B-133993, NOVEMBER 25, 1957, 37 COMP. GEN. 362

B-133993: Nov 25, 1957

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FOR IRREGULAR OR OCCASIONAL WORK FOR WHICH OVERTIME COMPENSATION WOULD BE DUE IS SUBJECT TO THE AGGREGATE SALARY LIMITATION IN SECTION 603 OF THE ACT. TO DETERMINE WHETHER ANY PORTION OF THE COMPENSATORY TIME IN LIEU OF OVERTIME MUST BE FORFEITED ON ACCOUNT OF THE AGGREGATE SALARY LIMITATION WHICH IS ESTABLISHED BY SECTION 603 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. IT IS NECESSARY FIRST TO ASCERTAIN THE NUMBER OF OVERTIME HOURS FOR WHICH THE EMPLOYEE IS ENTITLED TO RECEIVE COMPENSATION AT THE OVERTIME RATE APPLICABLE TO HIS BASIC SALARY RATE BEFORE REACHING THE PRORATED AGGREGATE LIMITATION FOR THE PAY PERIOD IN WHICH THE OVERTIME SERVICES WERE RENDERED. SUCH NUMBER OF OVERTIME HOURS WILL CONSTITUTE THE MAXIMUM HOURS OF COMPENSATORY TIME WHICH MAY BE CREDITED IN THE PAY PERIOD.

B-133993, NOVEMBER 25, 1957, 37 COMP. GEN. 362

FEDERAL EMPLOYEES - COMPENSATORY TIME - AGGREGATE SALARY LIMITATION - COMPUTATION COMPENSATORY TIME WHICH MAY BE GRANTED TO EMPLOYEES PURSUANT TO SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 912 (A), FOR IRREGULAR OR OCCASIONAL WORK FOR WHICH OVERTIME COMPENSATION WOULD BE DUE IS SUBJECT TO THE AGGREGATE SALARY LIMITATION IN SECTION 603 OF THE ACT, AS AMENDED, 5 U.S.C. 943, WHICH PROHIBITS PAYMENT OF OVERTIME TO EMPLOYEES WHOSE RATE OF BASIC COMPENSATION EQUALS OR EXCEEDS THE MAXIMUM SCHEDULED RATE OF BASIC COMPENSATION FOR GRADE GS-15. TO DETERMINE WHETHER ANY PORTION OF THE COMPENSATORY TIME IN LIEU OF OVERTIME MUST BE FORFEITED ON ACCOUNT OF THE AGGREGATE SALARY LIMITATION WHICH IS ESTABLISHED BY SECTION 603 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 943, AT THE MAXIMUM SCHEDULED RATE FOR GRADE GS -15, IT IS NECESSARY FIRST TO ASCERTAIN THE NUMBER OF OVERTIME HOURS FOR WHICH THE EMPLOYEE IS ENTITLED TO RECEIVE COMPENSATION AT THE OVERTIME RATE APPLICABLE TO HIS BASIC SALARY RATE BEFORE REACHING THE PRORATED AGGREGATE LIMITATION FOR THE PAY PERIOD IN WHICH THE OVERTIME SERVICES WERE RENDERED, SUCH NUMBER OF OVERTIME HOURS WILL CONSTITUTE THE MAXIMUM HOURS OF COMPENSATORY TIME WHICH MAY BE CREDITED IN THE PAY PERIOD, IRRESPECTIVE OF THE COMPENSATORY TIME WHICH MAY BE GRANTED IN LATER PAY PERIODS. EMPLOYEES WHO TAKE MORE COMPENSATORY TIME THAN IS PROPER BECAUSE OF AN ERRONEOUS CREDIT ON ACCOUNT OF THE AGGREGATE SALARY LIMITATION ARE NOT REQUIRED TO HAVE THE EXCESSIVE COMPENSATORY LEAVE AUTOMATICALLY CONVERTED TO ANNUAL LEAVE SINCE THE GRANTING OF ANNUAL LEAVE IS A MATTER OF ADMINISTRATIVE DISCRETION.

TO THE SECRETARY OF COMMERCE, NOVEMBER 25, 1957:

THE ASSISTANT SECRETARY'S LETTER OF OCTOBER 2, 1957, REQUESTS OUR DECISION ON CERTAIN QUESTIONS CONCERNING THE CREDITING AND GRANTING OF COMPENSATORY LEAVE IN LIEU OF PAYMENT OF OVERTIME COMPENSATION WHEN, BECAUSE OF THE STATUTORY LIMITATION ON AGGREGATE COMPENSATION, AN EMPLOYEE COULD NOT BE PAID OVERTIME COMPENSATION.

THE LETTER QUOTES SECTIONS 25.205 AND 25.224 OF THE FEDERAL EMPLOYEES PAY REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION, AND, AFTER REFERRING TO OUR DECISION IN 26 COMP. GEN. 750, STATES THE FOLLOWING QUESTIONS:

1. UNDER THE FEDERAL EMPLOYEES ACT OF 1945, AS AMENDED, AND APPLICABLE REGULATIONS CITED ABOVE, ARE THE PROVISIONS OF 26 C.G. 750, REFERRED TO ABOVE, STILL APPLICABLE?

2. IF THE ANSWER TO THE ABOVE QUESTION IS YES, IT IS CONTEMPLATED THAT WHEN OVERTIME IS WORKED, UNDER PROPER AUTHORITY, FOR WHICH COMPENSATORY TIME OFF IS TO BE GRANTED, THAT A DETERMINATION BE MADE AT THE END OF THE PAY PERIOD IN WHICH THE OVERTIME WORK WAS PERFORMED TO DETERMINE WHETHER ANY PORTION OF THE COMPENSATORY TIME MUST BE FORFEITED BECAUSE OF THE AGGREGATE LIMITATION ON COMPENSATION? OR, MUST SUCH DETERMINATION BE MADE AT THE TIME COMPENSATORY TIME OFF IS GRANTED? THE LATTER WOULD MEAN, OF COURSE, THAT THE AGGREGATE LIMITATION WOULD NOT BE EXCEEDED UNLESS ADDITIONAL OVERTIME HAD BEEN PERFORMED DURING THE PAY PERIOD IN WHICH COMPENSATORY TIME OFF IS GRANTED.

3. IF AN EMPLOYEE HAD BEEN CREDITED WITH COMPENSATORY LEAVE TO WHICH HE HAD NOT BEEN ENTITLED BECAUSE OF THE AGGREGATE LIMITATION AND HAD TAKEN COMPENSATORY TIME OFF FOR SUCH LEAVE CREDIT, WOULD THE CANCELLATION OF THE EXCESSIVE COMPENSATORY LEAVE CREDIT RESULT IN THE EXCESSIVE TIME OFF AUTOMATICALLY BEING CONVERTED TO REGULAR ANNUAL LEAVE TAKEN?

4. IF YOUR ANSWER TO QUESTION ONE IS IN THE NEGATIVE, IS THERE ANY LIMITATION AS TO THE SALARY OR GRADE OF EMPLOYEES WHO MAY BE GRANTED COMPENSATORY TIME OFF IN LIEU OF OVERTIME COMPENSATION, PROVIDED SUCH OVERTIME IS PROPERLY ORDERED OR APPROVED? OR, IS COMPENSATORY TIME OFF LIMITED TO EMPLOYEES WHOSE BASIC COMPENSATION IS LESS THAN THE MAXIMUM SCHEDULED RATE OF GRADE GS-15?

THE DECISION IN 26 COMP. GEN. 750--- DATED APRIL 7, 1947--- CONSTRUED SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 297, AS AMENDED BY SECTION 9 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 218, 5 U.S.C. 912 (A), AND HELD THAT AN EMPLOYEE WHO WAS PROHIBITED BY REASON OF THE AGGREGATE COMPENSATION LIMITATION CONTAINED IN SECTION 603 (B) OF THE 1945 PAY ACT, 59 STAT. 303, AS AMENDED, 5 U.S.C. 943 (B), FROM RECEIVING OVERTIME COMPENSATION COULD NOT ELECT UNDER THE PROVISIONS OF SECTION 202 (A), AS AMENDED, TO RECEIVE COMPENSATORY TIME OFF IN LIEU OF SUCH PROHIBITED OVERTIME COMPENSATION.

SECTION 202 (A) WAS FURTHER AMENDED BY SECTION 204 OF THE ACT OF SEPTEMBER 1, 1954 ( PUBLIC LAW 763), 68 STAT. 1109, 5 U.S.C. 912 (A), TO READ AS FOLLOWS:

THE HEAD OF ANY DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, OR OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, OR THE HEAD OF ANY LEGISLATIVE OR JUDICIAL AGENCY TO WHICH THIS TITLE APPLIES, (1) 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 FOR AN EQUAL AMOUNT OF TIME SPENT IN IRREGULAR OR OCCASIONAL OVERTIME WORK, AND (2) MAY, AT HIS OWN DISCRETION, PROVIDE THAT ANY OFFICER OR EMPLOYEE, WHOSE RATE OF BASIC COMPENSATION IS IN EXCESS OF THE MAXIMUM SCHEDULED RATE OF BASIC COMPENSATION PROVIDED FOR GRADE GS 9 IN THE CLASSIFICATION ACT OF 1949, AS AMENDED, SHALL BE COMPENSATED FOR IRREGULAR OR OCCASIONAL OVERTIME WORK FOR WHICH COMPENSATION WOULD BE DUE UNDER THIS ACT WITH AN EQUAL AMOUNT OF COMPENSATORY TIME OFF FROM HIS SCHEDULED TOUR OF DUTY IN LIEU OF SUCH COMPENSATION.

SECTION 25.224 OF THE REGULATIONS CITED IS BASED UPON THOSE STATUTORY PROVISIONS.

SECTION 603 WAS FURTHER AMENDED BY SECTION 209 OF THE 1954 STATUTE, 68 STAT. 1112, 5 U.S.C. 943, TO READ AS FOLLOWS:

(A) NO PREMIUM COMPENSATION PROVIDED BY THIS ACT SHALL BE PAID TO ANY OFFICER OR EMPLOYEE WHOSE RATE OF BASIC COMPENSATION EQUALS OR EXCEEDS THE MAXIMUM SCHEDULED RATE OF BASIC COMPENSATION PROVIDED FOR GRADE GS-15 IN THE CLASSIFICATION ACT OF 1949, AS AMENDED.

(B) IN THE CASE OF ANY OFFICER OR EMPLOYEE WHOSE RATE OF BASIC COMPENSATION IS LESS THAN THE MAXIMUM SCHEDULED RATE OF BASIC COMPENSATION PROVIDED FOR GRADE GS-15 IN THE CLASSIFICATION ACT OF 1949, AS AMENDED, SUCH PREMIUM COMPENSATION MAY BE PAID ONLY TO THE EXTENT THAT SUCH PAYMENT WOULD NOT CAUSE HIS AGGREGATE RATE OF COMPENSATION TO EXCEED SUCH MAXIMUM SCHEDULED RATE WITH RESPECT TO ANY PAY PERIOD.

THOSE PROVISIONS ARE THE BASIS FOR THE CITED SECTION 25.205 OF THE REGULATIONS.

THE PRINCIPAL CHANGE MADE IN SECTION 202 (A) BY THE 1954 AMENDMENT WAS TO CONFER AUTHORITY UPON THE AGENCY HEADS TO REQUIRE EMPLOYEES RECEIVING SALARIES ABOVE THE MAXIMUM SCHEDULED RATE OF GRADE GS-9 TO TAKE COMPENSATORY TIME OFF INSTEAD OF RECEIVING OVERTIME PAY FOR IRREGULAR OR OCCASIONAL OVERTIME WORK. CONFERENCE REPORT ACCOMPANYING H.R. 2263, 83RD CONGRESS, HOUSE REPORT NO. 2665, AT PAGE 21. THE 1954 AMENDMENT TO SECTION 603 REPLACED THE FORMER FIXED CEILING RATE OF $10,330 PER ANNUM WITH A VARIABLE RATE, NAMELY, THE MAXIMUM SCHEDULED RATE OF GRADE GS-15. NEITHER AMENDMENT MADE ANY CHANGE REQUIRING OR JUSTIFYING A DIFFERENT RULE FROM THE ONE IN 26 COMP. GEN. 750 NOTED ABOVE. ON THE CONTRARY, THE LANGUAGE "SHALL BE COMPENSATED FOR IRREGULAR OR OCCASIONAL WORK FOR WHICH OVERTIME COMPENSATION WOULD BE DUE UNDER THIS ACT WITH AN EQUAL AMOUNT OF COMPENSATORY TIME OFF FROM HIS SCHEDULED TOUR OF DUTY IN LIEU OF SUCH COMPENSATION," ( ITALICS SUPPLIED), APPEARING IN CLAUSE 2 OF THE AMENDMENT IS, IN OUR OPINION, A STATUTORY AFFIRMATION OF THE RULE STATED IN THE CITED DECISION. WHILE THE CLAUSE (1) COUNTERPART IS PHRASED SOMEWHAT DIFFERENTLY, WE THINK THE IMPORT IS THE SAME AS CLAUSE (2). THEREFORE, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

REFERRING TO QUESTION 2, THE CORRECT PROCEDURE IS FIRST TO ASCERTAIN THE NUMBER OF OVERTIME HOURS FOR WHICH THE EMPLOYEE IS ENTITLED TO RECEIVE COMPENSATION AT THE OVERTIME RATE APPLICABLE TO HIS BASIC SALARY RATE BEFORE REACHING THE PRORATED AGGREGATE LIMITATION FOR THE PAY PERIOD IN WHICH THE OVERTIME SERVICES WERE RENDERED. SUCH NUMBER OF OVERTIME HOURS THEN WILL CONSTITUTE THE MAXIMUM NUMBER OF HOURS OF COMPENSATORY TIME WHICH MAY BE CREDITED TO THE EMPLOYEE IN THAT PAY PERIOD IN LIEU OF OVERTIME COMPENSATION. IT IS IMMATERIAL THAT THE COMPENSATORY TIME OFF MAY BE GRANTED IN LATER PAY PERIODS. QUESTION 2 IS ANSWERED ACCORDINGLY.

CONCERNING QUESTION 3, THE GRANTING OF ANNUAL LEAVE IS A MATTER OF ADMINISTRATIVE DISCRETION. THEREFORE, CANCELLATION OF THE EXCESSIVE COMPENSATORY LEAVE CREDIT WOULD NOT AUTOMATICALLY CONVERT TIME OFF ON EXCESS COMPENSATORY LEAVE TO ANNUAL LEAVE.

SINCE QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, NO ANSWER TO QUESTION 4 IS REQUIRED.