B-169308, MAY 26, 1970

B-169308, MAY 26, 1970

COMPENSATION--OVERTIME--STANDBY, ETC; TIME--TWO-THIRDS RULE--EATING AND SLEEPING FIREFIGHTER ASSIGNED BASIC 72-HR. WEEK (WITH THREE 24-HR. TOURS), COMPENSATED UNDER 5 U.S.C. 5545 (C) (1), WHO WAS DIRECTED TO WORK 24 HRS. IN EXCESS OF BASIC 72 HRS; BUT WAS COMPENSATED UPON ADMINISTRATIVE CERTIFICATION FOR 12 HRS. ACTUALLY WORKED, IS ENTITLED TO COMPENSATION FOR OVERTIME SERVICE, LESS EATING AND SLEEPING TIME, SINCE OVERTIME DIRECTED WAS IRREGULAR AND UNSCHEDULED, THEREBY COMING WITHIN STATUTORY EXCEPTION PERMITTING ADDITIONAL OVERTIME COMPENSATION. BECAUSE CERTIFICATION FAILS TO INDICATE COMPENSATION PAID REPRESENTS 24 HRS. LESS EATING AND SLEEPING TIME, THIS MUST BE DETERMINED WITH DIFFERENCE PAID IF SUCH TIME WERE LESS THAN 12 HRS. SEE B-144047, NOV. 18, 1960.

TO MAJOR J. D. KELLY,:

YOUR LETTER OF DECEMBER 31, 1969, REQUESTS A DECISION AS TO THE PROPER AMOUNT OF OVERTIME COMPENSATION PAYABLE IN CONNECTION WITH A VOUCHER PRESENTED TO YOU BY A CERTIFYING OFFICER. THE VOUCHER WAS REFERRED TO US ON MARCH 9, 1970, BY THE ASSISTANT COMPTROLLER FOR ACCOUNTING AND FINANCE, DEPARTMENT OF THE AIR FORCE, DENVER, COLORADO.

THE FACTS AND CIRCUMSTANCES AS RELATED IN YOUR LETTER SHOW THAT THE EMPLOYEE INVOLVED, MR. JOE T. HARTLEY, GS-6, IS A FIREFIGHTER ASSIGNED TO A BASIC 72-HOUR WEEK (THREE 24-HOUR TOURS) AND RECEIVES PREMIUM PAY ON AN ANNUAL BASIS UNDER 5 U.S.C. 5545 (C) (1). MR. HARTLEY WAS ADMINISTRATIVELY DIRECTED TO WORK A 24-HOUR TOUR ON AUGUST 23, 1969, WHICH TOUR WAS IN EXCESS OF HIS BASIC 72-HOUR WORKWEEK. HE WAS ADMINISTRATIVELY PAID OVERTIME FOR 24 HOURS AND SUBSEQUENTLY COLLECTION WAS MADE FROM HIM FOR 12 HOURS BECAUSE THE ASSISTANT FIRE CHIEF CERTIFIED IN WRITING ON FEBRUARY 19, 1970, THAT MR. HARTLEY ACTUALLY WORKED 12 HOURS ON AUGUST 23, 1969. THE VOUCHER SUBMITTED HERE REPRESENTS THE 12 HOURS OVERTIME THAT WAS PREVIOUSLY COLLECTED FROM MR. HARTLEY.

5 U.S.C. 5545 (C) (1) READS, IN PERTINENT PART, AS FOLLOWS:

"AN EMPLOYEE IN A POSITION REQUIRING HIM REGULARLY TO REMAIN AT, OR WITHIN THE CONFINES OF, HIS STATION DURING LONGER THAN ORDINARY PERIODS OF DUTY, A SUBSTANTIAL PART OF WHICH CONSISTS OF REMAINING IN A STANDBY STATUS RATHER THAN PERFORMING WORK, SHALL RECEIVE PREMIUM PAY FOR THIS DUTY ON AN ANNUAL BASIS INSTEAD OF PREMIUM PAY PROVIDED BY OTHER PROVISIONS OF THIS SUBCHAPTER, EXCEPT FOR IRREGULAR, UNSCHEDULED OVERTIME DUTY IN EXCESS OF HIS REGULARLY SCHEDULED WEEKLY TOUR. * * *"

THE OVERTIME DIRECTED ON AUGUST 23, 1969, WAS IRREGULAR AND UNSCHEDULED AND COMES WITHIN THE EXCEPTION PERMITTING PAYMENT AS ADDITIONAL REGULAR OVERTIME COMPENSATION.

UNDER DATE OF NOVEMBER 18, 1960, B-144047, WE BROUGHT TO THE ATTENTION OF PAYROLL UNITS OF DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS INFORMATION CONCERNING INCONSISTENT METHODS BEING EMPLOYED IN THE COMPUTATION OF PREMIUM COMPENSATION PAID TO FIREFIGHTERS AND CERTAIN OTHER "STANDBY" EMPLOYEES FOR IRREGULAR, UNSCHEDULED OVERTIME DUTY IN EXCESS OF THEIR SCHEDULED TOURS OF DUTY. WE ENCLOSE A COPY THEREOF FOR YOUR INFORMATION. YOU WILL SEE THEREFROM THAT OVERTIME IS NOT PAYABLE FOR EATING AND SLEEPING TIME DURING SUCH PERIODS OF ASSIGNMENT OF DUTY BEYOND THE REGULARLY ESTABLISHED TOURS.

ALTHOUGH IT HAS BEEN CERTIFIED THAT MR. HARTLEY ACTUALLY WORKED 12 HOURS ON AUGUST 23, 1969, THERE IS NOTHING TO INDICATE THAT THIS REPRESENTS TIME ON TOUR (24 HOURS) LESS ACTUAL SLEEPING AND EATING TIME. IF IT IS DETERMINED THAT THE EATING SLEEPING TIME WAS LESS THAN 12 HOURS HE SHOULD BE PAID FOR THE DIFFERENCE. THE VOUCHER IS RETURNED FOR HANDLING ACCORDINGLY.