A-43641, JULY 28, 1932, 12 COMP. GEN. 134

A-43641: Jul 28, 1932

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SHOULD BE FOLLOWED WITH RESPECT TO PER DIEM EMPLOYEES TO WHOM THE PROVISIONS OF SECTION 101 (B) ARE APPLICABLE. BY REASON OF THE LEGISLATIVE FURLOUGH SHALL NOT EXCEED ONE-TWELFTH OR 8 1/3 PERCENT OF THE ANNUAL RATE OF COMPENSATION COMPUTED ON THE BASIS OF 313 DAYS PER ANNUM AS TO THE EMPLOYEES WHOSE YEAR IS THAT NUMBER OF DAYS. WHERE THERE ARE NO FURLOUGH ABSENCES DURING A PAY PERIOD THE DEDUCTION MAY BE 8 1/3 PERCENT OF THE TOTAL AMOUNT OTHERWISE EARNED FOR SUCH PERIOD. NO FURTHER DEDUCTIONS ARE REQUIRED SOLELY BECAUSE OF THE LEGISLATIVE FURLOUGH UNDER SAID SECTION. APPLYING IN LIEU THEREOF THE PROVISIONS OF SUBSECTION (B) UNDER WHICH SUCH PER DIEM EMPLOYEES WILL WORK FIVE AND ONE-HALF DAYS EACH WEEK.

A-43641, JULY 28, 1932, 12 COMP. GEN. 134

ECONOMY ACT - PER DIEM EMPLOYEES ON LEGISLATIVE FURLOUGH THE PROCEDURE STATED IN THE DECISIONS OF JULY 8, 1932, A-43276, 12 COMP. GEN. 16, AND JULY 12, 1932, A-42691, A-43276, SHOULD BE FOLLOWED WITH RESPECT TO PER DIEM EMPLOYEES TO WHOM THE PROVISIONS OF SECTION 101 (B) ARE APPLICABLE, EXCEPT THAT THE TOTAL DEDUCTIONS OF COMPENSATION FOR THE FISCAL YEAR 1933, BY REASON OF THE LEGISLATIVE FURLOUGH SHALL NOT EXCEED ONE-TWELFTH OR 8 1/3 PERCENT OF THE ANNUAL RATE OF COMPENSATION COMPUTED ON THE BASIS OF 313 DAYS PER ANNUM AS TO THE EMPLOYEES WHOSE YEAR IS THAT NUMBER OF DAYS, AND WHERE THERE ARE NO FURLOUGH ABSENCES DURING A PAY PERIOD THE DEDUCTION MAY BE 8 1/3 PERCENT OF THE TOTAL AMOUNT OTHERWISE EARNED FOR SUCH PERIOD, WHETHER THE PAY PERIOD BE A WEEK, A HALF MONTH, A MONTH, OR OTHERWISE. WHEN ONE-TWELFTH OR 8 1/3 PERCENT OF THE ANNUAL RATE OF COMPENSATION COMPUTED ON THE BASIS OF THE PER DIEM RATE FOR 313 DAYS HAS BEEN DEDUCTED, PURSUANT TO THE REQUIREMENTS OF THE ABOVE-MENTIONED DECISIONS UNDER SECTION 101 (B), NO FURTHER DEDUCTIONS ARE REQUIRED SOLELY BECAUSE OF THE LEGISLATIVE FURLOUGH UNDER SAID SECTION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JULY 28, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 26, 1932, AS FOLLOWS:

IT HAS BEEN NECESSARY TO EXCEPT CERTAIN PER DIEM EMPLOYEES OF THE FIELD SERVICE OF THE NAVY DEPARTMENT FROM THE PROVISIONS OF SECTION 101 (A) OF THE LEGISLATIVE ACT APPROVED JUNE 30, 1932, PLACING THEM ON A FIVE-DAY WEEK BASIS, AND, AS PROVIDED THEREIN, APPLYING IN LIEU THEREOF THE PROVISIONS OF SUBSECTION (B) UNDER WHICH SUCH PER DIEM EMPLOYEES WILL WORK FIVE AND ONE-HALF DAYS EACH WEEK.

IN YOUR GENERAL DECISION NO. A-43276 OF JULY 8, 1932, IT IS STATED:

"* * * TO INSURE SUCH SAVING AS IS SO REQUIRED BY THE ENACTMENT AND TO AVOID PAYMENTS IN CONTRAVENTION OF LAW A MINIMUM OF 1 1/4 DAYS' PAY (8 1/3 PERCENT) WILL BE DEDUCTED FROM EACH OFFICER AND EMPLOYEE TO WHOM SECTION 101 (B) IS APPLICABLE * * *.'

IN YOUR DECISION NO. A-43126 OF JULY 8, 1932, TO THE PUBLIC PRINTER, IN ANSWER TO QUESTION 2, IT WAS STATED:

"* * * UNDER SUBSECTION (B) THE PER DIEM RATE OF A PER DIEM EMPLOYEE DOES NOT CHANGE BUT WOULD BE THE REGULAR RATE, AND THE PER HOUR RATE WOULD BE ONE-EIGHTH THEREOF--- AND THESE RESPECTIVE RATES WOULD BE APPLICABLE FOR THE PERIOD ON FURLOUGH WITHOUT PAY.'

THE PER DIEM EMPLOYEE RECEIVES NO ANNUAL SALARY, AND IS THEREFORE NOT PAID FOR SUNDAY, BUT RECEIVES PAY ONLY FOR DAYS WORKED, AND SUCH DAYS AS MAY BE LEGALLY FIXED AS HOLIDAYS WITH PAY, AGGREGATING 313 DAYS PER YEAR, AS COMPARED WITH 360 DAYS FOR A PER ANNUM EMPLOYEE. ONE TWELFTH OF THE ANNUAL PAY WOULD BE EQUIVALENT TO THE PER DIEM FOR 26 DAYS.

TO MAKE THE IMPOUND DEDUCTIONS FOR "ONE CALENDAR MONTH" REQUIRED BY THE ACT COMPARABLE TO THOSE FOR PER ANNUM AND MONTHLY EMPLOYEES COVERED BY SECTION 101 (B), IT WOULD APPEAR THAT THERE SHOULD BE DEDUCTED FROM THE SALARY OF THESE PER DIEM EMPLOYEES WORKING ON A FIVE AND ONE-HALF DAY WEEK BASIS, AN AGGREGATE OF 26 DAYS' PAY, THE EMPLOYEES TO BE FURLOUGHED FOR 24 WORKING DAYS (COUNTING SATURDAY AS ONE-HALF DAY).

YOUR DECISION IS REQUESTED AS TO---

(A) SHALL "ONE CALENDAR MONTH" PAY BE DEDUCTED FROM SUCH EMPLOYEES, 26 DAYS' PAY BEING THE EQUIVALENT THEREOF?

(B) SHALL THEY BE FURLOUGHED 24 WORKING DAYS?

(C) SHALL THE DEDUCTION FOR IMPOUND BE AT THE RATE OF ONE AND ONE TWELFTH DAYS FOR EACH DAY'S ABSENCE ON FURLOUGH?

(D) SHALL THE DEDUCTION BE MADE FOR A MINIMUM OF ONE AND ONE TWELFTH DAYS ON EACH SEMIMONTHLY ROLL WITH A CORRESPONDING DEDUCTION FOR EACH ADDITIONAL DAY'S ABSENCE UNTIL THE FULL 26 DAYS' PAY HAS BEEN DEDUCTED?

(E) SHALL THE DEDUCTION BE MADE FOR A MINIMUM OF ONE-HALF DAY ON EACH WEEKLY ROLL (WHERE SUCH EMPLOYEES ARE PAID ON WEEKLY ROLLS), ADDITIONAL DEDUCTIONS TO BE MADE AT RATE OF ONE AND ONE-TWELFTH DAYS FOR EACH ADDITIONAL DAY'S ABSENCE UNTIL THE FULL 26 DAYS' PAY HAS BEEN DEDUCTED?

IF THIS PROCEDURE CAN NOT BE APPROVED, INSTRUCTIONS ARE REQUESTED AS TO WHAT DEDUCTIONS AND FURLOUGHS ARE TO BE APPLIED, WITH COMPLETE INSTRUCTIONS AS TO PREPARATION OF PAY ROLLS ON WEEKLY AND SEMIMONTHLY BASES.

DUE TO THE NECESSITY FOR PROMULGATING INSTRUCTIONS TO THE FIELD FOR PREPARATION OF JULY ROLLS, IT IS REQUESTED THAT YOUR DECISION BE RENDERED AT THE EARLIEST POSSIBLE MOMENT.

SUBSECTION (A) OF SECTION 101 OF THE ECONOMY ACT, PROVIDING A 5-DAY WEEK, IS NORMALLY FOR PER DIEM EMPLOYEES, AND SUBSECTION (B), REQUIRING FURLOUGH WITHOUT PAY, IS NORMALLY FOR PER ANNUM EMPLOYEES, BUT IN EACH SUBSECTION APPEARS A PROVISION AUTHORIZING ADMINISTRATIVE OFFICERS, WHERE THE NATURE OF THE DUTIES RENDERS IT ADVISABLE, TO APPLY THE PROVISIONS OF THE OTHER SUBSECTION. THIS OFFICE HAS HELD THAT WHERE PER ANNUM EMPLOYEES ARE PLACED ON A 5-DAY WEEK THEIR RATE OF COMPENSATION IS FOR ADJUSTMENT UNDER THE PROVISIONS OF SUBSECTION (A). SEE DECISION OF JULY 8, 1932, TO THE PUBLIC PRINTER, A-43126, 12 COMP. GEN. 11. THIS ACTUALLY RESULTS IN DEDUCTIONS OF ONE-ELEVENTH OF THE COMPENSATION OF PER ANNUM EMPLOYEES PLACED ON A 5-DAY WEEK UNDER SUBSECTION (A), INSTEAD OF ONE-TWELFTH IF REQUIRED TO TAKE FURLOUGH UNDER SUBSECTION (B).

IT MUST FOLLOW, THEREFORE, THAT WHERE PER DIEM EMPLOYEES ARE CONTINUED ON A 5 1/2 DAY WEEK AND REQUIRED TO TAKE LEGISLATIVE FURLOUGH WITHOUT PAY, THEIR COMPENSATION IS FOR ADJUSTMENT UNDER THE TERMS OF SUBSECTION (B), WHICH PROVIDES:

EACH OFFICER OR EMPLOYEE RECEIVING COMPENSATION ON AN ANNUAL BASIS AT THE RATE OF MORE THAN $1,000 PER ANNUM SHALL BE FURLOUGHED WITHOUT COMPENSATION FOR ONE CALENDAR MONTH, OR FOR SUCH PERIODS AS SHALL IN THE AGGREGATE BE EQUIVALENT TO ONE CALENDAR MONTH, FOR WHICH LATTER PURPOSE TWENTY-FOUR WORKING DAYS (COUNTING SATURDAY AS ONE-HALF DAY) SHALL BE CONSIDERED AS THE EQUIVALENT OF ONE CALENDAR MONTH: PROVIDED, THAT WHERE THE NATURE OF THE DUTIES OF ANY SUCH OFFICER OR EMPLOYEE RENDER IT ADVISABLE, THE PROVISIONS OF SUBSECTION (A) MAY BE APPLIED IN LIEU OF THE PROVISIONS OF THIS SUBSECTION: PROVIDED FURTHER, THAT NO OFFICER OR EMPLOYEE SHALL WITHOUT HIS CONSENT, BE FURLOUGHED UNDER THIS SUBSECTION FOR MORE THAN FIVE DAYS IN ANY ONE CALENDAR MONTH: PROVIDED FURTHER, THAT THE RATE OF COMPENSATION OF ANY EMPLOYEE FURLOUGHED UNDER THE PROVISIONS OF THIS ACT SHALL NOT BE REDUCED BY REASON OF THE ACTION OF ANY WAGE BOARD DURING THE FISCAL YEAR 1933.

THE TERM "ONE CALENDAR MONTH" REFERS TO JULY, AUGUST, ETC., AND CONVERTED INTO TERMS OF COMPENSATION MEANS ONE-TWELFTH, OR 8 1/3 PERCENT, OF THE ANNUAL RATE OF COMPENSATION. THAT IS TO SAY, ONE TWELFTH, OR 8 1/3 PERCENT, OF THE PER ANNUM EQUIVALENT IS THE MAXIMUM DEDUCTION REQUIRED BY REASON OF THIS PROVISION, WHETHER THE COMPENSATION IS COMPUTED ON THE BASIS OF THE YEAR, THE DAY, THE HOUR, OR THE PIECE. THE STATUTE FURTHER PROVIDES THAT ONLY WHERE THE FURLOUGH IS TAKEN IN PERIODS OF LESS THAN ONE CALENDAR MONTH 24 WORKING DAYS SHALL CONSTITUTE THE EQUIVALENT OF A CALENDAR MONTH. WHILE THESE PROVISIONS WERE FORMULATED PRIMARILY FOR PER ANNUM EMPLOYEES, NOTHING APPEARS TO REQUIRE OR AUTHORIZE THE APPLICATION OF ANY DIFFERENT RULES THAN HAVE BEEN PRESCRIBED THEREUNDER WHEN PER DIEM EMPLOYEES ARE BROUGHT WITHIN SUCH PROVISIONS.

THE DECISION OF JULY 8, 1932, A-43276, 12 COMP. GEN. 16, FROM WHICH YOU QUOTE, WAS INTENDED FOR GENERAL APPLICATION TO "EACH OFFICER AND EMPLOYEE TO WHOM SECTION 101 (B) IS APPLICABLE," INCLUDING PER DIEM EMPLOYEES. THERE WAS INTENDED BY THE PORTION OF THE DECISION OF JULY 8, 1932, TO THE PUBLIC PRINTER, A-43126, UNDERSCORED BY YOU, ONLY THAT THE REGULAR RATE OF COMPENSATION WAS THE BASIS FOR MAKING THE DEDUCTIONS PURSUANT TO THE PROCEDURE CONTAINED IN DECISION A-43276. IT WILL BE NOTED THAT THE MAXIMUM DEDUCTION ON A PERCENTAGE BASIS WAS STATED IN THE DECISION A-43276 AS 8 1/3 PERCENT, BUT OTHERWISE THE REQUIREMENT FOR DEDUCTING ONE AND ONE- FOURTH DAYS' PAY FOR EACH DAY'S ABSENCE ON LEGISLATIVE FURLOUGH IS FOR APPLICATION TO PER DIEM EMPLOYEES.

YOUR QUESTIONS (A), (C), (D), AND (E) ARE ANSWERED IN THE NEGATIVE. QUESTION (B) IS ANSWERED IN THE AFFIRMATIVE IF THE FURLOUGH IS TAKEN IN PERIODS LESS THAN ONE CALENDAR MONTH.

THEREFORE, THE PROCEDURE STATED IN THE DECISIONS OF JULY 8, 1932, A 43276, AND JULY 12, 1932, A-42691, A-43276, SHOULD BE FOLLOWED WITH RESPECT TO PER DIEM EMPLOYEES TO WHOM THE PROVISIONS OF SECTION 101 (B) ARE APPLICABLE, EXCEPT THAT THE TOTAL DEDUCTION OF COMPENSATION FOR THE FISCAL YEAR 1933, BY REASON OF THE LEGISLATIVE FURLOUGH SHALL NOT EXCEED ONE-TWELFTH, OR 8 1/3 PERCENT, OF THE ANNUAL RATE OF COMPENSATION COMPUTED ON THE BASIS OF 313 DAYS PER ANNUM AS TO THE EMPLOYEES HERE UNDER CONSIDERATION, AND WHERE THERE ARE NO FURLOUGH ABSENCES DURING A PAY PERIOD, THE DEDUCTION MAY BE 8 1/3 PERCENT OF THE TOTAL AMOUNT OTHERWISE EARNED FOR SUCH PERIOD, WHETHER THE PAY PERIOD BE A WEEK, A HALF MONTH, A MONTH, OR OTHERWISE. WHEN ONE TWELFTH, OR 8 1/3 PERCENT, OF THE ANNUAL RATE OF COMPENSATION COMPUTED ON THE BASIS OF THE PER DIEM RATE FOR 313 DAYS HAS BEEN DEDUCTED, PURSUANT TO THE REQUIREMENTS OF THE ABOVE DECISIONS UNDER SECTION 101 (B), NO FURTHER DEDUCTIONS ARE REQUIRED SOLELY BECAUSE OF LEGISLATIVE FURLOUGH UNDER SAID SECTION.