTHER OVERTIME.

YOUR CLAIM WAS PROPERLY DISALLOWED AND UPON REVIEW THE SETTLEMENT IS SUSTAINED.