A-92537, AUGUST 18, 1944, 24 COMP. GEN. 140

A-92537, AUGUST 18, 1944, 24 COMP. GEN. 140

COMPENSATION - OVERTIME - CUSTOMS SERVICE EMPLOYEES WHILE SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED, VESTS THE COLLECTOR OF CUSTOMS WITH AUTHORITY TO FIX THE REGULAR TOUR OF DUTY OF ANY CUSTOMS EMPLOYEE OR GROUP OF EMPLOYEES TO INCLUDE ANY OF THE 24 HOURS OF THE DAY, OVERTIME RATES OF COMPENSATION ARE PAYABLE UNDER THE ACT ONLY FOR WORK OUTSIDE OF THE REGULAR TOUR OF DUTY (EXCEPT ON SUNDAYS AND HOLIDAYS), AND THEN ONLY IF THE OVERTIME WORK IS PERFORMED BETWEEN THE HOURS OF 5 P.M. AND 8 A.M. THE REQUIREMENT OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED, THAT PRIVATE INTERESTS PAY THE EXTRA COMPENSATION TO WHICH CUSTOMS EMPLOYEES ARE ENTITLED FOR OVERTIME WORK BETWEEN THE HOURS OF 5 P.M. AND 8 A.M., AND ON SUNDAYS AND HOLIDAYS, IMPOSES NO OBLIGATION TO PAY EXTRA COMPENSATION FOR WORK PERFORMED BETWEEN 4 P.M. AND 5 P.M. ON WEEK DAYS, EVEN THOUGH THE PREVAILING HOURS AT THE PORT INVOLVED BE FROM 7 A.M. TO 4 P.M. CUSTOMS EMPLOYEES COMING WITHIN THE PURVIEW OF SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED, ARE ENTITLED TO OVERTIME COMPENSATION FOR ANY WORK PERFORMED ON SUNDAYS AND HOLIDAYS. IN THE CASE OF CUSTOMS EMPLOYEES WHO ERRONEOUSLY HAVE BEEN PAID OVERTIME COMPENSATION UNDER SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED, FOR WORK PERFORMED BETWEEN THE HOURS OF 4 P.M. AND 5 P.M. ON WEEK DAYS, AND FOR WORK PERFORMED DURING THEIR REGULAR TOUR OF DUTY ON WEEK DAYS, THERE SHOULD BE RECOVERED FROM THE EMPLOYEES CONCERNED AMOUNTS REPRESENTING SUCH OVERTIME PAYMENTS, NOTWITHSTANDING THAT SUCH PAYMENTS MAY HAVE BEEN REIMBURSED TO THE GOVERNMENT BY PRIVATE INTERESTS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, AUGUST 18, 1944:

I HAVE YOUR LETTER OF JULY 17, 1944, REPLYING TO THAT PORTION OF OFFICE LETTER DATED MAY 26, 1944, A-92537, TO YOU WHICH SOLICITED THE VIEWS OF THE TREASURY REGARDING THE PAYMENT OF OVERTIME COMPENSATION TO CERTAIN CUSTOMS EMPLOYEES AT PENSACOLA, FLORIDA, APPARENTLY DURING THEIR REGULAR TOUR OF DUTY, WHICH PAYMENTS WERE DISCLOSED IN AN EXAMINATION BY REPRESENTATIVES OF THIS OFFICE OF THE ACCOUNTS AND RECORDS OF A. J. ANGLE, COLLECTOR OF CUSTOMS, TAMPA, FLORIDA, AS KEPT BY J. W. GRAHAM, DEPUTY COLLECTOR IN CHARGE, PENSACOLA, FLORIDA. YOUR LETTER READS IN PERTINENT PART:

IT IS STATED THAT THE EXAMINATION DISCLOSED NUMEROUS PAYMENTS OF OVERTIME COMPENSATION TO INSIDE EMPLOYEES AT PENSACOLA FOR RENDERING OUTSIDE SERVICES DURING THE PERIOD 4 P.M. TO 5:15 .M., AT A TIME WHEN THE HOURS OF OUTSIDE EMPLOYEES HAD BEEN FIXED AT 7 A.M. TO 4 P.M. AND THE HOURS OF INSIDE EMPLOYEES AT 8:30 A.M. TO 5:15 P.M. IT IS FURTHER STATED THAT OVERTIME COMPENSATION UNDER THE CUSTOMS OVERTIME ACT (19 U.S.C. 267, 1451) WOULD NOT SEEM TO BE PAYABLE FOR SERVICES PERFORMED BY AN EMPLOYEE DURING HIS PRESCRIBED HOURS OF DUTY. AN EXPRESSION OF THIS DEPARTMENT'S VIEWS ON THE SUBJECT IS REQUESTED BEFORE FURTHER ACTION IS TAKEN BY YOUR OFFICE.

THIS DEPARTMENT IS OF THE OPINION THAT WHERE THE COLLECTOR OF CUSTOMS FIXES OFFICIAL HOURS OTHER THAN 8 A.M. TO 5 P.M. TO AGREE WITH THE PREVAILING WORKING HOURS AT THE PORT, PURSUANT TO THE PROVISO IN SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED (19 U.S.C. 267), THE OVERTIME PERIOD IS CHANGED ACCORDINGLY. IT IS BELIEVED THAT ANY OUTSIDE WORK PERFORMED AT PENSACOLA AFTER 4 P.M. WHICH WAS PROPERLY REIMBURSABLE BY A PRIVATE INTEREST UNDER THE PROVISION OF THE CUSTOMS OVERTIME ACT WHILE THE OFFICIAL OUTSIDE HOURS WERE 7 A.M. TO 4 P.M., WAS OVERTIME WORK AND THAT IT IS IMMATERIAL THAT SUCH WORK WAS PERFORMED BY INSIDE EMPLOYEES.

THE WORKING HOURS OF INSIDE AND OUTSIDE EMPLOYEES AT PENSACOLA HAVE SINCE BEEN CHANGED TO 8 A.M. TO 5 P.M., TO AGREE WITH THE PREVAILING WORKING HOURS NOW OBSERVED AT THAT PORT.

IF THE STATEMENTS MADE IN THE SECOND OF THE THREE PARAGRAPHS QUOTED ABOVE ARE CORRECTLY UNDERSTOOD, IT APPEARS TO BE YOUR VIEW (1) THAT OVERTIME COMPENSATION MAY BE ALLOWED UNDER THE 1911 STATUTE, AS AMENDED, TO CUSTOMS EMPLOYEES FOR WORK PERFORMED BETWEEN 4 P.M. AND 5 P.M., AND (2) THAT IT IS WITHIN THE AUTHORITY OF THE COLLECTOR OF CUSTOMS TO PRESCRIBE A REGULAR TOUR OF DUTY FOR DIFFERENT CLASSES OR GROUPS OF EMPLOYEES AND TO ALLOW OVERTIME COMPENSATION TO EMPLOYEES IN ONE CLASS OR GROUP DURING THEIR REGULAR TOUR OF DUTY SIMPLY BECAUSE THEY WORKED BEYOND THE REGULAR TOUR OF DUTY OF ANOTHER CLASS OR GROUP OF EMPLOYEES.

SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED BY THE ACT OF FEBRUARY 7, 1920, 41 STAT. 402 (19 U.S.C. 267) PROVIDES:

THAT THE SECRETARY OF THE TREASURY SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF INSPECTORS, STOREKEEPERS, WEIGHERS, AND OTHER CUSTOMS OFFICERS AND EMPLOYEES 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 SERVICES IN CONNECTION WITH THE LADING OR UNLADING OF CARGO, OR THE LADING OF CARGO OR MERCHANDISE FOR TRANSPORTATION IN BOND OR FOR EXPORTATION IN BOND OR FOR EXPORTATION WITH BENEFIT OF DRAWBACK, OR IN CONNECTION WITH THE RECEIVING OR DELIVERY OF CARGO ON OR FROM THE WHARF, OR IN CONNECTION WITH THE UNLADING, RECEIVING OR EXAMINATION OF PASSENGERS' BAGGAGE, SUCH RATES TO BE FIXED ON THE 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. THE SAID EXTRA COMPENSATION SHALL BE PAID BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF SUCH VESSEL OR OTHER CONVEYANCE WHENEVER SUCH SPECIAL LICENSE OR PERMIT FOR IMMEDIATE LADING OR UNLADING OR FOR COLLECTOR OF CUSTOMS, WHO SHALL PAY THE SAME TO THE SEVERAL CUSTOMS OFFICERS AND EMPLOYEES ENTITLED THERETO ACCORDING TO THE RATES FIXED THEREFOR BY THE SECRETARY OF THE TREASURY: PROVIDED, THAT 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 LADING, UNLADING,RECEIVING, DELIVERY, OR EXAMINATION TAKES PLACE OR NOT. CUSTOMS OFFICERS ACTING AS BOARDING OFFICERS AND ANY CUSTOMS OFFICER WHO MAY BE DESIGNATED FOR THAT PURPOSE BY THE COLLECTOR OF CUSTOMS ARE HEREBY AUTHORIZED TO ADMINISTER THE OATH OR AFFIRMATION HEREIN PROVIDED FOR, AND SUCH BOARDING OFFICERS SHALL BE ALLOWED EXTRA COMPENSATION FOR SERVICES IN BOARDING VESSELS AT NIGHT OR ON SUNDAYS OR HOLIDAYS AT THE RATES PRESCRIBED BY THE SECRETARY OF THE TREASURY AS HEREIN PROVIDED, THE SAID EXTRA COMPENSATION TO BE PAID BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF SUCH VESSEL: PROVIDED FURTHER, THAT IN THOSE PORTS WHERE CUSTOMARY WORKING HOURS ARE OTHER THAN THOSE HEREINABOVE MENTIONED, THE COLLECTOR OF CUSTOMS IS VESTED WITH AUTHORITY TO REGULATE THE HOURS OF CUSTOMS EMPLOYEES SO AS TO AGREE WITH THE PREVAILING WORKING HOURS IN SAID PORTS, BUT NOTHING CONTAINED IN THIS PROVISO SHALL BE CONSTRUED IN ANY MANNER TO AFFECT OR ALTER THE LENGTH OF A WORKING DAY FOR CUSTOMS EMPLOYEES OR THE OVERTIME PAY HEREIN FIXED.

SEE ALSO, 19 U.S.C. 1401, 1450 AND 1451.

IN EXPRESS TERMS THE STATUTE AUTHORIZES PAYMENT OF OVERTIME COMPENSATION FOR OVERTIME WORK ONLY BETWEEN THE HOURS OF 5 P.M. AND 8 A.M., AND ON SUNDAYS AND HOLIDAYS, AND DOES NOT AUTHORIZE PAYMENT OF OVERTIME COMPENSATION FOR ANY SERVICE PERFORMED BETWEEN THE HOURS OF 8 A.M. AND 5 P.M. ON WEEK DAYS, WHETHER SUCH SERVICE IS PERFORMED DURING REGULAR TOUR OF DUTY BETWEEN THOSE HOURS. WHILE IT IS TRUE THAT THE PROVISO IN THE STATUTE, SUPRA, AUTHORIZES THE COLLECTOR OF CUSTOMS "TO REGULATE THE HOURS OF CUSTOMS EMPLOYEES SO AS TO AGREE WITH PREVAILING WORKING HOURS IN SAID PORTS," THERE EXISTS NO AUTHORITY TO MAKE PAYMENTS OF OVERTIME COMPENSATION UNDER THE ABOVE-QUOTED STATUTE FOR WORK PERFORMED BETWEEN 4 P.M. AND 5 P.M. ON WEEK DAYS, REGARDLESS OF WHETHER SUCH WORK IS PERFORMED DURING A REGULAR TOUR OF DUTY OR IS OVERTIME WORK IN ADDITION TO A REGULAR TOUR OF DUTY; NEITHER WOULD THERE BE ANY OBLIGATION UPON PRIVATE INTERESTS UNDER THE PROVISIONS OF ANY OF THE STATUTES TO PAY FOR SUCH SERVICE DURING SUCH HOURS AS APPEARS TO HAVE BEEN ASSUMED BY YOU. SEE 19 US. CODE 1401 (G) DEFINING THE WORD "NIGHT.' EMPLOYEES COMING WITHIN THE PURVIEW OF THE LAW ARE ENTITLED TO OVERTIME COMPENSATION FOR WORK PERFORMED BETWEEN THE HOURS OF 5 P.M. AND 8 A.M. ON WEEK DAYS ONLY IF SUCH WORK IS OVERTIME OUTSIDE OF THEIR REGULAR TOUR OF DUTY. FOR ANY WORK PERFORMED ON SUNDAYS AND HOLIDAYS OVERTIME COMPENSATION IS PAYABLE. SEE 10 COMP. GEN. 487; UNITED STATES V. MYERS, 320 U.S. 561. HENCE, THERE WAS NO AUTHORITY IN THE CASES PRESENTED TO PAY OVERTIME COMPENSATION AT RATES PRESCRIBED BY THE ACT OF 1911, AS AMENDED, TO ANY EMPLOYEES FOR SERVICES PERFORMED BETWEEN 4 P.M. AND 5 P.M. ON WEEK DAYS. WHAT RIGHT, IF ANY, SUCH EMPLOYEES MAY HAVE TO OVERTIME COMPENSATION BETWEEN THE HOURS OF 8 A.M. AND 5 P.M. (INCLUDING TIME BETWEEN 4 P.M. AND 5 P.M.) FOR WORK IN EXCESS OF 40 HOURS PER WEEK UNDER THE PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, 57 STAT. 77, PUBLIC LAW 49 (SEE SECTION 7, PARTICULARLY THE PROVISO THEREOF) IS NOT DECIDED OR CONSIDERED HEREIN.

THE AUTHORITY CONTAINED IN THE 1911 STATUTE, AS AMENDED, TO PAY OVERTIME COMPENSATION TO CERTAIN CUSTOMS EMPLOYEES RELATES SOLELY TO THE PERSONAL DUTY STATUS OF EACH EMPLOYEE. THAT IS, WHILE THE PROVISO AUTHORIZES ADJUSTMENT OF REGULAR TOURS OF DUTY TO INCLUDE ANY OF THE 24 HOURS OF THE DAY OF ANY EMPLOYEE OR CLASS OR GROUP OF EMPLOYEES, THE PAYMENT OF OVERTIME COMPENSATION IS AUTHORIZED ONLY FOR WORK OUTSIDE OF THE REGULAR TOUR OF DUTY OF EACH INDIVIDUAL EMPLOYEE, EXCEPT ON SUNDAYS AND HOLIDAYS. IT WAS WITHIN THE AUTHORITY OF THE COLLECTOR OF CUSTOMS TO ASSIGN OR DETAIL INSIDE EMPLOYEES TO PERFORM OUTSIDE WORK OF A CHARACTER TO ENTITLE THEM TO OVERTIME COMPENSATION UNDER THE TERMS OF THE STATUTE, BUT THERE WAS NO AUTHORITY OF THE COLLECTOR OF CUSTOMS TO ASSIGN OR DETAIL INSIDE EMPLOYEES TO PERFORM OUTSIDE WORK OF A CHARACTER TO ENTITLE THEM TO OVERTIME COMPENSATION UNDER THE TERMS OF THE STATUTE, BUT THERE WAS NO AUTHORITY IN THE CASES PRESENTED TO PAY OVERTIME COMPENSATION TO INSIDE EMPLOYEES WHOSE REGULAR TOUR OF DUTY WAS FROM 8:30 A.M. TO 5:15 P.M. FOR ANY WORK PERFORMED BY THEM BETWEEN THOSE HOURS ON WEEK DAYS UPON THE BASIS THAT SUCH WORK WAS BEYOND THE REGULAR TOUR OF DUTY OF OUTSIDE EMPLOYEES WHOSE TOUR WAS FROM 7 A.M. TO 4 P.M. OF COURSE, INSIDE EMPLOYEES WHO PERFORMED WORK BETWEEN 5:15 P.M. AND 8 A.M. OUTSIDE OF THEIR REGULAR TOUR OF DUTY, WOULD BE ENTITLED TO OVERTIME COMPENSATION UNDER THE TERMS OF THE STATUTE.

ACCORDINGLY, THIS OFFICE IS UNABLE TO CONCUR IN THE OPINION EXPRESSED IN YOUR LETTER, SUPRA. THE AUDIT OF ACCOUNTS MUST BE BASED UPON THE RULES STATED HEREIN. IT FOLLOWS, THEREFORE, THAT THERE PROPERLY ARE FOR RECOVERY FROM THE EMPLOYEES CONCERNED AMOUNTS WHICH HAVE BEEN PAID TO THEM AS OVERTIME COMPENSATION UNDER THE 1911 STATUTE, AS AMENDED, FOR WORK PERFORMED BETWEEN THE HOURS OF 4 P.M. AND 5 P.M. ON WEEK DAYS, AND, ALSO, FOR WORK PERFORMED DURING ANY INDIVIDUAL EMPLOYEE'S REGULAR TOUR OF DUTY ON WEEK DAYS, NOTWITHSTANDING THAT SUCH PAYMENTS MAY HAVE BEEN REIMBURSED TO THE GOVERNMENT BY PRIVATE INTERESTS.