Skip to main content

B-163549, MAR. 6, 1969

B-163549 Mar 06, 1969
Jump To:
Skip to Highlights

Highlights

IT WAS NECESSARY TO SECURE AN ADMINISTRATIVE REPORT COVERING THE NEW DATES ON WHICH YOU CLAIMED OVERTIME COMPENSATION. OR 1 HOUR WHICH WAS A PART OF YOUR SCHEDULED TOUR THAT COMMENCED ON FRIDAY AT 5 P.M. IT IS ADMINISTRATIVELY REPORTED THAT IDENTICAL CIRCUMSTANCES EXISTED ON APRIL 13. FURTHER IT IS REPORTED THAT BASED UPON THE FOREGOING YOU DID NOT PERFORM WORK IN EXCESS OF 8 HOURS CONTINUOUSLY FOR EITHER OF THE SCHEDULED 8-HOUR TOURS INVOLVED ON THE FOREGOING DATES FOR WHICH YOU CLAIM OVERTIME COMPENSATION. THIS OFF- DUTY TIME BETWEEN SHIFTS IS NO LESS THAN THE OFF-DUTY TIME WHICH SEPARATES OTHER REGULAR SHIFTS. UNDER THE PROVISIONS OF 5 U.S.C. 6101 (A) IT IS WITHIN ADMINISTRATIVE DISCRETION TO PRESCRIBE THE DAYS OF THE WEEK ON WHICH THE 40 HOURS OF WORK COMPRISING THE REGULAR TOUR OF DUTY OF AN EMPLOYEE ARE REQUIRED TO BE PERFORMED.

View Decision

B-163549, MAR. 6, 1969

TO MR. PATRICK BYRNE:

YOUR LETTERS OF SEPTEMBER 20, 1968, AND FEBRUARY 4, 1969, REQUESTED THAT WE RECONSIDER OUR DECISION B-163549, DATED SEPTEMBER 6, 1968, DISALLOWING YOUR CLAIM FOR OVERTIME COMPENSATION ON CERTAIN DATES OTHER THAN THE DATES OF FEBRUARY 10 AND APRIL 13, 1968, ON WHICH 2 NEW DATES YOU SAY IN YOUR SEPTEMBER 20 LETTER YOU WORKED 9 HOURS AND RECEIVED NO OVERTIME COMPENSATION THEREFOR. AS WE ADVISED YOU OCTOBER 23, 1968, IT WAS NECESSARY TO SECURE AN ADMINISTRATIVE REPORT COVERING THE NEW DATES ON WHICH YOU CLAIMED OVERTIME COMPENSATION. SUCH REPORT HAS NOW BEEN RECEIVED.

THE ADMINISTRATIVE OFFICE REPORTS THAT ON FEBRUARY 10, 1968, SATURDAY, YOUR WORKED FROM MIDNIGHT UNTIL 1 A.M. OR 1 HOUR WHICH WAS A PART OF YOUR SCHEDULED TOUR THAT COMMENCED ON FRIDAY AT 5 P.M. THEN AT 4 P.M. ON SATURDAY, FEBRUARY 10, 1968, YOU WORKED AS SCHEDULED FROM 4 P.M. TO MIDNIGHT AN 8-HOUR TOUR OF DUTY. IT IS ADMINISTRATIVELY REPORTED THAT IDENTICAL CIRCUMSTANCES EXISTED ON APRIL 13, 1968. FURTHER IT IS REPORTED THAT BASED UPON THE FOREGOING YOU DID NOT PERFORM WORK IN EXCESS OF 8 HOURS CONTINUOUSLY FOR EITHER OF THE SCHEDULED 8-HOUR TOURS INVOLVED ON THE FOREGOING DATES FOR WHICH YOU CLAIM OVERTIME COMPENSATION. BASED THEREON THE ADMINISTRATIVE OFFICE CONCLUDED THAT SINCE YOU PERFORMED NO WORK IN EXCESS OF THE 8-HOUR TOURS BEGINNING ON FRIDAY, FEBRUARY 9 AND APRIL 12, 1968, OR THE 8 HOUR TOURS ON SATURDAY, FEBRUARY 10 AND APRIL 13, 1968, NO BASIS EXISTED UNDER THE PROVISIONS OF 5 U.S.C. 5542 (A) FOR THE PAYMENT OF OVERTIME COMPENSATION TO YOU. WE NOTE THAT THE TOURS OF DUTY ON FEBRUARY 9 AND 10 AND APRIL 12 AND 13, 1968, HAD APPROXIMATELY 15 HOURS BETWEEN THE PERIODS OF DUTY THAT COMPRISED THE 8-HOUR TOURS. THIS OFF- DUTY TIME BETWEEN SHIFTS IS NO LESS THAN THE OFF-DUTY TIME WHICH SEPARATES OTHER REGULAR SHIFTS. ALSO, AS STATED IN 42 COMP. GEN. 195, 200, CONCERNING THE INTERPRETATION OF THE WORD "DAY" AS APPLIED TO OVERTIME OF WAGE BOARD EMPLOYEES WE HELD THAT WHILE WHENEVER ADMINISTRATIVELY FEASIBLE THE CALENDAR DAY SHOULD BE USED THE LAW PERMITS A 24-HOUR PERIOD TO BE TREATED AS A "DAY".

AS WE POINTED OUT IN OUR DECISION B-163549, SEPTEMBER 6, 1968, UNDER THE PROVISIONS OF 5 U.S.C. 6101 (A) IT IS WITHIN ADMINISTRATIVE DISCRETION TO PRESCRIBE THE DAYS OF THE WEEK ON WHICH THE 40 HOURS OF WORK COMPRISING THE REGULAR TOUR OF DUTY OF AN EMPLOYEE ARE REQUIRED TO BE PERFORMED. COMP. GEN. 191, 193; 21 ID. 965, 968. SIMILARLY,IT IS WITHIN ADMINISTRATIVE DISCRETION TO MAKE CHANGES OR ADJUSTMENTS IN THE ADMINISTRATIVE WORKWEEK WHEN THE NEEDS OF THE SERVICE REQUIRE. 27 COMP. GEN. 191, 193; 18 ID. 206, 210. SUCH DISCRETION EXTENDS TO THE MODIFICATION OF THE DAYS AND HOURS WHEN THE DEPARTMENT OR AGENCY HEAD DETERMINES THE ORGANIZATION WOULD BE SERIOUSLY HANDICAPPED IN CARRYING OUT ITS FUNCTIONS OR COSTS WOULD BE SUBSTANTIALLY INCREASED.

5 U.S.C. 5542 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/A) HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR * * * IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR * * *.'

IT IS EVIDENT FROM THE OFFICIAL RECORDS INVOLVING THE WORK PERFORMED ON THE DATES IDENTIFIED ABOVE THAT YOU DID NOT WORK MORE THAN 40 HOURS IN AN ADMINISTRATIVE WORKWEEK OR MORE THAN AN 8-HOUR TOUR OF DUTY WITHIN THE 24- HOUR PERIOD ADMINISTRATIVELY SET. NEITHER DOES THE RECORD SHOW THAT THE OVERTIME CLAIMED BY YOU WAS AUTHORIZED OR APPROVED AS REQUIRED BY THE FOREGOING PROVISIONS. THEREFORE, WE FIND NO BASIS TO ALLOW YOUR CLAIM FOR OVERTIME COMPENSATION ON THE FOREGOING DATES. THE CONCLUSION HERE IS THE SAME AS THAT REACHED IN OUR DECISION B-163549 OF SEPTEMBER 6, 1968, TO YOU, WHICH WE HEREBY AFFIRM.

OUR DECISIONS ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT BUT THEY DO NOT PRECLUDE A CLAIMANT FROM PURSUING HIS CLAIM IN THE UNITED STATES DISTRICT COURT OR THE COURT OF CLAIMS UNDER 28 U.S.C. 1346 (A) (2) AND 1491, RESPECTIVELY. HOWEVER, WE POINT OUT THAT SUITS IN THE FOREGOING COURTS MUST BE FILED WITHIN 6 YEARS AFTER THE RIGHT OF ACTION FIRST ACCRUES. SEE 28 U.S.C. 2401 AND 2501, RESPECTIVELY.

GAO Contacts

Office of Public Affairs