REQUEST FOR INTERPRETATION OF AGENCY POLICY AND FEDERAL REGULATIONS AS THEY APPLY TO OVERTIME ENTITLEMENTS OF TWO OFFICE OF LOGISTICS SAFEHOUSE KEEPERS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP83-01004R000300120017-1
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 7
• Document Creation Date: December 12, 2016
• Document Release Date: December 13, 2001
• Sequence Number: 17
• Publication Date: January 31, 1978
• Content Type: MF

Approved For F ase 20021 : CIA-F RP83-01004R1 6300120017-1
` _-a ve OGC Has Reviewed
Internal U3o Only
31 January 1978
STATINTL MEMORANDUM FOR:
Office.of General Counsel
STATINTL FROM
Position Management & Compensation Division
SUBJECT . Request for Interpretation of Agency Policy and Federal
Regulations As They Apply to Overtime Entitlements of Two
Office of Logistics Safehouse Keepers
REFERENCE : Memo from Director of Logistics to the Director of
Personnel, dated 23 December 1977; subject: Safehouse
Keepers and FLSA
1. Attached is a copy of reference in which the Office of Logistics
requests an opinion on their legal responsibilities concerning the overtime
entitlements of two.safehouse keepers. In regard thereto, we have developed
the following. tentative comments, but would appreciate an Office of General
Counsel review of both the Office of Logistics request and our comments:
(a) concerning the recommendation for annual premium pay in lieu
of administratively uncontrollable overtime, federal pay regulations
do not grant this form of premium pay for employees whose basic pay
is adjusted from time to time by wageboard or similar authority in
accordance with a prevailing rate. It therefore appears that subject
employees should not be compensated by annual premium pay since (1)
they are under the federal wage grade system and (2) Agency regula-
tions make no provision for annual premium pay for such employees;
(b) likewise, federal pay regulations do not provide for the application
of the fluctuating hours concept for hourly employees. This concept
applies only to salaried employees whose salaries are fixed regardless
of the number of hours worked. Since subject employees' contracts
currently call for them to be paid an hourly rate for a specified
number of hours per week, this precludes the application of the
fluctuating hours concept in this case, including any FLSA overtime
entitlements that could be derived therefrom.
2. Therefore, it appears that overtime work which is currently being
performed by subject employees, whether authorized or "suffered or permitted",
is payable under the provisions of FLSA and must be compensated at one and
one-half times their regular rate of pay. Under Agency policy, employees
who are-non-exempt under FLSA may not be granted compensatory time in lieu of
paid overtime.
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3. Th1pfgM%dcFrrt 1 g00JW/RfQg-RPF -YlS 9~rAg~OQrl;~Ot;i'consider
amending the contracts for subject employees whereby their employment status
would be converted from wage grade to "salaried" with the provision that they ,r
would receive a fixed salary at or above the minimum wage on a periodic basis
regardless of the number of hours worked. in an administrative workweek. Under
the fluctuating workweek concept, the overtime pay requirement of the FLSA
would be satisfied if the employees' overtime compensation for work in excess,,
of 40 hours is computed at one-half times their regular rate of pay.
4. Whether the subject employees retain their wage grade status or*
are converted to "salaried" status, it would seem appropriate to amend their
contracts to include the following provisions: (a) no overtime would be
authorized nor "suffered or permitted" during periods in which the safehouse
has no guests; (b) irregular or occasional overtime work performed in excess
of 40 hours per week during periods in which the safehouse is occupied by
guests would be "suffered or permitted" and, therefore, compensable under
.the FLSA;,and provided that (c) such overtime work fell within a designated
daily period of 16 hours during which subject employees would be responsible
for accommodating the guests within the bounds of assigned duties, and as
directed, or under circumstances recognized by them. No overtime would be
authorized nor "suffered or permitted" for hours worked beyond this daily
16 hour period.
5. It is requested that the OGC review the above comments and the attached
memorandum and provide us with an interpretation of Agency policy and federal
regulations with respect to overtime entitlements of the two Office of Logistics
safehouse keepers.
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2 3 DEC 1977
MEMORANDUM FOR: Director of Personnel
FROM:
James H. McDonald
Director of Logistics
SUBJECT: Safehouse Keepers and FLSA (U/AIUO)
1. (U/AIUO) For some time the Office of Logistics (OL) has
.been working with the -Position Management and Compensation Divi-
sion, Office of Personnel (OP/PMCD), and the Office of General
Counsel, trying to resolve a very difficult administrative problem
involving two OL safehouse keepers and their entitlements under 25X1A
the Fair Labor Standards Act (FLSA).
?2. (C) On 29 September 1975,
entered into 2-year contracts with the a e ouse Section, Real
Estate Branch, Real.Estate and Construction Division, OL. The con-
25X1A tracts provided for to work 40 hours per week as
custodian and for M to work 30 hours per. week as
housekeeper for a sa e ouse in the local vicinity. For their
services, they were provided meals and quarters in addition to
weekly GS salaries. It has been brought to our attention that
--the method of remuneration may not have been in compliance with
FLSA.
25X1A 3. (C) Mr. and were paid as though they
worked a regular schedule and were never compensated for overtime 25X1A
even though, the requirements of both positions necessitated the
incumbents to work irregular hours and cyclical schedules. The
safehouse was occupied approximately 58 percent of the time be-
tween 29 September 1975, and 28 Se tember 1977. When guests were
in residence, undoubtedly worked in excess
of 40 hours p n the other hand, there were many weeks
when the safehouse remained vacant and required a minimal amount
of maintenance. They were never required to keep a?log of the
actual hours and days worked until October 1977, at which time
they.were provided new contracts. During the time the safehouse
is occupied, the housekeeper is required to buy food, plan menus,
cook, serve, and totally maintain the house including
beds, cleaning etc., for as many as 25X1A
E2.IMPDET CL BY 059084
OL -7 5081
Approved For Release 200 3-010048000300120017-1
tit
 ~ItCT.ppf~i8(ieef0ers05and FLSA (U/AIUO) 300120017-1
I
In many insta
and Sundays a
nces, this re
nd some overt
quires 14 hours of overtime for Saturdays
ime the re
t
f
25
style is to wo
s
o
the week. .Since the
rk as a team
in that th
fi
d i
'
,
ey
n
t
easier to make beds togethe
possible for us to control
determine how much overtime
them to kee
t
k
r, shop together, etc., it has been im-
overtime or, for that matter, to easily
is actually necessary. Until we asked
p
rac
of overt
never menti
d
ime last October, the have 25X1A
one
overtime no
other hand, are apparently
for overtime worked. At th
reviewed this office
inclu
r have they requested it. We, on the
bound by FLSA to reimburse in some way
e suggestion of OP/PMCD, who recently
din
th
25
A
,
are a part, we
g
e Safehouse Section of which the
have converted the
t
b
d
e
m
o wage
oar
--
as a regular full-time
he as a part-time employee,
annum). They are receiving
free room. Free meals are
which is approximately 60 p
employee (WG-05/1 or $11,773 per annum);
30 hours a week (WG-O1/1 or $6521 per
the above remuneration in addition to
provided when the safehouse is occupied
ercent of the ti
W
25
A the have been a
me.
e have always felt
mpl
aid f
artic
l
y p
or the services rendered
p
u
ar
ties are a
quirements
half for a
cess of wh
ly since approxim
lmost nonexistent
strictly adhered
ll overtime, we f
at is justified in
ately 40 p
. When, h
to, i.e.,
eel that t
these ci
ercent of the time their
owever, faced with FLSA r
paying them full time an
hey would be paid far in
rcumstances.
,
du-
e-
d a
ex-
4.
(C) With the assi
t
25X1A
A
s
ance of
25
I
f
o
your office
w
e rece
d f
mi
i
h
,
ive
rom the Civil Service
Com-
ss
on t
e attached which s
satisfied if the employee's
cess of 40 hours is computed
.of pay." While paying one h
d
tates in cases like this .,FLSA is
overtime compensation for work in ex-
at 'one-half' times his regular rate
alf their regular rate of pay would
re
uce considerably the amou
alternative method of compen
pay in lieu of overtime. In
uled and uncontrolled since
i
nt paid for overtime, we prefer an
sation and that is 10 percent premium
our opinion their overtime is unsched-
we cannot anticipate in advance re-
qu
rements for the safehouse
house, are we able to contro
ov
ti
nor, once occupants are in the safe-
l in any way the amount of necessary
er
me that must be provid
th
d
ed by the In allowing 25X1A
e secon
option of premium
the Government would greatly
that 10 percent of their sal
paid at the rate of one half
c
t
pay rather than overtime pay, we feel
benefit since rough calculations show
ary would be less than overtime if
times their regular pay for 60 per-
en
occupancy of the safeho
ally, the Agency would benef
and the Office of Finance in
ekl
use for the calendar year. Addition-
it from all the time saved this Office
keeping track of and processing bi-
we
y the. continuing overtim
e reports.
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 K~u)fL ~ J Ly s
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( 12-17 ?
MAW
VILE CODE NUMBER
551-4-5 c
ST/MI NTL
PAY /sND LE\VE AI):;Y:;1STI ATIo:~ .SECTION
TCLEI'IHCINI:
,q I'll T
.S131131:1' M Employee's Residing on Employer's Premises - What are hours worked?
ORGAN, 17./i f I ON
CIA
a specif[c workweek. They,,are paid equivalent GS salaries and are furnished
meals and quarters. Question: flow to pay these-employees in compliance with
i e, .t? Cooks and custodia!)s live on the. premises and perform
housekeeping functions for live-in students. They work irregu'ar hours
arcs the t:cqjlrbmtht to work is cyclical depending on whether students are
currently living Iii or not. Sometimes they perform over 40 hours work in
the FLSA
extended periods of time is not consinered as working.all.the time he is on
the premises. If the employee is provided time for eating, sleeping, enter-
taining, and other periods of complete freedom from all duties during which
he may leave the premises for purposes of his own, any reasonable agreement
between the employer and the employee which takes into consideration all of
the pertinent facts will be accepted. 1/
The employee must be paid at least the minimum wage rate for all hours actually
worked and he must be paid at one and one-half tines his regular rate of pay
for-a11 work in excess of 40 hours--in_a workweek.2/ If, as in this case, the
agreement provides for a weekly salary (biweekly or other periodic salary)
regardless of the number of hours worked, the overtime pay require=cr:t cf the-
FLSA is satisfied if the employee's overtime compensation for work in(~excgss
ipuxj_i ed at "one-half" times his regular rate of
29 C.F.R. 785.23' .ms s. Co(? 'Vj =
29 C.F.R. 778.114
Skelly Oil- Co. v., Jac . kson, 148 P.2d..182 (Okla Sup Ct) -copy attached.
Will: C1-OS! 1)
Dec 7, 197(1 _
n employee who resides on the employer's premises on a permanent basis or for
DATE Dec 7, 1976
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 Ap roved For R lease 2002/05/23: CIA-RDP83-010 4R00W120017-1
SUBJECT: Saf use Keepers and FLSA (U/0)
5. (U/AIUO) We would much appreciate your opinion on OL?s
legal responsibilities in these cases and especially the two op-?
tions discussed in para above. If more information is nec-
essary, please contact Personnel and Training Staff25X1A
OL, on extension
3
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1/ When employer and employees have agreed upon an arrapgement which hhs proven
mutually satisfactory, we should not upset it and approve an inflexible and
artifickalL interpretation of the Act which finds no support in its text and
which as it practical matter eliminates the possibility 6f steady income to
employees with irregular hours. Walling v. A.H. Belo Corporation, 316 U.S.&24,
cited in IS1thlly, Oil Co v. Jackson,
2/ An employee Kay not enter into agreement as to the computation of hours
(worked) which operates to waive compensation for overtime actually worked.
f'
Skelly
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