B-154332, AUG. 2, 1965, 45 COMP. GEN. 53

B-154332, AUG. 2, 1965, 45 COMP. GEN. 53

COMPENSATION - OVERTIME - IRREGULAR, UNSCHEDULED - "CALL-BACK" OVERTIME WHEN CIVILIAN EMPLOYEES OF THE GOVERNMENT FOLLOWING REGULARLY SCHEDULED TOURS OF DUTY PERFORM UNSCHEDULED OVERTIME WORK, OR WHEN EARLY REPORTING FOR DUTY MERGES WITH AND CONTINUES INTO A REGULARLY SCHEDULED TOUR OF DUTY FOR THE DAY, THEY ARE NOT ENTITLED TO PAYMENT OF THE MINIMUM 2 HOURS CALL- BACK OVERTIME PRESCRIBED BY SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 912A, FOR ANY EMPLOYEE WHO IS CALLED BACK TO PERFORM UNSCHEDULED OVERTIME WORK, EITHER ON A REGULAR WORKDAY AFTER HAVING LEFT HIS PLACE OF EMPLOYMENT UPON COMPLETION OF A REGULAR SCHEDULE OF WORK OR ON AN OFF DUTY DAY, THEREFORE, AN EMPLOYEE WHOSE UNSCHEDULED OVERTIME FORMS A CONTINUOUS PERIOD OF DUTY, NOT HAVING BEEN CALLED BACK TO PERFORM UNSCHEDULED OVERTIME IS NOT ENTITLED TO PAYMENT OF CALL-BACK OVERTIME.

TO ROBERT L. JOBE, AUGUST 2, 1965:

YOUR LETTER OF JULY 6, 1965, POINTS OUT THAT YOU HAVE ALWAYS BEEN PAID 2 HOURS CALL-BACK OVERTIME FOR THE WORK YOU WERE DIRECTED TO PERFORM BEFORE THE COMMENCEMENT OF YOUR DAILY TOUR OF DUTY WHEN OFFICIALLY REQUIRED TO REPORT EARLY. YOU SAY THAT NOW YOUR ADMINISTRATIVE OFFICE HAS ISSUED A NOTIFICATION THAT CALL-BACK OVERTIME NO LONGER WILL BE PAID UNDER SUCH CIRCUMSTANCES. YOU ASK WHETHER THE ADMINISTRATIVE OFFICE CAN CHANGE THE PRACTICE PREVIOUSLY IN EXISTENCE.

A COPY OF THE ADMINISTRATIVE MEMORANDUM CONCERNING THIS MATTER DATED DECEMBER 4, 1964, REFERENCE NW 73/40.14-P, WAS ATTACHED TO YOUR LETTER. THAT MEMORANDUM READS AS FOLLOWS:

THE GENERAL ACCOUNTING OFFICE SAYS THAT 1945 ACT OVERTIME DUTY WHICH CONTINUES INTO A REGULAR SHIFT WITHOUT A BREAK DOES NOT ENTITLE THE EMPLOYEE TO CALL-BACK PAY. SIMILARLY OVERTIME WHICH IMMEDIATELY FOLLOWS A SCHEDULED TOUR OF DUTY DOES NOT INVOLVE CALL-BACK PAY.

FUTURE REPORTS OF OVERTIME THAT CONTINUES INTO OR IMMEDIATELY FOLLOWS REGULARLY-SCHEDULED HOURS OF DUTY WILL BE PROCESSED ACCORDINGLY.

SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 912A, PROVIDES AS FOLLOWS:

FOR THE PURPOSES OF THIS ACT, ANY UNSCHEDULED OVERTIME WORK PERFORMED BY ANY OFFICER OR EMPLOYEE ON A DAY WHEN NO WORK WAS SCHEDULED FOR HIM, OR FOR WHICH HE IS REQUIRED TO RETURN TO HIS PLACE OF EMPLOYMENT, SHALL BE CONSIDERED TO BE AT LEAST TWO HOURS IN DURATION.

OUR DECISION IN 40 COMP. GEN. 379 RELIED UPON BY THE ADMINISTRATIVE OFFICE AS AUTHORITY FOR PAYING CALL-BACK PAY FOR EARLY REPORTING ON SCHEDULED WORKDAYS IS CONFINED TO CALL-BACK SITUATIONS ON SCHEDULED NONWORKDAYS AND THAT DECISION DOES NOT APPLY IN YOUR CASE.

IN 37 COMP. GEN. 1 WE DISTINGUISHED BETWEEN "SCHEDULED" AND "NONSCHEDULED" OVERTIME WORK FOR THE PURPOSES OF 5 U.S.C. 912A, QUOTED ABOVE. WE POINTED OUT THEREIN THAT AN EMPLOYEE WHO HAS A REGULARLY SCHEDULED TOUR OF DUTY 2:30 P.M. TO 11 P.M., MONDAY THROUGH FRIDAY, AND WHO IS NOTIFIED ON MONDAY TO APPEAR IN COURT ON TUESDAY AS A WITNESS 9 A.M. TO 10 A.M. IS ENTITLED UNDER THE UNSCHEDULED OVERTIME PROVISIONS OF 5 U.S.C. 912A TO 2 HOURS CALL-BACK PAY. IN 36 COMP. GEN. 657 WE HELD THAT THE TERM "SCHEDULED" FOR PURPOSES OF NIGHT DIFFERENTIAL REQUIRED THAT ASSIGNMENTS BE SCHEDULED IN ADVANCE OVER PERIODS OF NOT LESS THAN 1 WEEK. IN THE LIGHT OF THOSE DECISIONS OUR OPINION IS THAT YOUR EARLY REPORTING FOR DUTY WHICH RUNS INTO YOUR PRESCRIBED TOUR OF DUTY OR YOUR SERVING BEYOND SUCH TOUR ONLY OCCASIONALLY OR INTERMITTENTLY CONSTITUTES "UNSCHEDULED" OVERTIME DUTY.

HOWEVER, THAT IS NOT THE SOLE CRITERIA OF ENTITLEMENT TO CALL-BACK PAY. THE LANGUAGE WHICH BECAME SECTION 203 WAS CONTAINED IN TWO BILLS S. 2665 AND H.R. 2263, THE LATTER OF WHICH WAS ENACTED INTO LAW. H.REPT. NO. 2454 ON THE SENATE BILL CONTAINED THE FOLLOWING STATEMENT:

THE NEW SECTION 203 PROVIDES A MINIMUM OF 2 HOURS OF PAY AT THE OVERTIME RATE FOR ANY EMPLOYEE WHO IS CALLED BACK TO PERFORM UNSCHEDULED OVERTIME WORK EITHER ON A REGULAR WORKDAY AFTER HE HAS COMPLETED HIS REGULAR SCHEDULE OF WORK AND LEFT HIS PLACE OF EMPLOYMENT OR ON ONE OF THE DAYS WHEN HE IS OFF DUTY. THAT LANGUAGE CLEARLY NEGATES THE IDEA THAT UNSCHEDULED OVERTIME DUTY PERFORMED IN CONTINUATION OF THE REGULARLY SCHEDULED WORK TOUR CARRIES WITH IT A RIGHT TO CALL-BACK PAY. THE SAME RATIONALE APPLIES TO EARLY REPORTING FOR DUTY WHEN THAT DUTY MERGES WITH AND CONTINUES INTO THE REGULARLY SCHEDULED TOUR OF DUTY FOR THE DAY.

BASED UPON THE FOREGOING THE ADMINISTRATIVE OFFICE MEMORANDUM QUOTED ABOVE REPRESENTS A PROPER APPLICATION OF THE STATUTE AND THE CHANGE IN THE PREVIOUS PRACTICE WAS REQUIRED.