B-149986, OCTOBER 9, 1962, 42 COMP. GEN. 195

B-149986, OCTOBER 9, 1962, 42 COMP. GEN. 195

RETIREMENT - CIVILIAN - SALARY COMPUTATION FOR DEDUCTIONS - OVERTIME EFFECT. LEAVES OF ABSENCE - ANNUAL - CHARGING - IRREGULAR WORKWEEK EFFECT. COMPENSATION - WAGE BOARD EMPLOYEES - OVERTIME - LEAVE EFFECT. COMPENSATION - WAGE BOARD EMPLOYEES - OVERTIME - LEAVE EFFECT. LEAVES OF ABSENCE - ANNUAL - ACCRUAL - IRREGULAR WORKWEEK EMPLOYMENT. COMPENSATION - WAGE BOARD EMPLOYEES - OVERTIME - WORK IN EXCESS OF DAILY AND WEEKLY LIMITATION. COMPENSATION - WAGE BOARD EMPLOYEES - OVERTIME - DAY AND WEEK DEFINITIONS. COMPENSATION - WAGE BOARD EMPLOYEES - OVERTIME - EFFECTIVE DATE OF 1962 ACT. COMPENSATION WAGE BOARD EMPLOYEES - OVERTIME - STANDBY, ETC., TIME - STANDARDS. COMPENSATION - WAGE BOARD EMPLOYEES - OVERTIME - STANDBY, ETC., TIME - STANDARDS. COMPENSATION - WAGE BOARD EMPLOYEES - OVERTIME - STANDBY, ETC., TIME - SLEEPING AND EATING TIME. COMPENSATION - WAGE BOARD EMPLOYEES - OVERTIME - STANDBY, ETC., TIME - IRREGULAR, ETC., STANDBY DUTY. COMPENSATION - WAGE BOARD EMPLOYEES - OVERTIME - STANDBY, ETC., TIME - LIMITATION. WAGE BOARD EMPLOYEES WHO HAVE A 40-HOUR WORKWEEK BUT UNCOMMON DAILY TOURS OF DUTY (FOR EXAMPLE, FOUR 10-HOUR DAYS' AND WHO RECEIVE OVERTIME PAY FOR WORK IN EXCESS OF 8 HOURS A DAY PURSUANT TO SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962, 5 U.S.C. 673C, MAY HAVE ONLY THE BASIC HOURLY WAGE RATE, EXCLUDING THE ADDITIONAL HALF-PAY, CONSIDERED FOR RETIREMENT DEDUCTIONS AND FOR DETERMINING THE AMOUNT OF GROUP LIFE INSURANCE TO WHICH THE EMPLOYEES ARE ENTITLED, THERE BEING NO INDICATION IN THE LEGISLATIVE HISTORY OF THE 1962 ACT TO CHANGE THE BASIC 40-HOUR WORKWEEK CONCEPT ESTABLISHED UNDER OTHER LAWS. WAGE BOARD EMPLOYEES WITH 40-HOUR WORKWEEK SCHEDULES BUT UNCOMMON DAILY TOURS OF DUTY (10 HOURS A DAY FOR 4 DAYS) WHO ARE ENTITLED TO ADDITIONAL COMPENSATION FOR OVERTIME WORK IN EXCESS OF 8 HOURS A DAY UNDER SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962, 5 U.S.C. 673C, MAY CONTINUE TO USE APPROVED ANNUAL AND SICK LEAVE DURING THE ENTIRE 40-HOUR WORKWEEK, THERE BEING NO INDICATION IN THE LEGISLATIVE HISTORY OF THE 1962 ACT TO CHANGE THE BASIC 40-HOUR WORKWEEK CONCEPT ESTABLISHED UNDER OTHER LAWS. WAGE BOARD EMPLOYEES WITH A 10-HOUR A DAY AND 4-DAY A WEEK WORK SCHEDULE WHO ARE ON LEAVE FOR THE LAST 2 HOURS OF THE DAY DO NOT PERFORM ANY OVERTIME WORK IN EXCESS OF 8 HOURS A DAY WITHIN THE MEANING OF THE OVERTIME PAY PROVISIONS IN SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962, AND, THEREFORE, THE EMPLOYEES ARE NOT ENTITLED TO COMPENSATION FOR THE 2 HOURS OF LEAVE AT THE TIME AND ONE-HALF THE BASIC RATE OF COMPENSATION PROVIDED IN THE 1962 ACT. WAGE BOARD EMPLOYEES WITH A 10-HOUR A DAY, 4-DAY A WEEK WORK SCHEDULE WHO ARE ON LEAVE THE FIRST 8 HOURS OR LESS OF THE DAY BUT ACTUALLY WORK THE LAST 2 HOURS OF THE REGULAR 10-HOUR DAY MEET THE OVERTIME WORK REQUIREMENTS OF SECTION 23 OF THE ACT OF MARCH 23, 1934, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962, TO BE ENTITLED TO PAY FOR WAGE BOARD EMPLOYEES WITH A 40-HOUR WORKWEEK SCHEDULE BUT IRREGULAR TOURS OF DUTY, SUCH AS FOUR 9-HOUR DAYS AND ONE 4-HOUR DAY, WHO HAVE HAD THEIR LEAVE CREDITS COMPUTED PURSUANT TO SECTION 30.801 OF THE ANNUAL AND SICK LEAVE REGULATIONS AND WHO ARE ENTITLED TO ADDITIONAL COMPENSATION FOR WORK IN EXCESS OF 8 HOURS UNDER SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962, MAY CONTINUE TO HAVE THEIR LEAVE COMPUTED ON THE SAME BASIS, THE 1962 ACT NOT REQUIRING ANY CHANGE. SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962, 5 U.S.C. 673C, WHICH PROVIDES THAT OVERTIME WORK IN EXCESS OF 8 HOURS PER DAY OR IN EXCESS OF 40 HOURS PER WEEK, SHALL BE COMPENSATED FOR AT NOT LESS THAN TIME AND ONE-HALF THE BASIC RATE OF COMPENSATION, MUST BE CONSTRUED AS PROVIDING ALTERNATE OR SEPARATE METHODS FOR DETERMINING OVERTIME WORK IN EXCESS OF 8 HOURS OR IN EXCESS OF 40 HOURS A WEEK, AND, THEREFORE, WAGE BOARD EMPLOYEES WHO REGULARLY WORK A 46 HOUR WEEK CONSISTING OF THREE 12-HOUR DAYS AND ONE 10-HOUR DAY ARE NOT ENTITLED TO PAYMENT OF A DOUBLE PREMIUM FOR THE 2 HOURS ON THE FOURTH WORKDAY--- A 10-HOUR DAY--- THAT EXCEEDS BOTH THE 8 HOURS PER DAY AND THE 40 HOURS PER WEEK BUT ARE ENTITLED TO PAYMENT AT TIME AND ONE-HALF FOR THE 4 HOURS OVERTIME WORK IN EXCESS OF 8 HOURS PER DAY ON THE 12-HOUR DAYS AND FOR THE 6 HOURS IN EXCESS OF 40 HOURS PER WEEK ON THE 10-HOUR DAY. ALTHOUGH IN DETERMINING OVERTIME WORK FOR WAGE BOARD EMPLOYEES UNDER SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962, 5 U.S.C. 673C, A CALENDAR DAY SHOULD, WHENEVER ADMINISTRATIVELY FEASIBLE, BE DEFINED AS FROM MIDNIGHT TO MIDNIGHT AND A CALENDAR WEEK AS SUNDAY THROUGH SATURDAY, TO AVOID PROBLEMS INVOLVING EMPLOYEES WITH UNCOMMON TOURS OF DUTY, A 24-HOUR PERIOD MAY BE TREATED AS A DAY AND ANY CONSECUTIVE 7-DAY PERIOD MAY BE TREATED AS A WEEK. IN DETERMINING THE EFFECTIVE DATE OF THE WORK HOURS ACT OF 1962, APPROVED AUGUST 13, 1962, WHICH SPECIFIES THAT THE ACT "SHALL TAKE EFFECT SIXTY DAYS AFTER ITS ENACTMENT," THE USE OF THE WORD ,AFTER" REQUIRES THAT THE DAY FROM WHICH THE PERIOD OF TIME IS TO BE RECKONED WILL BE EXCLUDED FROM THE COMPUTATION SO THAT EXCLUDING THE DAY OF ENACTMENT (AUGUST 13, 1962), THE EFFECTIVE DATE WOULD BE 60 DAYS THEREAFTER, OR FROM THE FIRST MOMENT OF OCTOBER 12, 1962; THEREFORE, OVERTIME PAYMENTS UNDER THE ACT MUST BE COMPUTED FROM OCTOBER 12, 1962. THE EFFECTIVE DATE WAS CHANGED FROM OCTOBER 13, 1962, BY DECISION DATED NOVEMBER 20, 1962. UNDER THE 8-HOUR EXCEPTION IN SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962, 5 U.S.C. 673C, WHICH PROVIDES THAT EMPLOYEES WHO ARE REGULARLY REQUIRED TO REMAIN AT OR WITHIN THE CONFINES OF THEIR POST OF DUTY IN EXCESS OF 8 HOURS PER DAY IN A STANDBY OR ON-CALL STATUS SHALL BE PAID OVERTIME RATES ONLY FOR HOURS OF DUTY, EXCLUSIVE OF EATING AND SLEEPING TIME, IN EXCESS OF 40 PER WEEK, THE TERMS "ON-CALL" AND "STANDBY" WHEN CONSIDERED WITH "REQUIRED TO REMAIN AT OR WITHIN THE CONFINES OF THEIR POST OF DUTY" HAVE THE SAME MEANING AND THE AGENCIES MAY USE THE STANDARDS AND THE DEFINITIONS FOR SUCH DUTY PRESCRIBED IN 5 CODE OF FEDERAL REGULATIONS 25.253. THE LANGUAGE OF THE EXCEPTION FROM THE 8-HOUR PROVISION IN SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962, 5 U.S.C. 673C, WHICH PROVIDES THAT EMPLOYEES WHO ARE REGULARLY REQUIRED TO REMAIN AT OR WITHIN THE CONFINES OF THEIR POST OF DUTY IN EXCESS OF 8 HOURS PER DAY IN A STANDBY OR ON-CALL STATUS SHALL BE PAID OVERTIME RATES ONLY FOR HOURS OF DUTY, EXCLUSIVE OF EATING AND SLEEPING TIME, IN EXCESS OF 40 PER WEEK, REQUIRES THAT STANDBY DUTY AND ACTUAL WORK IN EXCESS OF 40 HOURS BE TREATED THE SAME FOR APPLICATION OF THE MINIMUM OVERTIME RATE. IN THE ABSENCE OF ANY STANDARD CRITERIA FOR DETERMINING SLEEPING AND EATING TIME UNDER THE EXCEPTION IN SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962, 5 U.S.C. 673C, ATTENTION IS DIRECTED TO ARMSTRONG, ET AL. V. UNITED STATES, 144 CT.CL. 659, AND TO AHEARN, ET AL. V. UNITED STATES, 142 CT.CL. 309, AND IN DESIGNATING TIME FOR NORMALLY UNINTERRUPTED SLEEPING AND EATING, ATTENTION IS CALLED TO FARLEY V. UNITED STATES, 131 CT.CL. 776, AND ENGLAND V. UNITED STATES, 133 CT.CL. 768, UNDER WHICH COMPENSATION WAS ALLOWED BECAUSE IT WAS DETERMINED SUBSTANTIAL LABOR WAS PERFORMED DURING THE TIME SET APART FOR SLEEPING AND EATING. REGARDLESS OF THE IMPLICATION THAT UNDER THE LANGUAGE OF THE EXCEPTION IN SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962, 5 U.S.C. 673C, ALL STANDBY AND ON-CALL SERVICE IN EXCESS OF 40 HOURS A WEEK ON DAYS OF 8 HOURS OR LESS, AS ON WEEKENDS, AND ALL OCCASIONAL OR IRREGULAR STANDBY AND ON CALL SERVICE, INCLUDING EATING AND SLEEPING TIME, WOULD BE PAYABLE AT OVERTIME RATES, COMPENSATION ORDINARILY IS NOT PAYABLE FOR ,EATING AND SLEEPING TIME" UNDER THE EXCEPTION IN SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962, 5 U.S.C. 673C, THERE IS NO LIMITATION ON THE AMOUNT OF TIME WHICH MAY BE TREATED AS TIME IN A STANDBY OR ON-CALL STATUS.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 9, 1962:

YOUR LETTER OF SEPTEMBER 26, 1962, PRESENTS FOR OUR CONSIDERATION SEVERAL QUESTIONS CONCERNING LEAVE AND COMPENSATION FOR EMPLOYEES COVERED BY THE RECENT AMENDMENT (SEC. 201 OF THE WORK HOURS ACT OF 1962, PUBLIC LAW 87- 581, 76 STAT. 360), TO SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, 5 U.S.C. 673C.

THE AMENDMENT READS AS FOLLOWS:

SEC. 201. THE PROVISO OF SECTION 23 OF THE ACT OF MARCH 28, 1934 (48 STAT. 509, 522), AS AMENDED, IS HEREBY AMENDED TO READ AS FOLLOWS: "PROVIDED, THAT THE REGULAR HOURS OF LABOR ARE HEREBY ESTABLISHED AT NOT MORE THAN EIGHT PER DAY OR FORTY PER WEEK, BUT WORK IN EXCESS OF SUCH HOURS SHALL BE PERMITTED WHEN ADMINISTRATIVELY DETERMINED TO BE IN THE PUBLIC INTEREST: PROVIDED FURTHER, THAT OVERTIME WORK IN EXCESS OF EIGHT HOURS PER DAY OR IN EXCESS OF FORTY HOURS PER WEEK SHALL BE COMPENSATED FOR AT NOT LESS THAN TIME AND ONE-HALF THE BASIC RATE OF COMPENSATION, EXCEPT THAT EMPLOYEES SUBJECT TO THIS SECTION WHO ARE REGULARLY REQUIRED TO REMAIN AT OR WITHIN THE CONFINES OF THEIR POST OF DUTY IN EXCESS OF EIGHT HOURS PER DAY IN A STANDBY OR ON-CALL STATUS SHALL BE PAID OVERTIME RATES ONLY FOR HOURS OF DUTY, EXCLUSIVE OF EATING AND SLEEPING TIME, IN EXCESS OF FORTY PER WEEK.'

WE NOTE THAT FOR RETIREMENT AND GROUP LIFE INSURANCE PURPOSES YOU PROPOSE TO RETAIN THE BASIC FORTY-HOUR WEEK. YOU SAY THAT IN THOSE INSTANCES, AS REFLECTED FROM THE QUESTIONS PRESENTED, WHERE SUCH PART OF THE BASIC FORTY -HOUR WEEK IS PAID AT TIME AND ONE-HALF ONLY THE BASIC HOURLY RATE FOR SUCH HOURS WILL BE CONSIDERED FOR RETIREMENT DEDUCTIONS AND FOR FIXING THE AMOUNT OF GROUP LIFE INSURANCE. IN OTHER WORDS THE ADDITIONAL HALF-PAY FOR SUCH HOURS WITHIN THE FORTY HOUR WEEK WILL NOT BE CONSIDERED FOR SUCH PURPOSES, THERE BEING NO INDICATION OF ANY LEGISLATIVE INTENT TO CHANGE THE BASIC FORTY-HOUR WORKWEEK AS ESTABLISHED UNDER OTHER PROVISIONS OF LAW. WE CONCUR WITH SUCH PROPOSAL.

THE SPECIFIC QUESTIONS PRESENTED ARE AS FOLLOWS:

1 (A). MAY A WAGE-BOARD EMPLOYEE WITH A 10-HOUR DAY AND 4-DAY WEEK CONTINUE TO USE HIS APPROVED ANNUAL AND SICK LEAVE DURING THE ENTIRE 40- HOUR WEEK?

QUESTION 1 (A) IS ANSWERED IN THE AFFIRMATIVE. THIS ANSWER IS IN ACCORD WITH THE TREATMENT OF THE BASIC FORTY-HOUR WORKWEEK FOR RETIREMENT AND GROUP LIFE INSURANCE PURPOSES.

(B). IF THE ANSWER IS AFFIRMATIVE, DOES SUCH AN EMPLOYEE WHO IS ON LEAVE THE LAST TWO HOURS OF THE DAY RECEIVE THE ADDITIONAL AMOUNT WHICH IS PROVIDED FOR WORK IN EXCESS OF EIGHT HOURS PER DAY, OR DOES HE RECEIVE ONLY THE BASIC RATE FOR THOSE TWO HOURS?

THE LANGUAGE OF THE FOREGOING PROVISION SPECIFICALLY REQUIRES THAT "OVERTIME WORK IN EXCESS OF EIGHT HOURS PER DAY SHALL BE COMPENSATED FOR AT NOT LESS THAN TIME AND ONE-HALF THE BASIC RATE OF COMPENSATION.' THE EMPLOYEE WHO IS ON LEAVE THE LAST TWO HOURS OF HIS DAILY TEN-HOUR TOUR OF DUTY PERFORMS NO OVERTIME WORK IN EXCESS OF EIGHT HOURS PER DAY. HENCE, HE IS NOT ENTITLED THEREUNDER TO BE COMPENSATED FOR SUCH TWO HOURS OF LEAVE AT TIME AND ONE-HALF THE BASIC RATE OF COMPENSATION. QUESTION 1 (B) IS ANSWERED ACCORDINGLY.

(C). IF THE EMPLOYEE IS ON LEAVE TWO HOURS OR MORE EARLY IN THE DAY, BUT ACTUALLY WORKS THE LAST TWO HOURS OF HIS REGULAR 10-HOUR DAY, IS THE ADDITIONAL AMOUNT INCLUDED IN HIS PAY FOR THOSE LAST TWO HOURS, OR DOES HE RECEIVE ONLY THE BASIC RATE BECAUSE HE HAS NOT ACTUALLY WORKED MORE THAN 8 HOURS?

THERE IS NO REQUIREMENT IN THE FOREGOING PROVISION THAT THE EMPLOYEE ACTUALLY WORK THE FIRST EIGHT HOURS OR LESS OF HIS DAILY TEN-HOUR TOUR OF DUTY. FURTHER, WE HAVE HELD THAT THE FORTY-HOUR BASIC WORKWEEK MAY CONSIST OF HOURS IN A LEAVE WITH PAY STATUS AS WELL AS AN ACTUAL WORK STATUS. SEE 13 COMP. GEN. 295; 14 ID. 761; 21 ID. 217; 25 ID. 151; AND 31 ID. 173. SINCE THE EMPLOYEE ACTUALLY PERFORMS WORK DURING THE LAST TWO HOURS OF HIS TEN-HOUR TOUR OF DUTY HE MEETS THE REQUIREMENT ENTITLING HIM TO BE PAID FOR THE OVERTIME WORK AT TIME AND ONE-HALF HIS BASIC COMPENSATION. CF. OUR ANSWER TO QUESTION 1 (B).

(D). IF A WAGE-BOARD EMPLOYEE HAS AN UNCOMMON TOUR OF DUTY SUCH AS FOUR 9 -HOUR DAYS AND ONE 4-HOUR DAY, AND THE AGENCY HAS PRESCRIBED A SATISFACTORY METHOD OF COMPUTING LEAVE CREDITS (AND CHARGING LEAVE) UNDER SECTION 30.801 OF THE LEAVE REGULATIONS, DOES THE AMENDMENT TO THE 1934 ACT REQUIRE ANY CHANGE IN THAT METHOD? THAT IS, DOES THE NINTH HOUR OF A 9-HOUR DAY HAVE TO BE TREATED DIFFERENTLY OR OMITTED FOR LEAVE COMPUTATION PURPOSES?

AS INDICATED IN OUR ANSWER TO QUESTION 1 (A) WE DO NOT BELIEVE ANY SUCH CHANGE WAS INTENDED OR IS NECESSITATED BY THE LANGUAGE OF THE AMENDMENT. THEREFORE, THIS QUESTION IS ANSWERED IN THE NEGATIVE.

2. AN EMPLOYEE HAS A REGULARLY SCHEDULED WORKWEEK OF ONE 8-HOUR DAY,TWO 10-HOUR DAYS, AND ONE 12-HOUR DAY. IF A HOLIDAY OCCURS ON HIS SCHEDULED 12-HOUR DAY, IS HE PAID AT STRAIGHT TIME FOR THE ENTIRE 12 HOURS, OR IS HE ENTITLED TO THE OVERTIME RATE FOR THE LAST 4 HOURS?

WHERE NO WORK IS PERFORMED THE EMPLOYEE IS ONLY ENTITLED TO COMPENSATION AT STRAIGHT TIME FOR THE ENTIRE PERIOD. SEE OUR ANSWER TO QUESTION 1 (B). QUESTION 2 IS ANSWERED ACCORDINGLY.

3. AN EMPLOYEE REGULARLY WORKS A 46-HOUR WEEK, CONSISTING OF THREE 12- HOUR DAYS AND ONE 10-HOUR DAY. EVIDENTLY 4 HOURS OF EACH OF THE 12 HOUR DAYS WILL BE PAID AT THE OVERTIME RATE. AFTER 4 HOURS OF THE 10 HOUR DAY HE WILL EXCEED 40 HOURS FOR THE WEEK. WILL HE BE PAID AT THE OVERTIME RATE FOR THE LAST 6 HOURS? WOULD THERE BE A DOUBLE PREMIUM FOR THE 2 HOURS WHICH WILL EXCEED BOTH THE 8 HOURS IN THE DAY AND THE 40 HOURS IN THE WEEK?

THE APPLICABLE PROVISO READS, IN PERTINENT PART, AS FOLLOWS: "THAT OVERTIME WORK IN EXCESS OF EIGHT HOURS PER DAY OR IN EXCESS OF FORTY HOURS PER WEEK SHALL BE COMPENSATED FOR AT NOT LESS THAN TIME AND ONE HALF THE BASIC RATE OF COMPENSATION.' WE BELIEVE THE CONGRESS INTENDED TO PROVIDE ALTERNATE OR SEPARATE METHODS FOR DETERMINING THE OVERTIME WORK COMPENSABLE AT TIME AND ONE-HALF THE BASIC RATE OF COMPENSATION THEREUNDER. UPON THAT PREMISE THE EMPLOYEE WHOSE REGULARLY SCHEDULED WORKWEEK IS COMPRISED OF THREE 12-HOUR DAYS AND ONE 10-HOUR DAY, A TOTAL OF 46 HOURS PER WEEK, WOULD BE ENTITLED TO COMPENSATION AT TIME AND ONE- HALF FOR THE 4 HOURS OVERTIME WORK IN EXCESS OF 8 HOURS PER DAY ON THE 12- HOUR DAYS. HE WOULD BE ENTITLED TO 6 HOURS OVERTIME WORK IN EXCESS OF 40 HOURS PER WEEK ON THE 10-HOUR DAY. WE FIND NO BASIS IN THE LANGUAGE OF THE STATUTE OR IN ITS LEGISLATIVE HISTORY FOR PAYMENT OF A DOUBLE PREMIUM FOR THE 2 HOURS ON THE 4TH WORKDAY--- A TEN-HOUR DAY--- THAT EXCEEDS BOTH THE 8 HOURS PER DAY AND THE 40 HOURS PER WEEK.

4. ARE THE 8-HOUR DAY AND 40-HOUR WEEK DEFINED AS CALENDAR DAY (MIDNIGHT TO MIDNIGHT) AND CALENDAR WEEK (SUNDAY THROUGH SATURDAY), OR MAY ANY SEVEN -DAY PERIOD BE TREATED AS THE WEEK AND ANY 24-HOUR PERIOD AS THE DAY FOR ANY WAGE-BOARD EMPLOYEE?

SINCE WE UNDERSTAND THAT THE APPLICATION OF THE FOREGOING PROVISIONS GIVES RISE TO PROBLEMS INVOLVING EMPLOYEES WITH UNCOMMON TOURS OF DUTY THUS CREATING A NEED FOR FLEXIBILITY WE CONCLUDE THAT A 24-HOUR PERIOD MAY BE TREATED AS A "DAY" AND A CONSECUTIVE SEVEN-DAY PERIOD MAY BE TREATED AS A "WEEK" FOR SUCH EMPLOYEES. HOWEVER, WHEN ADMINISTRATIVELY FEASIBLE THE SUNDAY THROUGH SATURDAY WEEK AND THE MIDNIGHT TO MIDNIGHT DAY SHOULD BE USED.

5. SECTION 204 PROVIDES THAT THE NEW LAW, WHICH EXCEPT FOR SECTION 201 IS CONCERNED ENTIRELY WITH EMPLOYEES OF CONTRACTORS, SHALL TAKE EFFECT SIXTY DAYS AFTER ITS ENACTMENT (APPARENTLY OCTOBER 12, A FRIDAY). ONE AGENCY HAS ASKED THAT CLARIFICATION AS TO THE INTENT BE TAINED,"SINCE LAWS AFFECTING FEDERAL PAY NORMALLY ARE EFFECTIVE AT THE BEGINNING OF THE FIRST PAY PERIOD FOLLOWING THE SIXTIETH DAY AFTER ENACTMENT.' IS THE AMENDMENT REQUIRED TO BE APPLIED FROM THE FIRST MOMENT OF THE CALENDAR DAY OCTOBER 12?

THE LANGUAGE OF SECTION 204 OF THE ACT OF AUGUST 13, 1962, PUBLIC LAW 87- 581, 76 STAT. 360, PROVIDES THAT THE ACT "SHALL TAKE EFFECT SIXTY DAYS AFTER ITS ENACTMENT.' GENERALLY THE TERM ,AFTER" IS A TERM OF EXCLUSION SO THAT WHEN A PERIOD OF TIME IS TO BE RECKONED FROM A CERTAIN DAY, UNLESS THERE IS SOMETHING IN THE CONTEXT OR CIRCUMSTANCES TO INDICATE A DIFFERENT INTENTION, THE DAY FROM WHICH THE TIME IS TO BE RECKONED WILL BE EXCLUDED FROM THE COMPUTATION. 52 AM.JUR. 352. ALSO, SEE 21 COMP. GEN. 392, 398. UPON THAT BASIS, EXCLUDING THE DATE OF ENACTMENT, AUGUST 13, 1962, THE EFFECTIVE DATE WOULD BE 60 DAYS AFTER DATE OF ENACTMENT OR FROM THE FIRST MOMENT OF OCTOBER 13, 1962. IN THE ABSENCE OF LANGUAGE THEREIN MAKING THE ACT EFFECTIVE AT THE BEGINNING OF THE FIRST PAY PERIOD FOLLOWING THE SIXTIETH DAY AFTER ENACTMENT, PAYMENTS THEREUNDER MUST BE COMPUTED FROM OCTOBER 13, 1962.

6. THE EXCEPTION FROM THE 8-HOUR PROVISION SAYS: "* * * EMPLOYEES SUBJECT TO THIS SECTION WHO ARE REGULARLY REQUIRED TO REMAIN AT OR WITHIN THE CONFINES OF THEIR POST OF DUTY IN EXCESS OF 8 HOURS PER DAY IN A STANDBY OR ON-CALL STATUS SHALL BE PAID OVERTIME RATES ONLY FOR HOURS OF DUTY, EXCLUSIVE OF EATING AND SLEEPING TIME, IN EXCESS OF FORTY PER WEEK.'

(A). THE REFERENCE TO "ON-CALL STATUS" COMBINED WITH "REQUIRED TO REMAIN AT OR WITHIN THE CONFINES OF THEIR POST OF DUTY" HAS CAUSED SOME UNCERTAINTY. MAY AN AGENCY USE THE SAME STANDARD FOR THIS REQUIREMENT AS THAT WHICH APPEARS IN 5 CFR 25.253 (A) AND (B) WITH RESPECT TO THE REASONABLY COMPARABLE LANGUAGE OF SECTION 401 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS MENDED? MAY "A STANDBY OR ON CALL STATUS" BE CONSIDERED TO MEAN THE SAME AS "STANDBY STATUS" IN 5 CFR 25.253 (E/?

THE TERMS "ON-CALL" AND "STANDBY" WHEN READ IN CONJUNCTION WITH THE LANGUAGE "REQUIRED TO REMAIN AT OR WITHIN THE CONFINES OF THEIR POST OF DUTY" DOES NOT REASONABLY PERMIT A CONSTRUCTION WHICH WOULD PERMIT ANY DIFFERENCE IN THE APPLICATION OF SUCH TERMS. IN VIEW THEREOF, AND AS THE LANGUAGE OF SECTION 401, FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 926, IS COMPARABLE, BOTH PARTS OF THIS QUESTION ARE ANSWERED IN THE AFFIRMATIVE.

(B). DOES THE MINIMUM OVERTIME RATE OF TIME AND ONE-HALF APPLY TO STANDBY DUTY IN EXCESS OF FORTY HOURS PER WEEK, AS WELL AS TO ACTUAL WORK?

UNDER THE WORDING OF THE STATUTE THERE APPEARS NO ALTERNATIVE BUT TO TREAT STANDBY DUTY AND ACTUAL WORK THE SAME SO FAR AS OVERTIME RATES ARE CONCERNED. THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

(C). ARE THERE ANY STANDARD CRITERIA TO BE USED IN DETERMINING "SLEEPING AND EATING TIME" ? DOES THIS MEAN THE TIME REASONABLY DESIGNATED ADMINISTRATIVELY FOR NORMALLY UNINTERRUPTED SLEEPING AND EATING?

WE ARE NOT AWARE OF ANY STANDARD CRITERIA FOR DETERMINING "SLEEPING AND EATING TIME.' HOWEVER, YOUR ATTENTION IS DIRECTED TO ARMSTRONG, ET AL. V. UNITED STATES, 144 CT.CL. 659, AND AHEARN, ET AL. V. UNITED STATES, 142 CT.CL. 309, WHICH MAY BE HELPFUL IN THE MATTER. AS TO THE SECOND PART OF THE QUESTION, CF. FARLEY V. UNITED STATES, 131 CT.CL. 776 AND ENGLAND V. UNITED STATES, 133 CT.CL. 768, WHEREIN COMPENSATION WAS ALLOWED BECAUSE IT WAS DETERMINED SUBSTANTIAL LABOR WAS PERFORMED DURING THE TIME SET APART FOR SLEEPING AND EATING.

(D). SINCE THE EXCEPTION OF "EATING AND SLEEPING TIME" FROM PAYMENT APPEARS ONLY WITH REFERENCE TO REGULARLY REQUIRED STANDBY AND ON-CALL SERVICE "IN EXCESS OF EIGHT HOURS PER DAY," IT HAS BEEN SUGGESTED THAT BY IMPLICATION ALL STANDBY AND ON-CALL SERVICE (IN EXCESS OF 40 HOURS PER WEEK) ON DAYS OF EIGHT HOURS OR LESS (AS ON WEEKENDS) AND ALL OCCASIONAL OR IRREGULAR STANDBY AND ON-CALL SERVICE, INCLUDING EATING AND SLEEPING TIME, WOULD BE PAYABLE AT OVERTIME RATES. IS THIS CORRECT?

REGARDLESS OF ANY IMPLICATION TO THE CONTRARY IN THE PROVISIONS OF SECTION 401, COMPENSATION ORDINARILY IS NOT PAYABLE FOR "EATING AND SLEEPING TIME.' SEE THE COURT CASES PREVIOUSLY CITED. ALSO, SEE 40 COMP. GEN. 397. THE QUESTION IS ANSWERED ACCORDINGLY.

(E). IS ALL STANDBY OR ON-CALL DUTY, IN CASES WHERE SUCH DUTY IS NOT REGULARLY REQUIRED, PAYABLE AT THE OVERTIME RATE WHEN THE TOTAL DUTY EXCEEDS 8 HOURS PER DAY OR 40 HOURS PER WEEK?

THIS QUESTION IS TOO GENERAL TO PERMIT OF A CATEGORICAL ANSWER.

(F). IS THERE A LIMITATION ON THE MINIMUM AMOUNT OF TIME WHICH MAY BE TREATED AS TIME IN A STANDBY OR ON-CALL STATUS? WE ARE NOT AWARE OF ANY SUCH LIMITATION.

NOVEMBER 20, 1962:

WE REFER TO OUR DECISION OF OCTOBER 9, 1962, B-149986, 42 COMP. GEN. 195, TO YOU, CONCERNING THE QUESTIONS SUBMITTED TO OUR OFFICE FOR DECISION BY YOUR LETTER OF SEPTEMBER 26, 1962, RELATING TO PUBLIC LAW 87-581, 76 STAT. 360, 5 U.S.C. 673C.

QUESTION NO. 5 IN YOUR LETTER WAS AS FOLLOWS:

5. SECTION 204 PROVIDES THAT THE NEW LAW, WHICH EXCEPT FOR SECTION 201 IS CONCERNED ENTIRELY WITH EMPLOYEES OF CONTRACTORS, SHALL TAKE EFFECT SIXTY DAYS AFTER ITS ENACTMENT (APPARENTLY OCTOBER 12, A FRIDAY). ONE AGENCY HAS ASKED THAT CLARIFICATION AS TO THE INTENT BE OBTAINED, ,SINCE LAWS AFFECTING FEDERAL PAY NORMALLY ARE EFFECTIVE AT THE BEGINNING OF THE FIRST PAY PERIOD FOLLOWING THE SIXTIETH DAY AFTER ENACTMENT.' IS THE AMENDMENT REQUIRED TO BE APPLIED FROM THE FIRST MOMENT OF THE CALENDAR DAY OCTOBER 12? IN OUR REPLY, WE SAID THE EFFECTIVE DATE OF THE ACT WAS OCTOBER 13, 1962. AS A RESULT OF SUBSEQUENT CONSIDERATIONS IN THE MATTER, HOWEVER, WE NOW ARE OF THE OPINION THAT THE ACT REASONABLY MAY BE CONSIDERED AS BEING EFFECTIVE ON OCTOBER 12, 1962. OUR DECISION OF OCTOBER 9, 1962, B-149986, IS MODIFIED ACCORDINGLY.