A-25239, DECEMBER 5, 1928, 8 COMP. GEN. 282

A-25239: Dec 5, 1928

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WHERE EMPLOYEE RECEIVED EXTRA PAY FOR NIGHT WORK THE EXTRA PAY RECEIVED BY AN EMPLOYEE IN THE POSTAL SERVICE FOR NIGHT WORK DURING REGULAR WORKING HOURS AT NIGHT IS NOT "OVERTIME PAY" WITHIN THE MEANING OF SECTION 12 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7. SHOULD BE REGARDED AS A PART OF THE REGULAR MONTHLY PAY OF THE EMPLOYEE ON THE BASIS OF WHICH DISABILITY COMPENSATION IS TO BE COMPUTED. COMPENSATION PAYABLE TO AN INJURED EMPLOYEE IS BASED UPON THE MONTHLY PAY OF SUCH EMPLOYEE AT THE TIME OF INJURY. SECTION 12 OF THE ACT PROVIDES: "THAT IN COMPUTING THE MONTHLY PAY THE USUAL PRACTICE OF THE SERVICE IN WHICH THE EMPLOYEE WAS EMPLOYED SHALL BE FOLLOWED. IN WHICH IT WAS HELD THAT ADDITIONAL PAY FOR NIGHT WORK ALLOWED TO EMPLOYEES IN THE POSTAL SERVICE UNDER THE ACT OF MAY 24.

A-25239, DECEMBER 5, 1928, 8 COMP. GEN. 282

DISABILITY COMPENSATION - COMPUTATION OF, WHERE EMPLOYEE RECEIVED EXTRA PAY FOR NIGHT WORK THE EXTRA PAY RECEIVED BY AN EMPLOYEE IN THE POSTAL SERVICE FOR NIGHT WORK DURING REGULAR WORKING HOURS AT NIGHT IS NOT "OVERTIME PAY" WITHIN THE MEANING OF SECTION 12 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 746, BUT SHOULD BE REGARDED AS A PART OF THE REGULAR MONTHLY PAY OF THE EMPLOYEE ON THE BASIS OF WHICH DISABILITY COMPENSATION IS TO BE COMPUTED.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN OF THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION, DECEMBER 5, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF NOVEMBER 21, 1928, AS FOLLOWS:

UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 7, 1916 (39 STAT. 746), COMPENSATION PAYABLE TO AN INJURED EMPLOYEE IS BASED UPON THE MONTHLY PAY OF SUCH EMPLOYEE AT THE TIME OF INJURY. SECTION 12 OF THE ACT PROVIDES:

"THAT IN COMPUTING THE MONTHLY PAY THE USUAL PRACTICE OF THE SERVICE IN WHICH THE EMPLOYEE WAS EMPLOYED SHALL BE FOLLOWED. SUBSISTENCE AND THE VALUE OF QUARTERS FURNISHED AN EMPLOYEE SHALL BE INCLUDED AS PART OF THE PAY, BUT OVERTIME PAY SHALL NOT BE TAKEN INTO ACCOUNT.'

THE DECISION OF YOUR OFFICE DATED JUNE 8, 1928, IN WHICH IT WAS HELD THAT ADDITIONAL PAY FOR NIGHT WORK ALLOWED TO EMPLOYEES IN THE POSTAL SERVICE UNDER THE ACT OF MAY 24, 1928 (C. 725, 45 STAT.), IS IN THE NATURE OF A BONUS AND DOES NOT CONSTITUTE A PART OF THE BASIC PAY, RAISES A QUESTION WITH RESPECT TO THE DETERMINATION OF THE MONTHLY PAY OF AN INJURED EMPLOYEE ENTITLED TO COMPENSATION UNDER THE ACT OF SEPTEMBER 7, 1916.

YOUR DECISION IS, THEREFORE, REQUESTED AS TO WHETHER ADDITIONAL PAY FOR NIGHT WORK SHALL BE CONSIDERED OVERTIME PAY AS THAT TERM IS USED IN THE SECTION QUOTED AND THUS EXCLUDED FROM THE COMPUTATION OF AN INJURED EMPLOYEE'S MONTHLY PAY OR WHETHER THE TOTAL AMOUNT RECEIVED BY AN EMPLOYEE FOR NIGHT WORK DURING REGULAR WORKING HOURS AT NIGHT SHALL BE TAKEN AS HIS REGULAR MONTHLY PAY.

THE DECISION OF JUNE 8, 1928, 7 COMP. GEN. 778, TO WHICH YOU REFER, CONSIDERED THE STATUS OF EXTRA PAY FOR NIGHT WORK AUTHORIZED FOR POSTAL EMPLOYEES WITH RELATION TO THE PHRASE APPEARING IN THE CIVIL RETIREMENT ACT "BASIC SALARY, PAY, OR COMPENSATION.' IT DOES NOT NECESSARILY FOLLOW, BECAUSE EXTRA PAY FOR NIGHT WORK MAY NOT BE CONSIDERED AS "BASIC SALARY, PAY, OR COMPENSATION" OF A POSITION, AS HELD IN THE MENTIONED DECISION, THAT SUCH EXTRA PAY FOR NIGHT WORK IS "OVERTIME PAY" WITHIN THE MEANING OF THE EMPLOYEES' COMPENSATION ACT.

IN THE ABSENCE OF ANY PROVISION TO THE CONTRARY, THE TERM "OVERTIME PAY" SHOULD BE GIVEN ITS USUAL MEANING, WHICH IS, PAY FOR TIME WORKED IN ADDITION TO REGULAR WORKING HOURS FIXED BY LAW OR REGULATION, EITHER DURING THE DAY OR NIGHT. THE EXTRA PAY AUTHORIZED FOR NIGHT WORK IS NOT OVERTIME PAY BUT IS ADDITIONAL PAY AUTHORIZED FOR WORK AT NIGHT DURING REGULAR WORKING HOURS FIXED BY LAW OR REGULATION. USUALLY OVERTIME WORK IS IRREGULAR, WHEREAS NIGHT WORK IN THE POSTAL SERVICE IS USUALLY REGULAR. THE AMOUNT OF DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT IS REQUIRED TO BE DETERMINED ON THE BASIS OF THE REDUCED EARNING CAPACITY. SEE SECTION 6 OF THE ORIGINAL STATUTE, AND AS AMENDED BY THE ACT OF FEBRUARY 12, 1927, 44 STAT. 1086, AND SECTION 13 OF THE ORIGINAL STATUTE. ALL EMPLOYEES WHO ARE ABLE TO WORK DURING THE DAY MAY NOT BE ABLE TO WORK AT NIGHT. HENCE, IT MAY BE SAID THAT A NIGHT WORKER HAS A GREATER EARNING CAPACITY THAN A DAY WORKER IN THE SAME POSITION.

IN VIEW OF THESE CONSIDERATIONS, I AM CONSTRAINED TO HOLD THAT EXTRA PAY FOR NIGHT WORK DURING REGULAR WORKING HOURS IN THE POSTAL SERVICE IS NOT OVERTIME PAY WITHIN THE MEANING OF SECTION 12 OF THE EMPLOYEES' COMPENSATION ACT, BUT SHOULD BE REGARDED AS A PART OF THE REGULAR MONTHLY PAY OF THE EMPLOYEE ON THE BASIS OF WHICH DISABILITY COMPENSATION IS TO BE COMPUTED.