B-176027, AUG 8, 1972

B-176027, AUG 8, 1972

CIVILIAN EMPLOYEE - "WHEN-ACTUALLY-EMPLOYED" - OVERTIME DECISION ALLOWING CERTIFICATION OF A VOUCHER IN FAVOR OF ARCHIE H. LAWSON, A "WHEN-ACTUALLY-EMPLOYED" EMPLOYEE OF THE SOUTHWESTERN POWER ADMINISTRATION, IN THE AMOUNT OF $93.67, REPRESENTING COMPENSATION FOR OVERTIME WORK. THE FACT THAT MR. LAWSON IS A PART-TIME OR INTERMITTENT EMPLOYEE AND IS NOT SUBJECT TO THE GENERAL SCHEDULE DOES NOT PRECLUDE HIM FROM OVERTIME PAY IN EXCESS OF 8 HOURS IN A DAY OR IN EXCESS OF 40 HOURS IN A WORKWEEK. THE PURPOSE OF PUBLIC LAW 92-194 WAS TO EXTEND TO GENERAL SCHEDULE, PART- TIME AND INTERMITTENT EMPLOYEES THE SAME RIGHT TO OVERTIME COMPENSATION THAT WAS AVAILABLE TO EMPLOYEES WHOSE RATES OF PAY WERE NOT SUBJECT TO THE GENERAL SCHEDULE. SEE 43 COMP. GEN. 439 (1968).

TO MISS WINNIFRED L. PRYOR:

THIS REFERS TO YOUR LETTER OF MAY 17, 1972, REFERENCE SPA-AMF, REQUESTING AN ADVANCE DECISION ON THE PROPRIETY OF CERTIFYING FOR PAYMENT THE ENCLOSED VOUCHER IN FAVOR OF MR. ARCHIE H. LAWSON IN THE AMOUNT OF $93.67. THE VOUCHER REPRESENTS A CLAIM FOR 8 HOURS OVERTIME WORK PERFORMED BETWEEN 12 MIDNIGHT AND 8 A.M. ON APRIL 28, 1972, AND 8 HOURS PERFORMED BETWEEN 8 A.M. AND 4:30 P.M. ON APRIL 29, 1972.

MR. LAWSON BASES HIS CLAIM FOR OVERTIME ON SUBSECTION 2.5(C) OF ARTICLE II OF THE FIRST SUPPLEMENTARY AGREEMENT, AS AMENDED EFFECTIVE JUNE 28, 1970, TO THE BASIC LABOR AGREEMENT BETWEEN THE SOUTHWESTERN POWER ADMINISTRATION AND THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (IBEW). THE AGREEMENT CALLS FOR PAYMENT OF "TWO TIMES HIS BASIC WAGE RATE FOR EACH COMPENSABLE UNIT OF TIME WORKED OUTSIDE HIS SCHEDULED DUTY HOURS WHEN THE UNIT OF TIME WORKED IS WITHIN A PERIOD WHICH BEGINS AT 9 P.M. AND ENDS AT 8 A.M." MR. LAWSON ALSO CLAIMS PREMIUM PAY FOR OVERTIME STATUS (ONE AND ONE-HALF TIMES HIS BASIC HOURLY RATE) FOR THOSE HOURS WORKED IN EXCESS OF 40 HOURS IN A WEEK, OUTSIDE OF THE ABOVE 9 P.M. TO 8 A.M. DOUBLE TIME PERIOD.

MR. LAWSON IS A WHEN-ACTUALLY-EMPLOYED (WAE) EMPLOYEE WITH NO SCHEDULED TOUR OF DUTY OR HOURS OF WORK. HIS RATE OF PAY IS NOT ESTABLISHED UNDER THE GENERAL SCHEDULE, BUT THROUGH NEGOTIATIONS BETWEEN THE SOUTHWESTERN POWER ADMINISTRATION AND THE IBEW. AS TO EXCEPTION OF EMPLOYEES IN RECOGNIZED TRADES OR CRAFTS, ETC., FROM THE GENERAL SCHEDULE SEE 5 U.S.C. 5102(C)(7). SINCE MR. LAWSON IS NOT A GENERAL SCHEDULE EMPLOYEE YOU REQUEST OUR OPINION ON THE ENCLOSED VOUCHER. YOUR DOUBT IN THE MATTER ARISES IN VIEW OF THE PROVISIONS OF PUBLIC LAW 92-194, APPROVED DECEMBER 15, 1971, WHICH AMENDED 5 U.S.C. 5542(A) TO PROVIDE AUTHORITY FOR GENERAL SCHEDULE EMPLOYEES WITH PART TIME AND INTERMITTENT TOURS OF DUTY TO EARN OVERTIME PAY FOR WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK.

YOU POINT OUT IN YOUR LETTER THAT YOUR OVERTIME PAY POLICY FOR EMPLOYEES SUCH AS MR. LAWSON HAS BEEN TO FOLLOW THE REGULATIONS APPLICABLE TO GENERAL SCHEDULE PART-TIME AND INTERMITTENT EMPLOYEES. THIS IS FOR THE REASON THAT THE LABOR AGREEMENT, YOU SAY, DOES NOT SPECIFICALLY COVER THE SUBJECT OF OVERTIME PERTAINING TO WAE'S.

THE FACT THAT MR. LAWSON IS A PART-TIME OR INTERMITTENT EMPLOYEE AND IS NOT SUBJECT TO THE GENERAL SCHEDULE DOES NOT PRECLUDE HIM FROM OVERTIME PAY IN EXCESS OF 8 HOURS IN A DAY OR IN EXCESS OF 40 HOURS IN A WORKWEEK. THE PURPOSE OF PUBLIC LAW 92-194 WAS TO EXTEND TO GENERAL SCHEDULE, PART- TIME AND INTERMITTENT EMPLOYEES THE SAME RIGHT TO OVERTIME COMPENSATION THAT WAS AVAILABLE TO EMPLOYEES WHOSE RATES OF PAY WERE NOT SUBJECT TO THE GENERAL SCHEDULE. IN THIS CONNECTION SEE 48 COMP. GEN. 439 (1968) POINTING OUT THE REASONS PART-TIME AND INTERMITTENT GENERAL SCHEDULE (CLASSIFICATION ACT) EMPLOYEES WERE PRECLUDED FROM OVERTIME BENEFITS AVAILABLE TO PART-TIME AND INTERMITTENT WAGE BOARD EMPLOYEES.

IN VIEW OF THE FOREGOING THE VOUCHER IS RETURNED HEREWITH AND MAY BE CERTIFIED FOR PAYMENT IN THE AMOUNT OF $93.67 IF OTHERWISE PROPER. NOTE THE VOUCHER SEEMS TO BE STATED IN THE AMOUNT OF $9367 RATHER THAN $93.67.