Skip to main content

B-169113, MAR 7, 1973

B-169113 Mar 07, 1973
Jump To:
Skip to Highlights

Highlights

DETERMINE THAT IT IS IN THE INTEREST OF THE UNITED STATES TO PAY REGULAR OVERTIME OR IN LIEU THEREOF TO GRANT COMPENSATORY TIME OFF UNDER 5 U.S.C. 5542-43. IT IS STATED THAT IN ORDER TO BE ABLE TO RESPOND TO EMERGENCY OR URGENT MATTERS WHICH MAY COME TO THE ATTENTION OF THE DEPARTMENT OF STATE. THE OPERATIVE BASIS OF THIS SYSTEM IS THAT ELIGIBLE PERSONNEL WILL BE PLACED ON A DUTY OFFICER ROSTER AND SERVE IN SUCH A CAPACITY AT THEIR DUTY STATION ON A ROTATING BASIS. AT FOREIGN SERVICE POSTS WILL BEGIN ON A CERTAIN DAY OF THE WEEK AND END ON THE SAME DAY ONE WEEK LATER. THE DUTY OFFICERS ARE SELECTED AND SCHEDULED IN ADVANCE ON A ROSTER WHICH IS DRAWN FROM QUALIFIED EMPLOYEES. THE NUMBER OF WEEKLY ASSIGNMENTS PER YEAR VARIES DEPENDING ON THE PERSONNEL STRENGTH OF THE ACTIVITY FROM WHICH A PARTICULAR EMPLOYEE IS DRAWN.

View Decision

B-169113, MAR 7, 1973

CIVILIAN EMPLOYEES - DUTY OFFICERS - IRREGULAR ASSIGNMENTS - COMPENSATION FOR OVERTIME DECISION CONCERNING THE AUTHORIZATION OF PREMIUM COMPENSATION TO THOSE DEPARTMENT OF STATE PERSONNEL SERVING AS DUTY OFFICERS EITHER AT THE DEPARTMENT HEADQUARTERS IN WASHINGTON, D.C., OR AT FOREIGN POSTS. SINCE DUTY OFFICER ASSIGNMENTS OCCUR AT IRREGULAR INTERVALS, PREMIUM COMPENSATION COULD NOT BE AUTHORIZED UNDER 5 U.S.C. 5545(C)(1) WHICH PROVIDES FOR PREMIUM PAY FOR HOURS WORKED ON A REGULAR OVERTIME BASIS. HOWEVER, SHOULD THE DEPARTMENT OF STATE, WITHIN ITS DISCRETIONARY AUTHORITY, DETERMINE THAT IT IS IN THE INTEREST OF THE UNITED STATES TO PAY REGULAR OVERTIME OR IN LIEU THEREOF TO GRANT COMPENSATORY TIME OFF UNDER 5 U.S.C. 5542-43, THE COMP. GEN. HAS NO OBJECTION.

TO MR. SECRETARY:

BY LETTER OF DECEMBER 8, 1972, WITH ENCLOSURES, YOUR ACTING ASSISTANT SECRETARY FOR ADMINISTRATION REQUESTS OUR DECISION CONCERNING THE AUTHORIZATION OF PREMIUM COMPENSATION TO THOSE DEPARTMENT OF STATE PERSONNEL SERVING AS DUTY OFFICERS EITHER AT THE DEPARTMENT HEADQUARTERS IN WASHINGTON, D. C., OR AT FOREIGN POSTS AROUND THE WORLD.

IT IS STATED THAT IN ORDER TO BE ABLE TO RESPOND TO EMERGENCY OR URGENT MATTERS WHICH MAY COME TO THE ATTENTION OF THE DEPARTMENT OF STATE, THERE HAS BEEN ESTABLISHED A DUTY OFFICER SYSTEM IN MOST OF THE DEPARTMENT'S BUREAUS, POSTS, AND OFFICES AROUND THE WORLD. THE OPERATIVE BASIS OF THIS SYSTEM IS THAT ELIGIBLE PERSONNEL WILL BE PLACED ON A DUTY OFFICER ROSTER AND SERVE IN SUCH A CAPACITY AT THEIR DUTY STATION ON A ROTATING BASIS.

THE LETTER OF DECEMBER 8 FURTHER STATES THAT:

"THE TYPICAL ASSIGNMENT OF MOST DUTY OFFICERS IN BUREAUS, OFFICES, AND AT FOREIGN SERVICE POSTS WILL BEGIN ON A CERTAIN DAY OF THE WEEK AND END ON THE SAME DAY ONE WEEK LATER. THE DUTY OFFICERS ARE SELECTED AND SCHEDULED IN ADVANCE ON A ROSTER WHICH IS DRAWN FROM QUALIFIED EMPLOYEES. EACH BUREAU, SUBORDINATE OFFICE, OR POST HAS THE AUTHORITY TO DETERMINE WHICH CATEGORY OF EMPLOYEE BY GRADE SHALL BE ELIGIBLE TO SERVE AS DUTY OFFICER. THE NUMBER OF WEEKLY ASSIGNMENTS PER YEAR VARIES DEPENDING ON THE PERSONNEL STRENGTH OF THE ACTIVITY FROM WHICH A PARTICULAR EMPLOYEE IS DRAWN. DURING EACH DUTY OFFICER'S TOUR, HE OR SHE PERFORMS NORMAL DUTIES DURING REGULAR BUSINESS HOURS EXCEPT WHERE THERE HAS BEEN A CORRESPONDING WORK WEEK ADJUSTMENT. AFTER NORMAL BUSINESS HOURS MONDAY THROUGH FRIDAY, HE OR SHE IS AVAILABLE BY TELEPHONE. THE DUTY OFFICER MAY BE REQUIRED TO BE IN THE OFFICE ON SATURDAYS, HOLIDAYS, OR SOMETIMES ON SUNDAYS. ***"

IN VIEW OF THE ABOVE-QUOTED DESCRIPTION, THE LETTER OF DECEMBER 8 ASSERTS THAT WHILE THE DUTY OFFICER ASSIGNMENT IS A RECURRING ONE IT DOES NOT, HOWEVER, RECUR WITHIN REGULARLY SPECIFIED INTERVALS SO AS TO COME WITHIN THE LANGUAGE OF 5 U.S.C. 5545(C)(1) AND OUR DECISION 48 COMP. GEN. 334 (1968). IT IS APPARENTLY YOUR POSITION THAT SINCE THE DUTY OFFICER ASSIGNMENTS RECUR AT IRREGULAR INTERVALS THAT APPLICATION OF 5 U.S.C. 5545(C)(1) WOULD NOT BE PROPER SO AS TO AUTHORIZE PREMIUM COMPENSATION ON AN ANNUAL BASIS TO THE CONCERNED PERSONNEL. RATHER, YOU FEEL THAT THE ASSIGNMENTS ARE "IRREGULAR AND OCCASIONAL" AND THEREFORE ARE FOR CONSIDERATION UNDER 5 U.S.C. 5542-5543, OVERTIME BEING COMPENSABLE EITHER IN THE MONETARY EQUIVALENT OF THE HOURS WORKED OR IN COMPENSATORY TIME OFF, AT THE DISCRETION OF THE DEPARTMENT. 3 FOREIGN AFFAIRS MANUAL 232.3- 3.

THE ABOVE-CITED PROVISION OF LAW, 5 U.S.C. 5545, PROVIDES PERTINENTLY AS FOLLOWS:

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

"(1) AN EMPLOYEE IN A POSITION REQUIRING HIM REGULARLY TO REMAIN AT, OR WITHIN THE CONFINES OF, HIS STATION DURING LONGER THAN ORDINARY PERIODS OF DUTY, A SUBSTANTIAL PART OF WHICH CONSISTS OF REMAINING IN A STANDBY STATUS RATHER THAN PERFORMING WORK, SHALL RECEIVE PREMIUM PAY FOR THIS DUTY ON AN ANNUAL BASIS INSTEAD OF PREMIUM PAY PROVIDED BY OTHER PROVISIONS OF THIS SUBCHAPTER, EXCEPT FOR IRREGULAR, UNSCHEDULED OVERTIME DUTY IN EXCESS OF HIS REGULARLY SCHEDULED WEEKLY TOUR. PREMIUM PAY UNDER THIS PARAGRAPH IS DETERMINED AS AN APPROPRIATE PERCENTAGE, NOT IN EXCESS OF 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 (OR, FOR A POSITION DESCRIBED IN SECTION 5542(A)(3) OF THIS TITLE, OF THE BASIC PAY OF THE POSITION), BY TAKING INTO CONSIDERATION THE NUMBER OF HOURS OF ACTUAL WORK REQUIRED IN THE POSITION, THE NUMBER OF HOURS REQUIRED IN A STANDBY STATUS AT OR WITHIN THE CONFINES OF THE STATION, THE EXTENT TO WHICH THE DUTIES OF THE POSITION ARE MADE MORE ONEROUS BY NIGHT, SUNDAY, OR HOLIDAY WORK, OR BY BEING EXTENDED OVER PERIODS OF MORE THAN 40 HOURS A WEEK, AND OTHER RELEVANT FACTORS; OR

"(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 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, NIGHT, AND SUNDAY DUTY, AND FOR HOLIDAY DUTY. PREMIUM PAY UNDER THIS PARAGRAPH IS DETERMINED AS AN APPROPRIATE PERCENTAGE, NOT LESS THAN 10 PER CENTUM NOR MORE THAN 25 PER CENTUM, 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 IRREGULAR UNSCHEDULED OVERTIME DUTY REQUIRED IN THE POSITION."

CONCERNING THE PROVISIONS OF 5 U.S.C. 5545, IT WOULD SEEM TO US THAT SUBSECTION (C)(2) THEREOF WOULD NOT BE APPLICABLE BECAUSE THE REGULAR TOURS OF DUTY OF THE EMPLOYEES ARE CONTROLLABLE. THE FACT THAT THE OVERTIME OR STANDBY DUTY IS TO SOME EXTENT NOT CONTROLLABLE IS IMMATERIAL. IF PERCENTAGE COMPENSATION IS TO BE CONSIDERED, THE ONLY AUTHORITY THEREFOR APPEARS TO BE SUBSECTION (C)(1) WHICH COVERS REGULAR DUTY AND STANDBY DUTY SUCH AS HERE INVOLVED. SEE THE REGULATIONS CONTAINED IN 5 CFR 550.141-550.163. HOWEVER, AS INDICATED IN B-151168, APRIL 6, 1971, COPY ENCLOSED, THE RESPONSIBILITY FOR DETERMINING WHETHER THE HOURS OF DUTY OF AN EMPLOYEE WARRANT THE PAYMENT OF PERCENTAGE COMPENSATION IN LIEU OF OTHER PREMIUM COMPENSATION IS VESTED IN THE HEAD OF THE AGENCY CONCERNED AND THE CIVIL SERVICE COMMISSION. ALSO, WE POINT OUT THAT THE PRESCRIBING OF SUCH PERCENTAGE COMPENSATION IS DISCRETIONARY. THUS, IF THE DEPARTMENT OF STATE SHOULD DETERMINE THAT IT IS IN THE INTEREST OF THE UNITED STATES TO PAY REGULAR OVERTIME COMPENSATION OR IN LIEU THEREOF GRANT COMPENSATORY TIME OFF UNDER THE PROVISIONS OF 5 U.S.C. 5542-43, WE PERCEIVE NO OBJECTION THERETO. IN THAT CONNECTION WE FURTHER POINT OUT THAT OVERTIME COMPENSATION UNDER 5 U.S.C. 5542 COVERS REGULARLY SCHEDULED OVERTIME AS WELL AS IRREGULAR OR OCCASIONAL OVERTIME.

YOUR QUESTION IS ANSWERED ACCORDINGLY.

GAO Contacts

Office of Public Affairs