B-198260,(MRV),L/M, JUN 25, 1980

B-198260,(MRV),L/M: Jun 25, 1980

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UNITED STATES SENATOR: THIS IS IN RESPONSE TO YOUR LETTER OF MARCH 14. WE HELD THAT EMPLOYEES WHO WORK DURING A SCHEDULED NIGHT TOUR WITHIN THE SAME OFFICE OR UNIT AS WELL AS THOSE WHO HABITUALLY AND RECURRENTLY PERFORM OVERTIME WORK AT NIGHT DUE TO THE NATURE OF THEIR DUTIES ARE ENTITLED TO NIGHT DIFFERENTIAL. WE HELD THAT EMPLOYEES ARE ENTITLED TO NIGHT DIFFERENTIAL FOR "REGULARLY SCHEDULED" OVERTIME WORK AT NIGHT WHERE IT IS AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. CURTIS IS NOT SUFFICIENT FOR US TO DETERMINE WHETHER HIS SITUATION FALLS WITHIN THE SCOPE OF OUR DECISION. C. 20548 IN THIS CONNECTION WE POINT OUT THAT ALL CLAIMS ARE SUBJECT TO A 6 YEAR STATUTE OF LIMITATIONS.

B-198260,(MRV),L/M, JUN 25, 1980

OFFICE OF GENERAL COUNSEL

HARRISON SCHMITT, UNITED STATES SENATOR:

THIS IS IN RESPONSE TO YOUR LETTER OF MARCH 14, 1980, ON BEHALF OF MR. MONROE A. CURTIS, A RANGE CONTROLLER AT THE WHITE SANDS MISSILE RANGE, CONCERNING HIS ENTITLEMENT TO NIGHT DIFFERENTIAL AND OVERTIME COMPENSATION.

BASED UPON THE INFORMATION PROVIDED BY MR. CURTIS, IT APPEARS THAT HE HAS BEEN DENIED PAYMENT OF NIGHT DIFFERENTIAL UNLESS HE WORKED TWO OR MORE 8- HOUR SHIFTS WITHIN A 40-HOUR WEEK. CITING OUR DECISION B-193398, NOVEMBER 27, 1979 (59 COMP.GEN. 101), MR. CURTIS STATES HE MAY BE ENTITLED TO RETROACTIVE PAYMENTS OF NIGHT DIFFERENTIAL.

IN OUR DECISION B-193398, SUPRA, COPY ENCLOSED, WE CONSIDERED WHAT CONSTITUTES "REGULARLY SCHEDULED WORK" FOR THE PURPOSES OF THE PAYMENT OF NIGHT DIFFERENTIAL UNDER 5 U.S.C. SEC. 5545(A) (1976). WE HELD THAT EMPLOYEES WHO WORK DURING A SCHEDULED NIGHT TOUR WITHIN THE SAME OFFICE OR UNIT AS WELL AS THOSE WHO HABITUALLY AND RECURRENTLY PERFORM OVERTIME WORK AT NIGHT DUE TO THE NATURE OF THEIR DUTIES ARE ENTITLED TO NIGHT DIFFERENTIAL. IN ADDITION, WE HELD THAT EMPLOYEES ARE ENTITLED TO NIGHT DIFFERENTIAL FOR "REGULARLY SCHEDULED" OVERTIME WORK AT NIGHT WHERE IT IS AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. THE INFORMATION PROVIDED BY MR. CURTIS IS NOT SUFFICIENT FOR US TO DETERMINE WHETHER HIS SITUATION FALLS WITHIN THE SCOPE OF OUR DECISION. HOWEVER, IF AFTER STUDYING OUR DECISION, MR. CURTIS WISHES TO PURSUE HIS ENTITLEMENT TO NIGHT DIFFERENTIAL, HE MAY FILE A CLAIM AT THE FOLLOWING ADDRESS:

U. S. GENERAL ACCOUNTING OFFICE CLAIMS GROUP, ROOM 5451 FGMS WASHINGTON, D. C. 20548

IN THIS CONNECTION WE POINT OUT THAT ALL CLAIMS ARE SUBJECT TO A 6 YEAR STATUTE OF LIMITATIONS. SEE 31 U.S.C. SECS. 71A, 237 (1976).

A SECOND QUESTION RAISED BY MR. CURTIS INVOLVES THE DENIAL OF OVERTIME WHERE THE EMPLOYEE HAS HAD A PAID ABSENCE FOR A HOLIDAY OR ANNUAL OR SICK LEAVE DURING A WORKWEEK. IT APPEARS THAT MR. CURTIS IS A NON-EXEMPT EMPLOYEE UNDER THE FAIR LABOR STANDARDS ACT (FLSA), 29 U.S.C. SECS. 201 ET SEQ. IF THIS IS SO, HE IS ENTITLED TO OVERTIME COMPENSATION UNDER FLSA OR TITLE 5, U.S.C. WHICHEVER PROVIDES THE GREATER BENEFIT. FOR THE PURPOSES OF OVERTIME UNDER TITLE 5, UNITED STATES CODE, PAID ABSENCE FOR HOLIDAYS OR ANNUAL OR SICK LEAVE IS CONSIDERED EMPLOYMENT AND DOES NOT REDUCE AN EMPLOYEE'S ENTITLEMENT TO OVERTIME COMPENSATION FOR WORK IN EXCESS OF 8 HOURS IN A DAY OR 40 HOURS IN A WORKWEEK. 25 COMP.GEN. 254 (1945); 42 ID. 195 (1962). HOWEVER, FOR THE PURPOSES OF OVERTIME UNDER FLSA, PAID ABSENCES ARE NOT CONSIDERED "HOURS WORKED" IN DETERMINING WHETHER THE EMPLOYEE HAS WORKED MORE THAN 40 HOURS IN A WORKWEEK. FEDERAL PERSONNEL MANUAL LETTER 551-1, MAY 15, 1974, ATTACHMENT 4, COPY ENCLOSED. IF, AFTER STUDYING THIS INFORMATION, MR. CURTIS BELIEVES HE IS ENTITLED TO ADDITIONAL OVERTIME COMPENSATION, HE MAY FILE A CLAIM WITH OUR OFFICE AT THE ADDRESS NOTED ABOVE.

WE TRUST THE INFORMATION IS RESPONSIVE TO YOUR INQUIRY.