B-157036, JUL. 22, 1965

B-157036: Jul 22, 1965

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WHO ARE NORMALLY ASSIGNED TO DUTY IN THE IMMEDIATE AREA. FOR THE PAST SEVERAL MONTHS THEY HAVE BEEN REQUIRED TO ASSEMBLE AT THE PROJECT HEADQUARTERS SUFFICIENTLY EARLY EACH WORKDAY TO CHECK OUT GOVERNMENT VEHICLES AND TRAVEL APPROXIMATELY 70 MILES TO A WORK SITE WHERE THE CONTRACTOR IS WORKING A FULL 8-HOUR CONSTRUCTION SHIFT. THE INSPECTORS ARE REQUIRED TO BE IN A DUTY STATUS FOR 8 HOURS AT THE WORK SITE. OR (2) WHEN THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING OR IS CARRIED OUT UNDER ARDUOUS CONDITIONS.'. THE QUESTION IS PRESENTED AS TO WHETHER IT IS PERMISSIBLE FOR THE DEPARTMENT TO OFFICIALLY EXTEND THE REGULARLY SCHEDULED TOUR OF DUTY OF THE EMPLOYEES IN QUESTION BEYOND THE NORMAL 8 HOURS A DAY FOR THE SOLE PURPOSE OF BRINGING THE TRAVEL TIME WITHIN THE PURVIEW OF SECTION 204.

B-157036, JUL. 22, 1965

TO THE SECRETARY OF THE INTERIOR:

ON JUNE 16, 1965, YOUR DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION REQUESTED OUR DECISION AS TO WHETHER CERTAIN EMPLOYEES OF THE BUREAU OF RECLAMATION MAY BE AUTHORIZED REGULARLY SCHEDULED OVERTIME UNDER THE FOLLOWING RELATED CIRCUMSTANCES (QUOTING FROM THE DEPUTY ASSISTANT SECRETARY'S LETTER).

"THE YUMA PROJECT OFFICE, BUREAU OF RECLAMATION, EMPLOYS CONSTRUCTION INSPECTORS SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, WHO ARE NORMALLY ASSIGNED TO DUTY IN THE IMMEDIATE AREA. HOWEVER, FOR THE PAST SEVERAL MONTHS THEY HAVE BEEN REQUIRED TO ASSEMBLE AT THE PROJECT HEADQUARTERS SUFFICIENTLY EARLY EACH WORKDAY TO CHECK OUT GOVERNMENT VEHICLES AND TRAVEL APPROXIMATELY 70 MILES TO A WORK SITE WHERE THE CONTRACTOR IS WORKING A FULL 8-HOUR CONSTRUCTION SHIFT. THEREFORE, THE INSPECTORS ARE REQUIRED TO BE IN A DUTY STATUS FOR 8 HOURS AT THE WORK SITE. AT THE CLOSE OF THE DAY, THE INSPECTORS TRAVEL ON THEIR OWN TIME BACK TO THEIR HEADQUARTERS. THE REMOTENESS OF THE WORK SITE AND LACK OF ACCOMMODATIONS MAKE DETAILS OR TRANSFERS INAPPROPRIATE.'

THE DEPUTY ASSISTANT SECRETARY REFERS TO SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (5 U.S.C. 912B), WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"FOR THE PURPOSE 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.'

IN VIEW OF THE ABOVE PROVISION OF LAW, THE QUESTION IS PRESENTED AS TO WHETHER IT IS PERMISSIBLE FOR THE DEPARTMENT TO OFFICIALLY EXTEND THE REGULARLY SCHEDULED TOUR OF DUTY OF THE EMPLOYEES IN QUESTION BEYOND THE NORMAL 8 HOURS A DAY FOR THE SOLE PURPOSE OF BRINGING THE TRAVEL TIME WITHIN THE PURVIEW OF SECTION 204, THUS PERMITTING PAYMENT THEREFOR AS REGULARLY SCHEDULED OVERTIME.

IN CONNECTION WITH SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS ADDED BY SECTION 205 (B) OF THE ACT OF SEPTEMBER 1, 1954, (PUBLIC LAW 763), 5 U.S.C. 912B, THE CONFERENCE REPORT (HOUSE REPORT NO. 2665) ON H.R. 2263, 83D CONGRESS, WHICH BECAME PUBLIC LAW 763, CONTAINS THE FOLLOWING STATEMENT ON PAGE 22:

"THE NEW SECTION 204 PLACES ON A STATUTORY BASIS THOSE PRINCIPLES NOW ESTABLISHED BY DECISIONS OF THE COMPTROLLER GENERAL WHICH RELATE TO TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION OF AN OFFICER OR EMPLOYEE. UNDER THE NEW SECTION 204 SUCH TIME IS TREATED AS HOURS OF EMPLOYMENT ONLY WHEN: (1) WITHIN THE REGULARLY SCHEDULED WORKWEEK, INCLUDING REGULARLY SCHEDULED OVERTIME, OF THE OFFICER OR EMPLOYEE, OR (2) THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING OR IS CARRIED OUT UNDER ARDUOUS CONDITIONS WHICH HAVE THE EFFECT OF MAKING SUCH TRAVEL INSEPARABLE FROM WORK.'

THE DECISIONS OF OUR OFFICE, BOTH PRIOR TO AND SUBSEQUENT TO THE ENACTMENT OF PUBLIC LAW 763, HAVE CONSISTENTLY HELD THAT TRAVEL TIME ALONE (WITHOUT PERFORMANCE OF ACTUAL DUTY) OUTSIDE THE REGULARLY ESTABLISHED HOURS OF WORK DOES NOT ENTITLE A PER ANNUM EMPLOYEE EITHER TO REGULAR COMPENSATION OR OVERTIME COMPENSATION FOR THE TIME SO SPENT. 40 COMP. GEN. 439; 37 ID. 276; 30 ID. 72; 28 ID. 547; 25 ID. 399. IN 31 COMP. GEN. 362, WE HELD THAT THE RULE IS APPLICABLE EVEN THOUGH THE ASSIGNED DUTIES ARE TO BE PERFORMED DURING NORMAL DUTY HOURS AND REQUIRE TRAVEL OUTSIDE THE BASIC WORKWEEK.

THE PRINCIPLE ENUNCIATED ABOVE HAS BEEN APPLIED EQUALLY AS WELL BY THE UNITED STATES COURT OF CLAIMS. IN AHEARN V. UNITED STATES, 142 CT.CL. 309 (1958), THE COURT OF CLAIMS DETERMINED THAT THE TRAVEL OF A GOVERNMENT EMPLOYEE TO HIS PERMANENT DUTY STATION VIA A GOVERNMENT OWNED BOAT WAS NOT TO BE CONSIDERED WORK FOR OVERTIME PURPOSES. SEE ALSO, BIGGS V. UNITED STATES, 152 CT.CL. 545 (1961).

IN THOSE CASES WHERE THE PAYMENT OF OVERTIME COMPENSATION FOR TRAVEL TIME HAS BEEN AUTHORIZED BY DECISIONS OF THIS OFFICE, THE CIRCUMSTANCES AND CONDITIONS OF THE TRAVEL WERE SO UNUSUAL AS TO WARRANT A CONCLUSION THAT SUCH TRAVEL WAS AN INHERENT PART OF AND INSEPARABLE FROM THE "WORK" OR ,EMPLOYMENT" WITHIN THE MEANING OF THE APPLICABLE OVERTIME STATUTES. COMP. GEN. 273; 41 ID. 2; 24 ID. 557.

AS THE SITUATION NOW STANDS, THE DAILY TRAVEL OF THE CONSTRUCTION INSPECTORS TO AND FROM THE CONTRACT SITE IS PERFORMED OUTSIDE OF THEIR REGULARLY SCHEDULED HOURS OF DUTY. YOUR DEPARTMENT PROPOSES TO BRING SUCH TRAVEL TIME WITHIN THE PURVIEW OF 5 U.S.C. 912B BY OFFICIALLY EXTENDING EACH WORKDAY TO INCLUDE REGULARLY SCHEDULED OVERTIME HOURS OF WORK.

AS NOTED ABOVE, SECTION 204 WAS ENACTED FOR THE PURPOSE OF PLACING ON A STATUTORY BASIS THOSE PRINCIPLES AS ESTABLISHED BY THE DECISIONS OF THIS OFFICE. IT HAS LONG BEEN THE VIEW OF THIS OFFICE THAT TRAVEL, SUCH AS THE TYPE INVOLVED IN THIS CASE, CANNOT BE MADE THE BASIS FOR THE PAYMENT OF OVERTIME COMPENSATION. THE REFERENCE IN THE STATUTE THAT TRAVEL TIME IN ITSELF MAY BE REGARDED AS HOURS OF EMPLOYMENT WITHIN "REGULARLY SCHEDULED OVERTIME HOURS" IS UNDERSTOOD TO HAVE REFERENCE TO TRAVEL WITHIN THE "OVERTIME HOURS" ESTABLISHED FOR "WORK" WITHOUT REGARD TO TRAVEL. THEREFORE, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.

UNDER THE PROVISIONS OF 5 U.S.C. 944 (2) WHICH RELATE TO THE ESTABLISHMENT BY THE HEADS OF THE SEVERAL DEPARTMENTS OF THE 40-HOUR BASIC WORKWEEK AND TOURS OF DUTY, HOWEVER, OUR VIEW IS THAT, IN THE EXERCISE OF YOUR DISCRETION AS PROVIDED IN THAT STATUTE, YOU COULD ESTABLISH A 40-HOUR TOUR OF DUTY FOR THE CONSTRUCTION INSPECTORS TO BEGIN AT THE TIME THEY REPORT TO HEADQUARTERS TO PICK UP THE GOVERNMENT CARS TO PROCEED TO THE WORK SITE. IF THIS BE DONE THEN THEY WOULD BE ENTITLED TO OVERTIME COMPENSATION FOR HOURS OF WORK IN EXCESS OF 40 PER WEEK COUNTING FROM THE TIME OF REPORTING TO HEADQUARTERS EACH MORNING. HOWEVER, WE DO NOT BELIEVE THAT THE AUTHORITY UNDER 5 U.S.C. 944 (2), WHICH IS CONCERNED ONLY WITH THE FIXING OF A DAILY TOUR OF DUTY WITHIN A 40-HOUR WORKWEEK, WOULD EXTEND TO SCHEDULING TRAVEL TIME AT THE END OF THAT DAY WHICH WOULD BE TANTAMOUNT TO OVERTIME WHEN THE WORKWEEK IS CONSIDERED AS A WHOLE.