B-152111, SEP. 17, 1963, 43 COMP. GEN. 273

B-152111: Sep 17, 1963

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AT WHICH TIME THE OFFICIALLY ORDERED DUTIES ARE CONSIDERED COMPLETED. ARE HOURS OF EMPLOYMENT UNDER 5 U.S.C. 912 (B) AND COMPENSABLE AS OVERTIME. COMPLETING THE REQUIRED REPORTS IS NOT MERELY INCIDENTAL TO THE PERSONAL TRANSPORTATION OF THE EMPLOYEE BACK TO HIS OFFICIAL STATION BUT IS AN ESSENTIAL PART OF HIS ASSIGNED DUTIES AS IN THE CASE OF A CHAUFFEUR. IS TO GUARD ALIEN DETAINEES TO INSURE THAT THEY REMAIN IN CUSTODY. 4-WHEEL DRIVE CARRYALLS WHICH ARE ESPECIALLY EQUIPPED WITH EXPANDED STEEL MESH OVER WINDOWS AND DOORS. THE VEHICLES ARE ALSO EQUIPPED WITH TWO-WAY RADIO COMMUNICATION FOR DIRECT CONTACT WITH THE HEADQUARTERS OFFICE. USUALLY THE ROUTING OF THE TRIP IS SUCH THAT THE ENTIRE DETAIL IS COMPLETED WITHIN THE NORMAL TOUR OF DUTY.

B-152111, SEP. 17, 1963, 43 COMP. GEN. 273

COMPENSATION - OVERTIME - TRAVEL TIME - INSEPARABLE FROM WORK THE TIME SPENT BY DETENTION OFFICERS OF THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE, WHO GUARD AND TRANSPORT IN SPECIALLY EQUIPPED GOVERNMENT VEHICLES ALIEN DETAINEES, TO RETURN THE VEHICLE TO THE GARAGE FACILITY, REFUEL AND TIDY IT, AND COMPLETE THE REPORTS PERTINENT TO THE TRIP, AT WHICH TIME THE OFFICIALLY ORDERED DUTIES ARE CONSIDERED COMPLETED, ARE HOURS OF EMPLOYMENT UNDER 5 U.S.C. 912 (B) AND COMPENSABLE AS OVERTIME, THE WORK STATUS OF EACH OFFICER CONTINUING THROUGH THE RETURN OF THE SPECIALLY EQUIPPED VEHICLE TO THE GARAGE, SERVICING IT, AND COMPLETING THE REQUIRED REPORTS IS NOT MERELY INCIDENTAL TO THE PERSONAL TRANSPORTATION OF THE EMPLOYEE BACK TO HIS OFFICIAL STATION BUT IS AN ESSENTIAL PART OF HIS ASSIGNED DUTIES AS IN THE CASE OF A CHAUFFEUR, BUS OPERATOR, OR TRUCK DRIVER.

TO THE ATTORNEY GENERAL, SEPTEMBER 17, 1963:

ON JULY 23, 1963, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL REQUESTED OUR DECISION PERTAINING TO THE ENTITLEMENT TO OVERTIME COMPENSATION OF CERTAIN EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE.

IT APPEARS THAT THE PRINCIPAL DUTY OF THESE EMPLOYEES, CLASSIFIED AS DETENTION OFFICERS, IS TO GUARD ALIEN DETAINEES TO INSURE THAT THEY REMAIN IN CUSTODY. THEY ALSO SECURE TRANSPORTATION OF SUCH DETAINEES TO AND FROM DETENTION CENTERS, AIRPORTS, BETWEEN OTHER SERVICE OPERATED FACILITIES, ETC. FOR SUCH PURPOSE THEY OPERATE BUSSES, TRUCKS, AND 4-WHEEL DRIVE CARRYALLS WHICH ARE ESPECIALLY EQUIPPED WITH EXPANDED STEEL MESH OVER WINDOWS AND DOORS, AND BETWEEN THE EMPLOYEE AND THE PASSENGERS FOR SECURITY REASONS. THE VEHICLES ARE ALSO EQUIPPED WITH TWO-WAY RADIO COMMUNICATION FOR DIRECT CONTACT WITH THE HEADQUARTERS OFFICE. THE RADIO SERVES A SECURITY PURPOSE AS WELL AS A MEANS OF REDIRECTING THE DETENTION OFFICERS TO NEW ASSIGNMENTS. ALSO, WE UNDERSTAND THAT TO QUALIFY FOR THE POSITION OF DETENTION OFFICER THE INDIVIDUAL NOT ONLY MUST HOLD AN APPROPRIATE STATE DRIVER'S LICENSE BUT ALSO MEET APPROPRIATE FEDERAL GOVERNMENT REQUIREMENTS FOR OPERATION OF GOVERNMENT MOTOR VEHICLES. USUALLY THE ROUTING OF THE TRIP IS SUCH THAT THE ENTIRE DETAIL IS COMPLETED WITHIN THE NORMAL TOUR OF DUTY. ON OCCASIONS, HOWEVER, THE OFFICERS ARE UNAVOIDABLY DELAYED AND ARE COMPELLED TO CONTINUE BEYOND THE NORMAL 8 HOURS. SUCH EXCESS TIME MAY BE FROM ONE-HALF TO ONE AND ONE-HALF HOURS, AND ON OFF DUTY DAYS IT MAY BE AS MUCH AS 7 HOURS. USUALLY A SMALL PORTION OF SUCH EXCESS TIME IS CONSUMED IN RETURNING THE GOVERNMENT VEHICLE TO THE GARAGE FACILITY, REFUELING IT, TIDYING IT UP, AND COMPLETING THE PROPER REPORTS AT WHICH TIME HIS OFFICIALLY ORDERED DUTIES ARE CONSIDERED TO BE COMPLETED. WE UNDERSTAND THAT THE ONLY DETENTION OFFICERS COVERED ARE THE OPERATORS OF THE GOVERNMENT-OWNED VEHICLES--- AS DISTINGUISHED FROM PASSENGERS.

IT IS POINTED OUT THAT NOT ONLY MUST THE EMPLOYEE RETURN THE VEHICLE TO THE GARAGE BUT MUST PERFORM OTHER CONNECTED DUTIES UPON HIS ARRIVAL THERE. IN SUPPORT OF THIS VIEW THAT OVERTIME COMPENSATION SHOULD BE ALLOWED, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL STATES:

AT THE TIME THIS OVERTIME BEGINS, THE OFFICER HAS IN HIS POSSESSION A GOVERNMENT VEHICLE WHICH HE HAS PROPERLY UTILIZED FOR OFFICIAL PURPOSES. HIS USE OF THIS VEHICLE IS SUBJECT TO THE RESTRICTIONS IN TITLE 5 U.S.C.A. 78 (C) (2), WHICH PROHIBITS ITS USE FOR OTHER THAN OFFICIAL PURPOSES. OFFICIAL PURPOSES IN THIS INSTANCE IS NOT LIMITED TO "OFFICIAL TRAVEL" AS SUCH, BUT ALSO EXTENDS, WE BELIEVE, TO "OFFICIAL EMPLOYMENT" UNTIL THE VEHICLE HAS BEEN PROPERLY TIDIED, REFUELED AND GARAGED, AFTER WHICH THE OFFICER MUST COMPLETE THOSE REPORTS NECESSARILY PERTINENT TO THE TRIP. THEN AND THEN ONLY, HAS HE COMPLETED HIS OFFICIALLY ORDERED DUTIES.

EFFORTS TO RATIONALIZE THE OFFICER'S RETURN TRIP TIME AS ANYTHING BUT HOURS OF EMPLOYMENT HAVE BEEN UNSUCCESSFULL. THE RETURN TIME IS CERTAINLY NOT VOLUNTARY, I.E., DONE OF HIS OWN FREE WILL, AS HE MUST RETURN THE VEHICLE TO THE GARAGE, REFUEL AND TIDY IT, AND MUST COMPLETE REQUISITE REPORTS, OR HE HAS NOT COMPLETED HIS ASSIGNED DUTIES. ACCORDINGLY, WE FEEL THESE OFFICERS ARE ,EMPLOYED" ON THEIR RETURN TRIPS TO THE SAME EXTENT AS ON THEIR OUTGOING TRIPS.

BASED UPON THESE FACTORS, IT IS OUR OPINION THAT THESE OFFICERS ARE PROPERLY PERFORMING ASSIGNED DUTIES ESSENTIAL TO THEIR EMPLOYMENT IN COMPLIANCE WITH LAW AND ADMINISTRATIVE REGULATION, AND THAT SUCH SERVICE IS PROPERLY COMPENSABLE AS OVERTIME. YOUR VIEW THEREOF IS RESPECTFULLY REQUESTED.

THE STATUTORY PROVISION GOVERNING THE PAYMENT OF TRAVEL TIME COMPENSATION IS SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS ADDED BY SECTION 205 (B) OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1110, 5 U.S.C. 912B. THAT SECTION READS AS FOLLOWS:

SEC. 204. FOR THE PURPOSES OF THIS ACT, 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.

THE VIEW EXPRESSED IN YOUR DEPARTMENT'S LETTER IS, IN EFFECT, THAT AN OFFICER'S WORK STATUS CONTINUES UNTIL HE RETURNS THE SPECIALLY EQUIPPED VEHICLE TO THE GARAGE, REFUELS IT AND TIDIES IT, AND THEREAFTER UNTIL HE COMPLETES THE REQUIRED REPORTS. THUS IT IS REASONED THAT RETURNING THE VEHICLE TO THE GARAGE IS NOT REGARDED AS MERELY INCIDENTAL TO THE EMPLOYEE'S PERSONAL TRANSPORTATION BACK TO HIS OFFICIAL STATION BUT IS CONSIDERED TO BE AN ESSENTIAL PART OF HIS ASSIGNED DUTIES AS IN THE CASE OF A CHAUFFEUR, BUS OPERATOR OR TRUCK DRIVER. (CF. DECISION OF DECEMBER 20, 1962, B-150225, AND DECISION OF JUNE 30, 1961, B-145972.) THEREFORE, IT IS SAID THAT THE TIME SO SPENT SHOULD BE REGARDED AS "HOURS OF EMPLOYMENT" WITHIN THE MEANING OF THE APPLICABLE STATUTORY OVERTIME PROVISIONS.

UPON THE BASIS OF THE FACTS AND CIRCUMSTANCES APPEARING, WE CONSIDER THAT YOUR DEPARTMENT'S VIEWS ARE CONSISTENT WITH THE CONTROLLING STATUTORY PROVISIONS QUOTED ABOVE. ACCORDINGLY, OVERTIME COMPENSATION, TO THE EXTENT OTHERWISE AUTHORIZED, PROPERLY MAY BE PAID FOR TIME NECESSARILY SPENT IN RETURNING THE SPECIALLY EQUIPPED VEHICLES TO GARAGES AND PERFORMANCE OF THE OTHER DUTIES OUTLINED IN YOUR LETTER.