B-159597, AUG. 2, 1966

B-159597: Aug 2, 1966

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WE HAVE BEEN INSISTING ON EMPLOYEES ACCEPTING COMPENSATORY TIME IN LIEU OF OVERTIME PAY. OVERTIME COULD HAVE BEEN PAID THEM. "WE HAVE BEEN UNSUCCESSFUL IN RECRUITING REPLACEMENTS AND ARE IN NO POSITION TO BE ABLE TO GRANT THE COMPENSATORY TIME. RETROACTIVELY THE CONVERSION OF THE ACCUMULATED OVERTIME OF 136 HOURS FROM COMPENSATORY TO PAID OVERTIME AND SHALL REIMBURSE FOR THE FUTURE OVERTIME WHILE WE ARE SHORT OF STAFF.'. THAT THEIR SALARIES ARE IN EXCESS OF THE MAXIMUM SCHEDULED RATE FOR GRADE GS-9. THAT THE OVERTIME WORKED IS NOT REGULARLY SCHEDULED. 5 U.S.C. 912 (B) IN EFFECT AT THE TIME IS. WHOSE RATE OF BASIC COMPENSATION IS IN EXCESS OF THE MAXIMUM SCHEDULED RATE OF BASIC COMPENSATION PROVIDED FOR GRADE GS-9 IN THE CLASSIFICATION ACT OF 1949.

B-159597, AUG. 2, 1966

TO PRESIDENT AND CHAIRMAN, EXPORT-IMPORT BANK OF WASHINGTON:

WE REFER TO LETTER DATED JUNE 30, 1966, FROM THE TREASURER CONTROLLER OF YOUR OFFICE REQUESTING OUR DECISION CONCERNING THE ADMINISTRATIVE AUTHORITY TO CONVERT ACCUMULATED BALANCES OF COMPENSATORY TIME OFF TO THE CREDIT OF CERTAIN EMPLOYEES OF THE CASH CONTROL UNIT OF HIS OFFICE TO OVERTIME COMPENSATION. IN THIS CONNECTION THE LETTER FROM YOUR TREASURER- CONTROLLER SAYS:

"* * * IN ORDER TO CONSERVE FUNDS, WE HAVE BEEN INSISTING ON EMPLOYEES ACCEPTING COMPENSATORY TIME IN LIEU OF OVERTIME PAY. UNDER THE RULES OF THE AGENCY, OVERTIME COULD HAVE BEEN PAID THEM.

"WE HAVE BEEN UNSUCCESSFUL IN RECRUITING REPLACEMENTS AND ARE IN NO POSITION TO BE ABLE TO GRANT THE COMPENSATORY TIME. WE NOW WISH TO AUTHORIZE, RETROACTIVELY THE CONVERSION OF THE ACCUMULATED OVERTIME OF 136 HOURS FROM COMPENSATORY TO PAID OVERTIME AND SHALL REIMBURSE FOR THE FUTURE OVERTIME WHILE WE ARE SHORT OF STAFF.'

WE UNDERSTAND THAT THE EMPLOYEES TO WHOM THIS SUBMISSION APPLIES OCCUPIED POSITIONS SUBJECT TO THE CLASSIFICATION ACT; THAT THEIR SALARIES ARE IN EXCESS OF THE MAXIMUM SCHEDULED RATE FOR GRADE GS-9; AND THAT THE OVERTIME WORKED IS NOT REGULARLY SCHEDULED.

SECTION 202 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 912 (B) IN EFFECT AT THE TIME IS, IN PART, AS FOLLOWS:

"THE HEAD OF ANY DEPARTMENT * * * TO WHICH THIS SUBCHAPTER APPLIES * * * (2) MAY, AT HIS OWN DISCRETION, PROVIDE THAT ANY OFFICER OR EMPLOYEE, WHOSE RATE OF BASIC COMPENSATION IS IN EXCESS OF THE MAXIMUM SCHEDULED RATE OF BASIC COMPENSATION PROVIDED FOR GRADE GS-9 IN THE CLASSIFICATION ACT OF 1949, AS AMENDED, SHALL BE COMPENSATED FOR IRREGULAR OR OCCASIONAL OVERTIME WORK FOR WHICH COMPENSATION WOULD BE DUE UNDER THIS CHAPTER WITH AN EQUAL AMOUNT OF COMPENSATORY TIME OFF FROM HIS SCHEDULED TOUR OF DUTY IN LIEU OF SUCH COMPENSATION.'

UNDER THE QUOTED SECTION AN EMPLOYEE WHOSE RATE OF BASIC COMPENSATION IS IN EXCESS OF THE MAXIMUM SCHEDULED RATE OF GRADE GS-9 IS ENTITLED TO OVERTIME COMPENSATION FOR OCCASIONAL AND IRREGULAR WORK EXCEPT THAT IN LIEU THEREOF IT IS WITHIN THE ADMINISTRATIVE DISCRETION TO GRANT COMPENSATORY TIME OFF. HOWEVER, UNTIL SUCH COMPENSATORY TIME OFF IS IN FACT GRANTED--- OR IS TENDERED BY THE AGENCY AND REFUSED BY THE EMPLOYEE-- - THE OBLIGATION TO PAY OVERTIME COMPENSATION IS NOT EXTINGUISHED. THEREFORE, WE HAVE NO OBJECTION TO YOUR PAYING OVERTIME COMPENSATION TO THE EMPLOYEES IN QUESTION WITH AN APPROPRIATE REDUCTION IN THE COMPENSATORY TIME TO THEIR CREDIT. COMPARE 31 COMP. GEN. 245; 26 ID. 750; AND 25 ID. 62, 64.