B-36875, OCTOBER 5, 1943, 23 COMP. GEN. 253

B-36875, OCTOBER 5, 1943, 23 COMP. GEN. 253

WAR OVERTIME PAY ACT OF 1943 - COMPENSATORY TIME OFF IN LIEU OF ADDITIONAL COMPENSATION FOR EXCESS OVERTIME UNDER SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943, RESPECTING THE GRANTING OF COMPENSATORY TIME OFF IN LIEU OF OVERTIME COMPENSATION, THE DISCRETION TO SUBSTITUTE COMPENSATORY TIME OFF FROM DUTY IN LIEU OF OVERTIME COMPENSATION FOR SERVICE IN EXCESS OF 48 HOURS PER WEEK IN ANY ADMINISTRATIVE WORK-WEEK IS VESTED IN THE ADMINISTRATIVE OFFICE RATHER THAN IN THE EMPLOYEE. WHERE, PURSUANT TO SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943 AND THE REGULATIONS ISSUED THEREUNDER, A FULL-TIME PER ANNUM EMPLOYEE IS GRANTED COMPENSATORY TIME OFF FROM DUTY, IN LIEU OF OVERTIME COMPENSATION, FOR WORK IN EXCESS OF 48 HOURS PER WEEK, SUCH COMPENSATORY TIME OFF IS NOT TO BE REGARDED AS ADDITIONAL LEAVE OF ABSENCE WHICH MUST BE APPLIED FOR, BUT, RATHER, IT IS THE DUTY AND RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE UNDER THE REGULATIONS TO EXCUSE THE EMPLOYEE FROM DUTY, WITHIN 90 DAYS FROM THE TIME THE EXCESS OVERTIME WAS WORKED, FOR A PERIOD CORRESPONDING TO THE EXCESS OVERTIME WORKED. WHERE THE HEAD OF A DEPARTMENT, ETC. ELECTS TO GRANT A FULL-TIME PER ANNUM EMPLOYEE WHO WORKS IN EXCESS OF 48 HOURS PER WEEK COMPENSATORY TIME OFF FROM DUTY IN LIEU OF OVERTIME COMPENSATION PURSUANT TO THE WAR OVERTIME PAY ACT OF 1943 AND THE REGULATIONS ISSUED THEREUNDER, BUT, AS A RESULT OF THE EMPLOYEE'S OWN FAULT OR VOLUNTARY ACTION (SUCH AS VOLUNTARY RESIGNATION, TRANSFER AT THE EMPLOYEE'S REQUEST OR REFUSAL TO ACCEPT THE COMPENSATORY TIME OFF) THE DEPARTMENT HEAD IS PREVENTED FROM GRANTING SUCH TIME OFF WITHIN THE 90-DAY PERIOD PRESCRIBED BY THE SAID REGULATIONS, THE EMPLOYEE IS NOT ENTITLED TO OVERTIME COMPENSATION FOR OVERTIME WORKED IN EXCESS OF 48 HOURS PER WEEK. WHERE THE HEAD OF A DEPARTMENT, ETC., ELECTS TO GRANT A FULL-TIME PER ANNUM EMPLOYEE WHO WORKS IN EXCESS OF 48 HOURS PER WEEK COMPENSATORY TIME OFF IN LIEU OF OVERTIME COMPENSATION PURSUANT TO THE DISCRETIONARY AUTHORITY VESTED IN HIM BY THE WAR OVERTIME PAY ACT OF 1943 AND THE REGULATIONS ISSUED THEREUNDER, BUT THE EMPLOYEE, THROUGH NO FAULT OR VOLUNTARY ACTION ON HIS PART (SUCH AS, INDUCTION INTO THE ARMED FORCES, TERMINATION OF HIS SERVICES WITHOUT HIS CONSENT, OR INVOLUNTARY TRANSFER PURSUANT TO WAR MANPOWER DIRECTIVES) IS UNABLE TO UTILIZE SUCH COMPENSATORY TIME OFF PRIOR TO THE EXPIRATION OF THE 90 DAY PERIOD PRESCRIBED BY THE SAID REGULATIONS, HE IS ENTITLED TO OVERTIME COMPENSATION FOR SUCH EXCESS OVERTIME.

ACTING COMPTROLLER GENERAL YATES TO THE DIRECTOR, OFFICE OF DEFENSE TRANSPORTATION, OCTOBER 5, 1943:

I HAVE YOUR LETTER OF SEPTEMBER 4, 1943 (FILE 20-27), AS FOLLOWS:

RE: WAR OVERTIME PAY ACT OF 1943.

PUBLIC LAW 49.

COMPENSATORY TIME OFF IN LIEU OF OVERTIME COMPENSATION.

UNDER DATE OF MAY 8, 1943, THE UNITED STATES CIVIL SERVICE COMMISSION ISSUED DEPARTMENTAL CIRCULAR NO. 424, SUBJECT WAR OVERTIME PAY REGULATIONS. SECTION 1, PART III THEREOF AS AMENDED BY SUPPLEMENT NO. 2, ISSUED JULY 9, 1943, IS PARTICULARLY CONCERNED WITH THE SUBJECT OF GRANTING TO FULL TIME PER ANNUM EMPLOYEES COMPENSATORY TIME OFF FROM DUTY WITHOUT LOSS OF PAY, IN LIEU OF OVERTIME COMPENSATION, FOR SUCH EMPLOYMENT AS MAY EXCEED FORTY-EIGHT HOURS IN ANY WEEK.

INCLUDED WITHIN THIS SECTION 1 OF PART III, AS AMENDED, IS THE FOLLOWING LANGUAGE:

"* * * IN THE EVENT THAT COMPENSATORY TIME OFF FROM DUTY FOR EMPLOYMENT IN EXCESS OF FORTY-EIGHT HOURS IN ANY WEEK IS NOT GRANTED WITHIN NINETY CALENDAR DAYS AFTER SUCH EMPLOYMENT IS PERFORMED, THE EMPLOYEE SHALL BE ENTITLED, IN LIEU OF SUCH COMPENSATORY TIME OFF, TO OVERTIME COMPENSATION FOR SUCH EMPLOYMENT COMPUTED AS PROVIDED IN THESE REGULATIONS AT THE RATE OR RATES OF COMPENSATION WHICH THE EMPLOYEE RECEIVED DURING THE PERIOD OF SUCH EMPLOYMENT: * * *"

THE OFFICE OF DEFENSE TRANSPORTATION IN ITS CONSIDERATION OF THIS DEPARTMENTAL CIRCULAR AND THE ADMINISTRATION THEREOF FEELS THAT BECAUSE MANY OF ITS FIELD EMPLOYEES ARE NOW PERFORMING A CONSIDERABLE AMOUNT OF OVERTIME WORK, IT IS IMPORTANT TO HAVE A PRESENT DETERMINATION OF THE EFFECT OF THE NINETY DAY LIMITATION QUOTED ABOVE UPON SITUATIONS WHICH IT IS BELIEVED MAY ARISE, PARTICULARLY OUT OF SUCH FIELD OPERATIONS AND GENERALLY WITH RESPECT TO ALL PER ANNUM EMPLOYEES.

ACCORDINGLY, PREDICATED UPON THE CONSTANT PREMISE THAT THE HEAD OF SUCH A DEPARTMENT, ESTABLISHMENT, OR AGENCY, AS IS WITHIN THE PURVIEW OF PUBLIC LAW 49, MAY 7, 1943 ( WAR OVERTIME PAY ACT OF 1943), SHALL ELECT TO EXERCISE THE DISCRETION THEREBY VESTED IN HIM OF GRANTING TO A PER ANNUM EMPLOYEE COMPENSATORY TIME OFF FROM DUTY IN LIEU OF OVERTIME COMPENSATION FOR WORK IN EXCESS OF FORTY-EIGHT HOURS IN ANY ADMINISTRATIVE WORK-WEEK, AND SHALL FORTHWITH NOTIFY SUCH EMPLOYEE THAT SUCH ELECTION HAS BEEN MADE, THE FOLLOWING QUESTIONS HAVE BEEN FORMULATED:

UNDER WHICH, IF ANY, OF THE FOLLOWING FACTUAL SITUATIONS WOULD A LIABILITY TO PAY OVERTIME COMPENSATION IN MONEY RESULT:

(1) THE COMPENSATORY TIME OFF IS NOT UTILIZED WITHIN NINETY DAYS AFTER ELECTION TO GRANT IT, IRRESPECTIVE OF THE REASON THEREFOR.

(2) THE EMPLOYEE DECLINES TO ACCEPT COMPENSATORY TIME OFF.

(3) THE EMPLOYMENT IS TERMINATED BY AN EMPLOYEE'S VOLUNTARY RESIGNATION BEFORE COMPENSATORY TIME OFF IS UTILIZED.

(4) THE EMPLOYEE IS TRANSFERRED TO A DIFFERENT GOVERNMENTAL AGENCY BEFORE HAVING AN OPPORTUNITY TO UTILIZE COMPENSATORY TIME OFF.

(5) THE EMPLOYEE IS INDUCTED INTO THE ARMED FORCES UNDER SUCH CONDITIONS THAT IT IS NOT POSSIBLE TO UTILIZE THE COMPENSATORY TIME OFF.

(6) THE EMPLOYMENT IS TERMINATED WITHOUT THE EMPLOYEE'S CONSENT.

IF YOU SHALL FEEL THE SITUATION PERMITS OF YOUR DOING SO, I WILL BE PLEASED TO HAVE THE BENEFIT OF YOUR ANSWERS TO THESE QUESTIONS AT YOUR CONVENIENCE.

SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, 57 STAT. 76, PUBLIC LAW 49, CONTAINS THE FOLLOWING PROVISO:

* * * AND PROVIDED FURTHER, THAT IN LIEU OVERTIME COMPENSATION FOR WORK IN EXCESS OF FORTY-EIGHT HOURS IN ANY ADMINISTRATIVE WORKWEEK, THE HEADS OF DEPARTMENTS, ESTABLISHMENTS, AND AGENCIES MAY IN THEIR DISCRETION GRANT PER ANNUM EMPLOYEES COMPENSATORY TIME OFF FROM DUTY.

PURSUANT TO THAT STATUTORY PROVISION, THE DISCRETION TO SUBSTITUTE COMPENSATORY TIME OFF FROM DUTY FOR OVERTIME COMPENSATION FOR SERVICE IN EXCESS OF 48 HOURS PER WEEK IN ANY ADMINISTRATIVE WORKWEEK, CLEARLY IS VESTED IN THE ADMINISTRATIVE OFFICE, RATHER THAN IN THE EMPLOYEE. COMPARE 22 COMP. GEN. 745, 807. COMPENSATORY TIME OFF FROM DUTY IS NOT TO BE REGARDED AS ADDITIONAL LEAVE OF ABSENCE WHICH MUST BE APPLIED FOR BY AN EMPLOYEE. ON THE CONTRARY, WHEN THE ADDITIONAL TIME IS SERVED, THE ADMINISTRATIVE OFFICE HAS THE DUTY AND RESPONSIBILITY UNDER THE REGULATIONS QUOTED IN YOUR LETTER, OF EXCUSING THE EMPLOYEE FROM DUTY, WITHIN 90 DAYS FROM THE TIME THE EXCESS OVERTIME WAS WORKED, FOR A PERIOD CORRESPONDING TO THE EXCESS OVERTIME WORKED. IF AN ADMINISTRATIVE OFFICE, THROUGH ITS OWN FAULT OR NEGLECT OR FOR ITS OWN CONVENIENCE, FAILS TO GRANT THE COMPENSATORY TIME BY THE END OF THE 90 DAY PERIOD--- REGARDLESS OF WHETHER THE EMPLOYEE HAS REQUESTED IT--- THE EMPLOYEE BECOMES ENTITLED TO PAYMENT OF OVERTIME COMPENSATION FOR SUCH EXCESS OVERTIME. QUESTION (1) IS ANSWERED ACCORDINGLY.

REFERRING TO QUESTIONS (2) TO (6), INCLUSIVE, THE PRIMARY RIGHT UNDER SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943, AND THE QUOTED REGULATION, IS TO BE PAID ADDITIONAL COMPENSATION ON THE BASIS OF AN OVERTIME FORMULA FOR ALL WORK IN EXCESS OF 40 HOURS PER WEEK WITH ONLY AN OPTION IN THE HEAD OF THE DEPARTMENT, ESTABLISHMENT OR AGENCY CONCERNED--- TO BE EXERCISED WITHIN A PERIOD OF 90 DAYS--- TO GRANT COMPENSATORY TIME OFF FROM DUTY IN LIEU OF PAYING THE ADDITIONAL COMPENSATION ON THE BASIS OF THE OVERTIME FORMULA FOR WORK IN EXCESS OF 48 HOURS PER WEEK. OF COURSE, IF THE HEAD OF A DEPARTMENT, ESTABLISHMENT, OR AGENCY CONCERNED BE PREVENTED FROM FULLY EXERCISING THE OPTION TO GRANT COMPENSATORY TIME OFF FROM DUTY WITHIN THE 90-DAY PERIOD AS A RESULT OF ANY FAULT OR VOLUNTARY ACTION ON THE PART OF THE EMPLOYEE, IT WOULD FOLLOW THAT THE EMPLOYEE WOULD NOT BE ENTITLED TO THE ADDITIONAL COMPENSATION FOR THE OVERTIME IN EXCESS OF 48 HOURS PER WEEK. BUT IN ANY OTHER CASE OF FAILURE TO GRANT THE COMPENSATORY TIME WITHIN THE 90-DAY PERIOD--- THAT IS, NOT INVOLVING ANY FAULT OR VOLUNTARY ACTION ON THE PART OF THE EMPLOYEE--- THE OVERTIME COMPENSATION SHOULD BE PAID.

ACCORDINGLY, LIABILITY TO PAY OVERTIME COMPENSATION WOULD NOT RESULT UNDER THE STATE OF FACTS PRESENTED IN QUESTIONS (2) AND (3), AND NEITHER WOULD THERE BE LIABILITY UNDER THE FACTS STATED IN QUESTION (4) IF THE TRANSFER RESULTED FROM THE REQUEST OF THE EMPLOYEE, BUT THERE WOULD BE LIABILITY TO PAY OVERTIME COMPENSATION IN THE CASE OF AN INVOLUNTARY TRANSFER PURSUANT TO WAR MANPOWER DIRECTIVES. ALSO, LIABILITY WOULD RESULT UNDER THE STATE OF FACTS PRESENTED IN QUESTIONS (5) AND (6).