B-75819, JANUARY 3, 1949, 28 COMP. GEN. 397

B-75819, JANUARY 3, 1949, 28 COMP. GEN. 397

COMPENSATION - NIGHT DIFFERENTIAL - STANDARD V. DAYLIGHT SAVING TIME THE PROVISIONS OF SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AUTHORIZING THE PAYMENT OF NIGHT DIFFERENTIAL FOR WORK PERFORMED BETWEEN THE HOURS OF 6 P.M. AND 6 A.M., MUST BE REGARDED, IN CONSONANCE WITH THE ACT OF MARCH 19, 1918, AS RELATING TO STANDARD TIME RATHER THAN TO DAYLIGHT SAVING TIME, OF THE PARTICULAR TIME ZONE INVOLVED; HOWEVER, THE RULE TO THE CONTRARY STATED IN 26 COMP. GEN. 921 WILL BE FOLLOWED IN THE AUDIT AND SETTLEMENT OF ACCOUNTS UP TO THE END OF ANY CURRENT PERIOD DURING WHICH DAYLIGHT SAVING TIME IS IN EFFECT. SEE 27 COMP. GEN. 148.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, JANUARY 3, 1949:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 26, 1948, AS FOLLOWS:

THE FOLLOWING QUOTATIONS ARE TAKEN FROM CHAPTER 1, STATUTES OF 1948, CALIFORNIA LEGISLATURE--- 1948 REGULAR SESSION, ASSEMBLY BILL NO. 4:

"SEC. 2. THE STANDARD TIME WITHIN THE STATE, EXCEPT AS HEREINAFTER PROVIDED, SHALL BE * * * THE STANDARD OFFICIAL TIME * * * DESIGNATED BY ACT OF CONGRESS AS " UNITED STATES STANDARD PACIFIC TIME.'

"SEC. 3. AT 2:01 O-CLOCK ANTEMERIDIAN OF THE FOURTEENTH DAY OF MARCH OF THE YEAR 1948, THE STANDARD TIME IN THIS STATE SHALL BE ADVANCED ONE HOUR AND THE STANDARD TIME IN THIS STATE SO ESTABLISHED SHALL BE DESIGNATED AS CALIFORNIA DAYLIGHT SAVING TIME. AT 2 O-CLOCK ANTEMERIDIAN OF THE SIXTEENTH DAY OF JANUARY OF THE YEAR 1949, OR AT SUCH HOUR AND DAY PRIOR THERETO AS SHALL BE FIXED BY THE GOVERNOR * * * THE STANDARD TIME IN THIS STATE SHALL, BY THE RETARDING OF ONE HOUR, BE MADE TO COINCIDE WITH * * * " UNITED STATES STANDARD PACIFIC TIME.'"

THE WEATHER BUREAU OF THIS DEPARTMENT MAINTAINS MULTIPLE SHIFT OPERATIONS IN THE STATE OF CALIFORNIA WHICH INVOLVES THE PAYMENT OF EXTRA COMPENSATION FOR HOLIDAY, OVERTIME AND NIGHT DIFFERENTIAL HOURS. IN VIEW OF THE RULING SET FORTH IN DECISION B-68562 DATED SEPTEMBER 2, 1947 (27 C.G. 148), OUR CALIFORNIA WEATHER STATIONS ARE MAINTAINING TIME AND ATTENDANCE REPORTS ON THE BASIS OF STANDARD PACIFIC TIME AND PAYMENTS FOR PREMIUM PAY HOURS ARE MADE ON THE SAME BASIS. SINCE THIS RESULTS IN SOME CONFUSION AND IN VIEW OF YOUR RULING IN DECISION B 66366, DATED JUNE 12, 1947, (26 C.G. 921) THE FOLLOWING QUESTIONS ARE REFERRED TO YOU FOR DECISION:

"1. WHERE DAYLIGHT SAVING TIME IS IN EFFECT MAY STANDARD FORM 1130 ( TIME AND ATTENDANCE REPORT) BE MAINTAINED ON THE BASIS OF SUCH TIME?

"2. MAY COMPUTATION OF EXTRA COMPENSATION FOR PREMIUM PAY HOURS BE MADE ON THE BASIS OF DAYLIGHT SAVING TIME?

IN CASES WHERE A STATUTE SPECIFIES THE TIME OF PERFORMANCE OF ANY ACT BY ANY OFFICER OR DEPARTMENT OF THE UNITED STATES, OR THE TIME WITHIN WHICH ANY ACT SHALL OR SHALL NOT BE PERFORMED BY ANY PERSON SUBJECT TO THE JURISDICTION OF THE UNITED STATES, OR SPECIFIES A TIME WITHIN WHICH ANY RIGHT SHALL ACCRUE, THE ACT OF MARCH 19, 1918, 40 STAT. 450, 15 U.S.C. 261, PROVIDES THAT SUCH TIME SHALL BE DETERMINED BY THE UNITED STATES STANDARD TIME OF THE ZONE IN WHICH THE ACT IS TO BE PERFORMED. THE DECISION OF SEPTEMBER 2, 1947, B-68562, 27 COMP. GEN. 148, CITED IN YOUR LETTER, HELD THAT THE PROVISIONS OF THE ACT OF FEBRUARY 13, 1911 (AS AMENDED BY THE ACT OF FEBRUARY 7, 1920, 41 STAT. 402), AUTHORIZING ADDITIONAL COMPENSATION FOR OVERTIME SERVICES PERFORMED BY CERTAIN CUSTOMS EMPLOYEES BETWEEN THE HOURS OF 5 P.M. AND 8 P.M. RELATE TO THE TIME WITHIN WHICH A RIGHT SHALL ACCRUE AND SUCH TIME MUST BE COMPUTED IN ACCORDANCE WITH THE STANDARD TIME OF THE ZONE INVOLVED. HOWEVER, WITH RESPECT TO THE PAYMENT OF NIGHT DIFFERENTIAL UNDER SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (59 STAT. 295, 298) FOR WORK PERFORMED BETWEEN THE HOURS 6 P.M. AND 6 A.M., THE DECISION OF JUNE 12, 1947, B-66366 (26 COMP. GEN. 921), HELD, IN EFFECT, THAT PAYMENT FOR SUCH NIGHT DIFFERENTIAL WOULD BE PROPER FOR ALL HOURS WORKED DURING THE HOURS SPECIFIED ACCORDING TO THE TIME--- STANDARD OR DAYLIGHT SAVING--- WHEN THE SERVICES ACTUALLY WERE PERFORMED.

THERE IS A POSSIBLE GROUND OF DISTINCTION BETWEEN THOSE TWO DECISIONS IN THAT A CONSIDERABLE PORTION OF THE OVERTIME SERVICES WHICH ARE COMPENSABLE UNDER THE 1911 ACT HAS A DIRECT RELATION TO THE MOVEMENT OF COMMON CARRIERS WHICH ARE REQUIRED BY LAW TO OBSERVE STANDARD TIME. MOREOVER, THE DECISION OF JUNE 12, 1947, WAS INFLUENCED GREATLY BY A RECOGNITION OF THE INCONVENIENCE AND CONFUSION WHICH NECESSARILY WOULD RESULT IF THE BUSINESS HOURS OF A DEPARTMENT OR AGENCY WERE FIXED ON A DAYLIGHT SAVING TIME BASIS BUT THE OVERTIME OR PREMIUM PAY OF ITS EMPLOYEES WERE REQUIRED TO BE COMPUTED UPON A STANDARD TIME BASIS.

I HAVE GIVEN THIS MATTER THOROUGH AND SYMPATHETIC STUDY WITH A FULL APPRECIATION OF THE ADMINISTRATIVE PROBLEMS INVOLVED. NEVERTHELESS, I AM CONVINCED THERE IS NO ALTERNATIVE BUT TO CONCLUDE THAT THE PAYMENT OF NIGHT DIFFERENTIAL UNDER THE CIRCUMSTANCES CONSIDERED IN THE DECISION OF JUNE 12, 1947, 26 COMP. GEN. 921, MUST BE IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MARCH 19, 1918. IN OTHER WORDS, THE SPECIFIC HOURS FOR WHICH A NIGHT DIFFERENTIAL IS PAYABLE UNDER THE STATUTE THERE INVOLVED MUST BE REGARDED AS RELATING TO STANDARD TIME. THIS CONCLUSION FOLLOWS, OF COURSE, THAT REACHED IN THE DECISION OF SEPTEMBER 2, 1947, 27 COMP. GEN. 148. CF. 18 COMP. GEN. 492.

IN VIEW OF THE CONCLUSION IN THE DECISION 26 COMP. GEN. 921, AND THE CONFUSION AND DIFFICULTY WHICH WOULD BE ENCOUNTERED BY REQUIRING A CHANGE AT THIS TIME, THIS OFFICE, IN THE AUDIT AND SETTLEMENT OF ACCOUNTS, WILL CONTINUE TO APPLY THE RULE THEREIN STATED TO THE END OF ANY CURRENT PERIOD DURING WHICH DAYLIGHT SAVING TIME IS IN EFFECT BUT, IN THE ABSENCE OF A CHANGE IN EXISTING LAW, THE RULE ANNOUNCED HEREIN WILL BE APPLIED DURING ALL PERIODS OF DAYLIGHT SAVING TIME BEGINNING HEREAFTER.

THE PRIMARY PURPOSE OF STANDARD FORM 1130 ( TIME AND ATTENDANCE REPORT) IS TO SERVE AS A CONVENIENT VEHICLE FOR RECORDING THE ACTUAL HOURS OF DUTY OF THE EMPLOYEES OF A DEPARTMENT. OF COURSE, WHERE SUCH FORM IS MAINTAINED ON THE BASIS OF OTHER THAN STANDARD TIME AN APPROPRIATE NOTATION TO THAT EFFECT SHOULD APPEAR THEREON. BUT, ORDINARILY, THERE IS PERCEIVED NO OBJECTION TO THE MAINTENANCE OF SUCH FORM ON A DAYLIGHT SAVING TIME BASIS IF TO DO SO BETTER SUITS THE CONVENIENCE OF THE DEPARTMENT CONCERNED. IT WOULD SEEM THAT IN THE CASE OF WEATHER STATIONS IN CALIFORNIA, REFERRED TO IN YOUR LETTER, CONTINUED MAINTENANCE OF SUCH REPORTS ON THE BASIS OF STANDARD PACIFIC TIME WILL SERVE TO LESSEN CONFUSION, IN VIEW OF THE CONCLUSION STATED ABOVE WITH RESPECT TO THE BASIS REQUIRED FOR THE COMPUTATION OF PREMIUM PAY.