B-154328, JUN. 23, 1964
Highlights
THE EMPLOYEES WHO WOULD BENEFIT FROM THE PROPOSED REGULATIONS ARE THOSE DESCRIBED IN YOUR LETTER AS HAVING A 40-HOUR WEEK OF REGULAR WORK PLUS STANDBY DUTY AT CERTAIN OTHER TIMES. WE UNDERSTAND THAT THEY ARE THE EMPLOYEES WHOSE ADDITIONAL ANNUAL COMPENSATION IS FIXED BY SECTION 550.144 (3) OF THE PAY REGULATIONS. WERE CONSIDERED IN OUR DECISIONS 38 COMP. IT WAS NOT OUR PURPOSE TO RULE THAT THE ADDITIONAL ANNUAL COMPENSATION THEREIN CONSIDERED WAS COMPENSATION ONLY FOR STANDBY DUTY. OUR OBJECTIVE WAS TO AID THE DEPARTMENT IN ESTABLISHING A REASONABLE AND EQUITABLE METHOD OF HANDLING A VEXING PROBLEM OF PAY COMPUTATION. THE EXTENT TO WHICH THE DUTIES OF SUCH POSITION ARE MADE MORE ONEROUS BY NIGHT OR HOLIDAY WORK.
B-154328, JUN. 23, 1964
TO CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION:
YOUR LETTER OF MAY 28, 1964, ASKS OUR VIEWS ON CERTAIN PROPOSED PAY REGULATIONS WHICH WOULD REQUIRE THE ALLOWANCE OF NIGHT PAY DIFFERENTIAL AND PREMIUM PAY FOR HOLIDAY WORK TO CERTAIN EMPLOYEES RECEIVING ADDITIONAL ANNUAL COMPENSATION UNDER SECTION 401 (1) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 68 STAT. 1105, AS AMENDED, 5 U.S.C. 926.
THE EMPLOYEES WHO WOULD BENEFIT FROM THE PROPOSED REGULATIONS ARE THOSE DESCRIBED IN YOUR LETTER AS HAVING A 40-HOUR WEEK OF REGULAR WORK PLUS STANDBY DUTY AT CERTAIN OTHER TIMES. WE UNDERSTAND THAT THEY ARE THE EMPLOYEES WHOSE ADDITIONAL ANNUAL COMPENSATION IS FIXED BY SECTION 550.144 (3) OF THE PAY REGULATIONS. ACTUAL EXAMPLES OF THE TYPE OF POSITIONS REFERRED TO BY YOUR LETTER MAY BE FOUND IN THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE, AND WERE CONSIDERED IN OUR DECISIONS 38 COMP. GEN. 161; 40 ID. 88 AND 42 ID. 426.
IN OUR DECISION 40 COMP. GEN. 88, IT WAS NOT OUR PURPOSE TO RULE THAT THE ADDITIONAL ANNUAL COMPENSATION THEREIN CONSIDERED WAS COMPENSATION ONLY FOR STANDBY DUTY, CONTRARY TO THE EXPRESS PROVISIONS OF SECTION 401 (1) OF THE ACT; RATHER, OUR OBJECTIVE WAS TO AID THE DEPARTMENT IN ESTABLISHING A REASONABLE AND EQUITABLE METHOD OF HANDLING A VEXING PROBLEM OF PAY COMPUTATION.
SECTION 401 (1) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 926, READS IN PART AS FOLLOWS:
"* * * PREMIUM COMPENSATION UNDER THIS PARAGRAPH SHALL BE DETERMINED AS AN APPROPRIATE PERCENTAGE (NOT IN EXCESS OF 25 PERCENTUM) OF SUCH PART OF THE RATE OF BASIC COMPENSATION FOR ANY SUCH POSITION AS DOES NOT EXCEED THE MINIMUM SCHEDULED RATE OF BASIC COMPENSATION PROVIDED FOR GRADE GS-9 IN THE CLASSIFICATION ACT OF 1949, AS AMENDED, BY TAKING INTO CONSIDERATION THE NUMBER OF HOURS OF ACTUAL WORK REQUIRED IN SUCH POSITION, THE NUMBER OF HOURS REQUIRED IN A STANDBY STATUS AT OR WITHIN THE CONFINES OF THE STATION, THE EXTENT TO WHICH THE DUTIES OF SUCH POSITION ARE MADE MORE ONEROUS BY NIGHT OR HOLIDAY WORK, OR BY BEING EXTENDED OVER PERIODS OF MORE THAN FORTY HOURS A WEEK, AND ANY OTHER RELATIVE FACTORS * * *"
IN VIEW OF THE QUOTED LANGUAGE, WE WOULD BE REQUIRED TO CONCLUDE THAT THE PERCENTAGES OF ADDITIONAL ANNUAL COMPENSATION PROVIDED IN SECTIONS 550.144 (1), (2) AND (3) OF THE PAY REGULATIONS, NECESSARILY MUST INCLUDE ELEMENTS OF COMPENSATION FOR NIGHT AND HOLIDAY WORK AS WELL AS FOR REGULARLY SCHEDULED OVERTIME AND STANDBY DUTY. THUS, IT WOULD APPEAR THAT THE PROPOSED REGULATIONS WOULD PROVIDE DOUBLE BENEFITS FOR NIGHT AND HOLIDAY WORK CONTRARY TO THE INTENT OF THE STATUTE.
IT IS OUR VIEW, THEREFORE, THAT THE PROPOSED REGULATIONS WOULD CONTRAVENE THE PROVISIONS OF SECTION 401 (1) OF THE PAY ACT.