B-42854, JULY 4, 1944, 24 COMP. GEN. 11

B-42854: Jul 4, 1944

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IS. UNDER THE WAR OVERTIME PAY ACT OF 1943 FOR SUNDAYS ON WHICH HE IS IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL STATION OR WHILE ON DUTY AT HIS OFFICIAL STATION FOR THE SAME NUMBER OF HOURS AS HE WORKS ON OTHER DAYS. HE SHOULD NOT BE PAID BASIC AND ADDITIONAL WARTIME COMPENSATION BEYOND THE PRESCRIBED WORKDAY SOLELY BECAUSE HE IS IN A TRAVEL STATUS. 23 COMP. 1944: REFERENCE IS MADE TO YOUR LETTER OF JUNE 17. VANCE WAS GIVEN A THREE MONTHS' APPOINTMENT TO THE POSITION OF A COLLECTOR FOR THE EMERGENCY CROP AND FEED LOAN OFFICE. THE APPOINTMENT WAS EXTENDED THREE MONTHS ON OCTOBER 15. VANCE IS 8 HOURS A DAY. MONDAY THROUGH SATURDAY AND HIS DAILY PRESCRIBED HOURS OF DUTY ARE 8:00 A.M. PARAGRAPH 3217 OF THE REGULATIONS OF THE DEPARTMENT OF AGRICULTURE PROVIDES THAT EMPLOYEES WHOSE COMPENSATION IS ON A DAILY OR HOURLY BASIS (INCLUDING BONA FIDE PER DIEM EMPLOYEES) SHALL BE PAID FOR SUNDAYS ONLY IF SERVICE IS PERFORMED AND THE PAY ROLL INDICATES THAT SUCH SERVICE WAS REQUIRED.

B-42854, JULY 4, 1944, 24 COMP. GEN. 11

COMPENSATION - SUNDAYS AND HOLIDAYS - PER DIEM "WHEN ACTUALLY EMPLOYED" EMPLOYEES IN TRAVEL STATUS A PER DIEM "WHEN ACTUALLY EMPLOYED" EMPLOYEE, ALTHOUGH NOT REGULARLY REQUIRED TO WORK ON SUNDAYS, IS, NEVERTHELESS, ENTITLED TO HIS BASIC COMPENSATION AND TO ADDITIONAL OR OVERTIME COMPENSATION, AS THE CASE MAY BE, UNDER THE WAR OVERTIME PAY ACT OF 1943 FOR SUNDAYS ON WHICH HE IS IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL STATION OR WHILE ON DUTY AT HIS OFFICIAL STATION FOR THE SAME NUMBER OF HOURS AS HE WORKS ON OTHER DAYS, BUT HE SHOULD NOT BE PAID BASIC AND ADDITIONAL WARTIME COMPENSATION BEYOND THE PRESCRIBED WORKDAY SOLELY BECAUSE HE IS IN A TRAVEL STATUS. 23 COMP. GEN. 636, DISTINGUISHED.

ACTING COMPTROLLER GENERAL YATES TO J. L. WILKINSON, DEPARTMENT OF AGRICULTURE, JULY 4, 1944:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 17, 1944 AS FOLLOWS:

THE ENCLOSED PAY ROLL VOUCHER COVERING COMPENSATION FOR SUNDAY FEBRUARY 20, 1944, AND SUNDAY FEBRUARY 27, 1944, FOR WILLIAM H. VANCE, AN EMPLOYEE OF OUR EMERGENCY CROP AND FEED LOAN OFFICE, SPOKANE, WASHINGTON, HAS BEEN PRESENTED TO ME FOR CERTIFICATION.

EFFECTIVE JULY 15, 1943, MR. VANCE WAS GIVEN A THREE MONTHS' APPOINTMENT TO THE POSITION OF A COLLECTOR FOR THE EMERGENCY CROP AND FEED LOAN OFFICE, SPOKANE, WASHINGTON, WITH COMPENSATION AT THE RATE OF $6.00 A DAY WHEN ACTUALLY EMPLOYED UNDER AUTHORITY OF SCHEDULE A, SUBDIVISION IX, PARAGRAPH 28, OF THE CIVIL SERVICE RULES, BY THE CHIEF OF THE PERSONNEL DIVISION OF THE FARM CREDIT ADMINISTRATION ACTING UNDER DELEGATED AUTHORITY FROM THE SECRETARY OF AGRICULTURE. THE APPOINTMENT WAS EXTENDED THREE MONTHS ON OCTOBER 15, 1943, AND AGAIN ON JANUARY 15, 1944.

THE REGULAR TOUR OF DUTY FOR MR. VANCE IS 8 HOURS A DAY, SIX DAYS A WEEK, MONDAY THROUGH SATURDAY AND HIS DAILY PRESCRIBED HOURS OF DUTY ARE 8:00 A.M. TO 5:00 P.M. WITH AN HOUR FOR LUNCH.

PARAGRAPH 3217 OF THE REGULATIONS OF THE DEPARTMENT OF AGRICULTURE PROVIDES THAT EMPLOYEES WHOSE COMPENSATION IS ON A DAILY OR HOURLY BASIS (INCLUDING BONA FIDE PER DIEM EMPLOYEES) SHALL BE PAID FOR SUNDAYS ONLY IF SERVICE IS PERFORMED AND THE PAY ROLL INDICATES THAT SUCH SERVICE WAS REQUIRED.

ON SATURDAY FEBRUARY 19, 1944, THE SPOKANE REGIONAL OFFICE INSTRUCTED MR. VANCE BY TELEGRAM TO PROCEED AS PROMPTLY AS POSSIBLE FROM BOZEMAN, MONTANA, HIS OFFICIAL HEADQUARTERS, TO IDAHO FALLS, IDAHO, TO ASSIST THE FIELD SUPERVISOR AT THAT POINT IN CONNECTION WITH URGENT MATTERS RELATING TO LOANS IN THAT AREA. BEFORE LEAVING BOZEMAN IT WAS NECESSARY FOR MR. VANCE TO CONFER WITH THE FIELD SUPERVISOR UNDER WHOSE SUPERVISION HE HAD BEEN WORKING CONCERNING UNCOMPLETED ASSIGNMENTS IN THAT TERRITORY. THIS HE DID ON SUNDAY MORNING FROM 8 A.M. TO 11:00 A.M. WHEN HE DEPARTED FROM BOZEMAN IN HIS PERSONALLY OWNED AUTOMOBILE. MR. VANCE TRAVELED UNTIL 7:30 P.M. ON SUNDAY FEBRUARY 20 AND COMPLETED HIS TRIP TO IDAHO FALLS AT 5:25 P.M. ON MONDAY FEBRUARY 21, 1944. SEE D.O. VOUCHER NO. 10-206934, PAID APRIL 1, 1944, SYMBOL 110-2380. ON SUNDAY FEBRUARY 27 MR. VANCE WAS STILL IN A TRAVEL STATUS ON HIS TEMPORARY ASSIGNMENT AT IDAHO FALLS, IDAHO. DID NOT PERFORM ANY OFFICIAL DUTIES ON THAT DAY BUT WAS MERELY IN A TRAVEL STATUS RESULTING FROM THE ASSIGNMENT AT IDAHO FALLS FOR WHICH DAY HE RECEIVED PER DIEM IN LIEU OF SUBSISTENCE IN THE VOUCHER REFERRED TO ABOVE.

THE ENCLOSED PAY ROLL VOUCHER COVERS BASE PAY OF $6.00 A DAY FOR EACH SUNDAY, FEBRUARY 20 AND FEBRUARY 27, PLUS REGULAR OVERTIME COMPENSATION COMPUTED PURSUANT TO YOUR DECISION OF JUNE 10, 1943, (B 34876) BUT DOES NOT INCLUDE EXCESS OVERTIME COMPENSATION FOR ANY TRAVEL TIME IN EXCESS OF EIGHT HOURS FOR SUNDAY FEBRUARY 20, WHICH APPEARS TO BE PROPER IN ACCORDANCE WITH DECISIONS OF JUNE 18, 1935 (14 COMP. GEN. 907) AND JANUARY 9, 1943, (22 COMP. GEN. 636).

THERE IS A QUESTION AS TO WHETHER EMPLOYEES WHO ARE PAID ON A PER DIEM BASIS WHEN ACTUALLY EMPLOYED AND WHOSE REGULAR TOUR OF DUTY DOES NOT INCLUDE SUNDAY, ARE ENTITLED TO COMPENSATION AS WELL AS PER DIEM IN LIEU OF SUBSISTENCE FOR SUNDAYS ON WHICH THEY ARE REQUIRED TO PERFORM OFFICIAL TRAVEL BECAUSE OF EXIGENCIES OR TO BE AWAY FROM THEIR OFFICIAL HEADQUARTERS BECAUSE OF THE IMPRACTICABILITY OF RETURNING THERETO OVER THE WEEK END ALTHOUGH NOT REQUIRED TO PERFORM ANY OFFICIAL DUTIES OTHER THAN TRAVEL. ACCORDINGLY, PURSUANT TO SECTION 2 OF THE ACT OF DECEMBER 29, 1941, PUBLIC LAW NO. 389, I SHALL APPRECIATE YOUR ADVISING ME WHETHER I, AS AUTHORIZED CERTIFYING OFFICER, MAY PROPERLY CERTIFY THE ENCLOSED PAY ROLL VOUCHER AND IF SO IN WHAT AMOUNT.

IF, AS APPEARS FROM YOUR LETTER, MR. VANCE WAS APPOINTED JULY 15, 1943, AND HAS SERVED FROM THAT TIME THROUGH THE PERIOD INVOLVED--- FEBRUARY 1944 --- WITH A REGULAR TOUR OF DUTY AS STATED IN THE THIRD PARAGRAPH OF YOUR LETTER, IT WOULD APPEAR THAT HE SHOULD NOT HAVE BEEN CLASSED AS AN INTERMITTENT OR IRREGULAR EMPLOYEE IN FEBRUARY, 1944, WITH ADDITIONAL WARTIME COMPENSATION COMPUTED UNDER SECTION 3 (A) OF THE WAR OVERTIME PAY ACT OF 1943, 57 STAT. 76, AND THE RULE STATED IN DECISION OF JUNE 10, 1943, 22 COMP. GEN. 1091, TO WHICH YOU REFER, BUT SHOULD HAVE BEEN CLASSED AS A REGULAR EMPLOYEE WITH ADDITIONAL WARTIME COMPENSATION, COMPUTED UPON AN OVERTIME BASIS, PURSUANT TO SECTION 2 OF THE STATUTE, 57 STAT. 76. SEE DECISION OF MAY 31, 1944, B-40560, SECRETARY OF AGRICULTURE, GIVING RECONSIDERATION TO THE DECISION OF MARCH 24, 1944, 23 COMP. GEN. 719. REFERENCE IS MADE PARTICULARLY TO THE ADMINISTRATIVE REGULATION QUOTED IN THE DECISION OF MAY 31, 1944.

SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, 57 STAT. 75, 76, PUBLIC LAW 49, PROVIDES IN PERTINENT PART:

OFFICERS AND EMPLOYEES TO WHOM THIS ACT APPLIES AND WHO ARE NOT ENTITLED TO ADDITIONAL COMPENSATION UNDER SECTION 3 SHALL BE PAID OVERTIME COMPENSATION COMPUTED ON THE SAME BASIS AS THE OVERTIME COMPENSATION WHICH WAS AUTHORIZED TO BE PAID UNDER PUBLIC LAW NUMBERED 821, SEVENTY-SEVENTH CONGRESS * * *

IN THE DECISION OF JANUARY 9, 1943, 22 COMP. GEN. 636, TO WHICH YOU REFER, WHEREIN WAS CONSIDERED THE ACT OF OCTOBER 21, 1940, 54 STAT. 1205, IT WAS STATED:

IT IS NOT TO BE UNDERSTOOD THAT AN EMPLOYEE WHO IS SENT ON AN EXTENDED TRIP, IN TRAVEL STATUS AND WITH EXPENSES PAID FOR SEVERAL DAYS, WEEKS, OR LONGER, IS TO BE REGARDED AS CONTINUOUSLY IN ,EMPLOYMENT" FOR OVERTIME PURPOSES MERELY BECAUSE HE IS IN A TRAVEL STATUS OR IS PROCEEDING EN ROUTE, SINCE, IN FACT, DURING A GREATER OR LESSER PORTION OF SUCH PERIOD HE IS RELIEVED OF ANY DUTIES AND IS FREE TO SEEK REST, RECREATION, OR OTHER PERSONAL PURSUITS. ON THE OTHER HAND, WHEN REGULAR WORKWEEK, INCLUDING SOME OVERTIME, HAS BEEN ESTABLISHED FOR AN EMPLOYEE (SUCH AS SIX DAYS OF EIGHT HOURS EACH), AND, ON OCCASION, HIS DIRECTED TRAVEL REQUIRES HIM TO BE AWAY FROM HIS HEADQUARTERS DURING ANY PART OF SUCH ESTABLISHED WORKWEEK, HIS COMPLIANCE WITH THE TRAVEL ORDER DOES NOT RELEGATE HIM TO A STATUS OF NONEMPLOYMENT, EITHER FOR THE HOUR OF OVERTIME OR FOR THE HOURS OF "STRAIGHT" TIME. IN OTHER WORDS, OFFICIAL TRAVEL (OR INCIDENTAL WAITING TIME) DURING REGULAR WORKING HOURS IS "EMPLOYMENT" WITHIN THE MEANING OF THE 1940 STATUTE WHILE, OUTSIDE OF SUCH HOURS, GENERALLY IT IS NOT. THE LATTER GENERALIZATION WOULD NOT HOLD TRUE IN THE CASE, FOR EXAMPLE, OF A TRUCK DRIVER FOR WHOM THE TRAVEL INCIDENT TO HIS WORK IS ACTIVE DUTY (20 COMP. GEN. 724), AND THERE MAY BE OTHER EXCEPTIONS NOT SUGGESTED BY THE PRESENT RECORD.

(B) THE VIEW THAT OFFICIAL TRAVEL DURING REGULARLY ASSIGNED WORKING HOURS IS "EMPLOYMENT" WOULD SEEM APPLICABLE TO ALL CLASSES REFERRED TO IN THE CIRCULAR LETTERS CITED AND TO ANY SIMILAR CLASSES IN THE AUTHORITY FROM THE SECRETARY OF WAR OF JANUARY 13, 1942. WHAT FURTHER HOURS, IF ANY, MIGHT BE CLAIMED BY SPECIAL CLASSES OF EMPLOYEES CANNOT BE ANSWERED CATEGORICALLY (SEE THE ABOVE PARAGRAPH), BUT, AS A RULE, NO EXTRA HOURS, BEYOND THE USUAL TOUR OF DUTY, WOULD BE FOR CREDITING UNLESS THE INDIVIDUAL'S EMPLOYMENT WERE BOTH ACTIVE AND APPROVED. * * *

THAT DECISION WAS RENDERED WITH RELATION TO AN EMPLOYEE WITH SALARY RATE OF $4,600 PER ANNUM, WHO RECEIVES HIS BASIC COMPENSATION FOR EVERY DAY OF THE YEAR. IN THE INSTANT CASE, THERE IS INVOLVED AN EMPLOYEE WHO RECEIVES NO BASIC COMPENSATION FOR SUNDAY UNLESS HE IS IN A DUTY STATUS. IN SUCH A CASE AS HERE PRESENTED, AND IN LINE WITH THE HOLDING MADE IN THE QUOTED DECISION, IT REASONABLY MAY BE CONCLUDED THAT THE EMPLOYEE IS ENTITLED TO HIS BASIC COMPENSATION OF $6 PER DIEM AND TO ADDITIONAL WARTIME COMPENSATION FOR SUNDAYS ON WHICH HE IS IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL STATION OR WHILE ON DUTY AT HIS OFFICIAL STATION FOR THE SAME NUMBER OF HOURS ON SUNDAY AS HE WORKS ON OTHER DAYS. HE SHOULD NOT BE PAID ADDITIONAL BASIC COMPENSATION AND ADDITIONAL WARTIME COMPENSATION BEYOND THE REGULARLY PRESCRIBED WORKDAY -- 8 HOURS IN THIS CASE--- SOLELY BECAUSE THE EMPLOYEE IS IN A TRAVEL STATUS.

THE VOUCHER FORWARDED WITH YOUR LETTER PROPOSES PAYMENT OF $12 BASIC COMPENSATION FOR THE TWO SUNDAYS, FEBRUARY 20 AND 27, 1944, WHICH IS CORRECT. ALSO, THE VOUCHER PROPOSES PAYMENT OF $1.91 (2/313 OF 300) PURSUANT TO SECTION 3 (A) OF THE WAR OVERTIME PAY ACT AND THE RULE STATED IN DECISION OF JUNE 10, 1943, TO YOU. IF THE FACTS ARE THAT THE EMPLOYEE DID NOT WORK FULL TIME, THAT COMPUTATION WOULD BE CORRECT. HOWEVER, IF THE EMPLOYEE WORKED FULL TIME--- 48 HOURS PER WEEK--- HIS WARTIME COMPENSATION SHOULD BE COMPUTED ON AN OVERTIME BASIS, THAT IS, ON AN ACTUAL TIME BASIS OF ONE AND ONE-HALF TIMES HIS BASIC RATE, OR $9 FOR EACH SUNDAY. THERE IS FOR APPLICATION IN SUCH A CASE THE SAME RULE AS WAS STATED UNDER JOINT RESOLUTION OF DECEMBER 22, 1942. SEE DECISION MARCH 30, 1943, 22 COMP. GEN. 926, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

OVERTIME COMPENSATION UNDER THE ACT OF DECEMBER 22, 1942, AND EXECUTIVE ORDER NO. 9289 ISSUED IN CONNECTION THEREWITH, FOR EXTRA OVERTIME--- THAT IS, OVERTIME ORDERED AND APPROVED IN EXCESS OF THE REGULAR OVERTIME ON A 48-HOUR WEEK BASIS--- PERFORMED BY FULL TIME PER DIEM EMPLOYEES WHO REGULARLY WORK, AND ARE PAID ON THE BASIS OF, A 6 DAY, 48-HOUR WEEK SHOULD NOT BE PRORATED ON AN ANNUAL BASIS UNDER SECTION 3 OF SAID EXECUTIVE ORDER, BUT, RATHER, THE ACTUAL NUMBER OF HOURS OVERTIME WORKED IN EXCESS OF THE REGULAR WORKWEEK SHOULD BE PAID FOR AT THE RATE OF ONE AND ONE-HALF TIMES THE BASIC HOURLY RATE.

IN VIEW OF THE UNCERTAINTY AS TO THE FACTS INVOLVED, IT IS IMPOSSIBLE TO ADVISE YOU DEFINITELY WHETHER THE VOUCHER IN ITS PRESENT FORM MAY OR MAY NOT BE CERTIFIED FOR PAYMENT.