B-167804, MARCH 11, 1970, 49 COMP. GEN. 577

B-167804: Mar 11, 1970

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PART-TIME WAE EMPLOYEES PART-TIME IMMIGRATION INSPECTORS EMPLOYED ON AN INTERMITTENT BASIS AT HOURLY RATES REGARDLESS OF THE DAY OR TIME OF DAY THEY ARE REQUIRED TO PERFORM SERVICE. WHO ARE PAID OVERTIME COMPENSATION FOR WORK PERFORMED IN EXCESS OF 8 HOURS IN A DAY UNDER 5 U.S.C. 5542(A). HAVING NO REGULAR HOURS OF DUTY ARE NOT ELIGIBLE FOR THE EXTRA COMPENSATION PRESCRIBED BY THE ACT OF MARCH 2. THE INSPECTORS ARE ENTITLED TO 2 DAYS EXTRA PAY FOR SUNDAY AND HOLIDAY DUTY PURSUANT TO THE 1931 ACT. SINCE THEY HAVE NO REGULAR TOUR OF DUTY. THE SEVENTEEN INSPECTORS ARE EMPLOYED ON AN INTERMITTENT BASIS AND ARE PAID AT THE BASIC HOURLY RATE FOR THEIR GRADES REGARDLESS OF THE DAY OR TIME OF DAY THEY &RE REQUIRED TO PERFORM SERVICE.

B-167804, MARCH 11, 1970, 49 COMP. GEN. 577

COMPENSATION -- OVERTIME -- INSPECTIONAL SERVICE EMPLOYEES -- PART-TIME WAE EMPLOYEES PART-TIME IMMIGRATION INSPECTORS EMPLOYED ON AN INTERMITTENT BASIS AT HOURLY RATES REGARDLESS OF THE DAY OR TIME OF DAY THEY ARE REQUIRED TO PERFORM SERVICE, AND WHO ARE PAID OVERTIME COMPENSATION FOR WORK PERFORMED IN EXCESS OF 8 HOURS IN A DAY UNDER 5 U.S.C. 5542(A), HAVING NO REGULAR HOURS OF DUTY ARE NOT ELIGIBLE FOR THE EXTRA COMPENSATION PRESCRIBED BY THE ACT OF MARCH 2, 1931 (8 U.S.C. 1353A) FOR WORK BETWEEN 5 P.M. AND 8 A.M. HOWEVER, THE INSPECTORS ARE ENTITLED TO 2 DAYS EXTRA PAY FOR SUNDAY AND HOLIDAY DUTY PURSUANT TO THE 1931 ACT, BUT SINCE THEY HAVE NO REGULAR TOUR OF DUTY, THEY MAY NOT RECEIVE THEIR REGULAR PAY IN ADDITION TO THE EXTRA PAY.

TO THE ATTORNEY GENERAL, MARCH 11, 1970:

BY LETTER DATED AUGUST 22, 1969, REFERENCE CO 851.1-P, THE ASSOCIATE COMMISSIONER, MANAGEMENT, IMMIGRATION AND NATURALIZATION SERVICE, FORWARDED FOR OUR CONSIDERATION THE CLAIMS OF SEVENTEEN PART-TIME IMMIGRATION INSPECTORS FOR ADDITIONAL COMPENSATION UNDER SECTION 1 OF THE ACT OF MARCH 2, 1931, 8 U.S.C. 1353A.

THE SEVENTEEN INSPECTORS ARE EMPLOYED ON AN INTERMITTENT BASIS AND ARE PAID AT THE BASIC HOURLY RATE FOR THEIR GRADES REGARDLESS OF THE DAY OR TIME OF DAY THEY &RE REQUIRED TO PERFORM SERVICE. ALTHOUGH THEY ARE PAID OVERTIME COMPENSATION FOR WORK PERFORMED IN EXCESS OF 8 HOURS IN A DAY UNDER 5 U.S.C. 5542(A), THEY ARE NOT PAID EXTRA COMPENSATION FOR OVERTIME, SUNDAY AND HOLIDAY WORK UNDER 8 U.S.C. 1353A. IN THAT REGARD, SECTION 16 OF THE IMMIGRATION AND NATURALIZATION SERVICE ADMINISTRATIVE MANUAL PROVIDES AS FOLLOWS:

PART-TIME IMMIGRATION OFFICERS ENGAGED IN INSPECTION OF ARRIVING PASSENGERS AND CREWS OR IN OTHER DUTIES, WHOSE HOURS OR DAYS OF WORK ARE LESS THAN THE PRESCRIBED HOURS OR DAYS OF WORK FOR FULL-TIME EMPLOYEES (LESS THAN A BASIC 40-HOUR WORK-WEEK), ARE NOT CONSIDERED TO BE IMMIGRATION OFFICERS WITHIN THE MEANING OF THESE PROCEDURES. ACCORDINGLY, THEY ARE NOT ENTITLED TO EXTRA COMPENSATION HEREUNDER.

THE PART-TIME INSPECTORS CONTEND THAT THEY ARE ENTITLED TO EXTRA COMPENSATION UNDER 8 U.S.C. 1353A AND POINT OUT THAT SIMILAR EMPLOYEES OF THE CUSTOMS SERVICE ARE PAID EXTRA COMPENSATION FOR OVERTIME, SUNDAY AND HOLIDAY WORK UNDER THE ACT OF FEBRUARY 13, 1911, 19 U.S.C. 267.

SECTION 1 OF THE ACT OF MARCH 2, 1931, 8 U.S.C. 1353A PROVIDES:

THE ATTORNEY GENERAL SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF IMMIGRATION OFFICERS AND EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE WHO MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN THE HOURS OF FIVE O'CLOCK POST MERIDIAN AND EIGHT O'CLOCK ANTEMERIDIAN, OR ON SUNDAYS OR HOLIDAYS, TO PERFORM DUTIES IN CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS AND CREWS OF STEAMSHIPS, TRAINS, AIRPLANES, OR OTHER VEHICLES, ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT BY WATER, LAND, OR AIR, SUCH RATES TO BE FIXED ON A BASIS OF ONE-HALF DAY'S ADDITIONAL PAY FOR EACH TWO HOURS OR FRACTION THEREOF OF AT LEAST ONE HOUR THAT THE OVERTIME EXTENDS BEYOND FIVE O'CLOCK POST MERIDIAN (BUT NOT TO EXCEED TWO AND ONE-HALF DAYS' PAY FOR THE FULL PERIOD FROM FIVE O'CLOCK POST MERIDIAN TO EIGHT O'CLOCK ANTEMERIDIAN) AND TWO ADDITIONAL DAYS' PAY FOR SUNDAY AND HOLIDAY DUTY; IN THOSE PORTS WHERE THE CUSTOMARY WORKING HOURS ARE OTHER THAN THOSE HERETOFORE MENTIONED, THE ATTORNEY GENERAL IS VESTED WITH AUTHORITY TO REGULATE THE HOURS OF SUCH EMPLOYEES SO AS TO AGREE WITH THE PREVAILING WORKING HOURS IN SAID PORTS, BUT NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED IN ANY MANNER TO AFFECT OR ALTER THE LENGTH OF A WORKING DAY FOR SUCH EMPLOYEES OR THE OVERTIME PAY HEREIN FIXED.

WE HAVE CONSTRUED THE ABOVE LANGUAGE TO MEAN THAT AN EMPLOYEE, TO BE ENTITLED TO OVERTIME PAY THEREUNDER, MUST PERFORM AT LEAST 1 HOUR OF WORK BETWEEN THE HOURS OF 5 P.M. AND 8 A.M. AND SUCH WORK MUST BE IN ADDITION TO HIS REGULAR TOUR OF DUTY. 10 COMP. GEN. 487 (1931), 24 ID. 140 (1944). IN UNITED STATES V MYERS, 320 U.S. 561 (1944), THE SUPREME COURT HELD THAT THE EXTRA COMPENSATION AUTHORIZED FOR WORK BETWEEN THE HOURS OF 5 P.M. AND 8 A.M. COULD NOT BE PAID UNDER THE CUSTOMS OVERTIME PROVISIONS CONTAINED IN THE ACT OF 1911 (19 U.S.C. 267) UNTIL THE EMPLOYEE HAD PERFORMED HIS REGULAR TOUR OF DUTY.

WHILE THE ABOVE DECISION OF THE SUPREME COURT WITH RESPECT TO WORK BETWEEN 5 P.M. AND 8 A.M. DID NOT SPECIFICALLY REFER TO FULL-TIME EMPLOYEES WITH REGULAR TOURS OF DUTY OUR VIEW IS THAT IT WAS SO INTENDED. THEREFORE, SINCE THE EMPLOYEES IN QUESTION WORK INTERMITTENTLY AND HAVE NO REGULAR TOURS OF DUTY THEY ARE NOT ELIGIBLE FOR PAYMENT OF EXTRA COMPENSATION FOR WORK PERFORMED BETWEEN 5 P.M. AND 8 A.M. UNDER 8 U.S.C. 1353A.

CONCERNING EXTRA PAY FOR SUNDAY AND HOLIDAY DUTY, HOWEVER, WE QUOTE THE FOLLOWING STATEMENT FROM UNITED STATES V MYERS, SUPRA, AT PAGE 574:

AS TO SUNDAYS AND HOLIDAYS, WE CONSTRUE THE STATUTE TO REQUIRE EXTRA COMPENSATION FOR INSPECTORS WITHOUT REGARD TO THE HOURS OF THE DAY OR WHETHER SUCH SERVICES ARE ADDITIONAL TO A REGULAR WEEKLY TOUR OF DUTY.

UNDER THAT CONSTRUCTION, WHICH IS EQUALLY APPLICABLE TO THE LANGUAGE OF 8 U.S.C. 1353A, THE INTERMITTENT EMPLOYEES ARE ENTITLED TO EXTRA PAY FOR SUNDAY AND HOLIDAY SERVICE. HOWEVER, SINCE THEY HAVE NO REGULAR TOUR OF DUTY WE BELIEVE THEY SHOULD NOT RECEIVE THEIR REGULAR PAY FOR SUCH WORK IN ADDITION TO THE 2 DAYS PAY ALLOWABLE UNDER 8 U.S.C. 1353A.

THE CLAIMS ARE RETURNED FOR ADMINISTRATIVE HANDLING IN ACCORDANCE WITH THE ABOVE. ALSO, FOR YOUR INFORMATION, WE ENCLOSE A COPY OF OUR LETTER OF TODAY TO THE COMMISSIONER OF CUSTOMS CONCERNING THIS MATTER.

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