B-113145, MARCH 19, 1953, 32 COMP. GEN. 399

B-113145: Mar 19, 1953

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SAID ACT IS NOT A PAY STATUTE AND MAY NOT BE REGARDED AS ESTABLISHING A BASIS FOR PAYING OVERTIME UPON A DAILY BASIS IN CONTRAVENTION OF THE ACT OF MARCH 28. WHICH PROVIDES THAT WAGE BOARD EMPLOYEES ARE NOT ENTITLED TO OVERTIME UNTIL THEY HAVE WORKED MORE THAN 40 HOURS A WEEK. THERE HAVE BEEN FOUND NUMEROUS CASES IN WHICH WAGE BOARD EMPLOYEES HAVE BEEN PAID AT OVERTIME RATES FOR ALL HOURS OF WORK IN EXCESS OF 8 HOURS IN ANY 1 DAY ALTHOUGH THE EMPLOYEES INVOLVED WORKED LESS THAN 40 HOURS IN THE WEEK THAT THE DAILY OVERTIME OCCURRED. THIS OFFICE HAS BEEN INFORMED THAT SUCH ACTION WAS BASED ON EXECUTIVE ORDER NO. 10251 OF JUNE 7. THE ABOVE-MENTIONED PROVISIONS OF LAW PROHIBITING MORE THAN EIGHT HOURS OF LABOR IN ANY ONE CALENDAR DAY BY LABORERS AND MECHANICS EMPLOYED BY THE GOVERNMENT OF THE UNITED STATES AS TO ALL WORK PERFORMED BY LABORERS AND MECHANICS EMPLOYED BY THE DEPARTMENT OF DEFENSE ON ANY PUBLIC WORK WHICH IS ESSENTIAL TO THE NATIONAL DEFENSE:PROVIDED.

B-113145, MARCH 19, 1953, 32 COMP. GEN. 399

COMPENSATION - OVERTIME - WAGE BOARD, ETC., EMPLOYEES - SUSPENSION OF EIGHT HOUR LAW WHILE EXECUTIVE ORDER NO. 10251, JUNE 7, 1951, ISSUED PURSUANT TO ACT OF AUGUST 1, 1892, AS AMENDED, SUSPENDS THE EIGHT HOUR LAW FOR LABORERS AND MECHANICS AND PROVIDES THAT THEIR WAGES SHALL BE COMPUTED ON A BASIC DAY RATE OF EIGHT HOURS OF WORK WITH OVERTIME TO BE PAID FOR ALL HOURS IN EXCESS OF EIGHT IN ANY ONE DAY, SAID ACT IS NOT A PAY STATUTE AND MAY NOT BE REGARDED AS ESTABLISHING A BASIS FOR PAYING OVERTIME UPON A DAILY BASIS IN CONTRAVENTION OF THE ACT OF MARCH 28, 1934, WHICH PROVIDES THAT WAGE BOARD EMPLOYEES ARE NOT ENTITLED TO OVERTIME UNTIL THEY HAVE WORKED MORE THAN 40 HOURS A WEEK.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, MARCH 19, 1953:

IT HAS BEEN REPORTED THAT, IN THE SITE AUDIT OF CIVILIAN PAYROLLS AT THE U.S. NAVAL GUN FACTORY, WASHINGTON, D.C., THERE HAVE BEEN FOUND NUMEROUS CASES IN WHICH WAGE BOARD EMPLOYEES HAVE BEEN PAID AT OVERTIME RATES FOR ALL HOURS OF WORK IN EXCESS OF 8 HOURS IN ANY 1 DAY ALTHOUGH THE EMPLOYEES INVOLVED WORKED LESS THAN 40 HOURS IN THE WEEK THAT THE DAILY OVERTIME OCCURRED. THIS OFFICE HAS BEEN INFORMED THAT SUCH ACTION WAS BASED ON EXECUTIVE ORDER NO. 10251 OF JUNE 7, 1951, AS INTERPRETED BY AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, MAY 23, 1952, IN WHICH OPINION THE ASSISTANT SECRETARY OF DEFENSE CONCURRED BY MEMORANDUM OF SEPTEMBER 1, 1952.

EXECUTIVE ORDER NO. 10251, SO FAR AS HERE PERTINENT, PROVIDES:

NOW, THEREFORE, BY VIRTUE OF THE AUTHORITY VESTED IN ME BY SECTION 1 OF THE SAID ACT OF AUGUST 1, 1892, AS AMENDED BY THE SAID ACT OF MARCH 3, 1913, AND AS PRESIDENT OF THE UNITED STATES, I HEREBY SUSPEND FOR THE DURATION OF THE NATIONAL EMERGENCY PROCLAIMED BY ME ON DECEMBER 16, 1950, THE ABOVE-MENTIONED PROVISIONS OF LAW PROHIBITING MORE THAN EIGHT HOURS OF LABOR IN ANY ONE CALENDAR DAY BY LABORERS AND MECHANICS EMPLOYED BY THE GOVERNMENT OF THE UNITED STATES AS TO ALL WORK PERFORMED BY LABORERS AND MECHANICS EMPLOYED BY THE DEPARTMENT OF DEFENSE ON ANY PUBLIC WORK WHICH IS ESSENTIAL TO THE NATIONAL DEFENSE:PROVIDED, THAT THE WAGES OF ALL LABORERS AND MECHANICS SO EMPLOYED BY THE DEPARTMENT OF DEFENSE SHALL BE COMPUTED ON A BASIC DAY RATE OF EIGHT HOURS OF WORK WITH OVERTIME TO BE PAID AT TIME AND ONE HALF FOR ALL HOURS OF WORK IN EXCESS OF EIGHT HOURS IN ANY ONE DAY.

SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, 5 U.S.C. 673C PROVIDES AS FOLLOWS:

THE WEEKLY COMPENSATION, MINUS ANY GENERAL PERCENTAGE REDUCTION WHICH MAY BE PRESCRIBED BY ACT OF CONGRESS, FOR THE SEVERAL TRADES AND OCCUPATIONS, WHICH IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES SHALL BE RE- ESTABLISHED AND MAINTAINED AT RATES NOT LOWER THAN NECESSARY TO RESTORE THE FULL WEEKLY EARNINGS OF SUCH EMPLOYEES IN ACCORDANCE WITH THE FULL- TIME WEEKLY EARNINGS UNDER THE RESPECTIVE WAGE SCHEDULES IN EFFECT ON JUNE 1, 1932: PROVIDED, THAT THE REGULAR HOURS OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE HALF.

SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 297, ALSO PROVIDES THAT WAGE BOARD EMPLOYEES WHOSE SALARIES WERE FIXED ON AN ANNUAL OR MONTHLY BASIS SHOULD BE ENTITLED TO OVERTIME IN ACCORDANCE WITH THE ACT OF MARCH 28, 1934. IT HAS BEEN HELD CONSISTENTLY BY THIS OFFICE THAT, UNDER THE PROVISIONS OF THE ABOVE-QUOTED STATUTE, AN EMPLOYEE COMING WITHIN THE PURVIEW THEREOF IS NOT ENTITLED TO OVERTIME COMPENSATION UNLESS AND UNTIL HE HAS BEEN IN A PAY STATUS FOR HIS REGULAR ESTABLISHED 40 HOUR WORK WEEK.

IN DECISION OF APRIL 6, 1934 TO THE PUBLIC PRINTER, 13 COMP. GEN. 265, IT WAS STATED, AS OLLOWS:

THE 8-HOUR LAW, AS AMENDED BY THE ACT OF MARCH 3, 1913, 37 STAT. 726 (SECS. 321 AND 322, TITLE 40, U.S. CODE), PROHIBITS THE EMPLOYMENT OF MECHANICS, LABORERS, AND THOSE IN SIMILAR OCCUPATIONS FOR MORE THAN 8 HOURS ON ANY 1 CALENDAR DAY,"EXCEPT IN CASE OF EXTRAORDINARY EMERGENCY.' IT IS NOT A COMPENSATION STATUTE AND DOES NOT PROVIDE FOR OVERTIME. HENCE, SECTION 23 OF THE ACT OF MARCH 28, 1934, PROVIDING FOR A 40-HOUR WEEK AND FOR OVERTIME COMPENSATION, IS NOT INCONSISTENT WITH, AND DOES NOT SUPERSEDE NOR RENDER INOPERATIVE THE 8-HOUR LAW. WHILE HERETOFORE OVERTIME COMPENSATION AT THE GOVERNMENT PRINTING OFFICE HAS BEEN PAID ON A DAILY BASIS, OVERTIME IS AUTHORIZED BY SECTION 23 OF THE ACT OF MARCH 28, 1934, ONLY ON A WEEKLY BASIS--- THAT IS, FOR WORK IN EXCESS OF 40 HOURS PER WEEK--- AND NO LONGER ON A DAILY BASIS. THEREFORE, IF, IN CASES OF AN EXTRAORDINARY EMERGENCY, EMPLOYEES ARE REQUIRED TO WORK MORE THAN 8 HOURS ON ANY ONE CALENDAR DAY, BUT ARE NOT REQUIRED TO WORK IN EXCESS OF 40 HOURS DURING THE WEEK, PAYMENT OF OVERTIME COMPENSATION IS NOT AUTHORIZED.

WHILE EXECUTIVE ORDER NO. 10251 RECITES SECTION 1 OF THE ACT OF AUGUST 1, 1892, 27 STAT. 240, AS AMENDED, BY THE ACT OF MARCH 3, 1913, 37 STAT. 726, 40 U.S.C. 321, AS THE AUTHORITY FOR THE ACTION TAKEN THEREIN, IT IS TO BE NOTED--- AS POINTED OUT IN THE ABOVE-QUOTED DECISION--- THAT THAT STATUTE IS NOT A PAY STATUTE AND CONTAINS NO REFERENCE TO OVERTIME COMPENSATION. THE SUSPENSION OF THE 8 HOUR LIMITATION MERELY MAKES IT PERMISSIBLE TO EMPLOY LABORERS AND MECHANICS IN EXCESS OF 8 HOURS DAILY. SINCE THE RATE OF COMPENSATION TO BE PAID IS CONTROLLED BY THE ACT OF MARCH 28, 1934, SUPRA, THE EXECUTIVE ORDER IN QUESTION MAY NOT BE REGARDED AS ESTABLISHING A BASIS FOR PAYING OVERTIME UPON A DAILY BASIS IN CONTRAVENTION OF LAW.

IN VIEW OF THE FOREGOING, IT IS REQUESTED THAT APPROPRIATE STEPS BE TAKEN TO RESTRICT THE PAYMENT TO LABORERS AND MECHANICS IN THE DEPARTMENT OF DEFENSE, WHOSE COMPENSATION IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES TO OVERTIME WORKED IN EXCESS OF 40 HOURS A WEEK AND THAT THIS OFFICE BE ADVISED WHEN SUCH ACTION HAS BEEN TAKEN. ALSO, IT IS REQUESTED THAT ADVICE BE FURNISHED OF THE ACTION WHICH IS TO BE TAKEN TO RECOVER ANY ERRONEOUS PAYMENTS THAT HAVE BEEN MADE.