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B-160465, MAR. 9, 1967

B-160465 Mar 09, 1967
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TO UNITED STATES CIVIL SERVICE COMMISSION: THIS IS IN REPLY TO YOUR LETTER OF NOVEMBER 25. IS AUTHORIZED. IS AMENDED BY ADDING A NEW PARAGRAPH TO READ AS FOLLOWS: " "/3) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH (2) OF THIS SUBSECTION. PREMIUM COMPENSATION SHALL BE PAID TO ANY OFFICER OR EMPLOYEE SOLELY BECAUSE HIS SPECIAL TOUR OF DUTY ESTABLISHED PURSUANT TO THIS PARAGRAPH RESULTS IN HIS WORKING ON A DAY OR AT A TIME OF DAY FOR WHICH PREMIUM COMPENSATION IS OTHERWISE AUTHORIZED.'" THE PURPOSE OF S. 1495 IS "TO AUTHORIZE HEADS OF GOVERNMENT DEPARTMENTS AND AGENCIES TO SCHEDULE OTHER THAN REGULAR TOURS OF DUTY. FOR EMPLOYEES WHO ARE PURSUING COURSES OF STUDY IN COLLEGES. OR OTHER EDUCATIONAL INSTITUTIONS THAT WILL INCREASE THEIR EFFICIENCY AND EFFECTIVENESS.

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B-160465, MAR. 9, 1967

TO UNITED STATES CIVIL SERVICE COMMISSION:

THIS IS IN REPLY TO YOUR LETTER OF NOVEMBER 25, 1966, INQUIRING AS TO WHETHER A PROPOSED AMENDMENT TO SECTION 610.122 OF THE CIVIL SERVICE COMMISSION REGULATIONS, IMPLEMENTING PUB.L. 89-478, APPROVED JUNE 29, 1966, 80 STAT. 231, 5 U.S.C. 944 (A) (3), IS AUTHORIZED. THE CHANGE INVOLVES THE ADDITION OF THE WORDS "OR FOR A NUMBER OF HOURS IN A DAY" TO THE EXISTING REGULATIONS.

PUB.L. 89-478, S. 1495, 89TH CONG., AN ACT ENTITLED " TO PERMIT VARIATION OF THE FORTY-HOUR WORKWEEK OF FEDERAL EMPLOYEES FOR EDUCATIONAL PURPOSES," PROVIDES AS FOLLOWS:

"* * * THAT SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED (5 U.S.C. 944 (A) (, IS AMENDED BY ADDING A NEW PARAGRAPH TO READ AS FOLLOWS:

" "/3) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH (2) OF THIS SUBSECTION, THE HEAD OF EACH SUCH DEPARTMENT, ESTABLISHMENT, OR AGENCY AND OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA MAY ESTABLISH SPECIAL TOURS OF DUTY (OF NOT LESS THAN FORTY HOURS) WITHOUT REGARD TO THE REQUIREMENTS OF SUCH PARAGRAPH IN ORDER TO ENABLE OFFICERS AND EMPLOYEES TO TAKE COURSES IN NEARBY COLLEGES, UNIVERSITIES, OR OTHER EDUCATIONAL INSTITUTIONS THAT EQUIP THEM FOR MORE EFFECTIVE WORK IN THE AGENCY. PREMIUM COMPENSATION SHALL BE PAID TO ANY OFFICER OR EMPLOYEE SOLELY BECAUSE HIS SPECIAL TOUR OF DUTY ESTABLISHED PURSUANT TO THIS PARAGRAPH RESULTS IN HIS WORKING ON A DAY OR AT A TIME OF DAY FOR WHICH PREMIUM COMPENSATION IS OTHERWISE AUTHORIZED.'"

THE PURPOSE OF S. 1495 IS "TO AUTHORIZE HEADS OF GOVERNMENT DEPARTMENTS AND AGENCIES TO SCHEDULE OTHER THAN REGULAR TOURS OF DUTY, FOR EMPLOYEES WHO ARE PURSUING COURSES OF STUDY IN COLLEGES, UNIVERSITIES, OR OTHER EDUCATIONAL INSTITUTIONS THAT WILL INCREASE THEIR EFFICIENCY AND EFFECTIVENESS, TO ACCOMMODATE THE SCHOLASTIC PROGRAMS OF SUCH EMPLOYEES WHEN CONSISTENT WITH THE INTERESTS OF THE GOVERNMENT.' H.REPT. NO. 1623, 89TH CONG., 2D SESS. 1.

IN FURTHER SPELLING OUT THE EFFECT OF S. 1495, H.REPT. NO. 1623, 89TH CONG., 2D SESS. 3, TATED:

"IT IS EMPHASIZED THAT ENACTMENT OF S. 1495 CONFERS NO NEW AUTHORITY OR RIGHT WITH RESPECT TO THE TRAINING OR EDUCATION OF FEDERAL EMPLOYEES DURING THEIR ASSIGNED DUTY HOURS OR AT GOVERNMENT EXPENSE. IT MERELY AUTHORIZES HEADS OF DEPARTMENTS AND AGENCIES TO ASSIGN WORKING HOURS, OTHER THAN THE CUSTOMARY WORKING HOURS, TO THOSE EMPLOYEES WHO ARE PURSUING STUDIES, ON THEIR OWN TIME AND AT THEIR OWN EXPENSE, WHICH THEY CANNOT CONTINUE OR COMPLETE WITHOUT USING ANNUAL LEAVE OR LEAVE WITHOUT PAY IF THEY ARE REQUIRED TO OBSERVE THE CUSTOMARY WORKING HOURS.

"NOR MAY THE PROVISIONS OF THIS LEGISLATION BE USED IN A MANNER INCONSISTENT WITH THE INTERESTS OF THE GOVERNMENT. THE EMPLOYEES WILL BE REQUIRED TO PERFORM OFFICIAL DUTIES FOR THE SAME NUMBER OF HOURS PER DAY AND DAYS PER WEEK THAT APPLY TO ALL OTHER PERSONNEL. THE GOVERNMENT WILL CONTINUE TO HAVE THEIR FULL-TIME SERVICES IN THE PERFORMANCE OF OFFICIAL DUTIES. THE SCHOOL ATTENDANCE WILL NOT BE CONSIDERED PART OF ANY EMPLOYEE'S TOUR OF DUTY, AND NO EMPLOYEE WILL BE PERMITTED TO RECEIVE OVERTIME COMPENSATION SOLELY BECAUSE HIS SPECIAL TOUR OF DUTY FOR EDUCATIONAL PURPOSES REQUIRES HIM TO WORK ON A DAY, OR AT A TIME OF DAY, FOR WHICH OVERTIME PAY IS USUALLY AUTHORIZED. * * *"

THE SECOND SENTENCE IN THE SECOND PARAGRAPH OF THE HOUSE REPORT QUOTED ABOVE, IF CONSIDERED OUT OF CONTEXT, APPEARS TO RAISE A QUESTION WHETHER AGENCIES ARE AUTHORIZED TO ESTABLISH SPECIAL TOURS OF DUTY WHICH CHANGE THE NUMBER OF HOURS PER DAY OR DAYS PER WEEK THAT EMPLOYEES WORK IN ORDER TO PERMIT ATTENDANCE AT SCHOOLS. THAT SENTENCE READS AS FOLLOWS: "THE EMPLOYEES WILL BE REQUIRED TO PERFORM OFFICIAL DUTIES FOR THE SAME NUMBERS OF HOURS PER DAY AND DAYS PER WEEK THAT APPLY TO ALL OTHER PERSONNEL.'

WE THINK THE UNDERSCORED WORDS REFER TO THE TOTAL NUMBER OF HOURS PER WEEK. THE LANGUAGE OF THE STATUTE IS UNAMBIGUOUS IN THIS REGARD; AND THE QUOTED SENTENCE OF THE REPORT IS CLARIFIED BY THE NEXT SENTENCE OF THE REPORT WHICH READS "THE GOVERNMENT WILL CONTINUE TO HAVE THEIR FULL-TIME SERVICES.' THUS FLEXIBILITY IN SCHEDULING HOURS AND DAYS OF WORK WITHOUT A LOSS OF FULL-TIME SERVICES IS PERMITTED SO LONG AS IT IS NOT OTHERWISE PROHIBITED BY LAW.

IN IMPLEMENTATION OF PUB.L. 89-478 THE COMMISSION IN FPM LTR. 610 2, SEPTEMBER 28, 1966, ISSUED REGULATION 610.122 WHICH PROVIDED IN PERTINENT PART AS FOLLOWS:

"PART 610

HOURS OF DUTY

SUBPART A. WEEKLY AND DAILY SCHEDULING OF WORK

"SECTION 610.122. VARIATIONS IN WORK SCHEDULES FOR EDUCATIONAL PURPOSES. (A) NOTWITHSTANDING SECTION 610.121, THE HEAD OF A DEPARTMENT MAY AUTHORIZE A SPECIAL TOUR OF DUTY OF NOT LESS THAN 40 HOURS TO PERMIT AN EMPLOYEE TO TAKE ONE OR MORE COURSES IN A COLLEGE, UNIVERSITY, OR OTHER EDUCATIONAL INSTITUTION * * *

"/B) THE DEPARTMENT MAY NOT PAY TO THE EMPLOYEE ANY PREMIUM PAY SOLELY BECAUSE THE SPECIAL TOUR OF DUTY AUTHORIZED UNDER THIS SECTION CAUSES THE EMPLOYEE TO WORK ON A DAY, OR AT A TIME DURING THE DAY, FOR WHICH PREMIUM PAY WOULD OTHERWISE BE PAYABLE.'

SUBSEQUENT TO THE PASSAGE OF PUB.L. 89-478, THE FEDERAL EMPLOYEES SALARY ACT OF 1966, PUB.L. 89-504, APPROVED JULY 18, 1966, 80 STAT. 288, IN SECTION 404 UNDER THE HEADING "OVERTIME" PROVIDED AS FOLLOWS:

"/A) SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED (5 U.S.C. 911), IS AMENDED ---

"/1) BY INSERTING "OR, WITH THE EXCEPTION OF EMPLOYEES ENGAGED IN PROFESSIONAL OR TECHNICAL ENGINEERING OR SCIENTIFIC ACTIVITIES FOR WHOM THE FIRST FORTY HOURS OF DUTY IN AN ADMINISTRATIVE WORKWEEK IS THE BASIC WORKWEEK AND EMPLOYEES WHOSE BASIC COMPENSATION EXCEEDS THE MINIMUM RATE OF GRADE GS-10 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, FOR WHOM THE FIRST FORTY HOURS OF DUTY IN AN ADMINISTRATIVE WORKWEEK IS THE BASIC WORKWEEK, IN EXCESS OF EIGHT HOURS IN A DAY" IMMEDIATELY FOLLOWING "IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK" * * *"

IN VIEW OF THE GENERAL REQUIREMENT TO PAY OVERTIME FOR ALL HOURS OF WORK IN EXCESS OF EIGHT HOURS IN A DAY, EXCEPT FOR THE SPECIFIC EXCEPTIONS LISTED, YOU PROPOSE TO ADD THE WORDS "OR FOR A NUMBER OF HOURS IN A DAY" TO THE COMMISSION'S REGULATION 610.122 (B) SO AS TO EXCLUDE SUCH PAYMENT WHERE SPECIAL TOURS OF DUTY IN EXCESS OF EIGHT HOURS IN ONE DAY HAVE BEEN ESTABLISHED TO ENABLE THE EMPLOYEE TO TAKE EDUCATIONAL COURSES. YOU URGE THAT THE PURPOSE OF PUB.L. 89-478 IS TO PERMIT THE VARYING OF WORK SCHEDULES WITHOUT INCURRING LIABILITY FOR PREMIUM PAY. YOU ALSO CONSIDER THAT A LITERAL INTERPRETATION OF THE LANGUAGE IN PUB.L. 89-478 "WORKING ON A DAY OR AT A TIME OF DAY FOR WHICH PREMIUM COMPENSATION IS OTHERWISE AUTHORIZED" SO AS TO MAKE IT INAPPLICABLE TO HOURS WORKED IN ONE DAY WOULD TO A SUBSTANTIAL DEGREE DEFEAT THE STATUTE.

SECTION 404 OF PUB.L. 89-504, ABOVE, IN EFFECT, AUTHORIZED THE PAYMENT OF OVERTIME NOT ONLY TO EMPLOYEES WHO SERVE IN EXCESS OF FORTY HOURS IN ONE WEEK BUT ALSO TO THOSE WHO WORK IN EXCESS OF EIGHT HOURS IN A DAY. THUS, ALL EMPLOYEES SUBJECT TO 5 U.S.C. 5542, EXCEPT AS SPECIFICALLY EXCEPTED IN SECTION 404, ABOVE, BECAME ENTITLED TO OVERTIME AFTER EIGHT HOURS OF WORK. NO EXCEPTION WAS MADE THEREIN FOR EMPLOYEES FOR WHOM SPECIAL TOURS OF DUTY WERE ESTABLISHED UNDER PUB.L. 89-478.

IN COMMENTING ON THE NEW OVERTIME PAY PROVISION CONTAINED IN PUB.L. 89- 504, S.REPT. NO. 1186 STATED ON PAGE 4:

"SECTION 404 AUTHORIZES OVERTIME PAYMENT FOR WORK IN EXCESS OF 8 HOURS IN 1 DAY FOR CLASSIFIED EMPLOYEES WITH THE EXCEPTION OF CERTAIN ENGINEERING AND SCIENTIFIC EMPLOYEES. FEDERAL EMPLOYEES GET OVERTIME PAY FOR WORK IN EXCESS OF 40 HOURS IN A WEEK, BUT HERETOFORE THE LAW HAS NOT REQUIRED PAY FOR WORK IN EXCESS OF 8 HOURS IN A DAY. THIS PROVISION WILL REWARD SUCH SERVICE AND SERVE AS AN INCENTIVE TO AGENCY MANAGEMENT TO IMPROVE SCHEDULES TO AVOID OVERTIME WORK.'

WE HAVE CAREFULLY CONSIDERED THIS MATTER BUT CAN FIND NO PROPER BASIS FOR USING THE EXISTING LANGUAGE OF PUB.L. 89-478 TO PRECLUDE PAYMENT OF OVERTIME COMPENSATION TO EMPLOYEES WHO WORK IN EXCESS OF EIGHT HOURS IN A DAY. THEREFORE, IT IS OUR VIEW THAT THE PROPOSED AMENDMENT TO THE CIVIL SERVICE COMMISSION REGULATIONS "OR FOR A NUMBER OF HOURS IN A DAY" WOULD NOT BE AUTHORIZED.

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