B-137257, OCTOBER 1, 1958, 38 COMP. GEN. 262

B-137257, OCTOBER 1, 1958, 38 COMP. GEN. 262

CIVILIAN PERSONNEL - TRAINING - OVERTIME, HOLIDAY AND NIGHT DIFFERENTIAL - PROHIBITION THE PROHIBITION IN SECTION 10 OF THE GOVERNMENT EMPLOYEES TRAINING ACT, 5 U.S.C. 2309, AGAINST THE PAYMENT OF OVERTIME, HOLIDAY PAY AND NIGHT DIFFERENTIAL DURING TRAINING COURSES PRECLUDES THE PAYMENT OF SUCH PREMIUM COMPENSATION TO EMPLOYEES DURING PERIODS OF TRAINING, EVEN THOUGH THE EMPLOYEES OTHERWISE WOULD BE ENTITLED TO SUCH PAY. WAGE BOARD EMPLOYEES WHO ARE ENTITLED TO OVERTIME FOR WORK OR TRAVEL ON SATURDAYS AND SUNDAYS OUTSIDE THEIR REGULAR 40-HOUR WORKWEEK, UNDER 5 U.S.C. 673C, AND WHO, INCIDENT TO ATTENDANCE AT A TRAINING COURSE, REQUIRED TO TRAVEL ON SATURDAYS AND SUNDAYS MUST HAVE THE TRAVEL TIME REGARDED AS OVERTIME WITHIN THE MEANING OF SECTION 10 OF THE GOVERNMENT EMPLOYEES TRAINING ACT, AND, THEREFORE, PAYMENT OF OVERTIME IS NOT PERMITTED. EMPLOYEES WHO ARE ENTITLED TO OVERTIME FOR WORK OUTSIDE THEIR ESTABLISHED 40-HOUR WORKWEEK AND WHO ARE ASSIGNED TO IN-SERVICE TRAINING COURSES WHICH REQUIRE A TWO-HOUR EXTENSION OF THEIR NORMAL WORKDAY ARE SPECIFICALLY PRECLUDED BY SECTION 10 OF THE GOVERNMENT EMPLOYEES TRAINING ACT FROM RECEIVING OVERTIME PAY FOR SUCH TRAINING TIME. ALTHOUGH EMPLOYEES WHO ARE IN TRAINING ON HOLIDAYS ARE PRECLUDED UNDER SECTION 10 OF THE GOVERNMENT EMPLOYEES TRAINING ACT, 5 U.S.C. 2309, FROM RECEIVING OVERTIME ON HOLIDAY PAY THEY ARE ENTITLED TO REGULAR PAY DURING TRAINING PERIODS. THE AUTHORITY VESTED IN THE PRESIDENT TO EXEMPT AGENCIES OR EMPLOYEES FROM THE GOVERNMENT EMPLOYEES TRAINING ACT DOES NOT APPEAR TO PERMIT AN EXEMPTION FROM PART OF A PROVISION IN THE ACT SUCH AS THE PROHIBITION IN SECTION 10 (1) OF THE ACT, 5 U.S.C. 2309 (1), AGAINST PAYMENT OF OVERTIME, HOLIDAY AND NIGHT PAY DURING TRAINING PERIODS. OVERRULED BY 38 COMP. GEN. 363.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 1, 1958:

ON AUGUST 29, 1958, ACTING CHAIRMAN, F. J. LAWTON PRESENTED FOR OUR DECISION SEVERAL QUESTIONS ARISING OUT OF SECTION 10 OF THE GOVERNMENT EMPLOYEES TRAINING ACT, PUBLIC LAW 85-507, APPROVED JULY 7, 1958, 5 U.S.C. 2309.

SECTION 10 OF THE ACT READS IN PART AS FOLLOWS:

SEC. 10. THE HEAD OF EACH DEPARTMENT IN ACCORDANCE WITH REGULATIONS ISSUED BY THE COMMISSION UNDER AUTHORITY OF SECTION 6 (A) (8) IS AUTHORIZED, FROM FUNDS APPROPRIATED OR OTHERWISE AVAILABLE TO SUCH DEPARTMENT, (1) TO PAY ALL OR ANY PART OF THE SALARY, PAY, OR COMPENSATION (EXCLUDING OVERTIME, HOLIDAY, AND NIGHT DIFFERENTIAL PAY) OF EACH EMPLOYEE OF SUCH DEPARTMENT WHO IS SELECTED AND ASSIGNED FOR TRAINING BY, IN, OR THROUGH GOVERNMENT FACILITIES OR NON-GOVERNMENT FACILITIES UNDER AUTHORITY OF THIS ACT, FOR EACH PERIOD OF SUCH TRAINING OF SUCH EMPLOYEE * * *. ( ITALICS SUPPLIED.)

MR. LAWTON SAID THE COMMISSION UNDERSTANDS THAT THE ITALICIZED LANGUAGE IS INTENDED TO APPLY ONLY TO EMPLOYEES SENT AWAY FROM THEIR REGULAR WORK TO A SCHOOL OR OTHER TRAINING COURSE WHERE THEY MIGHT BE REQUIRED TO ATTEND CLASSES IN THE EVENINGS, ON GOVERNMENT HOLIDAYS, OR ON NONWORKDAYS. BECAUSE OF THE APPARENT GENERAL EXCLUSION BY THE WORDING OF SECTION 10, OF PREMIUM PAY TO EMPLOYEES IN TRAINING, HE ADVISED THAT SOME AGENCIES NOW ARE DISTURBED BY THE POSSIBILITY THAT THIS LANGUAGE MAY BE APPLIED WHERE THE EMPLOYEES ARE REGULARLY WORKING NIGHT SHIFTS AND MAY BE GIVEN SOME INTRA-AGENCY TRAINING DURING THEIR REGULAR WORK HOURS, OR TO OTHER SITUATIONS IN WHICH IT IS FELT TO BE ESSENTIAL THAT EMPLOYEES, WHILE RECEIVING SUCH TRAINING, NOT LOSE PREMIUM PAY THEY OTHERWISE WOULD BE RECEIVING.

THE FOLLOWING EXAMPLES OF THE PROBLEMS IN QUESTION WERE SUBMITTED:

1. AN EMPLOYEE WORKING A REGULAR TOUR OF NIGHT DUTY AND ALREADY RECEIVING NIGHT DIFFERENTIAL PAY IS ASSIGNED TO A TRAINING CLASS IN HIS OWN AGENCY FOR AN HOUR EACH NIGHT OVER A CERTAIN PERIOD. IS THE AGENCY REQUIRED TO DISCONTINUE HIS NIGHT DIFFERENTIAL FOR THE HOURS OF TRAINING?

2. AN EMPLOYEE WHO NORMALLY WORKS DURING THE DAY IS ASSIGNED TO A FACTORY FOR TRAINING IN OPERATION AND MAINTENANCE OF A COMPLEX NEW PIECE OF EQUIPMENT. HE IS REQUIRED TO TAKE THE TRAINING AT NIGHT BECAUSE THE EQUIPMENT IS ALREADY FULLY SCHEDULED DURING THE DAY. (A) MUST NIGHT DIFFERENTIAL BE WITHHELD EVEN THOUGH THE BASIC LEGISLATION UNDER WHICH HE IS PAID REQUIRES A NIGHT DIFFERENTIAL FOR NIGHT DUTY? (B) WOULD IT MAKE ANY DIFFERENCE IF THE REGULAR TOUR OF DUTY FROM WHICH HE IS ABSENT TO RECEIVE THE TRAINING IS ALSO A NIGHT SHIFT DURING WHICH HE RECEIVED NIGHT DIFFERENTIAL?

3. A WAGE BOARD EMPLOYEE WHOSE REGULAR TOUR OF DUTY IS MONDAY THROUGH FRIDAY, AND WHO IS ENTITLED TO OVERTIME PAY WHEN REQUIRED BY HIS WORK TO TRAVEL ON SATURDAY AND SUNDAY, IS SENT TO A TRAINING COURSE WHICH REQUIRES HIM TO TRAVEL ON SATURDAY AND SUNDAY. WHAT IS HIS PAY STATUS ON THIS SATURDAY AND SUNDAY?

4. AN EMPLOYEE WHOSE COMPENSATION IS PAID UNDER LEGISLATION REQUIRING PAYMENT OF OVERTIME, IS ASSIGNED TO A COURSE OF IN-SERVICE TRAINING WHICH REQUIRES A TWO-HOUR EXTENSION OF HIS NORMAL WORKDAY. WHAT IS HIS PAY STATUS DURING THE TWO HOURS OF TRAINING?

5. IF EMPLOYEES TRAINED DURING A PERIOD FOR WHICH THEY WOULD OTHERWISE RECEIVE OVERTIME OR HOLIDAY RATES OF PAY CANNOT BE GIVEN "OVERTIME" OR "HOLIDAY" PAY BECAUSE OF THE LIMITATION IN SECTION 10 OF THE TRAINING ACT, CAN THEY BE PAID FOR THE TIME AT ALL?

THE LEGISLATIVE HISTORY OF SECTION 10 OF THE ACT IS MEAGER BUT IT DOES NOT SUGGEST AN EXCEPTION TO THE EXCLUSION OF PREMIUM PAY. UNDER THE HEADING " EXPENSES OF TRAINING THROUGH GOVERNMENT FACILITIES AND NON- GOVERNMENT FACILITIES," PAGE 12 OF HOUSE OF REPRESENTATIVES REPORT NO. 1951, 85TH CONGRESS, IT IS SAID, IN PART:

SECTION 10 AUTHORIZES THE HEAD OF EACH DEPARTMENT, IN ACCORDANCE WITH REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION, TO USE FUNDS APPROPRIATED OR OTHERWISE AVAILABLE TO PAY THE SALARY OF EMPLOYEES WHO ARE BEING TRAINED (BUT NOT TO PAY THEM OVERTIME, HOLIDAY, OR NIGHT DIFFERENTIAL PAY DURING PERIODS OF TRAINING). * * *

THE EXPLANATORY LANGUAGE IN THE REPORT IS THUS EVEN MORE EMPHATIC THAN THAT IN THE ACT REGARDING PAYMENT OF PREMIUM COMPENSATION TO EMPLOYEES RECEIVING TRAINING.

THEREFORE, AND IN VIEW OF THE CLEAR AND UNAMBIGUOUS LANGUAGE OF SECTION 10 OF PUBLIC LAW 85-507, WE WOULD NOT BE WARRANTED IN EXEMPTING FROM THE PROHIBITORY LANGUAGE OF THAT SECTION THE COMPENSATION OF EMPLOYEES DURING PERIODS IN WHICH THEY ARE ENGAGED IN ANY TRAINING AS THAT TERM IS DEFINED IN SUBSECTION 3 (5) OF THE ACT, 5 U.S.C. 2302 (5).

BECAUSE OF THE FOREGOING, QUESTIONS 1 AND 2A ARE ANSWERED IN THE AFFIRMATIVE AND QUESTION 2B IN THE NEGATIVE.

REGARDING QUESTION 3, SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 509, 522, 5 U.S.C. 673C, CONCERNING WAGE BOARD EMPLOYEES, PROVIDES IN PART "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.' SINCE WORK OR TRAVEL ON SATURDAYS AND SUNDAYS MUST BE REGARDED AS OVERTIME UNDER THE CONDITIONS STATED IN QUESTION 3, THE EMPLOYEE WOULD NOT BE ENTITLED TO COMPENSATION FOR TRAVEL TIME ON SATURDAY AND SUNDAY INCIDENT TO TRAINING, PROVIDED HE HAD WORKED 40 HOURS DURING HIS REGULAR TOUR.

WE UNDERSTAND QUESTION 4 TO RELATE TO AN EMPLOYEE UNDER AN ESTABLISHED FORTY-HOUR WORKWEEK. IF THAT UNDERSTANDING BE CORRECT, THE ANSWER TO QUESTION 4, FOR REASONS ANALOGOUS TO THOSE PRESENTED IN THE ANSWER TO QUESTION 3, IS THAT THE EMPLOYEE IS NOT ENTITLED TO OVERTIME COMPENSATION.

IN RESPONSE TO QUESTION 5, EMPLOYEES IN TRAINING MAY BE PAID THEIR REGULAR PAY ON HOLIDAYS BUT MAY NOT BE ALLOWED OVERTIME OR HOLIDAY PREMIUM PAY.

WE UNDERSTAND IT HAS BEEN SUGGESTED THAT A POSSIBLE SOLUTION OF THE PROBLEM WOULD BE BY THE EXERCISE OF AUTHORITY GRANTED THE PRESIDENT IN SECTION 4 OF THE GOVERNMENT EMPLOYEES TRAINING ACT. SUBSECTIONS 4 (B) (1) AND (2) OF THE ACT, 5 U.S.C. 2303 (B) (1) AND (2), READ AS FOLLOWS:

(B) THE PRESIDENT IS AUTHORIZED---

(1) TO DESIGNATE AT ANY TIME IN THE PUBLIC INTEREST ANY DEPARTMENT OR PART THEREOF, OR ANY EMPLOYEE OR EMPLOYEES THEREIN (EITHER INDIVIDUALLY OR BY GROUPS OR CLASSES), AS EXCEPTED FROM THIS ACT OR ANY PROVISION OF THIS ACT (OTHER THAN THIS SECTION, SECTION 21, AND SECTION 22), AND

(2) TO DESIGNATE AT ANY TIME IN THE PUBLIC INTEREST ANY SUCH DEPARTMENT OR PART THEREOF, OR ANY SUCH EMPLOYEE OR EMPLOYEES THEREIN, SO EXCEPTED, AS AGAIN SUBJECT TO THIS ACT OR ANY SUCH PROVISION OF THIS ACT.

THE COMMISSION SUBMITS THE FOLLOWING QUESTION:

6. (A) WOULD YOUR OFFICE OBJECT TO ACTION UNDER THAT AUTHORITY WHICH EXCEPTED A CLASS OF EMPLOYEES (E.G., THOSE GIVEN TRAINING DURING A NORMAL TOUR OF DUTY FOR WHICH THEY ARE ALREADY RECEIVING NIGHT DIFFERENTIAL PAY) FROM THE RESTRICTION ON PREMIUM PAY IN SECTION 10? (B) IN SUCH A CASE, WOULD THEY THEN BE PAID WHILE RECEIVING TRAINING UNDER WHATEVER PROVISIONS OF LAW WOULD HAVE GOVERNED THEIR SALARIES OR WAGES HAD THE PARENTHETICAL LANGUAGE NOT APPEARED IN SECTION 10?

THE QUOTED SUBSECTIONS CLEARLY AUTHORIZE THE PRESIDENT, IN THE PUBLIC INTEREST, TO EXCEPT FROM THE OPERATION OF THE ACT, ANY DEPARTMENT OR PART THEREOF, OR ANY EMPLOYEE OR ANY GROUP OR CLASS OF EMPLOYEES. ALSO, THE PRESIDENT IS EXPRESSLY GRANTED AUTHORITY TO EXCEPT DEPARTMENTS OR EMPLOYEES FROM ANY PROVISION OF THE ACT OTHER THAN SECTIONS 4, 5 U.S.C. 2303; 21 OR 22, 5 U.S.C. 2301 NOTE. HE MAY, THEREFORE, EXCEPT DEPARTMENTS OR EMPLOYEES FROM SECTION 10 OF THE ACT OR FROM ANY PROVISIONS OF SECTION 10. WE DO NOT, HOWEVER, CONSTRUE THE LANGUAGE OF SECTION 4 (B) (1) OF THE ACT AS AUTHORIZING THE PRESIDENT TO EXCEPT DEPARTMENTS OR EMPLOYEES FROM A PART OF ANY PROVISION OF THE ACT. WE REGARD THE LANGUAGE UNDER "/1)" OF SECTION 10, INCLUDING THE LANGUAGE WITHIN THE PARENTHESES AS PROVISION OF LAW--- A UNIT WHICH THE PRESIDENT MAY EXCEPT ONLY AS A WHOLE. THEREFORE, QUESTION 6 (A) IS ANSWERED IN THE AFFIRMATIVE. THUS, AN ANSWER TO QUESTION 6 (B) IS UNNECESSARY.

IN REGARD TO THE QUESTIONS GENERALLY WE SHOULD POINT OUT THAT ANY OF OUR PRIOR DECISIONS AUTHORIZING ESSENTIAL TRAINING OF A NATURE NOW COVERED BY THE TRAINING ACT SHOULD NO LONGER BE REGARDED AS CONTROLLING SINCE THE AUTHORITY FOR SUCH TRAINING NOW STEMS FROM THE STATUTE.