B-82637, MARCH 28, 1949, 28 COMP. GEN. 547

B-82637: Mar 28, 1949

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OVERTIME AND HOLIDAY COMPENSATION - TRAVEL TIME WHILE NO RIGID RULE MAY BE FIXED FOR DETERMINING WHEN TRAVEL TIME OUTSIDE OF AN EMPLOYEES 40-HOUR WEEKLY TOUR OF DUTY IS COMPENSABLE AT OVERTIME RATES UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. PAYMENT OF OVERTIME COMPENSATION HAS BEEN AUTHORIZED WHERE THE CIRCUMSTANCES AND CONDITIONS OF THE TRAVEL WERE SO UNUSUAL. " AS TO WARRANT A CONCLUSION THAT SUCH TRAVEL WAS INSEPARABLE FROM "EMPLOYMENT" WITHIN THE MEANING OF SAID SECTION 201. PREMIUM PAY FOR TRAVEL ON HOLIDAYS IS TO BE REGARDED AS AUTHORIZED UNDER THE HOLIDAY COMPENSATION PROVISIONS OF SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. IN THE CASE OF EMPLOYEES WHO PERFORM OFFICIAL TRAVEL ON A HOLIDAY DURING THEIR BASIC 40-HOUR WEEKLY TOURS OF DUTY WHERE THE CIRCUMSTANCES AND CONDITIONS OF THE TRAVEL WERE SO UNUSUAL SUCH AS "EMERGENT CONDITIONS" OR "ARDUOUS MODES OF TRANSPORTATION.

B-82637, MARCH 28, 1949, 28 COMP. GEN. 547

OVERTIME AND HOLIDAY COMPENSATION - TRAVEL TIME WHILE NO RIGID RULE MAY BE FIXED FOR DETERMINING WHEN TRAVEL TIME OUTSIDE OF AN EMPLOYEES 40-HOUR WEEKLY TOUR OF DUTY IS COMPENSABLE AT OVERTIME RATES UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, PAYMENT OF OVERTIME COMPENSATION HAS BEEN AUTHORIZED WHERE THE CIRCUMSTANCES AND CONDITIONS OF THE TRAVEL WERE SO UNUSUAL, SUCH AS "EMERGENT CONDITIONS" OR ,ARDUOUS MODES OF TRANSPORTATION," AS TO WARRANT A CONCLUSION THAT SUCH TRAVEL WAS INSEPARABLE FROM "EMPLOYMENT" WITHIN THE MEANING OF SAID SECTION 201. PREMIUM PAY FOR TRAVEL ON HOLIDAYS IS TO BE REGARDED AS AUTHORIZED UNDER THE HOLIDAY COMPENSATION PROVISIONS OF SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, IN THE CASE OF EMPLOYEES WHO PERFORM OFFICIAL TRAVEL ON A HOLIDAY DURING THEIR BASIC 40-HOUR WEEKLY TOURS OF DUTY WHERE THE CIRCUMSTANCES AND CONDITIONS OF THE TRAVEL WERE SO UNUSUAL SUCH AS "EMERGENT CONDITIONS" OR "ARDUOUS MODES OF TRANSPORTATION," AS TO CONSTITUTE SUCH TRAVEL AS AN ASSIGNMENT TO DUTY INVOLVING WORK; BUT TRAVEL ON A HOLIDAY OUTSIDE THE BASIC WORKWEEK IS FOR CONSIDERATION UNDER THE RULES FOR OVERTIME PAY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, MARCH 28, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 31, 1948, REQUESTING CLARIFICATION OF CERTAIN DECISIONS INVOLVING OVERTIME COMPENSATION TO PER ANNUM EMPLOYEES FOR TRAVEL TIME OUTSIDE THE BASIC WORKWEEK AND REGULARLY SCHEDULED OVERTIME HOURS, AND THE RELATION THERETO OF DECISIONS IN RESPECT OF PREMIUM PAY FOR TRAVEL PERFORMED ON HOLIDAYS.

YOU REFER TO THE GENERAL RULE, REAFFIRMED IN 27 COMP. GEN. 613, TO THE EFFECT THAT THE OVERTIME COMPENSATION AUTHORIZED FOR PER ANNUM EMPLOYEES BY THE PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, FOR ALL HOURS OF EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK WAS NOT INTENDED TO INCLUDE TRAVEL TIME OUTSIDE THE BASIC WORKWEEK OR THE REGULARLY ORDERED OVERTIME HOURS. ALSO, YOU REFER TO THE DECISION OF SEPTEMBER 20, 1948, B-76062, 28 COMP. GEN. 183, TO THE CHAIRMAN, INTERSTATE COMMERCE COMMISSION, WHEREIN THE PAYMENT OF OVERTIME COMPENSATION WAS APPROVED FOR TRAVEL OF CERTAIN PER ANNUM EMPLOYEES PERFORMED UNDER ABNORMAL CONDITIONS, AFTER COMPLETION OF THE FORTY HOUR WORKWEEK, AND YOU REQUEST TO BE ADVISED AS TO THE EXTENT TO WHCIH THE LATTER DECISION MODIFIES THE RULE EXPRESSED IN 27 COMP. GEN. 613. IN REGARD THERETO, THE FOLLOWING SPECIFIC QUESTIONS ARE SUBMITTED.

(1) SHOULD YOUR DECISION OF 20 SEPTEMBER 1948 BE INTERPRETED TO CONSTITUTE AN EXCEPTION TO THE GENERAL RULE, AS SET FORTH IN 27 COMP. GEN. 613, WHEN TRAVEL IS PERFORMED BY EMPLOYEES SUBJECT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945 UNDER CONDITIONS REASONABLY ANALOGOUS TO THOSE DESCRIBED ON THE SUBMISSION OF THE CHAIRMAN, INTERSTATE COMMERCE COMMISSION?

(2) WHAT IS THE BASIS OF DISTINCTION WHICH SHOULD BE USED TO DETERMINE WHETHER TRAVEL TIME OUTSIDE THE EMPLOYEE'S TOUR OF DUTY IS COMPENSABLE? IS THE CRITERION OF "EMERGENT SITUATION" SUFFICIENT IN ITSELF TO WARRANT PAYMENT OR MUST IT BE COUPLED WITH AN ARDUOUS MODE OF TRANSPORTATION SO AS TO BE CLOSELY ALLIED WITH "WORK?

(3) WOULD YOUR ANSWERS TO (1) AND (2), ABOVE, APPLY TO HOLIDAY RATES WITH EQUAL FORCE AS TO OVERTIME PAY?

REFERRING TO YOUR FIRST QUESTION, THE DECISIONS OF THIS OFFICE, EVEN PRIOR TO THE FEDERAL EMPLOYEES PAY ACT OF 1945, RECOGNIZED THAT, UNDER THE OVERTIME STATUTES THEN IN EFFECT, TRAVEL UNDER CERTAIN CONDITIONS OF PER ANNUM EMPLOYEES ON OFFICIAL BUSINESS OUTSIDE THEIR BASIC WORKWEEK IS TO BE REGARDED, FOR OVERTIME COMPENSATION PURPOSES, AS THE EQUIVALENT OF "EMPLOYMENT" WITHIN THE MEANING OF THOSE STATUTES. SEE 21 COMP. GEN. 724; 22 ID. 636. THE SAME PRINCIPLE CONTINUED TO BE APPLIED AFTER THE ENACTMENT OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, THE OVERTIME PROVISIONS OF WHICH ARE SIMILAR TO THE PRIOR OVERTIME STATUTES. SEE 26 COMP. GEN. 433; ID. 631; 27 ID. 102; 28 ID. 183. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

WITH REGARD TO YOUR SECOND QUESTION, YOU ARE ADVISED THAT NO RIGID RULE MAY BE FIXED OR STATED FOR DETERMINING IN ALL CASES WHEN TRAVEL TIME OUTSIDE AN EMPLOYEE'S FOR DETERMINING IN ALL CASES WHEN TRAVEL TIME OUTSIDE AN EMPLOYEE'S FORTY-HOUR WEEKLY TOUR OF DUTY IS COMPENSABLE AT OVERTIME RATES UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296. IN THOSE CASES WHERE THE PAYMENT OF OVERTIME COMPENSATION FOR TRAVEL TIME HAS BEEN AUTHORIZED BY DECISIONS OF THIS OFFICE, THE CIRCUMSTANCES AND CONDITIONS OF THE TRAVEL WERE SO UNUSUAL AS TO WARRANT A CONCLUSION THAT SUCH TRAVEL WAS INSEPARABLE FROM "WORK" OR "EMPLOYMENT" WITHIN THE MEANING OF THE APPLICABLE OVERTIME STATUTES. SINCE THE FACTS OF A PARTICULAR CASE MAY VARY CONSIDERABLY, NO SPECIFIC ANSWER MAY BE MADE TO THIS QUESTION. OF COURSE,"EMERGENT SITUATIONS" AND "ARDUOUS MODES OF RANSPORTATION" MENTIONED IN THE LAST PART OF THE QUESTION WOULD BE IMPORTANT FACTORS IN DETERMINING WHETHER TRAVEL TIME SHOULD BE REGARDED AS "EMPLOYMENT" FOR OVERTIME COMPENSATION PURPOSES.

REFERRING TO YOUR THIRD QUESTION, THE HOLIDAY COMPENSATION PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (SECTION 302), 59 STAT. 298, AS AMENDED BY SECTION 11 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 218, PROVIDE, IN PERTINENT PART, AS FOLLOWS:

ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO DUTY ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER DURING HOURS WHICH FALL WITHIN HIS BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS SHALL BE COMPENSATED FOR NOT TO EXCEED EIGHT HOURS OF SUCH DUTY, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, IN LIEU OF HIS REGULAR RATE OF BASIC COMPENSATION FOR SUCH DUTY, AT THE RATE OF TWICE SUCH REGULAR RATE OF BASIC COMPENSATION, IN ADDITION TO ANY EXTRA COMPENSATION FOR NIGHT DUTY PROVIDED BY SECTION 301 OF THIS ACT: * * *

IT IS FOR NOTING THAT, UNDER SAID PROVISION, PREMIUM PAY FOR HOLIDAYS IS AUTHORIZED FOR "ANY OFFICER OR EMPLOYEE ASSIGNED TO DUTY ON A HOLIDAY" DURING HIS BASIC WORKWEEK OF FORTY HOURS, WHEREAS, UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, OVERTIME COMPENSATION IS AUTHORIZED FOR "EMPLOYMENT IN EXCESS OF FORTY HOURS PER WEEK.' IT HAS BEEN HELD THAT THE PHRASE ,ASSIGNED TO DUTY" HAS REFERENCE TO ACTUAL WORK PERFORMED, AND, AS "WORK" NECESSARILY INVOLVES ,EMPLOYMENT," THE CONSIDERATIONS UNDERLYING THE DECISIONS AUTHORIZING OVERTIME COMPENSATION FOR CERTAIN TYPES OF TRAVEL PERFORMED OUTSIDE AN EMPLOYEE'S FORTY-HOUR WORKWEEK, ARE EQUALLY APPLICABLE TO TRAVEL PERFORMED ON HOLIDAYS WITHIN WORKWEEK, ARE EQUALLY APPLICABLE TO TRAVEL PERFORMED ON HOLIDAYS WITHIN SUCH WORKWEEK. IT MAY BE OBSERVED HERE THAT TRAVEL ON A HOLIDAY OUTSIDE THE BASIC WORKWEEK DOES NOT IN ANY CASE ENTITLE AN EMPLOYEE TO HOLIDAY PAY BUT IS FOR CONSIDERATION UNDER THE RULES OF OVERTIME PAY.

IN THE LAST PARAGRAPH OF YOUR LETTER, IT IS STATED THAT THERE ARE CLAIMS PENDING IN YOUR DEPARTMENT FROM EMPLOYEES WHO PERFORMED TRAVEL INCIDENT TO OVERTIME WORK IN CONNECTION WITH FLOOD EMERGENCIES IN THE MISSISSIPPI VALLEY LAST YEAR, WHICH HERETOFORE HAVE BEEN DENIED ON THE STRENGTH OF THE RULING IN 27 COMP. GEN. 613, BUT THAT IF DOUBTS ARISING FROM OTHER DECISIONS CAN BE RECONCILED, IT IS BELIEVED THAT COMPENSATION SHOULD BE ALLOWED. PRESUMABLY, THE CLAIMS INVOLVE HOLIDAY AND OVERTIME COMPENSATION FOR TRAVEL TIME, BUT THE CIRCUMSTANCES AND CONDITIONS THEREOF ARE NOT SUFFICIENTLY STATED TO ENABLE THIS OFFICE TO MAKE ANY DETERMINATION IN REGARD THERETO. HOWEVER, IF ANY DOUBT EXISTS AS TO THE EMPLOYEES' RIGHTS TO ADDITIONAL COMPENSATION FOR TRAVEL TIME AFTER RECEIPT OF THIS DECISION, THE CASES SHOULD BE REFERRED HERE FOR DIRECT SETTLEMENT AS CLAIMS (31 U.S.C. 71), OR FOR ADVANCE DECISION (31 U.S.C. 74, THIRD PARAGRAPH).