A-44410, SEPTEMBER 17, 1932, 12 COMP. GEN. 359

A-44410: Sep 17, 1932

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ECONOMY ACT - EMERGENCY RELIEF AND CONSTRUCTION ACT - 30-HOUR WEEK - FOREST SERVICE THERE IS NO PROHIBITION AGAINST DIRECT EMPLOYMENT OF PERSONNEL BY THE GOVERNMENT UNDER THE APPROPRIATION ITEM "IMPROVEMENT OF THE NATIONAL FORESTS" IN SECTION 301 (A) (2) (B) OF THE EMERGENCY RELIEF AND CONSTRUCTION ACT OF JULY 21. WHO ARE SUBJECT. IS PART-TIME EMPLOYMENT SUBJECT TO 8 1/3 PERCENT REDUCTION IN COMPENSATION FOR IMPOUNDING UNDER THE TERMS OF THE ECONOMY ACT. AS FOLLOWS: REFERENCE IS MADE TO SECTION 301 (A) (2) AND SECTION 307 OF THE "EMERGENCY RELIEF AND CONSTRUCTION ACT OF 1932" (PUBLIC. SECTION 307 IN PART IS TO THE EFFECT THAT ALL CONTRACTS LET FOR CONSTRUCTION PROJECTS UNDER THE ACT SHALL BE SUBJECT TO THE CONDITION THAT.

A-44410, SEPTEMBER 17, 1932, 12 COMP. GEN. 359

ECONOMY ACT - EMERGENCY RELIEF AND CONSTRUCTION ACT - 30-HOUR WEEK - FOREST SERVICE THERE IS NO PROHIBITION AGAINST DIRECT EMPLOYMENT OF PERSONNEL BY THE GOVERNMENT UNDER THE APPROPRIATION ITEM "IMPROVEMENT OF THE NATIONAL FORESTS" IN SECTION 301 (A) (2) (B) OF THE EMERGENCY RELIEF AND CONSTRUCTION ACT OF JULY 21, 1932, 47 STAT. 716, WHO ARE SUBJECT, IN SO FAR AS PRACTICABLE, TO THE 30-HOUR WEEK PRESCRIBED IN THE STATUTE FOR SUCH PERSONNEL WITH THE EXCEPTION OF EXECUTIVE, ADMINISTRATIVE, AND SUPERVISORY POSITIONS, AND THE RATES OF COMPENSATION OF THOSE EMPLOYEES NOT SUBJECT TO THE CLASSIFICATION ACT MAY BE FIXED UPON A PER DIEM, WEEKLY, MONTHLY, OR ANNUAL BASIS. THE 30-HOUR WORK WEEK, EITHER OF 5 HOURS ON 6 DAYS OR 6 HOURS ON 5 DAYS, IS PART-TIME EMPLOYMENT SUBJECT TO 8 1/3 PERCENT REDUCTION IN COMPENSATION FOR IMPOUNDING UNDER THE TERMS OF THE ECONOMY ACT. TO DETERMINE THE PER ANNUM EQUIVALENT OF SUCH PART-TIME EMPLOYEES PAID ON AN HOURLY OR DAILY BASIS, THE DAILY EARNINGS DURING THE REGULAR HOURS OF WORK SHOULD BE MULTIPLIED BY 307 UNDER THE TERMS OF SECTION 104 (C) OF THE ECONOMY ACT. TIME LOST DURING REGULAR WORKING HOURS BECAUSE OF INCLEMENT WEATHER BY EMPLOYEES ON A 30-HOUR WORK WEEK MAY BE MADE UP BY WORKING ADDITIONAL TIME ON OTHER DAYS OF THE WEEK EQUAL TO THE TIME LOST.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, SEPTEMBER 17, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF AUGUST 29, 1932, AS FOLLOWS:

REFERENCE IS MADE TO SECTION 301 (A) (2) AND SECTION 307 OF THE "EMERGENCY RELIEF AND CONSTRUCTION ACT OF 1932" (PUBLIC, 302).

SECTION 307 IN PART IS TO THE EFFECT THAT ALL CONTRACTS LET FOR CONSTRUCTION PROJECTS UNDER THE ACT SHALL BE SUBJECT TO THE CONDITION THAT, SO FAR AS PRACTICABLE, NO INDIVIDUAL DIRECTLY EMPLOYED ON THE PROJECT SHALL BE PERMITTED TO WORK MORE THAN 30 HOURS IN ANY ONE WEEK. MOST OF THE WORK UNDER SECTION 301 (A) (2) (C) WILL BE HANDLED IN THE SAME MANNER AS PROJECTS PAID FROM THE FUNDS FOR "IMPROVEMENT OF THE NATIONAL FORESTS" IN THE AGRICULTURAL APPROPRIATION ACT, CREWS BEING EMPLOYED BY THE FOREST SERVICE INSTEAD OF LETTING THE WORK UNDER CONTRACT. IT IS OUR UNDERSTANDING THAT THE 30-HOUR REQUIREMENT DOES NOT NECESSARILY APPLY TO SUCH WORK NOT PLACED UNDER CONTRACT, BUT CONFORMING TO THE SPIRIT OF THE ACT IT IS PLANNED IN VARIOUS CASES WHERE CONSIDERED PRACTICABLE TO ADOPT THE PRINCIPLE OF THE 30-HOUR WEEK (1) BY ESTABLISHING A 6-HOUR DAY AND A 5 -DAY WEEK, AND (2) BY ESTABLISHING A 5-HOUR DAY WITH A 6-DAY WEEK (WORKING 4 HOURS ON SATURDAY WITH PAY FOR 5 HOURS), THE LATTER BEING ESPECIALLY DESIRABLE AS THE DAYS BECOME SHORTER WHERE IT IS DESIRED TO EMPLOY TWO SHIFTS OF MEN.

UNDER THE PROVISIONS OF THE SO-CALLED ECONOMY ACT (PUBLIC, 212) THE FOLLOWING QUESTIONS ARISE ON WHICH YOUR DECISION IS DESIRED:

1. FOR THE 5-HOUR AND 6-HOUR DAYS, AS ABOVE MENTIONED, MAY THE WAGES BE AT PER DIEM, WEEKLY, MONTHLY, OR ANNUAL RATES, OR MUST AN HOURLY RATE BE USED? FOR INSTANCE, IN A PARTICULAR POSITION MAY WE ESTABLISH A PER DIEM RATE OF $3 FOR A 5-HOUR DAY OR $3.60 FOR A 6-HOUR DAY OR MUST WE APPLY AN HOURLY RATE (60 CENTS IN THIS EXAMPLE) TO THESE SHORT DAYS? MAY THE WAGES BE STATED AT MONTHLY AND ANNUAL RATES BASED ON 5 AND 6 HOURS A DAY, RESPECTIVELY; FOR EXAMPLE, MAY WE EMPLOY AT RATE OF $60 A MONTH WITH THE UNDERSTANDING THAT (A) WORK WILL BE REQUIRED FIVE DAYS A WEEK FOR FIVE HOURS A DAY WITH FOUR HOURS ON SATURDAY, MAKING A TOTAL OF 29 HOURS A WEEK WITH PAY FOR 30, OR (B) THAT WORK WILL BE REQUIRED 6 HOURS A DAY, 5 DAYS A WEEK?

2. IN THESE CASES WHAT WILL BE THE BASIS OF ARRIVING AT THE ANNUAL EQUIVALENT?

(A) IF THE HOURLY OR DAILY RATES ARE USED, WILL THE ANNUAL EQUIVALENT BE THE EARNINGS FOR THE ESTABLISHED 5-HOUR DAY OR 6-HOUR DAY, AS THE CASE MAY BE, MULTIPLIED BY 307? IN THIS CONNECTION SEEANSWER TO QUESTION NO. 2, DECISION A-43734, DATED AUGUST 8, TO THIS DEPARTMENT.

(B) IF MONTHLY RATES ARE PERMISSIBLE WITH THE UNDERSTANDING THAT WORK WILL BE REQUIRED ONLY 29 HOURS OR 30 HOURS A WEEK, WILL THE MONTHLY RATES SO ESTABLISHED BE MULTIPLIED BY 12 TO COMPUTE THE ANNUAL EQUIVALENT?

3. ASSUMING THAT THE REGULAR WORKING DAY OF FIVE HOURS IN THE ONE CASE AND SIX IN THE OTHER WILL BE THE BASIS OF THE ANNUAL EQUIVALENT, WOULD IT BE PERMISSIBLE TO INCREASE THE WORKING DAY TO COMPENSATE FOR LOST TIME (1) AT HOURLY RATES AND (2) AT OTHER THAN HOURLY RATES? FOR EXAMPLE, IF WEATHER CONDITIONS PREVENT WORK ON MONDAY, MAY (A) THE 5 HOUR EMPLOYEE WHERE PRACTICABLE BE WORKED 7 HOURS ON TUESDAY, 6 HOURS ON WEDNESDAY, THURSDAY, AND FRIDAY, AND 4 HOURS ON SATURDAY, MAKING A TOTAL OF 29 HOURS FOR THE WEEK, AND (B) THE 6-HOUR EMPLOYEE WORKED 6 HOURS A DAY FOR THE REMAINING 5 DAYS, TUESDAY TO SATURDAY, INCLUSIVE, WITHOUT IN EITHER CASE CHANGING THE COMPUTATION OF THE ANNUAL EQUIVALENT, OR IN THE SECOND CASE CONFLICTING WITH THE SATURDAY HALF HOLIDAY LAW?

WHEN THE RATE IS ABOVE THE $1,000 EQUIVALENT WILL THE IMPOUNDAGE FOR THE 5-DAY WEEK OF 6 HOURS A DAY BE 8 1/3 PERCENT OF THE EARNINGS (WITH NO REDUCTION BELOW THE $1,000 ANNUAL EQUIVALENT) OR SHOULD WE STATE THE EARNINGS AS 11/10THS OF THE 6-HOUR DAILY WAGE FIXED FOR THE JOB AND IMPOUND 1/11TH OF THAT AMOUNT?

5. WILL YOUR RULINGS ON THE ABOVE QUESTIONS BE LIMITED TO THE FUNDS UNDER PUBLIC 302 OR WILL THEY APPLY ALSO TO THE FUNDS FOR "IMPROVEMENT OF THE NATIONAL FORESTS" IN THE FOREST SERVICE SECTION OF THE DEPARTMENT'S APPROPRIATION ACT, THE FOREST ROADS AND TRAILS FUNDS IN THE SAME ACT, AND THE FUND "ROADS AND TRAILS FOR STATES, NATIONAL FOREST FUND," UNDER THE ACT OF MARCH 4, 1913 (37 STAT. 843), APPROPRIATING FOR ROAD AND TRAIL PURPOSES 10 PERCENT OF THE NATIONAL FOREST RECEIPTS IN THE EVENT IT IS DECIDED TO APPLY THE 30-HOUR-WEEK PRINCIPLE TO THESE FUNDS?

SECTION 301 (A) (2) (A) AND (B), NOT (C) AS STATED IN YOUR LETTER, AND SECTION 307 OF THE EMERGENCY RELIEF AND CONSTRUCTION ACT OF 1932, DATED JULY 21, 1932, 47 STAT. 716, PROVIDE AS FOLLOWS:

SEC. 301. (A) FOR THE PURPOSE OF PROVIDING FOR EMERGENCY CONSTRUCTION OF CERTAIN AUTHORIZED PUBLIC WORKS WITH A VIEW TO INCREASING EMPLOYMENT AND CARRYING OUT THE POLICY DECLARED IN THE EMPLOYMENT STABILIZATION ACT OF 1931, THERE IS HEREBY APPROPRIATED, OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED, THE SUM OF $322,224,000, WHICH SHALL BE ALLOCATED AS FOLLOWS:

(2) FOR EXPENDITURE IN EMERGENCY CONSTRUCTION DURING THE FISCAL YEAR ENDING JUNE 30, 1933, $16,000,000, AS FOLLOWS: (A) FOR THE CONSTRUCTION AND IMPROVEMENT OF NATIONAL-FOREST HIGHWAYS, $5,000,000; (B) FOR THE CONSTRUCTION AND MAINTENANCE OF ROADS, TRAILS, BRIDGES, FIRE LANES, AND SO FORTH INCLUDING THE SAME OBJECTS SPECIFIED IN THE PARAGRAPH COMMENCING WITH THE WORDS ,IMPROVEMENT OF THE NATIONAL FORESTS" UNDER THE HEADING "NATIONAL-FOREST ADMINISTRATION" IN THE AGRICULTURAL APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1932, APPROVED FEBRUARY 23, 1931 (46 STAT. 1242), $5,000.000; * * *.

SEC. 307. ALL CONTRACTS LET FOR CONSTRUCTION PROJECTS PURSUANT TO THIS TITLE SHALL BE SUBJECT TO THE CONDITIONS THAT NO CONVICT LABOR SHALL BE DIRECTLY EMPLOYED ON ANY SUCH PROJECT, AND THAT (EXCEPT IN EXECUTIVE, ADMINISTRATIVE, AND SUPERVISORY POSITIONS), SO FAR AS PRACTICABLE, NO INDIVIDUAL DIRECTLY EMPLOYED ON ANY SUCH PROJECT SHALL BE PERMITTED TO WORK MORE THAN THIRTY HOURS IN ANY ONE WEEK, AND THAT IN THE EMPLOYMENT OF LABOR IN CONNECTION WITH ANY SUCH PROJECT, PREFERENCE SHALL BE GIVEN, WHERE THEY ARE QUALIFIED, TO EX-SERVICE MEN WITH DEPENDENTS.

SEE ALSO APPROPRIATION ITEM "IMPROVEMENT OF THE NATIONAL FORESTS" IN THE APPROPRIATION ACT FOR 1933, APPROVED JULY 7, 1932, 47 STAT. 627.

SINCE THERE IS NO PROHIBITION AGAINST THE DIRECT EMPLOYMENT OF PERSONNEL BY THE GOVERNMENT UNDER THE APPROPRIATION ITEM "IMPROVEMENT OF THE NATIONAL FORESTS," THERE IS LIKEWISE NO PROHIBITION AGAINST DIRECT EMPLOYMENT OF PERSONNEL BY THE GOVERNMENT UNDER THE APPROPRIATION ITEM PROVIDED IN SECTION 301 (A) (2) (B) OF THE EMERGENCY RELIEF AND CONSTRUCTION ACT OF 1932. THAT IS, THE PROJECTS THEREIN AUTHORIZED MAY BE EXECUTED EITHER UNDER PRIVATE CONTRACTS OR BY DIRECT EMPLOYMENT OF PERSONNEL (LABOR) BY THE GOVERNMENT.

HOWEVER, CONTRARY TO THE UNDERSTANDING INDICATED IN YOUR SUBMISSION, THE 30-HOUR WEEK IS APPLICABLE TO BOTH CLASSES OF EMPLOYMENT. NOTE THAT THE SECOND CLAUSE OF SECTION 307, CONTAINING THE 30-HOUR-WEEK LIMITATION, IS BROADLY STATED, AND PROVIDES THAT "/EXCEPT IN EXECUTIVE, ADMINISTRATIVE, AND SUPERVISORY POSITIONS) SO FAR AS PRACTICABLE, NO INDIVIDUAL DIRECTLY EMPLOYED ON ANY SUCH PROJECT SHALL BE PERMITTED TO WORK MORE THAN 30 HOURS IN ANY ONE WEEK.' OBVIOUSLY, THE PURPOSE OF THIS RESTRICTION IS TO PROVIDE FOR AS MANY JOBS AS POSSIBLE FROM THE FUNDS APPROPRIATED, WHICH PURPOSE MAY BE DEFEATED IF THE RESTRICTION WERE NOT APPLIED TO PERSONNEL EMPLOYED DIRECTLY BY THE GOVERNMENT. YOU ARE ADVISED, THEREFORE, THAT IN SO FAR AS PRACTICABLE, THE 30-HOUR WEEK IS REQUIRED TO BE ADOPTED FOR FEDERAL PERSONNEL--- WITH THE EXCEPTIONS NOTED IN THE STATUTE--- EMPLOYED AND PAID UNDER THE EMERGENCY RELIEF AND CONSTRUCTION ACT APPROPRIATIONS, SUPRA, AND EITHER OF THE TWO PLANS SUGGESTED BY YOU WOULD BE AUTHORIZED.

THE QUESTIONS PRESENTED WILL BE CONSIDERED AND ANSWERED IN THE ORDER APPEARING IN YOUR LETTER.

1. WHILE RATES OF PAY FOR FEDERAL PERSONNEL ARE ORDINARILY FIXED ON A PER HOUR, PER DIEM, PER ANNUM, OR PIECEWORK BASIS, THERE EXISTS NO STATUTORY PROHIBITION AGAINST FIXING A WEEKLY OR MONTHLY RATE FOR EMPLOYEES NOT SUBJECT TO THE CLASSIFICATION ACT AS EXTENDED TO THE FIELD SERVICE, WHICH ACT AUTHORIZES ONLY PER ANNUM AND PER HOUR RATES. THERE WOULD BE NO DIFFERENCE IN THIS RESPECT BETWEEN THE PERSONNEL PAID UNDER THE APPROPRIATIONS PROVIDED IN THE EMERGENCY RELIEF AND CONSTRUCTION ACT AND FEDERAL PERSONNEL PAID UNDER OTHER APPROPRIATIONS, AND SUCH BASES FOR FIXING COMPENSATION RATES ARE APPLICABLE BOTH TO FULL-TIME AND PART-TIME EMPLOYMENT. IN THE ILLUSTRATIONS GIVEN A PER DIEM RATE OF $3 FOR A 5-HOUR DAY, OR $3.60 FOR A 6-HOUR DAY, AND A MONTHLY RATE OF $60, UNDER EITHER PLAN (A) OR (B) SUGGESTED, WOULD BE AUTHORIZED FOR EMPLOYEES NOT SUBJECT TO THE CLASSIFICATION ACT. FOR EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT, THE SAME MONTHLY RATE COULD BE ESTABLISHED ON THE BASIS OF AN ANNUAL RATE OF $720. THAT IS TO SAY, A 30-HOUR WEEK IS PART-TIME EMPLOYMENT, AND THERE COULD BE ESTABLISHED AN ANNUAL RATE OF $720 FOR 30 HOURS' WORK PER WEEK UNDER EITHER PLAN (A) OR (B) SUGGESTED. AS TO THE APPLICATION OF THE SATURDAY HALF-HOLIDAY LAW TO EMPLOYEES REGULARLY WORKING FIVE HOURS EACH DAY, SEE DECISION OF APRIL 29, 1931, 10 COMP. GEN. 496. THE MONTHLY RATE WOULD BE ONE-TWELFTH OF THE ANNUAL RATE.

2. (A) IS ANSWERED IN THE AFFIRMATIVE. IN ADDITION TO THE DECISION CITED BY YOU, SEE DECISIONS OF AUGUST 9, 1932, A-43785, 12 COMP. GEN. 215, AND AUGUST 23, 1932, A-44084, 12 COMP. GEN. 271. AS TO QUESTION 2 (B), REFERENCE IS MADE TO THE ANSWER TO QUESTION 1. AS TO EMPLOYEES FOR WHOM A MONTHLY RATE OF COMPENSATION IS AUTHORIZED, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

3. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. AS TO THE SECOND CASE, COMPENSATORY TIME FOR WORK ON SATURDAY IN EXCESS OF FOUR HOURS MAY BE CONSIDERED TO BE THE EQUIVALENT TIME LOST DURING THE SAME WEEK.

4. THERE ARE INVOLVED HERE ONLY PART-TIME EMPLOYEES WHO ARE NOT SUBJECT TO THE 5-DAY WEEK UNDER SECTION 101 (A) OR LEGISLATIVE FURLOUGHS UNDER SECTION 101 (B) OF THE ECONOMY ACT. UNDER THE PROVISIONS OF SECTION 105 (D) (6) OF THE ECONOMY ACT, 8 1/3 PERCENT OF THE COMPENSATION ACTUALLY EARNED BY THESE PART-TIME EMPLOYEES SHOULD BE DEDUCTED AND IMPOUNDED. DECISIONS OF AUGUST 8, 1932, A-43642, 12 COMP. GEN. 193, AND AUGUST 9, 1932, A-43840, 12 COMP. GEN. 221.

5. IN THE ABSENCE OF ANY STATUTE TO THE CONTRARY--- AND THERE APPEARS TO BE NONE APPLICABLE TO PERSONNEL PAID UNDER THE APPROPRIATIONS YOU MENTION- -- THE RULES ANNOUNCED IN THIS DECISION WOULD BE APPLICABLE TO ANY EMPLOYEE OF THE GOVERNMENT PLACED ON PART TIME OF 30 HOURS PER WEEK.