A-78345, JULY 30, 1936, 16 COMP. GEN. 90

A-78345: Jul 30, 1936

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PROVIDED SUCH OVERTIME RATES ARE IN ACCORDANCE WITH LOCAL WAGE CONDITIONS. ON PROJECTS WHICH HAVE BEEN EXEMPTED BY THE ADMINISTRATOR OF THE WORKS PROGRESS ADMINISTRATION FROM THE MONTHLY EARNINGS BASIS. IN SPECIAL AND UNUSUAL CIRCUMSTANCES WHEN THE MAXIMUM HOURS OF WORK ARE NOT FEASIBLE OR PRACTICAL. SITUATIONS ARISE ON PROJECTS ON WHICH WAGE RATES HAVE BEEN DETERMINED BY THE RESETTLEMENT ADMINISTRATION IN ACCORDANCE WITH LOCAL WAGE CONDITIONS. WHERE IT IS NECESSARY. IF LOCAL WAGE CONDITIONS IN A COMMUNITY WITHIN WHICH A PARTICULAR PROJECT OF THIS ADMINISTRATION IS SITUATED REQUIRE A WAGE FOR OVERTIME WORK IN EXCESS OF THE WAGE PAID FOR WORK PERFORMED DURING REGULAR WORKING HOURS. TO EMPLOYEES WHO ARE PERFORMING NECESSARY OVERTIME WORK UNDER THE CIRCUMSTANCES WHERE SUCH WORK IS PERMITTED BY THE EXECUTIVE ORDER.

A-78345, JULY 30, 1936, 16 COMP. GEN. 90

RELIEF PROJECTS - EMPLOYEES' OVERTIME SERVICES - PAY RATES ADJUSTED TO LOCAL WAGE CONDITIONS THE RESETTLEMENT ADMINISTRATION MAY ESTABLISH WAGE RATES FOR RELIEF PROJECT EMPLOYEES PAID ON A PER-DIEM OR PER-HOUR BASIS FOR OVERTIME SERVICES, IN EXCESS OF THE NORMAL PER-DIEM OR PER-HOUR RATES, ON PROJECTS EXEMPTED FROM THE MONTHLY EARNINGS' BASIS SET UP IN EXECUTIVE ORDER NO. 7046, AS AMENDED, WITH RESPECT TO PROJECTS FINANCED UNDER THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, PROVIDED SUCH OVERTIME RATES ARE IN ACCORDANCE WITH LOCAL WAGE CONDITIONS, BUT, AS TO PROJECTS FINANCED FROM EMERGENCY RELIEF APPROPRIATION ACT OF 1936 FUNDS, THE RATES OF PAY MUST BE DETERMINED BY THE WORKS PROGRESS ADMINISTRATION WITH THE APPROVAL OF THE PRESIDENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, RESETTLEMENT ADMINISTRATION, JULY 30, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JULY 10, 1936, AS FOLLOWS:

SUBSECTION (E) OF PART I OF EXECUTIVE ORDER NO. 7046, DATED MAY 20, 1935, AS AMENDED BY EXECUTIVE ORDER NO. 7119 OF JULY 30, 1935, EXCEPTS FROM THE MONTHLY EARNINGS BASIS SET UP IN THE ORDER FOR PAYMENT TO WORKERS ON PROJECTS FINANCED FROM THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, SUCH PROJECTS, ETC., AS THE ADMINISTRATOR OF THE WORKS PROGRESS ADMINISTRATION SHALL FROM TIME TO TIME EXEMPT, FOR WHICH WAGE RATES SHALL BE DETERMINED IN ACCORDANCE WITH LOCAL WAGE CONDITIONS BY THE AGENCY HAVING GENERAL SUPERVISION OF THE PROJECT. PURSUANT TO THE TERMS THEREOF, THIS ADMINISTRATION HAS DETERMINED, ON PROJECTS WHICH HAVE BEEN EXEMPTED BY THE ADMINISTRATOR OF THE WORKS PROGRESS ADMINISTRATION FROM THE MONTHLY EARNINGS BASIS, WAGE RATES IN ACCORDANCE WITH LOCAL WAGE CONDITIONS.

PART II OF THE EXECUTIVE ORDER ESTABLISHES MAXIMUM HOURS OF LABOR, AND PROVIDES FOR EXCEPTIONS IN THE CASE OF AN EMERGENCY INVOLVING THE PUBLIC WELFARE OR THE PROTECTION OF THE WORK ALREADY DONE ON A PROJECT, AND IN SPECIAL AND UNUSUAL CIRCUMSTANCES WHEN THE MAXIMUM HOURS OF WORK ARE NOT FEASIBLE OR PRACTICAL. SITUATIONS ARISE ON PROJECTS ON WHICH WAGE RATES HAVE BEEN DETERMINED BY THE RESETTLEMENT ADMINISTRATION IN ACCORDANCE WITH LOCAL WAGE CONDITIONS, WHERE IT IS NECESSARY, UNDER THE CIRCUMSTANCES SET FORTH ABOVE, TO EXCEED THE MAXIMUM HOURS OF WORK PROVIDED FOR BY THE EXECUTIVE ORDER. ON MANY SUCH PROJECTS, LOCAL WAGE CONDITIONS CLEARLY REQUIRE AN HOURLY RATE FOR OVERTIME WORK IN EXCESS OF THE HOURLY RATE FOR WORK PERFORMED DURING THE ORDINARY WORKING DAY. IT WOULD SEEM THAT THE TERM "IN ACCORDANCE WITH LOCAL WAGE CONDITIONS" MEANS NOT ONLY A CONFORMITY WITH THE WAGES PAID DURING THE ORDINARY WORKING DAY, BUT ALSO WITH THE WAGES PAID IN A PARTICULAR COMMUNITY OR AREA FOR WORK IN EXCESS OR OUTSIDE OF SUCH HOURS. IN OTHER WORDS, IF LOCAL WAGE CONDITIONS IN A COMMUNITY WITHIN WHICH A PARTICULAR PROJECT OF THIS ADMINISTRATION IS SITUATED REQUIRE A WAGE FOR OVERTIME WORK IN EXCESS OF THE WAGE PAID FOR WORK PERFORMED DURING REGULAR WORKING HOURS, IT WOULD APPEAR REASONABLE THAT THIS ADMINISTRATION SHOULD PAY SUCH OVERTIME RATE AS BEING THE LOCAL WAGE, TO EMPLOYEES WHO ARE PERFORMING NECESSARY OVERTIME WORK UNDER THE CIRCUMSTANCES WHERE SUCH WORK IS PERMITTED BY THE EXECUTIVE ORDER. THIS RESULT WOULD SEEM TO FOLLOW, MOREOVER, FROM THE LANGUAGE CONTAINED IN THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935 TO THE EFFECT THAT THE PRESIDENT SHALL REQUIRE TO BE PAID CERTAIN RATES OF PAY AS WILL ACCOMPLISH THE PURPOSE OF THE ACT "AND NOT AFFECT ADVERSELY OR OTHERWISE TEND TO DECREASE THE GOING RATES OF PAY PAID FOR WORK OF A SIMILAR NATURE.'

YOUR OPINION IS HENCE REQUESTED AS TO WHETHER THIS ADMINISTRATION MAY ESTABLISH A WAGE RATE FOR OVERTIME IN EXCESS OF THE NORMAL WAGE RATE ON PROJECTS EXEMPTED IN ACCORDANCE WITH SUBSECTION (E) OF PART I OF EXECUTIVE ORDER NO. 7046, AS AMENDED, AS A RESULT OF A DETERMINATION THAT SUCH OVERTIME RATE IS IN ACCORDANCE WITH LOCAL WAGE CONDITIONS.

SUBSECTION (E) OF PART I OF EXECUTIVE ORDER NO. 7046, AS AMENDED BY EXECUTIVE ORDER NO. 7119, CITED IN THE FIRST PARAGRAPH OF YOUR LETTER, PROVIDES:

SUCH PROJECTS, PORTIONS OF PROJECTS, OR ACTIVITIES AS THE ADMINISTRATOR OF THE WORKS PROGRESS ADMINISTRATION SHALL FROM TIME TO TIME EXEMPT, FOR WHICH WAGE RATES SHALL BE DETERMINED, IN ACCORDANCE WITH LOCAL WAGE CONDITIONS, BY THE AGENCY HAVING GENERAL SUPERVISION OF THE PROJECT.

THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936, TITLE II OF THE ACT OF JUNE 22, 1936, 49 STATUTES 1608, APPROPRIATES THE SUM OF $1,425,000,000, AND, IN ADDITION, REAPPROPRIATES THE ,UNEXPENDED BALANCES OF FUNDS APPROPRIATED AND MADE AVAILABLE BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935 AS THE PRESIDENT MAY DETERMINE.' SAID ACT, 49 STAT. 1609, CONTAINS THE FOLLOWING PROVISION RELATING TO WAGE RATES:

THE RATES OF PAY FOR PERSONS ENGAGED UPON PROJECTS UNDER THE FOREGOING APPROPRIATION SHALL BE NOT LESS THAN THE PREVAILING RATES OF PAY FOR WORK OF A SIMILAR NATURE AS DETERMINED BY THE WORKS PROGRESS ADMINISTRATION WITH THE APPROVAL OF THE PRESIDENT.

WITH RESPECT TO THE RULES AND REGULATIONS APPLICABLE TO THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936, EXECUTIVE ORDER NO. 7396 DATED JUNE 22, 1936, PROVIDES:

BY VIRTUE OF AND PURSUANT TO THE AUTHORITY VESTED IN ME BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936, APPROVED JUNE 22, 1936, I HEREBY ORDER AND DIRECT THAT THE EXPENDITURE OF FUNDS APPROPRIATED BY SAID ACT, AND THE ADMINISTRATION THEREOF, SHALL BE IN ACCORDANCE WITH THE ORDERS, RULES, AND REGULATIONS HERETOFORE ISSUED BY THE PRESIDENT RELATING TO THE EXPENDITURE OF FUNDS APPROPRIATED BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935 AND TO THE ADMINISTRATION OF THAT ACT, INSOFAR AS APPLICABLE AND EXCEPT AS TO RATES OF PAY AND ELIGIBILITY FOR EMPLOYMENT.

THE WORKS PROGRESS ADMINISTRATION IS HEREBY AUTHORIZED TO CONTINUE TO PROVIDE RELIEF, AND WORK RELIEF ON USEFUL PROJECTS, UNDER THE SAID EMERGENCY RELIEF APPROPRIATION ACT OF 1936 IN ACCORDANCE WITH ALLOCATIONS OF FUNDS MADE TO IT BY THE PRESIDENT FROM TIME TO TIME, AND SUCH AGENCY IS HEREBY AUTHORIZED AND EMPOWERED TO PRESCRIBE SUCH RULES AND REGULATIONS NOT INCONSISTENT WITH THIS ORDER AS MAY BE NECESSARY PROPERLY TO CARRY OUT THE PURPOSES OF SUCH ALLOCATIONS AND THE PROVISIONS OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936.

IT IS UNDERSTOOD YOUR QUESTION RELATES TO EXPENDITURES ON PROJECTS FINANCED FROM FUNDS MADE AVAILABLE UNDER THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, PURSUANT TO WHICH THE CITED EXECUTIVE ORDERS, VIZ, NOS. 7046 AND 7119, WERE ISSUED, AS DISTINGUISHED FROM SUCH OF THE UNEXPENDED FUNDS MADE AVAILABLE UNDER SAID ACT AS MAY BE REAPPROPRIATED UNDER THE PROVISIONS OF THE 1936 ACT AS TO WHICH OTHER LIMITATIONS ARE APPLICABLE AS HEREINAFTER STATED.

INCREASED RATES OF COMPENSATION FOR OVERTIME WORK IS A RECOGNIZED WAGE CONDITION BOTH IN THE FEDERAL SERVICE AND IN PRIVATE INDUSTRY. HOWEVER, IN THE GOVERNMENT SERVICE, OVERTIME RATES ARE LIMITED TO EMPLOYEES PAID ON A PER DIEM OR PER HOUR BASIS.

ACCORDINGLY, REFERRING TO THE CONCLUDING PARAGRAPH OF YOUR LETTER, SUPRA, THE RESETTLEMENT ADMINISTRATION WOULD APPEAR TO BE AUTHORIZED TO ESTABLISH WAGE RATES FOR OVERTIME, IN EXCESS OF THE NORMAL PER DIEM OR PER HOUR WAGE RATES, ON PROJECTS EXEMPTED IN ACCORDANCE WITH THE CONDITIONS OF EXECUTIVE ORDER NO. 7046, AS AMENDED, BUT ONLY WITH RESPECT TO PROJECTS FINANCED UNDER THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, PROVIDED SUCH OVERTIME RATES ARE IN ACCORDANCE WITH LOCAL WAGE CONDITIONS. HOWEVER, IN RESPECT OF PROJECTS FINANCED FROM FUNDS MADE AVAILABLE UNDER THE TERMS OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936, THE RATES OF PAY MUST BE "DETERMINED BY THE WORKS PROGRESS ADMINISTRATION WITH THE APPROVAL OF THE PRESIDENT.'