B-130748, MAR. 28, 1957

B-130748, MAR. 28, 1957

TO MR. N. M. TROUTWINE, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF COMMERCE:

YOUR LETTER OF JANUARY 29, 1957, FORWARDED HERE FEBRUARY 13 BY THE BUDGET AND FINANCE OFFICER, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE ENCLOSED PAYROLL VOUCHER IN FAVOR OF MRS. MARY M. LITCHFIELD FOR $318.16. THAT AMOUNT IS TO COVER SETTLEMENT FOR 122 HOURS OF PROPERLY APPROVED AND RECORDED COMPENSATORY TIME IN LIEU OF OVERTIME WHICH SHE WORKED AS AN EMPLOYEE OF THE CIVIL AERONAUTICS ADMINISTRATION, BUT WAS UNABLE TO TAKE BECAUSE OF EXIGENCIES OF THE SERVICE PRIOR TO HER RESIGNATION EFFECTIVE NOVEMBER 29, 1956, WHILE EMPLOYED ON WAKE ISLAND.

YOU SAY MRS. LITCHFIELD WORKED IRREGULAR, UNSCHEDULED OVERTIME AS A NURSE GS-7, $4,525 PER ANNUM, AND THAT THE PROPOSED COMPENSATION FOR THE 122 HOURS IS COMPUTED AT THE HOURLY OVERTIME RATE OF $3.27 PER HOUR WHICH WAS APPLICABLE AT THE TIME THE COMPENSATORY TIME WAS WORKED. THE PRINCIPAL QUESTION YOU PRESENT IS WHETHER THE CIRCUMSTANCES, SET FORTH BELOW, WOULD JUSTIFY THE PROPOSED PAYMENT EVEN THOUGH THE REGULATORY TIME ALLOWED (13 PAY PERIODS) FOR TAKING COMPENSATORY LEAVE HAD NOT EXPIRED WHEN SHE RESIGNED. THE PERTINENT FACTS AND CIRCUMSTANCES ARE SET OUT IN YOUR LETTER AS FOLLOWS:

"THE CASE OF MRS. LITCHFIELD IS NOT CONSIDERED TO BE A NORMAL ONE. THERE ARE EXTENUATING CIRCUMSTANCES, UNDER WHICH IT IS BELIEVED THAT SHE IS ENTITLED TO THE MAXIMUM CONSIDERATION WHICH CAN BE GRANTED. MRS. LITCHFIELD TENDERED HER RESIGNATION ON SEPTEMBER 12, 1956 TO BE EFFECTIVE NOVEMBER 29, 1956, THEREBY GIVING ABOUT 11 WEEKS NOTICE. DURING THIS 11 WEEK NOTICE PERIOD, SHE WAS NOT ALLOWED ANY TIME OFF DUTY TO USE COMPENSATORY TIME. FROM INFORMATION AVAILABLE AT THIS TIME, THERE APPEARS TO BE NO QUESTION BUT THAT MRS. LITCHFIELD WAS LED TO BELIEVE, BY ALL ADMINISTRATIVE OFFICIALS WITH WHOM SHE HAD CONTACT BEFORE HER RESIGNATION AND IMMEDIATELY AFTER THE EFFECTIVE DATE THEREOF, THAT SHE WOULD BE PAID FOR ALL COMPENSATORY TIME UNUSED AT SEPARATION DATE, AT EITHER STRAIGHT TIME OR OVERTIME RATE. IT ALSO IS QUITE CERTAIN THAT SHE WAS NOT INFORMED THAT THE EFFECTIVE DATE OF HER SEPARATION COULD HAVE BEEN EXTENDED BEYOND HER LAST DAY OF DUTY AT WAKE ISLAND (NOVEMBER 29, 1956) IN ORDER THAT SHE MIGHT RECEIVE PAYMENT FOR COMPENSATORY TIME AT HER STRAIGHT TIME RATE. * * SUCH ACTION IN THE CASE OF MRS. LITCHFIELD WOULD HAVE BEEN DISADVANTAGEOUS TO HER TO THE EXTENT THAT SHE WOULD HAVE LOST THE 25 PERCENT POST DIFFERENTIAL FOR WAKE ISLAND ON HER LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE (REFERENCE 28 CG 465), AS SHE DEPARTED WAKE ISLAND VIA GOVERNMENT AIRCRAFT AT 9:11 A.M. ON NOVEMBER 30, 1956, WAKE ISLAND TIME, FOR RETURN TO HER POINT OF HIRE, HONOLULU,TERRITORY OF HAWAII. HOWEVER, IF SHE HAD TO CHOOSE BETWEEN LOSING THE 25 PERCENT DIFFERENTIAL ON HER LUMP-SUM LEAVE PAYMENT (156 HOURS ACCRUED ANNUAL LEAVE PLUS 8 HOURS HOLIDAY PAID FOR 164 HOURS) OR LOSING STRAIGHT TIME PAY FOR 122 HOURS COMPENSATORY TIME AT BASIC RATE NOT INCLUDING 25 PERCENT DIFFERENTIAL, IT WOULD HAVE BEEN TO HER FINANCIAL ADVANTAGE TO CHOOSE TO BE SEPARATED IN HONOLULU AND LOSE THE 25 PERCENT DIFFERENTIAL ON LUMP SUM LEAVE PAYMENT. MRS. LITCHFIELD WAS NOT INFORMED THAT SHE COULD MAKE SUCH A CHOICE.'

THE BASIC AUTHORITY FOR GRANTING COMPENSATORY TIME OFF IS CONTAINED IN SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 68 STAT. 1109, 5 U.S.C. 912, AND IN THE REGULATIONS OF THE CIVIL SERVICE COMMISSION PROMULGATED THEREUNDER DECEMBER 15, 1955, 20 F.R. 9411, 9416. THE PAY REGULATIONS, 5 C.F.R. 25.224, PROVIDE AS FOLLOWS:

"SEC. 25.224 COMPENSATORY TIME OFF FOR IRREGULAR OR OCCASIONAL OVERTIME DUTY. (A) THE HEAD OF A DEPARTMENT MAY, AT THE REQUEST OF ANY OFFICER OR EMPLOYEE, GRANT SUCH OFFICER OR EMPLOYEE COMPENSATORY TIME OFF FROM HIS SCHEDULED TOUR OF DUTY IN LIEU OF PAYMENT UNDER SEC. 25.223 FOR AN EQUAL AMOUNT OF TIME SPENT IN IRREGULAR OR OCCASIONAL OVERTIME WORK.

"SEC. (C) THE HEAD OF A DEPARTMENT MAY FIX A TIME LIMIT WITHIN WHICH COMPENSATORY TIME OFF MAY BE REQUESTED OR TAKEN, AND MAY PROVIDE THAT WHEN AN OFFICER OR EMPLOYEE IS ENTITLED TO COMPENSATORY TIME OFF UNDER PARAGRAPH (A) OR (B) OF THIS SECTION BUT FAILS TO TAKE IT WITHIN THE PRESCRIBED LIMIT, HE SHALL LOSE HIS RIGHTS BOTH TO COMPENSATORY TIME OFF AND TO OVERTIME PAY UNLESS THE FAILURE IS DUE TO AN EXIGENCY OF THE SERVICE BEYOND HIS CONTROL.'

PURSUANT TO THE QUOTED REGULATIONS THE DEPARTMENT OF COMMERCE ISSUED ADMINISTRATIVE ORDER NO. 202-38 EFFECTIVE JUNE 12, 1956. SECTION 4.02 OF THE ORDER PROVIDES THAT EMPLOYEES SUBJECT TO THE PAY ACT WHOSE BASE RATE OF COMPENSATION IS AT OR BELOW THE MAXIMUM SCHEDULED RATE OF BASIC COMPENSATION FOR GRADE GS-9 WILL BE PAID FOR OVERTIME PERFORMED BY THEM UNLESS THE EMPLOYEE SPECIFICALLY REQUESTS THAT IN LIEU OF PAID OVERTIME HE BE GRANTED COMPENSATORY TIME OFF FROM DUTY. THE RECORD INDICATES THAT MRS. LITCHFIELD REQUESTED AND USED PART OF HER COMPENSATORY TIME. DOUBTLESS SHE WOULD HAVE REQUESTED USE OF THE BALANCE IF SHE HAD HAD AN OPPORTUNITY TO DO SO. HOWEVER, SUBSECTION 4.06-2 OF THE ORDER PROVIDES THAT AN OVERSEAS EMPLOYEE MAY NOT ACCUMULATE COMPENSATORY OVERTIME IN EXCESS OF 160 HOURS AND MUST TAKE ANY COMPENSATORY TIME ACCRUING TO HIM WITHIN 13 PAY PERIODS FOLLOWING THE PAY PERIOD IN WHICH EARNED. AS THE SUBSECTION EXPRESSLY COVERS EMPLOYEES OUTSIDE THE CONTINENTAL UNITED STATES AS WELL AS EMPLOYEES WITHIN THE STATES IT APPEARS, AS YOU SAY, THAT THE PENULTIMATE SENTENCE OF SUBSECTION 4.06-2 ALSO SHOULD HAVE INCLUDED REFERENCE TO THE 160 HOUR LIMIT ON OVERSEAS ACCRUALS. THE MATTER HEREINAFTER WILL BE CONSIDERED IN THAT LIGHT. THUS SUBSECTION 4.06-2 IN EFFECT, AS TO OVERSEAS EMPLOYEES, AUTHORIZES (1) EXTENSION OF THE TIME LIMITS PRESCRIBED THEREIN AND (2) THE LIQUIDATION OF COMPENSATORY TIME BY PAYMENT FOR THE UNUSED PORTION IF AN EXIGENCY OF THE SERVICE OCCURS "BEYOND THE EMPLOYEE'S CONTROL AT THE CONCLUSION OF THE TIME PERIODS" THEREIN ESTABLISHED. THE AUTHORITY FOR SUCH PAYMENT IS WELL ESTABLISHED. 26 COMP. GEN. 750; 25 COMP. GEN. 62; 23 COMP. GEN. 253.

YOU SUMMARIZE THE RECORD OF MRS. LITCHFIELD'S COMPENSATORY OVERTIME, AS FOLLOWS:

CHART

COMPENSATORY TIME

------------------ INCLUSIVE DATES NO. OF HOURS HOURS BALANCE OF PAY PERIODS PAY PERIODS WORKED TAKEN OFF HOURS - ------------- ----------- --- --- --------- ------- 2/12 - 6/2/56 8 51

0 51 6/3 - 12/1/56 13 123 13* 110

174 13 161

(TAKEN DURING PAY PERIOD JULY 29-AUGUST 11, 1956)

IT APPEARS THE ONE HOUR WHICH EXCEEDED 160-HOURS LIMITATION PROPERLY WAS NOT FOR ACCUMULATIVE CREDIT AND THAT HOUR SHOULD HAVE BEEN PAID IMMEDIATELY AT THE APPLICABLE OVERTIME RATE. HOWEVER, OF THE 51 HOURS ACCRUED TO JUNE 2, 1956, ONLY 38 REMAINED UNUSED WHEN SHE RESIGNED. YOU SAY, BECAUSE OF EXIGENCIES OF THE SERVICE, THOSE 39 HOURS (38 PLUS THE EXCESSIVE ONE HOUR) CLEARLY WERE PAYABLE AT THE OVERTIME RATE--- MRS. LITCHFIELD BEING UNABLE TO TAKE THE 39 HOURS WITHIN 13 PAY PERIODS AFTER THEIR ACCRUAL.

ALTHOUGH THE EMPLOYING AGENCY AND THE EMPLOYEE COULD HAVE AGREED TO SCHEDULE HER SEPARATION AT THE END OF A PERIOD BEYOND THE DATE OF HER DEPARTURE FROM WAKE ISLAND SUCH CIRCUMSTANCE IS NOT CONSIDERED BY US AS CONTROLLING THE MATTER OF THE PROPER DISPOSITION NOW TO BE MADE OF THE REMAINING 122 HOURS. NO BASIS IS PRESENTED WHEREBY MRS. LITCHFIELD'S SEPARATION ON NOVEMBER 29, 1956, MAY BE VOIDED IN ORDER TO INSTITUTE NOW SOME ALTERNATIVE METHODS OF COMPENSATION AS SUGGESTED IN YOUR LETTER. CONJECTURAL FACTORS OF THAT NATURE WOULD NOT WARRANT DISREGARDING THE PREEXISTING CIRCUMSTANCES WHEREBY SHE WAS UNABLE TO USE THE TIME CREDITS IN QUESTION.

IT IS OUR VIEW THAT THE ADMINISTRATIVE DETERMINATION THAT HER SEPARATION SHOULD BE MADE EFFECTIVE NOVEMBER 29, 1956, AND BECAUSE OF EXIGENCIES PREVENTING THE EMPLOYEE FROM USING THE COMPENSATORY TIME IN KIND, TO PAY OVERTIME, BRING THIS CASE WITHIN THE PURVIEW OF THE PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AND SECTION 4.02 OF THE DEPARTMENTAL ORDER NO. 202-38.

ACCORDINGLY, THE VOUCHER WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.