A-43634, AUGUST 2, 1932, 12 COMP. GEN. 162

A-43634: Aug 2, 1932

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THE FOLLOWING QUESTIONS ARE SUBMITTED: IN THE NATIONAL PARK SERVICE AND IN SOME OTHER FIELD ACTIVITIES OF THE DEPARTMENT THE EMPLOYEES ARE NOT ALLOWED A HALF HOLIDAY ON SATURDAY. GREAT MANY ARE EMPLOYED ON A PER DIEM BASIS DOING SEASONAL CONSTRUCTION WORK. THESE PER DIEM EMPLOYEES HAVE HERETOFORE ORDINARILY WORKED SIX FULL DAYS. THERE ARE SOME PER DIEM EMPLOYEES WORKING SEVEN FULL DAYS A WEEK. THE ABOVE-MENTIONED EMPLOYEES ARE ENTITLED TO PAY ONLY WHEN ACTUALLY EMPLOYED. THIS CLASS IS CONSIDERED AS FALLING UNDER THE PROVISIONS OF SECTION 105 (D) (6). SUCH CASES IT IS ASSUMED EMPLOYMENTS MAY CONTINUE AS AT PRESENT AND A STRAIGHT 8 1/3 PERCENT DEDUCTION MADE. 1. IN THE FEW CASES WHERE IT IS PRACTICABLE TO EMPLOY PER DIEM LABOR ON A FIVE-DAY WEEK BASIS.

A-43634, AUGUST 2, 1932, 12 COMP. GEN. 162

ECONOMY ACT - 5-DAY WEEK THE DAILY RATE OF PER DIEM EMPLOYEES WHO, PRIOR TO JULY 1, 1932, REGULARLY WORKED 6 OR 7 DAYS PER WEEK WITHOUT THE BENEFIT OF THE SATURDAY HALF-HOLIDAY LAW, WOULD REMAIN THE SAME IF PLACED ON A 5-DAY WEEK, AND COMPENSATION FOR 5 DAYS PER WEEK WOULD BE THE SAME AS FOR 5 DAYS PRIOR TO JULY 1, 1932, COMPENSATION FOR THE ADDITIONAL 1 OR 2 DAYS TO BE IMPOUNDED. THE DAILY RATE OF COMPENSATION FOR PER DIEM EMPLOYEES WHO REGULARLY WORK INTERMITTENTLY A FEW DAYS AT A TIME SHOULD BE THE USUAL DAILY RATE AS OF JUNE 30, 1932, REDUCED BY 8 1/3 PERCENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, AUGUST 2, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 25, 1932, AS FOLLOWS:

IN CONNECTION WITH PART II OF PUBLIC ACT NO. 212, APPROVED JUNE 30, 1932, THE FOLLOWING QUESTIONS ARE SUBMITTED:

IN THE NATIONAL PARK SERVICE AND IN SOME OTHER FIELD ACTIVITIES OF THE DEPARTMENT THE EMPLOYEES ARE NOT ALLOWED A HALF HOLIDAY ON SATURDAY. GREAT MANY ARE EMPLOYED ON A PER DIEM BASIS DOING SEASONAL CONSTRUCTION WORK. THESE PER DIEM EMPLOYEES HAVE HERETOFORE ORDINARILY WORKED SIX FULL DAYS, AND THERE ARE SOME PER DIEM EMPLOYEES WORKING SEVEN FULL DAYS A WEEK. THE ABOVE-MENTIONED EMPLOYEES ARE ENTITLED TO PAY ONLY WHEN ACTUALLY EMPLOYED. IN MOST CASES IT WOULD BE UNECONOMICAL AND IMPRACTICABLE TO EMPLOY THESE MEN ON A FIVE-DAY WEEK BASIS AND SECURE SUBSTITUTES FOR THE REMAINDER OF THE WEEK, AND IT WOULD NOT BE PRACTICABLE TO APPLY THE FURLOUGH PROVISIONS OF SECTION 101 (B). THIS CLASS IS CONSIDERED AS FALLING UNDER THE PROVISIONS OF SECTION 105 (D) (6). SUCH CASES IT IS ASSUMED EMPLOYMENTS MAY CONTINUE AS AT PRESENT AND A STRAIGHT 8 1/3 PERCENT DEDUCTION MADE.

1. IN THE FEW CASES WHERE IT IS PRACTICABLE TO EMPLOY PER DIEM LABOR ON A FIVE-DAY WEEK BASIS, WHAT SHOULD THE DAILY RATE BE, BEARING IN MIND THE FACTS AS TO EMPLOYMENT SET OUT IN PARAGRAPH 1?

2. WHAT IS THE BASIS FOR COMPUTING IMPOUNDMENT OF FUNDS IN THE CASES COVERED IN THE PRECEDING PARAGRAPH?

3. WHERE PER DIEM EMPLOYEES WORK INTERMITTENTLY, A FEW DAYS AT A TIME, SHOULD THE USUAL DAILY RATE BE PAID AND A DEDUCTION OF 8 1/3 PERCENT BE MADE?

YOU ARE CORRECT IN ASSUMING THAT WHERE IT IS IMPRACTICABLE TO PLACE PER DIEM EMPLOYEES ON A 5-DAY-WEEK BASIS OR TO FURLOUGH THEM THEY MAY CONTINUE TO WORK AS PRIOR TO JULY 1, 1932, AND HAVE 8 1/3 PERCENT DEDUCTED FROM THEIR COMPENSATION UNDER SECTION 105 (D) (6).

SECTION 101 (A) OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 399, PROVIDES, IN PART, AS FOLLOWS:

SECTION 101. DURING THE FISCAL YEAR ENDING JUNE 30, 1933---

(A) THE DAYS OF WORK OF A PER DIEM OFFICER OR EMPLOYEE RECEIVING COMPENSATION AT A RATE WHICH IS EQUIVALENT TO MORE THAN $1,000 PER ANNUM SHALL NOT EXCEED FIVE IN ANY ONE WEEK, AND THE COMPENSATION FOR FIVE DAYS SHALL BE TEN-ELEVENTHS OF THAT PAYABLE FOR A WEEK'S WORK OF FIVE AND ONE- HALF DAYS: * * *

IN DECISION OF JULY 28, 1932, TO THE GOVERNOR OF THE PANAMA CANAL, A- 43521, 12 COMP. GEN. 130, IT WAS STATED:

SECTION 101 (A) OF THE ECONOMY ACT PROVIDING FOR A 5-DAY WEEK, APPLICABLE PRIMARILY TO PER DIEM EMPLOYEES, TAKES INTO CONSIDERATION THE SATURDAY HALF HOLIDAY LAW BY PROVIDING THAT PAY FOR 5 DAYS SHALL BE 10/11 OF THAT PREVIOUSLY PAID FOR A "WEEK'S WORK OF FIVE AND ONE HALF DAYS.' UNDER THIS SECTION THE ADJUSTMENT OF COMPENSATION ON A 5 DAY-WEEK BASIS WOULD BE DIFFERENT FOR EMPLOYEES WHO, PRIOR TO JULY 1, 1932, WERE NOT ENTITLED TO THE SATURDAY HALF HOLIDAY WITH PAY. THAT IS TO SAY, THEIR COMPENSATION ON A 5-DAY-WEEK BASIS WOULD NOT BE 10/11 OF 6 DAYS' PAY PREVIOUSLY PAID FOR A WEEK'S WORK OF 5 1/2 DAYS, BUT 10/11 OF 5 1/2 DAYS' PAY AS OF JUNE 30, 1932.

WITH REFERENCE TO YOUR QUESTION NUMBERED 1, IT IS ASSUMED THAT THE EMPLOYEES HERE INVOLVED WERE NOT ENTITLED TO THE SATURDAY HALF HOLIDAY WITH PAY PRIOR TO JULY 1, 1932, BECAUSE THEY WERE ,EMPLOYEES OF THE INTERIOR DEPARTMENT IN THE FIELD" WHO WERE EXPRESSLY EXCLUDED FROM THE BENEFITS OF THE SATURDAY HALF HOLIDAY LAW OF MARCH 3, 1931, 46 STAT. 1482. THEREFORE, THE DAILY RATE OF THESE EMPLOYEES WHO, PRIOR TO JULY 1, 1932, REGULARLY WORKED 6 OR 7 DAYS PER WEEK WITHOUT THE BENEFITS OF THE SATURDAY HALF HOLIDAY LAW, WOULD REMAIN THE SAME IF PLACED ON A 5-DAY WEEK, AND COMPENSATION FOR 5 DAYS PER WEEK WOULD BE THE SAME AS FOR 5 DAYS PRIOR TO JULY 1, 1932.

2. THE IMPOUNDING RELATES TO THE SAVINGS RESULTING BY OPERATION OF THE PROVISIONS OF THE ECONOMY ACT. THEREFORE, IF THE 5-DAY WEEK IS ADOPTED FOR EMPLOYEES WHO, PRIOR TO JULY 1, 1932, REGULARLY WORKED 6 OR 7 DAYS PER WEEK WITHOUT THE BENEFITS OF SATURDAY HALF HOLIDAY, THERE MUST BE IMPOUNDED THE COMPENSATION FOR THE EXTRA 1 OR 2 DAYS, AS THE CASE MAY BE, WHEN NO WORK IS PERFORMED, WHICH WOULD BE THE SAVING AS A RESULT OF APPLYING THE PROVISIONS FOR A 5-DAY WEEK.

3. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE IF THE RATE IS IN EXCESS OF $1,000 PER ANNUM. DECISION OF JULY 14, 1932, TO THE SECRETARY OF THE NAVY, A-43185, 12 COMP. GEN. 30.