B-164689, NOVEMBER 20, 1968, 48 COMP. GEN. 334

B-164689: Nov 20, 1968

Additional Materials:

Contact:

Shirley Jones
(202) 512-8156
jonessa@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

COMPENSATION - OVERTIME - ENTITLEMENT - EMPLOYEES - RECEIVING PREMIUM PAY WHEN EMPLOYEES WHO ARE RECEIVING PREMIUM PAY ON AN ANNUAL BASIS UNDER 5 U.S.C. 5545 (C) (2) PRESCRIBED FOR IRREGULAR. ARE DETAILED TO PERFORM 12 HOUR SHIFTS OF DUTY ON SATURDAY. THE SPECIAL WORK SATISFYING THE TERM "REGULARLY SCHEDULED WORK" USED IN 5 U.S.C. 5545 WITH RESPECT TO NIGHT DIFFERENTIAL AND DEFINED AS WORK WHICH IS DULY AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. THE HOURS SPENT IN TRAVELING TO THE SITE OF THE SPECIAL DUTY ARE NOT COMPENSABLE AS OVERTIME. 1968: RETURNED HEREWITH IS THE CLAIM OF MR. THERE ARE ALSO TRANSMITTED HEREWITH THE CLAIMS OF FIVE OTHER EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE FOR OVERTIME COMPENSATION UNDER SIMILAR CONDITIONS.

B-164689, NOVEMBER 20, 1968, 48 COMP. GEN. 334

COMPENSATION - OVERTIME - ENTITLEMENT - EMPLOYEES - RECEIVING PREMIUM PAY WHEN EMPLOYEES WHO ARE RECEIVING PREMIUM PAY ON AN ANNUAL BASIS UNDER 5 U.S.C. 5545 (C) (2) PRESCRIBED FOR IRREGULAR, UNSCHEDULED OVERTIME, SUNDAY, HOLIDAY, AND NIGHT DUTY, ARE DETAILED TO PERFORM 12 HOUR SHIFTS OF DUTY ON SATURDAY, SUNDAY, AND MONDAY, THEY MAY BE REGARDED AS PERFORMING REGULARLY SCHEDULED OVERTIME WORK ENTITLING THEM ADDITIONALLY TO OVERTIME COMPENSATION FOR THE SERVICES PERFORMED ON DETAIL IN EXCESS OF 40 HOURS PER WEEK AND 8 HOURS A DAY, THE SPECIAL WORK SATISFYING THE TERM "REGULARLY SCHEDULED WORK" USED IN 5 U.S.C. 5545 WITH RESPECT TO NIGHT DIFFERENTIAL AND DEFINED AS WORK WHICH IS DULY AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. HOWEVER, THE HOURS SPENT IN TRAVELING TO THE SITE OF THE SPECIAL DUTY ARE NOT COMPENSABLE AS OVERTIME.

TO THE ATTORNEY GENERAL, NOVEMBER 20, 1968:

RETURNED HEREWITH IS THE CLAIM OF MR. EDWIN CHAUVIN, JR., AN EMPLOYEE OF THE IMIGRATION AND NATURALIZATION SERVICE FOR OVERTIME COMPENSATION WHILE DETAILED TO MERIDIAN, MISSISSIPPI. THERE ARE ALSO TRANSMITTED HEREWITH THE CLAIMS OF FIVE OTHER EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE FOR OVERTIME COMPENSATION UNDER SIMILAR CONDITIONS. THE MATTER WAS THE SUBJECT OF LETTERS OF JUNE 24, 1968, AND SEPTEMBER 13, 1968, FROM THE ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION.

THE SIX EMPLOYEES WERE ISSUED WRITTEN ORDERS FRIDAY, OCTOBER 20, 1967, AT ABOUT 3 P.M., TELLING THEM TO DEPART AS SOON AS POSSIBLE FOR MERIDIAN, MISSISSIPPI, FOR DETAIL. UPON ARRIVING AT MERIDIAN THEY REPORTED TO THE DEPUTY U.S. MARSHAL AS INSTRUCTED AND WERE ADVISED THAT BEGINNING SATURDAY, OCTOBER 21, 1967, AT 6 A.M., THEY WOULD WORK IN 12-HOUR SHIFTS AND CONTINUE UNTIL FURTHER NOTICE. THEY WORKED SATURDAY, SUNDAY, AND MONDAY. THEIR CLAIMS WERE DISALLOWED ADMINISTRATIVELY FOR THE REASON THAT THEY WERE RECEIVING PREMIUM PAY UNDER 5 U.S.C. 5545 (C) (2) WHICH IS IN LIEU OF OTHER FORMS OF PREMIUM COMPENSATION, EXCEPT FOR REGULARLY SCHEDULED OVERTIME DUTY. 5 U.S.C. 5545 (C) (2) PROVIDES THAT:

(C) THE HEAD OF AGENCY, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, MAY PROVIDE THAT---

(2) AN EMPLOYEE IN A POSITION IN WHICH THE HOURS OF DUTY CANNOT BE CONTROLLED ADMINISTRATIVELY, AND WHICH REQUIRES SUBSTANTIAL AMOUNTS OF IRREGULAR, UNSCHEDULED, OVERTIME DUTY AND DUTY AT NIGHT, ON SUNDAYS, AND ON HOLIDAYS WITH THE EMPLOYEE GENERALLY BEING RESPONSIBLE FOR RECOGNIZING, WITHOUT SUPERVISION, CIRCUMSTANCES WHICH REQUIRE HIM TO REMAIN ON DUTY, SHALL RECEIVE PREMIUM PAY FOR THIS DUTY ON AN ANNUAL BASIS INSTEAD OF PREMIUM PAY PROVIDED BY OTHER PROVISIONS OF THIS SUBCHAPTER, EXCEPT FOR REGULARLY SCHEDULED OVERTIME DUTY. PREMIUM PAY UNDER THIS PARAGRAPH IS DETERMINED AS AN APPROPRIATE PERCENTAGE, NOT LESS THAN 10 PERCENT NOR MORE THAN 25 PERCENT, OF SUCH PART OF THE RATE OF BASIC PAY FOR THE POSITION AS DOES NOT EXCEED THE MINIMUM RATE OF BASIC PAY FOR GS-10, BY TAKING INTO CONSIDERATION THE FREQUENCY AND DURATION OF NIGHT, SUNDAY, HOLIDAY, AND UNSCHEDULED OVERTIME DUTY REQUIRED IN THE POSITION.

THE PRIMARY QUESTION INVOLVED IN MR. CHAUVIN'S CLAIM, AS WELL AS THE CLAIMS OF THE OTHER FIVE EMPLOYEES, IS WHETHER THE SERVICES RENDERED IN EXCESS OF 40 HOURS PER WEEK OR 8 HOURS A DAY MAY BE REGARDED AS REGULARLY SCHEDULED OVERTIME DUTY FOR WHICH OVERTIME COMPENSATION WOULD BE PAYABLE IN ADDITION TO THE 15 PERCENT PREMIUM PAY WHICH THEY RECEIVED FOR IRREGULAR OVERTIME, HOLIDAY, AND NIGHT DUTY.

WE HAVE HELD THAT THE TERM "REGULARLY SCHEDULED WORK" AS USED IN 5 U.S.C. 5545 CONCERNING NIGHT DIFFERENTIAL IS WORK WHICH IS DULY AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. 40 COMP. GEN. 397 AND DECISION CITED THEREIN. IN THE ABSENCE OF ANY DEFINITION OF "REGULARLY SCHEDULED OVERTIME" IN THE STATUTE OR IN THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, WE SEE NO REASON WHY THE DEFINITION USED IN THE CITED DECISION SHOULD NOT BE APPLICABLE HERE, PARTICULARLY SINCE BOTH TERMS APPEAR IN THE SAME STATUTE.

THE EMPLOYEES INVOLVED WERE ADVISED AHEAD OF TIME IN WRITING TO REPORT TO THE DEPUTY U.S. MARSHAL AT MERIDIAN AND UPON ARRIVING WERE SCHEDULED BY HIM TO WORK 12-HOUR SHIFTS, STARTING SATURDAY, OCTOBER 21, 1967, ON SUCCESSIVE DAYS. THUS, THE OVERTIME IS TO BE REGARDED AS REGULARLY SCHEDULED. ACCORDINGLY THE IMMIGRATION AND NATURALIZATION SERVICE IS AUTHORIZED TO MAKE ADDITIONAL PAYMENTS TO THE SIX EMPLOYEES FOR SUCH REGULARLY SCHEDULED OVERTIME. THAT PORTION OF THE CLAIM FOR PAYMENT OF OVERTIME FOR HOURS SPENT IN TRAVELING IN GOVERNMENT AUTOMOBILES TO MERIDIAN SHOULD BE DISALLOWED SINCE WE HAVE HELD THAT TRAVEL OF THAT NATURE IS NOT PERFORMANCE OF WORK OR TRAVEL UNDER ARDUOUS CONDITIONS. COMP. GEN. 439.

Jan 19, 2021

Jan 14, 2021

Looking for more? Browse all our products here