B-46170, DECEMBER 16, 1944, 24 COMP. GEN. 456

B-46170: Dec 16, 1944

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1944: I HAVE YOUR LETTER OF DECEMBER 6. IT WAS ESSENTIAL THAT CERTAIN EMPLOYEES OF THE WASHINGTON OFFICE BE REQUIRED TO COMMUTE DAILY TO BALTIMORE. THE SEVERAL EMPLOYEES WERE DIRECTED TO LEAVE WASHINGTON AT 7:25 A.M. THE COMMISSION IS OPERATING AS FOLLOWS: (1) A SIX- DAY. (2) NO EMPLOYEE OF THE COMMISSION IS REQUIRED TO WORK IN EXCESS OF FORTY-EIGHT HOURS IN ANY ONE WEEK UNLESS SUCH OVERTIME IS ORDERED OR APPROVED. (3) WHEN EXCESS OVERTIME IS ORDERED. COMPENSATORY LEAVE IN LIEU OF COMPENSATION IS GRANTED. IN NO CASE LATER THAN NINETY DAYS AFTER THE EXCESS OVERTIME IS PERFORMED. THAT IF SUCH COMPENSATORY LEAVE SHALL NOT HAVE BEEN GRANTED WITHIN THE NINETY DAYS. THE EMPLOYEE IS THEN ENTITLED TO RECEIVE OVERTIME COMPENSATION FOR SUCH EMPLOYMENT.

B-46170, DECEMBER 16, 1944, 24 COMP. GEN. 456

COMPENSATORY TIME; OVERTIME COMPENSATION - TRAVEL TIME MERE TRAVEL, NOT INVOLVING THE PERFORMANCE OF ANY ACTUAL DUTY, DURING HOURS OUTSIDE OF THE ADMINISTRATIVELY ESTABLISHED 48-HOUR WORKWEEK OF AN EMPLOYEE REQUIRED TO COMMUTE DAILY BETWEEN HIS HEADQUARTERS AND A TEMPORARY STATION MAY BE REGARDED AS "WORK IN EXCESS OF 48 HOURS IN ANY ADMINISTRATIVE WORKWEEK" WITHIN THE MEANING OF SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943, SO AS TO ENTITLE THE EMPLOYEE TO OVERTIME COMPENSATION OR TO COMPENSATORY TIME OFF FROM DUTY IN LIEU THEREOF FOR THE TRAVEL TIME INVOLVED.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, FEDERAL POWER COMMISSION, DECEMBER 16, 1944:

I HAVE YOUR LETTER OF DECEMBER 6, 1944, AS FOLLOWS:

DUE TO THE NECESSITY OF EXPEDITING THE WORK OF THIS COMMISSION AND THE LACK OF TRAINED EMPLOYEES AVAILABLE IN THE BALTIMORE REGIONAL OFFICE TO COMPLETE THE ASSIGNMENT IN THE REQUIRED TIME, IT WAS ESSENTIAL THAT CERTAIN EMPLOYEES OF THE WASHINGTON OFFICE BE REQUIRED TO COMMUTE DAILY TO BALTIMORE. IN ORDER TO ACCOMPLISH THE MAXIMUM AMOUNT OF WORK EACH DAY, THE SEVERAL EMPLOYEES WERE DIRECTED TO LEAVE WASHINGTON AT 7:25 A.M. AND TO LEAVE BALTIMORE AT 4:35 P.M.

UNDER THE POLICY ESTABLISHED BY THE FEDERAL POWER COMMISSION AND IN ACCORDANCE WITH THE " WAR OVERTIME PAY ACT OF 1943" ( PUBLIC LAW 49, APPROVED MAY 7, 1943), THE COMMISSION IS OPERATING AS FOLLOWS: (1) A SIX- DAY, FORTY-EIGHT HOUR WEEK CONSISTING OF A BASIC WORK-WEEK OF FORTY HOURS AND OVERTIME OF EIGHT HOURS; (2) NO EMPLOYEE OF THE COMMISSION IS REQUIRED TO WORK IN EXCESS OF FORTY-EIGHT HOURS IN ANY ONE WEEK UNLESS SUCH OVERTIME IS ORDERED OR APPROVED; (3) WHEN EXCESS OVERTIME IS ORDERED, COMPENSATORY LEAVE IN LIEU OF COMPENSATION IS GRANTED, SUCH LEAVE TO BE TAKEN WITHIN THE TWO WEEKS FOLLOWING, IF POSSIBLE, BUT IN NO CASE LATER THAN NINETY DAYS AFTER THE EXCESS OVERTIME IS PERFORMED; AND, PROVIDED, THAT IF SUCH COMPENSATORY LEAVE SHALL NOT HAVE BEEN GRANTED WITHIN THE NINETY DAYS, THE EMPLOYEE IS THEN ENTITLED TO RECEIVE OVERTIME COMPENSATION FOR SUCH EMPLOYMENT, COMPUTED ON THE SALARY BASIS APPLICABLE AT THE TIME SERVICE WAS RENDERED.

IN CONSIDERATION OF THE GRANTING OF COMPENSATORY LEAVE IN LIEU OF ADDITIONAL COMPENSATION FOR EXCESS OVERTIME THE QUESTION ARISES AS TO THE LEGALITY OF GRANTING SUCH LEAVE FOR OVERTIME BETWEEN THE HOURS OF 7:25 A.M. TO 8:30 A.M. AND 5:00 P.M. TO 5:25 P.M.

I AM COGNIZANT OF THE COMPTROLLER GENERAL'S DECISION OF JUNE 18, 1935, 14 COMP. GEN. 907, THAT TRAVEL TIME IS NOT "LABOR" WITHIN THE MEANING OF THE 1934 LAW AND, ALSO, AS STATED IN 22 COMP. GEN. 636--- 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 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 (21 COMP. GEN. 724), AND THERE MAY BE OTHER EXCEPTIONS NOT SUGGESTED BY THE PRESENT RECORD.'

IN CONSIDERING THE ABOVE DECISIONS AND ESPECIALLY THE PHRASE "GENERALLY IT IS NOT," THE LANGUAGE APPEARS SUFFICIENTLY BROAD TO COVER MANY KINDS OF SITUATIONS. FOR EXAMPLE, WOULD THE GENERALIZATION BE APPLICABLE UNDER, (1) CIRCUMSTANCES WHICH WOULD HAVE THE EFFECT OF DELAYING ESSENTIAL WORK OF AN AGENCY IF THE EMPLOYEE IS REQUIRED TO PERFORM THE NECESSARY TRAVEL WITHIN THE PRESCRIBED EIGHT HOUR TOUR OF DUTY; OR (2) HAVE THE EFFECT OF PENALIZING AN EMPLOYEE, WHO VOLUNTARILY TRAVELS OUTSIDE OF PRESCRIBED WORKING HOURS AT CONSIDERABLE INCONVENIENCE, IN ORDER TO COMPLETE THE ASSIGNMENT AT THE REQUIRED TIME? IN OTHER WORDS, IS IT NOT TO THE INTEREST OF THE GOVERNMENT THAT ESSENTIAL WORK BE COMPLETED IN THE MOST PRACTICABLE AND EFFICIENT MANNER POSSIBLE WHEN EXTRAORDINARY PROCEDURE MUST BE EMPLOYED? IN THE CASE PRESENTED, THE ARRIVAL OF THESE EMPLOYEES AT THEIR POSTS OF DUTY AT THE SAME HOUR AS EMPLOYEES REGULARLY ASSIGNED AT BALTIMORE AND THE DEPARTURE OF THE EMPLOYEES IN QUESTION FROM BALTIMORE SHORTLY BEFORE THOSE REGULARLY ASSIGNED TO THE BALTIMORE OFFICE RESULTED IN THE COMPLETION OF THE ESSENTIAL JOB WITH THE MAXIMUM EFFICIENCY.

IN VIEW OF THE FOREGOING, YOUR OPINION IS RESPECTFULLY REQUESTED AS TO WHETHER THE COMMISSION CAN LEGALLY GRANT COMPENSATORY LEAVE IN LIEU OF ADDITIONAL COMPENSATION FOR THE EXCESS OVERTIME, DUE TO TRAVEL, OR WHETHER IN THE EVENT OF INABILITY TO GRANT COMPENSATORY LEAVE WITHIN THE PRESCRIBED NINETY-DAY PERIOD, PAYMENT FOR THIS ADDITIONAL TIME MAY BE MADE.

FOR THE PURPOSE OF THIS DECISION IT WILL BE ASSUMED THAT THE TRAVEL ORDERS PROPERLY WERE ISSUED FOR DAILY REPEATED TRAVEL OF THE EMPLOYEES HERE INVOLVED FROM WASHINGTON TO BALTIMORE AND RETURN.

SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, 57 STAT. 76, PROVIDES:

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: PROVIDED, THAT SUCH OVERTIME COMPENSATION SHALL BE PAID ONLY ON THE PORTION OF AN OFFICER'S OR EMPLOYEE'S BASIC RATE OF COMPENSATION NOT IN EXCESS OF $2,900 PER NNUM: PROVIDED FURTHER, THAT SUCH OVERTIME COMPENSATION SHALL BE PAID ON SUCH PORTION OF AN OFFICER'S OR EMPLOYEE'S BASIC RATE OF COMPENSATION NOTWITHSTANDING THE FACT THAT SUCH PAYMENT WILL CAUSE HIS AGGREGATE COMPENSATION TO EXCEED A RATE OF $5,000 PER ANNUM: 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.)

THE FORMULA FOR PAYING OVERTIME COMPENSATION PRESCRIBED "UNDER PUBLIC LAW NUMBERED 821, SEVENTY-SEVENTH CONGRESS" APPROVED DECEMBER 22, 1942, 56 STAT. 1068, IS THE SAME FORMULA AS WAS PRESCRIBED IN EARLIER OVERTIME LAWS APPLICABLE TO EMPLOYEES OF THE WAR AND NAVY DEPARTMENTS--- SAID FORMULA BEING AS FOLLOWS (QUOTING FROM THE ACT OF OCTOBER 21, 1940, 54 STAT. 1205):

* * * COMPENSATION FOR EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK COMPUTED AT A RATE NOT LESS THAN ONE AND ONE HALF TIMES THE REGULAR RATE * * * PROVIDED, THAT IN DETERMINING THE OVERTIME COMPENSATION OF THE FOREGOING PER ANNUM GOVERNMENT EMPLOYEES THE PAY FOR ONE DAY SHALL BE CONSIDERED TO BE ONE THREE-HUNDRED-AND SIXTIETH OF THEIR RESPECTIVE PER ANNUM SALARIES. (ITALICS SUPPLIED.)

REGARDLESS OF THE OVERTIME LAW UNDER WHICH EMPLOYEES ARE PAID OVERTIME COMPENSATION, AND REGARDLESS OF WHETHER THE WORD "LABOR," "EMPLOYMENT," OR "WORK" (SEE ITALICIZED WORDS ABOVE) IN USED IN THE STATUTE, TRAVEL TIME, ALONE (WITHOUT PERFORMANCE OF ACTUAL DUTY), AWAY FROM HEADQUARTERS DOES NOT ENTITLE AN EMPLOYEE TO ANY MORE COMPENSATION THAN HE WOULD HAVE RECEIVED HAD HE REMAINED AND WORKED AT HIS OFFICIAL STATION DURING HIS REGULAR TOUR OF DUTY OR ADMINISTRATIVE WORKWEEK. THAT IS TO SAY, TRAVEL TIME, ALONE, DOES NOT ENTITLE AN EMPLOYEE EITHER TO REGULAR COMPENSATION OR OVERTIME COMPENSATION BEYOND HIS REGULAR TOUR OF DUTY OR REGULAR ADMINISTRATIVE WORKWEEK. IN ADDITION TO 14 COMP. GEN. 907 AND 22 ID. 636, CITED IN YOUR LETTER, SEE 24 COMP. GEN. 65, AND DECISION OF SEPTEMBER 9, 1944, B-44098, 24 COMP. GEN. 210--- A COPY OF THE LAST-CITED DECISION BEING ENCLOSED HEREWITH.

AS SECTION 2 OF THE WAR OVERTIME AY ACT OF 1943, ABOVE QUOTED, AUTHORIZES THE GRANTING OF COMPENSATORY TIME OFF FROM DUTY IN LIEU OF PAYING OVERTIME COMPENSATION ONLY FOR OVERTIME WORK PERFORMED IN EXCESS OF 48 HOURS PER WEEK, AND AS TRAVEL TIME, ALONE, DOES NOT INCREASE AN ADMINISTRATIVE WORKWEEK OF 48 HOURS, BOTH QUESTIONS (THE PRINCIPAL AND ALTERNATE) POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER ARE ANSWERED IN THE NEGATIVE.