B-142921, MAY 26, 1960

B-142921: May 26, 1960

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YOUR TOUR OF DUTY WAS FROM 8 A.M. YOUR CLAIM FOR THE PAYMENT OF OVERTIME COMPENSATION FROM THE TIME YOU PLACED THE ALIEN ABOARD THE AIRPLANE UNTIL YOU RETURNED THE GOVERNMENT VEHICLE TO NEW YORK WAS DISALLOWED BY US UNDER SECTION 25.222 (E) OF THE FEDERAL EMPLOYEES PAY REGULATIONS. THAT SECTION OF THE REGULATIONS PROVIDES THAT TRAVEL PERFORMED OUTSIDE OF NORMAL WORKING HOURS DOES NOT ENTITLE AN EMPLOYEE TO OVERTIME COMPENSATION UNLESS THE TRAVEL INVOLVES THE PERFORMANCE OF ACTUAL WORK OR IS PERFORMED UNDER SUCH "ARDUOUS AND UNUSUAL CIRCUMSTANCES THAT THE TRAVEL IS INSEPARABLE FROM WORK.'. WHOSE PRIMARY DUTY IS NOT DRIVING. IS NOT ENTITLED TO OVERTIME COMPENSATION BY REASON OF THE FACT THAT HE DRIVES A GOVERNMENT VEHICLE WHILE IN TRAVEL STATUS.

B-142921, MAY 26, 1960

TO MR. DANIEL GOLDBERG:

ON MAY 2, 1960, YOU PROTESTED OUR SETTLEMENT OF APRIL 28, 1960, WHICH DISALLOWED YOUR CLAIM FOR 1 1/4 HOURS OF OVERTIME COMPENSATION BELIEVED DUE YOU FOR TIME SPENT IN TRAVEL AS AN EMPLOYEE OF THE DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, ON JUNE 30, 1958.

THE RECORD SHOWS THAT, ON THE DAY IN QUESTION, YOUR TOUR OF DUTY WAS FROM 8 A.M., TO 4:30 P.M., THAT YOU TOOK CUSTODY OF AN ALIEN AT 2:30 P.M., IN NEW YORK, NEW YORK, AND DROVE HIM IN A GOVERNMENT VEHICLE TO NEWARK AIRPORT, THAT YOU PLACED THE ALIEN ABOARD AN AIRPLANE WHICH DEPARTED AT 4:55 P.M., AND THAT YOU DROVE THE GOVERNMENT VEHICLE BACK TO NEW YORK RETURNING IT AT 6 P.M.

YOUR CLAIM FOR THE PAYMENT OF OVERTIME COMPENSATION FROM THE TIME YOU PLACED THE ALIEN ABOARD THE AIRPLANE UNTIL YOU RETURNED THE GOVERNMENT VEHICLE TO NEW YORK WAS DISALLOWED BY US UNDER SECTION 25.222 (E) OF THE FEDERAL EMPLOYEES PAY REGULATIONS. THAT SECTION OF THE REGULATIONS PROVIDES THAT TRAVEL PERFORMED OUTSIDE OF NORMAL WORKING HOURS DOES NOT ENTITLE AN EMPLOYEE TO OVERTIME COMPENSATION UNLESS THE TRAVEL INVOLVES THE PERFORMANCE OF ACTUAL WORK OR IS PERFORMED UNDER SUCH "ARDUOUS AND UNUSUAL CIRCUMSTANCES THAT THE TRAVEL IS INSEPARABLE FROM WORK.' IT LONG HAS BEEN THE POSITION OF OUR OFFICE THAT AN EMPLOYEE, WHOSE PRIMARY DUTY IS NOT DRIVING, IS NOT ENTITLED TO OVERTIME COMPENSATION BY REASON OF THE FACT THAT HE DRIVES A GOVERNMENT VEHICLE WHILE IN TRAVEL STATUS. SEE 30 COMP. GEN. 72. THE FACT THAT YOU DROVE THROUGH HEAVY TRAFFIC IN NEW YORK WOULD NOT SEEM TO BE SUFFICIENT TO SUPPORT A HOLDING THAT THE CIRCUMSTANCES IN WHICH YOU DROVE WERE SO UNUSUAL AND ARDUOUS AS TO BE INSEPARABLE FROM WORK.

REGARDING YOUR ALTERNATE CLAIM FOR COMPENSATORY TIME FOR THE 1 1/4 HOURS IN QUESTION YOU MAY BE INFORMED THAT AN EMPLOYEE IS GRANTED COMPENSATORY TIME IN LIEU OF OVERTIME COMPENSATION UNDER CERTAIN CONDITIONS. FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 297, AS AMENDED 5 U.S.C. 912; SECTION 22.224, EMPLOYEES PAY REGULATIONS. SINCE YOU ARE NOT ENTITLED TO OVERTIME COMPENSATION CONCERNING THE PERIOD IN QUESTION IT FOLLOWS THAT COMPENSATORY TIME MAY NOT BE ALLOWED FOR THAT SAME PERIOD.

FURTHERMORE, YOU ARE NOT ENTITLED TO PER DIEM FOR THE TIME SPENT IN TRAVEL ON THE DAY IN QUESTION SINCE SECTION 6.11 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, IN FORCE AT THE TIME, PROVIDED THAT PER DIEM COULD NOT BE ALLOWED WHEN TRAVEL BEGAN AT OR AFTER 8 A.M., AND WAS COMPLETED AT OR PRIOR TO 6 P.M., ON THE SAME DAY.

FOR THE REASONS STATED, OUR SETTLEMENT OF APRIL 28, 1960, WHICH DISALLOWED YOUR CLAIM MUST BE SUSTAINED.