B-163730, APR. 25, 1968

B-163730: Apr 25, 1968

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YOU POINT OUT THAT THE EMPLOYEE'S REGULARLY SCHEDULED WORKWEEK IS FOUR 10 -HOUR DAYS. THE EMPLOYEE WAS CALLED BACK TO WORK AT 8 P.M. THE QUESTIONS PRESENTED ARE AS FOLLOWS: "1. ARE THE HOURS WORKED BY MR. WHEREIN ONLY 32 OF THOSE HOURS ARE PAYABLE AT THE BASIC HOURLY RATE? 5 U.S.C. 5542 (A) READS. PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK * * " (B) (1) THEREOF READS. IN PART: "UNSCHEDULED OVERTIME WORK PERFORMED BY AN EMPLOYEE ON A DAY WHEN WORK WAS NOT SCHEDULED FOR HIM. OR FOR WHICH HE IS REQUIRED TO RETURN TO HIS PLACE OF EMPLOYMENT. IS DEEMED AT LEAST 2 HOURS IN DURATION * * *.'. WE WERE CONCERNED WITH THE NUMBER OF OVERTIME HOURS TO WHICH A WAGE BOARD EMPLOYEE WAS ENTITLED WHO REGULARLY WORKED 46 HOURS PER WEEK.

B-163730, APR. 25, 1968

TO MR. ROBERT J. SCHULLERY:

YOUR LETTER OF MARCH 4, 1968, REQUESTS OUR DECISION ON TWO QUESTIONS CONCERNING THE AMOUNT OF OVERTIME PAYABLE TO AN EMPLOYEE (MR. MAURICE S. KEENE) BASED UPON THE FACTS AND CIRCUMSTANCES HEREINAFTER SET FORTH SO THAT A PROPER VOUCHER MAY BE PREPARED FOR PAYMENT.

YOU POINT OUT THAT THE EMPLOYEE'S REGULARLY SCHEDULED WORKWEEK IS FOUR 10 -HOUR DAYS, 7 A.M. TO 5:30 P.M., MONDAY, TUESDAY, THURSDAY AND FRIDAY. FRIDAY, AFTER COMPLETING THE DAILY 10-HOUR TOUR, THE EMPLOYEE WAS CALLED BACK TO WORK AT 8 P.M. AND CONTINUED TO WORK UNTIL 3 A.M. SATURDAY. YOU REFER TO THE CALL-BACK OVERTIME PROVISIONS OF 5 U.S.C. 5542 (B) (1) AND THE FACT THAT THE AGENCY DEFINES "DAY" AS THE PERIOD FROM MIDNIGHT TO MIDNIGHT, THUS THE 7-HOUR PERIOD FALLS INTO 2 DAYS. THE QUESTIONS PRESENTED ARE AS FOLLOWS:

"1. ARE THE HOURS WORKED BY MR. KEENE, FROM MIDNIGHT TO 0300 HOURS ON SEPTEMBER 30, 1967, PROPERLY PAYABLE AT THE BASIC OR OVERTIME RATE?

"2. IF MR. KEENE HAD BEEN CALLED BACK TO HIS DUTY STATION AND WORKED FROM MIDNIGHT FRIDAY TO 0100 HOURS SATURDAY (ONE HOUR), WOULD HE BE ENTITLED TO RECEIVE 2 HOURS' PAY AT THE OVERTIME RATE, 2 HOURS AT THE BASIC RATE, OR 1 HOUR AT THE BASIC RATE? IN OTHER WORDS, DOES THE 2-HOUR PROVISION IN THE ACT FOR CALL-BACK OVERTIME APPLY IN A SITUATION WHERE AN EMPLOYEE HAS COMPLETED HIS ADMINISTRATIVE WORKWEEK OF 40 HOURS, WHEREIN ONLY 32 OF THOSE HOURS ARE PAYABLE AT THE BASIC HOURLY RATE?

5 U.S.C. 5542 (A) READS, IN PART, THAT:

"HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR * * * IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK * * "

(B) (1) THEREOF READS, IN PART:

"UNSCHEDULED OVERTIME WORK PERFORMED BY AN EMPLOYEE ON A DAY WHEN WORK WAS NOT SCHEDULED FOR HIM, OR FOR WHICH HE IS REQUIRED TO RETURN TO HIS PLACE OF EMPLOYMENT, IS DEEMED AT LEAST 2 HOURS IN DURATION * * *.'

IN OUR DECISION B-149986, OCTOBER 9, 1962 (42 COMP. GEN. 195) AS MODIFIED BY B-150265, DECEMBER 26, 1962 (ID. 329), WE WERE CONCERNED WITH THE NUMBER OF OVERTIME HOURS TO WHICH A WAGE BOARD EMPLOYEE WAS ENTITLED WHO REGULARLY WORKED 46 HOURS PER WEEK, I.E., THREE 12-HOUR DAYS AND ONE 10- HOUR DAY. IT WAS HELD THAT THE EMPLOYEE WAS ENTITLED TO THE GREATER NUMBER OF OVERTIME HOURS WHICH MIGHT RESULT FROM COMPUTING THE OVERTIME HOURS EITHER ON THE BASIS OF THOSE IN EXCESS OF 8 PER DAY OR ON THE BASIS OF HOURS IN EXCESS OF 40 PER WEEK AS AUTHORIZED BY 5 U.S.C. 673C (NOW 5 U.S.C. 5544). THE PROVISIONS OF 5 U.S.C. 5544 ARE COMPARABLE TO THOSE IN 5 U.S.C. 5542 (A). SECTION 550.111 (A) OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION AS CONTAINED IN FPM SUPP. 990-1 AND THE INSTRUCTIONS IN FPM LETTER 550-30, DATED JUNE 22, 1967, BOTH WERE ISSUED FOR THE PURPOSE OF APPLYING THE RULE IN THAT DECISION TO EMPLOYEES COVERED BY 5 U.S.C. 5542 (A).

IN COMPUTING THE OVERTIME COMPENSATION IN THIS CASE THE GREATEST BENEFIT IS DERIVED ON A DAILY BASIS. THE PROVISIONS OF 5 U.S.C. 5542 (B) (1) RELATING TO CALL-BACK TIME ARE NOT DEEMED PERTINENT HERE BECAUSE THE CALL BACK WAS FOR MORE THAN 2 HOURS. IN LINE WITH THE DAILY METHOD OF COMPUTATION OF OVERTIME HOURS AND AS THE AGENCY DEFINES "DAY" AS MIDNIGHT TO MIDNIGHT, WE ARE REQUIRED TO CONCLUDE THAT PAYMENT FOR THE 3 HOURS WORKED FROM MIDNIGHT TO 3 A.M., SATURDAY (A SEPARATE DAY), CAN ONLY BE MADE AT THE BASIC RATE. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

IN ANSWER TO YOUR SECOND QUESTION, OUR VIEW IS THAT CONSISTENT WITH THE GREATEST BENEFIT RULE REFERRED TO IN THE ANSWER TO QUESTION 1, MR. KEENE WOULD BE ENTITLED TO COMPENSATION FOR ONLY ONE HOUR AT HIS BASIC RATE.

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