B-174388, FEB 28, 1972

B-174388, FEB 28, 1972

CIVILIAN EMPLOYEES - NIGHT AND SUNDAY DIFFERENTIAL - OVERTIME COMPENSATION - BARRING ACT CONCERNING THE PAYMENT OF NIGHT AND SUNDAY DIFFERENTIAL IN CONNECTION WITH OVERTIME WORK IN EXCESS OF THE 40-HOUR WORKWEEK AT THE DATA PROCESSING CENTER OF THE DEPARTMENT OF AGRICULTURE. SINCE THE CENTER IS OPERATED ON A 24-HOUR BASIS, OVERTIME WORK AT ANY TIME NECESSARILY FALLS WITHIN ONE OF THE THREE REGULARLY SCHEDULED TOURS WHICH NEED NOT BE THAT OF THE PARTICULAR EMPLOYEE. CONSEQUENTLY, OVERTIME PERFORMED BETWEEN 6 P.M. AND 6 A.M. IS PROPERLY DISTINGUISHED AS REGULARLY SCHEDULED WORK FOR WHICH NIGHT DIFFERENTIAL IS AUTHORIZED UNDER THE PROVISIONS OF 5 U.S.C. 5545(A). EMPLOYEES WHO WORK ADDITIONAL TIME ON SUNDAY BEYOND THEIR REGULAR 40-HOUR SHIFT, A PART OF WHICH INCLUDES SUNDAY, ARE NOT ENTITLED TO SUNDAY PREMIUM PAY FOR THE ADDITIONAL TIME, SINCE SUCH PAY IS PRECLUDED BY 5 U.S.C. 5546(A) FOR HOURS OF OVERTIME WORK. OF COURSE, SUCH EMPLOYEES WOULD STILL RECEIVE NIGHT AND SUNDAY DIFFERENTIAL COMPENSATION. FURTHER, IN THOSE SITUATIONS WHERE NIGHT OR SUNDAY OVERTIME IS PERFORMED OUTSIDE OF A REGULARLY SCHEDULED TOUR, IT WILL BE CONSTRUED AS "REGULARLY SCHEDULED OVERTIME," AS THAT TERM IS USED IN 5 U.S.C. 5545(C)(2), TO MEAN OVERTIME WORK WHICH IS DULY AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. FINALLY, IT SHOULD BE NOTED THAT 4 GAO MANUAL, SECTION 7.1, BARS CONSIDERATION OF ANY CLAIM SUBMITTED TO GAO AFTER TEN FULL YEARS FROM THE DATE IT FIRST ACCRUED. CLAIMS WHICH WILL SOON EXPIRE UNDER THIS STATUTORY LIMITATION SHOULD BE SUBMITTED TO THE GAO CLAIMS DIVISION IMMEDIATELY.

TO MR. SECRETARY:

THIS REFERS TO LETTER OF OCTOBER 21, 1971, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION, REQUESTING A DECISION AS TO THE PAYMENT OF NIGHT AND SUNDAY DIFFERENTIAL IN CONNECTION WITH OVERTIME WORK IN EXCESS OF THE 40 HOURS IN A WORKWEEK AT YOUR DATA PROCESSING CENTER UNDER THE FOLLOWING CIRCUMSTANCES.

IT IS STATED THAT THE COMPUTERS AT THE CENTER OPERATE 24 HOURS A DAY, NORMALLY SIX DAYS A WEEK. THREE WORK SHIFTS HAVE BEEN ESTABLISHED; SHIFT ONE WORKS 11:45 P.M. TO 8:15 A.M., SHIFT TWO WORKS 7:45 A.M. TO 4:30 P.M., AND SHIFT THREE WORKS 3:30 P.M. TO 12:15 A.M. OVERLAP OF THE SHIFTS IS DEEMED NECESSARY TO PROVIDE EXCHANGE OF INFORMATION BETWEEN THE INCOMING AND OUTGOING CREW. HALF OF THE EMPLOYEES WORK MONDAY THROUGH FRIDAY EACH WEEK AND THE OTHER HALF WORK TUESDAY THROUGH SATURDAY. AN EMPLOYEE IS NORMALLY ASSIGNED TO THE SAME SHIFT FOR A 4 WEEK PERIOD. IN A 12-WEEK PERIOD THE USUAL PATTERN SHOWS THE EMPLOYEE HAS COMPLETED THE CYCLE OF WORKING ALL THREE SHIFTS.

ALTHOUGH THE NUMBER OF EMPLOYEES WORKING WILL VARY, THE TOURS OF DUTY AND SHIFT SCHEDULES RESULT IN A LESSER NUMBER WORKING AN ASSIGNED SCHEDULE ON BOTH MONDAY AND SATURDAY OF EACH WORKWEEK. TO MAKE UP, SO FAR AS POSSIBLE, A FULL CREW FOR THE MONDAY OR SATURDAY OPERATIONS, EMPLOYEES ARE RECRUITED BY THE SHIFT SUPERVISORS FROM AMONG THE CREW MEMBERS OF THE SAME SHIFT BUT WHO HAVE AN ALTERNATE TOUR OF DUTY. THE EMPLOYEE MAY THUS KNOW FROM ONE DAY TO TWO WEEKS IN ADVANCE HE WILL BE WORKING OVERTIME AND WHEN THE OVERTIME WILL OCCUR.

THE TWO EXAMPLES OF TOURS OF DUTY, SHIFTS, AND OVERTIME WORKED GIVING RISE TO THE QUESTIONS SUBMITTED BY THE ASSISTANT SECRETARY FOR ADMINISTRATION READ AS FOLLOWS:

"IN PAY PERIOD 19, DONALD BROCKMAN, GS-7, WAS SCHEDULED FOR A MONDAY FRIDAY TOUR OF DUTY FROM 1530-0015 HOURS. HE WAS PAYROLLED FOR FIVE DAYS THE FIRST WEEK AT 2 1/2 HOURS EACH DAY REGULAR TIME AND 5 1/2 HOURS WITH NIGHT DIFFERENTIAL. ON THE SECOND SUNDAY OF THE PAY PERIOD HE WAS ON DUTY FOR 8 HOURS FROM 1530-2400 HOURS FOR WHICH HE WAS PAYROLLED OVERTIME OVER 40 HOURS. HE WAS PAYROLLED SIMILARLY FOR THE SECOND WEEK OF HIS REGULAR TOUR EXCEPT FOR SOME ANNUAL LEAVE. ON THE SECOND SATURDAY OF THE PAY PERIOD HE WAS ON DUTY FROM 1530-2400 HOURS FOR WHICH HE WAS PAYROLLED 8 HOURS OF OVERTIME OVER 40 HOURS, A TOTAL OF 16 HOURS OVERTIME FOR THE PAY PERIOD.

"ROBERT O. SIMMONS, GS-9, HAD A TOUR OF DUTY IN PAY PERIOD 19 OF TUESDAY THROUGH SATURDAY, 1530-0015 HOURS. HE WAS SIMILARLY PAYROLLED AS MR. BROCKMAN FOR REGULAR TIME AND NIGHT DIFFERENTIAL. HOWEVER, HE WORKED THE FIRST MONDAY OF THE PAY PERIOD FOR 5 HOURS FROM 1830-0015 FOR WHICH HE WAS PAYROLLED AS OVERTIME OVER 40 HOURS. NO OVERTIME WAS PERFORMED THE SECOND WEEK. HOWEVER, ON BOTH SATURDAYS OF THE PAY PERIOD HE RECEIVED SUNDAY DIFFERENTIAL FOR 2 1/2 HOURS AND SUNDAY DIFFERENTIAL WITH NIGHT DIFFERENTIAL FOR 5 1/2 HOURS. IT IS TO BE NOTED THAT BROCKMAN AND SIMMONS EACH WORKED 8 HOURS THE SECOND SATURDAY, ON THE SAME SHIFT, FOR WHICH BROCKMAN WAS PAYROLLED ONLY FOR OVERTIME.

"IN PAY PERIOD 20, THESE TWO MEN WERE ASSIGNED TO SHIFT ONE - 2345 0815 HOURS, BUT DAYS OF THEIR TOUR WERE REVERSED. ON THE FIRST MONDAY OF THE PAY PERIOD, BROCKMAN WAS RECRUITED TO WORK WITH THE CREW HAVING MONDAY AS A REGULAR WORKDAY. HE WAS ON DUTY FROM 2345-0815 FOR WHICH HE WAS PAYROLLED 8 HOURS OVERTIME OVER 40 HOURS. AT THE SAME TIME, HIS COUNTERPART SIMMONS, WORKING HIS REGULARLY ASSIGNED TOUR (M-F 2345 0815) WAS PAYROLLED 5 3/4 HOURS SUNDAY DIFFERENTIAL WITH NIGHT DIFFERENTIAL AND 2 1/4 HOURS SUNDAY DIFFERENTIAL FOR THIS FIRST DAY OF DUTY.

"BOTH MEN WORKED THE SECOND SUNDAY FROM 2345-0815 AND WERE PAID AT REGULAR OVERTIME OVER 40 HOURS. ON THE SECOND MONDAY OF THE PAY PERIOD, THE EXACT CIRCUMSTANCES OUTLINED IN THE PARAGRAPH IMMEDIATELY ABOVE RECURRED.

"IN PAY PERIOD 21, BROCKMAN AND SIMMONS WERE AGAIN ASSIGNED TO SHIFT ONE, BUT THE FIVE DAY TOUR WAS AGAIN REVERSED. DURING THIS PERIOD SIMMONS WORKED NO OVERTIME BUT WAS PAYROLLED 2 1/4 HOURS REGULAR TIME AND 5 3/4 HOURS NIGHT DIFFERENTIAL TUESDAY THROUGH SATURDAY OF EACH WEEK. BROCKMAN WORKED THE FIRST SUNDAY OF THE PAY PERIOD FROM 2345 TO 0815 HOURS FOR WHICH HE RECEIVED OVERTIME FOR OVER 40 HOURS. ON THE FIRST AND SECOND MONDAYS OF THIS PAY PERIOD HE WAS PAYROLLED FOR 5 3/4 HOURS OF SUNDAY DIFFERENTIAL WITH NIGHT DIFFERENTIAL AND 2 1/4 HOURS OF SUNDAY DIFFERENTIAL. ON THE FIRST SATURDAY OF THE PAY PERIOD, BROCKMAN WORKED WITH THE TUESDAY - SATURDAY GROUP FROM 2345-0815 HOURS FOR WHICH HE WAS PAYROLLED 8 HOURS OVERTIME OVER 40 HOURS."

IT IS STATED THAT MANAGEMENT AND SUPERVISORY PERSONNEL IN ORDER TO FACILITATE COMPUTER PROJECTS AND PROVIDE AS FULL A COMPLEMENT OF PERSONNEL AS POSSIBLE ON AN EMERGENCY SUNDAY SHIFT, OR ON MONDAYS OR SATURDAYS, WHICH ARE NONWORKDAYS FOR PART OF THE CREW MAKE IT POSSIBLE FOR EMPLOYEES TO VOLUNTEER THEIR SERVICES FOR WHICH THEY ARE PAID TIME AND ONE-HALF. ONE END OF THE WEEK, THE ONE EMPLOYEE, DEPENDING ON THE SHIFT, IS GETTING PREMIUM PAY, WHILE THE ONE WHO HAS AGREED TO AUGMENT THE ASSIGNED STAFF, RECEIVES ONLY OVERTIME PAY. AT THE OTHER END OF THE WEEK, THE SITUATION IS REVERSED.

EACH DIVISION CHIEF SUBMITS A REQUEST EACH THURSDAY TO THE DIRECTOR FOR AN AMOUNT OF OVERTIME TO BE APPROVED THE FOLLOWING WORKWEEK. WHEN REQUESTED OVERTIME IS APPROVED, IT IS KNOWN WHEN AND WHERE THE OVERTIME WILL BE REQUIRED, BUT IT IS NOT ALWAYS KNOWN WHICH EMPLOYEE WILL PERFORM THE OVERTIME. THE FOLLOWING QUESTIONS ARE SUBMITTED FOR A DECISION:

1. ONCE THE OVERTIME WORK SCHEDULE IS KNOWN AND THE EMPLOYEE MAKES HIMSELF AVAILABLE, IS WORK PERFORMED BETWEEN 6 P.M. AND 6 A.M. CONSIDERED REGULARLY SCHEDULED NIGHT WORK SO AS TO REQUIRE PAYMENT OF NIGHT DIFFERENTIAL AND OVERTIME?

2. WOULD THIS ALSO BE TRUE WHEN SUNDAY IS PART OF THE SHIFT, SO AS TO REQUIRE PAYMENT OF SUNDAY DIFFERENTIAL WITH NIGHT DIFFERENTIAL AND OVERTIME?

5 U.S.C. 5545(A) PROVIDES THAT ANY REGULARLY SCHEDULED WORK BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. SHALL BE CONSIDERED NIGHT WORK, AND THAT ANY EMPLOYEE PERFORMING SUCH WORK SHALL BE COMPENSATED FOR SUCH WORK AT HIS RATE OF BASIC COMPENSATION PLUS PREMIUM COMPENSATION AMOUNTING TO 10 PERCENTUM OF SUCH PAY. THE BASIC QUESTION TO BE DECIDED IS WHETHER THE ADDITIONAL OVERTIME WORK AT NIGHT OCCURRING IN THE SITUATIONS DESCRIBED ABOVE CONSTITUTES "REGULARLY SCHEDULED WORK" WITHIN THE MEANING OF THE SUBJECT NIGHT DIFFERENTIAL STATUTE.

SINCE THE LETTER OF OCTOBER 21, 1971, STATES THAT EACH 24 HOURS HAS BEEN DIVIDED INTO THREE REGULARLY SCHEDULED 8-HOUR TOURS OF DUTY, IT WOULD APPEAR THAT ANY OVERTIME WORKED BETWEEN 6 P.M. AND 6 A.M. MUST NECESSARILY FALL WITHIN A REGULARLY SCHEDULED TOUR OF DUTY WHICH NEED NOT BE THE SCHEDULED TOUR OF THE PARTICULAR EMPLOYEE. ACCORDINGLY, NIGHT DIFFERENTIAL IS PROPERLY PAYABLE FOR SUCH OVERTIME WORKED BETWEEN 6 P.M. AND 6 A.M. SEE 34 COMP. GEN. 621 (1955). YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

REGARDING EMPLOYEES WHOSE REGULAR SHIFT OF 40 HOURS, A PART OF WHICH INCLUDES SUNDAY (SUCH AS 3:30 P.M. SATURDAY TO 12:15 A.M. SUNDAY) AND WHO THEN WORK ADDITIONAL TIME ON SUNDAY, OUR VIEW IS THAT SUCH EMPLOYEES WOULD NOT BE ENTITLED TO SUNDAY PREMIUM PAY FOR THE ADDITIONAL TIME SINCE SUCH PAY IS PRECLUDED BY 5 U.S.C. 5546(A) FOR HOURS OF OVERTIME WORK. COURSE, THE EMPLOYEE WOULD RECEIVE SUNDAY DIFFERENTIAL FOR THE FULL 8 HOURS OF SUCH REGULAR SHIFT BEGINNING ON SATURDAY SINCE THE LAST 15 MINUTES FELL ON SUNDAY. NIGHT DIFFERENTIAL COMPENSATION WOULD BE PAYABLE ON THE SAME BASIS AS SET FORTH IN THE ANSWER TO THE FIRST QUESTION. YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY.

YOU ALSO ASK, IF THE ANSWERS TO THE QUESTIONS COVERED BY OUR DECISION ARE IN THE AFFIRMATIVE, WHAT REMEDY IS SUGGESTED FOR THE EMPLOYEES INVOLVED. IT HAS BEEN INFORMALLY ASCERTAINED FROM YOUR DEPARTMENT THAT WHAT IS MEANT BY THIS INQUIRY IS NOT A BUDGETARY PROBLEM BUT A MATTER OF PRESENTING THE CLAIMS SINCE SOME OF THE CLAIMS GO BACK MORE THAN 10 YEARS. IN THIS RESPECT YOUR ATTENTION IS INVITED TO 4 GAO MANUAL, SECTION 7.1, WHICH PROVIDES THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. CLAIMANTS SHOULD SUBMIT THEIR CLAIMS DIRECTLY TO THE CLAIMS DIVISION OF OUR OFFICE IF THE STATUTORY PERIOD OF LIMITATIONS WILL SOON EXPIRE. IN ORDER TO PROTECT THE INTEREST OF OTHER CLAIMANTS, CLAIMS RECEIVED BY AGENCIES AS TO WHICH THE RIGHT OF PAYMENT ACCRUED 8 YEARS OR MORE PRIOR TO THE DATE OF RECEIPT AND WHICH CANNOT PROMPTLY BE APPROVED AND PAID IN THE FULL AMOUNT CLAIMED SHOULD IMMEDIATELY BE REFERRED TO THE CLAIMS DIVISION OF OUR OFFICE. THESE CLAIMS WILL BE RECORDED IN THE GENERAL ACCOUNTING OFFICE, AFTER WHICH THEY WILL BE RETURNED TO YOUR OFFICE FOR PAYMENT, DENIAL, OR REFERRAL BACK TO OUR OFFICE FOR ADJUDICATION.

CONCERNING YOUR QUESTION AS TO WHAT CRITERIA YOUR AGENCY MAY ESTABLISH TO DELINEATE BETWEEN THE EMPLOYEE WHO PERFORMS NIGHT OR SUNDAY OVERTIME ON AN IRREGULAR UNSCHEDULED BASIS AND THE EMPLOYEE WHO WORKS MORE OFTEN ON "REGULARLY SCHEDULED WORK" BUT DOES NOT ALWAYS WORK ON AT LEAST ONE DAY OF THE TWO OR MORE WORKWEEKS, WE BELIEVE THE RULE SET FORTH IN THE ANSWER TO THE FIRST QUESTION WILL ORDINARILY CONTROL. HOWEVER, IN THOSE SITUATIONS IN WHICH THE NIGHT OR SUNDAY OVERTIME IS PERFORMED OUTSIDE OF A REGULAR SCHEDULED TOUR, YOUR ATTENTION IS INVITED TO 48 COMP. GEN. 334 (1968). THAT DECISION WE CONSTRUED THE TERM "REGULARLY SCHEDULED OVERTIME" AS USED IN 5 U.S.C. 5545(C)(2), TO MEAN OVERTIME WORK WHICH IS DULY AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. THIS CONSTRUCTION OF THE CITED TERM WAS SIMILAR TO OUR PRIOR DEFINITION OF "REGULARLY SCHEDULED WORK" APPEARING IN THE SAME STATUTE IN CONNECTION WITH NIGHT DIFFERENTIAL PAY.