B-38726, DECEMBER 21, 1943, 23 COMP. GEN. 451

B-38726: Dec 21, 1943

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- IS WITHIN ADMINISTRATIVE DISCRETION AND IS NOT SUBJECT TO REVIEW BY THIS OFFICE. PAYMENT OF ADDITIONAL OVERTIME COMPENSATION FOR SUCH EXTRA DUTIES IS NOT AUTHORIZED. - THAT IS. ACTUALLY ARE ENGAGED IN THEIR REGULAR DUTIES FOR TIME IN EXCESS OF 48 HOURS PER WEEK. 1943: I HAVE YOUR LETTER OF DECEMBER 1. AS FOLLOWS: THERE IS RESPECTFULLY SUBMITTED FOR DECISION THE QUESTION STATED BELOW WHICH HAS BEEN RAISED IN CONNECTION WIHT A CLAIM MADE BY DR. THERE ARE ATTACHED A COPY OF THE STATEMENT OF CLAIM SUBMITTED BY DR. IT IS THE PRACTICE OF THE VETERANS ADMINISTRATION TO DESIGNATE PHYSICIANS TO SERVE AS OFFICER OF THE DAY FOR CONTINUOUS PERIODS OF 24 HOURS FROM 8 A.M. THERE ARE CERTAIN PRESCRIBED DUTIES WHICH THE OFFICER OF THE DAY IS REQUIRED TO PERFORM BEYOND HIS REGULARLY PRESCRIBED 8-HOUR TOUR OF DUTY.

B-38726, DECEMBER 21, 1943, 23 COMP. GEN. 451

WAR OVERTIME PAY ACT OF 1943 - ADMINISTRATIVE EVALUATION OF OVERTIME WORK IN EXCESS OF 48 HOURS PER WEEK UNDER SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943, AND REGULATIONS THEREUNDER, VESTING IN HEADS OF DEPARTMENTS, AGENCIES, ETC., DISCRETIONARY AUTHORITY TO GRANT PER ANNUM EMPLOYEES COMPENSATORY TIME OFF FROM DUTY FOR WORK IN EXCESS OF 48 HOURS IN ANY ADMINISTRATIVE WORKWEEK, AN EVALUATION FOR COMPENSATORY TIME PURPOSES OF THE EXTRA DUTIES AS "OFFICER OF THE DAY" PERFORMED BY PHYSICIANS AT VETERANS' HOSPITALS--- WHICH DUTIES REQUIRE THE PHYSICIANS TO BE AVAILABLE FOR DUTY 24 HOURS PER DAY BUT DO NOT REQUIRE THAT ALL THEIR TIME BE DEVOTED TO ACTUAL WORK--- IS WITHIN ADMINISTRATIVE DISCRETION AND IS NOT SUBJECT TO REVIEW BY THIS OFFICE; AND, PAYMENT OF ADDITIONAL OVERTIME COMPENSATION FOR SUCH EXTRA DUTIES IS NOT AUTHORIZED. WHILE NEITHER THE WAR OVERTIME PAY ACT OF 1943, NOR THE REGULATION THEREUNDER, SPECIFIES THE AMOUNT OF COMPENSATORY TIME OFF FROM DUTY THAT MUST BE GRANTED ADMINISTRATIVELY FOR WORK OR A DUTY STATUS IN EXCESS OF 48 HOURS PER WEEK, PER ANNUM EMPLOYEES WHO ACTUALLY WORK EXCESS OVERTIME--- THAT IS, ACTUALLY ARE ENGAGED IN THEIR REGULAR DUTIES FOR TIME IN EXCESS OF 48 HOURS PER WEEK--- MAY BE GRANTED COMPENSATORY TIME OFF FROM DUTY HOUR FOR HOUR FOR THE EXCESS OVERTIME WORKED.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, DECEMBER 21, 1943:

I HAVE YOUR LETTER OF DECEMBER 1, 1943, AS FOLLOWS:

THERE IS RESPECTFULLY SUBMITTED FOR DECISION THE QUESTION STATED BELOW WHICH HAS BEEN RAISED IN CONNECTION WIHT A CLAIM MADE BY DR. EDWARD F. DUCEY, AN EMPLOYEE OF THE VETERANS ADMINISTRATION FACILITY, MINNEAPOLIS, MINNESOTA, FOR ADDITIONAL OVERTIME COMPENSATION ON ACCOUNT OF SERVICES RENDERED AS OFFICER OF THE DAY, UNDER THE PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943 ( PUBLIC LAW 49, 78TH CONGRESS).

THERE ARE ATTACHED A COPY OF THE STATEMENT OF CLAIM SUBMITTED BY DR. DUCEY, A COPY OF A LETTER FROM DR. DUCEY DATED OCTOBER 1, 1943, AND A COPY OF A LETTER FROM FRANK E. MCALLISTER, AN ATTORNEY AT LAW, WHO APPARENTLY HAS BEEN EMPLOYED BY DR. DUCEY TO PRESENT THE CLAIM FOR HIM.

IT IS THE PRACTICE OF THE VETERANS ADMINISTRATION TO DESIGNATE PHYSICIANS TO SERVE AS OFFICER OF THE DAY FOR CONTINUOUS PERIODS OF 24 HOURS FROM 8 A.M. ONE DAY TO 8 A.M. THE SUCCEEDING DAY. THERE ARE CERTAIN PRESCRIBED DUTIES WHICH THE OFFICER OF THE DAY IS REQUIRED TO PERFORM BEYOND HIS REGULARLY PRESCRIBED 8-HOUR TOUR OF DUTY, BUT HE IS FURNISHED A ROOM WITH A BED AND IS PERMITTED TO RETIRE WHEN HIS ROUNDS OF THE HOSPITAL ARE COMPLETED AND THE NECESSARY WORK IS ACCOMPLISHED. THIS USUALLY HAPPENS BETWEEN 10 AND 11:30 P.M., AND FROM THAT TIME UNTIL WORK TIME THE FOLLOWING MORNING HE IS ON CALL. IN SOME INSTANCES THE OFFICER OF THE DAY IS CALLED DURING THIS LATTER PERIOD A NUMBER OF TIMES, WHILE IN OTHER INSTANCES HE IS NOT DISTURBED.

THE PROCEDURE ADOPTED TO GOVERN THE ALLOWANCE OF COMPENSATORY TIME FOR OVERTIME IS SET FORTH IN VETERANS ADMINISTRATION SERVICE LETTER OF AUGUST 26, 1943, AS FOLLOWS:

"1. DECISION HAS BEEN REACHED THAT SUNDAYS AND HOLIDAYS WHEN SERVED BY OFFICERS OF THE DAY WILL BE CONSIDERED A REGULAR 8-HOUR TOUR OF DUTY AS PART OF THE 48-HOUR WORK WEEK, WITH A FULL 8-HOUR DAY TO BE ALLOWED WITHIN THE WEEK FOR SUCH SUNDAY DUTY, AND WITHIN THE FOLLOWING 30 DAYS FOR SUCH HOLIDAY DUTY. R. AND P. 9635 IS MODIFIED ACCORDINGLY. IN ADDITION, ONE- HALF DAY OFF DUTY WILL BE ALLOWED FOR THE TOUR AS OFFICER OF THE DAY, AS PRESENTLY OUTLINED IN R. AND P. 9635, TO BE TAKEN THE DAY FOLLOWING, EXCEPT THAT WHEN A PHYSICIAN SERVES AS OFFICER OF THE DAY ON A SATURDAY, NO TIME IS ALLOWED FOR SUCH SERVICE UNLESS A HOLIDAY FALLS ON A SATURDAY IN WHICH EVENT A FULL 8-HOUR DAY WILL BE ALLOWED WITHIN THE FOLLOWING 30 DAYS.

"2. AS OUTLINED IN R AND P. 9635, WHERE THE OFFICER OF THE DAY, SERVING EITHER ON A WEEK DAY, A SUNDAY, OR A HOLIDAY, HAS HAD A DIFFICULT TOUR OF DUTY, TO BE VERIFIED BY HOSPITAL RECORDS, THE MANAGER AT HIS DISCRETION AND IF THE EXIGENCIES AT THE PARTICULAR FACILITY PERMIT, MAY RELIEVE HIM IMMEDIATELY AFTER COMPLETION OF ROUTINE WARD ROUNDS OR CLINIC ASSIGNMENTS. IT MAY BE A MATTER OF JUDGMENT TO DETERMINE WHETHER AN OFFICER OF THE DAY'S TOUR OF DUTY HAS BEEN ARDUOUS, BUT IN FAIRNESS TO THE PHYSICIAN, THE CIRCUMSTANCES OF THE PRIOR NIGHT'S TOUR SHOULD BE CONSIDERED CAREFULLY SO THAT IF IN FACT THE DUTIES WERE ARDUOUS, HE MAY BE GIVEN THE ADVANTAGES OF THE DISCRETION STATED IN R. AND P. 9635, BOTH IN HIS OWN INTEREST AND THAT OF THOSE ASSIGNED TO HIS CARE.'

THE SUBSTANCE OF THE CONTENTIONS MADE ON DR. DUCEY'S BEHALF IS TO THE EFFECT THAT THE ONLY DISCRETION WHICH THE HEADS OF THE DEPARTMENTS AND OTHER AGENCIES OF THE GOVERNMENT ARE AUTHORIZED TO EXERCISE IN ADMINISTERING THE PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943, SUPRA, IS TO DETERMINE WHETHER OVERTIME PAY OR COMPENSATORY TIME SHALL BE GRANTED FOR TIME WORKED IN EXCESS OF 48 HOURS PER WORK WEEK, AND THAT THE SAID ACT MAKES MANDATORY EITHER THE PAYMENT OF OVERTIME COMPENSATION OR THE GRANTING OF COMPENSATORY TIME OFF FOR THE FULL NUMBER OF HOURS THE EMPLOYEE IS IN A DUTY STATUS IN EXCESS OF 48 HOURS PER WEEK, REGARDLESS AS TO WHETHER THE ASSIGNMENT WAS SUCH AS TO REQUIRE CONSTANT APPLICATION TO DUTY.

THE MATTER IS THUS RESOLVED TO THE QUESTION WHETHER THE WAR OVERTIME PAY ACT OF 1943 MAKES MANDATORY THE PAYMENT OF OVERTIME COMPENSATION OR THE GRANTING OF COMPENSATORY TIME IN AN AMOUNT EQUIVALENT TO THE TOTAL TIME THE EMPLOYEE IS IN A DUTY STATUS BEYOND 48 HOURS PER WEEK, REGARDLESS AS TO THE DEGREE OF APPLICATION TO DUTY REQUIRED, AS CONTENDED ON BEHALF OF DR. DUCEY.

YOU ARE FURTHER ADVISED THAT THE ATTORNEY FOR DR. DUCEY HAS ADVISED THIS OFFICE BY LETTER DATED NOVEMBER 11, 1943, THAT HE INTENDS TO BRING SUIT IN THIS MATTER UNLESS PROMPT ACTION IS TAKEN ON THE CLAIM FOR OVERTIME COMPENSATION.

A DECISION ON THE FOREGOING QUESTION IS REQUESTED FOR THE GUIDANCE OF THE VETERANS ADMINISTRATION.

THE STATEMENT OF THE CLAIM SUBMITTED BY DR. DUCEY, IS AS FOLLOWS:

SCHEDULE:

TOUR OF DUTY AS O.D. REGULAR OVERTIME DUTY AMOUNT OF

DUTY PERIOD TIME OFF

GRANTED

8 A.M. MAY 20 TO 8 A.M. 4:00 P.M. 4:30 P.M. TO 6 1/2 HRS.

MAY 21 TO 8 A.M.

8 A.M. JUNE 10 TO 8 A.M. ----DO----- ------DO------ 8 HRS.

JUNE 11

8 A.M. JULY 6 TO 8 A.M. ----DO----- ------DO------ 7 HRS.

JULY 7

8 A.M. JULY 31 TO 8 A.M. ----DO----- ------DO------ NONE

AUG. 1

TOTAL HOURS OF OVERTIME FOR WHICH COMPENSATORY TIME OFF WAS NOT

GRANTED 42 1/2

HOURLY RATE OF OVERTIME PAY (IN EXCESS OF 48-HOUR WEEK) $1.81539

AMOUNT OF OVERTIME COMPENSATION DUE------------------------ 77.15

SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, 57 STAT. 76, PUBLIC LAW 49, CONTAINS THE FOLLOWING PROVISO:

* * * AND PROVIDED FURTHER, THAT IN LIEU OF OVERTIME COMPENSATION FOR WORK IN EXCESS OF FORTY-EIGHT HOURS IN ANY ADMINISTRATIVE WORKWEEK, THE HEADS OF DEPARTMENTS, ESTABLISHMENTS, AND AGENCIES MAY IN THEIR DISCRETION GRANT PER ANNUM EMPLOYEES COMPENSATORY TIME OFF FROM DUTY. (ITALICS SUPPLIED).

SECTION 9 OF THE SAME STATUTE, 57 STAT. 77, PROVIDES:

THE CIVIL SERVICE COMMISSION IS AUTHORIZED AND DIRECTED TO PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY AND PROPER FOR THE PURPOSE OF COORDINATING AND SUPERVISING THE ADMINISTRATION OF THE PROVISIONS OF THE FOREGOING SECTIONS OF THIS ACT, INSOFAR, AS SUCH PROVISIONS EFFECT EMPLOYEES IN OR UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT.

SECTION 20.9 OF THE WAR OVERTIME PAY REGULATIONS OF THE CIVIL SERVICE COMMISSION, AS AMENDED DECEMBER 6, 1943, PUBLISHED IN THE FEDERAL REGISTER OF DECEMBER 9, 1943, PROVIDES:

OVERTIME COMPENSATION.--- IN ADDITION TO HIS REGULAR EARNED BASIC COMPENSATION, AN EMPLOYEE SHALL BE PAID OVERTIME COMPENSATION, COMPUTED AS PROVIDED IN SEC. 20.12, FOR SUCH EMPLOYMENT OFFICIALLY ORDERED OR APPROVED AS EXCEEDS FORTY HOURS A WEEK: PROVIDED, HOWEVER, THAT HEADS OF DEPARTMENTS AND AGENCIES MAY, IN THEIR DISCRETION, ELECT TO GRANT FULL- TIME PER ANNUM EMPLOYEES COMPENSATORY TIME OFF FROM DUTY WITHOUT LOSS OF PAY IN LIEU OF OVERTIME COMPENSATION FOR SUCH EMPLOYMENT AS MAY EXCEED FORTY-EIGHT HOURS IN ANY WEEK. IN THE EVENT THAT COMPENSATORY TIME OFF FROM DUTY FOR EMPLOYMENT IN EXCESS OF FORTY-EIGHT HOURS IN ANY WEEK IS NOT GRANTED WITHIN NINETY CALENDAR DAYS AFTER SUCH EMPLOYMENT IS PERFORMED, THE EMPLOYEE SHALL BE ENTITLED, IN LIEU OF SUCH COMPENSATORY TIME OFF, TO OVERTIME COMPENSATION FOR SUCH EMPLOYMENT COMPUTED AS PROVIDED IN THESE REGULATIONS AT THE RATE OR RATES OF COMPENSATION WHICH THE EMPLOYEE RECEIVED DURING THE PERIOD OF SUCH EMPLOYMENT: PROVIDED, FURTHER, THAT SUCH COMPENSATORY TIME OFF MAY, IN THE DISCRETION OF THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED, BE GRANTED (A) TO SEASONAL EMPLOYEES AT THE COMPLETION OF THE SEASON DURING WHICH THE EMPLOYMENT IS PERFORMED AND (B) TO EMPLOYEES SERVING AT ISOLATED POSTS OUTSIDE THE STATES OF THE UNITED STATES AND THE DISTRICT OF COLUMBIA WITHIN ONE YEAR AFTER THE EMPLOYMENT IS PERFORMED.

HEADS OF DEPARTMENTS AND AGENCIES MAY DELEGATE TO ANY OFFICER OR EMPLOYEE AUTHORITY TO ORDER OR APPROVE OVERTIME IN EXCESS OF THE ADMINISTRATIVE WORKWEEK AND TO ELECT TO GRANT COMPENSATORY TIME OFF FROM DUTY WITHOUT LOSS OF PAY IN LIEU OF OVERTIME COMPENSATION AS PROVIDED IN THIS SECTION. NO OVERTIME IN EXCESS OF THE ADMINISTRATIVE WORKWEEK SHALL BE ORDERED OR APPROVED EXCEPT BY AN OFFICER OR EMPLOYEE TO WHOM SUCH AUTHORITY HAS BEEN SPECIFICALLY DELEGATED BY THE HEAD OF THE DEPARTMENT OR AGENCY.

ALSO, IN SECTIONS 1 AND 5, PART II, OF THE ORIGINAL REGULATIONS OF THE CIVIL SERVICE COMMISSION UNDER THE LAW, DATED MAY 8, 1943, ( DEPARTMENTAL CIRCULAR 424) PROVIDES:

ADMINISTRATIVE WORKWEEK FOR FULL-TIME EMPLOYEES.--- THE ADMINISTRATIVE WORKWEEK FOR EACH GROUP OF FULL-TIME EMPLOYEES SHALL BE THE MINIMUM NUMBER OF HOURS OF WORK PER WEEK SPECIFIED BY THE GENERAL PUBLIC REGULATIONS ISSUED BY THE HEAD OF A DEPARTMENT OR INDEPENDENT ESTABLISHMENT PURSUANT TO SECTION 2 OF THE ACT OF MARCH 14, 1936, 49 STAT. 1161, 5 U.S.C. 29A, AND IN ACCORDANCE WITH APPLICABLE CIRCULARS OF THE BUREAU OF THE BUDGET.

INTERMITTENT OR IRREGULAR EMPLOYEES.--- INTERMITTENT OR IRREGULAR EMPLOYEES ARE EMPLOYEES WHO ARE NOT REGULARLY REQUIRED TO WORK A SPECIFIED MINIMUM NUMBER OF HOURS. EMPLOYEES WHOSE WORK REQUIRES THEM TO REMAIN AT, OR WITHIN, THE CONFINES OF THEIR POSTS OF DUTY FOR MORE THAN FORTY HOURS PER WEEK, BUT DOES NOT REQUIRE THAT ALL OF THEIR TIME BE DEVOTED TO ACTUAL WORK, MAY BE CONSIDERED TO BE INTERMITTENT OR IRREGULAR EMPLOYEES, OR IN THE DISCRETION OF THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED, MAY BE CONSIDERED TO BE FULL-TIME EMPLOYEES HAVING SUCH ADMINISTRATIVE WORKWEEK AS IS SPECIFIED BY SUCH HEAD.

THERE IS NOTING THAT THE STATUTE AUTHORIZES THE GRANTING OF COMPENSATORY TIME OFF FROM DUTY FOR ,WORK" IN EXCESS OF 48 HOURS IN ANY ADMINISTRATIVE WORKWEEK. NEITHER THE STATUTE NOR THE REGULATIONS SPECIFY THE AMOUNT OF COMPENSATORY TIME OFF FROM DUTY THAT MUST BE GRANTED ADMINISTRATIVELY FOR WORK OR A DUTY STATUS IN EXCESS OF 48 HOURS PER WEEK. IT REASONABLY MAY BE INFERRED THAT, FOR EMPLOYEES WHO ACTUALLY ARE WORKING--- THAT IS, ACTUALLY ARE ENGAGED IN THEIR REGULAR DUTIES FOR TIME IN EXCESS OF 48 HOURS PER WEEK--- COMPENSATORY TIME OFF FROM DUTY SHOULD BE GRANTED HOUR FOR HOUR FOR THE EXCESS OVERTIME WORKED. COMPARE 23 COMP. GEN. 253. HOWEVER, SECTION 5, PART II, OF THE ORIGINAL REGULATIONS OF THE CIVIL SERVICE COMMISSION ABOVE QUOTED CLEARLY RECOGNIZED A DISTINCTION BETWEEN THAT CLASS OF PERSONNEL AND " EMPLOYEES WHOSE WORK REQUIRES THEM TO REMAIN AT, OR WITHIN, THE CONFINES OF THEIR POSTS OF DUTY FOR MORE THAN FORTY HOURS PER WEEK, BUT DOES NOT REQUIRE THAT ALL OF THEIR TIME BE DEVOTED TO ACTUAL WORK.' COMPARE 22 COMP. GEN. 745, 753, 807, HAVING REFERENCE TO THE JOINT RESOLUTION OF DECEMBER 22, 1942, AND THE PRESIDENT'S REGULATIONS ISSUED THEREUNDER.

IT IS UNDERSTOOD FROM YOUR LETTER THAT, PURSUANT TO THE DISCRETION VESTED IN YOU BY THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, YOU HAVE CLASSED PHYSICIANS AT VETERANS' FACILITIES AS FULL-TIME EMPLOYEES RATHER THAN INTERMITTENT OR IRREGULAR EMPLOYEES AND HAVE PRESCRIBED AN ADMINISTRATIVE WORKWEEK FOR THEM OF 48 HOURS PER WEEK; ALSO, THAT THE AMOUNT OF COMPENSATORY TIME OFF FROM DUTY FOR WORK IN EXCESS OF 48 HOURS HAS BEEN ADMINISTRATIVELY EVALUATED, HAVING REGARD FOR THE NATURE OF THE DUTIES PERFORMED BY THE PHYSICIANS AND THE AMOUNT OF TIME THEY ARE NOT REQUIRED TO WORK BUT ARE REQUIRED TO BE AVAILABLE FOR DUTY. THE NATURE OF THE DUTIES REQUIRED OF PHYSICIANS AT HOSPITALS IS, OF COURSE, WELL KNOWN AND IT IS TO BE PRESUMED THAT THE CONGRESS IN ENACTING THE PROVISION VESTING DISCRETION IN ADMINISTRATIVE OFFICERS TO GRANT COMPENSATORY TIME OFF FROM DUTY FOR "WORK" IN EXCESS OF 48 HOURS PER WEEK HAD IN MIND EXISTING EMPLOYMENT CONDITIONS THROUGHOUT THE FEDERAL SERVICE. HENCE, YOU ARE ADVISED (1) THAT THE EVALUATION OF THE EXTRA DUTIES OF AN OFFICER OF THE DAY AT A VETERANS' FACILITY FOR COMPENSATORY TIME PURPOSES, SET FORTH IN ADMINISTRATIVE ORDER OF AUGUST 26, 1943, QUOTED IN YOUR LETTER, WAS WITHIN YOUR ADMINISTRATIVE DISCRETION AND IS NOT SUBJECT TO REVIEW OR REVISION BY THIS OFFICE AND (A) THAT PAYMENT TO DR. EDWARD F. DUCEY FOR ADDITIONAL OVERTIME COMPENSATION ON THE BASIS OF THE FACTS PRESENTED IS NOT AUTHORIZED.