A-99718, JANUARY 3, 1939, 18 COMP. GEN. 585

A-99718: Jan 3, 1939

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IS REMEDIAL IN CHARACTER AND SHOULD BE GIVEN BROAD APPLICATION SO THAT ITS MANIFEST PURPOSES MAY BE SERVED. IF THE CONTRACT IS ONE OF PURCHASE OF A HARVESTED CROP. THE HARVESTING IS A CONDITION PRECEDENT AND INCIDENTAL TO THE DELIVERY. IS AS FOLLOWS: THERE HAS BEEN RECEIVED A COPY OF YOUR DECISION A-97726. THERE IS. YOUR CLARIFICATION IS RESPECTFULLY REQUESTED. AMONG WHICH WERE MENTIONED CONTRACTS PROVIDING FOR CUTTING HAY AND THRESHING GRAIN. WERE PLAINLY WITHIN THE PROVISIONS OF THE STATUTE. ASSUMING THAT THE WORK IS TO BE PERFORMED IN WHOLE OR IN PART BY EMPLOYEES OF THE CONTRACTORS AND ARE NOT SERVICES TO BE WHOLLY PERFORMED BY A CONTRACTOR IN PERSON. THE SOIL CONSERVATION SERVICE WAS CONFRONTED WITH A QUESTION WITH RESPECT TO THE APPLICABILITY OF THE PROVISIONS OF THE STATUTE AS IT MIGHT RELATE TO FARM HANDS OR LABORERS ENGAGED IN AGRICULTURAL PURSUITS.

A-99718, JANUARY 3, 1939, 18 COMP. GEN. 585

CONTRACTS - EIGHT-HOUR LAW - APPLICABILITY GENERALLY AND AS TO FARM LABORERS THE PUBLIC CONTRACT 8-HOUR WORK LIMITATION LAW OF JUNE 19, 1912, 37 STAT. 137, IS REMEDIAL IN CHARACTER AND SHOULD BE GIVEN BROAD APPLICATION SO THAT ITS MANIFEST PURPOSES MAY BE SERVED, THE POSSIBILITY OF EXCESS COST TO THE GOVERNMENT ON OCCASION BECAUSE OF ITS APPLICATION NOT BEING A MATTER FOR ADMINISTRATIVE CONCERN. CONTRACTS RELATIVE TO AGRICULTURAL PURSUITS WHICH MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF FARM LABORERS BY THE CONTRACTORS FOR THEIR PERFORMANCE SHOULD INCLUDE THE STIPULATIONS REQUIRED BY THE 8-HOUR WORK LIMITATION LAW OF JUNE 19, 1912, 37 STAT. 137, BUT IF THE CONTRACT IS ONE OF PURCHASE OF A HARVESTED CROP, AND THE HARVESTING IS A CONDITION PRECEDENT AND INCIDENTAL TO THE DELIVERY, THE SAID STIPULATIONS NEED NOT BE INCLUDED. 14 COMP. GEN. 818, AND ACT OF AUGUST 1, 1892, 27 STAT. 340, AS AMENDED BY ACT OF MARCH 3, 1913, 37 STAT. 726, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, JANUARY 3, 1939:

YOUR LETTER OF NOVEMBER 30, 1938, IS AS FOLLOWS:

THERE HAS BEEN RECEIVED A COPY OF YOUR DECISION A-97726, DATED OCTOBER 14, 1938, DIRECTED TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, VETERANS' ADMINISTRATION, WHICH HAS REFERENCE TO THE PROVISIONS OF THE EIGHT-HOUR LAW, 37 STAT. 137, AND THE APPLICABILITY OF THIS LAW TO VARIOUS TYPES OF CONTRACTS.

YOUR DECISION GOES TO SOME LENGTH IN EXPLAINING THE PROVISIONS OF THE EIGHT-HOUR LAW, AND ITS CONTENTS SHOULD PROVE HELPFUL TO CONTRACTING OFFICERS IN PROVIDING FOR COMPLIANCE WITH THIS LAW. THERE IS, HOWEVER, ONE POINT ON WHICH SOME DOUBT EXISTS, AND YOUR CLARIFICATION IS RESPECTFULLY REQUESTED.

THE SUBMISSION BY THE VETERANS' ADMINISTRATION CONTAINED A REQUEST FOR A DECISION AS TO WHETHER THE PROVISIONS OF THE EIGHT-HOUR LAW SHOULD BE INCORPORATED IN CONTRACTS FOR VARIOUS TYPES OF SERVICES OR REPAIRS, AMONG WHICH WERE MENTIONED CONTRACTS PROVIDING FOR CUTTING HAY AND THRESHING GRAIN. YOUR DECISION INFORMED THE VETERANS' ADMINISTRATION THAT THE SEVERAL TYPES OF CONTRACTS MENTIONED, INCLUDING THOSE FOR CUTTING HAY AND THRESHING GRAIN, WERE PLAINLY WITHIN THE PROVISIONS OF THE STATUTE, ASSUMING THAT THE WORK IS TO BE PERFORMED IN WHOLE OR IN PART BY EMPLOYEES OF THE CONTRACTORS AND ARE NOT SERVICES TO BE WHOLLY PERFORMED BY A CONTRACTOR IN PERSON.

SUBSEQUENT TO YOUR DECISION A-94310, DATED MAY 12, 1938, THE SOIL CONSERVATION SERVICE WAS CONFRONTED WITH A QUESTION WITH RESPECT TO THE APPLICABILITY OF THE PROVISIONS OF THE STATUTE AS IT MIGHT RELATE TO FARM HANDS OR LABORERS ENGAGED IN AGRICULTURAL PURSUITS. IN CONSIDERING THIS QUESTION, THERE WAS NOTED YOUR DECISION A-60981 (14 COMP. GEN. 818), WHEREIN THE FOLLOWING STATEMENT APPEARS:

"REFERRING TO THE QUESTION IN PARAGRAPH NUMBERED (3), YOU ARE ADVISED THAT THE APPLICATION OF THE 8-HOUR LAW IS NOT DETERMINED ALONE ON THE TENURE OF EMPLOYMENT NOR ON THE MEASURE OF TIME ON WHICH COMPENSATION IS BASED, BUT PRIMARILY ON THE CHARACTER OF THE EMPLOYMENT, THAT IS, WHETHER THE EMPLOYEES ARE MECHANICS OR LABORERS OR ARE REQUIRED TO PERFORM SIMILAR DUTIES. HOWEVER, THE 8-HOUR LAW, SUPRA, WAS ENACTED WITH RELATION TO FEDERAL PERSONNEL HOLDING POSITIONS COMPARABLE TO THOSE IN PRIVATE INDUSTRY IN WHICH THE HOURS OF LABOR ARE CONTROLLED BY LAW OR PRACTICE, AND DOES NOT RELATE TO FARM HANDS OR THOSE ENGAGED IN AGRICULTURAL PURSUITS, WHOSE HOURS AND DAYS OF LABOR MUST NECESSARILY BE CONTROLLED BY THE WEATHER, THE SEASONS, AND OTHER CONSIDERATIONS NOT SUBJECT TO ADMINISTRATIVE CONTROL.'

INTERPRETING THIS DECISION TO MEAN THAT THE PROVISIONS OF THE EIGHT HOUR LAW WERE NOT APPLICABLE WITH RELATION TO CONTRACTS INVOLVING AGRICULTURAL PURSUITS, THE SOIL CONSERVATION SERVICE INFORMED ITS CONTRACTING OFFICERS THAT THE PROVISIONS OF THIS STATUTE NEED NOT BE INCORPORATED IN INVITATIONS TO BID WHEN THERE ARE INVOLVED SERVICES WHICH MAY BE CLASSIFIED AS AGRICULTURAL PURSUITS.

THE SOIL CONSERVATION SERVICE, AND OTHER BUREAUS OF THE DEPARTMENT, HAS OCCASION TO ENTER INTO CONTRACTS FOR THE PERFORMANCE OF SERVICES SIMILAR TO THE ACTIVITIES CARRIED ON BY THE AVERAGE FARMER. MANY OF THESE CONTRACTS INVOLVE THE EMPLOYMENT OF FARM HANDS, ALTHOUGH PERFORMANCE UNDER SOME CONTRACTS IS ACCOMPLISHED WHOLLY BY THE CONTRACTOR IN PERSON. THE WORK TO BE PERFORMED IS OFTEN OF A HIGHLY SEASONAL NATURE, SUCH AS HARVESTING SEED, CUTTING HAY OR THRESHING GRAIN, IN WHICH CASE THE HOURS OF LABOR ARE COMMONLY GOVERNED BY THE EXISTING CLIMATIC CONDITIONS, THE MATURITY OF THE CROP OR THE AMOUNT OF WORK WHICH MUST BE ACCOMPLISHED WITHIN A DEFINITE PERIOD OF TIME. IT IS PERCEIVED THAT IF THE PROVISIONS OF THIS STATUTE ARE HELD TO APPLY TO SUCH CONTRACTS, IT MIGHT NOT ONLY PROVE TO BE UNECONOMICAL BUT RESTRICT COMPETITION AND RESULT IN HIGHER PRICES BEING QUOTED. FOR EXAMPLE, THE SOIL CONSERVATION SERVICE HAS ENTERED INTO CONTRACTS FOR THE PURCHASE OF A STANDING CROP AT A STIPULATED PRICE PER ACRE (SUCH SEED NOT BEING AVAILABLE IN THE NATIONAL MARKET). THE CONTRACTOR OBLIGATED TO HARVEST THE SEED IS UNAVOIDABLY DELAYED BECAUSE OF INCLEMENT WEATHER, OR FOR OTHER REASONS BEYOND HIS CONTROL, AND THE PERIOD WITHIN WHICH THE CROP MAY BE HARVESTED IS SUBSTANTIALLY SHORTENED, COMPLIANCE WITH THE STATUTE DURING ACTUAL HARVESTING OPERATIONS MIGHT RESULT IN AN INABILITY TO HARVEST THE CROP BEFORE ITS DETERIORATION WITH A RESULTANT LOSS TO THE GOVERNMENT.

IT IS REQUESTED THAT THE MATTERS PRESENTED HEREIN BE CONSIDERED AND THAT THE DEPARTMENT BE ADVISED AS TO WHETHER THE PROVISIONS OF THE EIGHT-HOUR LAW, 37 STAT. 137, SHOULD BE INCORPORATED IN CONTRACTS COVERING AGRICULTURAL PURSUITS WHICH MAY INVOLVE THE EMPLOYMENT OF FARM HANDS.

IN THE DECISION OF MAY 10, 1935, 14 COMP. GEN. 818, FROM WHICH YOU QUOTE, THERE WAS UNDER CONSIDERATION, INTER ALIA, THE ACT OF AUGUST 1, 1892, 27 STAT. 340, AS AMENDED BY THE ACT OF MARCH 3, 1913, 37 STAT. 726, AND THE BEARING OF THE TWO ACTS UPON THE EMPLOYMENT OF CERTAIN CLASSES OF FEDERAL EMPLOYEES, THE SPECIFIC QUESTION ON THIS POINT PRESENTED IN YOUR SUBMISSION AT THAT TIME BEING AS FOLLOWS:

IS THE DEPARTMENT PRECLUDED FROM WORKING THESE PERMANENT EMPLOYEES, SUCH AS LABORERS AND MECHANICS, PAID AT A PER DIEM RATE, OVER 8 HOURS IN ANY ONE DAY, OR ARE THEY TO BE TREATED ON THE SAME BASIS AS AN ANNUAL EMPLOYEE, IN THAT THE SECRETARY MAY REQUIRE THEM TO WORK MORE THAN 8 HOURS IN ANY ONE DAY?

THE EXCERPT FROM THE CITED DECISION QUOTED IN YOUR LETTER, SUPRA, WAS IN RESPONSE TO THAT QUERY.

OF THE CITED STATUTES, THE FORMER, THE ORIGINAL STATUTE, REFERRED SPECIFICALLY TO LABORERS AND MECHANICS EMPLOYED BY THE GOVERNMENT OF THE UNITED STATES, ETC., UPON ANY OF THE PUBLIC WORKS OF THE UNITED STATES, AND PROVIDED THAT THEIR SERVICES AND EMPLOYMENT SHOULD BE LIMITED AND RESTRICTED TO 8 HOURS IN ANY ONE CALENDAR DAY, WHILE THE AMENDATORY ACT REFERRED TO LABORERS AND MECHANICS EMPLOYED BY THE GOVERNMENT OF THE UNITED STATES, ETC., UPON "A PUBLIC WORK" OF THE UNITED STATES, AND ALL PERSONS EMPLOYED BY THE GOVERNMENT OF THE UNITED STATES, ETC., TO PERFORM SERVICES SIMILAR TO THOSE OF LABORERS AND MECHANICS IN CONNECTION WITH DREDGING OR ROCK EXCAVATION IN ANY RIVER OR HARBOR OF THE UNITED STATES. THUS THE STATUTES WERE LIMITED IN THEIR APPLICATION TO THOSE EMPLOYED UPON "PUBLIC WORKS" OR "A PUBLIC WORK" OF THE UNITED STATES AND THOSE RENDERING SERVICES SIMILAR TO DREDGING AND ROCK EXCAVATION IN RIVERS AND HARBORS, AND DID NOT INCLUDE ALL LABORERS OR MECHANICS, WHETHER GOVERNMENT EMPLOYEES OR NOT, THAT MIGHT BE EMPLOYED UPON PUBLIC WORK OF ANY OR EVERY DESCRIPTION. THE CONCLUSION STATED IN THE CITED DECISION THAT THOSE STATUTES DID NOT EMBRACE FARM HANDS OR THOSE ENGAGED IN AGRICULTURAL PURSUITS WOULD APPEAR TO HAVE BEEN AMPLY SUPPORTED BY THE CONTEXT OF THE STATUTES. THE ACT OF JUNE 19, 1912, 37 STAT. 137, HAS NO REFERENCE TO GOVERNMENT EMPLOYEES, AND IS NOT CIRCUMSCRIBED IN ITS APPLICATION TO ANY PARTICULAR TYPE OF GOVERNMENT CONTRACT. IT APPLIES ONLY TO LABORERS AND MECHANICS IN THE EMPLOY OF A CONTRACTOR WITH THE GOVERNMENT AND THOSE OF ANY SUBCONTRACTOR EMPLOYED ON THE WORK.

FARM EMPLOYEES,"FARM HANDS," HAVE BEEN ALMOST UNIVERSALLY CLASSED AS LABORERS BY THE COURTS AND WOULD APPEAR TO COME SQUARELY WITHIN THE GENERALLY ACCEPTED DEFINITION OF THE TERM. 18 COMP. GEN. 337. ALSO, SEE 35 CORPUS JURIS 929. IT FOLLOWS THAT WHEN THE SOIL CONSERVATION SERVICE OR OTHER BUREAU OF YOUR DEPARTMENT ENTERS INTO A CONTRACT RELATIVE TO AGRICULTURAL PURSUITS WHICH MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF FARM LABORERS BY THE CONTRACTOR FOR ITS PERFORMANCE, THE 8-HOUR STATUTE WOULD BE APPLICABLE, AND THE CONTRACT SHOULD INCLUDE THE STIPULATIONS REQUIRED BY ITS PROVISIONS. IF, IN SUCH A CASE AS YOU SUGGEST, WHERE THE SOIL CONSERVATION SERVICE PURCHASES A STANDING CROP AT A STIPULATED PRICE PER ACRE, A SEPARATE AND DISTINCT CONTRACT SHOULD THEREAFTER BE ENTERED INTO FOR THE HARVESTING THEREOF, THE CONTRACT SHOULD EMBODY THE STATUTORY STIPULATIONS. ON THE OTHER HAND, IF THE SELLER SHOULD UNDERTAKE DELIVERY OF THE CROP TO THE GOVERNMENT WHEN HARVESTED AS A PART OF THE CONTRACT OF SALE, THAT IS IN CASE THE CONTRACT SHOULD BE MERELY A CONTRACT OF PURCHASE OF THE HARVESTED CROP, AND THE HARVESTING THEREOF IS A CONDITION PRECEDENT AND INCIDENTAL TO DELIVERY, THERE WOULD APPEAR TO BE NO NECESSITY FOR INCORPORATION OF THE STATUTORY REQUIREMENTS.

AS YOU SUGGEST, THERE MAY BE INSTANCES WHERE THE APPLICATION OF THE SUBJECT STATUTE WILL RESULT IN SOME EXCESS COST OR LOSS TO THE GOVERNMENT BUT, NO DOUBT, SUCH A POSSIBILITY WAS CONSIDERED AND DISCOUNTED BY THE CONGRESS WHEN THE STATUTE WAS ENACTED AND WOULD NOT APPEAR TO BE A MATTER FOR ADMINISTRATIVE CONCERN, SO LONG AS THERE IS PROPER ADHERENCE TO THE LAW AS IT IS WRITTEN. THE ACT IS REMEDIAL IN CHARACTER AND SHOULD BE GIVEN A BROAD APPLICATION TO THE END THAT ITS MANIFEST PURPOSES MAY BE SERVED. 18 COMP. GEN. 19.