B-149977, B-143439, FEBRUARY 18, 1963, 42 COMP. GEN. 426

B-149977, B-143439, FEBRUARY 18, 1963, 42 COMP. GEN. 426

COMPENSATION - OVERTIME - STANDBY, ETC., TIME - ABSENCES THE PRACTICE OF WITHHOLDING PREMIUM COMPENSATION FOR STANDBY DUTY ABSENCES, WHETHER OR NOT THE ABSENCE IS FOR PERSONAL REASONS, AND OF SUBSTITUTING UNSCHEDULED OVERTIME AS "FILL-IN" TIME FOR THE LOWER RATE STANDBY DUTY ABSENCES MAY BE CHANGED TO PROVIDE FOR THE PAYMENT OF ALL UNSCHEDULED OVERTIME DUTY AT APPLICABLE OVERTIME RATES, ELIMINATING THE SUBSTITUTION OF SUCH DUTY FOR UNSERVED SCHEDULED STANDBY DUTY, AND TO PROVIDE THAT REGARDLESS OF NEED EMPLOYEES WILL RECEIVE COMPENSATION FOR REGULARLY SCHEDULED STANDBY SERVICES, EXCEPT WHEN DURING AN ABSENCE FOR PERSONAL REASONS THERE IS A SPECIFIC NEED FOR THEIR STANDBY SERVICES, THE FEDERAL EMPLOYEES PAY REGULATIONS REQUIRING NO STRICT ADHERENCE TO A FIXED WEEKLY OR OTHER PERIODIC STANDBY SCHEDULE IF IT IS PREDICTABLE IN ADVANCE THAT THE STANDBY TOURS ARE UNNECESSARY; HOWEVER, PERCENTAGE RATES OF PREMIUM COMPENSATION SHOULD BE DETERMINED FROM WEEKLY AVERAGE STANDBY HOURS AND ANY QUESTION AS TO AN APPROPRIATE PERCENTAGE RATE SHOULD BE SUBMITTED TO THE CIVIL SERVICE COMMISSION. 40 COMP. GEN. 88, MODIFIED

TO THE SECRETARY OF AGRICULTURE, FEBRUARY 18, 1963:

ON JANUARY 17, 1963, THE ADMINISTRATIVE ASSISTANT SECRETARY PRESENTED FOR OUR CONSIDERATION CERTAIN PROPOSED CHANGES IN PRACTICE IN THE PAYMENT OF PREMIUM COMPENSATION ON AN ANNUAL BASIS UNDER SECTION 401 (1) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 926, AND OVERTIME COMPENSATION FOR IRREGULAR, UNSCHEDULED OVERTIME DUTY TO EMPLOYEES WHO ARE REGULARLY ASSIGNED TO STANDBY TOURS OF DUTY IN CONNECTION WITH FIGHTING FOREST FIRES.

THE SUBJECT EMPLOYEES HAVE REGULAR 40-HOUR, ACTUAL-WORK, BASIC WORKWEEKS AND, IN ADDITION, ARE ASSIGNED TO REGULAR WEEKLY STANDBY TOURS OF DUTY SEPARATE AND DISTINCT FROM THE BASIC WORKWEEK. WE HELD IN 40 COMP. GEN. 88 THAT THE HOURLY RATE OF COMPENSATION FOR THE BASIC WORKWEEK COULD BE DETERMINED FROM THE APPROPRIATE ANNUAL RATE AS PRESCRIBED IN THE GENERAL ACCOUNTING OFFICE SALARY TABLE; THAT AN HOURLY RATE FOR THE STANDBY DUTY COULD BE DETERMINED BY DIVIDING THE AMOUNT OF THE ANNUAL PREMIUM COMPENSATION RECEIVED DURING A WEEK WHEN FULL DUTY TIME IS SERVED BY THE NUMBER OF SCHEDULED WEEKLY STANDBY HOURS; AND THAT ANNUAL AND SICK LEAVE COULD BE CREDITED AND CHARGED UPON THE BASIS OF THE BASIC 40-HOUR WORKWEEK, ONLY, BUT THAT NO PREMIUM COMPENSATION COULD BE PAID FOR PERIODS OF ABSENCE FROM SCHEDULED STANDBY DUTY.

AS A RESULT OF OUR DECISION, PARTICULARLY THE LAST SENTENCE THEREOF WHERE WE SAID THAT NO PREMIUM COMPENSATION COULD BE PAID FOR PERIODS OF ABSENCE FROM STANDBY DUTY, PAYMENT FOR STANDBY DUTY WAS WITHHELD WHENEVER AN EMPLOYEE WAS ABSENT FROM A STANDBY TOUR, REGARDLESS OF WHETHER THE ABSENCE WAS FOR PERSONAL REASONS OR BECAUSE HEWAS EXCUSED FROM THE DUTY WHEN WEATHER CONDITIONS RESULTED INLOW FIRE DANGER. ALSO, BEFORE PAYING FOR UNSCHEDULED OVERTIME OUTSIDE OF THE SCHEDULED TOURS OF DUTY (BASIC AND STANDBY) AS PERMITTED BY THE AMENDMENT OF SECTION 401 (1) BY PUBLIC LAW 85 -525, JULY 18, 1958, 72 STAT. 363, 5 U.S.C. 926, SUCH OVERTIME WAS APPLIED TO FILL IN TIME ABSENT FROM STANDBY DUTY, OVERTIME COMPENSATION BEING PAID ONLY FOR THE EXCESS, IF ANY. THE RESULT IS THAT, TO THE EXTENT OF THE "FILL-IN" TIME, THE UNSCHEDULED OVERTIME IS PAID FOR AT THE STANDBY HOURLY RATE WHICH IS CONSIDERABLY LOWER THAN THE REGULAR RATE FOR OVERTIME. THE FOLLOWING ILLUSTRATIVE EXAMPLE OF A SCHEDULED BASIC WORKWEEK AND STANDBY DUTY, AND OF THE ACTUAL DUTY STATUS FOR THE WEEK, IS GIVEN:

CHART

S M T W T F S BASIC WORKWEEK - 8 8 8 8 8 8 STANDBY DUTY - 4 4 4 4 4 4 ASSUME HE WORKED ONE WEEK AS FOLLOWS: BASIC WORKWEEK - 8 8 10 8 8 - SICK LEAVE

- -- 8 - - - STANDBY - 4 10 10 4 4 - UNSCHEDULED STANDBY OR OVERTIME - 4 - - - - 4

THE ADMINISTRATIVE ASSISTANT SECRETARY SAYS THAT IN PREVIOUS YEARS, UNSCHEDULED OVERTIME DUTY PERFORMED ON MONDAY AND SATURDAY WOULD BE SUBSTITUTED FOR SCHEDULED STANDBY DUTY NOT PERFORMED ON TUESDAY AND WEDNESDAY; THAT ANY SHORTAGE IN HOURS OF DUTY NOT PERFORMED IN THE BASIC WORKWEEK (40 HOURS) WOULD, OF COURSE, BE OFFSET, IF NOT COVERED BY LEAVE, WITH UNSCHEDULED OVERTIME SERVED; AND THAT IN THIS PARTICULAR EXAMPLE, FOR AN EMPLOYEE WITH A BASE RATE OF $4,565 PER ANNUM, THE PREMIUM COMPENSATION RATE FOR SCHEDULED STANDBY DUTY WOULD BE 88 CENTS PER HOUR, WHEREAS THE OVERTIME RATE FOR THE UNSCHEDULED OVERTIME WOULD BE $2.20 PER HOUR (BASE RATE UNDER AUTHORITY OF SECTION 407 OF THE AGRICULTURAL APPROPRIATION ACT OF 1952, 5 U.S.C. 574A).

IT IS PROPOSED TO CHANGE THE PRACTICE TO PROVIDE THAT: ALL UNSCHEDULED OVERTIME DUTY WILL BE PAID FOR AT THE APPLICABLE OVERTIME RATES, AND SUCH OVERTIME DUTY WILL NOT BE SUBSTITUTED FOR UNSERVED SCHEDULED STANDBY DUTY. FOR EXAMPLE, IN THE "ACTUAL" WORKWEEK SCHEDULE SHOWN ABOVE, THE FOREST SERVICE WILL PAY THE EMPLOYEE FOR UNSCHEDULED OVERTIME DUTY PERFORMED ON MONDAY AND SATURDAY AT THE APPLICABLE OVERTIME RATES AND NOT REQUIRE THAT THIS UNSCHEDULED OVERTIME DUTY BE SUBSTITUTED FOR SCHEDULED STANDBY DUTY NOT SERVED ON TUESDAY AND WEDNESDAY. (WE RECOGNIZE THAT UNSCHEDULED OVERTIME DUTY PERFORMED MUST BE FIRST SUBSTITUTED FOR REGULAR WORKWEEK DUTY (40 HOURS) NOT PERFORMED AND NOT COVERED BY LEAVE BEFORE OVERTIME MAY BE PAID.)

ALSO, AS TO THE PRACTICE OF DEDUCTING THE HOURLY EQUIVALENT OF THE ANNUAL PREMIUM COMPENSATION WHEN THE EMPLOYEE IS ABSENT FROM STANDBY DUTY, IT IS PROPOSED TO PROVIDE THAT: EMPLOYEES WILL RECEIVE COMPENSATION FOR SCHEDULED STANDBY SERVICES, REGARDLESS OF THE DEGREE OF NEED FOR SUCH SERVICES WHICH FLUCTUATE FROM DAY TO DAY DURING THE CALENDAR PERIOD IN WHICH THE EMPLOYEE'S WORK SCHEDULE INCLUDES SCHEDULED STANDBY. HOWEVER, WHEN AN EMPLOYEE ABSENTS HIMSELF FOR PERSONAL REASONS (SICKNESS, ETC.) FROM REGULARLY SCHEDULED STANDBY DUTY, HE WILL NOT RECEIVE COMPENSATION IF THERE IS A SPECIFIC NEED FOR SUCH STANDBY SERVICES DURING THE PERIOD OF ABSENCE. FURTHER, IT IS PROPOSED TO ALLOW COMPENSATION FOR THE PERIOD OF SUCH ABSENCE IF WEATHER CONDITIONS WERE SUCH THAT THE STANDBY DUTY WAS NOT NECESSARY.

PREMIUM COMPENSATION ON AN ANNUAL BASIS FOR EMPLOYEES WHO HAVE A REGULAR 40-HOUR BASIC WORKWEEK AND ARE REQUIRED IN ADDITION TO REMAIN ON STANDBY DUTY IS COVERED BY SECTION 25.254 (A) (3) OF THE FEDERAL EMPLOYEES PAY REGULATIONS, 5 CFR 25.254 (A) (3), IMPLEMENTING SECTION 401 (1) OF THE PAY ACT. SECTION 25.271 OF THE REGULATIONS PLACES UPON THE HEAD OF THE DEPARTMENT CONCERNED THE RESPONSIBILITY FOR, AMONG OTHER THINGS, FIXING TOURS OF DUTY AND ORDERING EMPLOYEES, AS HE DEEMS NECESSARY, TO REMAIN AT THEIR STATIONS IN A STANDBY STATUS; AND FOR DETERMINING THE APPLICABLE RATE OF ADDITIONAL COMPENSATION WHICH HAS BEEN APPROVED BY THE CIVIL SERVICE COMMISSION OR, IF NO APPROVED RATE IS APPLICABLE, PROPOSING A RATE OF ADDITIONAL COMPENSATION FOR APPROVAL BY THE COMMISSION. SECTION 25.253 (A) (2) PROVIDES THAT TOURS OF DUTY (INCLUDING TIME REQUIRED FOR REMAINING ON DUTY) MUST BE ESTABLISHED ON A REGULARLY RECURRING BASIS OVER A SUBSTANTIAL PERIOD OF TIME, GENERALLY A FEW MONTHS. ACCORDING TO THE NOTE FOLLOWING SECTION 25.254 (A) (3), THE NUMBER OF DAYS OR HOURS OF DUTY A WEEK "FOR PURPOSES OF THIS SECTION" MAY BE THE NUMBER EACH WEEK OR THE AVERAGE NUMBER A WEEK OVER A REASONABLE CYCLE. ALSO, IT SHOULD BE NOTED THAT SECTION 25.254 (A) (3) DOES NOT FIX A PRECISE NUMBER OF STANDBY HOURS FOR WHICH A PARTICULAR PERCENTAGE RATE IS TO BE PAID; RATHER, THE PERCENTAGE RATE IS MADE APPLICABLE TO A RANGE OF STANDBY HOURS VARYING BETWEEN A SPECIFIED MINIMUM AND MAXIMUM. IN LIGHT OF THOSE PROVISIONS, WE DO NOT VIEW THE REGULATIONS, TAKEN AS A WHOLE, AS REQUIRING RIGID ADHERENCE TO A FIXED WEEKLY (OR OTHER PERIODIC) STANDBY SCHEDULE WHEN, AS IN THE CIRCUMSTANCES HERE UNDER CONSIDERATION, IT IS PREDICTABLE IN ADVANCE, ALTHOUGH NOT PRECISELY, THAT VARYING CONDITIONS OF WEATHER OR OTHER FACTORS WILL RENDER THE STANDBY TOURS UNNECESSARY ON OCCASION. RATHER, OUR OPINION IS THAT IT WOULD BE LAWFUL FOR YOU, IN ADVANCE OF A FIRE SEASON, TO DETERMINE AS ACCURATELY AS POSSIBLE FROM HISTORICAL WEATHER DATA AND OTHER FACTORS THE APPROXIMATE NUMBER OF STANDBY TOURS WHICH WILL BE REQUIRED IN A PARTICULAR POSITION FOR THE SEASON AND TO DERIVE A WEEKLY AVERAGE FROM THE ANTICIPATED TOTAL. THEREFORE, SUBJECT TO THE EXCEPTION NOTED BELOW, WE WILL INTERPOSE NO OBJECTION TO YOUR ADOPTION OF THE PROPOSED CHANGES IN PRACTICE PROVIDED THE PERCENTAGE RATES ARE DETERMINED FROM WEEKLY AVERAGE STANDBY HOURS AS STATED HEREIN AND PROVIDED THAT ANY QUESTION AS TO AN APPROPRIATE PERCENTAGE RATE BE SUBMITTED TO THE CIVIL SERVICE COMMISSION FOR ITS CONSIDERATION. THE LAST SENTENCE OF 40 COMP.GEN. 88, SUPRA, IS MODIFIED ACCORDINGLY.

IT APPEARS FROM THE EXAMPLE GIVEN ABOVE THAT "UNSCHEDULED STANDBY" IS TO BE TREATED THE SAME AS UNSCHEDULED OVERTIME INVOLVING ACTUAL WORK. IN THE ABSENCE OF SUFFICIENT INFORMATION TO SHOW THE CIRCUMSTANCES UNDER WHICH THE UNSCHEDULED STANDBY TOUR IS SERVED (SUCH AS WHETHER IT RESULTS FROM ONE EMPLOYEE SUBSTITUTING FOR ANOTHER WHO IS ABSENT FROM A SCHEDULED STANDBY TOUR OR FROM UNUSUAL FIRE DANGER NECESSITATING THE ASSIGNMENT OF ADDITIONAL STANDBY PERSONNEL) AND WHETHER THE PROBABILITY OF A CERTAIN AMOUNT OF UNSCHEDULED STANDBY TIME IS TO BE TAKEN INTO ACCOUNT IN FIXING THE PERCENTAGE RATE UNDER THE PROCEDURE APPROVED HEREIN, WE EXPRESS NO OPINION AT THIS TIME AS TO THE PROPRIETY OF PAYING OVERTIME COMPENSATION THEREFOR.