B-138375, FEBRUARY 19, 1959, 38 COMP. GEN. 560

B-138375, FEBRUARY 19, 1959, 38 COMP. GEN. 560

CIVILIAN EMPLOYEES - COMPENSATION - HOLIDAYS - REGULAR AND OVERTIME - LIMITATION AN EMPLOYEE WHO, ON A HOLIDAY, IS CALLED BACK TO WORK FOR FIVE SEPARATE PERIODS OF SERVICE WITHIN THE PRESCRIBED DAILY TOUR OF DUTY IS ENTITLED TO HOLIDAY COMPENSATION FOR AT LEAST TWO HOURS FOR EACH PERIOD OF SERVICE UNDER 5 U.S.C. 922 (B), SUBJECT TO THE LIMITATION IN 5 U.S.C. 922 (A) WHICH PRECLUDES PAYMENT FOR HOLIDAY WORK WHICH IS NOT OVERTIME WORK IN EXCESS OF EIGHT HOURS. AN EMPLOYEE WHO, ON A HOLIDAY, IS CALLED BACK TO WORK FOR AN HOUR OUTSIDE OF HIS REGULAR DAILY TOUR OF DUTY MAY HAVE SUCH DUTY REGARDED AS UNSCHEDULED OVERTIME UNDER SECTION 5 U.S.C. 912A WHICH ENTITLED THE EMPLOYEE TO THE PAID MINIMUM CALL-BACK TIME OF TWO HOURS.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, FEBRUARY 19, 1959:

YOUR LETTER OF JANUARY 6, 1959, REQUESTS OUR DECISION CONCERNING THE PROPER COMPENSATION PAYABLE TO AN EMPLOYEE WHOSE REGULAR TOUR OF DUTY IS 8:00 A.M. TO 4:45 P.M., MONDAY THROUGH FRIDAY, FOR PERIODS OF SERVICE RENDERED ON A HOLIDAY FALLING WITHIN THE BASIC WORKWEEK, AS FOLLOWS:

5:45 A.M. TO 6:45 A.M. 1 HOUR

9:00 A.M. TO 10:30 A.M. 1 1/2 HOURS 11:15 A.M. TO 12:00 NOON 3/4 HOUR 12:55 P.M. TO 1:45 P.M. 50 MINUTES

2:25 P.M. TO 3:15 P.M. 50 MINUTES

3:55 P.M. TO 4:10 P.M. 15 MINUTES

YOU SAY THE EMPLOYEE HAS BEEN PAID OVERTIME UNDER THE CALL-BACK PROVISIONS OF 5 U.S.C.A. 912A FOR THE FIRST HOUR OF WORK, 5:45 TO 6:45 A.M. AND 8 HOURS HOLIDAY PAY FOR THE FIVE OTHER PERIODS OF WORK PERFORMED BETWEEN THE HOURS OF 9:00 A.M. AND 4:10 P.M. NOW HE CLAIMS ADDITIONAL COMPENSATION FOR 2 HOURS' OVERTIME.

5 U.S.C.A. 912A PROVIDES:

FOR THE PURPOSES OF THIS CHAPTER, 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.

5 U.S.C.A. 922 READS, IN PERTINENT PART, AS FOLLOWS:

(A) ALL WORK NOT EXCEEDING EIGHT HOURS, WHICH IS NOT OVERTIME WORK AS DEFINED IN SECTION 911 OF THIS TITLE AND WHICH IS PERFORMED ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE, EXECUTIVE ORDER * * * SHALL BE COMPENSATED AT THE RATE OF BASIC COMPENSATION OF SUCH OFFICER OR EMPLOYEE.

(B) ANY OFFICER OR EMPLOYEE WHO IS REQUIRED TO PERFORM ANY WORK ON SUCH A HOLIDAY SHALL BE COMPENSATED FOR AT LEAST TWO HOURS OF SUCH WORK. * * *

SINCE THE WORK PERFORMED FROM 5:45 TO 6:45 A.M. WAS UNSCHEDULED IT COMES WITHIN THE PROVISIONS OF SECTION 912A ABOVE, ENTITLING THE EMPLOYEE TO BE PAID THE MINIMUM CALL-BACK TIME OF 2 HOURS. SUCH PAYMENT YOU SAY HAS ALREADY BEEN MADE. SEE ANSWER TO FIRST SPECIFIC CASE, 37 COMP. GEN. 1, 2.

CONCERNING THE FIVE REMAINING PERIODS OF WORK PERFORMED ON THE HOLIDAY, THE EMPLOYEE WAS REQUIRED IN EACH INSTANCE TO REPORT FOR WORK AND PERFORMED THE WORK REQUIRED; THEN HE WAS EXCUSED FROM DUTY. ALL FIVE PERIODS OF SERVICE WERE WITHIN THE PRESCRIBED DAILY TOUR OF DUTY, 8:00 A.M. TO 4:45 P.M., AND THE HOLIDAY RATE PROVIDED IN SECTION 922 APPLIES. 37 COMP. GEN. 1. THEREFORE, WE BELIEVE THE EMPLOYEE IS ENTITLED TO HOLIDAY COMPENSATION FOR AT LEAST TWO HOURS--- 5 U.S.C.A. 922 (B/--- FOR EACH PERIOD OF SERVICE, SUBJECT TO THE LIMITATION SET OUT BELOW. 35 COMP. GEN. 448. IN THAT VIEW, THE FIVE PERIODS OF SERVICE AT TWO HOURS FOR EACH PERIOD WOULD TOTAL TEN HOURS, BUT, BECAUSE HOLIDAY PAY IS LIMITED TO EIGHT HOURS ON ANY HOLIDAY--- 5 U.S.C.A. 922 (A/--- THE EMPLOYEE HERE INVOLVED WOULD BE ENTITLED TO ONLY EIGHT HOURS HOLIDAY PAY FOR THE FIVE PERIODS OF SERVICE PERFORMED WITHIN THE PRESCRIBED TOUR DUTY, 8:00 A.M. TO 4:45 P.M. 37 COMP. GEN. 500.

SINCE THE SERVICE PERFORMED FROM 5:45 TO 6:45 A.M. IS THE ONLY OVERTIME SERVICE INVOLVED--- ALL THE REMAINING SERVICE BEING CONSIDERED HOLIDAY SERVICE--- AND SINCE PAYMENT HAS BEEN MADE IN ACCORDANCE WITH THE FOREGOING, NO BASIS EXISTS FOR PAYING ADDITIONAL COMPENSATION FOR THE TWO HOURS OVERTIME CLAIMED BY THE EMPLOYEE.