B-166046, MARCH 18, 1969, 48 COMP. GEN. 620

B-166046, MARCH 18, 1969, 48 COMP. GEN. 620

COMPENSATION--OVERTIME--TRAINING COURSES--OUTSIDE REGULAR TOUR OF DUTY- PROHIBITION WAGE BOARD EMPLOYEES AT AN ARMY DEPOT WHO ATTENDED A WELDERS' TRAINING PROGRAM IN A NONGOVERNMENTAL FACILITY AFTER REGULAR TOURS OF DUTY ARE NOT, PURSUANT TO 5 U.S.C. 4109, ENTITLED TO OVERTIME FOR THE TRAINING PERIODS, NOTWITHSTANDING RECEIPT OF TRAVEL EXPENSES INCIDENT TO THE TRAINING. THE FACT THAT THE EMPLOYEES WOULD HAVE LOST PRODUCTIVE TIME HAD THE TRAINING NOT BEEN HELD AFTER REGULAR HOURS DOES NOT BRING THEM WITHIN THE EXCEPTION TO THE PROHIBITION AGAINST THE PAYMENT OF OVERTIME WHILE TRAINING PRESCRIBED IN FEDERAL PERSONNEL MANUAL, SUBCHAPTER 6-2B, NOR ARE THE EMPLOYEES ENTITLED TO OVERTIME ON THE BASIS OF BENEFIT TO THE EMPLOYING AGENCY, THE WORK-RELATED NIGHT COURSES GIVING THE EMPLOYEES A QUALIFICATION OF SUBSTANTIAL VALUE THAT IS TRANSFERABLE TO OTHER ORGANIZATIONS.

TO THE EXECUTIVE VICE PRESIDENT, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, MARCH 18, 1969:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 31, 1968, REQUESTING US TO DIRECT PAYMENT OF OVERTIME TO VARIOUS WELDERS EMPLOYED AT THE PUEBLO ARMY DEPOT, PUEBLO, COLORADO, WHO PARTICIPATED IN A WELDERS' TRAINING PROGRAM AT SOUTHERN COLORADO STATE COLLEGE IN 1966 AND 1967.

THE OVERTIME CLAIMED CONSISTED OF THREE 2-HOUR SESSIONS PER WEEK FOR VARIOUS PERIODS DURING THE TRAINING PROGRAM AND THE TRAINING WAS GIVEN AFTER THE 8-HOUR DAY OR 40-HOUR WEEK APPLICABLE TO WAGE BOARD EMPLOYEES. THE DEPARTMENT OF THE ARMY DISALLOWED THE OVERTIME CLAIMS ON THE GROUNDS THAT SECTION 10 OF THE GOVERNMENT EMPLOYEES TRAINING ACT (NOW 5 U.S.C. 4109) PRECLUDES SUCH PAYMENT. OUR CLAIMS DIVISION ALSO DISALLOWED THE CLAIMS WITH TWO EXCEPTIONS NOT YET ACTED UPON. HOWEVER, YOU SAY THE DEPARTMENT APPARENTLY GAVE NO CONSIDERATION TO CIVIL SERVICE REGULATIONS PROMULGATED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND EXECUTIVE ORDER NO. 10800, JANUARY 15, 1959, 24 FED. REG. 447, AND AUTHORIZING OVERTIME FOR TRAINING IN CERTAIN SITUATIONS. YOU STATE THE EMPLOYEES ARE ENTITLED TO PAYMENT OF OVERTIME SINCE THEY WERE PAID TRAVEL EXPENSES INCIDENT TO THE TRAINING, AND TRAINING OF THE EMPLOYEES AFTER REGULAR WORK HOURS RESULTED IN LOWER COSTS TO THE GOVERNMENT IF FOR NO OTHER REASON THAN THE TRAINING DURING REGULAR WORK HOURS WOULD MEAN INTERFERENCE AND DELAYS IN REGULAR WORK ASSIGNMENTS.

TRAINING FOR CIVILIAN EMPLOYEES IS AUTHORIZED BY 5 U.S.C. 4101-4118 SECTION 4109, EXPENSES OF TRAINING, READS IN PERTINENT PART AS FOLLOWS:

(A) THE HEAD OF AN AGENCY, UNDER THE REGULATIONS PRESCRIBED UNDER SECTION 4118 (A) (8) OF THIS TITLE AND FROM APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO THE AGENCY, MAY---

(1) PAY ALL OR A PART OF THE PAY (EXCEPT OVERTIME, HOLIDAY, OR NIGHT DIFFERENTIAL PAY) OF AN EMPLOYEE OF THE AGENCY SELECTED AND ASSIGNED FOR TRAINING UNDER THIS CHAPTER, FOR THE PERIOD OF TRAINING * * *.

UNDER THE STATUTE THE AUTHORIZATION FOR THE PAYMENT OF ALL OR ANY PART OF THE PAY OF AN EMPLOYEE SELECTED FOR TRAINING IN NONGOVERNMENT FACILITIES IS FOR DETERMINATION BY THE HEAD OF EACH DEPARTMENT IN ACCORDANCE WITH CIVIL SERVICE REGULATIONS AND IS NOT DEPENDENT ON WHETHER THE PAYMENT OF THE EMPLOYEE'S TRAVEL IS ALLOWED INCIDENT TO THE TRAINING. THE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION AUTHORIZING OVERTIME PAY UNDER CERTAIN CONDITIONS WERE PROMULGATED SUBSEQUENT TO OUR DECISION 38 COMP. GEN. 363, DATED NOVEMBER 17, 1958.

THE FOLLOWING PORTIONS OF THE LETTER OF OCTOBER 31, 1958, FROM THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, WERE QUOTED IN OUR DECISION:

WE AGREE FULLY WITH WHAT WE UNDERSTAND TO BE THE INTENT OF THE CONGRESS THAT OVERTIME PAY * * * BE PROHIBITED (1) WHEN AN EMPLOYEE ASSIGNED TO AN EDUCATIONAL INSTITUTION FOR FULL-TIME TRAINING ATTENDS SOME CLASSES AT NIGHT OR ON NONWORK DAYS, AND (2) WHEN AN EMPLOYEE WORKING A FULL EIGHT- HOUR DAY ATTENDS A WORK-RELATED NIGHT COURSE, WHICH, WHILE IT WOULD BENEFIT HIS AGENCY, ALSO GIVES THE EMPLOYEE A QUALIFICATION OF SUBSTANTIAL VALUE AND TRANSFERABILITY TO OTHER ORGANIZATIONS.

* * * AGENCIES HAVE CALLED TO OUR ATTENTION SUCH SITUATIONS AS THE FOLLOWING WHERE A PROHIBITION AGAINST THEIR PAYING OVERTIME, HOLIDAY, OR NIGHT DIFFERENTIAL WOULD CAUSE SERIOUS PROBLEMS:

(D)WHEN TRAINING IS GIVEN ON OVERTIME OR NONWORK DAYS BECAUSE PAYMENT OF OVERTIME COMPENSATION IS CHEAPER THAN SPREADING THE TRAINING OVER A LONGER CALENDAR PERIOD BY CONFINING IT TO REGULAR WORK HOURS. AN EXAMPLE IS TRAINING FOR WHICH FIELD EMPLOYEES ARE BROUGHT IN TO HEADQUARTERS IN TRAVEL STATUS, AND THE PREMIUM PAYMENT FOR SATURDAY TIME WOULD COST LESS THAN KEEPING THE EMPLOYEES IN TRAVEL STATUS OVER THE WEEKEND TO COMPLETE THE TRAINING ON MONDAY.

OUR DECISION ALSO QUOTES THE FOLLOWING EXCERPT FROM A LETTER OF THE CHAIRMAN, COMMITTEE ON POST OFFICE AND CIVIL SERVICE, HOUSE OF REPRESENTATIVES, EXPLAINING THE PARENTHETICAL LIMITATION IN SECTION 10:

* * * THIS LIMITATION WAS DIRECTED PRIMARILY TO HAVE A BRAKING EFFECT ON EXCESSIVE SALARY CLAIMS WHICH IT WAS FELT, IN THE ABSENCE OF SUCH LIMITATION, MIGHT OTHERWISE BE ALLOWED IN GENERAL UNDER AUTHORITY OF SUCH CLAUSE. THE NEED FOR THE LIMITATION WAS BASED ON CERTAIN CASES THAT HAD BEEN REPORTED TO INDIVIDUAL MEMBERS AS ARISING OUT OF THE ADMINISTRATION OF PRIOR EXISTING BROAD TRAINING AUTHORIZATIONS. IT WAS SOUGHT BY THE LIMITATION TO PREVENT RECURRENCE OF SUCH EXCESSIVE CLAIMS AND SALARY PAYMENTS BASED THEREON.

ONE SUCH CASE INVOLVED AN EMPLOYEE OF THE GOVERNMENT DEPARTMENT WHO HAD BEEN ASSIGNED FOR TRAINING BY A NON-GOVERNMENT FACILITY FOR A PERIOD OF MORE THAN ONE WEEK. THE TRAINING CURRICULUM INCLUDED CERTAIN CLASSES ON SATURDAY---A NON-WORK DAY IN THIS EMPLOYEE'S REGULAR TOUR OF DUTY WITH THE GOVERNMENT. HAVING ATTENDED THE SATURDAY CLASSES, THE EMPLOYEE CLAIMED OVERTIME PAY FOR THIS DAY. IT WAS THE INTENT, THROUGH USE OF THE PARENTHETICAL LIMITATION IN CLAUSE (1) OF SECTION 10 OF THE ACT, TO PROHIBIT SUCH PAYMENTS.

THEREAFTER, THE COMMISSION ISSUED AN AMENDMENT TO THE TRAINING REGULATIONS WHICH WOULD PERMIT AN AGENCY TO PAY OVERTIME IN CERTAIN CASES. THE PROVISIONS WHICH YOU BELIEVE WOULD PERMIT OVERTIME FOR THE TRAINING HERE INVOLVED ARE SET FORTH IN FEDERAL PERSONNEL MANUAL, SUBCHAPTER 6-2B, WHICH READS IN PERTINENT PART AS FOLLOWS:

(2) UNDER CERTAIN CONDITIONS, EMPLOYEES ARE EXCEPTED FROM THE PROHIBITION OF PAYMENT OF OVERTIME * * * AND ARE ELIGIBLE TO RECEIVE OVERTIME * * * IN ACCORDANCE WITH PAY AUTHORITIES APPLICABLE TO THEIR INDIVIDUAL CASES. THE FOLLOWING ARE EXCEPTED FROM THE PROHIBITION ON PREMIUM PAY DURING TRAINING:

(C) AN EMPLOYEE GIVEN TRAINING ON OVERTIME * * * BECAUSE THE COSTS OF THE TRAINING, PREMIUM PAY INCLUDED, ARE LESS THAN THE COSTS OF THE SAME TRAINING CONFINED TO REGULAR WORK HOURS. * * * SIMILARLY, THE DEPARTMENT COULD SCHEDULE 48 HOURS OF TRAINING DURING A 5-DAY PERIOD AND PAY EMPLOYEES OVERTIME FOR THE EXTRA HOURS IF THE GOVERNMENT'S OUT OF-POCKET COSTS WOULD BE LOWER ON THIS BASIS.

OUR OPINION IS THAT THE EXEMPTIONS IN SUBCHAPTER 6-2B (2), ABOVE, ARE CONFINED TO SITUATIONS SUCH AS REFERRED TO IN EXAMPLE (D) OF THE COMMISSION'S LETTER OF OCTOBER 31, 1958, WHERE A SPECIFIC SAVING IN TRAVEL COSTS RESULTS BY SCHEDULING TRAINING AT NIGHT OR ON A NONWORKDAY. LOSS OF PRODUCTIVE TIME IS NOT A FACTOR UNDER THE EXEMPTIONS. RATHER, AS STATED IN THE COMMISSION'S LETTER OF OCTOBER 31 OVERTIME IS NOT CONSIDERED TO BE PAYABLE WHEN AN EMPLOYEE WORKS A FULL 8-HOUR DAY AND ATTENDS A WORK- RELATED NIGHT COURSE WHICH, WHILE IT WOULD BENEFIT HIS AGENCY, ALSO GIVES THE EMPLOYEE A QUALIFICATION OF SUBSTANTIAL VALUE AND TRANSFERABILITY TO OTHER ORGANIZATIONS.

IN VIEW OF THE ABOVE AND SINCE THE TRAINING CONSISTED OF SESSIONS IN A NON-GOVERNMENT FACILITY AFTER THE EMPLOYEES' REGULAR TOURS OF DUTY, THE PROHIBITION IN 5 U.S.C. 4109 AGAINST THE PAYMENT OF OVERTIME DURING TRAINING APPLIES TO THE PRESENT CASES.