B-169454, MAY 14, 1970, 49 COMP. GEN. 779

B-169454: May 14, 1970

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COMPENSATORY LEAVE ALTHOUGH GENERALLY THE COMPENSATORY TIME OFF FROM DUTY PURSUANT TO 5 U.S.C. 5543(A)(2) IN LIEU OF OVERTIME THAT IS GRANTED TO AN EMPLOYEE IN A TRAVEL STATUS IS REGARDED AS LEAVE OF ABSENCE WITHIN THE PURVIEW OF SECTION 6.3 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND REQUIRES THE SUSPENSION OF SUBSISTENCE ALLOWANCE DURING THE LEAVE OF ABSENCE. WHEN THE COMPENSATORY TIME IS GRANTED OR ORDERED IN THE INTEREST OF THE GOVERNMENT. A SUSPENSION OF PER DIEM IS NOT REQUIRED. 1970: THIS IS IN REFERENCE TO YOUR LETTER OF MARCH 30. TO AN EMPLOYEE TRAVELING ON OFFICIAL BUSINESS AND WHO IS ON COMPENSATORY TIME OFF GRANTED OR ORDERED IN THE INTEREST OF THE AGENCY. YOU STATE THAT YOU ARE AWARE OF THE DECISION OF THIS OFFICE.

B-169454, MAY 14, 1970, 49 COMP. GEN. 779

SUBSISTENCE -- PER DIEM -- COMPENSATORY LEAVE ALTHOUGH GENERALLY THE COMPENSATORY TIME OFF FROM DUTY PURSUANT TO 5 U.S.C. 5543(A)(2) IN LIEU OF OVERTIME THAT IS GRANTED TO AN EMPLOYEE IN A TRAVEL STATUS IS REGARDED AS LEAVE OF ABSENCE WITHIN THE PURVIEW OF SECTION 6.3 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND REQUIRES THE SUSPENSION OF SUBSISTENCE ALLOWANCE DURING THE LEAVE OF ABSENCE, WHEN THE COMPENSATORY TIME IS GRANTED OR ORDERED IN THE INTEREST OF THE GOVERNMENT, SUCH AS GRANTING COMPENSATORY TIME TO TECHNICAL PERSONNEL PERFORMING WORK ABOARD FAA AIRCRAFT AWAY FROM THEIR DUTY STATION TO COVER THE NORMAL DUTY HOURS INTERRUPTED BY CONTINGENCIES DURING WHICH THEY CANNOT BE ASSIGNED TO USEFUL WORK, A SUSPENSION OF PER DIEM IS NOT REQUIRED, THE "PRESCRIBED HOURS OF DUTY" ESSENTIAL TO THE APPLICATION OF SECTION 6.3 HAVING NO SIGNIFICANCE TO THE DUTY HOURS REQUIRED ON EXTENDED FLIGHT INSPECTION TRIPS.

TO THE ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, MAY 14, 1970:

THIS IS IN REFERENCE TO YOUR LETTER OF MARCH 30, 1970, REQUESTING A DECISION ON WHETHER, UNDER THE LIMITED CIRCUMSTANCES DESCRIBED THEREIN, PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE CAN BE AUTHORIZED, PURSUANT TO 5 U.S.C.A. 5702 AND PERTINENT REGULATIONS, TO AN EMPLOYEE TRAVELING ON OFFICIAL BUSINESS AND WHO IS ON COMPENSATORY TIME OFF GRANTED OR ORDERED IN THE INTEREST OF THE AGENCY.

YOU STATE THAT YOU ARE AWARE OF THE DECISION OF THIS OFFICE, 26 COMP. GEN. 130 (1946), WHICH HELD THAT COMPENSATORY TIME OFF FROM DUTY IN LIEU OF OVERTIME COMPENSATION GRANTED TO AN EMPLOYEE IN A TRAVEL STATUS IS TO BE REGARDED AS "LEAVE OF ABSENCE" WITHIN THE PURVIEW OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS (SGTR), REQUIRING THE SUSPENSION OF SUBSISTENCE ALLOWANCES DURING LEAVE OF ABSENCE. HOWEVER, YOU HAVE A QUESTION AS TO ITS APPLICABILITY TO SITUATIONS SUCH AS DESCRIBED IN YOUR LETTER WHERE THE COMPENSATORY TIME OFF IS GRANTED TO FACILITATE THE WORK OF THE AGENCY, AND RESULTS IN A MORE EFFICIENT AND ECONOMICAL AND SAFER OPERATION.

YOUR INQUIRY CONCERNS SITUATIONS INVOLVING FLIGHT STANDARDS TECHNICAL PERSONNEL OPERATING OR PERFORMING WORK ABOARD AN FAA AIRCRAFT AWAY FROM THEIR DUTY STATION FOR THE PURPOSE OF CHECKING FROM THE AIR THE CORRECT FUNCTIONING OF NAVIGATIONAL AIDS. IN THESE OPERATIONS, AS STATED, IT IS UNAVOIDABLE THAT FLYING IS AT TIMES INTERRUPTED DURING NORMAL DUTY HOURS BECAUSE OF SUCH CONTINGENCIES AS NECESSARY MAINTENANCE WORK ON THE AIRCRAFT, OR WEATHER CONDITIONS, OR LIMITATIONS ON CONTINUOUS FLIGHT TIME APPLICABLE TO FLIGHT CREWS IN THE INTEREST OF SAFETY AND, DURING THESE INTERRUPTIONS OF OPERATIONS, THE EMPLOYEES CANNOT BE ASSIGNED TO ANY USEFUL WORK.

THE FOLLOWING EXAMPLES OF TYPICAL SCHEDULES ARE SET FORTH IN YOUR LETTER:

(1) FLIGHT INSPECTION PERSONNEL STATIONED AT OKLAHOMA CITY AND WORKING ON AN 8:00 TO 4:30 P.M. SCHEDULE MAY BE REQUIRED TO PERFORM FLIGHT INSPECTION WORK ENROUTE TO THE AZORES. THEY TRAVEL ON A HIGHLY INSTRUMENTED KC-135 FLIGHT INSPECTION AIRCRAFT. HAVING REPORTED FOR DUTY AT 8:00 A.M. THEY LEAVE OKLAHOMA CITY ON THAT AIRCRAFT AT 9:00 A.M., WORKING ENROUTE, AND ARRIVE AT ATLANTIC CITY, N.J., AT 1:30 P.M. FOR NECESSARY SERVICING AND REFUELING OF THE AIRCRAFT UNDER SUPERVISION OF CREW MEMBERS, ETC. THEY TAKE OFF FROM ATLANTIC CITY AT 3:30 P.M. AND ARRIVE AT LAJES, AZORES, AT 10:00 P.M. THEY THEN SECURE THE AIRCRAFT, COMPLETE LOGS AND REPORTS, AND GO OFF DUTY AT MIDNIGHT, HAVING BEEN ON DUTY FOR 16 HOURS. MIDNIGHT CENTRAL STANDARD TIME IS 6:00 A.M. AZORES LOCAL TIME. IF LAJES MUST BE OVERFLOWN BECAUSE OF WEATHER OR SOME GROUND EMERGENCY CONDITION, THEY FLY ON TO MADRID, SPAIN, ARRIVING AT 1:00 A.M., AND GO OFF DUTY AT 3:00 A.M., WHICH IS 11:00 A.M. MADRID LOCAL TIME. IN THIS CASE THEY HAVE BEEN ON DUTY FOR 19 HOURS. IN EITHER CASE THE AIRCRAFT NEEDS SERVICING BEFORE TAKING OFF AGAIN; THE CREW NEEDS REST IN ORDER TO FLY SAFELY IN CONFORMITY WITH FAA REGULATIONS, AND IN ORDER TO PERFORM EFFICIENTLY THE TECHNICAL FLIGHT INSPECTION FUNCTIONS REQUIRED OF THEM. SINCE THEY ARE UNABLE TO WORK WHILE THE AIRCRAFT IS BEING SERVICED AND/OR THEY NEED REST, ALL THE PERSONNEL WOULD BE GIVEN COMPENSATORY TIME OFF FOR THE BALANCE OF THE WORKDAY, AND THEY WOULD RESUME FLIGHT INSPECTION WORK THE NEXT MORNING.

(2) IN OTHER INSTANCES THE FLIGHT INSPECTION CREW MAY BE REQUIRED TO PERFORM CONTINUOUSLY FOR LONG HOURS ABOARD THE SPECIALLY EQUIPPED AIRCRAFT BECAUSE UNANTICIPATED PROBLEMS ARE ENCOUNTERED IN TESTING OR ADJUSTING THE GROUND EQUIPMENT BEING CHECKED AT A PARTICULAR LOCATION. THE FLIGHT INSPECTION CREW MUST CONTINUE AT ITS WORK UNTIL THE JOB IS SATISFACTORILY COMPLETED, SINCE THE EQUIPMENT MUST FINALLY BE CHECKED OUT FOR THE HIGHEST DEGREE OF AVIATION SAFETY WITH THE LEAST POSSIBLE DELAY.

IT IS POINTED OUT THAT IN THESE SITUATIONS PERSONNEL WILL HAVE ACCUMULATED AMOUNTS OF IRREGULAR OVERTIME AND SINCE THEIR PAY IS USUALLY IN EXCESS OF THE MAXIMUM RATE OF BASIC PAY FOR GS-10, THEY CAN BE REQUIRED TO TAKE COMPENSATORY TIME OFF PURSUANT TO 5 U.S.C. 5543(A)(2). EMPLOYEES WHOSE PAY IS LESS THAN THAT RATE MAY CONSENT TO SUCH COMPENSATORY TIME OFF. YOU SAY THAT IT IS IN THE INTEREST OF THE AGENCY TO GRANT SUCH TIME OFF SO AS TO COVER NORMAL DUTY HOURS DURING THOSE INTERRUPTIONS OF THE FLIGHT. THIS COMPENSATES FOR THE OVERTIME IN A MANNER MOST ECONOMICAL AND SATISFACTORY TO THE GOVERNMENT. IT IS URGED, HOWEVER, THAT IT IS NOT EQUITABLE TO CUT OFF PER DIEM DURING PERIODS OF TIME OFF, WHEN THE EMPLOYEE IS DISTANT FROM HIS RESIDENCE AND DUTY STATION AND SUBJECT TO THE EXTRA COSTS WHICH PER DIEM NORMALLY IS INTENDED TO COVER. THE ALTERNATIVE IS TO RETAIN THE EMPLOYEES IN DUTY STATUS WHEREIN THERE WOULD BE NO QUESTION OF PER DIEM BEING ALLOWABLE AND OVERTIME WOULD BE COMPENSATED FOR IN MONEY.

ALTHOUGH WE HAVE HELD THAT COMPENSATORY TIME OFF IS TO BE TREATED LIKE OTHER LEAVE OF ABSENCE INSOFAR AS PER DIEM IN LIEU OF SUBSISTENCE PAYMENTS ARE CONCERNED, WE WOULD NOT REQUIRE FOR REASONS HEREINAFTER STATED THAT THE PROVISIONS OF SECTION 6.3 OF THE SGTR BE APPLIED TO THE SITUATION DESCRIBED IN YOUR LETTER.

SECTION 6.3, SUPRA, REQUIRES AN ADJUSTMENT OF PER DIEM IN LIEU OF SUBSISTENCE DURING PERIODS OF LEAVE. ESSENTIAL TO THE APPLICATION OF THIS SECTION IS A DETERMINATION OF WHETHER LEAVE BEGINS OR TERMINATES "WITHIN THE TRAVELER'S PRESCRIBED HOURS OF DUTY," OR, WHERE FRACTIONAL LEAVE OF ABSENCE WHOLLY WITHIN A DAY IS INVOLVED, WHETHER LEAVE IS LESS THAN OR EXCEEDS HALF OF THE "PRESCRIBED WORKING HOURS."

IN THE SITUATION EXPLAINED IN YOUR LETTER THE PRESCRIBED HOURS OF DUTY, I.E., 8 A.M. TO 4:30 P.M., WHICH ARE APPLICABLE TO THE EMPLOYEES AT THEIR OFFICIAL STATION LOSES ITS SIGNIFICANCE INSOFAR AS THE HOURS OF DUTY REQUIREMENTS ON EXTENDED FLIGHT INSPECTION TRIPS ARE CONCERNED. THEREFORE, COMPENSATORY TIME OFF GRANTED DURING PERIODS NORMALLY FALLING WITHIN AN EMPLOYEE'S PRESCRIBED HOURS OF DUTY, BUT NOT DURING PERIODS IN WHICH DUTY IS REQUIRED TO BE PERFORMED ON HIS PARTICULAR ASSIGNMENT WHILE IN A TRAVEL STATUS, SHOULD NOT ADVERSELY AFFECT AN EMPLOYEE'S ENTITLEMENT TO PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE. ACCORDINGLY, WE WOULD NOT IN THE CIRCUMSTANCES HERE CONSIDERED REQUIRE A SUSPENSION OF PER DIEM DURING PERIODS OF COMPENSATORY TIME OFF GRANTED TO FLIGHT INSPECTION PERSONNEL.