B-72073, APRIL 9, 1948, 27 COMP. GEN. 613

B-72073, APRIL 9, 1948, 27 COMP. GEN. 613

COMPENSATION FOR NON-WORKDAYS WHILE IN TRAVEL STATUS - WAGE BOARD AND PER ANNUM EMPLOYEES UNLESS PREDICATED UPON THE PRACTICE PREVAILING IN PRIVATE INDUSTRY, ARMY CIVILIAN PERSONNEL REGULATIONS ARE INEFFECTIVE TO AUTHORIZE PAYMENT OF COMPENSATION TO PER DIEM EMPLOYEES WHOSE WAGES ARE FIXED BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES PURSUANT TO THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, FOR NON-WORKDAYS WHILE IN A TRAVEL STATUS AT A TEMPORARY DUTY STATION WHEN NO WORK OR TRAVEL IS PERFORMED. ARMY DEPARTMENT PER DIEM EMPLOYEES SUBJECT TO THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, WHOSE WAGES ARE FIXED BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES WOULD BE ENTITLED, UPON THE PROMULGATION OF OTHERWISE PROPER ADMINISTRATIVE REGULATIONS, TO OVERTIME COMPENSATION FOR TRAVEL TIME ON NON-WORKDAYS WHICH, WHEN ADDED IN AN AMOUNT EQUAL TO A NORMAL WORKDAY TO THE TIME WORKED EITHER AT THEIR OFFICIAL STATIONS OR WHILE TRAVELING, EXCEEDS 40 HOURS PER WEEK, AND THE DECISIONS OF THIS OFFICE PRESCRIBING STRAIGHT-TIME COMPENSATION FOR SUCH TRAVEL TIME NO LONGER WILL BE CONTROLLING. THE OVERTIME COMPENSATION AUTHORIZED FOR PER ANNUM EMPLOYEES BY THE PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR ALL HOURS OF EMPLOYMENT IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK WAS NOT INTENDED TO INCLUDE TRAVEL OUTSIDE THE BASIC WORKWEEK OR THE REGULARLY ORDERED OVERTIME HOURS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, APRIL 9, 1948:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20, 1948, ENCLOSING A COPY OF A LETTER DATED FEBRUARY 4, 1948, FROM THE DIRECTOR OF CIVILIAN PERSONNEL OF YOUR DEPARTMENT, WRITTEN IN REPLY TO OFFICE LETTER OF JANUARY 6, 1948, WHICH REQUESTED INFORMATION RELATIVE TO THE APPLICATION OF DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATION 80.3-8B (3), DATED OCTOBER 6, 1944, TO THE PAYMENT OF COMPENSATION TO EMPLOYEES SUBJECT TO THE ACT OF MARCH 28, 1934, 48 STAT. 509, FOR NON WORKDAYS ON WHICH THEY WERE IN A TRAVEL STATUS BUT DID NOT ACTUALLY TRAVEL OR PERFORM ANY SERVICES. IN YOUR LETTER YOU REQUEST A DECISION REVIEWING AND CLARIFYING THE RULES RESPECTING THE PAYMENT OF TRAVEL TIME TO GOVERNMENT EMPLOYEES FOR THE STATED REASON THAT RULINGS BY THE COURTS UNDER PARALLEL LANGUAGE OF THE FAIR LABOR STANDARDS ACT OF 1938 HAVE NOT BEEN EVALUATED IN CONNECTION WITH INTERPRETING FEDERAL PAY STATUTES.

CIVILIAN PERSONNEL REGULATION 80.3-8B (3), APPLICABLE TO EMPLOYEES SUBJECT TO THE ACT OF MARCH 28, 1934, PROVIDES AS FOLLOWS:

TIME IN A TRAVEL STATUS ON NON-WORK DAYS WILL PROVIDE A BASIS FOR PAYMENT OF COMPENSATION AT STRAIGHT-TIME RATES FOR SO MUCH OF THE PERIOD AS IS NOT IN EXCESS OF THE NUMBER OF HOURS SCHEDULED FOR REGULAR WORK DAYS. HOWEVER, NO PART OF SUCH TRAVEL TIME WILL COUNT TOWARD COMPLETION OF THE REGULARLY SCHEDULED 40-HOUR WEEKLY TOUR.

THE LETTER FROM THE DIRECTOR OF CIVILIAN PERSONNEL, REFERRED TO IN YOUR LETTER REPORTING UPON THE ABOVE-QUOTED REGULATION, STATES IN PERTINENT PART AS FOLLOWS:

SO FAR AS CAN BE DETERMINED FROM A SURVEY OF CORRESPONDENCE FILES IN THIS OFFICE, THE DEPARTMENT HAS NOT BEEN CALLED UPON TO INTERPRET THE ABOVE- CITED REGULATION ON AS BROAD A BASIS AS IS PRESENTED IN YOUR LETTER. INSTANCES HAVE ARISEN WHERE THE REGULATION HAS BEEN APPLIED TO PERMIT PAYMENT OF SALARY FOR ACTUAL TRAVEL OR PRODUCTIVE WORK. IN EACH SUCH CASE, HOWEVER, THERE WERE INVOLVED ADDITIONAL FACTS WHICH BROUGHT SUCH NON -WORK PERIODS WITHIN THE CONCEPT OF ,INCIDENTAL WAITING TIME" AND COMPENSABLE UNDER SETTLED DECISIONS, SUCH AS 22 COMP. GEN. 636.

FOR THIS REASON, YOUR LETTER REQUIRES THAT THE QUESTION BE CONSIDERED FOR THE FIRST TIME IN ITS BROADER ASPECT. AFTER CAREFUL CONSIDERATION OF DECISIONS PERTINENT TO THE QUESTION, YOU ARE ADVISED THAT THE DEPARTMENT WOULD, IN THE ABSENCE OF CONTRARY ADVICE FROM YOUR OFFICE, INTERPRET THE REGULATION IN QUESTION AS AUTHORIZING PAYMENT OF STRAIGHT-TIME SALARY TO PERSONS IN OFFICIAL TRAVEL STATUS FOR NOT TO EXCEED THE NUMBER OF HOURS IN THEIR REGULAR TOUR OF DUTY FOR WORK DAYS AT THEIR HOME STATION WHETHER OR NOT ACTUAL TRAVEL OR PRODUCTIVE WORK IS PERFORMED. THIS VIEW IS BASED, NOT ON ANY PARTICULAR INDUSTRIAL PRACTICE WHICH WE HAVE OBSERVED, BUT RATHER ON THE GENERAL EFFECT OF DECISIONS OF YOUR OFFICE, ESPECIALLY 14 COMP. GEN. 907 AND LATER RULINGS WHICH AMPLIFY OR RESTRICT THE APPLICATION OF THAT DECISION. IT SHOULD BE UNDERSTOOD, OF COURSE, THAT THIS VIEW WOULD HOLD ONLY WHERE THE STAY AT THE TEMPORARY DUTY STATION WAS REQUIRED BY COMPETENT ORDERS AND NOT DICTATED BY THE EMPLOYEE'S PREFERENCE OR CONVENIENCE.

AS YOU KNOW, MANY OF THE DECISIONS INVOLVING COMPENSATION FOR PERIODS OF TRAVEL TIME DRAW A DISTINCTION BETWEEN PERSONNEL SUBJECT TO THE FORTY HOUR LAW OF 1934 (SECTION 23 OF THE ACT OF 28 MARCH 1934 (48 STAT. 522) ( AND THOSE COVERED BY OTHER HOURS AND OVERTIME STATUTES. EARLIER DECISIONS ON THIS POINT TURNED ON A DISTINCTION BETWEEN THE WORDS "LABOR," "EMPLOYMENT," "DUTY STATION," AND "WORK" AS USED IN THOSE LAWS. THIS GROUND APPEARS TO HAVE BEEN MINIMIZED, IF NOT ABANDONED, BY SUCH DECISIONS AS THAT IN 24 COMP. GEN. 456 WHEREIN IT IS HELD THAT THE CHOICE OF TERMS IN THE GOVERNING STATUTE MAY NOT BE REGARDED AS JUSTIFYING PAYMENT OF SALARY OR WAGES FOR TRAVEL TIME IN EXCESS OF WHAT THE EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED AT HIS HOME STATION AND PERFORMED ACTUAL WORK. IN ADDITION TO THIS LATTER DEVELOPMENT, A NEW STANDARD APPEARS TO HAVE BEEN ESTABLISHED IN 25 COMP. GEN. 121 (QUESTION 8 AND ANSWER THERETO) BASED ON WHETHER THE EMPLOYEE'S SALARY IS FIXED ON A PER DIEM OR PER ANNUM BASIS. IF THIS CRITERION IS TO GOVERN THE QUESTION, THEN IT APPEARS CLEAR THAT THE CLAIMS REFERRED TO IN YOUR LETTER SHOULD BE ALLOWED UNDER THE PRECEDENT ESTABLISHED BY 24 COMP. GEN. 11. IN THAT DECISION A VOUCHER PROPOSING PAYMENT OF SALARY FOR AT LEAST ONE NON-WORK DAY ( SUNDAY, 27 FEBRUARY 1944) TO A PER DIEM EMPLOYEE WHO PERFORMED NEITHER WORK NOR TRAVEL ON THAT DAY WAS APPROVED FOR CERTIFICATION.

AS PREVIOUSLY STATED, INDUSTRIAL PRACTICE HAS NOT BEEN USED TO GOVERN THIS QUESTION, PRIMARILY BECAUSE OF THE EXTENT TO WHICH DECISIONS OF YOUR OFFICE HAVE UNDERTAKEN TO DECIDE THE MATTER ON THE BASIS OF FEDERAL STATUTE. IN ORDER TO REPLY TO YOUR INQUIRY, HOWEVER, AN EFFORT HAS BEEN MADE TO DETERMINE WHAT INDUSTRIAL PRACTICES ARE IN THIS AREA. NO SOURCES AVAILABLE TO THE DEPARTMENT PROVIDE AN ANSWER TO THE PRECISE PROBLEM HERE UNDER CONSIDERATION. NEITHER UNION CONTRACTS NOR RULINGS OF THE WAGES AND HOURS ADMINISTRATOR INDICATE THAT WAITING TIME OVER NON-WORK DAYS HAS BECOME AN ISSUE IN PRIVATE EMPLOYMENT. THE GENERAL QUESTION OF "TRAVEL TIME" APPEARS FREQUENTLY IN DECISIONS, RULINGS, AND CONTRACTS FORMULATED UNDER THE FAIR LABOR STANDARDS ACT, BUT IN EACH INSTANCE ACTUAL TRAVEL OR WORK HAS BEEN INVOLVED. MATTERS PERTAINING TO NON-WORK PERIODS AT THE TEMPORARY WORK SITE APPEAR NOT TO HAVE ARISEN IN PRIVATE EMPLOYMENT OR, IF THEY HAVE, THEY ARE DETERMINED THROUGH INFORMAL AGREEMENTS BETWEEN EMPLOYER AND EMPLOYEE.

THE DEPARTMENT DOES NOT NECESSARILY AGREE THAT THE ABOVE IS THE MOST DESIRABLE ANSWER TO THE QUESTION PRESENTED, PARTICULARLY IN VIEW OF THE FACT THAT A CONTRARY CONCLUSION MUST BE REACHED UNDER CONTROLLING DECISIONS INVOLVING PER ANNUM EMPLOYEES. NOR WOULD WE INSIST THAT IT IS CORRECT BEYOND DOUBT. IT MERELY APPEARS TO FOLLOW FROM THE DECISIONS CITED, ESPECIALLY IF THEY BE APPLIED IN THE LIGHT OF THE SUPREME COURT'S DECISIONS UNDER THE FAIR LABOR STANDARDS ACT TO THE EFFECT THAT TIME WHICH IS UNDER THE "CONTROL" OF THE EMPLOYER IS COMPENSABLE. IN MANY INSTANCES WHICH WOULD ARISE UNDER QUESTIONS SIMILAR TO THAT PRESENTED IN YOUR LETTER, THE EMPLOYEE'S TIME ON NON WORK DAYS MAY BE AVAILABLE TO SPEND IN PERSONAL PURSUITS AND AMUSEMENTS. BUT IT MUST BE ADMITTED THAT THIS IS NOT WHOLLY A FREE CHOICE BECAUSE THE ORDERS OF HIS EMPLOYER HAVE PLACED HIM AT A LOCATION WHICH IS DIFFERENT FROM THAT OF HIS NORMAL PERSONAL ACTIVITIES.

PRACTICES UNDER THE FAIR LABOR STANDARDS ACT DO REVEAL ONE SHARP VARIATION FROM FEDERAL PRACTICE, HOWEVER, IN THE COMPUTATION OF PAY RESULTING FROM THE INCLUSION OF TRAVEL TIME AS "TIME WORKED.' UNDER RULINGS OF THE WAGES AND HOURS ADMINISTRATOR, PERIODS OF EXTENDED TRAVEL (IN EXCESS OF A WORK DAY) INCLUDING TRAVEL ON AN OTHERWISE NON WORK DAY ARE CREDITED IN THE SAME MANNER AS IS PRESCRIBED IN YOUR DECISIONS--- IN AN AMOUNT EQUAL TO THE LENGTH OF A NORMAL WORK DAY. BUT NO DISTINCTION IS MADE AS TO WHETHER THIS TRAVEL IS TO BE COMPENSATED FOR AT STRAIGHT-TIME OR OVERTIME RATES. IT IS MERELY ADDED TO TIME WORKED EITHER AT THE HOME STATION OR WHILE IN TRAVEL STATUS AND THE TOTAL HOURS THUS CREDITED ARE PAID FOR ACCORDING TO THE FORMULA PRESCRIBED BY THE ACT, THAT IS, FORTY HOURS AT STRAIGHT TIME AND ANY ADDITIONAL HOURS AT PREMIUM RATES. IN THIS MANNER, CONTINUOUS TRAVEL ON SATURDAY OR SUNDAY IF PERFORMED IN ADDITION TO THE REGULAR FORTY-HOUR TOUR OF DUTY WOULD BE COMPENSABLE AT OVERTIME RATES UNDER THE FAIR LABOR STANDARDS ACT, AT STRAIGHT-TIME RATES UNDER THE 1934 WAGE BOARD LAW (14 COMP. GEN. 907) AND WITHOUT COMPENSATION IF THE EMPLOYEE IS PAID AN ANNUAL SALARY UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED (25 COMP. GEN. 317, QUESTION 5 AND ANSWER THERETO).

THE ABOVE DISCREPANCY IN TREATMENT CANNOT BE SAID TO STEM FROM ANY SUBSTANTIAL DIFFERENCE IN STATUTORY LANGUAGE SINCE THE SAME TERM IS USED IN THE TWO STANDARDS ACT PRESCRIBES OVERTIME RATES AT TIME AND ONE HALF "FOR * * * EMPLOYMENT IN EXCESS OF (FORTY HOURS PER WEEK) * * *" WHILE THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, ESTABLISHES A POLICY OF OVERTIME PAY "FOR ALL HOURS OF EMPLOYMENT, OFFICIALLY ORDERED OR APPROVED, IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORK WEEK.' NOR DOES IT APPEAR PROPER TO DRAW LANGUAGE SUBSTANTIALLY SIMILAR TO THAT OF THE FEDERAL EMPLOYEES PAY ACT, AS ABOVE NOTED, THE SUPREME COURT OF THE UNITED STATES HAS HELD THAT EMPLOYMENT ON A WEEKLY SALARY BASIS, AS CONTRACTED WITH MORE USUAL HOURLY WAGE RATE, DOES NOT JUSTIFY A DIFFERENCE IN OVERTIME PAY PRACTICES UNDER THE FAIR LABOR STANDARDS ACT. OVERNIGHT MOTOR TRANSPORTATION CO. V. MISSEL, 316 U.S. 572. THAT COURT HAS ALSO APPLIED THE SAME GENERAL PRINCIPLE IN TOWNSLEY V. U.S., 323 U.S. 557, WITH RESPECT TO OVERTIME IN CONSTRUING THE PROVISIONS OF THE FORTY HOUR LAW OF 1934.

IT HAS BEEN RECOGNIZED THAT THE WAGE STRUCTURE OF PER DIEM EMPLOYEES OF THE DEPARTMENT OF THE ARMY SUBJECT TO THE ACT OF MARCH 28, 1934, WHOSE WAGES ARE FIXED BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES IS PREDICATED UPON THE WAGE RATES PREVAILING FOR SIMILAR KINDS OF EMPLOYMENT IN THE SAME LOCALITY, WITH THE RESULT THAT MANY OF THE WAGE PRACTICES IN PRIVATE INDUSTRY HAVE BEEN ADOPTED FOR THAT CLASS OF EMPLOYEES. IN VIEW OF THE VARIANCE BETWEEN THE POLICY RESPECTING THE PAYMENT FOR TRAVEL TIME IN PRIVATE INDUSTRY UNDER THE FAIR LABOR STANDARDS ACT OF 1938, 52 STAT. 1060, AS REFLECTED IN THE LETTER OF THE DIRECTOR OF CIVILIAN PERSONNEL, QUOTED ABOVE, AND THE PRACTICE WITH RESPECT TO GOVERNMENT EMPLOYEES UNDER STATUTES AS APPLIED IN RULINGS OF THIS OFFICE, A RECONSIDERATION OF THE MATTER OF PAYMENT OF COMPENSATION FOR TRAVEL TIME APPEARS WARRANTED.

THE METHODS AND BASIS FOR THE PAYMENT OF TRAVEL TIME TO GOVERNMENT EMPLOYEES AS SET FORTH IN RULINGS OF THIS OFFICE ARE FULLY DESCRIBED IN THE LETTER FROM THE DIRECTOR OF CIVILIAN PERSONNEL AND NEED NOT, THEREFORE, BE RESTATED HERE. HOWEVER, IT IS FOR NOTING THAT THOSE DECISIONS IN RESPECT OF THE COMPENSATION PAYABLE TO EMPLOYEES SUBJECT TO THE ACT OF MARCH 28, 1934 ("WAGE BOARD" EMPLOYEES), WHILE IN A TRAVEL STATUS, HAVE INVOLVED ACTUAL TRAVEL OR INCIDENTAL WAITING TIME AS DISTINGUISHED FOR A MERE TRAVEL STATUS ON NON-WORKDAYS WHEN NO TRAVEL OR WORK IS PERFORMED. THE DECISION OF JUNE 17, 1944, 24 COMP. GEN. 11, AUTHORIZING THE PAYMENT OF STRAIGHT-TIME COMPENSATION TO AN EMPLOYEE IN A TRAVEL STATUS ON NON-WORKDAYS WHEN NO WORK OR TRAVEL WAS PERFORMED INVOLVED THE BASIC AND OVERTIME COMPENSATION PAYABLE UNDER THE WAR OVERTIME PAY ACT OF 1943, 57 STAT. 75, TO AN EMPLOYEE APPOINTED ON A "WHEN ACTUALLY EMPLOYED" BASIS AND WAS NOT INTENDED TO BE APPLICABLE TO EMPLOYEES SUBJECT TO THE ACT OF MARCH 28, 1934. OF COURSE, THAT DECISION WAS NOT CONTROLLING AFTER EXPIRATION OF THE WAR OVERTIME PAY ACT OF 1943, AND WAS, IN FACT, NULLIFIED BY THE RULING IN 25 COMP. GEN. 121, AT PAGE 130, QUESTION 9 AND ANSWER THERETO.

WHILE NOT EXPRESSLY STATED IN THE SAID DECISIONS DEALING WITH THE PAYMENT OF TRAVEL TIME TO ,WAGE BOARD" EMPLOYEES IT IS THE VIEW OF THIS OFFICE THAT AN EMPLOYEE IN A TRAVEL STATUS AT A TEMPORARY DUTY STATION WHEN HE PERFORMS NO WORK OR TRAVEL IS IN A DIFFERENT CATEGORY FROM THAT OF AN EMPLOYEE WHO DOES PERFORM TRAVEL OR WORK ON THOSE DAYS. THE EMPLOYEE IN THE FORMER CASE IS FREE TO ENGAGE IN PERSONAL ACTIVITIES WITHOUT ANY INTERFERENCE FROM HIS EMPLOYER IN MUCH THE SAME MANNER AS THOUGH HE WERE AT HIS OFFICIAL STATION, WHEREAS THE EMPLOYEE IN THE LATTER CASE IS NOT SO SITUATED. HENCE, IT HAS BEEN CONCLUDED THAT CIVILIAN PERSONAL REGULATION 80.3-8B (B), IN THE ABSENCE OF ANY INDICATION THAT SAME WAS PREDICATED UPON THE PRACTICE IN PRIVATE INDUSTRY, IS INEFFECTIVE TO AUTHORIZE COMPENSATION TO AN EMPLOYEE IN A TRAVEL STATUS ON NON-WORKDAYS WHEN NO TRAVEL OR WORK IS PERFORMED AND CLAIMS OF EMPLOYEES OF YOUR DEPARTMENT FOR COMPENSATION UNDER SIMILAR CIRCUMSTANCES HAVE BEEN OR WILL BE DISALLOWED ACCORDINGLY.

THE COMPENSATION HERETOFORE PAYABLE TO PER DIEM "WAGE BOARD" EMPLOYEES FOR TRAVEL TIME HAS BEEN AUTHORIZED UPON A STRAIGHT-TIME BASIS PRIMARILY BECAUSE IT WAS NOT CONSIDERED THAT AN EMPLOYEE PERFORMING TRAVEL AFTER COMPLETION OF A 40-HOUR WORKWEEK WAS ENGAGED IN LABOR TO THE EXTENT OF BEING ENTITLED TO OVERTIME COMPENSATION THEREFOR UNDER THE ACT OF MARCH 28, 1934. HOWEVER, IN THE LIGHT OF THE PRACTICE NOW PREVAILING UNDER THE FAIR LABOR STANDARDS ACT OF 1938, AS SET FORTH IN THE LETTER OF THE DIRECTOR OF CIVILIAN PERSONNEL, SUPRA, INDICATING THAT TRAVEL TIME IN AN AMOUNT EQUAL TO THE LENGTH OF THE NORMAL WORKDAY IS ADDED TO TIME WORKED EITHER AT THE HOME STATION OF AN EMPLOYEE OR WHILE TRAVELING AND THAT ANY HOURS IN EXCESS OF 40 PER WEEK ARE COMPENSATED FOR AT PREMIUM RATES, NO COGENT REASON APPEARS WHY THE SAME PRACTICE MAY NOT BE ADOPTED BY YOUR DEPARTMENT. ACCORDINGLY, UPON THE PROMULGATION OF OTHERWISE PROPER ADMINISTRATIVE REGULATIONS AUTHORIZING OVERTIME COMPENSATION TO "WAGE BOARD" EMPLOYEES FOR TRAVEL TIME IN EXCESS OF 40 HOURS PER WEEK TO THE EXTENT INDICATED ABOVE, THE DECISIONS OF THIS OFFICE PRESCRIBING STRAIGHT- TIME COMPENSATION FOR SUCH TRAVEL WILL NO LONGER BE CONTROLLING.

REFERRING TO ADDITIONAL COMPENSATION FOR TRAVEL TIME FOR PER ANNUM EMPLOYEES UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, IT WAS HELD IN THE DECISION OF JULY 28, 1945, 25 COMP. GEN. 121, PAGES 129 130, THAT SUCH EMPLOYEES WERE NOT ENTITLED TO ADDITIONAL COMPENSATION FOR TRAVEL ON NON-WORKDAYS SINCE " IT IS NOT BELIEVED THAT THE CONGRESS INTENDED THE NEW PAY STATUTE TO BE SO ADMINISTERED AS TO CAUSE THE STATUTORY LIMITATION UPON THE ANNUAL BASIC SALARY RATE, PLUS REGULAR OVERTIME COMPENSATION DURING THE WEEK, TO BE EXCEEDED BY AUTHORIZING PAYMENT OF ANY ADDITIONAL COMPENSATION SOLELY BECAUSE OF OFFICIAL TRAVEL OUTSIDE OF THE BASIC WORKWEEK PLUS THE PERIOD OF REGULARLY ORDERED OVERTIME.'

WHILE THE MAJOR PAY DIFFERENCES EXISTING BETWEEN PER DIEM AND PER ANNUM EMPLOYEES HAVE BEEN ELIMINATED BY THE FEDERAL EMPLOYEES PAY ACTS OF 1945, 59 STAT. 295, AND 1946, 60 STAT. 216--- SUCH STATUTES INDICATING A LEGISLATIVE POLICY THAT THOSE CLASSES OF EMPLOYEES BE CONSIDERED UPON THE SAME PLANE--- THE FACT REMAINS THAT IN ALL INSTANCES THE BENEFITS EXTENDED TO PER ANNUM EMPLOYEES HAVE BEEN SPECIFICALLY AUTHORIZED BY THE CONGRESS. THAT HAS NOT BEEN THE RULE WITH RESPECT TO "WAGE BOARD" EMPLOYEES, THERE HAVING BEEN RECOGNIZED THE GENERAL AUTHORITY OF WAGE BOARDS OR OTHER WAGE- FIXING AUTHORITIES TO GRANT PAY BENEFITS TO THIS CLASS OF EMPLOYEES SUCH AS NIGHT DIFFERENTIAL, PREMIUM PAY FOR HOLIDAY WORK, ETC., TO ACCORD WITH THE PREVAILING PRACTICE IN PRIVATE INDUSTRY WITHOUT ANY SPECIFIC STATUTORY AUTHORITY IN THAT RESPECT.

THE COURT CASES CITED IN THE LAST PARAGRAPH OF THE LETTER FROM THE DIRECTOR OF CIVILIAN PERSONNEL INVOLVE QUESTIONS AS TO WHETHER EMPLOYEES RECEIVING COMPENSATION ON A WEEKLY OR MONTHLY BASIS BUT OTHERWISE SUBJECT TO THE ACT OF MARCH 28, 1934, OR THE FAIR LABOR STANDARDS ACT OF 1938, ARE ENTITLED TO OVERTIME COMPENSATION UPON THE SAME BASIS AS PER DIEM OR HOURLY EMPLOYEES; CONSEQUENTLY SAID DECISIONS DO NOT CONSTITUTE PRECEDENTS FOR THE PAYMENT OF OVERTIME COMPENSATION TO PER ANNUM EMPLOYEES FOR TRAVEL TIME UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, FOR TRAVEL PERFORMED ON NON-WORKDAYS.

HENCE, THIS OFFICE IS STILL OF THE VIEW THAT THE OVERTIME COMPENSATION AUTHORIZED TO PER ANNUM EMPLOYEES BY THE FEDERAL EMPLOYEES PAY ACT OF 1945, WAS NOT INTENDED TO INCLUDED TRAVEL OUTSIDE THE BASIC WORKWEEK AND THE REGULARLY ORDERED OVERTIME HOURS.