B-159950, FEBRUARY 15, 1967, 46 COMP. GEN. 667

B-159950, FEBRUARY 15, 1967, 46 COMP. GEN. 667

COMPENSATION - WHEN ACTUALLY EMPLOYED, ETC., EMPLOYEES - OVERTIME - EIGHT V. FORTY HOURS OF WORK ALTHOUGH UNDER SECTION 404 (A) OF THE FEDERAL SALARY AND FRINGE BENEFITS ACT OF 1966, INTERMITTENT EMPLOYEES ARE ENTITLED TO OVERTIME COMPENSATION FOR WORK PERFORMED IN EXCESS OF 8 HOURS PER DAY, WITH THE EXCEPTION OF EXPERTS AND CONSULTANTS EMPLOYED PURSUANT TO 5 U.S.C. 3109, WHOSE SERVICES ARE PAYABLE AT THE PER DIEM RATE PRESCRIBED FOR THEIR EMPLOYMENT REGARDLESS OF HOURS WORKED, THE ACT DOES NOT EFFECT THE LONG-STANDING RULE THAT THE OVERTIME COMPENSATION AUTHORIZED BY SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, FOR WORK IN EXCESS OF 40 HOURS IN A WEEK IS LIMITED TO FULL-TIME EMPLOYEES WITH AN ESTABLISHED ADMINISTRATIVE WORKWEEK OF 40 HOURS. THEREFORE, INTERMITTENT EMPLOYEES WHO HAVE NO ADMINISTRATIVELY ESTABLISHED WORKWEEK OF 40 HOURS ARE NOT COVERED BY THE OVERTIME COMPENSATION PROVISION AUTHORIZING ADDITIONAL COMPENSATION FOR HOURS IN EXCESS OF 40 PER WEEK. 28 COMP. GEN. 328 AND 34 ID. 471, AFFIRMED.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, FEBRUARY 15, 1967:

THIS IS IN REPLY TO YOUR LETTER OF JANUARY 12, 1967, IN WHICH YOU REQUESTED A DECISION AS TO WHETHER INTERMITTENT EMPLOYEES ARE ENTITLED TO OVERTIME COMPENSATION FOR HOURS WORKED IN EXCESS OF 8 IN A DAY UNDER SECTION 404 (A) OF PUBLIC LAW 89-504, APPROVED JULY 18, 1966, 80 STAT. 297, WHICH AMENDED SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 911 (NOW 5 U.S.C. 5542).

YOUR REFER TO OUR DECISION OF OCTOBER 19, 1966, 46 COMP. GEN. 337, HOLDING THAT PART-TIME EMPLOYEES ARE ENTITLED TO OVERTIME FOR HOURS WORKED IN EXCESS OF 8 PER DAY UNDER THE ABOVE AMENDMENT, AND INDICATE THAT IT WOULD BE CONSISTENT TO ARRIVE AT THE SAME CONCLUSION FOR INTERMITTENT EMPLOYEES. HOWEVER, YOU POINT OUT THAT OUR DECISION IN 34 COMP. GEN. 471 HOLDS THAT INTERMITTENT EMPLOYEES (HAVING NO ADMINISTRATIVELY ESTABLISHED WORKWEEK OF 40 HOURS) ARE NOT COVERED BY THE THEN OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AUTHORIZING ADDITIONAL COMPENSATION FOR HOURS IN EXCESS OF 40 PER WEEK, AND THAT IT WOULD BE DIFFICULT TO JUSTIFY EXCLUDING INTERMITTENT EMPLOYEES FROM THE 40-HOUR PROVISION IF THEY ARE HELD TO BE INCLUDED IN THE 8-HOUR PROVISION.

SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 404 (A) OF THE FEDERAL SALARY AND FRINGE BENEFITS ACT OF 1966, PUBLIC LAW 89-504, APPROVED JULY 18, 1966, 80 STAT. 297, PROVIDES IN PERTINENT PART AS FOLLOWS:

ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK (OR, WITH THE EXCEPTION OF EMPLOYEES ENGAGED IN PROFESSIONAL OR TECHNICAL ENGINEERING OR SCIENTIFIC ACTIVITIES FOR WHOM THE FIRST FORTY HOURS OF DUTY IN AN ADMINISTRATIVE WORKWEEK IS THE BASIC WORKWEEK AND EMPLOYEES WHOSE BASIC COMPENSATION EXCEEDS THE MINIMUM RATE OF GRADE GS-10 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, FOR WHOM THE FIRST FORTY HOURS OF DUTY IN AN ADMINISTRATIVE WORKWEEK IS THE BASIC WORKWEEK, IN EXCESS OF EIGHT HOURS IN A DAY) PERFORMED BY OFFICERS AND EMPLOYEES TO WHOM THIS SUBCHAPTER APPLIES SHALL BE CONSIDERED TO BE OVERTIME WORK * * * (BRACKETS SUPPLIED TO INDICATE AMENDATORY LANGUAGE.)

THE PURPOSE OF THIS LEGISLATION IS EXPLAINED IN THE LEGISLATIVE HISTORY AS FOLLOWS:

SECTION 404 AUTHORIZES OVERTIME PAYMENT FOR WORK IN EXCESS OF 8 HOURS IN 1 DAY FOR CLASSIFIED EMPLOYEES WITH THE EXCEPTION OF CERTAIN ENGINEERING AND SCIENTIFIC EMPLOYEES. FEDERAL EMPLOYEES GET OVERTIME PAY FOR WORK IN EXCESS OF 40 HOURS IN A WEEK, BUT HERETOFORE THE LAW HAS NOT REQUIRED PAY FOR WORK IN EXCESS OF 8 HOURS IN A DAY. THIS PROVISION WILL REWARD SUCH SERVICE AND SERVE AS AN INCENTIVE TO AGENCY MANAGEMENT TO IMPROVE SCHEDULES TO AVOID OVERTIME WORK. S.REPT. NO. 1187, 89TH CONG., 2D SESS. 4.

WE AGREE THAT THE LANGUAGE OF THE AMENDMENT DOES NOT RESTRICT THE BENEFITS THEREOF TO FULL-TIME EMPLOYEES AND WE HAVE FOUND NOTHING IN THE LEGISLATIVE HISTORY OF THIS OR RELATED STATUTES WHICH WOULD WARRANT THE CONCLUSION THAT SUCH RESTRICTION WAS SO INTENDED. THEREFORE, OUR VIEW IS THAT UNDER SECTION 404 (A), ABOVE, INTERMITTENT EMPLOYEES ARE ENTITLED TO OVERTIME COMPENSATION FOR HOURS WORKED IN EXCESS OF 8 IN A DAY. HOWEVER, THIS CONCLUSION IS NOT TO BE UNDERSTOOD AS BEING APPLICABLE TO EXPERTS AND CONSULTANTS WHOSE SERVICES ARE PROCURED IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 3109, IT BEING NOTED THAT, GENERALLY, SUCH EXPERTS AND CONSULTANTS ARE ENTITLED TO THE PER DIEM RATE PRESCRIBED FOR THEIR EMPLOYMENT REGARDLESS OF THE TOTAL NUMBER OF HOURS WORKED. 28 COMP. GEN. 328.

OUR DECISION IN 34 COMP. GEN. 471 (ALSO SEE 28 ID. 328) WAS PREDICATED ON SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 303, 5 U.S.C. 6101 (A) (FORMERLY 5 U.S.C. 944 (A) (1) (, WHICH PROVIDES AS FOLLOWS:

IT SHALL BE THE DUTY OF THE HEADS OF THE SEVERAL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS AND AGENCIES IN THE EXECUTIVE BRANCH, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, AND THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, TO ESTABLISH AS OF THE EFFECTIVE DATE OF THIS ACT, FOR ALL FULL-TIME OFFICERS AND EMPLOYEES IN THEIR RESPECTIVE ORGANIZATIONS, IN THE DEPARTMENTAL AND THE FIELD SERVICES, A BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS, AND TO REQUIRE THAT THE HOURS OF WORK IN SUCH WORKWEEK BE PERFORMED WITHIN A PERIOD OF NOT MORE THAN SIX OF ANY SEVEN CONSECUTIVE DAYS.

IT WAS OUR VIEW THAT THE PROVISION IN SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, ABOVE, WHICH AT THAT TIME ONLY AUTHORIZED PAYMENT OF OVERTIME COMPENSATION FOR HOURS OF WORK IN EXCESS OF 40 IN AN ADMINISTRATIVE WORKWEEK HAD REFERENCE TO THE ADMINISTRATIVE WORKWEEK OF 40 HOURS REQUIRED TO BE ESTABLISHED FOR FULL-TIME OFFICERS AND EMPLOYEES BY SECTION 604 (A), QUOTED ABOVE, AND THUS OVERTIME COMPENSATION FOR WORK IN EXCESS OF 40 HOURS IN A WEEK WAS LIMITED TO FULL-TIME EMPLOYEES WITH AN ESTABLISHED ADMINISTRATIVE WORKWEEK OF 40 HOURS. THAT RULE HAS BEEN IN EFFECT FOR MANY YEARS AND EVEN THOUGH THE SUBJECT OF OVERTIME AND PREMIUM COMPENSATION HAS BEEN BEFORE THE CONGRESS ON SEVERAL OCCASIONS THERE HAS BEEN NO CHANGE (OR EVEN A PROPOSED CHANGE SO FAR AS WE ARE AWARE) IN THE LANGUAGE OF THE LAW REGARDING OVERTIME COMPENSATION FOR HOURS OF WORK IN EXCESS OF 40 IN AN ADMINISTRATIVE WORKWEEK. WE POINT OUT THAT THE AMENDMENT OF JULY 18, 1966, TO SECTION 201 DID NOT DISTURB THE LANGUAGE THEREIN PERTAINING TO OVERTIME COMPENSATION FOR HOURS IN EXCESS OF 40 PER WEEK. NEITHER DID SUCH AMENDMENT AFFECT THE WORDING OF SECTION 604 (A) OF THE 1945 ACT. UNDER SUCH CIRCUMSTANCES WE MUST AFFIRM OUR DECISION IN 28 COMP. GEN. 328 AND 34 ID. 471.

WE NOTE THAT YOU MENTION PART-TIME EMPLOYEES WITH A REGULAR WORKWEEK OF LESS THAN 40 HOURS AS BEING ENTITLED TO OVERTIME COMPENSATION FOR HOURS OF WORK IN EXCESS OF 40 IN A WEEK. IN THAT CONNECTION WE HAVE NOT OVERLOOKED THE ANSWER TO QUESTION 13 IN OFFICE DECISION OF JULY 28, 1945, 25 COMP. GEN. 121, AT PAGE 133, WHICH MIGHT LEND SUPPORT TO SUCH VIEW. ALSO, SEE THE ANSWER TO QUESTION 9 IN THE SAME DECISION AT PAGE 130 CONCERNING OVERTIME COMPENSATION TO "W.A.E.' (INTERMITTENT) EMPLOYEES. BOTH OF THOSE ANSWERS FAILED TO SPECIFY THAT OVERTIME COMPENSATION WAS NOT PAYABLE UNLESS A 40-HOUR TOUR OF DUTY FOR A PARTICULAR WEEK BE ESTABLISHED. HOWEVER, EVEN IF SUCH ANSWERS BE SUBJECT TO THE INTERPRETATION THAT OVERTIME COMPENSATION WAS PAYABLE TO PART-TIME AND INTERMITTENT EMPLOYEES REGARDLESS OF WHETHER A 40-HOUR WORKWEEK BE ESTABLISHED, WE BELIEVE THOSE ANSWERS WERE MODIFIED BY THE LATER DECISIONS MENTIONED HEREIN AS WELL AS 27 COMP. GEN. 776, WHICH ARE TO THE EFFECT THAT THE OVERTIME COMPENSATION FOR HOURS WORKED IN EXCESS OF 40 PER WEEK IS LIMITED TO FULL-TIME EMPLOYEES FOR WHOM A TOUR OF 40 HOURS IS ESTABLISHED IN THE ADMINISTRATIVE WORKWEEK.