B-180142, AUG 6, 1975

B-180142, AUG 6, 1975

FOREIGN SERVICE OFFICER WHOSE BASIC PAY EXCEEDED THE HIGHEST RATE OF GRADE GS-10, CLAIMS OVERTIME PAY IN LIEU OF COMPENSATORY TIME FOR 5 HOURS OF OVERTIME WORKED ON 2 SUCCESSIVE DAYS. 5 U.S.C. 5543(A) (1970) ALLOWS AN AN AGENCY TO GIVE COMPENSATORY TIME IN LIEU OF OVERTIME PAY TO AN EMPLOYEE WHO WORKS IRREGULAR OR OCCASIONAL OVERTIME AND WHOSE BASIC PAY EXCEEDS THE HIGHEST RATE OF GRADE GS-10. SINCE SUCH OVERTIME AS THIS WAS RARELY PERFORMED, IT WAS THUS OCCASIONAL, AND COMPENSATORY TIME IN LIEU OF OVERTIME COMPENSATION IS APPROPRIATE.

ALISON PALMER - OVERTIME COMPENSATION:

THIS DECISION WAS REQUESTED BY LETTER OF FEBRUARY 7, 1975, FROM MR. JOHN M. THOMAS, ASSISTANT SECRETARY FOR ADMINISTRATION, DEPARTMENT OF STATE, AS TO WHETHER A FOREIGN SERVICE OFFICER IS REQUIRED TO TAKE COMPENSATORY TIME OFF IN LIEU OF OVERTIME PAY FOR 5 HOURS OF OVERTIME WORK PERFORMED IN 1970. MR. THOMAS DID NOT NAME THE EMPLOYEE INVOLVED, BUT WE SUBSEQUENTLY RECEIVED A LETTER FROM MISS ALISON PALMER STATING THAT THE MATTER CONCERNED HER CASE. MISS PALMER ARGUES THAT THE OVERTIME WORKED WAS "REGULAR" AND THAT OVERTIME PAY SHOULD BE GRANTED.

THE MATTER WAS ORIGINALLY SUBMITTED TO A GRIEVANCE COMMITTEE WHICH ISSUED ITS REPORT ON JULY 2, 1974. THE FOLLOWING IS A SUMMARY OF THE UNDISPUTED FACTS FOUND BY THE GRIEVANCE COMMITTEE.

ON NOVEMBER 27, 1970, MISS PALMER, AN FSO-4 AT THE TIME, WAS ASSIGNED THE DUTIES OF EARLY MORNING BRIEFER IN THE BUREAU OF INTELLIGENCE AND RESEARCH (INR) FOR THE WEEK OF NOVEMBER 30 THROUGH DECEMBER 4, 1970, BECAUSE THE EMPLOYEE ORIGINALLY ASSIGNED THAT DUTY HAD TO BE OUT OF TOWN THAT WEEK. DURING THAT WEEK, HER NORMAL WORKDAY AS EARLY MORNING BRIEFER WAS AN 8- HOUR SHIFT BEGINNING AT 6 A.M. OR 6:15 A.M. ON 2 DAYS OF THAT WEEK, MISS PALMER'S IMMEDIATE SUPERVISOR INSTRUCTED HER TO ATTEND AN ORIENTATION PROGRAM FOR NEW INR EMPLOYEES. THESE ORIENTATION SESSIONS REQUIRED HER TO REMAIN ON DUTY THROUGH THE DEPARTMENT'S NORMAL WORKDAY WHICH WAS 8:45 A.M. THROUGH 5:30 P.M. ACCORDINGLY, ON EACH OF THOSE 2 DAYS MISS PALMER WORKED APPROXIMATELY 2-1/2 HOURS OF OVERTIME. INR REFUSED MISS PALMER'S REQUEST FOR THE 5 HOURS OF OVERTIME ON THE GROUNDS THAT THE OVERTIME WAS "IRREGULAR" AND THAT SINCE MISS PALMER WAS EARNING MORE THAN THE MAXIMUM RATE FOR A GS-10 EMPLOYEE, IT WAS WITHIN INR'S DISCRETION TO REFUSE TO GIVE HER MONETARY COMPENSATION AND TO GRANT HER COMPENSATORY TIME INSTEAD.

THE GRIEVANCE COMMITTEE FOUND THAT THE OVERTIME WAS "IRREGULAR OR OCCASIONAL" AND THEREFORE HELD THAT INR'S GRANT OF COMPENSATORY TIME WAS PROPER. THE GRIEVANCE COMMITTEE STATED ITS RATIONALE IN THIS MANNER:

"*** THE FACT THAT SHE (MISS PALMER) WAS AN EARLY MORNING BRIEFER ON A SCHEDULE DIFFERENT FROM THE DEPARTMENT'S NORMAL WORKDAY DID NOT IN ITSELF INVOLVE OVERTIME. THE OVERTIME WAS OCCASIONED BY ATTENDANCE AT ORIENTATION BRIEFINGS FOR NEW INR EMPLOYEES. THESE BRIEFINGS WERE SCHEDULED OCCASIONALLY AND AT GREAT INTERVALS OF TIME - APPARENTLY ONLY WHEN THERE WAS A SUFFICIENTLY LARGE NUMBER OF NEW EMPLOYEES IN THE BUREAU TO WARRANT THE TIME AND EFFORT OF ORGANIZING SUCH A BRIEFING. EVEN SO, THE BRIEFINGS WERE SCHEDULED DURING THE DEPARTMENT'S NORMAL WORKING HOURS. THE ONLY REASON THAT OVERTIME WAS REQUIRED FOR THE GRIEVANT'S ATTENDANCE WAS THAT SHE WAS AT THE TIME ON A DIFFERENT SCHEDULE FROM THE BUREAU AS A WHOLE. ATTENDANCE AT THIS KIND OF ORIENTATION BRIEFING WAS OBVIOUSLY NOT A REGULARLY RECURRING EVENT. ON THE CONTRARY, IT WAS, AS THE COMMITTEE SEES IT, A CLEAR EXAMPLE OF THE OCCASIONAL OR IRREGULAR."

MR. THOMAS HAS ASKED US TO RULE ON THE PROPRIETY OF THE GRIEVANCE COMMITTEE'S DECISION BEFORE ACTION IS TAKEN.

SECTION 5543(A) OF TITLE 5, U.S.C. (1970), PROVIDES IN PART THAT:

"THE HEAD OF AN AGENCY MAY -

"(2) PROVIDE THAT AN EMPLOYEE WHOSE RATE OF BASIC PAY IS IN EXCESS OF THE MAXIMUM RATE OF BASIC PAY FOR GS-10 SHALL BE GRANTED COMPENSATORY TIME OFF FROM HIS SCHEDULED TOUR OF DUTY EQUAL TO THE AMOUNT OF TIME SPENT IN IRREGULAR OR OCCASIONAL OVERTIME WORK INSTEAD OF BEING PAID FOR THAT WORK UNDER SECTION 5542 OF THIS TITLE."

SECTION 1233.2-2 OF 3 FOREIGN AFFAIRS MANUAL (FAM), SEPTEMBER 6, 1967, STATES:

"OVERTIME COMPENSATION TO EMPLOYEES EARNING OVER THE MAXIMUM SCHEDULED RATE FOR GS-10

"EXCEPT IN THE CASE OF WAGE BOARD EMPLOYEES AND EMPLOYEES ENTITLED TO PREMIUM COMPENSATION UNDER THE TERMS OF SECTION 1233.5, IT IS THE POLICY OF THE DEPARTMENT TO GRANT COMPENSATORY TIME OFF IN LIEU OF OVERTIME PAY TO EMPLOYEES WHOSE BASIC RATE OF COMPENSATION EXCEEDS THE MAXIMUM SCHEDULED RATE OF GS-10. THERE SHALL BE NO DEVIATION FROM THIS POLICY EXCEPT UNDER UNUSUAL CIRCUMSTANCES. AUTHORITY TO GRANT AN EXCEPTION TO THIS POLICY SHALL REST WITH THE APPROPRIATE EXECUTIVE DIRECTOR OR EQUIVALENT OFFICER, RATHER THAN WITH THE ALLOTTEE, PROVIDED FUNDS ARE AVAILABLE."

IT IS CLEAR FROM THE ABOVE THAT THE DEPARTMENT OF STATE MAY GRANT COMPENSATORY TIME OFF IN LIEU OF OVERTIME PAY TO AN EMPLOYEE WHO HAS PERFORMED IRREGULAR OR OCCASIONAL OVERTIME AND WHOSE RATE OF BASIC PAY EXCEEDS THE MAXIMUM RATE OF BASIC PAY FOR GRADE GS-10. THE ISSUE, THEREFORE, IS WHETHER THE 5 HOURS OF OVERTIME PERFORMED BY MISS PALMER ON 2 SUCCESSIVE DAYS IS IRREGULAR OR OCCASIONAL OVERTIME.

IN 53 COMP. GEN. 264 (1973), WE STATED THAT THE TERM "OCCASIONAL" MEANT "*** OCCURRING NOW AND THEN; OCCURRING AT IRREGULAR INTERVALS; INFREQUENT ***." ACCORDINGLY, IN B-181822, JANUARY 3, 1975, WE POINTED OUT THAT:

"*** THE WORD OCCASIONAL, THEREFORE, DOES NOT HAVE AN IDENTICAL MEANING TO IRREGULAR, BUT RATHER HAS A SEPARATE MEANING, THAT OF INFREQUENCY. OTHER WORDS, ALTHOUGH OVERTIME MAY NOT BE FOUND TO BE IRREGULAR, IT MAY BE FOUND TO BE OCCASIONAL. IN THE CASE AT HAND, IT IS CONSIDERED THAT OVERTIME PERFORMED ONLY TWICE A YEAR, EVEN THOUGH REGULARLY PERFORMED, IS INFREQUENT, OCCURRING NOW AND THEN, AND THUS 'OCCASIONAL.'"

IN MISS PALMER'S CASE THE 5 HOURS OF OVERTIME WORKED WAS CAUSED BY THE COMBINATION OF THE UNUSUAL CIRCUMSTANCE OF HER TAKING THE PLACE OF ANOTHER EMPLOYEE AS EARLY MORNING BRIEFER AT THE SAME TIME HER PRESENCE WAS REQUIRED AT THE INFREQUENTLY SCHEDULED ORIENTATION SESSION. THE DEPARTMENT OF STATE HAS INFORMALLY ADVISED US THAT SUCH AN OCCURRENCE IS VERY RARE AND WOULD NOT OCCUR MORE THAN ONCE A YEAR. THAT THIS EVENT WAS OCCASIONAL, EVEN THOUGH IT LED TO OVERTIME BEING PERFORMED ON 2 SUCCESSIVE DAYS, IS EVIDENT. THERE IS NO NECESSITY, THEREFORE, FOR DETERMINING WHETHER THE OVERTIME WAS ALSO IRREGULAR SINCE THE OCCASIONAL REQUIREMENT OF THE COMPENSATORY TIME STATUTE HAS BEEN MET. B-181211, NOVEMBER 6, 1974; B-181822, JANUARY 3, 1975, SUPRA.

ACCORDINGLY, THE DEPARTMENT OF STATE MAY PROPERLY REQUIRE MISS PALMER TO TAKE COMPENSATORY TIME IN LIEU OF OVERTIME PAY FOR THE 5 HOURS WORKED.