B-43439, AUGUST 3, 1944, 24 COMP. GEN. 65

B-43439, AUGUST 3, 1944, 24 COMP. GEN. 65

OVERTIME COMPENSATION - FORTY-HOUR WEEK EMPLOYEES - TRAVEL TIME PER HOUR EMPLOYEES SUBJECT TO THE FORTY-HOUR WEEK STATUTE OF MARCH 28, 1934, WHO, UNDER THE PRESENT WORK SCHEDULE, ARE REQUIRED TO WORK REGULARLY SIX EIGHT-HOUR DAYS PER WEEK ( MONDAY THROUGH SATURDAY), INSTEAD OF THE FIVE DAYS ( MONDAY THROUGH FRIDAY) REQUIRED UNDER NORMAL CONDITIONS, OVERTIME RATES OF COMPENSATION BEING PAID FOR SATURDAY, ARE ENTITLED TO COMPENSATION FOR NOT TO EXCEED EIGHT HOURS AT OVERTIME RATES FOR A SATURDAY ON WHICH THEY ARE REQUIRED TO PERFORM OFFICIAL TRAVEL, WHETHER BY COMMON CARRIER OR BY PRIVATELY OWNED CONVEYANCE; HOWEVER, FOR TRAVEL TIME ON A SUNDAY, BASIC RATES OF COMPENSATION, EXCLUSIVE OF OVERTIME, FOR NOT TO EXCEED EIGHT HOURS ARE PAYABLE. 14 COMP. GEN. 907 AMPLIFIED. IN ACCORDANCE WITH THE RULES STATED HEREIN WITH RESPECT TO COMPENSATION FOR TRAVEL TIME OF EMPLOYEES COMING WITHIN THE PURVIEW OF THE FORTY-HOUR WEEK STATUTE OF MARCH 28, 1934, PER HOUR TRUCK DRIVERS SUBJECT TO SAID STATUTE WHO PERFORM OFFICIAL TRAVEL AS PASSENGERS--- AS DISTINGUISHED FROM DRIVERS--- IN GOVERNMENT VEHICLES IN CONNECTION WITH THEIR REGULAR DUTIES AS DRIVERS ARE ENTITLED TO COMPENSATION, FOR NOT TO EXCEED EIGHT HOURS, AT BASIC RATES FOR TRAVEL ON A REGULAR WORKDAY ( MONDAY THROUGH FRIDAY) OR ON SUNDAY A NONWORK DAY; AND AT OVERTIME RATES FOR TRAVEL ON SATURDAY, THE "OVERTIME" DAY OF THE WORKWEEK.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, AUGUST 3, 1944:

I HAVE YOUR LETTER OF JULY 20, 1944, AS FOLLOWS:

YOUR DECISION IS REQUESTED ON CERTAIN QUESTIONS CONCERNING CIVILIAN EMPLOYEES IN THE FIELD SERVICES OF THE DEPARTMENT WHEN TRAVEL ON OFFICIAL DUTY IS INVOLVED. SUCH EMPLOYEES ARE PAID ON AN HOURLY BASIS AND ARE SUBJECT TO THE ACT OF 28 MARCH 1934, 48 STAT. 522.

IT IS THE POLICY OF THE DEPARTMENT THAT ALL DEPARTMENTAL AND FIELD OFFICES WITHIN THE UNITED STATES BE OPEN FOR BUSINESS ON A 7-DAY ADMINISTRATIVE WORK-WEEK BASIS. THE ADMINISTRATIVE WORK-WEEK IS SET BY COMMANDING OFFICERS OR HIGHER AUTHORITY AND, IF PRACTICABLE, SHOULD BEGIN ON THE SAME CALENDAR DAY FOR ALL EMPLOYEES AT AN INSTALLATION, PREFERABLY SO THAT THE REGULAR NONWORK DAY IS SUNDAY. WHERE CONDITIONS PERMIT, IS SHOULD BE FROM SATURDAY MIDNIGHT TO THE FOLLOWING SATURDAY MIDNIGHT, MUST BE FIXED IN ADVANCE, AND SHOULD NOT BE CHANGED TO EFFECT OR AVOID PAYMENT OF OVERTIME COMPENSATION.

ALL EMPLOYEES OF THE DEPARTMENT ARE REQUIRED TO WORK 8 HOURS PER DAY, SIX DAYS PER WEEK, EXCEPT THOSE CLASSES OF EMPLOYEES IN THE FIELD SERVICE WHO CANNOT BE EFFECTIVELY EMPLOYED A FULL 48 HOURS. A REGULAR WEEKLY TOUR OF DUTY IN EXCESS OF OR LESS THAN 48 HOURS PER WEEK (BUT NOT LESS THAN 40), OR OTHER THAN 8 HOURS PER DAY 6 DAYS PER WEEK, MAY BE ESTABLISHED BY THE COMMANDING OFFICER OF A FIELD ESTABLISHMENT WHEN NECESSITATED BY LOCAL CONDITIONS, SUBJECT TO THE APPROVAL OF THE COMMANDING GENERAL OF THE APPROPRIATE FORCE OR HIS DESIGNATED REPRESENTATIVE FOR ALL CLASSES OF EMPLOYEES EXCEPT "ON CALL" EMPLOYEES (FOR EXAMPLE, FIRE-FIGHTERS WORKING ON THE TWO PLATOON SYSTEM), EMPLOYEES WHOSE COMPENSATION IS BASED ON OTHER THAN A TIME PERIOD BASIS, OR THOSE WHOSE HOURS OF WORK ARE INTERMITTENT, IRREGULAR, OR PART TIME.

IN 14 COMP. GEN. 907 IT WAS HELD, BASED ON THE ACT OF MARCH 28, 1934, THAT DURING THE TIME THE EMPLOYEE WAS TRAVELING ON A REGULAR NONWORK DAY ( SATURDAY, AS A 5-DAY WEEK WAS IN EFFECT AT THAT TIME, HE WAS IN A DUTY STATUS BUT THAT HE WAS NOT ENGAGED IN "LABOR" AND THEREFORE THE TIME IN A TRAVEL STATUS SHOULD BE ELIMINATED WHEN COMPUTING HOURS OF LABOR FOR OVERTIME PAY PURPOSES, THE EMPLOYEE BEING ENTITLED TO COMPENSATION FOR SUCH OFFICIAL TRAVEL TIME AT STRAIGHT TIME NOT TO EXCEED 8 HOURS IN ANY ONE DAY. SUNDAY WAS NOT INVOLVED IN THAT CASE, BUT IT IS BELIEVED THAT THE DECISION WAS INTENDED TO MEAN THAT AN EMPLOYEE WOULD BE PAID FOR TRAVEL ACTUALLY PERFORMED ON BOTH SATURDAY AND SUNDAY AT THE STRAIGHT TIME RATE NOT TO EXCEED 8 HOURS IN ONE DAY.

THE ACT OF OCTOBER 21, 1940 ( PUBLIC LAW NO. 873, 76TH CONGRESS), AS EXTENDED TO APRIL 30, 1943, PROVIDED THAT "COMPENSATION FOR EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORK-WEEK COMPUTED AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE IS HEREBY AUTHORIZED TO BE PAID AT SUCH PLACES AND TO ... HOURLY ... EMPLOYES OF THE FIELD SERVICES OF THE WAR DEPARTMENT...'

IN 21 COMP. GEN. 724 IT WAS HELD "THAT PAYMENT OF OVERTIME COMPENSATION IS AUTHORIZED UNDER THE TERMS OF THE STATUTE FOR "EMPLOYMENT" WHILE IN THE PERFORMANCE OF THE DUTIES OF SUCH POSITION DURING TRAVEL TIME IN EXCESS OF THE REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK.'

THE FOLLOWING IS QUOTED FROM 22 COMP. GEN. 105, A DECISION ON OVERTIME PAY FOR PER ANNUM EMPLOYEES: "THE DECISION OF JUNE 18, 1935, 14 COMP. GEN. 907, QUOTED BY THE AREA ENGINEER, MILWAUKEE ORDNANCE PLANT, HELD THAT OFFICIAL TRAVEL TIME IS NOT "LABOR" FOR PER DIEM EMPLOYEES WITHIN THE MEANING OF THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, 48 STAT. 522, AND ACCORDINGLY THAT OVERTIME COMPENSATION COULD NOT BE PAID FOR TRAVEL TIME TO EMPLOYEES COMING WITHIN THE PURVIEW OF THE STATUTE. THE TERM "LABOR" DOES NOT APPEAR IN THE ACT OF JUNE 3, 1940, BUT OVERTIME COMPENSATION IS PAYABLE UNDER THAT STATUTE "FOR EMPLOYMENT IN EXCESS OF 40 HOURS.' OFFICIAL TRAVEL TIME DURING WHICH AN EMPLOYEE IS IN A PAY STATUS APPEARS PROPERLY FOR REGARDING AS "EMPLOYMENT" WITHIN THE MEANING OF THE ACT OF JUNE 3, 1941.' PAYMENT FOR THE VOUCHER SUBMITTED IN THAT CASE, COVERING OVERTIME PAY FOR A DAY SPEND TRAVELING BETWEEN OFFICIAL STATIONS, WAS AUTHORIZED. SINCE BOTH THE STATUTES, JUNE 3, 1941 FOR PER ANNUM EMPLOYEES, AND OCTOBER 21, 1940 FOR HOURLY EMPLOYEES, ARE WORDED THE SAME, I.E., "FOR EMPLOYMENT IN EXCESS OF 40 HOURS" IT IS BELIEVED THAT 22 COMP. GEN. 105 COULD BE APPLIED WITH EQUAL EFFECT TO HOURLY EMPLOYEES.

IN 22 COMP. GEN. 636 IT WAS STATED,"WHEN A REGULAR WORK-WEEK 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 WORK- WEEK, 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 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 (21 COMP. GEN. 724), AND THERE MAY BE OTHER EXCEPTIONS NOT SUGGESTED BY THE PRESENT RECORD.'

THE TERM "EMPLOYMENT" IS STILL CURRENTLY IN FORCE FOR EMPLOYEES COMING UNDER THE WAR OVERTIME PAY ACT OF 1943 ( PUBLIC LAW 49, 78TH CONGRESS). SECTION 1 (E) EXCLUDES EMPLOYEES WHOSE WAGES ARE FIXED ON A DAILY OR HOURLY BASIS AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE. THIS DEPARTMENT DOES NOT MAKE ANY DISTINCTION BETWEEN PER ANNUM AND HOURLY EMPLOYEES WHEN REQUIRING THEM TO TRAVEL ON OFFICIAL DUTY FOR THE CONVENIENCE OF THE GOVERNMENT. IT IS BELIEVED, HOWEVER, THAT THE CONGRESS, THROUGH USAGE OF THE TERM "EMPLOYMENT" IN THE ACTS OF OCTOBER 21, 1940, JUNE 3, 1941, AND MAY 8, 1943, RELATING TO BOTH HOURLY AND PER ANNUM EMPLOYEES, HAS INDICATED THAT ,EMPLOYMENT" RATHER THAN "LABOR" IS THE TERM TO BE USED IN DEFINING THE PAY STATUS OF AN HOURLY EMPLOYEE.

THE QUESTIONS PRESENTED BELOW ARE FOR EMPLOYEES WHO HAVE A REGULAR TOUR OF DUTY OF EIGHT HOURS A DAY, MONDAY THRU SATURDAY, SATURDAY BEING THE OVERTIME DAY AND SUNDAY THE NONWORK DAY:

1. IN THE CASE OF AN HOURLY EMPLOYEE WHO WORKS EIGHT HOURS A DAY, MONDAY THRU FRIDAY, AND IS THEN REQUIRED TO TRAVEL ON SATURDAY AND SUNDAY UNDER COMPETENT TRAVEL ORDERS INVOLVING EITHER A PERMANENT CHANGE OF STATION OR TRAVEL BETWEEN HIS PERMANENT STATION AND A POINT OF TEMPORARY DUTY, WHAT COMPENSATION, REGULAR OR OVERTIME, SHOULD THE EMPLOYEE BE PAID FOR SATURDAY AND SUNDAY, WHEN (A) TRAVEL IS PERFORMED BY COMMON CARRIER OR (B) TRAVEL IS PERFORMED BY PRIVATELY OWNED CONVEYANCE?

2. IT IS FREQUENTLY NECESSARY TO SEND TRUCK DRIVERS, HOLDING POSITIONS UNDER THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, WHICH WERE EXCLUDED FROM THE PURVIEW OF THE CLASSIFICATION ACT BY PROPER ADMINISTRATIVE ACTION, WHO HAVE ALREADY WORKED THEIR REGULAR TOUR OF DUTY AT THEIR PERMANENT STATIONS, TO OTHER INSTALLATIONS TO DRIVE EQUIPMENT BACK TO THEIR PERMANENT STATIONS. DURING THE TRAVEL TIME BETWEEN THEIR PERMANENT STATIONS AND THE OTHER INSTALLATIONS THE EMPLOYEES ARE RIDING AS PASSENGERS IN GOVERNMENT VEHICLES AND ARE NOT ACTUALLY DRIVING THE EQUIPMENT. ARE SUCH EMPLOYEES ENTITLED TO REGULAR OR OVERTIME COMPENSATION FOR SUCH TRAVEL TIME WHEN TRAVEL IS PERFORMED (A) ON A REGULAR WORK DAY, (B) ON SATURDAY, THE REGULAR OVERTIME DAY, AND (C) ON SUNDAY, THE NONWORK DAY?

YOUR EARLY CONSIDERATION OF THE QUESTIONS PRESENTED HEREIN WILL BE APPRECIATED IN ORDER THAT PAYMENTS MAY BE MADE ON A CORRECT BASIS.

SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING A 40- HOUR WEEK FOR EMPLOYEES IN THE SEVERAL TRADES AND OCCUPATIONS WHOSE WAGES ARE FIXED BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES, CONTAINS THE FOLLOWING PROVISO:

* * * PROVIDED, THAT THE REGULAR HOURS OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE HALF.

THE RULE STATED IN DECISION OF JUNE 18, 1935, 14 COMP. GEN. 907 TO WHICH YOU REFER, IS AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE OVERTIME FOR WHICH COMPENSATION AT THE RATE OF TIME AND ONE-HALF TIME IS AUTHORIZED BY SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING THE 40-HOUR WEEK, HAS REFERENCE TO TIME IN EXCESS OF 40 HOURS A WEEK DURING WHICH THE EMPLOYEE IS ENGAGED IN LABOR. NO LABOR IS PERFORMED DURING PERIODS OF TRAVEL BETWEEN DUTY STATIONS AND HEADQUARTERS AND ACCORDINGLY DURING OFFICIAL TRAVEL TIME THE EMPLOYEE IS LIMITED TO PAY AT THE BASIC RATE PER HOUR FOR NOT TO EXCEED 8 HOURS PER DAY.

AS SUGGESTED IN THE CONCLUDING SENTENCE OF THE FOURTH PARAGRAPH OF YOUR LETTER, THAT RULE WOULD BE APPLICABLE TO TRAVEL TIME ON SUNDAY, ALSO.

THAT RULE WAS STATED AT A TIME WHEN EMPLOYEES WERE NOT REQUIRED BY GENERAL ADMINISTRATIVE ORDERS TO WORK REGULARLY 48 HOURS ON 6 DAYS PER WEEK. UNDER THE PRESENT WARTIME CONDITIONS AND IN ACCORDANCE WITH ADMINISTRATIVE ORDERS, IT IS UNDERSTOOD FROM YOUR LETTER THAT THE EMPLOYEES TO WHOM YOU REFER HAVE NO DISCRETION TO DETERMINE WHETHER THEY WILL OR WILL NOT WORK ON SATURDAY, THE SIXTH DAY OF THE WEEK FOR WHICH OVERTIME RATES OF COMPENSATION ARE PAID, BUT THAT WORK ON SUNDAY, THE SEVENTH DAY OF THE WEEK ON WHICH OVERTIME RATES OF COMPENSATION ARE PAID, IS NOT MANDATORY IN ALL CASES--- EMPLOYEES REMAINING ON CALL IF AND WHEN THE NEED FOR THEIR SERVICES ARE REQUIRED ON SUNDAY.

GENERALLY, EMPLOYEES ARE ENTITLED DURING TRAVEL TIME ON OFFICIAL BUSINESS TO THE SAME COMPENSATION PER DAY THEY WOULD HAVE RECEIVED HAD THEY BEEN ON DUTY AT THEIR REGULAR STATION; THAT IS, THEY ARE REGARDED AS IN A DUTY STATUS DURING THE SAME NUMBER OF HOURS THEY WOULD HAVE WORKED REGULARLY AT THEIR OFFICIAL STATION. 22 COMP. GEN. 636. IN LINE WITH SUCH GENERAL RULE, AND IN THE LIGHT OF THE EXISTING REGULARLY REQUIRED EMPLOYMENT ON SATURDAY--- THE OVERTIME DAY--- I HAVE TO ADVISE THE RULE STATED IN DECISION OF JUNE 18, 1935, HEREAFTER WILL NOT BE REGARDED AS PRECLUDING PAYMENT FOR TRAVEL TIME ON SATURDAY OF NOT TO EXCEED 8 HOURS' OVERTIME COMPENSATION WHICH WOULD HAVE BEEN PAID TO HIM HAD HE REMAINED ON DUTY AT HIS OFFICIAL STATION. COMPARE 23 COMP. GEN. 904. HOWEVER, FOR TRAVEL TIME ON SUNDAY THE RULE STATED IN 14 COMP. GEN. 907, REMAINS IN FORCE, THAT IS, THE EMPLOYEE IS ENTITLED TO ONLY HIS BASIC RATE OF COMPENSATION FOR NOT TO EXCEED 8 HOURS FOR TRAVEL TIME ON SUNDAY. COMPARE DECISION OF JULY 4, 1944 (B-42854), 24 COMP. GEN. 11. NO DISTINCTION IN THIS RESPECT IS REQUIRED BETWEEN TRAVEL BY COMMON CARRIER AND BY PRIVATELY OWNED CONVEYANCE. QUESTION 1 IS ANSWERED ACCORDINGLY.

AS STATED IN YOUR LETTER, IT HAS BEEN HELD THAT TRUCK DRIVERS ACTUALLY ARE PERFORMING DUTY WHILE DRIVING A TRUCK AS DISTINGUISHED FROM TRAVELING ON OFFICIAL BUSINESS, AND, ACCORDINGLY, ARE ENTITLED UPON THAT BASIS TO REGULAR AND OVERTIME COMPENSATION COMPUTED PURSUANT TO LAW. 21 COMP. GEN. 724. WHILE THAT DECISION APPLIED THE PROVISIONS OF THE ACT OF OCTOBER 21, 1940, 54 STAT. 1205, WHEREIN THE TERM "EMPLOYMENT" WAS USED, THE SAME CONCLUSION IS JUSTIFIED AS TO TRUCK DRIVERS COMING WITHIN THE PURVIEW OF SECTION 23 OF THE ACT OF MARCH 28, 1934, THAT IS, THE DUTY OF DRIVING TRUCK MAY BE REGARDED AS "LABOR" WITHIN THE MEANING OF SAID STATUTE. HOWEVER, DURING A RETURN TRIP WHEN TRUCK DRIVERS TRAVEL AS PASSENGERS THEY SHOULD BE REGARDED AS TRAVELING ON OFFICIAL BUSINESS. HENCE, THE SAME RULES ARE FOR APPLICATION IN ANSWERING QUESTION 2 AS WERE STATED IN ANSWERING QUESTION 1. UPON THAT BASIS DURING SUCH TRAVEL TIME AS PASSENGERS, TRUCK DRIVERS ARE ENTITLED (A) TO BASIC COMPENSATION NOT TO EXCEED 8 HOURS FOR TRAVEL TIME ON SATURDAY, AND (C) TO BASIC COMPENSATION NOT TO EXCEED 8 HOURS FOR TRAVEL TIME ON SUNDAY.