B-166794, MAY 23, 1969

B-166794, MAY 23, 1969

TO MRS. DESSIE M. RICHARDSON:

ON APRIL 24, 1969, THE HONORABLE THADDEUS J. DULSKI TRANSMITTED YOUR MEMORANDUM OF APRIL 22, 1969, WITH ENCLOSURES, WHICH WAS ADDRESSED TO CHAIRMAN DULSKI FOR OUR CONSIDERATION AND REQUESTED THAT WE ADVISE YOU CONCERNING THE MATTER OF YOUR ENTITLEMENT TO PREMIUM PAY (OVERTIME) FOR ALL CONSECUTIVE DAYS WORKED -- NOT BROKEN BY A NONWORKDAY -- IN EXCESS OF 5.

THE FOLLOWING STATUTORY PROVISIONS APPEARING IN TITLE 5 OF THE U.S.C. ARE APPLICABLE IN YOUR CASE:

"5542 (A). HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR * * * IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK * * *"

"6101 (A) (3) EXCEPT WHEN THE HEAD OF AN EXECUTIVE AGENCY, A MILITARY DEPARTMENT, OR OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA DETERMINES THAT HIS ORGANIZATION WOULD BE SERIOUSLY HANDICAPPED IN CARRYING OUT ITS FUNCTIONS OR THAT COSTS WOULD BE SUBSTANTIALLY INCREASED, HE SHALL PROVIDE, WITH RESPECT TO EACH EMPLOYEE IN HIS ORGANIZATION, THAT---

"/A) ASSIGNMENTS TO TOURS OF DUTY ARE SCHEDULED IN ADVANCE OVER PERIODS OF NOT LESS THAN 1 WEEK;

"/B) THE BASIC 40-HOUR WORKWEEK IS SCHEDULED ON 5 DAYS, MONDAY THROUGH FRIDAY WHEN POSSIBLE, AND THE 2 DAYS OUTSIDE THE BASIC WORKWEEK ARE CONSECUTIVE;

"/C) THE WORKING HOURS IN EACH DAY IN THE BASIC WORKWEEK ARE THE SAME;

"/D) THE BASIC NONOVERTIME WORKDAY MAY NOT EXCEED 8 HOURS; * * *"

WE UNDERSTAND THAT YOU OCCUPY A POSITION UNDER THE GENERAL SCHEDULE AND THAT YOUR ADMINISTRATIVE WORKWEEK OF 7 DAYS COMMENCES ON SUNDAY AND ENDS ON SATURDAY. ALSO WE UNDERSTAND THAT THE HEAD OF THE AGENCY UNDER THE AUTHORITY OF 5 U.S.C. 6101 (A) (3), QUOTED ABOVE, HAS DETERMINED THAT IT IS NECESSARY FOR YOU TO WORK CONTINUOUSLY FOR MORE THAN 5 CONSECUTIVE DAYS TO PREVENT SERIOUSLY HANDICAPPING THE HOSPITAL IN CARRYING OUT ITS FUNCTIONS OR SUBSTANTIALLY INCREASING ITS COSTS. THIS DETERMINATION IS ONE THE HEAD OF YOUR AGENCY IS PERMITTED TO MAKE UNDER THE STATUTE.

TO BE ENTITLED TO OVERTIME COMPENSATION FOR WORK IN EXCESS OF 40HOURS A WEEK THE OVERTIME MUST HAVE BEEN WORKED DURING YOUR ADMINISTRATIVE WORKWEEK WHICH, AS INDICATED ABOVE, WE HAVE BEEN INFORMALLY ADVISED COMMENCES ON SUNDAY AND ENDS ON SATURDAY. THE FACT THAT YOU MAY WORK MORE THAN 5 CONSECUTIVE 8-HOUR DAYS WOULD NOT ENTITLE YOU TO OVERTIME COMPENSATION UNLESS MORE THAN 5 SUCH DAYS ARE WORKED BETWEEN THE PERIOD COMMENCING ON A SUNDAY AND ENDING THE NEXT SUCCEEDING SATURDAY. IT IS ENTIRELY POSSIBLE FOR AN EMPLOYEE TO WORK 10 CONSECUTIVE DAYS -- 5 IN EACH OF TWO ADMINISTRATIVE WORKWEEKS -- AND NOT BE ENTITLED TO OVERTIME COMPENSATION. THUS ON THE BASIS OF THE INFORMATION PRESENTED HERE THE PAYMENT OF OVERTIME COMPENSATION IN YOUR CASE WOULD NOT BE WARRANTED.

THE MATTER SET FORTH IN PARAGRAPHS NUMBERED 2, 3, 4 AND 5 OF YOUR LETTER ALL RELATE TO THE ADMINISTRATIVE DETERMINATIONS MADE UNDER THE AUTHORITY SET FORTH IN 5 U.S.C. 6101 (A), QUOTED ABOVE. WE MIGHT SAY, HOWEVER, THAT BOTH OF THE EMPLOYEES MENTIONED IN YOUR LETTER COULD BE REQUIRED TO WORK MORE THAN 5 CONSECUTIVE DAYS WITHOUT BEING PAID OVERTIME IF NO MORE THAN 5 SUCH DAYS WORK ARE PERFORMED WITHIN A SINGLE ADMINISTRATIVE WORKWEEK. POINTED OUT ABOVE, THE ESTABLISHMENT OF THEIR WORK SCHEDULES ALSO IS A MATTER SOLELY WITHIN THE DISCRETION OF THEIR EMPLOYING AGENCIES.

WE TRUST THE FOREGOING WILL BE OF ASSISTANCE TO YOU IN UNDERSTANDING WHY NO OVERTIME IS PAYABLE IN YOUR CASE.