A-25610, JANUARY 19, 1929, 8 COMP. GEN. 379

A-25610: Jan 19, 1929

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PER HOUR RATES SHOULD BE COMPUTED BY DIVIDING THE PER DIEM RATES BY THE NUMBER OF HOURS THE RESPECTIVE CLASSES OF WORKERS ARE REQUIRED TO WORK EACH DAY EXCLUSIVE OF OVERTIME. WHO ARE EMPLOYED IN AN EMERGENCY FOR PERIODS OF ONE DAY AT A TIME AS AUTHORIZED UNDER CUSTOMS REGULATIONS. ARE NOT WITHIN THE TERMS OF THE CUSTOMS CLASSIFICATION ACT OF MAY 29. IT IS NECESSARY IN THE ADMINISTRATION OF THE CUSTOMS BUSINESS TO APPOINT EMPLOYEES IN THE VARIOUS GRADES ABOVE SPECIFIED FOR SHORT PERIODS OF TIME AT A PER DIEM RATE. AS THESE PER DIEM EMPLOYEES ARE ONLY PAID FOR THE DAYS ON WHICH THEY PERFORM SERVICES. YOUR DECISION OUTLINING THE PROPER PER DIEM RATES WHICH SHOULD BE PAID TO THE EMPLOYEES IN QUESTION IS ACCORDINGLY REQUESTED.

A-25610, JANUARY 19, 1929, 8 COMP. GEN. 379

COMPENSATION - CUSTOMS SERVICE EMPLOYEES THE PER DIEM RATES OF COMPENSATION OF TEMPORARY UNCLASSIFIED EMPLOYEES IN THE CUSTOMS FIELD SERVICE HOLDING ANY OF THE CLASSES OF POSITIONS MENTIONED IN THE CUSTOMS CLASSIFICATION ACT OF MAY 29, 1928, 45 STAT. 955, SHOULD BE COMPUTED BY DIVIDING THE MINIMUM ANNUAL SALARY RATES FIXED BY THE STATUTE FOR THE RESPECTIVE CLASSES OF POSITIONS HELD INTO 12 EQUAL PARTS AND THEN INTO 30 EQUAL PARTS IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF JUNE 30, 1906, 34 STAT. 763. PER HOUR RATES SHOULD BE COMPUTED BY DIVIDING THE PER DIEM RATES BY THE NUMBER OF HOURS THE RESPECTIVE CLASSES OF WORKERS ARE REQUIRED TO WORK EACH DAY EXCLUSIVE OF OVERTIME. TEMPORARY DAY LABORERS IN THE CUSTOMS FIELD SERVICE, WHO ARE EMPLOYED IN AN EMERGENCY FOR PERIODS OF ONE DAY AT A TIME AS AUTHORIZED UNDER CUSTOMS REGULATIONS, ARE NOT WITHIN THE TERMS OF THE CUSTOMS CLASSIFICATION ACT OF MAY 29, 1928, 45 STAT. 955, BUT THEIR PER DIEM RATES OF COMPENSATION MAY BE FIXED ADMINISTRATIVELY AT THE SAME RATES PAID AT THE RESPECTIVE PORTS TO LABORERS PERFORMING SIMILAR SERVICE IN PRIVATE EMPLOYMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JANUARY 19, 1929:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF DECEMBER 26, 1928, AS FOLLOWS:

THE ACT OF MAY 29, 1928, GENERALLY REFERRED TO AS THE BACHARACH ACT, PROVIDES FOR THE CLASSIFICATION OF CERTAIN EMPLOYEES IN THE CUSTOMS SERVICE WITH MINIMUM SALARIES AS FOLLOWS:

LABORERS -------------------------------------------- $1,500

VERIFIERS, OPENERS, AND PACKERS --------------------- 1,680

CLERKS ---------------------------------------------- 1,700

CUSTOMS GUARDS -------------------------------------- 1,860

INSPECTORS ------------------------------------------ 2,100

THE ACT FURTHER PROVIDES THAT ALL NEW APPOINTMENTS OF EMPLOYEES SPECIFIED THEREIN SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE SALARY RANGE.

IT IS NECESSARY IN THE ADMINISTRATION OF THE CUSTOMS BUSINESS TO APPOINT EMPLOYEES IN THE VARIOUS GRADES ABOVE SPECIFIED FOR SHORT PERIODS OF TIME AT A PER DIEM RATE. AS THESE PER DIEM EMPLOYEES ARE ONLY PAID FOR THE DAYS ON WHICH THEY PERFORM SERVICES, THE QUESTION HAS ARISEN AS TO THE PROPER FIXING OF PER DIEM AND PER HOUR RATES. YOUR DECISION OUTLINING THE PROPER PER DIEM RATES WHICH SHOULD BE PAID TO THE EMPLOYEES IN QUESTION IS ACCORDINGLY REQUESTED; ALSO PER HOUR RATES.

IN THIS CONNECTION IT SHOULD BE STATED THAT THERE ARE TWO CLASSES OF LABORERS IN THE CUSTOMS SERVICE: (1) THE CLASSIFIED LABORERS APPOINTED THROUGH CIVIL SERVICE CHANNELS, AND (2) THE TEMPORARY DAY LABORERS EMPLOYED AS OCCASION MAY REQUIRE FOR A FEW DAYS AT A TIME AT SEVERAL OF THE LARGER PORTS. THESE LABORERS PERFORM DUTIES SIMILAR TO LONGSHOREMEN AND DOCK LABORERS AND ARE PICKED UP IN THE LABOR MART FROM DAY TO DAY AS NEEDED.

IT HAS BEEN THE PRACTICE IN THE PAST TO PAY A SLIGHTLY HIGHER RATE PER DAY FOR THESE TEMPORARY DAY LABORERS, AS OTHERWISE IT IS IMPOSSIBLE TO OBTAIN COMPETENT LABOR IN COMPETITION WITH COMMERCIAL AND INDUSTRIAL INTERESTS WHICH, BECAUSE OF THE INSECURITY OF THE POSITIONS, PAY HIGHER RATES FOR THIS CLASS OF LABOR THAN FOR LABORERS EMPLOYED ON PERMANENT JOBS. YOUR DECISION IS REQUESTED AS TO WHETHER SUCH DAY LABORERS COME WITHIN THE CLASSIFICATION OF THE ACT OF MAY 29, 1928, AND THE PER DIEM RATE WHICH MAY BE FIXED FOR THIS CLASS OF LABORER.

WITH RESPECT TO THE FIRST QUESTION--- THAT IS, AS TO THE PER DIEM AND PER HOUR RATES FOR THE POSITIONS MENTIONED IN THE FIRST PART OF YOUR LETTER--- I HAVE TO ADVISE THAT SINCE THERE IS NOW A SPECIFIC SALARY RATE FIXED BY STATUTE ON AN ANNUAL BASIS, THE PER DIEM EQUIVALENT SHOULD BE COMPUTED UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 30, 1906, 34 STAT. 763, AS FOLLOWS:

* * * ANNUAL COMPENSATION SHALL BE DIVIDED INTO TWELVE EQUAL INSTALLMENTS, ONE OF WHICH SHALL BE THE PAY FOR EACH CALENDAR MONTH; AND IN MAKING PAYMENTS FOR A FRACTIONAL PART OF A MONTH ONE-THIRTIETH OF ONE OF SUCH INSTALLMENTS, OR OF A MONTHLY COMPENSATION, SHALL BE THE DAILY RATE OF PAY. * * *

SUCH TEMPORARY UNCLASSIFIED POSITIONS MAY BE PAID ONLY AT THE MINIMUM SALARY RATE FIXED BY THE STATUTE FOR THE CHARACTER OF POSITION HELD. BEING UNDERSTOOD THAT THESE TEMPORARY UNCLASSIFIED EMPLOYEES ARE NOT SUBJECT TO THE PROVISIONS OF THE RETIREMENT ACT, THE MAXIMUM PER DIEM RATE OF COMPENSATION AUTHORIZED FOR LABORERS IS $4.17; VERIFIERS, OPENERS, AND PACKERS, $4.67; CLERKS, $4.72; CUSTOMS GUARDS, $5.17; INSPECTORS, $5.83. SEE GOVERNMENT SALARY TABLES ISSUED BY THIS OFFICE IN JULY, 1926. THE RATE PER HOUR SHOULD BE COMPUTED BY DIVIDING THE PER DIEM RATE ABOVE MENTIONED BY THE NUMBER OF HOURS THE RESPECTIVE CLASSES OF EMPLOYEES ARE REGULARLY REQUIRED TO WORK EACH DAY, EXCLUSIVE OF OVERTIME. SEE ARTICLE 1319, CUSTOMS REGULATIONS.

YOUR SECOND QUESTION IS WHETHER TEMPORARY DAY LABORERS COME WITHIN THE CUSTOMS CLASSIFICATION ACT OF MAY 29, 1928, AND, IF NOT, WHETHER A DIFFERENT PER DIEM RATE MAY BE FIXED FOR THEM. ARTICLE 1285, CUSTOMS REGULATIONS, 1923, PROVIDES FOR THREE CLASSES OF LABORERS, VIZ, CLASSIFIED, UNCLASSIFIED, AND TEMPORARY. IT IS UNDERSTOOD THAT THE STATUS OF CLASSIFIED LABORERS IS NOT PRESENTED, THAT QUESTION 1 RELATES TO UNCLASSIFIED LABORERS, AND THAT QUESTION 2 RELATES ONLY TO TEMPORARY DAY LABORERS, CONCERNING WHICH SAID ARTICLE PROVIDES FURTHER AS FOLLOWS:

TEMPORARY LABORERS, THE EMPLOYMENT OF WHOM IS RENDERED NECESSARY BY UNFORESEEN EMERGENCY, MAY BE EMPLOYED BY THE COLLECTOR OF CUSTOMS, OR APPRAISER OF MERCHANDISE, FOR PERIODS OF NOT MORE THAN ONE DAY WITHOUT NOMINATION AND APPOINTMENT BEING MADE, PROVIDED THAT THE SAME PERSON MAY NOT BE SO EMPLOYED OFTENER THAN THREE TIMES IN THE SAME WEEK, AND THAT THE OFFICER EMPLOYING SUCH LABORER SHALL REPORT TO THE DEPARTMENT MONTHLY THE NAMES OF ALL PERSONS SO EMPLOYED, THE CHARACTER OF THE LABOR PERFORMED BY THEM, THE RATE OF COMPENSATION, AND THE AGGREGATE COMPENSATION PAID EACH. SUCH TEMPORARY LABORERS SHALL BE PAID THE SAME RATE OF COMPENSATION AS IS PAID AT SUCH PORT TO LABORERS PERFORMING SIMILAR SERVICE IN PRIVATE EMPLOYMENT.

IN VIEW OF THIS PROVISION IN EXISTING REGULATIONS, IT REASONABLY MAY BE CONCLUDED THAT THE CUSTOMS CLASSIFICATION ACT OF MAY 29, 1928, 45 STAT. 955, WAS NOT INTENDED TO RESTRICT THE EMPLOYMENT OF THESE DAY LABORERS, NECESSARY IN AN EMERGENCY, AUTHORIZED UNDER THEN EXISTING REGULATIONS. SEE 5 COMP. GEN. 136, INVOLVING A SIMILAR SITUATION AS TO TEMPORARY UNSKILLED LABORERS ENGAGED FOR THE FIELD WORK OF THE DEPARTMENT OF AGRICULTURE, WHEREIN IT WAS HELD THAT THEY MIGHT BE PAID WAGES AT LOCAL CURRENT RATES, WITHOUT REGARD TO THE RATES ESTABLISHED BY THE CLASSIFICATION ACT OF 1923, FOR LABORERS IN THE DISTRICT OF COLUMBIA, THUS MAKING AN EXCEPTION TO THE PROVISIONS OF THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, AS SUBSEQUENTLY EXTENDED.

YOU ARE ADVISED, THEREFORE, THAT TEMPORARY DAY LABORERS IN THE CUSTOMS SERVICE EMPLOYED UNDER THE PROVISIONS OF THE ABOVE-QUOTED REGULATIONS ARE NOT WITHIN THE TERMS OF THE ACT OF MAY 29, 1928, SUPRA, BUT THAT THEIR PER DIEM RATES OF COMPENSATION MAY BE FIXED ADMINISTRATIVELY AT THE SAME RATES PAID AT THE RESPECTIVE PORTS TO LABORERS PERFORMING SIMILAR SERVICE IN PRIVATE EMPLOYMENT.