B-141321, DECEMBER 18, 1959, 39 COMP. GEN. 453

B-141321: Dec 18, 1959

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EMPLOYEES WHO ARE ASSIGNED TO TRAINING COURSES FOR MORE THAN 40 HOURS IN ANY WEEK MAY NOT BE GRANTED COMPENSATORY TIME FOR THE HOURS IN EXCESS OF 40. TO EMPLOYEES OF YOUR AGENCY WHO ARE ASSIGNED FULL-TIME TRAINING AT YOUR CENTRALIZED FACILITY AT OKLAHOMA CITY. - SUCH EMPLOYEES ARE AWAY FROM THEIR REGULAR POSTS OF DUTY. IT IS PERIODICALLY NECESSARY DUE TO VARIOUS OPERATING CONDITIONS TO ASSIGN SUCH EMPLOYEES TO MORE THAN FORTY HOURS OF TRAINING FOR ONE ADMINISTRATIVE WORKWEEK OR TO MORE THAN EIGHTY HOURS OF TRAINING SITUATION ARE SUCH AS TO PRECLUDE CONSIDERATION UNDER THE EXCEPTIONS TO SECTION 10 ESTABLISHED BY THE CIVIL SERVICE COMMISSION IN SECTION 39.402 (A) OF ITS TRAINING REGULATIONS.

B-141321, DECEMBER 18, 1959, 39 COMP. GEN. 453

CIVILIAN PERSONNEL - TRAINING - OVERTIME - COMPENSATORY TIME IN VIEW OF THE RESTRICTION IN SECTION 10 OF THE GOVERNMENT EMPLOYEES TRAINING ACT AGAINST PAYMENT OF OVERTIME, UNLESS THE CIVIL SERVICE COMMISSION ESTABLISHES AN EXCEPTION, 5 U.S.C. 2309, EMPLOYEES WHO ARE ASSIGNED TO TRAINING COURSES FOR MORE THAN 40 HOURS IN ANY WEEK MAY NOT BE GRANTED COMPENSATORY TIME FOR THE HOURS IN EXCESS OF 40, THE CONDITION PRECEDENT TO THE GRANTING OF COMPENSATORY TIME IN LIEU OF OVERTIME UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, U.S.C. 912, BEING QUALIFICATION FOR OVERTIME UNDER SECTION 201 OF THE 1945 ACT, 5 U.S.C. 911; NOR MAY THE EMPLOYEES BE GRANTED COMPENSATION AT STRAIGHT TIME RATES FOR OVERTIME TRAINING, IN VIEW OF THE REQUIREMENT IN THE 1945 ACT THAT WORK IN EXCESS OF 40 HOURS MUST BE CONSIDERED OVERTIME AND PAYABLE AT THE OVERTIME RATE.

TO THE ADMINISTRATOR, FEDERAL AVIATION AGENCY, DECEMBER 18, 1959:

ON NOVEMBER 21, 1959, YOUR ACTING ADMINISTRATOR REQUESTED OUR DECISION UPON TWO QUESTIONS CONCERNING THE APPLICATION OF SECTION 10 OF THE GOVERNMENT EMPLOYEES TRAINING ACT, PUBLIC LAW 85-507, 72 STAT. 332, 5 U.S.C. 2309, TO EMPLOYEES OF YOUR AGENCY WHO ARE ASSIGNED FULL-TIME TRAINING AT YOUR CENTRALIZED FACILITY AT OKLAHOMA CITY.

YOUR AGENCY'S LETTER SAYS---

SUCH EMPLOYEES ARE AWAY FROM THEIR REGULAR POSTS OF DUTY. IT IS PERIODICALLY NECESSARY DUE TO VARIOUS OPERATING CONDITIONS TO ASSIGN SUCH EMPLOYEES TO MORE THAN FORTY HOURS OF TRAINING FOR ONE ADMINISTRATIVE WORKWEEK OR TO MORE THAN EIGHTY HOURS OF TRAINING SITUATION ARE SUCH AS TO PRECLUDE CONSIDERATION UNDER THE EXCEPTIONS TO SECTION 10 ESTABLISHED BY THE CIVIL SERVICE COMMISSION IN SECTION 39.402 (A) OF ITS TRAINING REGULATIONS. THEREFORE, THE EMPLOYEES INVOLVED CLEARLY MAY NOT BE PAID AT OVERTIME RATES.

THE QUESTIONS UPON WHICH OUR DECISION IS REQUESTED ARE STATED AS FOLLOWS:

(1) MAY THESE EMPLOYEES BE GRANTED COMPENSATORY TIME OFF IN LIEU OF SUCH IRREGULAR OVERTIME SINCE COMPENSATORY TIME OFF IS NOT SPECIFICALLY PROHIBITED BY THE LANGUAGE OF SECTION 10?

(2) WOULD THERE BY ANY OBJECTION TO THE PAYMENT OF APPROPRIATE STRAIGHT- TIME RATES FOR SUCH HOURS OF OVERTIME?

SECTION 10 OF THE GOVERNMENT EMPLOYEES TRAINING ACT AUTHORIZES THE HEAD OF EACH DEPARTMENT, IN ACCORDANCE WITH REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION," (1) TO PAY ALL OR ANY PART OF THE SALARY, PAY, OR COMPENSATION (EXCLUDING OVERTIME, HOLIDAY, AND NIGHT DIFFERENTIAL PAY) OF EACH EMPLOYEE OF SUCH DEPARTMENT WHO IS SELECTED AND ASSIGNED FOR TRAINING

SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 911, PROVIDES THAT " ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK PERFORMED BY OFFICERS AND EMPLOYEES * * * SHALL BE CONSIDERED TO BE OVERTIME WORK *

SECTION 202 OF THAT ACT, AS AMENDED, 5 U.S.C. 912, PROVIDES FOR THE GRANTING, UNDER THE CONDITIONS SPECIFIED HEREIN, OF COMPENSATORY TIME OFF IN LIEU OF OVERTIME COMPENSATION FOR ,OVERTIME WORK" PERFORMED.

UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, COMPENSATORY TIME OFF MAY BE GRANTED "IN LIEU OF OVERTIME" COMPENSATION FOR "OVERTIME WORK" PERFORMED. THEREFORE, UNLESS AN EMPLOYEE CAN QUALIFY FOR OVERTIME COMPENSATION HE WOULD NOT BE ELIGIBLE FOR COMPENSATORY TIME OFF. MOREOVER, PAYMENT FOR "OVERTIME WORK," WHEN AUTHORIZED, WOULD HAVE TO BE AT THE OVERTIME RATE SPECIFIED IN THE CONTROLLING STATUTE RATHER THAN AT STRAIGHT TIME RATES.

THEREFORE, AND IN VIEW OF THE RESTRICTION IN SECTION 10 OF THE GOVERNMENT EMPLOYEES TRAINING ACT AGAINST THE PAYMENT OF OVERTIME COMPENSATION INCIDENT TO THE TRAINING UNDER THAT ACT, NEITHER THE PAYMENT OF ADDITIONAL COMPENSATION NOR THE GRANTING OF COMPENSATORY TIME OFF WOULD BE AUTHORIZED UNLESS BY APPROPRIATE ACTION THE CIVIL SERVICE COMMISSION WERE TO ESTABLISH AN EXCEPTION TO THE RESTRICTION APPEARING IN SUCH SECTION WHICH WOULD APPLY TO THE TYPE OF TRAINING HERE UNDER CONSIDERATION.