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B-24262, MARCH 11, 1942, 21 COMP. GEN. 853

B-24262 Mar 11, 1942
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POSTAL EMPLOYEES - OVERTIME COMPENSATION ON DAY ON WHICH COMPENSATORY TIME IS GRANTED SPECIAL CLERKS. CARRIERS IN THE CITY DELIVERY SERVICE MAY BE SCHEDULED FOR WORK ON THE SAME DAY THEY ARE GRANTED COMPENSATORY TIME OFF FROM DUTY IN LIEU OF WORK WHICH WAS REQUIRED ON A PRECEDING SATURDAY. 1942: I HAVE YOUR UNDATED LETTER. IT IS NOT PRACTICABLE TO EMPLOY SUBSTITUTES. IT IS NOT PRACTICABLE TO EMPLOY SUBSTITUTES. THIS RULING IS SET FORTH IN ARTICLE 31. READS AS FOLLOWS: "ON A DAY WHEN SATURDAY COMPENSATORY TIME IS GIVEN. HE MUST NOT BE WORKED MORE THAN 3 HOURS ON THE DAY COMPENSATORY TIME IS GRANTED. A DECISION IS REQUESTED AS TO WHETHER ON A DAY WHEN AN EMPLOYEE IS BEING GRANTED COMPENSATORY TIME HE CAN BE SCHEDULED FOR MORE THAN EIGHT HOURS AND BE PAID OVERTIME FOR SERVICE IN EXCESS OF EIGHT HOURS.

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B-24262, MARCH 11, 1942, 21 COMP. GEN. 853

POSTAL EMPLOYEES - OVERTIME COMPENSATION ON DAY ON WHICH COMPENSATORY TIME IS GRANTED SPECIAL CLERKS, CLERKS, AND LABORERS, IN FIRST- AND SECOND-CLASS POST OFFICES, AND CARRIERS IN THE CITY DELIVERY SERVICE MAY BE SCHEDULED FOR WORK ON THE SAME DAY THEY ARE GRANTED COMPENSATORY TIME OFF FROM DUTY IN LIEU OF WORK WHICH WAS REQUIRED ON A PRECEDING SATURDAY, AND SUCH TIME OFF MAY BE INCLUDED AS A PART OF THE REGULAR 8 HOUR WORK DAY IN DETERMINING THE OVERTIME COMPENSATION PAYABLE FOR WORK REQUIRED ON THAT DAY IN ADDITION TO THE 8 HOURS THUS COMPUTED, BUT BOTH COMPENSATORY TIME OFF AND OVERTIME COMPENSATION MAY NOT BE ALLOWED FOR THE SAME PERIOD OF THE DAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, MARCH 11, 1942:

I HAVE YOUR UNDATED LETTER, RECEIVED HERE FEBRUARY 28, 1942, AS FOLLOWS:

IN SECTION 464, POSTAL LAWS AND REGULATIONS, THE LAW STATES:

"IN CASES OF EMERGENCY, OR IF THE NEEDS OF THE SERVICE REQUIRE, AND IT IS NOT PRACTICABLE TO EMPLOY SUBSTITUTES, SPECIAL CLERKS, CLERKS, AND LABORERS, IN FIRST- AND SECOND-CLASS POST OFFICES * * * CAN BE REQUIRED TO WORK IN EXCESS OF EIGHT HOURS PER DAY, AND FOR SUCH OVERTIME SERVICE THEY SHALL BE PAID ON THE BASIS OF THE ANNUAL PAY RECEIVED BY SUCH EMPLOYEES.'

IN SECTION 924, THE LAW STATES:

"IN CASES OF EMERGENCY, OR IF THE NEEDS OF THE SERVICE REQUIRE, AND IT IS NOT PRACTICABLE TO EMPLOY SUBSTITUTES, * * * CARRIERS IN THE CITY DELIVERY SERVICE CAN BE REQUIRED TO WORK IN EXCESS OF EIGHT HOURS PER DAY, AND FOR SUCH OVERTIME SERVICE THEY SHALL BE PAID ON THE BASIS OF THE ANNUAL PAY RECEIVED BY SUCH EMPLOYEES.'

THE DEPARTMENT HAS RULED THAT AN EMPLOYEE MUST ACTUALLY WORK EIGHT HOURS BEFORE HE CAN BE ALLOWED OVERTIME PAY. THIS RULING IS SET FORTH IN ARTICLE 31, PAGE 86, OF THE CURRENT POSTAL GUIDE, AND READS AS FOLLOWS:

"ON A DAY WHEN SATURDAY COMPENSATORY TIME IS GIVEN, THE NUMBER OF HOURS OF COMPENSATORY TIME PLUS THE HOURS OF SERVICE PERFORMED MUST NOT EXCEED 8 HOURS. FOR EXAMPLE: IF AN EMPLOYEE HAS 5 HOURS OF COMPENSATORY TIME DUE HIM, HE MUST NOT BE WORKED MORE THAN 3 HOURS ON THE DAY COMPENSATORY TIME IS GRANTED, AND HIS SCHEDULE, INCLUDING 5 HOURS COMPENSATORY TIME AND 3 HOURS WORK, MUST NOT EXCEED 8 WITHIN 10 HOURS.'

A DECISION IS REQUESTED AS TO WHETHER ON A DAY WHEN AN EMPLOYEE IS BEING GRANTED COMPENSATORY TIME HE CAN BE SCHEDULED FOR MORE THAN EIGHT HOURS AND BE PAID OVERTIME FOR SERVICE IN EXCESS OF EIGHT HOURS. WHILE HE WOULD NOT BE WORKING DURING THE PERIOD HE IS BEING GRANTED COMPENSATORY TIME, HE WOULD BE IN A PAY STATUS.

SECTIONS 117 AND 832, TITLE 39 U.S. CODE, PROVIDE, IN PERTINENT PART, AS FOLLOWS:

117. HOURS OF WORK FOR SPECIAL CLERKS, CLERKS, AND LABORERS IN FIRST AND SECOND CLASS OFFICES, AND CARRIERS IN CITY DELIVERY SERVICE; OVERTIME PAY. SPECIAL CLERKS, CLERKS, AND LABORERS, IN THE FIRST- AND SECOND-CLASS POST OFFICES AND CARRIERS IN THE CITY DELIVERY SERVICE SHALL BE REQUIRED TO WORK NOT MORE THAN EIGHT HOURS A DAY. THE EIGHT HOURS OF SERVICE SHALL NOT EXTEND OVER A LONGER PERIOD THAN TEN CONSECUTIVE HOURS, AND THE SCHEDULES OF DUTY OF THE EMPLOYEES SHALL BE REGULATED ACCORDINGLY. CASES OF EMERGENCY, OR IF THE NEEDS OF THE SERVICE REQUIRE, AND IT IS NOT PRACTICABLE TO EMPLOY SUBSTITUTES, SPECIAL CLERKS, CLERKS, AND LABORERS, IN FIRST- AND SECOND-CLASS POST OFFICES AND CARRIERS IN THE CITY DELIVERY SERVICE CAN BE REQUIRED TO WORK IN EXCESS OF EIGHT HOURS PER DAY, AND FOR SUCH OVERTIME SERVICE THEY SHALL BE PAID ON THE BASIS OF THE ANNUAL PAY RECEIVED BY SUCH EMPLOYEES. * * *

832.COMPENSATORY TIME OR OVERTIME FOR SATURDAY OR OVERTIME WORK. WHEN THE NEEDS OF THE SERVICE REQUIRE SUPERVISORY EMPLOYEES, SPECIAL CLERKS, CLERKS, LABORERS, WATCHMEN, AND MESSENGERS IN FIRST- AND SECOND-CLASS POST OFFICES, AND EMPLOYEES OF THE MOTOR-VEHICLE AND PNEUMATIC-TUBE SERVICES, AND CARRIERS IN THE CITY DELIVERY SERVICE AND IN THE VILLAGE DELIVERY SERVICE, AND EMPLOYEES OF THE RAILWAY MAIL SERVICE, CLERKS AT DIVISION HEADQUARTERS OF POST OFFICE INSPECTORS, EMPLOYEES OF THE STAMPED ENVELOPE AGENCY AND EMPLOYEES OF THE MAIL EQUIPMENT SHOPS; CLEANERS, JANITORS, TELEPHONE OPERATORS, AND ELEVATOR CONDUCTORS, PAID FROM APPROPRIATIONS OF THE FIRST ASSISTANT POSTMASTER GENERAL; AND ALL EMPLOYEES OF THE CUSTODIAL SERVICE EXCEPT CHARWOMEN AND CHARMEN AND THOSE WORKING PART TIME, TO PERFORM SERVICE ON SATURDAY THEY SHALL BE ALLOWED COMPENSATORY TIME FOR SUCH SERVICE ON ONE DAY WITHIN FIVE WORKING DAYS NEXT SUCCEEDING THE SATURDAY ON WHICH THE EXCESS SERVICE WAS PERFORMED; PROVIDED, THAT EMPLOYEES WHO ARE GRANTED COMPENSATORY TIME ON SATURDAY FOR WORK PERFORMED THE PRECEDING SUNDAY OR THE PRECEDING HOLIDAY SHALL BE GIVEN THE BENEFITS OF THIS SECTION ON ONE DAY WITHIN FIVE WORKING DAYS FOLLOWING THE SATURDAY WHEN SUCH COMPENSATORY TIME WAS GRANTED: PROVIDED FURTHER, THAT THE POSTMASTER GENERAL MAY, IF THE EXIGENCIES OF THE SERVICE REQUIRE IT, AUTHORIZE THE PAYMENT OF OVERTIME FOR SERVICE ON THE LAST THREE SATURDAYS IN THE CALENDAR YEAR IN LIEU OF COMPENSATORY TIME, EXCEPT CLEANERS, JANITORS, TELEPHONE OPERATORS, AND ELEVATOR CONDUCTORS PAID FROM THE APPROPRIATION OF THE FIRST ASSISTANT POSTMASTER GENERAL, AND CUSTODIAL EMPLOYEES WHO SHALL BE GIVEN COMPENSATORY TIME IN LIEU OF OVERTIME PAY WITHIN THIRTY DAYS NEXT SUCCEEDING: * * *

THE PORTIONS OF SECTIONS 464 AND 924, POSTAL LAWS AND REGULATIONS, 1940, QUOTED IN YOUR LETTER, ARE DERIVED FROM 39 U.S.C. 117, SUPRA.

THE STATUTE FIRST ABOVE QUOTED FIXES THE MAXIMUM LENGTH OF THE REGULAR WORKDAY OF THE POSTAL EMPLOYEES IN QUESTION AS 8 HOURS ON ANY DAY, INCLUDING SATURDAY, AND PROVIDES FOR PAYMENT OF OVERTIME COMPENSATION FOR WORK REQUIRED ON ANY DAY, INCLUDING SATURDAY, IN EXCESS OF 8 HOURS. THE STATUTE LAST ABOVE QUOTED REQUIRES THE GRANTING OF COMPENSATORY TIME OFF FROM DUTY FOR WORK PERFORMED ON SATURDAYS. HENCE, SATURDAY MAY BE EITHER A REGULAR WORKDAY OR NONWORKDAY OF AN EMPLOYEE BUT, IN EITHER EVENT, REGULAR COMPENSATION IS PAID FOR SATURDAY OR FOR THE DAY GRANTED OFF DUTY IN LIEU THEREOF.

IF AN EMPLOYEE IS REQUIRED TO WORK ON A SATURDAY, EITHER AS A PART OF HIS REGULAR TOUR OF DUTY OR IN AN EMERGENCY, HE MUST BE ALLOWED A CORRESPONDING PERIOD OF TIME OFF FROM DUTY ON 1 DAY WITHIN THE 5 WORKING DAYS NEXT SUCCEEDING, AND HE SHOULD RECEIVE HIS REGULAR COMPENSATION FOR THE TIME NOT WORKED. IN OTHER WORDS, THE STATUTE ITSELF GRANTS REGULAR COMPENSATION FOR SATURDAYS, OR FOR THE IN LIEU DAY OFF FROM DUTY, WITHOUT REQUIRING THE EMPLOYEE TO WORK. THEREFORE, THE STATUTORY PROVISION FOR PAYMENT OF OVERTIME COMPENSATION FOR WORK ACTUALLY PERFORMED IN EXCESS OF 8 HOURS ON ANY 1 DAY MAY NOT BE CONSTRUED SO AS TO DEPRIVE AN EMPLOYEE OF HIS RIGHT TO REGULAR COMPENSATION FOR SATURDAY OR FOR THE IN LIEU DAY OFF FROM DUTY WHICH IS GRANTED HIM BY LAW WITHOUT REQUIRING HIM TO WORK.

IN APPLYING THE STATUTES AUTHORIZING PAYMENT OF OVERTIME COMPENSATION FOR WORK REQUIRED IN EXCESS OF A REGULAR TOUR OF DUTY, EITHER ON A WEEKLY BASIS OR DAILY BASIS, THIS OFFICE HAS HELD CONSISTENTLY THAT TIME OFF FROM DUTY IN A PAY STATUS AUTHORIZED BY LAW, SUCH AS FOR ANNUAL LEAVE OF ABSENCE, FOR HOLIDAYS, OR AS COMPENSATORY TIME OFF WITH PAY, MUST BE REGARDED AS A PART OF THE REGULAR TOUR OF DUTY AND OVERTIME COMPENSATION IS PAYABLE FOR WORK ACTUALLY PERFORMED IN ADDITION TO THE REGULAR TOUR OF DUTY, INCLUDING THE TIME OFF THEREIN FOR WHICH REGULAR COMPENSATION IS PAID. 13 COMP. GEN. 295; ID. 370; ID. 444; 14 ID. 761; 16 ID. 757; 18 ID. 191; ID. 575; 20 ID. 555; DECISION OF JANUARY 30, 1942, B-23172, 21 ID. 724. THAT RULE IS EQUALLY APPLICABLE IN DETERMINING THE RIGHT TO OVERTIME COMPENSATION FOR EXTRA WORK IN EXCESS OF THE REGULAR 8-HOUR DAILY TOUR OF DUTY OF POSTAL EMPLOYEES PRESCRIBED BY LAW.

ON THAT BASIS THE TIME OFF FROM DUTY WITH PAY ON A DAY ADMINISTRATIVELY GRANTED IN LIEU OF WORK REQUIRED ON SATURDAY MAY BE INCLUDED AS A PART OF THE REGULAR DAY OF 8 HOURS OF POSTAL EMPLOYEES FOR THE PURPOSE OF COMPUTING AND PAYING OVERTIME COMPENSATION FOR WORK REQUIRED ON THAT DAY IN EXCESS OF 8 HOURS. A POSTAL EMPLOYEE OF THE CLASS IN QUESTION MAY BE SCHEDULED FOR WORK ON THE SAME DAY HE IS GRANTED TIME OFF FROM DUTY IN LIEU OF WORK REQUIRED ON SATURDAY, BUT BOTH COMPENSATORY TIME OFF FROM DUTY AND OVERTIME COMPENSATION MAY NOT BE ALLOWED FOR THE SAME PERIOD OF THE DAY. 10 COMP. GEN. 487; 16 ID. 243. THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.

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