B-160094, OCTOBER 12, 1966, 46 COMP. GEN. 293

B-160094, OCTOBER 12, 1966, 46 COMP. GEN. 293

COMPENSATION - HOLIDAYS - PREMIUM PAY. EMPLOYEES REPORTING AT 8 A.M. AT A FIELD OFFICE ON A HOLIDAY TO RECEIVE INSTRUCTIONS AND STUDY MATERIALS, PERFORMING LESS THAN 2 HOURS' SERVICE BEFORE TRAVELING BY RENTED CARS TO A STATION 160 MILES DISTANT, ARRIVING AT 12 NOON, WHO WERE NOT "REGULARLY SCHEDULED" TO WORK ON THE HOLIDAY ARE NOT WITHIN THE PURVIEW OF 5 U.S.C. 5542/B) AND, THEREFORE, MAY NOT HAVE THE TRAVEL TIME REGARDED AS INSEPARABLE FROM WORK OR AS PERFORMED UNDER ARDUOUS CONDITIONS TO ENTITLE THEM TO HOLIDAY PREMIUM PAY FOR THE HOURS BETWEEN 8 A.M. AND 12 NOON. HOWEVER, THE EMPLOYEES ARE ENTITLED TO THE MINIMUM OF 2 HOURS PREMIUM PAY INCIDENT TO THE DUTY PERFORMED AT THE FIRST FIELD STATION AND TO THEIR BASIC RATE OF COMPENSATION FOR THE REMAINING HOURS OF THE FORENOON SPENT IN TRAVELING TO THE SECOND DUTY STATION.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 12, 1966:

YOUR LETTER OF SEPTEMBER 19, 1966, ASKS OUR DECISION CONCERNING THE ENTITLEMENT OF SEVERAL EMPLOYEES OF THE CIVIL SERVICE COMMISSION TO HOLIDAY PAY FOR TRAVEL TIME.

THE FACTS CONCERNING THE SITUATION GIVING RISE TO YOUR REQUEST ARE RECITED IN YOUR LETTER AS FOLLOWS:

ON REQUEST OF THE DEPARTMENT OF JUSTICE THE COMMISSION ASSIGNED A GROUP OF ITS INVESTIGATORS FROM ITS DALLAS REGION TO SERVE AS POLL OBSERVERS AT MERIDIAN, MISSISSIPPI, ON TUESDAY, MAY 31. THESE EMPLOYEES, WHOSE WORKWEEK REGULARLY BEGINS AT 8:00 A.M. MONDAY, WERE DIRECTED TO REPORT AT BIRMINGHAM, ALABAMA, AT 8:00 A.M. ON MONDAY, MEMORIAL DAY, TO RECEIVE INSTRUCTIONS AND MATERIALS FOR STUDY. THEY REPORTED AS DIRECTED, RECEIVED MATERIALS AND ORAL INSTRUCTIONS, WERE ASSIGNED AS TWO-MAN TEAMS AND DIRECTED TO CAR RENTAL AGENCIES TO OBTAIN CARS AND PROCEED TO DESIGNATED MOTELS IN THE VICINITIES OF THE POLLING PLACES, WHERE THEY WERE TO REMAIN IMMEDIATELY AVAILABLE FOR FURTHER ORDERS AND IN THE MEANTIME STUDY THE MATERIALS.

WE HAVE NO PROBLEM AS TO THE HOURS AFTER ARRIVAL AT THE MOTELS AT MERIDIAN AT 12:00 NOON, AS THE EMPLOYEES WERE CONTINUOUSLY WORKING FROM THAT TIME ON FOR SOME HOURS.

YOU SUGGEST THAT OUR DECISION 26 COMP. GEN. 631 (CITED IN 28 ID. 183; ID. 547 AND 37 ID. 1---RELATING TO SITUATIONS OF TRAVEL TIME DURING WHICH ACTUAL WORK WAS PERFORMED OR TRAVEL TIME OUTSIDE THE REGULAR TOUR OF DUTY), APPEARS TO PRESENT A COMPARABLE CASE. WE AGREE THAT THE FACTS CONSIDERED IN 26 COMP. GEN. 631 PARALLEL THOSE PRESENTED IN YOUR LETTER EXCEPT THAT IN THE CITED CASE THERE WAS PRESENT AN EMERGENCY WHICH APPARENTLY WAS DEEMED SUFFICIENT TO REMOVE THE CASE FROM THE GENERAL RULE.

AS STATED IN OUR DECISION OF APRIL 25, 1949, B-83278---RELATING TO AN EMPLOYEE "SCHEDULED" TO WORK ON NOVEMBER 11, 1948, A HOLIDAY, AS DISTINGUISHED FROM "REGULARLY SCHEDULED" TO WORK ON HOLIDAYS---THE POSITION OF OUR OFFICE REGARDING PAYMENT OF HOLIDAY AND OVERTIME COMPENSATION FOR TRAVEL TIME WAS RESTATED IN OUR DECISION 28 COMP. GEN. 547 TO AGAIN BRING INTO FOCUS THE CONCEPTS OF WORK AND ARDUOUS CONDITIONS OF TRAVEL. IN THE LATTER DECISION WE RULED IN EFFECT THAT TO JUSTIFY PAYMENT OF TRAVEL TIME DURING OVERTIME OR ON HOLIDAYS THE CIRCUMSTANCES AND CONDITIONS OF THE TRAVEL MUST BE SO UNUSUAL AS TO WARRANT A CONCLUSION THAT THE TRAVEL WAS INSEPARABLE FROM WORK. A MORE RECENT EXPRESSION OF OUR VIEWS MAY BE FOUND IN 40 COMP. GEN. 439, A DECISION RENDERED SINCE AMENDMENT OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 BY SECTION 205/B) OF THE ACT OF SEPTEMBER 1, 1954, PUBLIC LAW 763, 5 U.S.C. 912B (1964 ED.), NOW 5 U.S.C. 5542/B) (2).

IN THE CASE PRESENTED BY YOUR LETTER WE UNDERSTAND THAT THE COMMISSION EMPLOYEES DROVE OR RODE AS PASSENGERS IN RENTED AUTOMOBILES FROM BIRMINGHAM, ALABAMA, TO MERIDIAN, MISSISSIPPI, A DISTANCE OF ABOUT 160 MILES. NO WORK AS SUCH WAS PERFORMED DURING THE TRAVEL; NEITHER DOES IT APPEAR THAT THE TRAVEL WAS UNDER ARDUOUS CONDITIONS.

YOUR SPECIFIC QUESTIONS CONCERNING THE CASE ARE AS FOLLOWS:

(1) MAY THE COMMISSION PAY THESE EMPLOYEES AT HOLIDAY PREMIUM RATES FOR THE 4 HOURS FROM 8:00 A.M. TO 12:00 NOON?

(2) IF NOT, WOULD IT BE CORRECT TO PAY THEM FOR TWO HOURS AT HOLIDAY PREMIUM RATES FOR THE SERVICE OF LESS THAN 2 HOURS BEGINNING AT 8:00 A.M.?

IN LINE WITH OUR LATER DECISIONS, HOLIDAY PREMIUM PAY BEING PAYABLE FOR ACTUAL WORK OR TRAVEL CARRIED OUT UNDER ARDUOUS CONDITIONS, THE EMPLOYEES MAY NOT BE ALLOWED PAY AT THE PREMIUM RATE FOR THE TRAVEL TIME BETWEEN 8 A.M. AND 12 NOON. WE HAVE NOT OVERLOOKED THAT PART OF 5 U.S.C. 5542/B) STATING THAT TIME IN A TRAVEL STATUS SHALL BE CONSIDERED AS HOURS OF EMPLOYMENT WHEN IT FALLS WITHIN THE HOURS OF AN "EMPLOYEE'S REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK;, OUR OPINION IS THAT THAT PROVISION WAS INTENDED TO APPLY ONLY TO DAYS ON WHICH AN EMPLOYEE IS "REGULARLY SCHEDULED" TO WORK.

UNDER SECTION 302/B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 922/B), NOW SECTION 5546/B), THE EMPLOYEES WOULD BE ENTITLED TO THE MINIMUM OF 2 HOURS PREMIUM PAY INCIDENT TO THEIR WORK IN BIRMINGHAM AND TO THE BASIC RATE OF COMPENSATION FOR THE REMAINING HOURS OF THE FORENOON SPENT IN TRAVELING TO MERIDIAN.