B-176365, OCT 31, 1972

B-176365, OCT 31, 1972

CIVILIAN PERSONNEL - OVERTIME - DUTY AWAY FROM HEADQUARTERS - OFF DUTY TIME DECISION DENYING APPROVAL TO PROPOSED REVISION OF THE POLICY PRESENTLY UTILIZED BY THE U.S. GOVERNMENT PRINTING OFFICE WITH REGARD TO THE COMPUTATION AND PAYMENT OF OVERTIME PAY FOR CERTAIN OF ITS EMPLOYEES. WHEN A REGULAR WORKWEEK HAS BEEN ESTABLISHED FOR AN EMPLOYEE AND, ON OCCASION, HE IS DIRECTED TO PERFORM DUTY AWAY FROM HIS HEADQUARTERS, IT IS NOT UNREASONABLE TO REGARD THE HOURS OF WAITING DURING HIS REGULAR 8 HOUR TOUR OF DUTY SUCH AS HERE INVOLVED AS HOURS OF EMPLOYMENT. CF. 22 COMP. GEN. 636, 640 (1943). ACCORDINGLY, SINCE THE PROPOSED POLICY REVISION WOULD BE INCONSISTENT WITH THE REGULAR HOURS OF DUTY ESTABLISHED FOR AN EMPLOYEE, THE PRESENT POLICY SHOULD BE RETAINED.

TO MR. H. J. HUMPHREY:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 23, 1972, WHICH REQUESTS THE OPINION OF THIS OFFICE CONCERNING A PROPOSED REVISION OF THE POLICY WHICH IS PRESENTLY UTILIZED BY THE UNITED STATES GOVERNMENT PRINTING OFFICE (GPO), WITH REGARD TO THE COMPUTATION AND PAYMENT OF OVERTIME PAY FOR CERTAIN GPO EMPLOYEES.

COMPENSATION OF THE EMPLOYEES OF GPO IS FIXED UNDER AUTHORITY OF THE KIESS ACT, 44 U.S.C. 40 AND OVERTIME COMPENSATION IS GOVERNED BY 5 U.S.C. 5544. SEE 42 COMP. GEN. 309 (1962). WE HAVE BEEN ADVISED THAT THE EMPLOYEES HERE INVOLVED ARE PER ANNUM EMPLOYEES PAID AT RATES COMPARABLE TO THE GENERAL SCHEDULE GRADES.

THE LETTER OF JUNE 23, 1972, STATES THAT THE PRESENT GPO POLICY IS TO PAY OVERTIME FOR ANY HOURS AN EMPLOYEE WORKS BEYOND HIS REGULAR TOUR OF DUTY, WHICH IS 8 A.M. TO 4:30 P.M. IT WAS FURTHER POINTED OUT, HOWEVER, THAT BECAUSE OF THE TYPE OF WORK PERFORMED BY CERTAIN GPO EMPLOYEES (INVOLVING THE INSPECTION OF PRESS RUNS AT VARIOUS CONTRACTORS' PLANTS AROUND THE COUNTRY FOR CONFORMITY TO SPECIFICATIONS) THERE RESULTS THEREFROM ERRATIC WORK SCHEDULES WHICH OFTEN TIME DO NOT FALL WITHIN THE NORMAL 8-HOUR TOUR OF DUTY. ASSIGNMENTS INVOLVING INSPECTIONS OF PRESS RUNS, WE HAVE BEEN ADVISED, OCCUR ONLY OCCASIONALLY AND DO NOT CONSTITUTE THE PRIMARY DUTY OF THE EMPLOYEES INVOLVED. WITH REGARD TO SUCH EMPLOYEES, YOU STATED THAT:

"*** OFTEN THESE EMPLOYEES WILL REPORT TO A CONTRACTOR'S PLANT, WORK FOR A PERIOD OF TIME, IDENTIFY AN ADJUSTMENT THAT WILL HAVE TO BE MADE AND THEN LEAVE THE PLANT FOR SEVERAL HOURS UNTIL THE CONTRACTOR HAS MADE THE NECESSARY CHANGES AND A NEW RUN HAS BEEN SET UP. THE FOLLOWING ARE THE HOURS WORKED ON A RECENT TRIP:

"DAY 1

8:00 A.M. TO 11:00 A.M.TRAVELING

11:00 A.M. TO 2:00 P.M. AT CONTRACTOR'S PLANT

2:00 P.M. TO 4:30 P.M. OFF DUTY

4:30 P.M. TO 10:30 P.M. OFF DUTY

10:30 P.M. TO 12:15 A.M. AT CONTRACTOR'S PLANT

"HOURS ACTUALLY WORKED

8:00 A.M. TO 11:00 A.M. 3 HOURS

11:00 A.M. TO 2:00 P.M. 3 HOURS

10:30 P.M. TO 12:15 A.M. 1.75 HOURS*

TOTAL - 7.75 HOURS

"DAY 2

8:30 A.M. TO 11:00 A.M. AT CONTRACTOR'S PLANT

11:00 A.M. TO 4:30 P.M. OFF DUTY

4:30 P.M. TO 6:00 P.M. OFF DUTY

6:00 P.M. TO 8:15 P.M. AT CONTRACTOR'S PLANT

"ACTUAL HOURS WORKED

8:30 A.M. TO 11:00 A.M. 2.5 HOURS

6:00 P.M. TO 8:15 P.M. 2.25 HOURS*

TOTAL - 4.75 HOURS

"DAY 3

9:00 A.M. TO 12:00 NOON AT CONTRACTOR'S PLANT

12:00 NOON TO 2:00 P.M. OFF DUTY

2:00 P.M. TO 4:45 P.M. AT CONTRACTOR'S PLANT

"ACTUAL HOURS WORKED

9:00 A.M. TO 12:00 NOON 3 HOURS

2:00 P.M. TO 4:45 P.M.2.75 HOURS

TOTAL - 5.75 HOURS

"*PAID FOR AT OVERTIME RATES."

UNDER THE PRESENT GPO POLICY THE ABOVE WORK SCHEDULE WOULD RESULT IN OVERTIME COMPENSATION BEING PAID FOR ALL OF THE HOURS THE EMPLOYEE SPENT AT THE CONTRACTOR'S PLANT BEYOND 4:30 P.M. DESPITE THE FACT THAT HE HAS NOT ACTUALLY PERFORMED 8 HOURS WORK ON ANY OF THE DAYS. THUS, UNDER THE POLICY NOW USED, 4 HOURS OF OVERTIME WOULD ACCRUE IN THE EXAMPLE CITED EVEN THOUGH THE EMPLOYEE ONLY ACTUALLY WORKED 18.25 HOURS OVER THE SUBJECT 3-DAY PERIOD.

THE LETTER OF JUNE 23, 1972, DESCRIBED THE SUGGESTED POLICY REVISION AS FOLLOWS:

"*** IT IS PROPOSED THAT A NEW POLICY BE IMPLEMENTED WHEREBY OVERTIME WILL NOT BE GRANTED UNLESS THE EMPLOYEE HAS ACTUALLY WORKED 8 HOURS ON ANY GIVEN DAY OR HAS BEEN IN A PAY STATUS FOR 40 HOURS IN ANY GIVEN WEEK, EXCEPT THAT TO THE EXTENT THAT AN EMPLOYEE IS REQUIRED TO PERFORM WORK MORE THAN 12 HOURS AFTER REPORTING FOR DUTY, THAT TIME WILL BE PAID AT THE OVERTIME RATE EVEN WHERE THERE HAVE NOT BEEN 8 HOURS OF ACTUAL WORK.

"THE PROPOSED SYSTEM WOULD CREDIT AN EMPLOYEE WITH THE NUMBER OF HOURS ACTUALLY WORKED OR ON CALL AT THE CONTRACTOR'S PLANT, AND, IN ORDER THAT THE EMPLOYEE NOT BE CHARGED LEAVE OR OTHERWISE PENALIZED WHEN, DUE TO CIRCUMSTANCES BEYOND HIS CONTROL, HE WORKS FEWER THAN 8 HOURS ON A REGULAR WORKDAY, ADMINISTRATIVE LEAVE WOULD BE DEEMED GRANTED FOR THE NUMBER OF HOURS NEEDED TO COMPLETE AN 8-HOUR TOUR OF DUTY. THE WORKDAY WOULD BEGIN AT THE TIME THE EMPLOYEE REPORTED TO THE CONTRACTOR'S PLANT."

IT WAS STATED THAT APPLICATION OF THE PROPOSED POLICY TO THE WORK SCHEDULE HERE INVOLVED WOULD RESULT IN OVERTIME PAY FOR 1.75 HOURS FOR THE ENTIRE 3-DAY TRIP (DAY 1 - FROM 10:30 P.M. TO 12:15 A.M.). ON DAYS 2 AND 3 THERE WOULD BE A CREDITING OF 3.2K AND 2.25 HOURS OF ADMINISTRATIVE LEAVE, RESPECTIVELY, SINCE THE ACTUAL HOURS WORKED ON EACH DAY WERE LESS THAN 8 HOURS. SUCH A CREDITING PROCEDURE WOULD ENTITLE THE EMPLOYEE TO RECEIVE COMPENSATION FOR A FULL DAY'S WORK.

WE HAVE GIVEN CAREFUL CONSIDERATION TO THE PROPOSED POLICY REVISION. THE EFFECT OF THE PROPOSAL IS TO RELEGATE THE EMPLOYEES TO THE STATUS OF NONEMPLOYMENT WHILE IN A TRAVEL STATUS DURING THEIR OTHERWISE REGULAR DUTY HOURS, AND AT THE END OF THE DAY, DEPENDING UPON THE CIRCUMSTANCES, GRANT SUFFICIENT "ADMINISTRATIVE LEAVE" TO EQUAL THE REGULAR 8-HOUR TOUR OF DUTY.

WHEN A REGULAR WORKWEEK HAS BEEN ESTABLISHED FOR AN EMPLOYEE, SUCH AS 5 DAYS OF 8 HOURS EACH, AND, ON OCCASION, HE IS DIRECTED TO PERFORM DUTY AWAY FROM HIS HEADQUARTERS, WE DO NOT BELIEVE IT IS UNREASONABLE TO REGARD THE HOURS OF WAITING DURING HIS REGULAR 8-HOUR TOUR OF DUTY SUCH AS HERE INVOLVED AS HOURS OF EMPLOYMENT. CF. 22 COMP. GEN. 636, 640 (1943).

IN OUR VIEW THE PROPOSED POLICY REVISION WOULD BE INCONSISTENT WITH THE REGULAR HOURS OF DUTY ESTABLISHED FOR AN EMPLOYEE AND THAT THEREFORE THE PRESENT POLICY SHOULD BE RETAINED.