B-128954, SEP. 26, 1956

B-128954, SEP. 26, 1956

TO HONORABLE L. H. HEWITT, COMMISSIONER, UNITED STATES SECTION, INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO:

YOUR LETTER OF AUGUST 10, 1956, REQUESTS OUR DECISION AS TO THE LEGALITY OF PAYMENTS TO WAGE BOARD EMPLOYEES FOR STANDBY TIME IN ACCORDANCE WITH YOUR PROPOSED AMENDMENT TO THE WAGE BOARD PLAN WHICH PROVIDES AS FOLLOWS:

"P. STANDBY TIME

"1. GENERAL. STANDBY TIME WILL BE ALLOWED EMPLOYEES REQUIRED TO REMAIN AT THEIR POST OF DUTY DURING SPECIFIC PERIODS OF TIME IN ADDITION TO THEIR REGULARLY SCHEDULED 40 HOUR WEEK. THIS TYPE OF COMPENSATION WILL BE ALLOWED UPON ADMINISTRATIVE DETERMINATION OF THE NECESSITY FOR SUCH SERVICE AT A PARTICULAR LOCATION. SUCH STANDBY TIME WILL BE COMPUTED ON A PRO RATA BASIS OF REGULAR TIME FOR A DETERMINED NUMBER OF HOURS OF STANDBY TIME AND WILL NOT BE CONSIDERED AS A PART OF BASIC COMPENSATION. SCHEDULES COVERING THIS TYPE OF SERVICE WILL BE PREPARED AND SIGNED BY EACH EMPLOYEE CONCERNED AND HIS SUPERVISOR. EACH SCHEDULE WILL INDICATE THE NUMBER OF HOURS STANDBY TIME REQUIRED FOR EACH HOUR OF REGULAR TIME PAY.

"2. LEAVE STATUS. STANDBY TIME WILL NOT BE ALLOWED DURING PERIODS OF ANNUAL OR SICK LEAVE WHICH EXCEED ONE DAY. EMPLOYEE SUBSTITUTING FOR REGULARLY SCHEDULED STANDBY EMPLOYEE WILL RECEIVE SUCH STANDBY PAY AS IS APPLICABLE TO THE POSITION BASED ON THE SALARY OF THE SUBSTITUTING EMPLOYEE.

"3. WORK DETAILS. STANDBY PAY WILL BE IN LIEU OF ANY OTHER TYPE OF PREMIUM COMPENSATION FOR SUCH SERVICES AS MAY BE PERFORMED DURING STANDBY TIME.

"4. HOLIDAY DUTY. STANDBY PAY FOR HOLIDAYS WILL BE COMPUTED ON THE SAME BASIS AS SATURDAY OR SUNDAY STANDBY SERVICE.'

YOU SAY THAT BECAUSE OF THE ERRATIC AND UNPREDICTABLE NATURE OF FLOOD FLOWS PASSING THROUGH THE EL PASO VALLEYS A REQUIREMENT EXISTS FOR STANDBY SERVICE OF A DAM TENDER AND FOUR MAINTENANCE FOREMEN WHO OCCUPY WAGE BOARD POSITIONS. YOU ALSO STATE THAT YOU HAVE BEEN UNABLE TO LEARN OF PROVISIONS SIMILAR TO THOSE WHICH YOU PROPOSE IN THE WAGE BOARD PLANS OF OTHER GOVERNMENT AGENCIES OR IN PRIVATE INDUSTRY IN THAT AREA. UNDER THE PROPOSED AMENDMENT AN EMPLOYEE WHO HAD WORKED THE REGULARLY SCHEDULED 40- HOUR WEEK WOULD REMAIN AT HIS POST OF DUTY ON A STANDBY BASIS FOR AN UNSPECIFIED NUMBER OF HOURS AND RECEIVE COMPENSATION ON A PRO RATA BASIS OF REGULAR TIME IN ACCORDANCE WITH A SCHEDULE PREPARED BY EACH EMPLOYEE AND HIS SUPERVISOR.

SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, AS AMENDED, 5 U.S.C. 673C, PROVIDES IN PART AS FOLLOWS:

"THE WEEKLY COMPENSATION * * * FOR THE SEVERAL TRADES AND OCCUPATIONS, WHICH IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES, SHALL BE RE- ESTABLISHED AND MAINTAINED AT RATES NOT LOWER THAN NECESSARY TO RESTORE THE FULL WEEKLY EARNINGS OF SUCH EMPLOYEES IN ACCORDANCE WITH THE FULL- TIME WEEKLY EARNINGS UNDER THE RESPECTIVE WAGE SCHEDULES IN EFFECT ON JUNE 1, 1932: PROVIDED, THAT THE REGULAR HOURS OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE HALF.'

A DETERMINATION AS TO WHAT CONSTITUTES "REGULAR HOURS OF LABOR" WITHIN THE MEANING OF THE 1934 ACT DEPENDS ON THE FACTS OF EACH CASE AND A CONSIDERATION OF THE ACTUAL DUTIES PERFORMED. WE HELD IN 34 COMP. GEN. 216 THAT A PERIOD OF STANDBY TIME DURING WHICH THE EMPLOYEE REMAINS AT HOME AND, EXCEPT FOR BEING IN A STATE OF READINESS TO ANSWER AN EMERGENCY, IS FREE TO FOLLOW HIS USUAL PERSONAL PURSUITS MAY NOT BE CONSIDERED "LABOR" WITHIN THE MEANING OF THE 1934 ACT. HOWEVER, THE SUPREME COURT OF THE UNITED STATES IN ARMOUR AND COMPANY V. WANTUK ET AL., 323 U.S. 126, HELD THAT TIME SPENT ON THE EMPLOYER'S PREMISES BY FIREFIGHTERS SUBJECT TO CALL, EXCLUDING TIME SPENT SLEEPING AND EATING BUT INCLUDING TIME SPENT IDLING OR IN RECREATION, WAS WORKING TIME COMPENSABLE UNDER THE MAXIMUM HOURS AND OVERTIME PROVISIONS OF THE FAIR LABOR STANDARDS ACT, 52 STAT. 1063, 29 U.S.C. 207. ALTHOUGH THE LANGUAGE OF THE FAIR LABOR STANDARDS ACT IS NOT IDENTICAL TO THE QUOTED LANGUAGE OF THE 1934 ACT, SUPRA, THE CRITERIA FOR DETERMINING WORKING TIME SEEM TO BE APPLICABLE TO THE 1934 ACT. FOLLOWING THE DECISION IN THE ARMOUR CASE THE CIVIL SERVICE COMMISSION ADOPTED THE SO-CALLED "TWO-THIRDS RULE" AS TO STANDBY TIME FOR PER ANNUM EMPLOYEES. ASSUMING THAT OUT OF EACH 24-HOUR PERIOD OF STANDBY TIME 8 HOURS WOULD BE UTILIZED FOR SLEEPING AND EATING, THE COMMISSION PROVIDED THAT TWO-THIRDS OF EACH HOUR OF STANDBY DUTY SHALL BE CONSIDERED "WORKING TIME" FOR WHICH COMPENSATION IS PAYABLE. SEE 25 COMP. GEN. 161. ALSO, SEE GENERALLY 25 COMP. GEN. 584; 30 ID. 158.

IT SEEMS TO US THAT THE ARMOUR CASE CONCEPT IS FOR CONSIDERATION HERE AND THAT ANY TIME IN EXCESS OF 40 HOURS PER WEEK THAT AN EMPLOYEE REMAINS IN A DUTY STATUS IS COMPENSABLE AT THE RATE OF TIME AND ONE HALF EXCEPT FOR PERIODS OF EATING AND SLEEPING. THUS AN EMPLOYEE WHO IS AT HIS DUTY STATION IN A STANDBY STATUS FOR A CONTINUOUS PERIOD OF 24 HOURS MAY BE COMPENSATED FOR TWO-THIRDS OF THAT TIME AS "WORKING TIME," THE PRESUMPTION BEING THAT ONE-THIRD OF THE PERIOD IS UTILIZED IN EATING AND SLEEPING. ALSO IT WOULD APPEAR THAT AN EMPLOYEE WHO WORKS A REGULAR TOUR OF 40 HOURS (8 HOURS PER DAY 5 DAYS PER WEEK) AND IS REQUIRED TO REMAIN AT HIS DUTY STATION AT THE END OF HIS NORMAL WORKING DAY FOR ONLY 2 HOURS, NEITHER OCCUPIED IN EATING OR SLEEPING, IS ENTITLED TO OVERTIME COMPENSATION AT THE RATE OF TIME AND ONE-HALF FOR THE ENTIRE 10 HOURS PER WEEK. HOWEVER, INASMUCH AS WE DO NOT KNOW WHAT SCHEDULES WILL BE ADOPTED, NOR THE EXACT NATURE OF THE DUTIES OF THE EMPLOYEES DURING THE HOURS OF STANDBY TIME NOR THE RESTRICTIONS PLACED UPON THE USE OF THE TIME BY THE COMMISSION, WE ARE UNABLE TO ADVISE YOU CONCERNING THE PARTICULAR SITUATIONS THAT MIGHT ARISE.

ACCORDINGLY, UPON THE PRESENT RECORD, OUR OPINION IS THAT THE PROPOSED AMENDMENT TO THE WAGE BOARD PLAN REQUIRES REVISION. UPON FORMULATION OF A REVISED PLAN, THE MATTER, IN YOUR DISCRETION, MAY BE RESUBMITTED FOR OUR CONSIDERATION.