B-208396, JUN 6, 1983, OFFICE OF GENERAL COUNSEL

B-208396, JUN 6, 1983, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. ROBERT J. MARREN VICE PRESIDENT, NATIONAL BORDER PATROL COUNCIL:

I REFER TO YOUR LETTER OF APRIL 8, 1983, IN WHICH YOU INQUIRE AS TO THE ELIGIBILITY OF BORDER PATROL AGENTS TO RECEIVE NIGHT DIFFERENTIAL PAY FOR THE HOURS OF ADMINISTRATIVELY UNCONTROLLABLE OVERTIME (AUO) WORKED BETWEEN THE HOURS OF 6 P.M. AND 6 A.M.

YOU STATE THAT BORDER PATROL AGENTS REGULARLY RECEIVE NIGHT DIFFERENTIAL PAY FOR HOURS SCHEDULED BETWEEN 6 P.M. AND 6 A.M., BUT THERE IS NO PROVISION FOR THE PAYMENT OF NIGHT DIFFERENTIAL PAY DURING AUO HOURS WORKED BETWEEN 6 P.M. AND 6 A.M. AT THE END OF THEIR REGULARLY SCHEDULED SHIFTS. YOU STATE THAT THE HOURS OF AUO WORKED BETWEEN 6 P.M. AND 6 A.M. APPEAR TO FALL UNDER TWO SITUATIONS IN WHICH NIGHT DIFFERENTIAL PAY MAY BE PAID, NAMELY, WHEN: 1, WORK IS PERFORMED DURING A SCHEDULED NIGHT SHIFT AND 2, WORK IS HABITUALLY AND RECURRENTLY PERFORMED ON OVERTIME AT NIGHT DUE TO THE NATURE OF THE WORK REQUIRING THE EMPLOYEE TO REMAIN ON DUTY UNTIL THE TASK IS COMPLETED OR UNTIL RELIEVED FROM DUTY. SEE FRANK NEWELL, B-208396, MARCH 1, 1983 AND 59 COMP.GEN. 101 (1979).

SINCE YOU HAVE NOT PRESENTED A SPECIFIC CLAIM FOR ADJUDICATION, WE SHALL NOT ISSUE A DECISION AT THIS TIME. HOWEVER, THE FOLLOWING INFORMATION SHOULD BE OF ASSISTANCE TO YOU.

UNDER 5 U.S.C. SEC. 5545(C)(2) AN EMPLOYEE MAY RECEIVE PREMIUM PAY FOR AUO WORK AND THIS PAY IS IN LIEU OF OTHER PREMIUM PAY, SUCH AS NIGHT DIFFERENTIAL PAY, EXCEPT FOR REGULARLY SCHEDULED OVERTIME, NIGHT AND SUNDAY DUTY AND FOR HOLIDAY DUTY. THUS, AN EMPLOYEE MAY NOT RECEIVE PREMIUM PAY FOR AUO AND PREMIUM PAY FOR NIGHT WORK FOR THE SAME HOURS OF WORK. SEE 52 COMP.GEN. 319 (1972). IT IS POSSIBLE, HOWEVER, FOR A BORDER PATROL AGENT TO RECEIVE NIGHT DIFFERENTIAL PAY WHILE REGULARLY RECEIVING PREMIUM PAY UNDER 5 U.S.C. SEC. 5545(C) (2), BUT THE TWO PAYMENTS ARE NOT FOR THE SAME WORK. SEE 52 COMP.GEN. 319. IN SUCH A CASE THE PREMIUM PAY FOR AUO IS FOR OVERTIME WORK NOT REGULARLY SCHEDULED WHEREAS THE PREMIUM PAY FOR NIGHT WORK IS FOR REGULARLY SCHEDULED NIGHT WORK.

THE FACT THAT AN EMPLOYEE RECEIVED PREMIUM PAY FOR AUO ON A REGULAR BASIS DOES NOT MEAN THAT THAT UNCONTROLLABLE OVERTIME IS REGULARLY SCHEDULED OVERTIME WITHIN THE MEANING OF 5 U.S.C. SEC. 5545(C)(2). RATHER FOR AN EMPLOYEE TO RECEIVE NIGHT DIFFERENTIAL PAY WHILE HE IS RECEIVING AUO PREMIUM PAY, THE NIGHT WORK ITSELF HAS TO BE REGULARLY SCHEDULED. IN THIS CONNECTION WE REFER YOU TO THE OFFICE OF PERSONNEL MANAGEMENT'S REVISED REGULATIONS CONCERNING PREMIUM PAY. SEE 48 FED.REG. 3931-3935 (1983) ENCLOSED. THE OPM'S COMMENTARY ON BOTH THE NEW REGULATIONS AND OUR DECISION 59 COMP.GEN. 101 IS INSTRUCTIVE AND READS AS FOLLOWS:

"GAO COMMENTED THAT OPM'S DEFINITION OF THE TERM "REGULARLY SCHEDULED" WOULD IMPACT ON PRIOR DECISIONS OF THAT OFFICE IN TWO MAJOR AREAS: (1) THOSE DECISIONS HOLDING THAT A GENERAL SCHEDULE EMPLOYEE WHO WORKS OCCASIONAL OVERTIME AT NIGHT DURING A REGULARLY SCHEDULED TOUR OF DUTY, BUT NOT HIS TOUR OF DUTY, IS ENTITLED TO NIGHT DIFFERENTIAL (SEE 59 COMP.GEN. 101 (1979); AND (2) THOSE DECISIONS DEFINING "REGULARLY SCHEDULED WORK" TO MEAN WORK THAT IS SCHEDULED AT LEAST 1 DAY IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS SO AS TO FALL WITHIN A PREDICTABLE AND DISCERNIBLE PATTERN (SEE 59 COMP.GEN. 101, SUPRA).

"OPM AGREES. UNDER OPM'S DEFINITION OF THE TERM "REGULARLY SCHEDULED," IT IS THE EMPLOYEE WHO MUST BE SCHEDULED TO PERFORM THE WORK, INCLUDING NIGHTWORK, AND THE WORK MUST BE SCHEDULED IN ADVANCE OF THE ADMINISTRATIVE WORKWEEK AS PART OF THE EMPLOYEE'S REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK TO BE CONSIDERED "REGULARLY SCHEDULED." ACCORDINGLY, THESE PRIOR DECISIONS WOULD NO LONGER BE CONTROLLING." 48 FED.REG. 3931.

ACCORDINGLY, IT WOULD APPEAR THAT BOTH THE STATUTE PRESCRIBING PREMIUM PAY FOR AUO AND OPM'S NEW REGULATIONS WOULD PRECLUDE AN EMPLOYEE FROM RECEIVING PREMIUM PAY FOR THE SAME WORK UNDER BOTH 5 U.S.C. SEC. 5545(C)(2) (AUO) AND 5 U.S.C. SEC. 5545(A) (NIGHT WORK).