Dewayne E. Ehret, B-199129

• Decision Date: 05 March 1981
• Docket Number: B-199129
• Parties: DEWAYNE E. EHRET - PAYMENT OF NIGHT DIFFERENTIAL:
• Court: Comptroller General of the United States

DEWAYNE E. EHRET - PAYMENT OF NIGHT DIFFERENTIAL:

No. B-199129

Comptroller General of the United States

March 5, 1981

Digest 1. Employee of FCC performed night work in connection with temporary duty assignments every month or So. In the absence of established tour including night work, employee May be paid night differential under 5 U.S.C. Sec. 5545(a) if it is considered "regularly scheduled." That it was performed during temporary duty or on overtime does not affect the employee's entitlement to night differential. 2. Employee's claim for night differential is based upon approximate schedule since no records were kept by supervisor or employee. Supporting evidence such as schedules, time and attendance reports, personal diaries, etc. Are acceptable evidence. However, where direct verification of hours worked May be obtained through other official records, those records should be examined before the claim May be paid.

Dewayne E. Ehret - Payment of Night Differential:

This action is in response to a request from wayne B. Leshe, chief accountant and an authorized certifying officer with the federal communications commission (FCC), for a decision concerning the claim of Mr. Dewayne E. Ehret for additional compensation for 118 hours of night differential pay in connection with certain enforcement monitoring activities he performed during periods of temporary duty.

Mr Ehret's claim arises in connection with his performance of duties as an engineering technician assigned to the detroit, Michigan, special enforcement facility. The field operations bureau of the FCC maintains five offices known as special enforcement facilities (sef) throughout the united states. The special enforcement facilities each plan 12 trips each year to monitor radio transmissions in one of the cities in their assigned area. These monitoring trips are called "strikes" and the monitoring teams are called "strike teams" or "sef teams" since their monitoring is done in a covert manner to detect violations of FCC regulations. For a general understanding of the circumstances involved in Mr. Ehret's claim the agency reports that the following statements apply to the activities of the "sef" teams:

"1. When sef team employees go out on a strike, they are in the field approximately 7 days.

"2. On 2, 3, or 4 of those days, the employee's hours are changed temporarily from 8:00 a.m./4:30 p.m. To 1:30 p.m./10:00 p.m., 4:00 p.m./12:00 p.m., or other corresponding hours.

"3. The interval between the planned strikes is approximately 1 month.

"4. The individual employee interval can be 1 or 2 months (22 to 70 days) between strikes since all employees do not go out on every strike made by the sef team.

"5. Employees are paid overtime for all hours in excess of 8 in a day or 40 in a week.

"6. Employees are in a travel/temporary duty status while away from their official duty station.

"7. Strike dates are set on a tentative schedule for a year in advance but May be changed at any time by the sef supervisor.

"8. Radio and/or violation logs are maintained during hours worked while on a strike.

"9. The sef team travels to a city and sets up a base station at the motel/hotel where the team will sleep. Employees perform mobile monitoring, in vehicles, ranging throughout the city and outlying areas. The mobile monitoring is coordinated with the base station. The employees return to motel/hotel to sleep."

Finally the agency also reports that Mr. Ehret made various monitoring trips with the sef strike team during the period from May 15, 1978, to January 28, 1980. During each of these monitoring trips Mr. Ehret worked at night some of the time but since no records were kept of the actual times worked each day, either by the supervisor or the employee, the hours claimed are approximate. Mr. Ehret's supervisor has stated that they seem reasonably accurate, and if direct verification is necessary, the agency states that the radio and/or violation logs for each day could be checked.

On the basis of the information provided above, the agency asks the following questions concerning Mr. Ehret's claim:

"1. Since the interval of these trips for Mr. Ehret ranged from 22 to 70 days, would the trips be considered as night work which would have occurred at regular intervals since they were tentatively scheduled at the beginning of the year for one trip per month even though each employee does not go on every trip?"

The authority for the payment of night differential is contained in 5 U.S.C. Sec. 5545(a) (1976), which provides, in pertinent part, as follows:

"Except as provided in subsection (B) of this section night work is regularly scheduled work between the hours of 6:00 p.m. And 6:00 a.m. ***."

It is clear that employees who regularly work a night shift are entitled to night differential added to their basic compensation. See, for example, 36 Comp.Gen. 657, 659 (1957) citing the legislative history of the statute. Where there are no scheduled tours of duty at night, our decisions have held that an employee, who habitually and recurrently performs work at night due to the inherent nature of his employment by which he must remain on duty until his tasks are completed or he is relieved from duty, is entitled to night differential. 42 Comp.Gen. 326 (1962); 41 Id 8 (1961); and nathaniel R. Ragsdale, B-181237, April 15, 1975, affirmed, 57 Comp.Gen. 43 (1977). See also 59 Comp.Gen. 101 (1979).

We have also allowed payment of night differential in the absence of an established tour of duty or shift where the work to be performed is considered to be "regularly scheduled work." 59 Comp.Gen. 101, supra, and decisions cited therein.

Our decisions have held that "regularly scheduled" means duly authorized in advance and scheduled to recur on successive days or after specified intervals. 42 Comp.Gen. 326, supra; 40 Comp.Gen. 397 (1961); robert C. Austin, B-188686, May 11, 1978; and B-174388, February 28, 1972. Work performed every other week or 1 or 2 days every month has been considered regularly scheduled. See 39 Comp.Gen. 73 (1959); and B-159040, July 12, 1966. The work need not be subject to a fixed hours-of-work schedule but it must recur so frequently and at such regular intervals as to fall into a predictable and discernible pattern. See customs special agents, B-191512, October 27, 1978, and B-178653, August 6, 1973.

In the present case it appears that "strike team" assignments are scheduled each month, and, in the case of Mr. Ehret, he performed such assignments 17 out of 21 consecutive months. On each assignment some night work was performed, usually on tuesday through friday during a monday to monday assignment. Although the intervals between assignments May have varied, we believe the performance of night work fell into a predictable and discernible pattern so as to warrant the payment of night differential for "regularly scheduled work" under these circumstances.

"2. Can Mr. Ehret be paid...