B-126379, FEBRUARY 9, 1956, 35 COMP. GEN. 448

B-126379, FEBRUARY 9, 1956, 35 COMP. GEN. 448

COMPENSATION - CALL-BACK OVERTIME - EMPLOYEES CALLED BACK TO DUTY MORE THAN ONCE DURING MINIMUM TWO-HOUR PERIOD THE CALL-BACK OVERTIME PROVISIONS OF SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AS AMENDED BY THE FRINGE BENEFIT ACT OF SEPTEMBER 1, 1954, WHICH GUARANTEES A MINIMUM OF TWO HOURS' PAY AT OVERTIME RATES, RATHER THAN FOR PAYMENT ON A TIME BASIS FOR UNSCHEDULED OVERTIME, ARE FOR THE PURPOSE OF COMPENSATING EMPLOYEES FOR THE INCONVENIENCE OF BEING CALLED BACK TO DUTY, AND THEREFORE, CIVILIAN MEDICAL OFFICERS WHO ARE CALLED BACK MORE THAN ONCE DURING THE SAME TWO HOUR PERIOD ARE ENTITLED TO CALL-BACK OVERTIME FOR EACH TIME.

TO THE SECRETARY OF THE ARMY, FEBRUARY 9, 1956:

ON DECEMBER 13, 1955, THE ASSISTANT SECRETARY OF THE ARMY REQUESTED OUR DECISION REGARDING THE PROPER AMOUNT OF OVERTIME PAYABLE TO A CIVILIAN MEDICAL OFFICER UNDER SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 913, AS AMENDED BY SECTION 205 (B) OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1110, FOR CALL-BACK OVERTIME IN THE TYPE OF CASE OUTLINED AS FOLLOWS:

A CIVILIAN MEDICAL OFFICER OF AN ARMY INSTALLATION IS EMPLOYED ON A REGULAR 40-HOUR TOUR OF DUTY CONSISTING OF FIVE 8-HOUR DAYS PER WEEK. AFTER HIS REGULAR HOURS OF DUTY HE IS REQUIRED TO RESPOND TO ALL EMERGENCY MEDICAL CALLS MADE BY THE INSTALLATION'S MILITARY PERSONNEL AND THEIR DEPENDENTS. IN SOME INSTANCES THE EMPLOYEE MAY BE REQUIRED TO RESPOND TO SEVERAL CALLS WITHIN A SINGLE OFF-DUTY PERIOD, AS BELOW:

SITUATION NO. 1: CALLED TO ATTEND PATIENT AT 6:00 P.M. RETURNED TO HIS RESIDENCE AT 6:30 P.M. CALLED TO ATTEND ANOTHER PATIENT AT 9:00 P.M. RETURNED TO HIS RESIDENCE AT 9:20 P.M.

SITUATION NO. 2: CALLED TO ATTEND PATIENT AT 9:00 P.M. RETURNED TO HIS RESIDENCE AT 9:30 P.M. CALLED TO ATTEND ANOTHER PATIENT AT 9:45 P.M. RETURNED TO HIS RESIDENCE AT 10:05 P.M. CALLED TO ATTEND THIRD PATIENT AT 10:30 P.M. RETURNED TO HIS RESIDENCE AT 10:55 P.M.

SITUATION NO. 3: CALLED TO ATTEND PATIENT AT 3:05 A.M. RETURNED TO HIS RESIDENCE AT 3:30 A.M. CALLED TO ATTEND ANOTHER PATIENT AT 4:50 A.M. RETURNED TO HIS RESIDENCE AT 5:45 A.M.

SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS INSERTED BY PUBLIC LAW 763, APPROVED SEPTEMBER 1, 1954, 68 STAT. 1110, 5 U.S.C. 912A, PROVIDES:

SEC. 203. FOR THE PURPOSES OF THIS ACT, ANY UNSCHEDULED OVERTIME WORK PERFORMED BY ANY OFFICER OR EMPLOYEE ON A DAY WHEN NO WORK WAS SCHEDULED FOR HIM, OR FOR WHICH HE IS REQUIRED TO RETURN TO HIS PLACE OF EMPLOYMENT, SHALL BE CONSIDERED TO BE AT LEAST TWO HOURS IN DURATION.

IN DETERMINING THE NUMBER OF HOURS FOR WHICH PAYMENT MAY BE MADE UNDER THE CALL-BACK PROVISIONS QUOTED ABOVE IN THE SEVERAL SITUATIONS ENUMERATED THE DOUBT IS REPRESENTED BY QUESTIONS STATED AS FOLLOWS:

(A) IS THE EMPLOYEE ENTITLED TO A MINIMUM OF TWO HOURS' PAY EACH TIME HE IS CALLED TO PERFORM SERVICES DURING HIS OFF-DUTY HOURS EVEN THOUGH HE MAY BE CALLED BACK MORE THAN ONCE DURING THE SAME TWO-HOUR PERIOD?

(B) IF YOUR ANSWER IS IN THE NEGATIVE, HOW SHOULD THE NUMBER OF HOURS FOR WHICH PAYMENT MAY BE MADE DETERMINED?

SENATE REPORT NO. 1992 ACCOMPANYING H.R. 2263, WHICH BILL BECAME PUBLIC LAW 763, APPROVED SEPTEMBER 1, 1954, HAS THIS TO SAY REGARDING THAT PROVISION:

NEW SECTION 203 PROVIDES A MINIMUM OF 2 HOURS' PAY AT THE OVERTIME RATE FOR ANY EMPLOYEE CALLED BACK TO PERFORM UNSCHEDULED OVERTIME WORK AFTER HE HAS GONE HOME ON ONE OF HIS DAYS OFF. ( ITALICS SUPPLIED.)

CIVIL SERVICE COMMISSION WHICH, I UNDERSTAND, SPONSORED THIS PROVISION HAD THIS TO SAY--- SEE PAGE 15 OF SENATE REPORT NO. 1190 ACCOMPANYING S.2665.

SECTION 202 (D) OF THIS TITLE WOULD GUARANTEE A MINIMUM OF 2 HOURS' PAY AT OVERTIME RATE FOR ANY EMPLOYEE CALLED IN FOR OVERTIME WORK ON A NONWORK DAY OR DURING OFF-DUTY HOURS. THIS WOULD BE GENERALLY CONSISTENT WITH INDUSTRY PRACTICE, AND WOULD PROTECT EMPLOYEES FROM BEING CALLED IN FOR ASSIGNMENTS OF SUCH SHORT DURATION THAT PAY FOR ONLY TIME ON DUTY WOULD BE GROSSLY INADEQUATE COMPENSATION FOR THE INCONVENIENCE. THE COMMISSION ENDORSES THIS PROVISION.

AS THE QUOTED PROVISIONS OF SECTION 203 THUS APPEAR TO BE FOR THE PURPOSE OF COMPENSATING THE EMPLOYEE FOR THE INCONVENIENCE OF BEING CALLED BACK TO PERFORM UNSCHEDULED DUTY, RATHER THAN AS PAYMENT ON A TIME BASIS--- THAT IS TO SAY, FOR THE TIME ACTUALLY CONSUMED IN RENDERING THE UNSCHEDULED OVERTIME SERVICE--- THE EMPLOYEE IS ENTITLED TO A MINIMUM OF 2 HOURS' PAY FOR EACH TIME HE IS CALLED BACK, NOTWITHSTANDING THE FACT THAT THE SECOND OR SUBSEQUENT RETURNS MAY BE REQUIRED BEFORE THE EXPIRATION OF 2 HOURS FROM THE TIME HE PREVIOUSLY REPORTED FOR DUTY.

YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE THUS RENDERING NO ANSWER NECESSARY TO YOUR SECOND QUESTION.