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B-167804 1 (1976-01-23)

handle is hein.gao/gaobaddsh0001 and id is 1 raw text is: THEE COINiPTROLLER GENERAL DECISIDPJ . I OF THE UNITED STATES WASHINGTON, D. C. 20548 FILE: B-167804 DATE: January 23, 1976 MATTER OF: Charles Gulliford, Joseph Jenkins, and Allen Benjamin - request for waiver of overpayment *of pay DIGEST: Where employees have knowledge of erroneous payment of overtime compensation but do not set aside amount of overpayment in anticipation of refunding it to the.United States, employees are guilty of lack of good faith and waiver is prohibited by law. 5 U.S.C. § 5584(b)(1) (1970). This action is in response to the letter of Assistant Commissioner John A. Hurley of the Department of the Treasury, United States Customs Service, dated October 2, 1974, requesting reconsideration of the deter- mination of our Transportation and Claims Division (TCD) on August 14, 1974, denying a waiver of erroneous overtime compensation to Messrs. Charles Gulliford, Joseph Jenkins, and Allen Benjamin under the provi- sions of 5 U.S.C. § 5584 (1970). The record shows that Messrs. Gulliford, Jenkins, and Benjamin were employed as part-time when-actually-employed (WAE) employees of the U.S. Customs Service. Prior to April 30, 1970, it had been the policy of the Customs Service to compensate part-time WAE employees under the provi- sions of the Customs overtime laws for services performed between 5 p.m. and 8 a.m. on weekdays. However, on March 11, 1970, the Comptroller General, in decision B-167804, ruled that part-time immigration inspec- tors employed by the Immigration and Naturalization Service, on an intermittent basis similar to the basis on which part-time WAE employees are employed at the Customs Service, were not entitled to overtime pay for services performed between the hours of 5 p.m. and 8 a.m. on week- days under provisions of 8 U.S.C. § 1353a (1970). The Customs Service was notified of that decision by letter from the Comptroller General on March 11, 1970. Furthermore, the Customs Service was advised by the Comptroller General that since the language of 19 U.S.C. § 267 (1970), the statutory provision under which the Customs Service's part-time WAE employees were being paid overtime compensation, was similar to the language of 8 U.S.C. § 1353a (1970), the statutory provision under which the Imnigration and Naturalization Service part-time employees had unsuccessfully claimed they were entitled to overtime pay, appropriate action should be taken to bring the pay practices of the Customs Service into conformance with the decision. 0)

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