B-120383, APRIL 12, 1955, 34 COMP. GEN. 512

B-120383: Apr 12, 1955

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EMPLOYEES COMPENSATED ON ANNUAL OR MONTHLY BASIS WAGE BOARD EMPLOYEES WHO ARE PAID ON A MONTHLY OR ANNUAL BASIS ARE NOT SUBJECT TO THE AGGREGATE SALARY LIMITATION IN SECTION 603 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. 26 COMP. 1955: THERE HAVE BEEN BROUGHT TO OUR ATTENTION. NOR THE EMPLOYEES WERE AWARE THAT THE LIMITATION WAS APPLICABLE ON A PAY PERIOD AS DISTINGUISHED FROM AN ANNUAL BASIS. THE MATTER WAS THE SUBJECT OF COURT DECISIONS RENDERED BOTH PRIOR AND SUBSEQUENT TO THE DATE OF ENACTMENT OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. IN VIEW OF THE HOLDINGS IN THESE DECISIONS THAT WAGE BOARD EMPLOYEES ARE ENTITLED TO OVERTIME COMPENSATION UNDER THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28.

B-120383, APRIL 12, 1955, 34 COMP. GEN. 512

COMPENSATION - AGGREGATE LIMITATION - WAGE BOARD, ETC., EMPLOYEES COMPENSATED ON ANNUAL OR MONTHLY BASIS WAGE BOARD EMPLOYEES WHO ARE PAID ON A MONTHLY OR ANNUAL BASIS ARE NOT SUBJECT TO THE AGGREGATE SALARY LIMITATION IN SECTION 603 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. 26 COMP. GEN. 658, 33 ID. 53, OVERRULED.

COMPTROLLER GENERAL CAMPBELL TO THE SECRETARY OF THE TREASURY, APRIL 12, 1955:

THERE HAVE BEEN BROUGHT TO OUR ATTENTION, AS A RESULT OF AN AUDIT OF THE COAST GUARD YARD FUND, EXCEPTIONS TAKEN TO CERTAIN PAYMENTS CERTIFIED BY P. C. STACK AND H. C. STEINMETZ IN THE ACCOUNT OF P. D. BANNING, SYMBOL 1386. THE QUESTIONED PAYMENTS, AGGREGATING $3,904.65, REPRESENT AMOUNTS PAID TO CERTAIN PER ANNUM WAGE BOARD EMPLOYEES OF THE COAST GUARD, CURTIS BAY, MARYLAND, IN EXCESS OF THE MAXIMUM SALARY RATE LIMITATION IMPOSED BY SECTION 603 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, 303, AS AMENDED.

THE COMPTROLLER OF THE COAST GUARD, BY LETTER OF MAY 6, 1954, WRITTEN AT THE DIRECTION OF THE COMMANDANT, REQUESTS THAT THE RESPONSIBLE CERTIFYING OFFICERS BE RELIEVED OF RESPONSIBILITY FOR SUCH OVERPAYMENTS. THE LETTER POINTS OUT THAT THE COAST GUARD HAD NO CONTROLLING REGULATIONS IN EFFECT AT THE TIME OF THE PAYMENTS, AND THAT NEITHER HIS OFFICE, THE CERTIFYING OFFICERS, NOR THE EMPLOYEES WERE AWARE THAT THE LIMITATION WAS APPLICABLE ON A PAY PERIOD AS DISTINGUISHED FROM AN ANNUAL BASIS. ALSO, INFORMATION HAS BEEN FURNISHED THAT PARTIAL REFUND OF THE OVERPAYMENTS HAS BEEN RECEIVED FROM SOME OF THE EMPLOYEES INVOLVED.

CONSIDERATION OF THE BASIC LEGAL QUESTION PRESENT IN THIS CASE AND IN SEVERAL OTHERS OF LIKE NATURE NOW PENDING HAS LED TO A REEXAMINATION OF OUR POSITION REGARDING THE APPLICATION OF SECTION 603 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, TO WAGE BOARD EMPLOYEES COMPENSATED AT MONTHLY OR PER ANNUM RATES.

THE MATTER WAS THE SUBJECT OF COURT DECISIONS RENDERED BOTH PRIOR AND SUBSEQUENT TO THE DATE OF ENACTMENT OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. SEE UNITED STATES V. TOWNSLEY, 323 U.S. 557, AND HEARNE V. UNITED STATES, 107 C.1CLS. 335. IN VIEW OF THE HOLDINGS IN THESE DECISIONS THAT WAGE BOARD EMPLOYEES ARE ENTITLED TO OVERTIME COMPENSATION UNDER THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, FOR PERIODS OF SERVICE PRIOR TO 1945, IT IS RECOGNIZED THAT THERE NO LONGER EXISTS A FIRM BASIS FOR THE DETERMINATION THAT A RIGHT TO OVERTIME COMPENSATION UNDER THE 1934 STATUTE WAS GRANTED TO WAGE BOARD EMPLOYEES PAID ON A MONTHLY OR ANNUAL BASIS BY VIRTUE OF THE ENACTMENT OF SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 297. CONSEQUENTLY, THE CONCLUSION EXPRESSED IN DECISION OF MARCH 5, 1947, 26 COMP. GEN. 658, THAT BY VIRTUE OF HAVING BEEN GRANTED SUCH RIGHT BY THE 1945 ACT MONTHLY AND PER ANNUM WAGE BOARD EMPLOYEES WERE SUBJECT TO THE MAXIMUM SALARY RATE LIMITATION CONTAINED IN SECTION 603 (B) OF THAT ACT, NO LONGER WILL BE ADHERED TO.

YOU ARE ADVISED, THEREFORE, THAT INSTRUCTIONS WILL BE ISSUED TO OUR DIVISION OF AUDITS TO REMOVE THE EXCEPTIONS MENTIONED ABOVE. ALSO YOU ARE ADVISED THAT ACTION SHOULD BE TAKEN ADMINISTRATIVELY TO EFFECT REFUND TO THOSE EMPLOYEES FROM WHOM COLLECTIONS HAVE BEEN MADE.