B-140004, AUG. 14, 1959

B-140004, AUG. 14, 1959

TO HONORABLE SUMNER G. WHITTIER, ADMINISTRATOR, VETERANS ADMINISTRATION:

ON JUNE 24, 1959, YOU REQUESTED OUR DECISION WHETHER OVERTIME COMPENSATION MAY BE PAID TO A CLASSIFICATION ACT EMPLOYEE ASSIGNED PATIENT ESCORT DUTY FOR TIME SPENT IN A TRAVEL STATUS OUTSIDE REGULARLY SCHEDULED DUTY HOURS UNDER THE FOLLOWING DESCRIBED CIRCUMSTANCES.

A GRADE GS-2 EMPLOYEE OF THE NURSING SERVICE WAS ASSIGNED TO SERVE AS AN ATTENDANT ACCOMPANYING PATIENTS BEING TRANSFERRED FROM THE MT. ALTO VETERANS ADMINISTRATION HOSPITAL IN WASHINGTON, D.C., TO VETERANS ADMINISTRATION HOSPITALS AT BALTIMORE AND PERRY POINT, MARYLAND, AND TO REPORT THE CONDITION OF THE PATIENTS UPON THEIR RELEASE FROM HIS CUSTODY TO THE EVENING NURSE SUPERVISOR OF MT. ALTO HOSPITAL. THE EMPLOYEE'S REGULAR TOUR OF DUTY ON THE DATE OF ASSIGNMENT WAS FROM 7:30 A.M. TO 4:00 P.M. THE LAST PATIENT IN HIS CUSTODY WAS DELIVERED AT 3:30 P.M., AND AT THAT TIME THE EMPLOYEE AND THE STATION AMBULANCE CHAUFFEUR BEGAN THE RETURN TRIP TO THEIR HEADQUARTERS STATION. UPON ARRIVAL AT THE HEADQUARTERS STATION THE EMPLOYEE, AS PREVIOUSLY INSTRUCTED, MADE A REPORT TO HIS NURSE SUPERVISOR. IT IS YOUR BELIEF THAT THE REPORT REQUIREMENT DIRECTED BY HOSPITAL MANAGEMENT MAY RENDER INAPPLICABLE THE GENERAL RULE ON OVERTIME COMPENSATION FOR TRAVEL TIME AS STATED IN OUR DECISIONS 25 COMP. GEN. 399 AND B-129659, DECEMBER 6, 1956, TO YOUR PREDECESSORS, AND THAT THE TIME CONSUMED IN TRAVEL MAY BE VIEWED AS "INSEPARABLE FROM WORK.'

THE DECISIONS OF OUR OFFICE HAVE CONSISTENTLY HELD THAT PER ANNUM EMPLOYEES WHOSE PAY IS GOVERNED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, ARE NOT ENTITLED TO OVERTIME COMPENSATION FOR TRAVEL TIME OUTSIDE OF THEIR REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK, INCLUDING REGULARLY SCHEDULED OVERTIME HOURS, EXCEPT WHILE ACTUALLY ENGAGED IN THE PERFORMANCE OF DUTIES OR UNLESS THE TRAVEL IS PERFORMED UNDER ARDUOUS CONDITIONS (SEE 25 COMP. GEN. 399; 27 ID. 613; 28 ID. 547). BY PUBLIC LAW 763, APPROVED SEPTEMBER 1, 1954 (68 STAT. 1105 1109), CONGRESS PLACED THE RULE ON A STATUTORY BASIS BY ADDING A NEW SECTION 204 TO THE FEDERAL EMPLOYEES PAY ACT OF 1945 (5 U.S.C. 912B), AS FOLLOWS:

"FOR THE PURPOSES OF THIS CHAPTER, TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL-DUTY STATION OF ANY OFFICER OR EMPLOYEE SHALL BE CONSIDERED AS HOURS OF EMPLOYMENT ONLY WHEN (1) WITHIN THE DAYS AND HOURS OF SUCH OFFICER'S OR EMPLOYEE'S REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK, INCLUDING REGULARLY SCHEDULED OVERTIME HOURS, OR (2) WHEN THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING OR IS CARRIED OUT UNDER ARDUOUS CONDITIONS.'

REFERRING TO SUBSECTION 205 (B) OF THE 1954 ACT BY WHICH THE NEW SECTION 204 WAS ADDED TO THE FEDERAL EMPLOYEES PAY ACT OF 1945, THE MANAGERS ON THE PART OF THE HOUSE MADE THE FOLLOWING STATEMENT IN CONFERENCE REPORT NO. 2665 (ACCOMPANYING H.R. 2263, 83RD CONGRESS, ENACTED AS PUBLIC LAW 763):

"THE NEW SECTION 204 PLACES ON A STATUTORY BASIS THOSE PRINCIPLES NOW ESTABLISHED BY DECISIONS OF THE COMPTROLLER GENERAL WHICH RELATE TO TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION OF AN OFFICER OR EMPLOYEE. UNDER THE NEW SECTION 204 SUCH TIME IS TREATED AS HOURS OF EMPLOYMENT ONLY WHEN: (1) WITHIN THE REGULARLY SCHEDULED WORKWEEK, INCLUDING REGULARLY SCHEDULED OVERTIME, OF THE OFFICER OR EMPLOYEE, OR (2) THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING OR IS CARRIED OUT UNDER ARDUOUS CONDITIONS WHICH HAVE THE EFFECT OF MAKING SUCH TRAVEL INSEPARABLE FROM WORK.'

ONE OF THE LONG LINE OF DECISIONS WHICH MIGHT BE SAID TO HAVE ESTABLISHED "THOSE PRINCIPLES" REFERRED TO IN THE ABOVE STATEMENT WAS THE DECISION IN 25 COMP. GEN. 399, INVOLVING A VETERANS ADMINISTRATION HOSPITAL ATTENDANT TRAVELING WITH A PATIENT BEING TRANSFERRED TO ANOTHER FACILITY--- DUTY SIMILAR IN ALL MATERIAL RESPECTS TO THAT PERFORMED BY THE EMPLOYEE YOU MENTION EXCEPT FOR THE REPORTING REQUIREMENT. WE HELD THERE THAT THE EMPLOYEE WAS ENTITLED UNDER THE STATUTES THEN IN EFFECT TO OVERTIME COMPENSATION ONLY FOR THE PORTION OF THE TRAVEL TIME DURING WHICH HE ACTUALLY ATTENDED THE PATIENT. WHILE THE RETURN TRAVEL PERFORMED BY THE EMPLOYEE RESULTED FROM THE PERFORMANCE OF OFFICIAL DUTY, THE TRAVEL WAS PERFORMED OUTSIDE HIS REGULARLY SCHEDULED TOUR OF DUTY AND CONSISTED OF TRAVEL ALONE (WITHOUT PERFORMANCE OF ACTUAL DUTY).

THE EMPLOYEE IN THE CASE MENTIONED IN YOUR LETTER WAS NOT REQUIRED TO PERFORM ANY ACTUAL DUTY DURING HIS RETURN TRAVEL TO HIS HEADQUARTERS STATION--- A PART OF SUCH RETURN TRAVEL HAVING BEEN PERFORMED OUTSIDE HIS REGULARLY SCHEDULED TOUR OF DUTY. THE ONLY WORK PERFORMED BY HIM IN CONNECTION WITH SUCH TRAVEL WAS PERFORMED AFTER HE RETURNED TO HIS HEADQUARTERS STATION. UNDER THESE CIRCUMSTANCES WE MUST CONCLUDE THAT THE TRAVEL TIME CONSUMED OUTSIDE HIS REGULARLY SCHEDULED TOUR OF DUTY IN RETURNING TO HIS HEADQUARTERS STATION IS NOT TO BE VIEWED AS "INSEPARABLE FROM WORK" AND THEREFORE OVERTIME COMPENSATION MAY NOT BE PAID FOR SUCH TRAVEL TIME.

CONCERNING THE DUTY PERFORMED BY THE EMPLOYEE UPON HIS RETURN TO HIS HEADQUARTERS STATION AFTER HIS REGULARLY SCHEDULED TOUR OF DUTY, SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 912A, PROVIDES AS FOLLOWS:

"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.'

SINCE YOU SAY THE HOSPITAL MANAGEMENT DIRECTED THE EMPLOYEE TO REPORT TO THE EVENING NURSE SUPERVISOR OF MT. ALTO HOSPITAL THE CONDITION OF THE PATIENTS UPON THEIR RELEASE FROM HIS CUSTODY, OUR VIEW IS THAT THE EMPLOYEE IN THIS CASE IS ENTITLED TO CALL-BACK OVERTIME OF 2 HOURS UNDER THE ABOVE-QUOTED CALL-BACK OVERTIME PROVISIONS OF LAW. COMPARE 37 COMP. GEN. 1 AND 38 ID. 142. HOWEVER, YOU MAY WISH TO GIVE FURTHER CONSIDERATION TO WHETHER THE INTERESTS OF THE GOVERNMENT WOULD BE BETTER SERVED IN FUTURE CASES BY REQUIRING THE REPORTS TO BE SUBMITTED BY EMPLOYEES AT THE BEGINNING OF THEIR NEXT REGULARLY SCHEDULED TOUR OF DUTY SINCE THE PATIENTS HAVE ALREADY BEEN RELEASED TO THE CUSTODY OF THE HOSPITALS TO WHICH THEY WERE DELIVERED.