A-45306, DECEMBER 17, 1932, 12 COMP. GEN. 468

A-45306: Dec 17, 1932

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ECONOMY ACT - COMPENSATION DEDUCTIONS - PER HOUR EMPLOYEES WHERE LABORERS ARE ON A PER HOUR SCHEDULE OF 40 CENTS OR MORE AND ARE SUBJECT TO DUTY SEVEN DAYS A WEEK AND THEIR COMPENSATION HAS BEEN REDUCED BY 8 1/3 PERCENT AS BEING IN EXCESS OF THE RATE OF $1. NO REFUND OF THE AMOUNTS SO DEDUCTED IS AUTHORIZED WHEN SUCH EMPLOYEES ARE SUBSEQUENTLY PLACED UPON A SIX-DAY WEEK BASIS. ARE RETURNED HEREWITH. IT IS HELD "IN DETERMINING WHETHER A PART TIME PHYSICIAN OR OTHER EMPLOYEE RECEIVES COMPENSATION IN EXCESS OF $1. IT IS THE RATE OF COMPENSATION * * * NOT THE TOTAL AMOUNT RECEIVED DURING THE YEAR.'. IT IS NOT CLEAR TO ME WHY THOSE EMPLOYEES LISTED WHO DID NOT RECEIVE A RATE IN EXCESS OF $1.

A-45306, DECEMBER 17, 1932, 12 COMP. GEN. 468

ECONOMY ACT - COMPENSATION DEDUCTIONS - PER HOUR EMPLOYEES WHERE LABORERS ARE ON A PER HOUR SCHEDULE OF 40 CENTS OR MORE AND ARE SUBJECT TO DUTY SEVEN DAYS A WEEK AND THEIR COMPENSATION HAS BEEN REDUCED BY 8 1/3 PERCENT AS BEING IN EXCESS OF THE RATE OF $1,000 PER ANNUM, NO REFUND OF THE AMOUNTS SO DEDUCTED IS AUTHORIZED WHEN SUCH EMPLOYEES ARE SUBSEQUENTLY PLACED UPON A SIX-DAY WEEK BASIS.

COMPTROLLER GENERAL MCCARL TO E. A. HUDSON, SPECIAL DISBURSING AGENT, BUREAU OF MINES, DECEMBER 17, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 23, 1932, AS FOLLOWS:

I AM AGAINST SUBMITTING HEREWITH, VOUCHER FOR $71.13, CLAIMING REFUND OF FURLOUGH DEDUCTIONS MADE FROM THE PAY OF CERTAIN 40 CENTS PER HOUR "WHILE ACTUALLY EMPLOYED LABORERS.' PREAUDIT DIFFERENCE STATEMENT, MY LETTER OF TRANSMITTAL UNDER DATE OF SEPTEMBER 27, 1932, AND STATEMENT OF MR. F. A. VESTAL, CERTIFYING OFFICER, ARE RETURNED HEREWITH.

IN DECISION OF JULY 23, 1932, A-43245, IT IS HELD

"IN DETERMINING WHETHER A PART TIME PHYSICIAN OR OTHER EMPLOYEE RECEIVES COMPENSATION IN EXCESS OF $1,000 PER ANNUM, IT IS THE RATE OF COMPENSATION * * * NOT THE TOTAL AMOUNT RECEIVED DURING THE YEAR.'

IN VIEW OF THE ABOVE DECISION, IT IS NOT CLEAR TO ME WHY THOSE EMPLOYEES LISTED WHO DID NOT RECEIVE A RATE IN EXCESS OF $1,000 PER ANNUM SHOULD NOT BE REFUNDED DEDUCTIONS.

AT THE TIME THE DEDUCTIONS WERE MADE, THIS OFFICE DID NOT COMPREHEND THE ECONOMY ACT WITH RESPECT TO APPLICATION OF FURLOUGH DEDUCTIONS, AND TO BE CERTAIN THAT OVERPAYMENTS WERE NOT MADE, IT WAS DECIDED TO MAKE DEDUCTIONS FROM THE PAY OF ALL EMPLOYEES, 40 CENTS PER HOUR LABORERS INCLUDED. IF, IT WAS LATER FOUND THAT ERRONEOUS DEDUCTIONS HAD BEEN MADE, IT WAS THE INTENTION TO MAKE PROMPT REFUND. HENCE, THE ACTION OF THIS OFFICE IN MAKING DEDUCTIONS FROM PAY OF 40 CENT LABORERS WAS NOT INTENDED TO GIVE THE IMPRESSION THAT ALL OF THEM WERE SUBJECT TO SEVEN-DAY WEEK DUTY. RECORD OF SERVICES OF THESE MEN FOR THE FISCAL YEAR 1932 WILL SHOW THAT THEIR WORKING TIME AVERAGES SIX DAYS PER WEEK RATHER THAN SEVEN. BEGINNING WITH AUGUST 1, 1932, AN ORDER WAS ISSUED LIMITING THE WORK OF THESE MEN TO SIX DAYS PER WEEK, WHICH ORDER HAS SINCE BEEN ADHERED TO. PREVIOUS TO AUGUST 1, NO ORDER, EITHER VERBAL OR WRITTEN WAS ISSUED TO 40 CENT LABORERS NOTIFYING THEM AS TO HOURS OR DAYS THEY WOULD BE PERMITTED TO WORK.

A STATEMENT IS HERETO ATTACHED WHICH SHOWS ACTUAL DAYS WORKED BY THE EMPLOYEES IN QUESTION DURING THE MONTH OF JULY, 1932.

INFORMATION WILL BE APPRECIATED.

THE AMOUNTS NOW PROPOSED TO BE REFUNDED WERE DEDUCTED FROM PAY ROLL VOUCHERS NOS. 45 AND 68, COVERING THE PERIODS JULY 1 TO JULY 15 AND JULY 16 TO JULY 31, RESPECTIVELY. THE EMPLOYEES UPON THESE PAY ROLLS WERE ALL LABORERS AT PER HOUR RATES RANGING FROM 40 CENTS TO 52 CENTS. A NUMBER OF THE LABORERS AT EACH RATE OF COMPENSATION, WORKED EVERY DAY, INCLUDING SUNDAY, AND THERE IS NOTHING ON THE PAY ROLLS, NOR HAS ANY OTHER EVIDENCE BEEN SUBMITTED, TO NEGATIVE THE PRESUMPTION THAT ALL OF THESE LABORERS WERE REGARDED AS SUBJECT TO DUTY SEVEN DAYS A WEEK IF NEEDED. THE FACT THAT DEDUCTIONS WERE MADE ON THAT BASIS AND THAT IT WAS CONSIDERED NECESSARY TO ISSUE AN EXPRESS ORDER PLACING THEM UPON A 6-DAY WEEK AUGUST 1, 1932, SUPPORTS THIS VIEW. SECTION 104 (C) OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 400, PROVIDES:

IN THE CASE OF ANY OFFICE, POSITION, OR EMPLOYMENT, THE COMPENSATION FOR WHICH IS CALCULATED ON A PIECEWORK, HOURLY, OR PER DIEM BASIS, THE RATE OF COMPENSATION PER ANNUM SHALL BE HELD TO BE THE TOTAL AMOUNT WHICH WOULD BE PAYABLE FOR THE REGULAR WORKING HOURS AND ON THE BASIS OF THREE HUNDRED AND SEVEN WORKING DAYS, OR THE NUMBER OF WORKING DAYS ON THE BASIS OF WHICH SUCH COMPENSATION IS CALCULATED, WHICHEVER IS THE GREATER.

AS IT APPEARS THAT PRIOR TO AUGUST 1, 1932, ALL OF THE LABORERS UPON THE PAY ROLLS IN QUESTION WERE SUBJECT TO DUTY 365 DAYS A YEAR, THOSE RECEIVING 40 CENTS PER HOUR OR MORE WERE RECEIVING COMPENSATION AT A RATE IN EXCESS OF $1,000 PER ANNUM AND WERE, THEREFORE, SUBJECT TO THE DEDUCTIONS REQUIRED BY THE ECONOMY ACT. SUCH DEDUCTIONS HAVING BEEN PROPERLY MADE, THERE IS NO AUTHORITY TO REFUND THE AMOUNTS SO DEDUCTED.