B-53081, NOVEMBER 13, 1945, 25 COMP. GEN. 399

B-53081, NOVEMBER 13, 1945, 25 COMP. GEN. 399

FEDERAL EMPLOYEES PAY ACT OF 1945 - OVERTIME COMPENSATION AND NIGHT DIFFERENTIAL WHILE IN TRAVEL STATUS TRAVEL TIME OR INCIDENTAL WAITING TIME, NOT INVOLVING THE PERFORMANCE OF ACTUAL DUTY, DURING HOURS OUTSIDE AN EMPLOYEE'S REGULARLY SCHEDULED HOURS OF WORK DOES NOT ENTITLE THE EMPLOYEE EITHER TO REGULAR COMPENSATION OR TO OVERTIME COMPENSATION UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR TIME SO SPENT; HOWEVER, WHEN SUCH AN EMPLOYEE PERFORMS ACTUAL DUTY WHILE TRAVELING DURING HOURS OUTSIDE OF HIS REGULAR TOUR OF DUTY, HE IS ENTITLED, PURSUANT TO THE PROVISIONS OF SAID ACT, TO REGULAR OR OVERTIME COMPENSATION, DEPENDING ON WHETHER SUCH DUTY IS IN SUBSTITUTION FOR A CORRESPONDING PERIOD OF LEAVE WITHOUT PAY DURING THE SAME BASIC WORKWEEK OR IS IN ADDITION TO THE REQUIRED HOURS OF WORK DURING THE BASIC WORKWEEK. A VETERANS' ADMINISTRATION HOSPITAL ATTENDANT TRAVELING ON OFFICIAL BUSINESS WITH A PATIENT FROM ONE VETERANS' FACILITY TO ANOTHER DURING HOURS OUTSIDE OF THE HOURS OF HIS ADMINISTRATIVELY ESTABLISHED WORKWEEK IS ENTITLED, DURING SUCH HOURS, TO OVERTIME COMPENSATION AS PRESCRIBED BY SECTION 201 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR SUCH TRAVEL TIME AND THE TIME NECESSARY TO DELIVER THE PATIENT TO THE PROPER AUTHORITIES AT THE NEW FACILITY. IN THE CASE OF A VETERANS' ADMINISTRATION HOSPITAL ATTENDANT TRAVELING ON OFFICIAL BUSINESS WITH A PATIENT FROM ONE VETERANS' FACILITY TO ANOTHER DURING HOURS BOTH WITHIN AND OUTSIDE OF HIS REGULAR 8-HOUR TOUR OF DUTY (3:30 P.M. TO 12 MIDNIGHT) THE ADDITIONAL COMPENSATION OF 10 PERCENT FOR NIGHT WORK PAYABLE UNDER SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 TO EMPLOYEES ,ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY" ANY PART OF WHICH FALLS BETWEEN 6 P.M. AND 6 A.M., IS PAYABLE ONLY FOR SUCH TRAVEL AND DUTY PERFORMED DURING THE EMPLOYEES' REGULARLY SCHEDULED TOUR OF DUTY AND NOT FOR ANY HOURS OUTSIDE SUCH TOUR OF DUTY. AN EMPLOYEE WHO PERFORMS OFFICIAL TRAVEL, WITHOUT THE ACTUAL PERFORMANCE OF DUTY, DURING HOURS BOTH WITHIN AND OUTSIDE OF HIS REGULAR 8-HOUR TOUR OF DUTY (3:30 P.M. TO 12 MIDNIGHT) IS ENTITLED TO THE ADDITIONAL COMPENSATION FOR NIGHT WORK, PAYABLE UNDER SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 TO EMPLOYEES "ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY" ANY PART OF WHICH FALLS BETWEEN 6 P.M. AND 6 A.M., ONLY FOR SUCH TRAVEL TIME WITHIN THE HOURS OF HIS REGULARLY SCHEDULED TOUR OF DUTY AND NOT FOR TRAVEL TIME DURING HOURS OUTSIDE SUCH TOUR OF DUTY.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, NOVEMBER 13, 1945:

I HAVE YOUR LETTER OF OCTOBER 3, 1945, AS FOLLOWS:

THERE IS PRESENTED FOR YOUR DECISION THE FOLLOWING CASE WHICH HAS ARISEN UNDER THE FEDERAL EMPLOYEES' PAY ACT OF 1945 ( PUBLIC LAW 106-- 79TH CONGRESS) AND WHICH INVOLVES THE PAYMENT OF OVERTIME, NIGHT DIFFERENTIAL, ETC., INCLUDING A PERIOD DURING WHICH AN EMPLOYEE IS IN AUTHORIZED TRAVEL STATUS. THE FACTS ARE AS FOLLOWS:

HENRY C. BRAY IS EMPLOYED AT THE VETERANS ADMINISTRATION FACILITY AT TUCSON, ARIZONA AS HOSPITAL ATTENDANT, WITH GRADE AND SALARY AS SP 3, $1,704 PER ANNUM. THE REGULAR TOUR OF DUTY IS 8 HOURS FROM 3:30 P.M. TO 12 MIDNIGHT, INCLUDING 1/2 HOUR LUNCHEON, 6 DAYS PER WEEK. THIS EMPLOYEE WAS AUTHORIZED TO TRAVEL FROM TUCSON, ARIZONA TO LOS ANGELES, CALIFORNIA AS AN ATTENDANT TO A VETERANS ADMINISTRATION BENEFICIARY BEING TRANSFERRED TO LOS ANGELES.

MR. BRAY WAS ON DUTY FROM 3:30 P.M. JULY 25, 1945 UNTIL HE DEPARTED FROM TUSCON AS ATTENDANT AT 7:25 P.M. THE SAME DAY. HE ARRIVED AT LOS ANGELES AT 10:05 A.M. JULY 26, 1945 AND THE PATIENT WAS DELIVERED TO THE WARD PERSONNEL AT THE VETERANS ADMINISTRATION FACILITY AT LOS ANGELES AT 12:30 P.M. JULY 26, 1945. THE EMPLOYEE LEFT LOS ANGELES, CALIFORNIA AT 6:30 P.M. JULY 26, ARRIVED IN TUCSON, ARIZONA AT 11:30 A.M. JULY 27, AND REPORTED FOR THE REGULAR TOUR OF DUTY AT 3:30 P.M. HE THEN WORKED HIS REGULAR TOUR OF DUTY FROM 3:30 P.M. UNTIL MIDNIGHT. DURING THE CALENDAR WEEK JULY 22 THROUGH 28, 1945 THE EMPLOYEE WORKED HIS WORKED HIS REGULAR ASSIGNMENT OF 8 HOURS ON JULY 22 ( SUNDAY), JULY 23, 27 AND 28 WITH JULY 24 OFF AS THE "IN LIEU" DAY FOR SUNDAY.

THIS CASE IS REPRESENTATIVE OF MANY CASES IN THE VETERANS ADMINISTRATION WHICH REQUIRE ADJUSTMENT UNDER THE FEDERAL EMPLOYEES' PAY ACT OF 1945 AND IT WILL BE APPRECIATED IF YOUR ADVICE MAY BE RECEIVED AS TO THE NUMBER OF HOURS FOR WHICH NIGHT DIFFERENTIAL, OVERTIME, AND REGULAR COMPENSATION MAY BE PAID IN THIS INSTANCE FOR EACH OF THE DAYS, JULY 25, 26, AND 27, AS WELL AS FOR THE ENTIRE ADMINISTRATIVE WORK WEEK.

THE ESTABLISHED BASIC WORK WEEK FOR THE VETERANS ADMINISTRATION IS MONDAY THROUGH FRIDAY, WITH AN ADMINISTRATIVE WORK WEEK OF 48 HOURS, SATURDAY BEING THE OVERTIME DAY.

THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, 59 STAT. 295, 296, 298, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 201. OFFICERS AND EMPLOYEES TO WHOM THIS TITLE APPLIES SHALL, IN ADDITION TO THEIR BASIC COMPENSATION, BE COMPENSATED FOR ALL HOURS OF EMPLOYMENT, OFFICIALLY ORDERED OR APPROVED, IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK, AT OVERTIME RATES AS FOLLOWS:

(A) FOR EMPLOYEES WHOSE BASIC COMPENSATION IS AT A RATE LESS THAN $2,980 PER ANNUM, THE OVERTIME HOURLY RATE SHALL BE ONE AND ONE-HALF TIMES THE BASIC HOURLY RATE OF COMPENSATION: PROVIDED, THAT IN COMPUTING SUCH OVERTIME COMPENSATION FOR PER ANNUM EMPLOYEES, THE BASIC HOURLY RATE OF COMPENSATION SHALL BE DETERMINED BY DIVIDING THE PER ANNUM RATE BY TWO THOUSAND AND EIGHTY.

SEC. 301. ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY, ANY PART OF WHICH FALLS BETWEEN THE HOURS OF 6 O-CLOCK POST MERIDIAN AND 6 O-CLOCK ANTEMERIDIAN, SHALL, FOR DUTY BETWEEN SUCH HOURS, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, BE PAID COMPENSATION AT A RATE 10 PERCENTUM IN EXCESS OF HIS BASIC RATE OF COMPENSATION FOR DUTY BETWEEN OTHER HOURS: PROVIDED, THAT SUCH DIFFERENTIAL FOR NIGHT DUTY SHALL NOT BE INCLUDED IN COMPUTING ANY OVERTIME COMPENSATION TO WHICH THE OFFICER OR EMPLOYEE MAY BE ENTITLED: AND PROVIDED FURTHER, THAT THIS SECTION SHALL NOT OPERATE TO MODIFY THE PROVISIONS OF THE ACT OF JULY 1, 1944 ( PUBLIC LAW NUMBERED 394, SEVENTY- EIGHTH CONGRESS), OR ANY OTHER LAW AUTHORIZING ADDITIONAL COMPENSATION FOR NIGHT WORK.

IN DECISION OF DECEMBER 16, 1944, 24 COMP. GEN. 456, TO THE CHAIRMAN, FEDERAL POWER COMMISSION, THERE WAS CONSIDERED THE QUESTION WHETHER OVERTIME COMPENSATION UNDER THE WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, 57 STAT. 76, LEGALLY MIGHT BE PAID PER ANNUM EMPLOYEES FOR TRAVEL TIME DURING HOURS OUTSIDE THEIR REGULAR DAILY TOUR OF DUTY WHILE COMMUTING BETWEEN HEADQUARTERS AND A TEMPORARY STATION, AND, IN THAT CONNECTION, IT WAS STATED:

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) IS 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. * * *

WHILE THE PARTICULAR TRAVEL CONSIDERED IN THAT DECISION WAS REPEATED TRAVEL BETWEEN HEADQUARTERS AND A TEMPORARY STATION, THE RULE STATED THEREIN EQUALLY IS APPLICABLE TO OCCASIONAL TRAVEL BETWEEN HEADQUARTERS AND A TEMPORARY STATION SUCH AS THAT PERFORMED BY THE EMPLOYEE REFERRED TO IN YOUR LETTER. THAT IS TO SAY, TRAVEL TIME ALONE (WITHOUT PERFORMANCE OF ACTUAL DUTY) OUTSIDE THE REGULARLY ESTABLISHED HOURS OF WORK DOES NOT ENTITLE A PER ANNUM EMPLOYEE EITHER TO REGULAR COMPENSATION OR OVERTIME COMPENSATION FOR THE TIME SO SPENT. SEE, ALSO, QUESTION AND ANSWER 8 IN DECISION OF JULY 28, 1945, 25 COMP. GEN. 121, AT PAGE 129. CONVERSELY, WHEN SUCH AN EMPLOYEE PERFORMS ACTUAL DUTY WHILE TRAVELING DURING HOURS OUTSIDE HIS REGULAR TOUR OF DUTY, HE IS ENTITLED TO REGULAR OR OVERTIME COMPENSATION, AS THE CASE MAY BE, DEPENDING UPON WHETHER SUCH DUTY IS IN SUBSTITUTION FOR A CORRESPONDING PERIOD OF LEAVE WITHOUT PAY DURING THE SAME BASIC WORKWEEK OR IS IN ADDITION TO THE REQUIRED HOURS OF WORK DURING THE BASIC WORKWEEK. SEE, GENERALLY, QUESTION AND ANSWER 2 IN DECISION OF JULY 28, 1945, SUPRA. OF COURSE, AN EMPLOYEE IN A PAY STATUS IS ENTITLED TO HIS REGULAR COMPENSATION WHILE TRAVELING ON OFFICIAL BUSINESS DURING THE HOURS COMPRISING HIS DAILY TOUR OF DUTY, THE SAME AS IF HE HAD REMAINED AT HEADQUARTERS AND IT IS IMMATERIAL WHETHER, DURING SUCH TRAVEL, HE PERFORMS ACTUAL DUTY.

IN THE LIGHT OF THE FOREGOING, IT WILL BE SEEN THAT FOR JULY 25, THE EMPLOYEE HERE INVOLVED WAS ENTITLED TO HIS REGULAR COMPENSATION FOR THE PERIOD 3:30 P.M. TO 12 MIDNIGHT--- HIS REGULARLY ASSIGNED TOUR OF DUTY ON THAT DATE--- AND, UNDER THE PLAIN TERMS OF SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, SUPRA, HE WOULD BE ENTITLED TO THE NIGHT PAY DIFFERENTIAL AUTHORIZED THEREIN FROM 6 P.M. TO MIDNIGHT.

WITH RESPECT TO JULY 26, IT WOULD APPEAR THAT FROM MIDNIGHT TO 12:30 P.M. THAT DAY--- WHEN, AS STATED IN YOUR LETTER, THE PATIENT WHOM HE ACCOMPANIED WAS DELIVERED TO THE WARD PERSONNEL AT THE VETERANS' ADMINISTRATION FACILITY AT LOS ANGELES--- THE EMPLOYEE WAS ENGAGED IN THE ACTUAL PERFORMANCE OF HIS DUTIES AS AN ATTENDANT. HENCE, HAVING PERFORMED ACTUAL DUTY DURING HOURS OUTSIDE HIS REGULAR TOUR OF DUTY, THAT IS, DURING THE TRAVEL TIME AND THE TIME NECESSARY TO DELIVER THE PATIENT TO PROPER AUTHORITIES AT LOS ANGELES, HE WOULD BE ENTITLED TO OVERTIME COMPENSATION AS PRESCRIBED IN SECTION 201 (A), ABOVE, FOR THE PERIOD FROM MIDNIGHT JULY 26 TO 12:30 P.M. THAT DAY. HOWEVER, SINCE SUCH DUTY WAS PERFORMED DURING HOURS OUTSIDE THE EMPLOYEE'S REGULARLY SCHEDULED TOUR OF DUTY, HE WOULD NOT BE ENTITLED TO NIGHT PAY DIFFERENTIAL FOR THE 6-HOUR PERIOD FROM 12 MIDNIGHT TO 6 A.M. SEE ANSWER TO QUESTION 4 (A) AND (B) IN DECISION OF JULY 26, 1945, 25 COMP. GEN. 102, TO THE ARCHITECT OF THE CAPITOL. THE PERIOD FROM 12:30 P.M. TO 3:30 P.M.--- THE COMMENCEMENT TIME FOR HIS REGULAR TOUR OF DUTY--- REPRESENTS TRAVEL TIME AND INCIDENTAL WAITING TIME, ONLY, AND, IN ACCORDANCE WITH THE RULES HEREINBEFORE STATED, SUCH PERIOD BEING WITHOUT THE HOURS OF HIS TOUR OF DUTY, THE EMPLOYEE WOULD NOT BE ENTITLED EITHER TO REGULAR COMPENSATION OR OVERTIME COMPENSATION THEREFOR. FROM 3:30 P.M. UNTIL MIDNIGHT THE EMPLOYEE WOULD BE ENTITLED TO HIS REGULAR COMPENSATION, PLUS NIGHT PAY DIFFERENTIAL FROM 6 P.M.

THE TRAVEL TIME ON JULY 27, HAVING BEEN FOR A PERIOD OUTSIDE THE EMPLOYEE'S REGULAR TOUR OF DUTY AND NOT HAVING BEEN ACCOMPANIED BY THE PERFORMANCE OF ACTUAL DUTY, WOULD NOT ENTITLE HIM TO ANY REGULAR COMPENSATION OR OVERTIME COMPENSATION FOR SUCH PERIOD, AND NEITHER WOULD HE BE ENTITLED TO NIGHT PAY DIFFERENTIAL FOR SUCH TRAVEL TIME BETWEEN MIDNIGHT AND 6 A.M. ON THAT DAY. OF COURSE, THE EMPLOYEE WOULD BE ENTITLED TO HIS REGULAR COMPENSATION FOR HIS ESTABLISHED TOUR OF DUTY ON THE 27TH, PLUS THE NIGHT PAY DIFFERENTIAL FROM 6 P.M., AS WELL AS OVERTIME COMPENSATION FOR 8 HOURS ON JULY 28.

IN SUMMATION, IT MAY BE STATED THAT THE EMPLOYEE HERE INVOLVED WOULD BE ENTITLED TO HIS REGULAR COMPENSATION FOR THE BASIC ADMINISTRATIVE 40 HOUR WORKWEEK, PLUS OVERTIME COMPENSATION FOR 20 1/2 HOURS (12 MIDNIGHT TO 12:30 P.M. JULY 26 AND 3:30 P.M. TO 12 MIDNIGHT JULY 28), PLUS NIGHT PAY DIFFERENTIAL FOR 30 HOURS, THAT IS, FOR 6 HOURS IN EACH REGULAR DAILY TOUR OF DUTY IN THE BASIC WORKWEEK.