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B-174388, MAR 22, 1973

B-174388 Mar 22, 1973
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RETROACTIVE CLAIMS FOR NIGHT DIFFERENTIAL COMPENSATION WHICH WERE ALLOWED IN B-174388. FOR PERIODS FOR WHICH THERE ARE NO SUBSTANTIATING RECORDS MAY BE ALLOWED ON A CONSTRUCTIVE BASIS BASED UPON THOSE YEARS FOR WHICH THERE ARE RECORDS. NIGHT DIFFERENTIAL CLAIMS ARE ONLY ALLOWABLE FOR OVERTIME WORK AT NIGHT IF SUCH WORK CONSTITUTES "REGULARLY SCHEDULED WORK" UNDER THE MEANING OF 5 U.S.C. 5545(A). WHEREIN IT WAS HELD THAT CERTAIN EMPLOYEES OF YOUR DEPARTMENT WERE ENTITLED TO NIGHT DIFFERENTIAL COMPENSATION. IN MAKING RETROACTIVE PAYMENTS FOR NIGHT DIFFERENTIAL IN ACCORDANCE WITH OUR DECISION A QUESTION HAS ARISEN AS TO PAYMENTS FOR THE YEARS 1962-64 WHEN RECORDS ARE NOT AVAILABLE TO SUPPORT SUCH PAYMENTS.

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B-174388, MAR 22, 1973

CIVILIAN EMPLOYEE - NIGHT DIFFERENTIAL - CONSTRUCTIVE BASIS DETERMINATION - 10-YEAR LIMITATION - REGULARLY SCHEDULED WORK CONCERNING CERTAIN CLAIMS OF EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE FOR NIGHT DIFFERENTIAL COMPENSATION UNDER VARIOUS CIRCUMSTANCES. RETROACTIVE CLAIMS FOR NIGHT DIFFERENTIAL COMPENSATION WHICH WERE ALLOWED IN B-174388, FEBRUARY 28, 1972, FOR PERIODS FOR WHICH THERE ARE NO SUBSTANTIATING RECORDS MAY BE ALLOWED ON A CONSTRUCTIVE BASIS BASED UPON THOSE YEARS FOR WHICH THERE ARE RECORDS. THOSE CLAIMS WHICH MAY BE AFFECTED BY THE 10-YEAR LIMITATION OF 31 U.S.C. 71A SHOULD BE SENT TO GAO FOR RECORDING UNDER 4 GAO MANUAL 7.1. SEE 50 COMP. GEN. 767 (1971). FINALLY, NIGHT DIFFERENTIAL CLAIMS ARE ONLY ALLOWABLE FOR OVERTIME WORK AT NIGHT IF SUCH WORK CONSTITUTES "REGULARLY SCHEDULED WORK" UNDER THE MEANING OF 5 U.S.C. 5545(A). REGULARLY SCHEDULED WORK MUST BE DULY AUTHORIZED IN ADVANCE AND BE SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. SEE 42 COMP. GEN. 326 (1962).

TO MR. SECRETARY:

THIS REFERS TO LETTER OF OCTOBER 20, 1972, WITH ENCLOSURE, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION AS SUPPLEMENTED BY LETTER OF FEBRUARY 5, 1973, WITH ENCLOSURES, REQUESTING ANSWERS TO QUESTIONS ARISING OUT OF OUR DECISION OF FEBRUARY 28, 1972, B-174388, WHEREIN IT WAS HELD THAT CERTAIN EMPLOYEES OF YOUR DEPARTMENT WERE ENTITLED TO NIGHT DIFFERENTIAL COMPENSATION.

IN MAKING RETROACTIVE PAYMENTS FOR NIGHT DIFFERENTIAL IN ACCORDANCE WITH OUR DECISION A QUESTION HAS ARISEN AS TO PAYMENTS FOR THE YEARS 1962-64 WHEN RECORDS ARE NOT AVAILABLE TO SUPPORT SUCH PAYMENTS. IN LIEU OF SUCH RECORDS IT IS PROPOSED THAT THE AVERAGE NUMBER OF OVERTIME AND NIGHT DIFFERENTIAL HOURS WORKED DURING THE PERIOD 1965 TO DATE FOR WHICH RECORDS ARE AVAILABLE BE USED FOR PAYMENT PURPOSES.

SINCE THE PERIOD 1965 TO DATE IS SUFFICIENTLY LONG TO ESTABLISH A PATTERN REASONABLY INDICATING THE AMOUNT OF OVERTIME AND NIGHT WORK THAT MIGHT HAVE BEEN PERFORMED IN PRIOR YEARS, PAYMENT FOR THE PERIOD PRIOR TO 1965 MAY BE MADE ON A CONSTRUCTIVE BASIS AS PROPOSED. IT IS NOTED THAT SOME OF THE CLAIMS MAY GO BACK TO THE YEAR 1962. THOSE CLAIMS WHICH MAY BE AFFECTED BY THE 10-YEAR LIMITATION OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, SHOULD BE FORWARDED TO OUR TRANSPORTATION AND CLAIMS DIVISION (GENERAL CLAIMS) FOR RECORDING UNDER 4 GAO MANUAL 7.1. AFTER RECORDING, SUCH CLAIMS WILL BE RETURNED TO YOU FOR PAYMENT. SEE 50 COMP. GEN. 767 (1971), COPY ENCLOSED.

IN THE LETTER OF OCTOBER 20, 1972, THE ASSISTANT SECRETARY FOR ADMINISTRATION STATES THAT AN ADDITIONAL PROBLEM HAS DEVELOPED AS THE RESULT OF OUR DECISION OF FEBRUARY 28, 1972. AS THE RESULT OF THIS DECISION THERE HAS BEEN RECEIVED IN YOUR OFFICE IN EXCESS OF 600 CLAIMS FROM EMPLOYEES WHOSE TOURS OF DUTY WERE MONDAY THROUGH FRIDAY, 8 A.M. TO 5 P.M. SUCH INDIVIDUALS WERE NOT SHIFT EMPLOYEES. OVERTIME APPROVAL WAS GRANTED IN ADVANCE BUT IN YOUR OPINION THE WORK PERFORMED DOES NOT MEET THE CRITERIA OF WORK AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. AS A RESULT YOU CONTEND THAT THOSE EMPLOYEES (NOT PART OF THE SHIFT OPERATION), WHO WORK A 5-DAY WORKWEEK FROM 8 A.M. TO 5 P.M. DO NOT MEET THE DEFINITION WHICH PROVIDES FOR THE PAYMENT OF NIGHT DIFFERENTIAL.

IT IS STATED THAT IN THE KANSAS CITY AGRICULTURAL COMPLEX THERE ARE THREE ARGICULTURAL STABILIZATION AND CONSERVATION SERVICE (ASCS) OFFICES, NAMELY THE KANSAS CITY COMMODITY OFFICE, THE DATA PROCESSING CENTER, AND THE MANAGEMENT FIELD OFFICE. EACH OFFICE IS HEADED BY A DIRECTOR WHO HAS DELEGATED AUTHORITY TO AUTHORIZE AND APPROVE OVERTIME IN THEIR RESPECTIVE OFFICE. THE THREE ASCS OFFICES HAVE APPROXIMATELY 900 EMPLOYEES OF WHICH ONLY 57 EMPLOYEES IN THE DATA PROCESSING CENTER ARE ACTUALLY ASSIGNED TO A ROTATING THREE-SHIFT OPERATION. THE REMAINING 843 EMPLOYEES HAVE A REGULAR TOUR OF DUTY, MONDAY THROUGH FRIDAY, 8 A.M. TO 5 P.M.

IN REQUESTING OVERTIME IN ADVANCE THE DIVISION CHIEFS SUBMIT IN DUPLICATE FORM KC-559 TO THE DIRECTOR OF THE OFFICE STATING THE PERIOD OF OVERTIME, ESTIMATED TOTAL NUMBER OF HOURS OVERTIME NEEDED, AND AN EXPLANATION OF THE REASON FOR THE NEED OF OVERTIME. THIS REQUEST MAY BE PREPARED TO COVER OVERTIME FOR ONE NIGHT, FOR A WEEK, OR EVEN A MONTH.

AFTER THE DIRECTOR APPROVES THE OVERTIME REQUEST, A COPY OF FORM KC 559 IS SENT TO MFO-FSD FOR THE PURPOSE OF ESTIMATING OBLIGATIONS. THIS BRANCH RETAINS FORMS KC-559 FOR TWO YEARS AFTER WHICH THEY ARE DESTROYED. THE ORIGINAL COPY OF THE APPROVED REQUEST IS RETURNED TO THE ORIGINATING DIVISION WHERE IT IS USED TO BACK UP OVERTIME PAYMENT OF TIME AND ATTENDANCE REPORTS. THIS COPY OF THE FORM KC-559 IS RETAINED ON SITE FOR THREE CALENDAR YEARS AND THEN DESTROYED. THESE FORMS ONLY REFLECT A BLOCK OF HOURS AND THE REASON FOR THE OVERTIME. NO SPECIFIC WORK SCHEDULE IS ESTABLISHED AND IT WOULD BE NEXT TO IMPOSSIBLE TO ESTABLISH A PAST OVERTIME WORK SCHEDULE FROM TIME AND ATTENDANCE REPORTS.

THE FOLLOWING EXAMPLES ARE SUBMITTED OF EMPLOYEES ON A REGULAR ONE SHIFT OPERATION, MONDAY THROUGH FRIDAY, 8 A.M. TO 5 P.M. WHO ARE OCCASIONALLY REQUIRED TO WORK OVERTIME.

1. DURING THE BUDGET RUNS AND WOOL SETTLEMENT PERIODS, ACCOUNTANTS IN THE DATA PROCESSING CENTER ARE REQUIRED TO WORK CONSIDERABLE OVERTIME FOR ONE TO THREE WEEK PERIODS AND THIS OCCURS ABOUT FOUR TIMES EACH YEAR. THE EXACT TIME OR DURATION USUALLY IS NOT KNOWN, BUT THEY UNDOUBTEDLY WILL BE REQUIRED TO WORK BETWEEN 6:00 P.M. AND 6:00 A.M. THE DIVISION CHIEF REQUESTS AND OBTAINS APPROVAL FOR X-NUMBER OF HOURS AND NO SCHEDULE OF WORK IS ESTABLISHED, BUT AS THE MATERIAL BECOMES AVAILABLE, THE ACCOUNTANTS PERFORM THE REQUIRED WORK.

2. THE FISCAL DIVISION OF THE MANAGEMENT FIELD OFFICE REQUESTS AND RECEIVES APPROVAL FOR X-NUMBER OF OVERTIME HOURS FOR ONE EVENING TO WORK ON A FISCAL REPORT DUE. ON A VOLUNTARY BASIS, EMPLOYEES WORK FROM 1645 TO 2045. THE REPORT IS NOT COMPLETED AND THE FOLLOWING DAY THE DIVISION CHIEF AGAIN REQUESTS AND RECEIVES APPROVAL FOR OVERTIME FOR FOUR HOURS IN THE EVENING AND THE REPORT IS COMPLETED. THE TIME AND ATTENDANCE REPORTS FOR THESE EMPLOYEES WOULD REFLECT OVERTIME AFTER 6 P.M. ON TWO SUCCESSIVE DAYS; HOWEVER, THE WORK WAS NOT SCHEDULED FOR TWO SUCCESSIVE DAYS BUT WITHOUT FORMS KC-559, OVERTIME REQUEST, THIS FACT WOULD NOT BE KNOWN.

3. A PROGRAMMER IN THE DATA PROCESSING CENTER IS AUTHORIZED TO USE 10 HOURS OF OVERTIME TO MEET A TARGETED WORK ASSIGNMENT DUE WITHIN A WEEK. THE PROGRAMMER SCHEDULES HIS OWN WORK WITH SEVERAL ALTERNATIVES SUCH AS WORKING TWO HOURS ON EACH NIGHT MONDAY THROUGH FRIDAY FROM 1700 TO 1900, WORK TEN HOURS ON SATURDAY FROM 0700 TO 1730, WORK TWO HOURS ONE EVENING FROM 1700 TO 1900 AND EIGHT HOURS ON SATURDAY FROM 0800 TO 1630, ETC. OF COURSE ON FORM KC-559, REQUEST FOR OVERTIME, THE APPROVAL WAS FOR 10 HOURS WITH NO SCHEDULE OF THE WORK AND THE PROGRAMMER IS RESPONSIBLE FOR COMPLETION OF THE WORK ASSIGNMENT BY THE TARGETED DATE.

4. OPERATION SCHEDULERS IN THE DATA PROCESSING CENTER SCHEDULE WORK AND COMPUTER TIME. THE COMPUTER ROOM OPERATES ON A ROTATING THREE SHIFT OPERATION; HOWEVER, THE OPERATION SCHEDULERS WORK MONDAY THROUGH FRIDAY, 8 A.M. TO 5 P.M., BUT EACH DAILY WORK ASSIGNMENT MUST BE COMPLETED THAT DAY. THE CHIEF OF THIS DIVISION REQUESTS A BLOCK OF HOURS TO COVER EMERGENCIES. THE OVERTIME IS NOT SCHEDULED, AND MAY OCCUR ONLY ONE EVENING IN A WEEK, IT MAY OCCUR EVERY EVENING, OR MAY NOT OCCUR AT ALL.

SECTION 5545(A) OF TITLE 5 OF THE U.S.C. PROVIDES THAT ANY REGULARLY SCHEDULED WORK BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. SHALL BE CONSIDERED NIGHT WORK, AND THAT ANY EMPLOYEE PERFORMING SUCH WORK SHALL BE COMPENSATED FOR SUCH WORK AT HIS RATE OF BASIC COMPENSATION PLUS PREMIUM COMPENSATION AMOUNTING TO 10 PERCENTUM OF SUCH PAY. THE BASIC QUESTION TO BE DECIDED IS WHETHER THE ADDITIONAL OVERTIME WORK AT NIGHT OCCURRING IN THE SITUATIONS DESCRIBED ABOVE CONSTITUTES "REGULARLY SCHEDULED WORK" WITHIN THE MEANING OF THE SUBJECT NIGHT DIFFERENTIAL STATUTE.

GENERALLY SPEAKING, THE WORK, TO CONSTITUTE "REGULARLY SCHEDULED WORK" MUST BE DULY AUTHORIZED IN ADVANCE AND MUST BE SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. SEE 42 COMP. GEN. 326 (1962); 40 ID. 397 (1961). OUR VIEW IS THAT THE NIGHT WORK IN THE EXAMPLES QUOTED ABOVE WAS NOT REGULARLY SCHEDULED SINCE IT DID NOT RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. ACCORDINGLY, NIGHT DIFFERENTIAL COMPENSATION IS NOT PAYABLE FOR SUCH WORK.

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