B-32073, FEBRUARY 15, 1943, 22 COMP. GEN. 807

B-32073: Feb 15, 1943

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THERE IS REQUIRED. THERE IS NO AUTHORITY UNDER THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22. TO AN EMPLOYEE WHO IS REQUIRED. A VOLUNTARY ARRANGEMENT WHEREBY AN EMPLOYEE OCCASIONALLY WORKS IN EXCESS OF 48 HOURS IN ONE WEEK BECAUSE OF EMERGENCY CONDITIONS AND IS PERMITTED COMPENSATORY TIME OFF FROM DUTY DURING ANOTHER WEEK IS NOT LEGALLY OBJECTIONABLE. 1943: I HAVE YOUR LETTER OF JANUARY 27. EXECUTIVE ORDER 9289 IN WHICH REGULATIONS GOVERNING OVERTIME COMPENSATION WERE CONTAINED. THE WORK WEEK IS OFFICIALLY EXTENDED TO COMPREHEND 48 HOURS. EMPLOYEES ARE TO BE COMPENSATED FOR ADDITIONAL OVERTIME WORK. D. THE SATURDAY HALF-HOLIDAY IS ABOLISHED. THE FOREGOING POINTS ARE THOSE WHICH WE CONSIDER IMPORTANT AS THEY APPLY TO EMPLOYEES OF THIS AGENCY.

B-32073, FEBRUARY 15, 1943, 22 COMP. GEN. 807

COMPENSATORY TIME OFF IN LIEU OF OVERTIME COMPENSATION UNDER ACT OF DECEMBER 22, 1942 NEITHER THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, NOR EXECUTIVE ORDER NO. 9289 ISSUED IN CONNECTION THEREWITH, EXTENDS EX PROPRIO VIGORE THE OFFICIAL HOURS OF DUTY OR REGULAR WORKWEEK OF FEDERAL EMPLOYEES TO 48 HOURS PER WEEK, AND, THEREFORE, IN ORDER TO INAUGURATE A 48-HOUR WORKWEEK, THERE IS REQUIRED, PURSUANT TO SECTION 1 OF THE EXECUTIVE ORDER, THE ISSUANCE BY THE HEAD OF THE AGENCY CONCERNED OF AN ADMINISTRATIVE ORDER ESTABLISHING THE WORKWEEK AS 48 HOURS. THERE IS NO AUTHORITY UNDER THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, OR EXECUTIVE ORDER NO. 9289 ISSUED IN CONNECTION THEREWITH, TO GRANT COMPENSATORY TIME OFF, IN LIEU OF PAYMENT OF THE OVERTIME COMPENSATION REQUIRED BY THE ACT AND EXECUTIVE ORDER TO BE PAID, TO AN EMPLOYEE WHO IS REQUIRED, PURSUANT TO SECTION 2 OF THE EXECUTIVE ORDER, TO WORK IN EXCESS OF AN ADMINISTRATIVELY ESTABLISHED 48-HOUR WORKWEEK; BUT A VOLUNTARY ARRANGEMENT WHEREBY AN EMPLOYEE OCCASIONALLY WORKS IN EXCESS OF 48 HOURS IN ONE WEEK BECAUSE OF EMERGENCY CONDITIONS AND IS PERMITTED COMPENSATORY TIME OFF FROM DUTY DURING ANOTHER WEEK IS NOT LEGALLY OBJECTIONABLE.

COMPTROLLER GENERAL WARREN TO DIRECTOR, OFFICE OF CIVILIAN DEFENSE, FEBRUARY 15, 1943:

I HAVE YOUR LETTER OF JANUARY 27, 1943, AS FOLLOWS:

WE WISH TO SOLICIT YOUR OPINION ON CERTAIN QUESTIONS ARISING FROM THE APPLICATION OF PROVISIONS OF SENATE JOINT RESOLUTION 170, 77TH CONGRESS, AND EXECUTIVE ORDER 9289 IN WHICH REGULATIONS GOVERNING OVERTIME COMPENSATION WERE CONTAINED. OUR UNDERSTANDING OF THE JOINT RESOLUTION AND THE EXECUTIVE ORDER MAY BE SUMMARIZED AS FOLLOWS:

A. THE WORK WEEK IS OFFICIALLY EXTENDED TO COMPREHEND 48 HOURS.

B. OFFICIAL HOURS FOR OVERTIME PURPOSES REPRESENT THE DIFFERENCE BETWEEN THE BASIC WORK WEEK OF 40 HOURS AND THE NEW WORK WEEK OF 48, OR EIGHT HOURS PER DAY.

C. IN ADDITION TO OFFICIAL OVERTIME HOURS, EMPLOYEES ARE TO BE COMPENSATED FOR ADDITIONAL OVERTIME WORK, PROVIDED SUCH ADDITIONAL OVERTIME HAS BEEN OFFICIALLY ORDERED BY THE HEAD OF THE DEPARTMENT OR OFFICER OR EMPLOYEE TO WHOM AUTHORITY TO REQUIRE ADDITIONAL WORK HAS BEEN DELEGATED.

D. THE SATURDAY HALF-HOLIDAY IS ABOLISHED.

THE FOREGOING POINTS ARE THOSE WHICH WE CONSIDER IMPORTANT AS THEY APPLY TO EMPLOYEES OF THIS AGENCY. IN ORDER TO ACQUAINT ALL EMPLOYEES WITH THE PERTINENT PROVISIONS OF THE LEGISLATION AND EXECUTIVE ORDER, WE PROPOSE TO ISSUE OFFICE PROCEDURES MEMORANDUM, ATTACHED HERETO AS EXHIBIT A. WE HAVE INTERPRETED SECTIONS 1 AND 5 OF EXECUTIVE ORDER 9289 AS PROVIDING, IN SUBSTANCE, THAT AN EMPLOYEE CAN ONLY BE REQUIRED TO WORK IN EXCESS OF THE OFFICIALLY ESTABLISHED HOURS OF DUTY BY ORDER OF THE HEAD OF THE DEPARTMENT OR HIS DELEGEE, AND THAT PAYMENT WOULD BE MADE FOR ALL SUCH DIRECTED AND AUTHORIZED INCIDENTAL OVERTIME. REALIZING THE BUDGETARY IMPLICATIONS OF THE MEASURE, WE PROPOSED TO IMPLEMENT A STRINGENT PROCEDURE IN ORDER THAT AUTHORIZATIONS FOR INCIDENTAL OVERTIME PAY MAY BE FULLY CONTROLLED. A COPY OF SUCH PROCEDURE IS ATTACHED HERETO AS EXHIBIT B.

IN THIS CONNECTION IT HAS BEEN URGED THAT COMPENSATORY LEAVE BE GRANTED IN LIEU OF COMPENSATION FOR AUTHORIZED OVERTIME WORKED IN EXCESS OF 48 HOURS PER WEEK. WITH RESPECT TO THIS PROCEDURE, WE WOULD ADVOCATE YOUR RULING ON THE FOLLOWING QUESTIONS:

1. BY THE TERMS OF SENATE JOINT RESOLUTION 170 AND EXECUTIVE ORDER 9289, IS ANY DISCRETION REPOSED IN DEPARTMENTS AND AGENCIES FALLING WITHIN THE PURVIEW OF SAID RESOLUTION AND EXECUTIVE ORDER WHEREBY EMPLOYEES MAY BE REQUIRED TO WORK IN EXCESS OF 48 HOURS PER WEEK WITHOUT RECEIVING OVERTIME COMPENSATION ON THE STRICT BASIS PRESCRIBED BY THE RESOLUTION AND EXECUTIVE ORDER?

2. IS THE ALLOWANCE OF COMPENSATORY LEAVE FOR OVERTIME WORK PERMISSIBLE:

A. AS A SUBSTITUTE FOR THE OVERTIME PAY RATES, OR

B. FOR ANY PURPOSE?

3. IF THE HOLDING IN QUESTION 2 IS IN THE NEGATIVE, WOULD THE DECISION BE ANY DIFFERENT BY VIRTUE OF THE FACT THAT THE OVERTIME FOR WHICH COMPENSATORY LEAVE WAS GRANTED MIGHT BE DESCRIBED AS "VOLUNTARY?

4. IN VIEW OF THE RELATIONSHIPS BETWEEN SUPERVISORS AND EMPLOYEES, WOULD A REQUEST UPON EMPLOYEES TO WORK OVERTIME, WITH THE ADVICE AND CONSENT OF THE HEAD OF THE AGENCY, IN EVENT THAT SUCH REQUEST WERE MADE FOR "VOLUNTARY" HELD AND SUPPORTED BY AN OFFER OF COMPENSATORY LEAVE, BE PERMISSIBLE UNDER THE TERMS OF THE JOINT RESOLUTION AND EXECUTIVE ORDER, SUPRA?

THE EXTENSION OF THE OFFICIAL WORK WEEK TO A 48-HOUR BASIS HAS MATERIALLY DECREASED THE NEED FOR INCIDENTAL OVERTIME. AT THE SAME TIME, HOWEVER, THERE ARE EMERGENCY CIRCUMSTANCES WHICH ON OCCASION UNDOUBTEDLY JUSTIFY REQUESTING ADDITIONAL OVERTIME WORK. WE ARE CONCERNED THAT OUR RESPONSIBILITY IN THIS MATTER AND THE RIGHTS OF EMPLOYEES BE CLEAR AND DEFINITE.

CERTAIN ESSENTIAL CONTROL MEASURES REFLECTED IN THE PROCEDURE SET FORTH IN EXHIBIT B ARE BEING WITHHELD PENDING YOUR RESPONSE TO THESE INQUIRIES. YOU WILL READILY APPRECIATE, MOREOVER, THE EXTENT TO WHICH THE MANAGEMENT POLICIES OF THIS AGENCY ARE INVOLVED IN THESE QUESTIONS. IT IS RESPECTFULLY REQUESTED THAT AN EARLY EXPRESSION ON THE POINTS BE GIVEN.

REFERRING TO PART "A" OF THE SUMMARY SET FORTH IN THE FIRST PARAGRAPH OF YOUR LETTER, NEITHER JOINT RESOLUTION 170 APPROVED DECEMBER 22, 1942, 56 STAT. 1068, NOR THE PRESIDENT'S REGULATIONS, EXECUTIVE ORDER 9289, DATED DECEMBER 26, 1942, EXTENDS EX PROPRIO VIGORE THE OFFICIAL HOURS OF DUTY OR REGULAR WORKWEEK OF FEDERAL EMPLOYEES TO 48 HOURS PER WEEK. IN ORDER TO HAVE A 48-HOUR WEEK THERE IS REQUIRED THE ISSUANCE BY THE HEAD OF THE AGENCY CONCERNED OF AN ADMINISTRATIVE ORDER ESTABLISHING THE WORKWEEK AS 48 HOURS, PURSUANT TO SECTION 1 OF THE PRESIDENT'S REGULATIONS, PROVIDING:

SECTION 1. HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES, OR SUCH OFFICERS OR EMPLOYEES AS THEY MAY DESIGNATE, SHALL ESTABLISH OFFICIAL HOURS OF DUTY AND A REGULAR WORKWEEK FOR EACH EMPLOYEE OR GROUP OF EMPLOYEES. EMPLOYEE SHALL BE REQUIRED TO WORK IN EXCESS OF THE OFFICIALLY ESTABLISHED HOURS OF DUTY EXCEPT UPON THE ORDER OF THE HEAD OF THE DEPARTMENT OR AGENCY OR OF SUCH OFFICER OR EMPLOYEE AS HAS BEEN DELEGATED SPECIFIC AUTHORITY TO REQUIRE SUCH ADDITIONAL WORK. HOWEVER, IT IS UNDERSTOOD FROM EXHIBIT A, ENTITLED," OFFICE PROCEDURES MEMORANDUM, WASHINGTON SERIES NO. 21, REGIONAL SERIES NO. 10," DATED JANUARY 4, 1943, ENCLOSED WITH YOUR LETTER, THAT SUCH AN ADMINISTRATIVE ORDER HAS BEEN ISSUED FOR THE OFFICE OF CIVILIAN DEFENSE.

IN TWO DECISIONS HERETOFORE RENDERED UNDER THE JOINT RESOLUTION OF DECEMBER 22, 1942, PUBLIC LAW 821, THIS OFFICE HAS RECOGNIZED THAT COMPENSATORY TIME OFF FROM DUTY OR "OVERTIME LEAVE" FOR INCIDENTAL OR EXCESS OVERTIME WORK BEYOND THE REGULARLY ESTABLISHED WORKWEEK MAY BE GRANTED WHEN ADMINISTRATIVELY DEEMED NECESSARY. SEE THE DECISION OF FEBRUARY 4, 1943, B-31948, 22 COMP. GEN. 745, TO THE SECRETARY OF THE INTERIOR, QUESTION AND ANSWER 5, AS FOLLOWS:

QUESTION:

5. TAKING AN EMPLOYEE OF THE LOCAL PARK SYSTEM AS AN ILLUSTRATION OF SIMILAR CONDITIONS ELSEWHERE IN THE DEPARTMENT, IT MAY BE DESIRABLE TO COMPENSATE AN EMPLOYEE BY GIVING HIM TIME OFF FOR OVERTIME PERFORMED. MAY THIS BE DONE, BEARING IN MIND THAT AN EMPLOYEE WOULD BE MORE VALUABLE TO THE SERVICE WITH REST AFTER LONG HOURS IN EMERGENCIES THAN TO HAVE HIM CONTINUE ON HIS REGULAR DUTY WITHOUT A DAY OF REST?

ANSWER:

5. IN THE CONSIDERATION OF THIS QUESTION IT IS ASSUMED (1) THAT THE INVOLVED EMPLOYEES ARE NOT OF THE CLASS COVERED BY SECTION 7 OF THE PRESIDENT'S REGULATIONS, INFRA, WHO ARE ENTITLED TO A 10 PERCENT INCREASE IN COMPENSATION REGARDLESS OF THE HOURS WORKED PER WEEK, AND (2) THAT THE PROPOSED COMPENSATORY TIME OFF FROM DUTY IS FOR EXTRA WORK IN EXCESS OF THE "OFFICIAL HOURS OF DUTY AND A REGULAR WORKWEEK" ADMINISTRATIVELY ESTABLISHED PURSUANT TO SECTION 1 OF THE PRESIDENT'S REGULATIONS, WHICH IS UNDERSTOOD TO BE 48 HOURS PER WEEK FOR THE DEPARTMENT OF THE INTERIOR. IF, DUE TO ADMINISTRATIVE NECESSITY, AN EMPLOYEE BE GRANTED TIME OFF FROM DUTY DURING THE ADMINISTRATIVELY ESTABLISHED WORKWEEK CORRESPONDING TO THE TIME IN ADDITION THERETO THAT HE WAS REQUIRED TO WORK, SUCH TIME OFF FROM DUTY CONSTITUTES A PART OF THE OFFICIALLY ESTABLISHED WORKWEEK THE SAME AS THOUGH THE EMPLOYEE WERE ON DUTY AND, ACCORDINGLY, HE WOULD NOT WORK IN EXCESS OF THE ADMINISTRATIVELY ESTABLISHED WORKWEEK. SEE QUESTION AND ANSWER 3, DECISION OF JANUARY 8, 1943, B-31488, TO THE POSTMASTER GENERAL, AND THE DECISIONS THEREIN CITED. SUBJECT TO THE FOREGOING, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

ALSO, IN DECISION OF FEBRUARY 4, 1943, B-32053, 22 COMP. GEN. 752, TO THE GOVERNOR OF THE PANAMA CANAL, IT WAS STATED:

* * * THIS OFFICE WILL NOT OBJECT TO APPLYING THE OVERTIME FORMULA TO FULL TIME EMPLOYEES WHO ARE PAID COMPENSATION ON A TIME BASIS AND WHO WORK REGULAR HOURS BASED ON AN AVERAGE NUMBER OF HOURS PER WEEK EXCEEDING 40, AND THERE MAY BE INCLUDED IN THE REGULAR WORKWEEK OF SUCH FULL TIME EMPLOYEES COMPENSATORY TIME OFF FROM DUTY DUE TO A REQUIREMENT THAT EMPLOYEES WORK LONG PERIODS AT A TIME AND BECAUSE OF THE NECESSITY TO ROTATE EMPLOYEES OVER A 24-HOUR PERIOD EVERY DAY OF THE YEAR. SEE 21 COMP. GEN. 853, 855, AND THE DECISIONS THEREIN CITED. IN OTHER WORDS, ANY REASONABLE ADMINISTRATIVE DETERMINATION UNDER THE REGULATIONS OF THE PRESIDENT THAT EMPLOYEES WORK 48 HOURS PER WEEK, OR ANY OTHER LENGTH OF OVERTIME INCLUDING ACTUAL DUTY AND AUTHORIZED COMPENSATORY TIME OFF FROM DUTY, WILL NOT BE QUESTIONED BY THIS OFFICE.

HOWEVER, IF WORK "IN EXCESS OF 48 HOURS PER WEEK" (QUOTING FROM QUESTION 1) BE REQUIRED, AS CONTEMPLATED BY SECTION 2 OF THE EXECUTIVE ORDER, THERE WOULD BE NO AUTHORITY TO GRANT COMPENSATORY TIME THEREFOR, AS IN SUCH CASES THE STATUTE AND THE REGULATIONS REQUIRE THAT OVERTIME COMPENSATION BE PAID THEREFOR. SEE DECISION OF FEBRUARY 9, 1943, B 32075, 22 COMP. GEN. 778, TO THE SECRETARY OF AGRICULTURE, AS TO THE BASIS ON WHICH TO COMPUTE COMPENSATION FOR OVERTIME REQUIRED TO BE WORKED IN EXCESS OF 48 HOURS PER WEEK. HOWEVER, IF, INSTEAD OF REQUIRING (IN ACCORDANCE WITH THE REGULATIONS) OVERTIME WORK IN ANY WEEK, IN EXCESS OF 48 HOURS (ESTABLISHED AS THE NUMBER OF HOURS FOR THE REGULAR WORKWEEK IN ACC WITH THE EXECUTIVE ORDER), THERE BE MERELY A VOLUNTARY ARRANGEMENT WHEREBY THE EMPLOYEES OCCASIONALLY WORK IN EXCESS OF 48 HOURS ONE WEEK BECAUSE OF EMERGENCY CONDITIONS AND THEY ARE PERMITTED COMPENSATORY TIME OFF FROM DUTY DURING ANOTHER WEEK TO THE EXTENT OF SUCH EXCESS OR INCIDENTAL OVERTIME, SUCH ARRANGEMENT WOULD NOT APPEAR TO BE IN CONFLICT WITH ANY EXISTING LAW.