B-229335, Nov 22, 1988

B-229335, Nov 22, 1988

CIVILIAN PERSONNEL - Compensation - Overtime - Eligibiity - International dateline DIGEST: 1. An employee who is nonexempt from the provisions of the Fair Labor Standards Act (FLSA) crossed the international dateline in both directions while performing official travel between Hawaii and Guam. Under title 5, United States Code, the employee may be paid 8 hours basic pay for a workday "lost" traveling westbound, but receives no pay for the workday "gained" traveling eastbound. However, where the "lost" day and the "gained" day occur in different workweeks, a nonexempt employee traveling eastbound may receive overtime pay under the FLSA for each hour in excess of 40 hours actually worked during that workweek since under the FLSA each scheduled administrative workweek is deemed separate and distinct. CIVILIAN PERSONNEL - Travel - Overseas travel - International dateline - Travel time - Charging 2. An employee performing temporary duty in Guam celebrated the Fourth of July holiday there. He commenced return travel on the following day and, after crossing the international dateline, he arrived at his official duty station in Hawaii on the Fourth of July. Since the office was closed, he was unable to work. In accordance with 5 U.S.C. Sec. 6103 (1982) and Exec. Order No. 11,582, the employee's holiday observance was in Guam. However, he should not be required to use annual leave in Hawaii on the Fourth of July since it is appropriate for his agency to exercise its discretion and grant him an excused absence without loss of pay for the day.

Crossing the International Dateline - Fair Labor Standards Act:

This decision is in response to a request from the Director, Personnel and Technical Training, Federal Aviation Administration (FAA), U.S. Department of Transportation. It concerns the pay and duty hours of certain FAA employees covered under the Fair Labor Standards Act (FLSA) when they are required to cross the international dateline while performing temporary duty travel.

BACKGROUND

The first situation involves airspace system inspection pilots and flight engineers in series GS-2181 positions which have been determined to be nonexempt and, thus, covered under the FLSA. /1/ These employees are assigned to the FAA Honolulu Flight Inspection Field Office, and they have a regularly scheduled tour of duty of 7 a.m. to 3:30 p.m., Monday through Friday, with normal days off on Saturday and Sunday.

These employees perform temporary duty flight inspections in many nonexempt areas, including Guam and Wake Island. /2/ When this occurs, they sometimes "gain" or "lose" a workday in their 40-hour workweek when they cross the international dateline. As a result, employees traveling westbound often have only worked 4 days out of 5, or, when traveling eastbound, they have worked 6 days during their 5 day workweek. The question asked is whether an FLSA nonexempt employee who works a 48-hour workweek because of crossing the international dateline is entitled to 8 hours of overtime pay.

The second situation involves the pay and leave implications when an employee crosses the international dateline in conjunction with a holiday. As an example, an employee on temporary duty in Guam on Wednesday, July 4, observes the holiday in Guam. He departs Guam on Thursday, July 5, and, after crossing the international dateline, arrives in Honolulu on Wednesday, July 4. Since it is a holiday in Honolulu and there is no productive work for him to perform, management does not require the employee to work that day, but the agency questions whether the employee has received 2 days of paid holiday leave for the same holiday.

Citing to prior decisions which held that an employee may not be paid for the extra day, /3/ the FAA is uncertain whether the granting of the extra day of holiday leave is proper. In this regard, the FAA asks whether it has discretion to determine in which location, i.e., Guam or Honolulu, the employee should observe the holiday and what other options are available to the agency. The FAA also asks whether it may simply grant the employee an excused absence or whether it should require the employee to take a day of annual leave.

OPINION

Overtime for federal employees is authorized by title 5, United States Code (1982), and by the FLSA, 29 U.S.C. Sec. 201 et seq. (1982), where the employees are determined to be nonexempt from the FLSA. As to an employee's pay entitlement under title 5 in these circumstances, we have ruled that an employee who crossed the international dateline in both directions may not receive basic pay or overtime compensation for work performed during regular hours of the day gained due to eastbound travel, since it is offset by the fact that 8 hours of basic pay was allowed for the workday lost while crossing the international dateline westbound. Effects on Pay on Crossing International Dateline, B-223047, June 8, 1987, citing to 48 Comp.Gen. 233, supra, and 49 Comp.Gen. 329, supra.

With regard to overtime entitlement under the FLSA, we note that 29 U.S.C. Sec. 204(f) (1982) authorizes the Office of Personnel Management (OPM) to administer the FLSA with respect to federal employees. requested OPM's views on this matter, and the OPM advisory report reiterates our position in International Dateline, B-223047, supra, as it relates to westbound travel. The OPM report goes on to state that under the FLSA when an employee travels eastbound and "gains" a day,

"... if the employee has performed more than 40 hours of actual work during the workweek, he or she would be entitled to overtime pay for those hours in excess of 40."

The OPM report also points out that in paragraph F-3 of the attachment to Federal Personnel Manual (FPM) Letter 551-10, OPM has informed agencies that when travel involves two or more time zones, the time zone of the point of first departure controls the number of hours of work that workday. As a result, an employee who may appear to "gain" a day because of eastbound travel across the international dateline may not have worked in excess of 40 hours that workweek.

We ruled in International Dateline, B-233047, supra, that under title 5, United States Code, an employee would be, in effect, penalized for having "gained" a day when traveling eastbound and, thus, would not be entitled to be credited with more than 40 hours of work that week. However, in view of the fact that each regularly scheduled administrative workweek is considered separate and distinct for FLSA purposes, we conclude that a nonexempt employee traveling eastbound across the international dateline may receive overtime pay under the FLSA for each hour in excess of 40 hours actually worked during that workweek.

In the second situation involving two holidays incident to eastbound travel, the OPM report states that the holiday observance is determined by 5 U.S.C. Sec. 6103 (1982) and Exec. Order No. 11,582. Although that statute and executive order do not specify which day should be determined to be the employee's holiday under these circumstances, we believe the date and location of first occurrence should be considered the holiday for the employee. Thus, in the example given, since the employee was in Guam on the federal holiday, that constitutes the day for which he is entitled to 8 hours holiday leave credit towards his basic 40-hour tour of duty.

Regarding the extra nonworkday encountered upon arrival in Honolulu on a holiday, we believe it would be improper to require the employee to use annual leave for the day of arrival. Where an employee is prevented from working by matters beyond his control, it would be appropriate for the employing agency to exercise its discretion and grant him an excused absence without loss of pay that day to permit him to complete his scheduled tour of duty at his official duty station that workweek. /4/

Regarding the question of other available options, we note that paragraph F-2 of the attachment to FPM Letter 551-10 states that employing agencies are responsible for specifying, within reasonable limits, the time during which authorized travel will be performed by employees. For example, temporary duty travel could be scheduled by the FAA in such a way as to avoid eastbound travel crossing the international dateline on the day following a holiday.

/1/ We have been informed by the Office of Personnel Management that some employees in series GS-2181 positions have been ruled exempt from the FLSA through prior OPM advisory opinions.

/2/ Nonemempt areas for the purposes of FLSA are the 50 States and those territories and possessions listed in 5 C.F.R. Sec. 551.102(h) (1988).

/3/ 48 Comp.Gen. 233 (1968); 49 Comp.Gen. 329 (1969).

/4/ See 17 Comp.Gen. 298 (1937) and Mary L. Klatt, Et al., B-199961, July 7, 1982, where annual leave was not charged to employees for the closing of federal offices in observance of a legal or foreign holiday.