B-129965, JULY 2, 1957, 37 COMP. GEN. 1

B-129965, JULY 2, 1957, 37 COMP. GEN. 1

FEDERAL EMPLOYEES - OVERTIME COMPENSATION - IRREGULAR, UNSCHEDULED DUTY HOLIDAY PAY THE WORD "UNSCHEDULED" IN SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 205 OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 912A, WHICH PROVIDES OVERTIME COMPENSATION FOR A TWO-HOUR MINIMUM PERIOD OF CALL-BACK DUTY IS THE ANTITHESIS OF THE WORD "SCHEDULED" WHICH REFERS TO WORK SCHEDULED IN ADVANCE OVER PERIODS OF NOT LESS THAN ONE WEEK, AND, THEREFORE, CALL-BACK WORK WHICH IS ANNOUNCED AT THE BEGINNING OF THE WORKWEEK FOR PERFORMANCE DURING THAT WEEK MUST BE REGARDED AS UNSCHEDULED DUTY AND THE EMPLOYEE IS ENTITLED TO OVERTIME COMPENSATION FOR A MINIMUM OF TWO HOURS REGARDLESS OF THE LENGTH OF THE CALL-BACK DUTY. AN EMPLOYEE WHO HAS A REGULARLY SCHEDULED TOUR OF DUTY FROM 2:30 P.M. TO 11:00 P.M., MONDAY THROUGH FRIDAY, AND WHO ON MONDAY IS NOTIFIED THAT HE MUST APPEAR IN COURT AS A WITNESS ON TUESDAY FROM 9:00 TO 10:00 A.M. IS ENTITLED TO BE PAID FOR A MINIMUM OF TWO HOURS OF OVERTIME UNDER THE UNSCHEDULED OVERTIME PROVISIONS OF SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 205 OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 912A. AN EMPLOYEE WHO IS CALLED BACK TO DUTY ON A HOLIDAY AND PERFORMS CONTINUOUS DUTY WHICH COVERS A PORTION OF HIS REGULAR DAILY TOUR OF DUTY AND LESS THAN TWO HOURS OVERTIME IS ENTITLED TO HOLIDAY PREMIUM PAY FOR THE NONOVERTIME WORK AND TO TWO HOURS MINIMUM OVERTIME PAY FOR THE OVERTIME WORK. THE TWO-HOUR MINIMUM PAY REQUIREMENT FOR CALL-BACK OVERTIME IN 5 U.S.C. 912A AND THE TWO-HOUR MINIMUM PAY REQUIREMENT FOR HOLIDAY WORK IN 5 1.U.S.C. 922 (B) ARE COEXTENSIVE WHERE BOTH OVERTIME AND NONOVERTIME WORK ARE PERFORMED ON A HOLIDAY AND THE PAYMENT OF TWO HOURS OF OVERTIME COMPENSATION WHERE CALL-BACK DUTY ON A HOLIDAY COVERS NONOVERTIME DUTY AND LESS THAN TWO HOURS OF OVERTIME SATISFIES THE MINIMUM REQUIREMENT FOR BOTH SECTIONS 912A AND 922 (B).

TO THE SECRETARY OF THE NAVY, JULY 2, 1957:

THE ASSISTANT SECRETARY'S LETTER OF MAY 2, 1957, CONCERNS, AMONG OTHER THINGS, PAYMENT OF OVERTIME COMPENSATION FOR A TWO-HOUR MINIMUM PERIOD OF CALL-BACK OVERTIME UNDER SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 205 OF THE ACT OF SEPTEMBER 1, 1954 ( PUBLIC LAW 763), 68 STAT. 1110, 5 U.S.C. 912A, READING AS FOLLOWS:

FOR THE PURPOSES OF THIS ACT, ANY UNSCHEDULED OVERTIME WORK PERFORMED BY ANY OFFICER OR EMPLOYEE ON A DAY WHEN NO WORK WAS SCHEDULED FOR HIM, OR FOR WHICH HE IS REQUIRED TO RETURN TO HIS PLACE OF EMPLOYMENT, SHALL BE CONSIDERED TO BE AT LEAST TWO HOURS IN DURATION.

THE ASSISTANT SECRETARY SAYS THAT HERETOFORE YOUR DEPARTMENT HAS CONSIDERED THAT OVERTIME WORK WAS "SCHEDULED" AND, THEREFORE, NOT WITHIN THE PURVIEW OF SECTION 203 IF THE EMPLOYEE WAS NOTIFIED OF THE CALL-BACK IN ADVANCE OF HIS LEAVING THE PLACE OF EMPLOYMENT; BUT THAT OUR DECISION OF MARCH 19, 1956, B-129965, 36 COMP. GEN. 657, CONSTRUING THE PHRASE "REGULARLY SCHEDULED" APPEARING IN SECTION 301 OF THE 1945 ACT, AS AMENDED BY PUBLIC LAW 763, 5 U.S.C. 921, REGARDING NIGHT WORK HAS RAISED THE QUESTION WHETHER YOUR INTERPRETATION IS TOO RESTRICTIVE. OUR DECISION IS REQUESTED AS TO WHETHER THE WORD "UNSCHEDULED" AS USED IN SECTION 203 MAY BE CONSIDERED AS THE CONVERSE OF ,SCHEDULED" AS USED IN SECTION 604 (A) (2) (A) OF THE ACT, AS AMENDED BY PUBLIC LAW 763, 5 U.S.C. 944 (2) (A).

WE SAID IN OUR DECISION OF MARCH 19, 1957, SUPRA, THAT THE WORD "SCHEDULED" AS USED IN SECTION 301 OF THE 1945 ACT, AS AMENDED BY PUBLIC LAW 763, REFERS TO WORK SCHEDULED IN ADVANCE IN ACCORDANCE WITH SECTION 604 (A) OF THE 1945 ACT AS AMENDED, 5 U.S.C. 944, AND REGULATIONS OF THE CIVIL SERVICE COMMISSION, 5 CFR 25.211 AND 25.212. SECTION 604 (A) (2) (A) REQUIRES THAT ASSIGNMENTS TO TOURS OF DUTY BE SCHEDULED IN ADVANCE OVER PERIODS OF NOT LESS THAN ONE WEEK, IN THE ABSENCE OF SERIOUS HANDICAP OR EXCESSIVE COSTS. IT APPEARS REASONABLE TO CONCLUDE THAT THE WORD ,UNSCHEDULED" AS USED IN SECTION 203 IS INTENDED AS THE ANTITHESIS OF THE WORD "SCHEDULED" AS USED IN SECTION 604 (A) (2) (A). ACCORDINGLY, THE GENERAL QUESTION STATED IN THE PRECEDING PARAGRAPH IS ANSWERED IN THE AFFIRMATIVE.

THE SPECIFIC CASES PRESENTED FOR OUR DECISION WILL BE QUOTED AND ANSWERED IN THE ORDER PRESENTED IN THE ASSISTANT SECRETARY'S LETTER.

A SECURITY GUARD'S REGULARLY SCHEDULED WORKWEEK IS 2:30 P.M. TO 11:00 P.M., MONDAY THROUGH FRIDAY. AS PART OF HIS OFFICIAL DUTIES HE IS REQUIRED AT IRREGULAR INTERVALS TO TESTIFY IN COURT. DURING WORK HOURS ON MONDAY HE IS NOTIFIED TO APPEAR IN COURT AT 9:00 A.M. ON TUESDAY. APPEARS AS ORDERED, GIVES HIS TESTIMONY AND IS RELEASED AT 10:00 A.M. HE WAS PAID ONE HOUR'S OVERTIME ON THE BASIS THAT HIS COURT DUTY WAS "SCHEDULED.' HE CLAIMS CALL-BACK OVERTIME OF TWO HOURS.

SINCE THE OFFICIAL DUTY OF APPEARING AS A WITNESS IN COURT WAS NOT WITHIN A TOUR OF DUTY SCHEDULED IN ADVANCE IN ACCORDANCE WITH THE STATUTORY PROVISIONS AND REGULATIONS CITED ABOVE AND WAS SEPARATE AND DISTINCT, IN POINT OF TIME, FROM THE REGULAR TOUR OF DUTY, THE EMPLOYEE IS ENTITLED TO BE CREDITED WITH THE MINIMUM OF TWO HOURS OF OVERTIME UNDER SECTION 203.

THE NEXT TWO CASES ARE RELATED AND WILL BE QUOTED AND CONSIDERED TOGETHER.

AN EMPLOYEE'S REGULARLY SCHEDULED WORKWEEK IS 8:00 A.M. TO 4:00 P.M. MONDAY THROUGH FRIDAY. ON WEDNESDAY, A HOLIDAY OCCURRED ON WHICH HE WOULD ORDINARILY BE EXCUSED FROM WORK. HE WAS NOTIFIED BEFORE THE CLOSE OF WORK ON MONDAY THAT HE MIGHT BE REQUIRED TO WORK A PART OF THE WEDNESDAY HOLIDAY. HE WAS CALLED AT HIS HOME WEDNESDAY MORNING AND TOLD TO REPORT FOR WORK AT 3:30 P.M. THAT DAY. HE REPORTED AS ORDERED AND COMPLETED THE WORK REQUIRED OF HIM AT 5:00 P.M. EMPLOYEE WAS PAID TWO HOURS HOLIDAY PREMIUM PAY UNDER SECTION 302 (B). HE CLAIMS TWO HOURS OF HOLIDAY PREMIUM PAY FOR NON-OVERTIME WORK FROM 3:30 P.M. TO 4:30 P.M. AND TWO HOURS OF CALL-BACK OVERTIME FOR THE OVERTIME WORK FROM 4:30 P.M. TO 5:00 P.M.

AN EMPLOYEE'S REGULARLY SCHEDULED WORKWEEK IS 7:30 A.M. TO 4:00 P.M MONDAY THROUGH FRIDAY. ON THURSDAY, A HOLIDAY OCCURRED ON WHICH HE WOULD ORDINARILY BE EXCLUDED FROM WORK. HE WAS NOTIFIED BEFORE THE CLOSE OF WORK ON WEDNESDAY THAT HE MIGHT BE CALLED BACK TO WORK, DEPENDING UPON THE ARRIVAL OF A VESSEL. HE WAS CALLED AT HIS HOME AT 5:30 A.M. ON THURSDAY AND TOLD TO REPORT FOR WORK AT 6:30 A.M. THAT DAY. HE REPORTED AS ORDERED AND COMPLETED HIS WORK AT 8:00 A.M. EMPLOYEE WAS PAID TWO HOURS OF HOLIDAY PREMIUM PAY. HE CLAIMS TWO HOURS OF CALL-BACK OVERTIME FOR THE OVERTIME WORK FROM 6:30 A.M. TO 7:30 A.M. AND TWO HOURS OF HOLIDAY PREMIUM PAY FOR HIS NON-OVERTIME WORK ON THE HOLIDAY FROM 7:30 A.M. TO 8:00 A.M.

THESE TWO CASES BRING IN THE HOLIDAY PAY PROVISIONS OF SECTION 302 OF THE 1945 ACT, AS AMENDED BY SECTION 207 OF PUBLIC LAW 763, 68 STAT. 1110, 5 U.S.C. 922, THE PERTINENT PORTIONS OF WHICH READ AS FOLLOWS:

(A) ALL WORK NOT EXCEEDING EIGHT HOURS, WHICH IS NOT OVERTIME WORK AS DEFINED IN SECTION 201 OF THIS ACT AND WHICH IS PERFORMED ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER, SHALL BE COMPENSATED AT THE RATE OF BASIC COMPENSATION OF THE OFFICER OR EMPLOYEE PERFORMING SUCH WORK ON A HOLIDAY PLUS PREMIUM COMPENSATION AT A RATE EQUAL TO THE RATE OF BASIC COMPENSATION OF SUCH OFFICER OR EMPLOYEE.

(B) ANY OFFICER OR EMPLOYEE WHO IS REQUIRED TO PERFORM ANY WORK ON SUCH A HOLIDAY SHALL BE COMPENSATED FOR AT LEAST TWO HOURS OF SUCH WORK, * * *

(C) OVERTIME WORK, AS DEFINED IN SECTION 201 OF THIS ACT, ON SUNDAYS AND SUCH HOLIDAYS SHALL BE COMPENSATED IN ACCORDANCE WITH THE PROVISIONS OF SUCH SECTION 201.

IN LINE WITH OUR ANSWER TO THE GENERAL QUESTION, THE NOTIFICATION GIVEN AFTER THE BEGINNING OF THE WORKWEEK WOULD NOT MEET THE REQUIREMENT THAT OVERTIME BE SCHEDULED IF THE CALL-BACK MINIMUM OF TWO HOURS IS TO BE AVOIDED. HOWEVER, WHETHER THE RETURN TO DUTY WAS "SCHEDULED" OR "UNSCHEDULED" IS NOT THE SOLE QUESTION INVOLVED. WE MAY NOTE PARENTHETICALLY THAT THE CONDITIONS FOR ENTITLEMENT TO MINIMUM CALL-BACK TIME UNDER SECTION 203 ARE NOT PRESCRIBED FOR MINIMUM PAY FOR HOLIDAY WORK UNDER SUBSECTION (B) QUOTED ABOVE, 5 U.S.C. 922 (B).

THE CONFERENCE REPORT ON PROPOSED LEGISLATION WHICH BECAME PUBLIC LAW 763 MAKES IT CLEAR THAT THE PREMIUM RATE FOR HOLIDAY WORK WAS INTENDED TO APPLY TO WORK ON A HOLIDAY WITHIN THE 40-HOUR BASIC WORKWEEK OF AN EMPLOYEE ( HOUSE REPORT NO. 2665, 83D CONGRESS, AT PAGE 22); AND SECTION 302 (C), 5 U.S.C. 922 (C), PROVIDES SPECIFICALLY THAT COMPENSATION FOR OVERTIME WORK ON A HOLIDAY IS TO BE PAID UNDER SECTION 201, AS AMENDED, 5 U.S.C. 911. HENCE, THE TIME WORKED FROM 4:30 P.M. TO 5:00 P.M. IN THE FIRST OF THE TWO CASES RECITED ABOVE IS TO BE REGARDED AS OVERTIME AND THE TIME WORKED FROM 3:30 P.M. TO 4:30 P.M. IS TO BE REGARDED AS WORK FOR WHICH THE HOLIDAY PREMIUM RATE IS PRESCRIBED BY SECTION 302, AS AMENDED. SIMILARLY, IN THE SECOND OF THE TWO CASES THE TIME WORKED FROM 6:30 A.M. TO 7:30 A.M. IS TO BE REGARDED AS OVERTIME AND THAT FROM 7:30 A.M. TO 8:00 A.M., AS HOLIDAY WORK. CF. 26 COMP. GEN 631; 28 ID. 547, 549.

THE LEGISLATIVE HISTORY OF THE PROVISIONS OF PUBLIC LAW 763 (SECTION 207) WHICH AMENDED SECTION 302 OF THE 1945 ACT, AS AMENDED, GIVES THE IMPRESSION THAT THE TWO-HOUR MINIMUM PRESCRIBED IN SUBSECTION (B) RELATES TO HOLIDAY COMPENSATION UNDER SUBSECTION (A), 5 U.S.C. 922 (A). SENATE REPORT NO. 1190, 83D CONGRESS, AT PAGES 9 AND 16; HOUSE REPORT NO. 2454, 83D CONGRESS, AT PAGE 10; AND HOUSE ( CONFERENCE) REPORT NO. 2665, 83D CONGRESS, AT PAGE 22. HOWEVER, THE LANGUAGE OF SUBSECTION (B) DOES NOT LIMIT THE TWO HOURS' MINIMUM PAY TO PAY AT THE HOLIDAY PREMIUM RATE AND IT DOES NOT RESTRICT THE WORK ON A HOLIDAY FOR WHICH THE MINIMUM IS TO BE PAID TO THAT PERFORMED WITHIN THE 40-HOUR BASIC WORKWEEK. THAT IS TO SAY, THE MINIMUM MAY APPLY TO OVERTIME WORK ON A HOLIDAY AS WELL AS TO NONOVERTIME WORK. IN THAT VIEW, THE TWO HOUR MINIMUM ALLOWANCE PROVISIONS OF SUBSECTION (B) ARE COEXTENSIVE WITH SECTION 203, SO FAR AS CONCERNS OVERTIME WORK ON A HOLIDAY. IT FOLLOWS THAT PAYMENT OF TWO HOURS OF OVERTIME COMPENSATION IN EACH OF THE TWO CASES UNDER CONSIDERATION WILL SATISFY THE MINIMUM REQUIREMENTS OF BOTH SECTION 203 AND SUBSECTION (B) OF SECTION 302. ACCORDINGLY, IN THE FIRST OF THE TWO CASES THE EMPLOYEE IS ENTITLED TO TWO HOURS OF OVERTIME COMPENSATION FOR THE WORK FROM 4:30 P.M. TO 5:00 P.M. OUTSIDE HIS 40-HOUR BASIC WORKWEEK AND TO ONE HOUR OF HOLIDAY PREMIUM PAY FOR THE WORK FROM 3:30 P.M. TO 4:30 P.M.--- ASSUMING THAT HE WAS IN A PAY STATUS FOR THE 40 HOURS OF HIS BASIC WORKWEEK. SIMILARLY, IN THE SECOND CASE THE EMPLOYEE IS ENTITLED TO TWO HOURS OF OVERTIME COMPENSATION FOR THE WORK FROM 6:30 A.M. TO 7:30 A.M. AND TO ONE-HALF HOUR OF HOLIDAY PREMIUM PAY FOR THE WORK FROM 7:30 A.M. TO 8:00 A.M. OF COURSE, IN EACH CASE, THE EMPLOYEE IS ENTITLED TO HIS BASIC COMPENSATION FOR THE REMAINDER OF THE TIME ON THE HOLIDAY WITHIN HIS BASIC 40-HOUR WORKWEEK DURING WHICH HE WAS EXCUSED FROM DUTY.

THE NOTICE FROM THE CHIEF OF INDUSTRIAL RELATIONS TO ALL NAVAL ACTIVITIES EMPLOYING CIVILIANS ( OIR NOTICE 5330/--- A COPY OF WHICH ACCOMPANIED THE ASSISTANT SECRETARY'S LETTER--- REGARDING PAYMENT OF NIGHT DIFFERENTIAL APPEARS TO ACCORD WITH OUR CONSTRUCTION OF THE PERTINENT STATUTORY PROVISIONS IN THE DECISION OF MARCH 19, 1957, CITED ABOVE. HOWEVER, CONCERNING PARAGRAPH 4C OF THE NOTICE WHICH STATES THAT WHEN NIGHT WORK DOES NOT MEET THE "REGULARLY SCHEDULED" REQUIREMENT, THE EMPLOYEE'S REGULARLY SCHEDULED WORKWEEK WILL BE MAINTAINED AND THE WORK COMPENSATED AT THE APPROPRIATE OVERTIME RATE, WE MAY SAY THAT THE DECISION WAS NOT INTENDED TO PRECLUDE A RESCHEDULING OF THE BASIC WORKWEEK FOR ONE WEEK, ONLY, TO INCLUDE HOURS BETWEEN 6 P.M. AND 6 A.M., EVEN THOUGH THE LAW DOES NOT PERMIT PAYMENT OF NIGHT DIFFERENTIAL FOR THE NIGHT WORK INVOLVED.