B-125747, DEC. 5, 1955

B-125747, DEC. 5, 1955

TO MRS. MURIEL B. SCOTT, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF COMMERCE:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 10, 1955, REQUESTING OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER THEREWITH TRANSMITTED PROPOSING PAYMENT OF COMPENSATION TO HERMAN TOCKER, ATTORNEY- TRIAL EXAMINER (COMPLIANCE COMMISSIONER), GS-14, $10,320 PER ANNUM ($39.68 P.D.), WAE, COVERING THE PERIOD MAY 25 THROUGH JUNE 16, 1955.

YOU SAY MR. TOCKER FILED CLAIM FOR COMPENSATION FOR 139 HOURS FOR THE PAY PERIOD MAY 22 THROUGH JUNE 4, 1955, AND 86 HOURS FOR THE PAY PERIOD JUNE 5 THROUGH 18. YOU POINT OUT THAT MR. TOCKER DOES NOT HAVE AN ESTABLISHED ADMINISTRATIVE WORKWEEK--- TOUR OF DUTY. THE RECORD SHOWS THAT THE COMPENSATION CLAIM FOR 139 HOURS AND 86 HOURS, RESPECTIVELY, FOR THE ABOVE PERIODS INCLUDES TRAVEL TIME OF AS MUCH AS 24 HOURS PER DAY WHILE EN ROUTE FROM WASHINGTON, D.C., TO SAN FRANCISCO AND LOS ANGELES, CALIFORNIA, FOR TEMPORARY DUTY AND RETURN FROM LOS ANGELES TO WASHINGTON, D.C., HIS OFFICIAL HEADQUARTERS.

THE SUBMITTED VOUCHER PROPOSES PAYMENT FOR THE ACTUAL NUMBER OF HOURS WORKED EACH DAY AND IN CERTAIN INSTANCES FOR A COMBINATION OF WORK TIME AND TRAVEL TIME OR TRAVEL TIME ALONE, NOT TO EXCEED EIGHT HOURS FOR ANY DAY, MONDAY THROUGH FRIDAY ONLY, EXCEPT FOR JUNE 8 WHEN EIGHT HOURS' TRAVEL WAS PERFORMED AND TWO HOURS' DUTY WAS PERFORMED AT WASHINGTON, D.C., FOR WHICH COMPENSATION PAYMENT WAS MADE FOR THE TWO HOURS OF WORK ONLY. NO COMPENSATION HAS BEEN ALLOWED FOR TRAVEL TIME PERFORMED ON SATURDAY OR SUNDAY.

BASED UPON THE FOREGOING STATEMENT OF FACTS, YOU REQUEST OUR DECISION UPON THE FOLLOWING QUESTIONS:

"1. MAY THE ATTACHED VOUCHER BE CERTIFIED FOR PAYMENT?

2. IF YOUR ANSWER TO QUESTION 1 IS IN THE NEGATIVE, SHOULD THE VOUCHER BE PREPARED AS:

(A) EIGHT-HOURS PER DAY WHILE IN TRAVEL STATUS, REGARDLESS OF DAY, PLUS HOURS ACTUALLY WORKED IN LOS ANGELES AND WASHINGTON (I.E. 8 HOURS FOR JUNE 8 INCLUDING TRAVEL AND TIME WORKED/? OR

(B) SAME AS ATTACHED VOUCHER EXCEPT ALLOWING COMPENSATION FOR TRAVEL ON SATURDAYS AND SUNDAYS AS LONG AS IT DOES NOT EXCEED 40 HOURS PER WEEK?

YOU ALSO POINT OUT THAT IN VIEW OF THE CIRCUMSTANCES HERE INVOLVED DOUBT HAS NOW ARISEN AS TO THE PAYMENT MADE FOR THE PERIOD JULY 17 TO 30, 1955, ON D.O. VOUCHER 35407, PAID AUGUST 12, 1955, COPY OF CLAIM ATTACHED. YOU ASK, IF OUR ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, WHETHER AN OVERPAYMENT WAS MADE FOR SIX HOURS' TRAVEL TIME PERFORMED ON SATURDAY, JULY 23, OR FOR FOUR HOURS ON JULY 20 (FROM 5 TO 10 P.M., WHILE IN A TRAVEL STATUS, ASSUMING THE ONE-HOUR PERSONAL DELAY WAS AFTER 5 P.M.) BOTH.

BASICALLY, THE DOUBT HERE CONCERNS COMPENSATION FOR TRAVEL TIME ON SATURDAYS AND SUNDAYS. OUR DECISION, 34 COMP. GEN. 471, HELD IN EFFECT THAT A WAE EMPLOYEE WITHOUT AN ESTABLISHED TOUR OF DUTY HOLDING A POSITION UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED--- AS APPEARS TO BE THE CASE HERE--- COULD NOT BE PAID A FULL DAY'S PAY FOR LESS THAN EIGHT HOURS OF WORK BUT COULD BE PAID IN EXCESS OF THE DAILY RATE AT STRAIGHT TIME COMPENSATION UPON WORKING MORE THAN EIGHT HOURS PER DAY AND COULD BE PAID FOR MORE THAN FIVE DAYS PER WEEK--- MONDAY THROUGH FRIDAY--- PROVIDED HE WORKS ON SATURDAY OR SUNDAY. ALSO, IN OUR DECISION, 26 COMP. GEN. 477, WE STATED AT PAGE 479 THAT IT CONSISTENTLY HAS BEEN HELD THAT AN EMPLOYEE IN A PAY STATUS IS ENTITLED TO HIS REGULAR COMPENSATION WHILE TRAVELING ON OFFICIAL BUSINESS DURING THE HOURS COMPRISING HIS DAILY TOUR OF DUTY, THE SAME AS IF HE HAD REMAINED AT HIS HEADQUARTERS REGARDLESS OF WHETHER, DURING SUCH TRAVEL, HE PERFORMS ACTUAL DUTY. THAT RULE PROPERLY MAY BE EXTENDED TO A WAE EMPLOYEE WHEN HE IS IN AN OFFICIAL TRAVEL STATUS. FURTHER, WE HELD IN 24 COMP. GEN. 11 THAT A PER DIEM "WHEN ACTUALLY EMPLOYED" EMPLOYEE, ALTHOUGH NOT REGULARLY REQUIRED TO WORK ON SUNDAYS, IS, NEVERTHELESS, ENTITLED TO BASIC COMPENSATION FOR SUNDAYS ON WHICH HE IS IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL STATION, FOR THE SAME NUMBER OF HOURS AS HE WORKS ON OTHER DAYS, BUT HE SHOULD NOT BE PAID COMPENSATION BEYOND A PRESCRIBED WORKDAY SOLELY BECAUSE HE IS IN A TRAVEL STATUS. REASON APPEARS FOR NOT EXTENDING THAT PRINCIPLE HERE.

BASED UPON THE ABOVE REFERRED-TO HOLDINGS, QUESTION 1 IS ANSWERED IN THE NEGATIVE, AND QUESTION 2 (A) IS ANSWERED IN THE AFFIRMATIVE, MAKING UNNECESSARY ANY ANSWER TO PART (B).

REGARDING THE QUESTION YOU RAISED CONCERNING THE PAYMENT MADE FOR THE PERIOD JULY 17-30, 1955, IT WOULD APPEAR FROM WHAT HAS BEEN STATED HEREIN THAT NO OVERPAYMENT HAS BEEN MADE FOR TRAVEL TIME PERFORMED ON JULY 20 AND 23.