B-181822, JAN 3, 1975

B-181822: Jan 3, 1975

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TWO GS-13 EMPLOYEES OF UNITED STATES INFORMATION AGENCY (USIA) ARE NOT ENTITLED TO OVERTIME PAY IN LIEU OF COMPENSATORY TIME FOR OVERTIME SCHEDULED TWICE A YEAR. SINCE AGENCY REGULATION ALLOWED ONLY COMPENSATORY TIME FOR IRREGULAR OR OCCASIONAL OVERTIME PERFORMED BY EMPLOYEES ABOVE GS- 10 LEVEL AND OVERTIME PERFORMED ONLY TWICE A YEAR IS OCCASIONAL UNDER 5 U.S.C. SEC. 5543 AND SINCE THE EMPLOYEES WERE EXEMPT FROM OVERTIME PROVISIONS OF THE FAIR LABOR STANDARDS AMENDMENTS OF 1974. ARE EMPLOYED BY THE USIA AND ARE REQUIRED TO PERFORM SATURDAY DUTY APPROXIMATELY TWICE A YEAR. SCHEDULES REQUIRING THE PERFORMANCE OF SUCH DUTY ARE ISSUED WELL IN ADVANCE OF ITS PERFORMANCE. EMPLOYEES SCHEDULED TO PERFORM SUCH DUTY MAY EXCHANGE THEIR DUTY OBLIGATIONS WITH OTHERS ON THE SCHEDULE SO LONG AS PROPER NOTICE IS GIVEN.

B-181822, JAN 3, 1975

TWO GS-13 EMPLOYEES OF UNITED STATES INFORMATION AGENCY (USIA) ARE NOT ENTITLED TO OVERTIME PAY IN LIEU OF COMPENSATORY TIME FOR OVERTIME SCHEDULED TWICE A YEAR, SINCE AGENCY REGULATION ALLOWED ONLY COMPENSATORY TIME FOR IRREGULAR OR OCCASIONAL OVERTIME PERFORMED BY EMPLOYEES ABOVE GS- 10 LEVEL AND OVERTIME PERFORMED ONLY TWICE A YEAR IS OCCASIONAL UNDER 5 U.S.C. SEC. 5543 AND SINCE THE EMPLOYEES WERE EXEMPT FROM OVERTIME PROVISIONS OF THE FAIR LABOR STANDARDS AMENDMENTS OF 1974.

EARL N. MITTLEMAN AND PAUL G. WARNER - OVERTIME COMPENSATION:

THIS MATTER CONCERNS A REQUEST FROM THE UNITED STATES INFORMATION AGENCY (USIA) FOR AN ADVANCE DECISION CONCERNING THE RIGHT OF MR. EARL N. MITTLEMAN AND MR. PAUL G. WARNER, EMPLOYEES OF THE PRESS DIVISION OF USIA'S PRESS AND PUBLICATIONS SERVICE, TO RECEIVE OVERTIME PAY FOR OVERTIME WORK SCHEDULED ON SATURDAYS.

THE RECORD SHOWS THAT MR. EARL N. MITTLEMAN, A GS-13, STEP 5, REPORTER, AND MR. PAUL G. WARNER, A GS-13, STEP 8, REPORTER, ARE EMPLOYED BY THE USIA AND ARE REQUIRED TO PERFORM SATURDAY DUTY APPROXIMATELY TWICE A YEAR. SCHEDULES REQUIRING THE PERFORMANCE OF SUCH DUTY ARE ISSUED WELL IN ADVANCE OF ITS PERFORMANCE. A SCHEDULE ISSUED JANUARY 11, 1974, LISTED MR. MITTLEMAN AND MR. WARNER AS BEING REQUIRED TO PERFORM SATURDAY DUTY ON JUNE 1, 1974, AND AUGUST 17, 1974, RESPECTIVELY. HOWEVER, EMPLOYEES SCHEDULED TO PERFORM SUCH DUTY MAY EXCHANGE THEIR DUTY OBLIGATIONS WITH OTHERS ON THE SCHEDULE SO LONG AS PROPER NOTICE IS GIVEN. MR. MITTLEMAN AND MR. WARNER EXCHANGED THEIR SCHEDULED SATURDAY DUTY DAYS WITH OTHER EMPLOYEES AND ULTIMATELY PERFORMED THEIR SATURDAY DUTY ON MAY 11, 1974, AND MAY 18, 1974, RESPECTIVELY. SUBSEQUENTLY, BOTH MR. MITTLEMAN AND MR. WARNER SUBMITTED CLAIMS FOR 8 HOURS OF OVERTIME COMPENSATION.

SECTION 5543(A)(2) OF TITLE 5, U.S.C. PROVIDES THAT:

"(A) 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 MOA V-A243.1G(4) OF USIA REGULATIONS STATE THAT:

"*** IT IS THE POLICY OF THE AGENCY TO GRANT COMPENSATORY TIME OFF FOR OFFICIALLY ORDERED OR APPROVED OVERTIME, IN LIEU OF OVERTIME PAY, TO ALL GS, GG, AND FOREIGN SERVICE EMPLOYEES WHOSE SALARY EXCEEDS THE MAXIMUM GS- 10 RATE. ***"

EXCEPTIONS TO THIS POLICY MAY BE MADE BUT ARE NOT RELEVANT HERE.

WE HAVE BEEN INFORMALLY ADVISED THAT BOTH MR. MITTLEMAN AND MR. WARNER ARE EXEMPT FROM THE OVERTIME PROVISIONS OF THE FAIR LABOR STANDARDS AMENDMENT OF 1974, SO THEY WOULD NOT APPLY IN THE PRESENT SITUATION. THE QUESTION POSED BY THE USIA, THEREFORE, IS WHETHER THE SATURDAY OVERTIME WORKED BY MR. MITTLEMAN AND MR. WARNER IS IRREGULAR OR OCCASIONAL OVERTIME WHICH WOULD PRECLUDE THEM FROM ENTITLEMENT TO RECEIVE OVERTIME COMPENSATION UNDER 5 U.S.C. 5542 AND REQUIRE THEM TO ACCEPT COMPENSATORY TIME INSTEAD UNDER 5 U.S.C. 5543. THE USIA CONSIDERS THAT THE OVERTIME WORK IN QUESTION IS IRREGULAR OR OCCASIONAL OVERTIME SINCE INDIVIDUAL EMPLOYEES ARE CALLED TO SERVE AT VARYING INTERVALS ONLY TWICE A YEAR.

IN OUR DECISION 53 COMP. GEN. 264 (1973), WE STATED THAT THE TERM "OCCASIONAL" MEANT "*** OCCURRING NOW AND THEN; OCCURRING AT IRREGULAR INTERVALS; INFREQUENT ***". THE WORD OCCASIONAL, THEREFORE, DOES NOT HAVE AN IDENTICAL MEANING TO IRREGULAR, BUT RATHER HAS A SEPARATE MEANING, THAT OF INFREQUENCY. IN 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". B-181211, NOVEMBER 6, 1974.

ACCORDINGLY, SINCE MR. MITTLEMAN AND MR. WARNER PERFORMED OCCASIONAL OVERTIME, THEY ARE NOT ENTITLED UNDER THE ABOVE AGENCY REGULATIONS TO OVERTIME PAY BUT MAY BE REQUIRED TO ACCEPT COMPENSATORY TIME.