A-36167, APRIL 22, 1931, 10 COMP. GEN. 487

A-36167, APRIL 22, 1931, 10 COMP. GEN. 487

COMPENSATION - OVERTIME - IMMIGRATION SERVICE EMPLOYEES "OVERTIME" FOR WHICH INSPECTORS AND EMPLOYEES OF THE IMMIGRATION SERVICE ARE ENTITLED TO EXTRA COMPENSATION UNDER THE TERMS OF THE ACT OF MARCH 2, 1931, 46 STAT. 1467, MAY BE DEFINED AS SERVICE OF THE CHARACTER MENTIONED IN THE ACT OF AT LEAST ONE HOUR BETWEEN 5 P.M. AND 8 A.M. OF ANY DAY IN ADDITION TO THE NUMBER OF HOURS ADMINISTRATIVELY PRESCRIBED AS THEIR REGULAR WORKDAY. THE EXTRA COMPENSATION IS PAYABLE TO THE EMPLOYEES WHETHER THEIR REGULAR SHIFT IS BETWEEN 8 A.M. AND 5 P.M. OR BETWEEN 5 P.M. AND 8 A.M., PROVIDED "OVERTIME" IS WORKED AS THUS DEFINED. THE GOVERNMENT IS LIABLE FOR OVERTIME COMPENSATION OF EMPLOYEES OF THE IMMIGRATION SERVICE ONLY WHEN THE DUTIES, OTHERWISE ENTITLING THEM TO OVERTIME COMPENSATION UNDER THE TERMS OF SECTION 1 OF THE ACT OF MARCH 2, 1931, 46 STAT. 1467, INVOLVE THE INSPECTION AT DESIGNATED PORTS OF ENTRY OF PASSENGERS ARRIVING BY INTERNATIONAL FERRIES, BRIDGES, TUNNELS, AIRCRAFT, RAILROAD TRAINS, OR VESSELS ON THE GREAT LAKES AND CONNECTING WATERWAYS, WHEN OPERATING ON REGULAR SCHEDULES, SO THAT, UNDER SECTION 2 OF THE STATUTE, THE EXTRA COMPENSATION FOR THE OVERTIME IS NOT TO BE PAID BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF ANY VESSEL OR OTHER CONVEYANCE. THE APPROPRIATION "EXPENSES OF REGULATING IMMIGRATION" IS AVAILABLE FOR PAYMENT OF OVERTIME COMPENSATION OF EMPLOYEES OF THE IMMIGRATION SERVICE FOR WHICH THE GOVERNMENT IS LIABLE UNDER THE TERMS OF SECTION 2 OF THE ACT OF MARCH 2, 1931, 46 STAT. 1467. THE HOLIDAYS FOR WORK ON WHICH EXTRA COMPENSATION IS PAYABLE TO EMPLOYEES OF THE IMMIGRATION SERVICE UNDER THE TERMS OF THE ACT OF MARCH 2, 1931, 46 STAT. 1467, INCLUDE ONLY NATIONAL HOLIDAYS DECLARED BY ACT OF CONGRESS. IN THE ACT OF MARCH 2, 1931, 46 STAT. 1467, AUTHORIZING PAYMENT OF EXTRA COMPENSATION TO EMPLOYEES OF THE IMMIGRATION SERVICE AT DIFFERENT RATES FOR OVERTIME AND FOR SUNDAY AND HOLIDAY WORK, THE RATE AUTHORIZED FOR NIGHT OR OVERTIME WORK BETWEEN 5 P.M. AND 8 A.M. REFERS TO ANY DAY, INCLUDING SUNDAYS AND HOLIDAYS, AND THE RATE AUTHORIZED FOR SUNDAYS AND HOLIDAYS APPLIES ONLY TO THE PERIOD ON THESE DAYS BETWEEN 8 A.M. AND 5 P.M. EMPLOYEES OF THE IMMIGRATION SERVICE ARE NOT ENTITLED TO OVERTIME COMPENSATION FOR TIME ON DUTY WHEN NO ACTUAL INSPECTION OR EXAMINATION OF PASSENGERS OR CREWS TAKES PLACE FOR WHICH THE GOVERNMENT WOULD BE LIABLE UNDER THE TERMS OF SECTION 2 OF THE ACT OF MARCH 2, 1931, 46 STAT. 1467. COMPENSATORY TIME MAY NOT BE GRANTED UNDER THE TERMS OF THE SATURDAY HALF HOLIDAY ACT OF MARCH 3, 1931, 46 STAT. 1482, FOR TIME FOR WHICH EXTRA COMPENSATION WOULD BE PAYABLE TO EMPLOYEES OF THE IMMIGRATION SERVICE UNDER THE TERMS OF THE ACT OF MARCH 2, 1931, 46 STAT. 1467.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, APRIL 22, 1931:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF APRIL 6, 1931, AS FOLLOWS:

UNDER DATE OF MARCH 2, 1931, THERE BECAME LAW AN ACT TO PROVIDE EXTRA COMPENSATION FOR OVERTIME SERVICE PERFORMED BY IMMIGRANT INSPECTORS AND OTHER EMPLOYEES OF THE IMMIGRATION SERVICE, A COPY OF WHICH WILL BE FOUND INCLOSED.

THIS ACT IN MANY RESPECTS IS SIMILAR TO THE ACT PROVIDING OVERTIME FOR CUSTOMS EMPLOYEES, CONCERNING WHICH YOUR OFFICE IS UNDERSTOOD TO HAVE ALREADY RENDERED SEVERAL DECISIONS.

TO CARRY OUT THE PROVISIONS OF THE ACT, REGULATIONS HAVE BEEN DRAFTED, AND ARE HEREWITH SUBMITTED FOR CONSIDERATION BY YOUR OFFICE, AND APPROPRIATE COMMENT THEREON.

THERE IS LIKEWISE INCLOSED A MEMORANDUM PREPARED BY THE SOLICITOR OF THIS DEPARTMENT, WHICH IS SUPPLEMENTARY TO THE REGULATIONS.

THE PRINCIPAL QUESTIONS INVOLVED ARE---

1. WHAT CONSTITUTES OVERTIME FOR THE PURPOSE OF THE ACT;

2. IS ANY DISTINCTION TO BE MADE BETWEEN THE OFFICER WHOSE REGULAR SHIFT OF DUTY IS AFTER 5 P.M. AND PRIOR TO 8 A.M., OR ON SUNDAYS AND HOLIDAYS, AND THE OFFICER WHO IS COMPELLED TO WORK AFTER 5 P.M. AND PRIOR TO 8 A.M., OR ON SUNDAYS AND HOLIDAYS, IN ADDITION TO HIS REGULAR SHIFT OF DUTY;

3. WHETHER THE GOVERNMENT IS LIABLE FOR PAYMENT OF OVERTIME WHEN TRANSPORTATION INTERESTS ARE NOT RESPONSIBLE THEREFOR;

4. IF THE GOVERNMENT IS LIABLE, CAN PAYMENT FOR OVERTIME BE MADE FROM THE APPROPRIATION ,EXPENSES OF REGULATING IMMIGRATION.'

THE ACT OF MARCH 2, 1931, 46 STAT. 1467, PROVIDES AS FOLLOWS:

THAT THE SECRETARY OF LABOR SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF INSPECTORS AND EMPLOYEES OF THE IMMIGRATION SERVICE WHO MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN THE HOURS OF FIVE O-CLOCK POST MERIDIAN AND EIGHT O-CLOCK ANTEMERIDIAN, OR ON SUNDAYS OR HOLIDAYS, TO PERFORM DUTIES IN CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS AND CREWS OF STEAMSHIPS, TRAINS, AIRPLANES, OR OTHER VEHICLES, ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT BY WATER, LAND, OR AIR, SUCH RATES TO BE FIXED ON A BASIS OF ONE-HALF DAY'S ADDITIONAL PAY FOR EACH TWO HOURS OR FRACTION THEREOF OF AT LEAST ONE HOUR THAT THE OVERTIME EXTENDS BEYOND FIVE O-CLOCK POST MERIDIAN (BUT NOT TO EXCEED TWO AND ONE-HALF DAYS' PAY FOR THE FULL PERIOD FROM FIVE O-CLOCK POST MERIDIAN TO EIGHT O-CLOCK ANTEMERIDIAN) AND TWO ADDITIONAL DAYS' PAY FOR SUNDAY AND HOLIDAY DUTY; IN THOSE PORTS WHERE THE CUSTOMARY WORKING HOURS ARE OTHER THAN THOSE HERETOFORE MENTIONED, THE SECRETARY OF LABOR IS VESTED WITH AUTHORITY TO REGULATE THE HOURS OF IMMIGRATION EMPLOYEES SO AS TO AGREE WITH THE PREVAILING WORKING HOURS IN SAID PORTS, BUT NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED IN ANY MANNER TO AFFECT OR ALTER THE LENGTH OF A WORKING DAY FOR IMMIGRATION EMPLOYEES OR THE OVERTIME PAY HEREIN FIXED.

SEC. 2. THE SAID EXTRA COMPENSATION SHALL BE PAID BY THE MASTER,OWNER, AGENT, OR CONSIGNEE OF SUCH VESSEL OR OTHER CONVEYANCE ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT TO THE SECRETARY OF LABOR, WHO SHALL PAY THE SAME TO THE SEVERAL IMMIGRATION OFFICERS AND EMPLOYEES ENTITLED THERETO AS PROVIDED IN THIS ACT. SUCH EXTRA COMPENSATION SHALL BE PAID IF SUCH OFFICERS OR EMPLOYEES HAVE BEEN ORDERED TO REPORT FOR DUTY AND HAVE SO REPORTED, WHETHER THE ACTUAL INSPECTION OR EXAMINATION OF PASSENGERS OR CREW TAKES PLACE OR NOT: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO THE INSPECTION AT DESIGNATED PORTS OF ENTRY OF PASSENGERS ARRIVING BY INTERNATIONAL FERRIES, BRIDGES, OR TUNNELS, OR BY AIRCRAFT, RAILROAD TRAINS, OR VESSELS ON THE GREAT LAKES AND CONNECTING WATERWAYS, WHEN OPERATING ON REGULAR SCHEDULES.

THE SPECIFIC QUESTIONS WILL BE ANSWERED IN THE ORDER APPEARING IN YOUR LETTER, FOLLOWED BY COMMENT ON THE PROPOSED REGULATIONS.

1. "OVERTIME" IN THE USUAL SENSE MEANS TIME ON DUTY IN ADDITION TO THE NUMBER OF HOURS FIXED ADMINISTRATIVELY AS THE REGULAR WORKDAY OF EMPLOYEES. TO CONSTITUTE OVERTIME FOR THE PURPOSE OF THIS ACT THERE MUST EXIST TWO FACTORS, TO WIT, (1) TIME ON DUTY IN ADDITION TO THE NUMBER OF HOURS FIXED ADMINISTRATIVELY AS THE REGULAR WORK DAY OF THE EMPLOYEES, AND (2) TIME ON DUTY FOR AT LEAST ONE HOUR BETWEEN 5 P.M. AND 8 A.M. ON ANY DAY. THEREFORE,"OVERTIME" FOR THE PURPOSE OF THIS ACT MAY BE DEFINED AS SERVICE OF THE CHARACTER MENTIONED IN THE ACT OF AT LEAST ONE HOUR BETWEEN 5 P.M. AND 8 A.M. OF ANY DAY BY INSPECTORS AND EMPLOYEES OF THE IMMIGRATION SERVICE IN ADDITION TO THE NUMBER OF HOURS ADMINISTRATIVELY PRESCRIBED AS THEIR REGULAR WORKDAY.

2. THIS QUESTION MAY BE ANSWERED THAT THE EMPLOYEES OF EITHER CLASS -- THAT IS, THOSE WHOSE REGULAR SHIFT IS BETWEEN 8 A.M. AND 5 P.M. AND THOSE WHOSE REGULAR SHIFT IS BETWEEN 5 P.M. AND 8 A.M.--- WORK "OVERTIME" ONLY AS DEFINED IN THE ANSWER TO QUESTION 1. SEE GENERALLY 2 COMP. GEN. 512.

3. THE GOVERNMENT IS NOT LIABLE UNDER THIS STATUTE FOR ANY OVERTIME OTHER THAN THAT CAUSED BY THE PERFORMANCE OF DUTIES IN CONNECTION WITH THE EXAMINATIONS AND LANDINGS REFERRED TO IN SECTION 1, BUT WHERE SAID DUTIES INVOLVE THE INSPECTION AT DESIGNATED PORTS OF ENTRY OF PASSENGERS ARRIVING BY INTERNATIONAL FERRIES, BRIDGES, OR TUNNELS, OR BY AIRCRAFT, RAILROAD TRAINS, OR VESSELS ON THE GREAT LAKES AND CONNECTING WATERWAYS, WHEN OPERATING ON REGULAR SCHEDULES, SO THAT, UNDER SECTION 2 OF THE STATUTE, THE EXTRA COMPENSATION FOR THE OVERTIME IS NOT TO BE PAID BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF ANY VESSEL OR OTHER CONVEYANCE, THE GOVERNMENT IS LIABLE FOR PAYMENT FOR THE OVERTIME. HOWEVER, UNDER ALL OTHER CIRCUMSTANCES, NO ADDITIONAL COMPENSATION MAY BE PAID FOR THE OVERTIME IN EXCESS OF THE AMOUNT COLLECTED AS PROVIDED FOR IN THE FIRST SENTENCE OF SECTION 2 OF THE STATUTE.

4. THE APPROPRIATION ITEM "REGULATING IMMIGRATION" UNDER THE HEADING "BUREAU OF IMMIGRATION," ACT OF APRIL 18, 1930, 46 STAT. 216, APPROPRIATING FOR THE CURRENT FISCAL YEAR, PROVIDES FOR ,SALARIES AND EXPENSES OF ALL OFFICERS, CLERKS, AND EMPLOYEES APPOINTED TO ENFORCE SAID LAWS.' ACCORDINGLY, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

HAVING THUS ANSWERED THE FOUR SPECIFIC QUESTIONS PRESENTED THE FOLLOWING COMMENTS ARE SUBMITTED WITH REFERENCE TO THE PROPOSED REGULATIONS:

PARAGRAPH (A) OF THE PROPOSED REGULATIONS PROVIDES THAT:

FOR SUCH DUTIES PERFORMED ON SUNDAYS AND HOLIDAYS TWO DAYS' PAY. THE TERM "HOLIDAYS" SHALL INCLUDE ONLY NATIONAL HOLIDAYS, VIZ, JANUARY 1, FEBRUARY 22, MAY 30, JULY 4, THE FIRST MONDAY IN SEPTEMBER, THANKSGIVING DAY (WHEN DESIGNATED BY THE PRESIDENT), DECEMBER 25, AND SUCH OTHER DAYS AS MAY BE MADE NATIONAL HOLIDAYS. ON A SUNDAY OR HOLIDAY NO INSPECTOR OR EMPLOYEE SHALL REPLACE ANOTHER WHO HAS NOT BEEN ON DUTY THAT DAY THE USUAL NUMBER OF HOURS FOR WEEK DAYS, WHETHER CONTINUOUSLY OR IN BROKEN PERIODS TOTALING THAT NUMBER OF HOURS, EXCEPT IN CASE OF EMERGENCY.

THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO THIS PARAGRAPH WITH THE EXCEPTION OF THE WORDS ,AND SUCH OTHER DAYS AS MAY BE MADE NATIONAL HOLIDAYS," WHICH MIGHT BE CONSTRUED AS INCLUDING ADDITIONAL HOLIDAYS AUTHORIZED BY EXECUTIVE ORDER AND WHICH MIGHT NOT BE INCLUDED WITHIN THE TERMS OF THE ACT. SAID CLAUSE SHOULD BE ELIMINATED FROM THE PROPOSED REGULATIONS, OR BE AMENDED BY ADDING THE WORDS "BY ACT OF CONGRESS" AFTER THE WORD "HOLIDAYS.' SEE TREASURY DECISION NO. 38290, DATED FEBRUARY 21, 1920.

PARAGRAPH (B) OF THE PROPOSED REGULATIONS READS:

FOR EACH TWO HOURS OR FRACTION THEREOF OF AT LEAST ONE HOUR THAT SUCH DUTIES ARE PERFORMED BETWEEN 5 P.M. OF ANY DAY AND 8 A.M. OF THE FOLLOWING DAY, EXCEPT SUCH DUTIES PERFORMED ON SUNDAYS OR HOLIDAYS, ONE HALF DAY'S PAY. WHERE IN ANY UNIT OF TIME BEGINNING AT 5 P.M. AND ENDING AT THE FOLLOWING 8 A.M. SUCH DUTIES ARE PERFORMED IN BROKEN PERIODS AND LESS THAN TWO HOURS INTERVENE BETWEEN SUCH PERIODS THEY SHALL BE COMBINED, OTHERWISE EACH PERIOD OF SUCH UNIT SHALL BE CONSIDERED SEPARATELY. THE MAXIMUM AMOUNT WHICH SHALL BE PAID TO ANY EMPLOYEE FOR THE PERFORMANCE OF SUCH DUTIES BETWEEN 5 P.M. AND THE FOLLOWING 8 A.M. SHALL NOT EXCEED TWO AND ONE-HALF DAYS' PAY. AFTER THAT AMOUNT IS EARNED NO FURTHER COMPENSATION CAN BE PAID FOR ANY SERVICES UP TO 8 A.M. OF THE SAME INSPECTOR OR EMPLOYEE.

THERE SHOULD BE OMITTED THE CLAUSE "EXCEPT SUCH DUTIES PERFORMED ON SUNDAYS OR HOLIDAYS.' THE STATUTE PRESCRIBES TWO RATES OF ADDITIONAL COMPENSATION, (1) FOR NIGHT WORK BETWEEN 5 P.M. AND 8 A.M., AND (2) FOR SUNDAYS AND HOLIDAYS. THE RATE AUTHORIZED FOR NIGHT WORK BETWEEN 5 P.M. AND 8 A.M. REFERS TO ANY DAY, INCLUDING SUNDAYS AND HOLIDAYS, AND THE SUNDAY AND HOLIDAY RATE APPLIES ONLY TO THE PERIOD ON THOSE DAYS BETWEEN 8 A.M. AND 5 P.M. SEE TREASURY DECISION 38290, DATED FEBRUARY 21, 1920, AND FERGUSON V. PORT HURON AND SARNIA FERRY CO., 13 FED.REP./2D) 489, APPLYING THE SIMILAR STATUTE OF FEBRUARY 7, 1920, 41 STAT. 402, TO THE CUSTOMS SERVICE.

PARAGRAPH (C) OF THE PROPOSED REGULATIONS IS AS FOLLOWS:

THIS ORDER SHALL LIKEWISE APPLY TO TIME ON DUTY AFTER REPORTING FOR DUTY PURSUANT TO ORDER TO DO SO AND REGARDLESS OF WHETHER OR NOT ACTUAL INSPECTION OR EXAMINATION OF PASSENGERS OR CREWS TAKES PLACE.

THE ONLY AUTHORITY IN THE ACT FOR PAYMENT OF OVERTIME WHEN THERE IS REPORTING FOR DUTY BUT NO EXAMINATION OR INSPECTION TAKES PLACE, IS IN SECTION 2 OF THE ACT, AND SAID SECTION HAS NO APPLICATION TO THOSE CASES IN WHICH THE GOVERNMENT IS LIABLE FOR THE OVERTIME. THEREFORE, THIS PARAGRAPH SHOULD BE AMENDED BY ADDING AT THE END THEREOF THE FOLLOWING, "EXCEPT IN THOSE CASES IN WHICH THE GOVERNMENT IS LIABLE FOR THE OVERTIME.'

THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO PARAGRAPH (D) OF THE PROPOSED REGULATIONS.

PARAGRAPH (E) IS AS FOLLOWS:

NO TIME OFF SHALL BE ALLOWED FOR TIME FOR WHICH EXTRA COMPENSATION MUST BE PAID UNDER THIS ORDER, EXCEPT FOR OVERTIME ON ANY SATURDAY (OTHER THAN ONE ON WHICH A NATIONAL HOLIDAY FALLS) TO THE EXTENT THAT THE OVERTIME IS BOTH IN EXCESS OF FOUR HOURS AND EITHER BETWEEN MIDNIGHT AND 8 A.M. OR BETWEEN 5 P.M. AND THE FOLLOWING MIDNIGHT.

THE PURPOSE OF THIS PARAGRAPH IS NOT ENTIRELY CLEAR, BUT IT IS UNDERSTOOD THAT IT IS DESIGNED TO PERMIT THE GRANTING OF COMPENSATORY TIME UNDER THE ACT OF MARCH 3, 1931, 46 STAT. 1482, FOR WORK REQUIRED ON SATURDAYS, OTHER THAN NATIONAL HOLIDAYS, IN EXCESS OF 4 HOURS, FOR WHICH EXTRA COMPENSATION WOULD BE PAYABLE UNDER THE TERMS OF THE ACT OF MARCH 2, 1931, SUPRA, THAT IS TO SAY, FOR OVERTIME WORK BEFORE 8 A.M. OR AFTER 5 P.M. ON SATURDAY. AN EMPLOYEE'S RIGHTS WITH RESPECT TO OVERTIME WORK BEFORE 8 A.M. AND AFTER 5 P.M. ARE DETERMINED EXCLUSIVELY UNDER THE ACT OF MARCH 2, 1931, SUPRA, PROVIDING EXTRA COMPENSATION FOR OVERTIME SERVICE, AND FOR SUCH OVERTIME WORK ON SATURDAY HE IS NOT ENTITLED TO TIME OFF ON ANY OTHER DAY UNDER THE ACT OF MARCH 3, 1931, 46 STAT. 1482. THEREFORE, IT IS SUGGESTED THAT THERE BE ELIMINATED FROM PARAGRAPH (E) ALL AFTER THE FIRST COMMA, MAKING IT READ AS FOLLOWS:

NO TIME OFF SHALL BE ALLOWED FOR TIME FOR WHICH EXTRA COMPENSATION MUST BE PAID UNDER THIS ORDER.

THERE WOULD APPEAR TO BE NO LEGAL OBJECTIONS TO PARAGRAPHS (F), (G), (H), (I), (K), AND (L).

PARAGRAPH (M) IS AS FOLLOWS:

OVERTIME WITHIN THIS ORDER WILL BE REPORTED TO THE COMMISSIONER GENERAL OF IMMIGRATION ON FORMS.

IT IS ASSUMED THAT THE FORMS, WHEN PREPARED, WILL BE SUBMITTED TO THIS OFFICE FOR CONSIDERATION AND APPROVAL.