B-93559, MAY 24, 1950, 29 COMP. GEN. 476

B-93559, MAY 24, 1950, 29 COMP. GEN. 476

COMPENSATION - NIGHT DIFFERENTIAL; OVERTIME; SUNDAYS AND HOLIDAYS - STANDARD V. DAYLIGHT SAVING TIME SERVICES PERFORMED ON SUNDAYS OR HOLIDAYS FOR WHICH EXTRA COMPENSATION IS AUTHORIZED BY LAW MAY BE REGARDED AS "SERVICES BETWEEN OR AFTER CERTAIN SPECIFIED HOURS OF THE DAY OR NIGHT" WITHIN THE MEANING OF THAT TERM AS USED IN THE ACT OF SEPTEMBER 7, 1949, AND THE PROVISION IN THE ACT RESPECTING THE TIME--- DAYLIGHT SAVING OR STANDARD -- OBSERVED WHERE SUCH SERVICES ARE PERFORMED MAY BE CONSIDERED AS CONTEMPLATING THE TIME OBSERVED IN THAT AREA, SO THAT THE EXTRA COMPENSATION TO WHICH AN EMPLOYEE IS ENTITLED FOR SERVICES PERFORMED BETWEEN OR AFTER CERTAIN SPECIFIED HOURS, OR ON SUNDAYS OR HOLIDAYS, SHOULD BE COMPUTED ON THE BASIS OF WHICHEVER TIME IS OBSERVED AT THE PLACE WHERE THE WORK WAS PERFORMED.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, MAY 24, 1950:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 6, 1950, ENCLOSING A COPY OF AN OPINION DATED DECEMBER 30, 1949, FROM THE ACTING GENERAL COUNSEL OF THE IMMIGRATION AND NATURALIZATION SERVICE, RELATIVE TO THE APPLICATION OF THE ACT OF SEPTEMBER 7, 1949, PUBLIC LAW 288, 63 STAT. 690, IN COMPUTING ADDITIONAL COMPENSATION PAYABLE (1) FOR SERVICES PERFORMED ON SUNDAYS AND HOLIDAYS, AND (2) FOR DUTIES PERFORMED BETWEEN OR AFTER SPECIFIED HOURS AT PLACES OF OPERATIONS OR INSTALLATIONS WHERE THE TIME OBSERVED IS DIFFERENT FROM THAT OBSERVED BY LOCAL LAW, CUSTOM, OR PRACTICE IN THE SURROUNDING AREA.

SECTION 2 OF THE SAID ACT OF SEPTEMBER 7, 1949, 63 STAT. 690, PROVIDES:

SEC. 2. WHENEVER ANY OFFICER OR EMPLOYEE OF THE UNITED STATES GOVERNMENT OR OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA IS ENTITLED TO EXTRA COMPENSATION ON ACCOUNT OF SERVICES PERFORMED BETWEEN OR AFTER CERTAIN SPECIFIED HOURS OF THE DAY OR NIGHT, SUCH EXTRA COMPENSATION SHALL BE COMPUTED ON THE BASIS OF EITHER STANDARD OR DAYLIGHT SAVING TIME, DEPENDING UPON WHICHEVER TIME IS OBSERVED BY LAW, CUSTOM, OR PRACTICE WHERE SUCH SERVICES ARE PERFORMED.

IT IS UNDERSTOOD THAT THE FIRST QUESTION CONSIDERED IN THE SUBMITTED OPINION IS WHETHER THE LANGUAGE "EXTRA COMPENSATION ON ACCOUNT OF SERVICES PERFORMED BETWEEN OR AFTER CERTAIN SPECIFIED HOURS OF THE DAY OR NIGHT" APPEARING IN SECTION 2, SUPRA, IS SUFFICIENTLY BROAD TO ENCOMPASS EXTRA COMPENSATION PAYABLE UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298, AND THE CUSTOMS OVERTIME ACT OF MARCH 2, 1931, 46 STAT. 1467, FOR SUNDAY AND HOLIDAY WORK. IN OTHER WORDS, FOR THE PURPOSE OF PAYING THE EXTRA COMPENSATION AUTHORIZED IN SAID ACTS, DOUBT HAS ARISEN AS TO WHETHER SUNDAYS AND HOLIDAYS ARE TO BE CONSIDERED AS BEGINNING AND ENDING IN ACCORDANCE WITH THE TIME OBSERVED IN THE LOCALITY WHERE THE SERVICES ARE PERFORMED, OR IN ACCORDANCE WITH STANDARD TIME AS REQUIRED BY THE PROVISIONS OF THE ACT OF MARCH 19, 1918, 40 STAT. 451, 15 U.S.C. 262. THE SECOND QUESTION IS UNDERSTOOD TO BE WHETHER THE TIME OBSERVED "WHERE SUCH SERVICES ARE PERFORMED" MEANS THE AREA OR LOCALITY IN WHICH THE DUTIES ARE PERFORMED OR THE ACTUAL PLACE OF OPERATIONS, SUCH AS A COMMON CARRIER TERMINAL WHERE THE OBSERVANCE OF STANDARD TIME IS REQUIRED BY LAW.

UNDER THE 1918 STATUTE, PRIOR TO THE ENACTMENT OF PUBLIC LAW 288, THE PAYMENT OF EXTRA COMPENSATION AUTHORIZED BY LAW FOR SERVICES RENDERED DURING OR AFTER CERTAIN SPECIFIED HOURS OR ON CERTAIN SPECIFIED DAYS WAS REQUIRED TO BE MADE IN ACCORDANCE WITH THE STANDARD TIME OF THE ZONE INVOLVED REGARDLESS OF THE FACT THAT MANY STATES AND LOCALITIES WITHIN SUCH ZONE OBSERVED DAYLIGHT SAVING TIME DURING CERTAIN MONTHS OF THE YEAR. SEE 27 COMP. GEN. 148. THE PROVISIONS OF PUBLIC LAW 288 WERE INTENDED TO ELIMINATE THE CONFUSION AND INEQUITIES RESULTING FROM SUCH REQUIREMENT AND AUTHORIZED THE COMPUTATION OF SUCH EXTRA COMPENSATION UPON THE BASIS OF THE TIME--- DAYLIGHT SAVING OR STANDARD--- OBSERVED AT THE PLACE WHERE THE DUTIES WERE PERFORMED. THEREFORE, ANY RESTRICTED INTERPRETATION OF THE LAW, LIMITING ITS APPLICATION TO EXTRA PAY FOR NIGHT WORK, NOT ONLY WOULD APPEAR TO BE CONTRARY TO THE SPIRIT OF THE LAW BUT WOULD RESULT IN EVEN GREATER CONFUSION THAN THAT WHICH EXISTED PRIOR TO ITS ENACTMENT BY REQUIRING THE OBSERVANCE OF DIFFERENT TIME STANDARDS IN COMPUTING THE TWO TYPES OF EXTRA PAY AUTHORIZED BY THE SAME ACT. ACCORDINGLY, SERVICES PERFORMED ON SUNDAYS OR HOLIDAYS FOR WHICH EXTRA COMPENSATION IS AUTHORIZED BY AN ACT OF CONGRESS PROPERLY MAY BE REGARDED AS SERVICES "BETWEEN OR AFTER CERTAIN SPECIFIED HOURS OF THE DAY OR NIGHT" WITHIN THE MEANING OF THAT TERM AS IT IS USED IN THE SAID PUBLIC LAW 288.

THE PROVISION IN PUBLIC LAW 288 RESPECTING THE TIME OBSERVED BY LAW, CUSTOM, OR PRACTICE "WHERE SUCH SERVICES ARE PERFORMED" REASONABLY SEEMS TO CONTEMPLATE THE TIME OBSERVED IN THE AREA, THAT IS, THE SMALLEST POLITICAL SUBDIVISION (STATE, COUNTY, CITY, ETC., AS THE CASE MAY BE) IN WHICH THE SERVICES ARE PERFORMED AS DISTINGUISHED FROM THE PLACE OF ACTUAL OPERATIONS. TO HOLD OTHERWISE WOULD TEND TO REESTABLISH THE SAME UNDESIRABLE CONDITIONS WHICH MOTIVATED THE ENACTMENT OF PUBLIC LAW 288.

IN VIEW OF THE FOREGOING, YOU ARE ADVISED THAT TIME AND ATTENDANCE REPORTS OF EMPLOYEES IN A PARTICULAR INSTALLATION MAY BE MAINTAINED UPON THE BASIS OF THE TIME--- DAYLIGHT SAVING OR STANDARD--- OBSERVED IN THE AREA WITHIN WHICH SUCH INSTALLATION IS LOCATED, AND ANY EXTRA PAY TO WHICH SUCH EMPLOYEES MAY BECOME ENTITLED FOR SERVICES PERFORMED BETWEEN OR AFTER CERTAIN SPECIFIED HOURS, OR ON SUNDAYS OR HOLIDAYS, SHOULD BE COMPUTED IN ACCORDANCE WITH SUCH TIME AND ATTENDANCE REPORTS.