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B-11300, JULY 23, 1940, 20 COMP. GEN. 39

B-11300 Jul 23, 1940
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- FOR EIGHT HOURS WORK ON A SATURDAY AND IS NOT LIMITED TO ONE HALF OF HIS DAILY RATE AS ADDITIONAL PAY FOR SUCH OVERTIME WORK ON THE BASIS THAT IT IS USUALLY CONSIDERED PER ANNUM EMPLOYEES ARE PAID FOR NONWORK DAYS AS WELL AS WORK DAYS. 1940: I HAVE YOUR LETTER OF JULY 15. WHOSE WAGES ARE SET BY THE ACT OF JULY 16. 600 PER ANNUM IS EMPLOYED EIGHT HOURS PER DAY ( MONDAY TO FRIDAY INCLUSIVE. HE IS REQUIRED TO WORK AN ADDITIONAL EIGHT HOURS ON SATURDAY MAKING A TOTAL OF FORTY- EIGHT HOURS WORK FOR THE WEEK. IN VIEW OF THE FACT THAT THE PER ANNUM COMPENSATION OF THE EMPLOYEE IS BASED ON A STATUTORY FORTY-HOUR WORK WEEK. $150.00 FOR THE SEMI-MONTHLY PAY PERIOD IN WHICH THE OVERTIME WORK WAS PERFORMED THE EMPLOYEE SHOULD RECEIVE EXTRA COMPENSATION FOR OVERTIME IN THE SUM OF $15.00 (HIS PER DIEM RATE ACCORDING TO LAW PLUS 50 PERCENT).

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B-11300, JULY 23, 1940, 20 COMP. GEN. 39

COMPENSATION FOR OVERTIME WORK ON SATURDAY - PER ANNUM EMPLOYEES OF NAVY DEPARTMENT UNDER SECTION 5 (A) OF THE ACT OF JUNE 28, 1940, PUBLIC, NO. 671, 54 STAT. 678 A PER ANNUM EMPLOYEE OF THE NAVY DEPARTMENT REGULARLY REQUIRED TO WORK EIGHT HOURS ON EACH DAY OF THE WEEK FROM MONDAY TO FRIDAY, BOTH INCLUSIVE, MAY BE PAID AS OVERTIME PAY, AND IN ADDITION TO HIS FULL REGULAR COMPENSATION, ONE AND ONE-HALF TIMES HIS DAILY RATE OF PAY--- THE DAILY RATE BEING ONE THREE-THUNDRED-AND-SIXTIETH OF THE PER ANNUM RATE--- FOR EIGHT HOURS WORK ON A SATURDAY AND IS NOT LIMITED TO ONE HALF OF HIS DAILY RATE AS ADDITIONAL PAY FOR SUCH OVERTIME WORK ON THE BASIS THAT IT IS USUALLY CONSIDERED PER ANNUM EMPLOYEES ARE PAID FOR NONWORK DAYS AS WELL AS WORK DAYS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JULY 23, 1940:

I HAVE YOUR LETTER OF JULY 15, 1940, AS FOLLOWS:

SECTION 58 (5. (A) ( OF PUBLIC ACT 671--- 76TH CONGRESS, APPROVED JUNE 28, 1940, ENTITLED " AN ACT TO EXPEDITE NATIONAL DEFENSE AND FOR OTHER PURPOSES" CONTAINS THE FOLLOWING PROVISION:

"NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, THE REGULAR WORKING HOURS OF THE NAVY DEPARTMENT AND THE COAST GUARD AND THEIR FIELD SERVICES SHALL BE EIGHT HOURS A DAY OR FORTY HOURS PER WEEK DURING THE PERIOD OF THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT ON SEPTEMBER 8, 1939, TO EXIST: PROVIDED, THAT UNDER SUCH REGULATIONS AS THE HEAD OF THE DEPARTMENT CONCERNED MAY PRESCRIBE, AND WHERE ADDITIONAL EMPLOYEES CANNOT BE OBTAINED TO MEET THE EXIGENCIES OF THE SITUATION, THESE HOURS MAY BE EXCEEDED: PROVIDED FURTHER, THAT COMPENSATION FOR EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK COMPUTED AT A RATE NOT LESS THAN ONE AND ONE HALF TIMES THE REGULAR RATE SHALL BE PAID ONLY TO MONTHLY, PER DIEM, HOURLY, AND PIECEWORK EMPLOYEES, WHOSE WAGES ARE SET BY THE ACT OF JULY 16, 1862 (12 STAT. 587), AS AMENDED OR MODIFIED; AND ALSO TO PROFESSIONAL AND SUBPROFESSIONAL EMPLOYEES AND TO BLUEPRINTERS, PHOTOSTAT AND ROTAPRINT OPERATORS, INSPECTORS, SUPERVISORY PLANNERS AND ESTIMATORS, AND SUPERVISORY PLANNERS AND ESTIMATORS, AND SUPERVISORY PROGRESSMEN, AND ASSISTANTS TO SHOP AND PLANT SUPERINTENDENTS OF THE CAF SERVICE, AS DEFINED IN THE CLASSIFICATION ACT OF MARCH 4, 1923 (42 STAT. 1488; U.S.C. 5, CH. 13), AS AMENDED: PROVIDED FURTHER, THAT IN DETERMINING THE OVERTIME COMPENSATION OF PER ANNUM GOVERNMENT EMPLOYEES THE PAY FOR ONE DAY SHALL BE CONSIDERED TO BE ONE THREE-HUNDRED-AND-SIXTIETH OF THEIR RESPECTIVE PER ANNUM SALARIES: * * *.'

A QUESTION HAS BEEN RAISED AS TO THE LEGAL METHOD OF COMPUTING OVERTIME FOR SUCH PER ANNUM EMPLOYEES ENTITLED TO OVERTIME COMPENSATION UNDER THE ABOVE QUOTED PROVISION IN THE FOLLOWING SPECIFIC CASE:

"AN ASSOCIATE NAVAL ARCHITECT, GRADE P-3, EMPLOYED AT A SALARY OF $3,600 PER ANNUM IS EMPLOYED EIGHT HOURS PER DAY ( MONDAY TO FRIDAY INCLUSIVE, FIVE DAYS, FORTY HOURS) IN ONE ADMINISTRATIVE WORK WEEK. HE IS REQUIRED TO WORK AN ADDITIONAL EIGHT HOURS ON SATURDAY MAKING A TOTAL OF FORTY- EIGHT HOURS WORK FOR THE WEEK. THE QUESTION ARISES AS TO THE AMOUNT OF COMPENSATION FOR THE EIGHT HOURS OF WORK IN EXCESS OF FORTY PERFORMED ON SATURDAY.'

IN VIEW OF THE FACT THAT THE PER ANNUM COMPENSATION OF THE EMPLOYEE IS BASED ON A STATUTORY FORTY-HOUR WORK WEEK, IT APPEARS THAT IN ADDITION TO HIS REGULAR COMPENSATION, $150.00 FOR THE SEMI-MONTHLY PAY PERIOD IN WHICH THE OVERTIME WORK WAS PERFORMED THE EMPLOYEE SHOULD RECEIVE EXTRA COMPENSATION FOR OVERTIME IN THE SUM OF $15.00 (HIS PER DIEM RATE ACCORDING TO LAW PLUS 50 PERCENT). IN OTHER WORDS, ASSUMING THAT ONLY EIGHT HOURS' OVERTIME WORK IN EXCESS OF THE FORTY-HOUR WEEK ARE INVOLVED DURING ANY SEMI-MONTHLY PAY PERIOD OF THIS EMPLOYEE, SHOULD NOT THE EMPLOYEE BE PAID $165.00, $150.00 STRAIGHT PAY PLUS $15.00 OVERTIME PAY?

AS THE NAVY DEPARTMENT HAS ISSUED INSTRUCTIONS TO ITS ACCOUNTING AND DISBURSING OFFICERS TO WITHHOLD PAYMENT OF ADDITIONAL COMPENSATION FOR OVERTIME TO PER ANNUM EMPLOYEES UNTIL THE LEGAL METHOD TO BE EMPLOYED IN COMPUTING SUCH COMPENSATION HAS BEEN DETERMINED, IT IS REQUESTED THAT YOUR DECISION ON THE QUESTION ABOVE SET FORTH BE RENDERED AT THE EARLIEST PRACTICABLE DATE.

IT IS SPECIFICALLY PROVIDED BY THE SECTION, A PART OF WHICH IS QUOTED IN YOUR LETTER, THAT DEPARTMENTAL AND FIELD SERVICE EMPLOYEES OF THE NAVY DEPARTMENT MAY WORK IN EXCESS OF 40 HOURS PER WEEK WHERE ADDITIONAL EMPLOYEES CANNOT BE OBTAINED TO MEET THE EXIGENCIES OF THE SITUATION; THAT COMPENSATION FOR SUCH OVERTIME SERVICE MAY BE PAID TO CERTAIN EMPLOYEES, INCLUDING "PROFESSIONAL" EMPLOYEES, AT A RATE NOT LESS THAN 1 1/2 TIMES THEIR REGULAR COMPENSATION RATE; AND THAT "IN DETERMINING THE OVERTIME COMPENSATION OF PER ANNUM GOVERNMENT EMPLOYEES THE PAY FOR 1 DAY SHALL BE CONSIDERED TO BE ONE THREE-HUNDRED-AND SIXTIETH OF THEIR RESPECTIVE PER ANNUM SALARIES: "

IN THE PAYMENT OF THE COMPENSATION OF PER ANNUM EMPLOYEES IT IS USUALLY CONSIDERED THAT THE EMPLOYEE RECEIVES COMPENSATION FOR THE NON WORK DAYS AS WELL AS FOR THE DAYS ON WHICH WORK IS PERFORMED, SO THAT, IN THE CASE OF AN EMPLOYEE SUCH AS THE ONE REFERRED TO IN YOUR LETTER ALTHOUGH HE IS REQUIRED TO WORK ONLY 5 DAYS OF 8 HOURS EACH DURING A WEEK TO BE ENTITLED TO HIS REGULAR SALARY PAYMENTS, SAID PAYMENTS ARE COMPUTED ON THE BASIS OF A 30-DAY MONTH. SEE SECTION 6 OF THE ACT OF JUNE 30, 1906, 34 STAT. 763. THUS,"EXCLUDING THE THIRTY-FIRST DAY OF ANY CALENDAR MONTH FROM THE COMPUTATION," WHEN THE PAYMENTS MADE ARE REDUCED TO A DAILY BASIS IT RESULTS THAT FOR THE 40 HOURS OF WORK PERFORMED ON MONDAY TO FRIDAY, INCLUSIVE, THE EMPLOYEE RECEIVES $10 FOR EACH DAY OF THE WEEK INCLUDING SATURDAY AND SUNDAY. CONSIDERED ON THAT BASIS, AND, SINCE THE EMPLOYEE REGULARLY RECEIVES $10 FOR SATURDAY, IF HE WORKS 8 HOURS OVERTIME ON THAT DAY THE PAYMENT OF AN ADDITIONAL $5 FOR THAT DAY MIGHT BE TAKEN AS CONSTITUTING PAYMENT FOR TIME AND ONE HALF AS PROVIDED BY THE ACT HERE IN QUESTION. IT IS NOT BELIEVED, HOWEVER, THAT SUCH HOLDING WOULD BE JUSTIFIED OR SUPPORTED BY THE LEGISLATIVE HISTORY OF THE PROVISIONS OF LAW UNDER CONSIDERATION. THE HOUSE COMMITTEE REPORT ON THE LEGISLATION STATES AS FOLLOWS:

OVERTIME PAY HAS HERETOFORE NOT BEEN ALLOWED TO ANY PER ANNUM EMPLOYEES OF THE GOVERNMENT, ALTHOUGH OVERTIME PAY AT TIME AND ONE HALF IS ALLOWED TO PER DIEM EMPLOYEES. THIS SECTION CORRECTS THAT INEQUALITY BY GRANTING OVERTIME PAY TO THE DRAFTSMEN, ENGINEERS, AND OTHER SUBPROFESSIONAL AND PROFESSIONAL EMPLOYEES AND OTHERS UPON WHOSE RAPID PRODUCTION OF DESIGNS AND WORKING PLANS NEARLY ALL SHIP AND AIRCRAFT WORK DEPENDS.

IN ORDER TO CALCULATE THE AMOUNT OF OVERTIME PAY FOR PER ANNUM EMPLOYEES IT IS NECESSARY TO SPECIFY IN THE ACT THE CORRESPONDING DAILY PAY. THIS HAS BEEN DONE IN ACCORDANCE WITH LONGSTANDING GOVERNMENT CUSTOM BY FIXING IT AT ONE THREE-HUNDRED-AND-SIXTIETH OF THE ANNUAL SALARY ON THE CUSTOMARY BASIS OF 12 MONTHS TO A YEAR AND 30 DAYS TO A MONTH. ( ITALICS SUPPLIED.) ( HOUSE REPORT NO. 2257, 76TH CONGRESS, 3D SESSION, PAGE 4.)

THERE IS NOTED, ALSO, THE CONFERENCE REPORT ON THE LEGISLATION, WHEREIN THE MANAGERS ON THE PART OF THE HOUSE SUBMITTED THE FOLLOWING EXPLANATION REGARDING A CONFERENCE ADJUSTMENT OF A DISAGREEMENT BETWEEN THE HOUSE AND THE SENATE RESPECTING THIS MATTER OF OVERTIME PAY.

AMENDMENT NO. 19: MODIFIES SENATE PROVISIONS BY REFUSING TO ALLOW TIME AND ONE-HALF FOR OVERTIME TO PER ANNUM EMPLOYEES EXCEPT THOSE SPECIFICALLY STATED, NAMELY PROFESSIONAL AND SUBPROFESSIONAL EMPLOYEES AND A FEW EMPLOYEES OF THE CAF GROUP, SUCH AS BLUEPRINTERS, ROTAPRINT OPERATORS, INSPECTORS, SUPERVISORY PLANNERS, AND ESTIMATORS. IT DENIES OVERTIME COMPENSATION TO THE CLERKS, STENOGRAPHERS, TYPISTS, ETC. ( HOUSE REPORT NO. 2706, 76TH CONGRESS, 3D SESSION, PAGE 6.)

IT SEEMS APPARENT FROM THE FOREGOING THAT THE INTENT AND THE PURPOSE OF THE LAW INSOFAR AS IT RELATES TO THE ALLOWANCE OF OVERTIME COMPENSATION TO PER ANNUM EMPLOYEES WERE TO PLACE SUCH EMPLOYEES ON AN EQUAL BASIS WITH PER DIEM EMPLOYEES AS NEARLY AS POSSIBLE, SO THAT THEY WOULD RECEIVE OVERTIME COMPENSATION WHEN REQUIRED TO WORK OVERTIME, AS WAS THE CASE WITH RESPECT TO PER DIEM EMPLOYEES. AS COMPARED TO A PER DIEM EMPLOYEE THE COMPENSATION OF THE PER ANNUM EMPLOYEE REFERRED TO IN YOUR LETTER IS SUBSTANTIALLY $75 PER WEEK, OR $15 PER DAY FOR THE 5 REGULAR WORKING DAYS. BUT IF THE PER DIEM EMPLOYEE ALSO RECEIVING A PER DIEM RATE OF $15 A DAY IS REQUIRED TO WORK ON SATURDAY, HE WOULD RECEIVE ONE AND ONE-HALF TIMES $15 OR $22.50. THE PER ANNUM EMPLOYEE IS NOT ALLOWED TO RECEIVE THAT AMOUNT UNDER THE LAW. THE OVERTIME PAY WHICH HE IS TO RECEIVE IS TO BE COMPUTED AS PROVIDED IN THE LAST PROVISO QUOTED ABOVE, THAT IS TO SAY, ON THE BASIS THAT HIS DAILY RATE OF PAY IS $10 RATHER THAN $15. IT WOULD SEEM TO BE CLEAR, HOWEVER, THAT THE PER ANNUM EMPLOYEE IS PAID HIS REGULAR SALARY FOR WORKING 5 DAYS DURING THE WORKWEEK AS ESTABLISHED BY ADMINISTRATIVE ACTION, AND THAT IF WORK IS IN FACT REQUIRED OF HIM ON SATURDAY IT IS OVERTIME WORK WHICH THE LAW HERE UNDER CONSIDERATION PROVIDES THAT HE SHOULD RECEIVE COMPENSATION ON THE BASIS OF NOT LESS THAN TIME AND ONE-HALF COMPUTED AS THEREIN INDICATED.

ACCORDINGLY, IN SPECIFIC ANSWER TO THE QUESTION YOU SUBMIT I HAVE TO ADVISE THAT THE COMPUTATION OF THE OVERTIME COMPENSATION OF $15 FOR THE EMPLOYEE TO WHICH YOU REFER AND UNDER THE CIRCUMSTANCES STATED APPEARS CORRECT, PROVIDED, OF COURSE, THAT THE CASE IS ONE WHERE "ADDITIONAL EMPLOYEES CANNOT BE OBTAINED TO MEET THE EXIGENCIES OF THE SITUATION.'

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