B-212050, OCT 4, 1983, OFFICE OF GENERAL COUNSEL.

B-212050, OCT 4, 1983, OFFICE OF GENERAL COUNSEL.

PRECIS-UNAVAILABLE

MR. MICHAEL W. LAWRENCE, CHIEF STEWARD:

THIS IS IN RESPONSE TO YOUR INQUIRY CONCERNING WHETHER A PREVAILING RATE (WAGE BOARD) CIVILIAN EMPLOYEE IN THE DEPARTMENT OF THE AIR FORCE MUST BE COMPENSATED AT HIS OR HER OVERTIME RATE FOR ALL HOURS OF WORK IN EXCESS OF 32 HOURS DURING A WEEK THAT HAS A PAID GOVERNMENT HOLIDAY IN IT. YOUR LETTER WAS REFERRED TO THIS OFFICE BY JUDGE FENTON OF THE FEDERAL LABOR RELATIONS AUTHORITY.

ALTHOUGH WE ARE NOT RENDERING A DECISION IN RESPONSE TO YOUR LETTER, WE HOPE THAT THE FOLLOWING COMMENTS WILL BE OF SOME ASSISTANCE. WE HAVE ENCLOSED COPIES OF THE DECISIONS CITED IN OUR LETTER. ALL REFERENCES TO THE CODE OF FEDERAL REGULATIONS (C.F.R) ARE TO THE 1983 EDITION.

ON THE BASIS OF YOUR BRIEF DESCRIPTION OF THE WAGE BOARD EMPLOYEE, IT APPEARS THAT ENTITLEMENT TO OVERTIME COMPENSATION FOR HOURS WORKED COULD ARISE UNDER EITHER THE FAIR LABOR STANDARDS ACT (FLSA), 29 U.S.C. SECS. 201 ET SEQ. (1976) OR TITLE 5 U.S.C. SEC. 5544 (1982). THE REGULATIONS IMPLEMENTING THESE STATUTES ARE FOUND, RESPECTIVELY, AT 5 C.F.R. PART 551, AND 5 C.F.R. PART 532.

THE FLSA REQUIRES PAYMENT OF OVERTIME COMPENSATION TO COVERED (NONEXEMPT) EMPLOYEES FOR "HOURS OF WORK" IN EXCESS OF 40 HOURS PER WEEK, 29 U.S.C. SEC. 207 (1976). UNDER THE FLSA, PAID ABSENCES (HOLIDAYS, LEAVE, ETC.) ARE NOT CONSIDERED "HOURS OF WORK" IN DETERMINING WHETHER THE EMPLOYEE HAS WORKED MORE THAN 40 HOURS IN A WORKWEEK. B-210333, MARCH 24, 1983 AND CASES CITED THEREIN. SEE ALSO 5 C.F.R. SEC. 551.513. THUS, IN THE SITUATION YOU DESCRIBE, THE EMPLOYEE IS NOT ELIGIBLE FOR COMPENSATION AT THE FLSA OVERTIME RATE UNTIL AFTER HE OR SHE HAS ACTUALLY PERFORMED 40 HOURS OF WORK (EXCLUSIVE OF PAID ABSENCES) DURING A WORKWEEK THAT HAS A PAID GOVERNMENT HOLIDAY IN IT.

UNLIKE THE FLSA, HOWEVER, A PAID ABSENCE IS DEEMED "HOURS OF WORK" UNDER 5 U.S.C. SEC. 5544 AND THE PAID ABSENCE DOES NOT REDUCE THE AMOUNT OF OVERTIME PAY TO WHICH THE EMPLOYEE IS ENTITLED. B-210333, SUPRA; 5 C.F.R. SEC. 532.503(B). THUS, IN THE SITUATION YOU DESCRIBE, THE EMPLOYEE IS ELIGIBLE FOR OVERTIME COMPENSATION UNDER 5 U.S.C. SEC. 5544 WHEN HE OR SHE WORKS MORE THAN 32 HOURS IN A WEEK IN WHICH HE OR SHE IS ALSO PAID FOR AN 8 HOUR HOLIDAY.

WE OBSERVE THAT AN EMPLOYEE WHO MEETS THE REQUIREMENTS FOR BOTH FLSA AND TITLE 5 OVERTIME IS ENTITLED TO OVERTIME COMPENSATION UNDER WHICHEVER ONE OF THE LAWS PROVIDES THE GREATER BENEFIT. 62 COMP.GEN. 58 (1983); 54 ID. 371 (1974). THUS, IF A NONEXEMPT EMPLOYEE WERE TO WORK FOUR 10 HOUR DAYS AND HAVE A HOLIDAY OFF ON THE FIFTH DAY IN A WORKWEEK, HE WOULD NOT BE ENTITLED TO OVERTIME COMPENSATION UNDER THE FLSA BUT HE WOULD BE ENTITLED TO 8 HOURS OVERTIME COMPENSATION UNDER 5 U.S.C. SEC. 5544.

WE HOPE THE FOREGOING HAS BEEN OF SOME ASSISTANCE TO YOU.