B-51325, AUGUST 8, 1945, 25 COMP. GEN. 161

B-51325, AUGUST 8, 1945, 25 COMP. GEN. 161

FEDERAL EMPLOYEES PAY ACT OF 1945 - FIREFIGHTERS AND SIMILAR PROTECTIVE AND CUSTODIAL EMPLOYEES RENDERING "STAND-BY" AND "ON CALL" SERVICE; ETC. WHILE "STAND-BY" OR "ON CALL" TIME, EXCEPT SLEEPING AND EATING TIME, MAY NOT BE REGARDED IN ALL CASES AS "HOURS OF EMPLOYMENT" WITHIN THE MEANING OF THE OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, THE WAR DEPARTMENT DETERMINATION THAT, IN THE CASE OF FIREFIGHTERS AND SIMILAR PROTECTIVE AND CUSTODIAL EMPLOYEES, SLEEPING AND EATING TIME OF 8 HOURS DURING EACH 24 HOURS ON THE JOB SHALL BE CONSIDERED AS NOT "HOURS OF EMPLOYMENT" IS NOT OBJECTIONABLE. FOR ALL COMPUTATION PURPOSES, INCLUDING APPLICATION OF THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, IN THE CASE OF WAR DEPARTMENT FIREFIGHTERS AND SIMILAR PROTECTIVE AND CUSTODIAL EMPLOYEES WHO ARE REQUIRED TO RENDER "STAND-BY" OR "ON CALL" SERVICE IN ROTATING SHIFT SYSTEMS, THERE MAY BE ADOPTED THE "TWO-THIRDS RULE"--- TWO-THIRDS OF EACH HOUR OF 24 ON THE JOB TO REPRESENT TIME IN A PAY STATUS AND ONE THIRD AS TIME OUT FOR SLEEPING AND EATING--- IN LIEU OF AVERAGING THE NUMBER OF REGULARLY SCHEDULED HOURS OF DUTY PER WEEK IN A CYCLE OF MORE THAN ONE WEEK AS PROVIDED BY SECTION 301 (B) (2), CHAP. I, OF THE CIVIL SERVICE COMMISSION'S REGULATIONS UNDER THE ACT. APPLYING THE "TWO-THIRDS RULE" IN THE CASE OF FIREFIGHTERS AND SIMILAR PROTECTIVE AND CUSTODIAL EMPLOYEES WHOSE WORKWEEKS INCLUDE PERIODS DURING WHICH THEY MAY NOT BE REQUIRED TO WORK BUT ARE REQUIRED TO REMAIN ON DUTY AND RENDER "STAND-BY" OR "ON CALL" SERVICE, THE FIRST 60 HOURS ON THE JOB LESS 20 HOURS FOR SLEEPING AND EATING MAY BE REGARDED AS THE BASIC 40-HOUR WORKWEEK UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, DURING WHICH STRAIGHT TIME RATES OF COMPENSATION (TWO THIRDS OF THE HOURLY BASIC COMPENSATION FOR EACH OF THE FIRST 60 HOURS ON THE JOB) ARE PAYABLE. FIREFIGHTERS AND SIMILAR PROTECTIVE AND CUSTODIAL EMPLOYEES WHOSE 24 HOUR PERIODS OF DUTY INVOLVE "STAND-BY" OR "ON CALL" TIME, AND WHO MAY BE COMPENSATED UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 AT STRAIGHT TIME RATES ON THE BASIS OF TWO-THIRDS OF THE HOURLY BASIC COMPENSATION FOR EACH OF THE FIRST 60 HOURS ON THE JOB--- ONE-THIRD OF EACH 24 HOURS OF DUTY BEING CONSIDERED SLEEPING AND EATING TIME--- SHOULD BE CHARGED WITH TWO- THIRDS OF AN HOUR'S PAY FOR EACH HOUR IN A NONPAY STATUS, RATHER THAN WITH AN HOUR'S PAY. UNDER THE "TWO-THIRDS RULE" WHICH MAY BE APPLIED TO WAR DEPARTMENT FIREFIGHTERS AND SIMILAR PROTECTIVE AND CUSTODIAL EMPLOYEES WHOSE 24 HOUR PERIODS OF DUTY INVOLVE "STAND-BY" OR "ON CALL" TIME, THE NIGHT PAY DIFFERENTIAL PROVIDED BY SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 SHOULD BE COMPUTED ON THE BASIS OF TWO-THIRDS OF 10 PERCENT OF THE BASIC RATE OF COMPENSATION FOR THAT PORTION OF THE FIRST 60 HOURS ON THE JOB (WHICH IS CONSIDERED AS THE BASIC WORKWEEK) FALLING BETWEEN 6 P.M. AND 6 A.M. WAR DEPARTMENT FIREFIGHTERS AND SIMILAR PROTECTIVE AND CUSTODIAL EMPLOYEES WHO WORK MORE THAN 48 HOURS DURING AN ADMINISTRATIVE WORKWEEK IN REGULARLY RECURRING CYCLES UNDER A ROTATING-SHIFT SYSTEM ARE NOT TO BE REGARDED AS RENDERING "OCCASIONAL OR IRREGULAR" OVERTIME DUTY FOR WHICH COMPENSATORY TIME OFF MAY BE GRANTED UNDER SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IN LIEU OF PAYMENT OF OVERTIME COMPENSATION UNDER SECTION 201.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, AUGUST 8, 1945:

I HAVE YOUR LETTER OF JULY 25, 1945, AS FOLLOWS:

ENACTMENT OF THE FEDERAL EMPLOYEES' PAY ACT OF 1945 ( PUBLIC LAW 106--- 79TH CONGRESS) HAS GIVEN RISE TO A NUMBER OF QUESTIONS RELATIVE TO THE METHOD TO BE FOLLOWED IN COMPUTING THE PAY OF THOSE EMPLOYEES WHOSE WORK WEEKS INCLUDE PERIODS DURING WHICH THEY MAY NOT BE REQUIRED TO WORK BUT DURING WHICH THEY ARE REQUIRED TO REMAIN ON DUTY AND RENDER "STAND-BY SERVICE.'

WITHIN THE DEPARTMENT THERE ARE A CONSIDERABLE NUMBER OF THESE EMPLOYEES, PRIMARILY FIREFIGHTERS AND SIMILAR PROTECTIVE OR CUSTODIAL EMPLOYEES. BECAUSE OF THE NATURE OF THEIR WORK, LOCATION OF THEIR POSTS OF DUTY, THE MANPOWER SITUATION IN CERTAIN AREAS, AND SIMILAR FACTORS, TOURS OF DUTY FOR THESE EMPLOYEES ARE NOT, AND CANNOT BE STANDARDIZED. THE FOLLOWING ARE CITED AS A FEW TYPICAL EXAMPLES OF THE TOURS IN EXISTENCE.

S M T W T F S

ST WEEK------------ 24 10 24 10 24 10 24

2ND WEEK------------ 10 24 10 24 10 24 10

ST WEEK------------ 24 24 24 10 10 10 24

2ND WEEK------------ 24 24 10 10 10 24 24

3RD WEEK------------ 24 10 10 10 24 24 24

4TH WEEK------------ 10 10 10 24 24 24 10

5TH WEEK------------ 10 10 24 24 24 10 10

6TH WEEK------------ 10 24 24 24 10 10 10

LST WEEK------------ 24 24 24 24 24 24 24

2ND WEEK------------ 0 0 0 0 0 0 0

ST WEEK------------ 24 10 24 10 24 10 10

2ND WEEK------------ 10 24 10 24 10 24 10

HERETOFORE THE REGULATIONS OF THE DEPARTMENT, ISSUED PURSUANT TO THE PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943, AND OF THE CIVIL SERVICE COMMISSION'S OVERTIME PAY REGULATIONS, HAVE REQUIRED THAT IN THE CASE OF THE TOURS CITED AND OTHER SIMILAR TOURS EIGHT HOURS OF EACH DUTY DAY BE CONSIDERED AS TIME ALLOWED THE EMPLOYEES FOR SLEEP AND MEALS. THE PERIOD OF TIME ALLOWED FOR SLEEP AND MEALS UNDER ANY OF THE TOURS IN EXISTENCE HAS NOT BEEN SPECIFICALLY SET ASIDE BY CLOCK HOURS SINCE UNDER THE CONDITIONS OF EMPLOYMENT AND DUTY SUCH ACTION IS NOT FEASIBLE. INSTEAD IT HAS BEEN CONSIDERED THAT THE EMPLOYEE IS, IN EFFECT ACTUALLY WORKING THE EQUIVALENT OF 2/3 OF EACH HOUR HE IS ON DUTY.

SECTION 301 (B) (2) ( CHAP. I) OF THE CIVIL SERVICE COMMISSION REGULATIONS PROMULGATED BY EXECUTIVE ORDER 9578, 29 JUNE 1945, CONTAINS THE FOLLOWING PROVISIONS RELATIVE TO THE ESTABLISHMENT OF TOURS OF DUTY FOR THESE EMPLOYEES:

"IN THE CASE OF EMPLOYEES WHOSE WORK INCLUDES PERIODS DURING WHICH THEY ARE REQUIRED TO REMAIN ON DUTY AND RENDER "STAND-BY SERVICE" AT OR WITHIN THE CONFINES OF THEIR STATIONS, THE LENGTH OF THE ADMINISTRATIVE WORKWEEK, FOR THE PURPOSE OF THESE REGULATIONS, SHALL BE THE TOTAL NUMBER OF REGULARLY SCHEDULED HOURS OF DUTY PER WEEK (OR IN ROTATING SHIFT SYSTEMS, THE AVERAGE NUMBER OF REGULARLY SCHEDULED HOURS OF DUTY PER WEEK FOR THE CYCLE), INCLUDING ALL SUCH "STAND-BY" OR ,ON-CALL" TIME EXCEPT THAT ALLOWED BY REGULATION OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT FOR SLEEP AND MEALS.'

IT APPEARS THAT UNDER THE QUOTED PROVISION OF THE EXECUTIVE ORDER REFERRED TO THE DEPARTMENT SHOULD CONTINUE ITS PAST PRACTICE OF (1) TOTALING THE NUMBER OF DUTY HOURS IN THE WORK CYCLE (2) SUBTRACTING THEREFROM THE TOTAL NUMBER OF HOURS ALLOWED FOR SLEEP AND MEALS (3) DIVIDING THE RESULT BY THE NUMBER OF WEEKS IN THE WORK CYCLE AND (4) CONSIDERING THE AVERAGE WORKWEEK SO OBTAINED AS THE WORKWEEK FOR PAY COMPUTATION PURPOSES. UNDER THIS ARRANGEMENT EMPLOYEES WORKING THE FIRST THREE TOURS CITED WOULD RECEIVE COMPENSATION FOR 56 HOURS EACH WEEK; EMPLOYEES WORKING THE LAST TOUR CITED COULD RECEIVE COMPENSATION FOR 48 HOURS EACH WEEK.

HOWEVER, IF THIS PRACTICE IS FOLLOWED THERE IS DOUBT AS TO THE APPLICATION OF SECTIONS 201 AND 604A OF PUBLIC LAW 106. THESE SECTIONS PROVIDE IN PERTINENT PART AS FOLLOWS:

" SECTION 201. OFFICERS AND EMPLOYEES TO WHOM THIS TITLE APPLIES SHALL, IN ADDITION TO THEIR BASIC COMPENSATION, BE COMPENSATED FOR ALL HOURS OF EMPLOYMENT, OFFICIALLY ORDERED OR APPROVED, IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORK WEEK, AT OVERTIME RATES AS FOLLOWS: * * *"

" SECTION 604 (A). IT SHALL BE THE DUTY OF THE HEADS OF THE SEVERAL DEPARTMENTS * * * TO ESTABLISH AS OF THE EFFECTIVE DATE OF THIS ACT, FOR ALL FULL TIME OFFICERS AND EMPLOYEES IN THEIR RESPECTIVE ORGANIZATIONS, * * * A BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS * * * .'

ASSUMING CONTINUATION OF THE PAST PRACTICE OF AVERAGING THE WORKWEEKS FOR THIS CLASS OF EMPLOYEES THE FOLLOWING QUESTIONS IMMEDIATELY PRESENT THEMSELVES AND OTHER SIMILAR QUESTIONS ARE ANTICIPATED.

(1) WHAT HOURS OF THE WEEK, IN EACH WEEK OF THE WORK CYCLE SHOULD BE CONSIDERED AS THE BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS, DURING WHICH STRAIGHT-TIME RATES OF COMPENSATION ARE PAYABLE.

(2) IN THE EVENT OF AN ABSENCE IN A NON-PAY STATUS WOULD THE EMPLOYEE LOSE AN HOUR'S PAY FOR EACH HOUR OF ABSENCE OR, SINCE EIGHT HOURS OF EACH 24 HOUR TOUR OF DUTY IS CONSIDERED AS TIME AVAILABLE FOR SLEEP OR MEALS WOULD IT BE PROPER TO DEDUCT 2/3 OF AN HOUR'S PAY FOR EACH HOUR IN A NON PAY STATUS.

(3) WOULD THE NIGHT DIFFERENTIAL PRESCRIBED BY SECTION 301 OF PUBLIC LAW 106 (59 STAT. 298) BE PAYABLE FOR ALL DUTY HOURS FALLING BETWEEN 6 P.M. AND 6 A.M. OR SHOULD SOME ALLOWANCE BE MADE FOR THE TIME AVAILABLE TO THE EMPLOYEES FOR SLEEP AND MEALS?

(4) BEYOND WHAT HOURS OF THE ADMINISTRATIVE WORKWEEK WOULD WORK PERFORMED BE CONSIDERED AS ,IRREGULAR OVERTIME DUTY" WITHIN THE MEANING OF SECTION 204 OF THE CIVIL SERVICE COMMISSION'S REGULATIONS.

(5) ASSUMING THAT AN EMPLOYEE HELD THE FIRST TOUR CITED ABOVE IT WOULD APPEAR THAT UNDER THE CIVIL SERVICE COMMISSION'S REGULATIONS HE WOULD RECEIVE 56 HOURS PAY FOR 64 HOURS OF DUTY (96 HOURS OF DUTY MINUS 32 HOURS AVAILABLE FOR SLEEP AND MEALS) DURING THE FIRST WEEK OF HIS WORK CYCLE AND 56 HOURS PAY FOR 48 HOURS OF DUTY (72 HOURS OF DUTY MINUS 24 HOURS AVAILABLE FOR SLEEP AND MEALS) DURING THE SECOND WEEK OF HIS WORK CYCLE. IN THE EVENT OF SEPARATION OF THIS EMPLOYEE AT THE END OF THE FIRST WEEK OF THE WORK CYCLE, OR IN THE EVENT HE WORKED ONLY THE SECOND WEEK OF THE WORK CYCLE, WOULD IT BE PROPER TO PAY FOR THE AVERAGE WORKWEEK OF 56 HOURS?

AS WAS STATED ABOVE, IT HAS BEEN THE POLICY OF THE DEPARTMENT IN APPLYING THE CIVIL SERVICE COMMISSION'S REGULATIONS, TO CONSIDER THAT EIGHT HOURS OUT OF EACH TWENTY-FOUR HOUR TOUR OF DUTY IS TIME AVAILABLE TO THE EMPLOYEE FOR SLEEP AND MEALS. IN VIEW OF THIS FACT, THE FACT THAT IT IS ADMINISTRATIVELY IMPRACTICABLE FOR THE HOURS SO AVAILABLE TO BE SPECIFICALLY SET ASIDE BY CLOCK HOURS, AND IN VIEW OF THE PROBLEMS WHICH ARE PRESENTED BY APPLICATION OF THE PRINCIPLE OF AN AVERAGE WORKWEEK, IT APPEARS DESIRABLE THAT THE DEPARTMENT BE PERMITTED TO CONSIDER THAT FOR EACH HOUR ON DUTY THE EMPLOYEE EARNS PAY FOR 2/3 OF AN HOUR.

IF SUCH ACTION IS PERMISSIBLE EACH WEEK OF SEVEN CONSECUTIVE DAYS WILL BE CONSIDERED AS A UNIT AND PAY COMPUTED ON THE BASIS OF THE ACTUAL NUMBER OF HOURS IN A DUTY STATUS DURING THE SEVEN DAY PERIOD. FOR EXAMPLE: AN EMPLOYEE ASSIGNED TO THE FIRST TOUR CITED WOULD RECEIVE 2/3 OF THE STRAIGHT TIME HOURLY PAY FOR EACH HOUR IN A DUTY OR LEAVE STATUS DURING THE FIRST 60 HOURS OF THE WORKWEEK, AND 2/3 OF THE OVERTIME HOURLY RATE FOR EACH HOUR IN A DUTY STATUS ABOVE 60 HOURS. THUS, IF HE WERE IN A PAY STATUS DURING THE ENTIRE WEEK, HE WOULD RECEIVE FULL STRAIGHT TIME PAY FOR 40 HOURS AND FULL OVERTIME PAY FOR 24 HOURS. THIS MAKES PROPER ALLOWANCE FOR THE TIME AVAILABLE FOR MEALS AND SLEEP (96 DUTY HOURS MINUS 32 AVAILABLE FOR SLEEP AND MEALS EQUALS 64 HOURS FOR WHICH COMPENSATION IS PAYABLE.)

SINCE THE DEPARTMENT IS FACED WITH THE IMMEDIATE NECESSITY FOR COMPUTING THE PAY OF THIS CLASS OF EMPLOYEE AN EARLY DECISION WOULD BE APPRECIATED.

IT IS UNDERSTOOD THAT THE REGULATION OF THE CIVIL SERVICE COMMISSION, QUOTED IN THE FOURTH PARAGRAPH OF YOUR LETTER, SO FAR AS CONCERNS THE INCLUSION OF "STAND-BY" OR "ON CALL" TIME ON THE JOB, LESS SLEEPING AND EATING TIME, AS "HOURS OF EMPLOYMENT" WITHIN THE MEANING OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, IS BASED UPON THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF ARMOUR AND COMPANY V. WANTOCK ET AL., 323 U.S. 126, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

2. THE CONCLUSION OF BOTH COURTS BELOW THAT, UPON THE FACTS OF THIS CASE, TIME SPENT ON THE EMPLOYER'S PREMISES BY FIREGUARDS SUBJECT TO CALL--- EXCLUDING TIME SPENT SLEEPING AND EATING, BUT INCLUDING TIME SPENT IDLING OR IN RECREATION--- WAS WORKING TIME COMPENSABLE UNDER THE MAXIMUM HOURS AND OVERTIME PROVISIONS OF THE FAIR LABOR STANDARDS ACT, SUSTAINED. 132. SEE, ALSO, SKIDMORE ET AL. V. SWIFT AND CO., 323 U.S. 134. WHILE IT IS NOT TO BE ASSUMED THAT THOSE DECISIONS, THE CONCLUSIONS OF WHICH WERE BASED UPON THE FACTS OF THE PARTICULAR CASES UNDER CONSIDERATION BY THE COURT, NECESSARILY WOULD REQUIRE THE CONCLUSION THAT "STAND-BY" AND "ON CALL" TIME ON THE JOB, EXCEPT SLEEPING AND EATING TIME, MUST IN ALL CASES BE REGARDED AS "HOURS OF EMPLOYMENT" WITHIN THE MEANING OF SECTION 201 OF THE NEW PAY STATUTE, 59 STAT. 296, AS MIGHT BE INFERRED FROM THE CIVIL SERVICE REGULATION, NEVERTHELESS, IN THE LIGHT OF THE SUPREME COURT DECISIONS THIS OFFICE IS NOT REQUIRED TO OBJECT TO THE ADMINISTRATIVE ACTION OF THE WAR DEPARTMENT IN DETERMINING THAT SLEEPING AND EATING TIME OF 8 HOURS DURING EACH 24 HOURS ON THE JOB SHALL BE REGARDED AS NOT "HOURS OF EMPLOYMENT" WITHIN THE MEANING OF THE NEW PAY STATUTE.

NEITHER IS THIS OFFICE REQUIRED TO OBJECT TO THE ADOPTION OF THE SO CALLED,"TWO-THIRDS RULE," FOR ALL COMPUTATIONS--- ONE-THIRD OF THE TIME ON THE JOB TO REPRESENT TIME OUT FOR SLEEPING AND EATING--- SUGGESTED IN THE ANTEPENULTIMATE AND PENULTIMATE PARAGRAPHS OF YOUR LETTER, THE ADOPTION OF WHICH RULE OBVIATES THE NECESSITY FOR THE AVERAGING OF THE NUMBER OF REGULARLY SCHEDULED HOURS OF DUTY PER WEEK IN A CYCLE OF MORE THAN ONE WEEK AS PROVIDED IN THAT PART OF THE QUOTED CIVIL SERVICE REGULATION INCLUDED IN PARENTHESES. NO OPINION IS HERE EXPRESSED REGARDING THE LEGALITY OF THOSE AVERAGING PROVISIONS OF THE REGULATIONS.

UPON THE ABOVE-STATED BASIS, YOUR QUESTIONS ARE ANSWERED AS FOLLOWS:

(1) THE FIRST 60 HOURS ON THE JOB LESS 20 HOURS FOR SLEEPING AND EATING PROPERLY MAY BE REGARDED AS THE BASIC WORKWEEK DURING WHICH STRAIGHT TIME RATES OF COMPENSATION (TWO-THIRDS OF THE HOURLY BASIC COMPENSATION FOR EACH OF THE FIRST 60 HOURS ON THE JOB) ARE PAYABLE.

(2) IN LINE WITH THE ANSWER TO QUESTION (1), THE FIRST ALTERNATE UNDER THIS QUESTION IS ANSWERED IN THE NEGATIVE AND THE SECOND IN THE AFFIRMATIVE.

(3) THERE SHOULD BE PAID TWO-THIRDS OF 10 PERCENT OF THE BASIC RATE OF COMPENSATION FOR THAT PORTION OF THE FIRST 60 HOURS ON THE JOB FALLING BETWEEN 6 P.M. AND 6 A.M. SEE DECISION OF JULY 18, 1945, B 50927, 25 COMP. GEN. 62, TO THE FEDERAL WORKS ADMINISTRATOR.

(4) SECTION 202 (A) OF THE NEW PAY STATUTE, 59 STAT. 297, PROVIDES:

THE HEADS OF DEPARTMENTS, OR INDEPENDENT ESTABLISHMENTS OR AGENCIES, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, AND OF THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, AND THE HEADS OF LEGISLATIVE OR JUDICIAL AGENCIES TO WHICH THIS TITLE APPLIES, MAY BY REGULATION PROVIDE FOR THE GRANTING OF COMPENSATORY TIME OFF FROM DUTY, IN LIEU OF OVERTIME COMPENSATION FOR IRREGULAR OR OCCASIONAL DUTY IN EXCESS OF FORTY-EIGHT HOURS IN ANY REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK, TO THOSE PER ANNUM EMPLOYEES REQUESTING SUCH COMPENSATORY TIME OFF FROM DUTY.

SECTION 204, PART II, OF CHAP. I OF THE CIVIL SERVICE REGULATIONS PROVIDES: " "IRREGULAR OR OCCASIONAL OVERTIME DUTY" MEANS HOURS OF EMPLOYMENT IN EXCESS OF THE REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK.' IF THAT DEFINITION IS INTENDED TO CONSTITUTE A BASIS FOR APPLYING SECTION 202 (A) OF THE STATUTE, IT WOULD NOT APPEAR TO MEET THE TERMS AND CONDITIONS OF THE STATUTE. IN THE FIRST PLACE, THE OVERTIME WORK FOR WHICH COMPENSATORY TIME OFF FROM DUTY MAY BE GRANTED AT THE REQUEST OF AN EMPLOYEE MUST BE IN EXCESS OF 48 HOURS IN ANY REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK, RATHER THAN IN EXCESS OF AN ADMINISTRATE WORKWEEK. SEE ANSWER TO QUESTION 2, DECISION OF JULY 28, 1945, B-51099, 25 COMP. GEN. 121, TO THE SECRETARY OF AGRICULTURE, AS TO THE PROPER MEANING OF THE TERM "ADMINISTRATIVE WORKWEEK" FOR OVERTIME PAY PURPOSES. IN THE SECOND PLACE, THE OVERTIME WORK PERFORMED IN EXCESS OF 48 HOURS IN ANY ADMINISTRATIVE WORKWEEK--- 7 CONSECUTIVE CALENDAR DAYS--- MUST BE IRREGULAR OR OCCASIONAL, RATHER THAN REGULAR, WITHIN SUCH CYCLES OF EMPLOYMENT AS ARE SET FORTH IN YOUR LETTER. THAT IS TO SAY, UNDER THE TERMS OF THE STATUTE OVERTIME COMPENSATION MUST BE PAID FOR ALL OVERTIME WORK UP TO AND INCLUDING 8 HOURS PER WEEK AND, ALSO, FOR ALL OVERTIME WORK OFFICIALLY ORDERED OR APPROVED FOR PERFORMANCE REGULARLY IN EXCESS OF 8 HOURS PER WEEK IN ANY ADMINISTRATIVE WORKWEEK, SUCH AS IS SHOWN IN THE CYCLES OF EMPLOYMENT STATED IN YOUR LETTER. THEREFORE, OVERTIME COMPENSATION MUST BE PAID FOR ALL OF THE HOURS OF THE CYCLES OF EMPLOYMENT REGULARLY REQUIRED OF THE FIREFIGHTERS AND SIMILAR PROTECTIVE OR CUSTODIAL EMPLOYEES, AN INDIVIDUAL EMPLOYEE WORKS OVERTIME IRREGULARLY OR OCCASIONALLY, COMPENSATORY TIME OFF FROM DUTY MAY BE GRANTED UPON THE REQUEST OF THE EMPLOYEE PURSUANT TO ADMINISTRATIVE REGULATIONS SO PROVIDING.

(5) IT IS UNDERSTOOD THAT THE ADOPTION OF THE SO-CALLED "TWO-THIRDS RULE" REQUIRING COMPENSATION TO BE COMPUTED FOR EACH WEEK AS A SEPARATE AND DISTINCT UNIT, WOULD OBVIATE THE NECESSITY FOR THE AVERAGING OF HOURS OF EMPLOYMENT DURING A PERIOD OF MORE THAN ONE WEEK. UPON THAT BASIS, NO ANSWER TO THIS QUESTION WOULD APPEAR TO BE NECESSARY.