B-166304, APR. 7, 1969

B-166304: Apr 7, 1969

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THE DEPUTY ASSISTANT SECRETARY'S LETTER READS IN PART AS FOLLOWS: "REFERENCE IS MADE TO SECTIONS 5542 AND 5544 OF TITLE 5. INCREASED PRSSURE IS BEING BROUGHT TO BEAR ON THE DEPARTMENT TO PROVIDE PAID REST PERIODS AND/OR PAID LUNCH PERIODS DURING OVERTIME HOURS. YOUR DECISION IS REQUESTED AS TO WHETHER THE ABOVE CITED STATUTORY PROVISIONS MAY BE CONSTRUED AS PERMITTING OVERTIME PREMIUM PAY FOR REST PERIODS AND/OR LUNCH PERIODS DURING OVERTIME HOURS.'. IN THE EXERCISE OF SUCH AUTHORITY WE BELIEVE THAT BRIEF REST PERIODS DURING THE DAILY TOUR OF DUTY MAY BE GRANTED WHEN IN THE DISCRETION OF THE ADMINISTRATIVE OFFICIALS SUCH REST PERIODS ARE DETERMINED TO BE BENEFICIAL OR ESSENTIAL TO THE SERVICE.

B-166304, APR. 7, 1969

TO MR. SECRETARY:

THIS REFERS TO LETTER OF MARCH 7, 1969, FROM THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS) REQUESTING OUR DECISION AS TO THE PROPRIETY OF PAYING OVERTIME COMPENSATION FOR PERIODS OF LUNCH AND/OR REST WHICH OCCUR DURING OVERTIME HOURS OF WORK. THE DEPUTY ASSISTANT SECRETARY'S LETTER READS IN PART AS FOLLOWS:

"REFERENCE IS MADE TO SECTIONS 5542 AND 5544 OF TITLE 5, U.S.C., WHICH PROVIDE THE BASIC STATUTORY AUTHORITY FOR PAYMENT OF OVERTIME PREMIUM RATES IN THE CASE OF GENERAL SCHEDULE AND WAGE BOARD EMPLOYEES. THE DEPARTMENT OF THE ARMY HAS CONSISTENTLY CONSTRUED THESE PROVISIONS AS PERMITTING THE PAYMENT OF OVERTIME PREMIUM RATES ONLY FOR OVERTIME WORK ACTUALLY PERFORMED AS DISTINGUISHED FROM REST PERIODS, LUNCH PERIODS, AND OTHER FORMS OF NON-WORK TIME.

"IN NEGOTIATING AGREEMENTS WITH EMPLOYEE ORGANIZATIONS, INCREASED PRSSURE IS BEING BROUGHT TO BEAR ON THE DEPARTMENT TO PROVIDE PAID REST PERIODS AND/OR PAID LUNCH PERIODS DURING OVERTIME HOURS. PRIOR TO ENTERING INTO ANY SUCH AGREEMENTS, HOWEVER, YOUR DECISION IS REQUESTED AS TO WHETHER THE ABOVE CITED STATUTORY PROVISIONS MAY BE CONSTRUED AS PERMITTING OVERTIME PREMIUM PAY FOR REST PERIODS AND/OR LUNCH PERIODS DURING OVERTIME HOURS.'

UNDER SECTIONS 6101 (A) AND 6102 OF TITLE 5, U.S.C. EACH FEDERAL AGENCY HAS THE AUTHORITY TO DETERMINE WHAT CONSTITUTES HOURS OF WORK WITHIN AN EMPLOYEE'S ESTABLISHED TOUR OF DUTY. IN THE EXERCISE OF SUCH AUTHORITY WE BELIEVE THAT BRIEF REST PERIODS DURING THE DAILY TOUR OF DUTY MAY BE GRANTED WHEN IN THE DISCRETION OF THE ADMINISTRATIVE OFFICIALS SUCH REST PERIODS ARE DETERMINED TO BE BENEFICIAL OR ESSENTIAL TO THE SERVICE. PERCEIVE NO VALID BASIS FOR DISTINGUISHING BETWEEN REGULAR HOURS OF WORK AND OVERTIME HOURS OF WORK SO FAR AS CONCERNS THE GRANTING OF REST PERIODS. THEREFORE, WHERE IT IS DETERMINED BY PROPER ADMINISTRATIVE AUTHORITY THAT BRIEF REST PERIODS DURING OVERTIME HOURS OF WORK ARE ESSENTIAL OR BENEFICIAL TO THE SERVICE, SUCH REST PERIODS MAY BE REGARDED AS DUTY TIME FOR WHICH OVERTIME COMPENSATION IS PAYABLE.

WITH RESPECT TO LUNCH BREAKS, HOWEVER, THE LAW IS WELL-ESTABLISHED THAT TIME SET ASIDE FOR EATING IS NONCOMPENSABLE UNLESS THE EMPLOYEE IS REQUIRED TO PERFORM SUBSTANTIAL OFFICIAL DUTIES DURING THAT PERIOD. SEE AYRES V UNITED STATES, CT.CL. NO. 412-64, DECEMBER 13, 1968; BANTOM V UNITED STATES, 165 CT.CL. 312; ARMSTRONG V UNITED STATES, 144 ID. 659; 42 COMP. GEN. 195; 40 ID. 397. THEREFORE, LUNCH PERIODS WHICH DO NOT SATISFY THAT TEST DO NOT QUALIFY FOR OVERTIME PAY.

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