B-153356, FEBRUARY 7, 1964, 43 COMP. GEN. 542

B-153356: Feb 7, 1964

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THAT THE LONG- ESTABLISHED DEFINITION OF OVERTIME AS WORK IN EXCESS OF 40 HOURS PER WEEK OR 8 HOURS PER DAY WAS NOT INTENDED. IS AS FOLLOWS: THAT THE SECRETARY OF AGRICULTURE IS AUTHORIZED TO PAY EMPLOYEES OF THE UNITED STATES DEPARTMENT OF AGRICULTURE PERFORMING INSPECTION OR QUARANTINE SERVICES RELATING TO IMPORTS INTO AND EXPORTS FROM THE UNITED STATES. OR HOLIDAY WORK PERFORMED BY THEM AT ANY PLACE WHERE SUCH INSPECTION AND QUARANTINE SERVICES ARE PERFORMED. TO ACCEPT FROM PERSONS FOR WHOM SUCH WORK IS PERFORMED REIMBURSEMENT FOR ANY SUMS PAID OUT BY HIM FOR SUCH WORK. THE WORD "OVERTIME" IS NOT DEFINED IN THE 1950 STATUTE. WHEN THE TERM IS USED IN FEDERAL STATUTES RELATING TO GOVERNMENT EMPLOYEES.

B-153356, FEBRUARY 7, 1964, 43 COMP. GEN. 542

COMPENSATION - OVERTIME - INSPECTIONAL SERVICE EMPLOYEES - EXCESS OF WORKWEEK REQUIREMENT WORK PERFORMED BY AGRICULTURAL INSPECTION AND QUARANTINE SERVICE EMPLOYEES ON SUNDAYS WHICH FALL WITHIN THEIR BASIC 40-HOUR WORKWEEK MAY NOT BE DEFINED AS OVERTIME WORK FOR THE PURPOSE OF PAYING THEM OVERTIME COMPENSATION IN THE ABSENCE OF ANY INDICATION IN THE ACT OF AUGUST 28, 1950, 5 U.S.C. 576, RELATING TO OVERTIME FOR SUCH SERVICES, THAT THE LONG- ESTABLISHED DEFINITION OF OVERTIME AS WORK IN EXCESS OF 40 HOURS PER WEEK OR 8 HOURS PER DAY WAS NOT INTENDED.

TO THE SECRETARY OF AGRICULTURE, FEBRUARY 7, 1964:

ON JANUARY 22, 1964, YOUR ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION CONCERNING YOUR AUTHORITY UNDER THE ACT OF AUGUST 28, 1950, 64 STAT. 561, 5 U.S.C. 576, TO DEFINE OVERTIME WORK AS "ANY WORK PERFORMED ON A SUNDAY EVEN THOUGH SUCH WORK MAY FALL WITHIN THE EMPLOYEE'S BASIC 40- HOUR WORKWEEK.'

THE ACT OF AUGUST 28, 1950, IS AS FOLLOWS:

THAT THE SECRETARY OF AGRICULTURE IS AUTHORIZED TO PAY EMPLOYEES OF THE UNITED STATES DEPARTMENT OF AGRICULTURE PERFORMING INSPECTION OR QUARANTINE SERVICES RELATING TO IMPORTS INTO AND EXPORTS FROM THE UNITED STATES, FOR ALL OVERTIME, NIGHT, OR HOLIDAY WORK PERFORMED BY THEM AT ANY PLACE WHERE SUCH INSPECTION AND QUARANTINE SERVICES ARE PERFORMED, AT SUCH RATES AS HE MAY DETERMINE, AND TO ACCEPT FROM PERSONS FOR WHOM SUCH WORK IS PERFORMED REIMBURSEMENT FOR ANY SUMS PAID OUT BY HIM FOR SUCH WORK.

THE WORD "OVERTIME" IS NOT DEFINED IN THE 1950 STATUTE, AND WHILE THAT TERM HAS NO UNIVERSALLY ACCEPTED MEANING, WHEN THE TERM IS USED IN FEDERAL STATUTES RELATING TO GOVERNMENT EMPLOYEES, IT GENERALLY REFERS TO TIME IN EXCESS OF A BASIC WORKDAY OR WORKWEEK. SEE SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, AS AMENDED BY SECTION 201 OF THE ACT OF AUGUST 13, 1962, PUBLIC LAW 87-581, 5 U.S.C. 673C, AND SECTIONS 201 AND 202 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 911, 912.

IN CASES WHERE CONGRESS HAS INTENDED THAT AN EMPLOYEE RECEIVE PREMIUM PAY FOR SUNDAY SERVICES IT HAS EXPRESSLY SO PROVIDED IN CONTROLLING STATUTES. SEE SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED, 19 U.S.C. 261 AND 267; SECTION 4 OF THE ACT OF JUNE 19, 1934, 48 STAT. 1066, AS AMENDED, 47 U.S.C. 154 (F) (3); AND SECTION 1 OF THE ACT OF MARCH 2, 1931, 46 STAT. 1467, AS AMENDED, 5 U.S.C. 342C.

NO SUCH PROVISION IS CONTAINED IN THE ACT OF AUGUST 28, 1950, RELATING TO PREMIUM PAY FOR SUNDAY WORK. MOREOVER, THE LEGISLATIVE HISTORY OF THE 1950 ACT DISCLOSES THAT ITS PRIMARY PURPOSE WAS TO PROVIDE AUTHORITY FOR THE PAYMENT OF OVERTIME COMPENSATION AT RATES PRESCRIBED BY THE DEPARTMENT FOR WORK OUTSIDE THEIR ESTABLISHED TOUR OF DUTY, PRESUMABLY HOURS IN EXCESS OF 40 HOURS PER WEEK OR 8 HOURS PER DAY, THE DEPARTMENT TO BE REIMBURSED THE AMOUNT PAID AS OVERTIME COMPENSATION BY THE IMPORTERS OR EXPORTERS CONCERNED. SEE 96 CONG.REC. 8014 AND 11047. SEE ALSO S.REPT.NO. 1944, JULY 11, 1950, ON S. 3698, AND H.REPT.NO. 2853, AUGUST 10, 1950, ON S. 3698. WE HAVE FOUND NO INDICATION IN THE LEGISLATIVE HISTORY OF THE 1950 STATUTE SUGGESTING THAT TIME WORKED ON A SUNDAY WITHIN AN EMPLOYEE'S BASIC WORKWEEK PROPERLY MAY BE REGARDED AS OVERTIME WORK.

IN VIEW OF THE FOREGOING CONSIDERATIONS AND THE LONG RECOGNIZED ADMINISTRATIVE PRACTICE OF PAYING OVERTIME COMPENSATION TO INSPECTORS AND PERSONS RENDERING QUARANTINE SERVICES ONLY FOR WORK IN EXCESS OF 8 HOURS A DAY OR 40 HOURS A WEEK, OUR OPINION IS THAT IT IS NOT WITHIN YOUR AUTHORITY UNDER THE 1950 STATUTE TO ISSUE A REGULATION PROVIDING THAT ALL WORK PERFORMED ON SUNDAYS BY EMPLOYEES ENGAGED IN INSPECTION OR QUARANTINE SERVICES CONSTITUTES OVERTIME WORK EVEN THOUGH IT MAY BE INCLUDED IN THE BASIC WORKWEEK OF THE EMPLOYEES INVOLVED. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.