B-123628, MAY 19, 1955, 34 COMP. GEN. 621

B-123628, MAY 19, 1955, 34 COMP. GEN. 621

COMPENSATION - NIGHT WORK - REGULAR TOUR OF DUTY REQUIREMENT - HOLIDAY PAY A CLASSIFIED EMPLOYEE WHO PERFORMS OCCASIONAL OVERTIME WORK WITHIN A REGULARLY SCHEDULED TOUR OF DUTY FALLING BETWEEN THE HOURS OF 6 P.M. AND 6 A.M., WHICH IS NOT HIS SCHEDULED TOUR OF DUTY, IS ENTITLED TO PAYMENT OF NIGHT DIFFERENTIAL PROVIDED BY SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. NIGHT DIFFERENTIAL PRESCRIBED BY SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IS NOT PAYABLE FOR OVERTIME WORK PERFORMED BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. PRIOR TO THE ESTABLISHMENT OF REGULARLY SCHEDULED TOURS OF DUTY. WHERE FREQUENT CHANGES ARE MADE IN AN EMPLOYEE'S ADMINISTRATIVE WORKWEEK, THE CURRENT WORKWEEK DURING WHICH A HOLIDAY OCCURS IS FOR CONSIDERATION IN DETERMINING ENTITLEMENT TO HOLIDAY PREMIUM PAY.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO GERALDINE GOREE, DEPARTMENT OF THE INTERIOR, MAY 19, 1955:

YOUR LETTER OF APRIL 13, 1955, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THREE PAYROLL VOUCHERS THEREWITH ENCLOSED IN THE AMOUNTS OF $15.35, $34.43, AND $21.60, RESPECTIVELY. THE FACTS AND THE QUESTIONS INVOLVED ARE BRIEFLY STATED IN YOUR LETTER AS FOLLOWS:

THIS ADMINISTRATION HAS A SUBSTATION LOCATED AT SPRINGFIELD, MISSOURI, THAT MUST BE CONSTANTLY MANNED DUE TO THE FACT THAT IT IS THE DISPATCHING CENTER FOR THE FLOW OF POWER IN THAT AREA.

TOURS OF DUTY WERE ESTABLISHED AND APPROVED ON JULY 27, 1953, COVERING 24 HOURS A DAY, 7 DAYS A WEEK AND 365 DAYS A YEAR. EFFECTIVE AUGUST 2, 1953, REGULAR SCHEDULES WERE ESTABLISHED FOR THE DISPATCHERS WITH TOURS OF DUTY FROM 8 A.M. TO 4 P.M.; 4 P.M. TO MIDNIGHT; AND 12 MIDNIGHT TO 8 A.M. WITH A STAFF OF THREE DISPATCHERS AND A RELIEF MAN IT WAS NECESSARY TO ESTABLISH A 48 HOUR WEEK SCHEDULE. IN ADDITION TO THE SCHEDULED 8 HOURS OVERTIME EACH WEEK, OCCASIONAL OVERTIME WORK IS PERFORMED WHEN EMERGENCIES OR OTHER CONDITIONS ON THE TRANSMISSION SYSTEM MAKE IT ESSENTIAL FOR MORE THAN ONE DISPATCHER TO BE ON DUTY AT THE SAME TIME.

PAYROLL VOUCHER IN THE AMOUNT OF $15.35 COVERS A CLAIM BY THE DISPATCHERS FOR THE COMPENSATION OF NIGHT DIFFERENTIAL PAY ON OCCASIONAL OVERTIME WORK PERFORMED, AS STATED ABOVE.

QUESTION NO. 1. IS NIGHT DIFFERENTIAL PAYABLE ON OCCASIONAL OVERTIME WORKED BETWEEN THE HOURS OF 6 P.M. AND 6 A.M.?

PAYROLL VOUCHER IN THE AMOUNT OF $34.43 COVERS A CLAIM FOR NIGHT DIFFERENTIAL ON OVERTIME WORKED JULY 5, 1953, THROUGH AUGUST 1, 1953, PRIOR TO THE ESTABLISHMENT OF A REGULAR SCHEDULED TOUR OF DUTY.

QUESTION NO. 2. IS NIGHT DIFFERENTIAL PAYABLE ON OVERTIME WORKED BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. PRIOR TO THE ESTABLISHMENT OF A REGULAR SCHEDULED TOUR OF DUTY?

PAYROLL VOUCHER IN THE AMOUNT OF $21.60 COVERS A CLAIM FOR EIGHT HOURS HOLIDAY COMPENSATION ON JANUARY 2, 1955. THE EMPLOYEE CONCERNED WAS ON A SCHEDULE OF 40 HOURS A WEEK FROM MONDAY THROUGH FRIDAY FOR THE PERIOD DECEMBER 19, 1954 THROUGH JANUARY 1, 1955. DURING THIS PERIOD THE EMPLOYEE WAS GRANTED A HALF HOLIDAY ON FRIDAY, DECEMBER 31, 1954, BY AUTHORITY OF EXECUTIVE ORDER 10580, DATED DECEMBER 3, 1954. UNDER THE SCHEDULE ESTABLISHED FOR THIS EMPLOYEE SATURDAY, JANUARY 1, 1955 (A LEGAL HOLIDAY) AND SUNDAY JANUARY 2, 1955 WERE NON-WORK DAYS. HOWEVER, EFFECTIVE JANUARY 2, 1955, THIS EMPLOYEE'S SCHEDULE WAS CHANGED TO A 40 HOUR WEEK FROM SUNDAY THROUGH THURSDAY WITH FRIDAY AND SATURDAY AS HIS NON -WORK DAYS.

QUESTION NO. 3. IN VIEW OF THE FACTS AS STATED ABOVE IS EMPLOYEE ENTITLED TO HOLIDAY COMPENSATION FOR JANUARY 2, 1955?

YOUR LETTER FAILS TO STATE WHETHER THE INVOLVED EMPLOYEES HOLD CLASSIFIED POSITIONS, BUT SINCE THEIR SALARY RATES CORRESPOND WITH CLASSIFICATION ACT RATES IN GRADES GS-8, 9, AND 10, RESPECTIVELY--- THE MINIMUM STEP IN EACH CASE--- YOUR QUESTIONS WILL BE ANSWERED UPON THE ASSUMPTION THAT THEY DO OCCUPY CLASSIFIED POSITIONS.

SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 10 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 218, PROVIDES IN PERTINENT PART, AS FOLLOWS:

ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY, ANY PART OF WHICH, INCLUDING OVERTIME, FALLS BETWEEN THE HOURS OF 6 O-CLOCK POST MERIDIAN AND 6 O CLOCK ANTEMERIDIAN, SHALL, FOR DUTY BETWEEN SUCH HOURS, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, BE PAID COMPENSATION AT A RATE 10 PERCENTUM IN EXCESS OF HIS RATE OF BASIC COMPENSATION FOR DUTY BETWEEN OTHER HOURS.

AS IT APPEARS FROM YOUR LETTER THAT EACH 24 HOURS HAS BEEN DIVIDED INTO THREE REGULARLY SCHEDULED 8-HOUR TOURS OF DUTY, IT WOULD APPEAR THAT ANY OCCASIONAL OVERTIME BETWEEN 6 P.M. AND 6 A.M. MUST NECESSARILY FALL WITHIN A REGULARLY SCHEDULED TOUR OF DUTY WHICH NEED NOT BE THE SCHEDULED TOUR OF THAT PARTICULAR EMPLOYEE. ACCORDINGLY, AFTER THE ESTABLISHMENT OF THE REGULAR TOURS OF DUTY, ANY NIGHT DIFFERENTIAL IS PROPERLY PAYABLE FOR OCCASIONAL OVERTIME BETWEEN SUCH HOURS. 33 COMP. GEN. 4.

QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

PRIOR TO THE ESTABLISHMENT OF REGULARLY SCHEDULED TOURS OF DUTY THE OVERTIME BETWEEN 6 P.M. AND 6 A.M. WOULD NOT COME WITHIN THE PURVIEW OF THE ABOVE-QUOTED STATUTE AND NO NIGHT DIFFERENTIAL WOULD BE PAYABLE THEREFOR.

QUESTION 2 IS THEREFORE ANSWERED IN THE NEGATIVE.

AS THE HOLIDAY JANUARY 1, 1955, FELL ON SATURDAY, A NONWORK DAY OUTSIDE THE EMPLOYEE'S PRESCRIBED TOUR OF DUTY UNDER HIS CURRENT SCHEDULE, NO HOLIDAY PREMIUM PAY WAS PAYABLE FOR WORKING ON SUNDAY, JANUARY 2, 1955, WHICH WAS NOT A HOLIDAY.

THE THREE VOUCHERS ARE RETURNED HEREWITH, BUT ONLY THE ONE FOR $15.35 INVOLVED IN YOUR FIRST QUESTION MAY BE CERTIFIED FOR PAYMENT.