B-121978, MARCH 25, 1955, 34 COMP. GEN. 471

B-121978: Mar 25, 1955

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"WHEN ACTUALLY EMPLOYED" EMPLOYEES - COMPENSATION FOR IRREGULAR HOURS OF EMPLOYMENT AN ATTORNEY WHOSE POSITION WAS CONVERTED FROM "FULL-TIME" TO "WHEN ACTUALLY-EMPLOYED" STATUS. IS ENTITLED TO COMPENSATION PURSUANT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945 AS A . IS ENTITLED TO STRAIGHT-TIME COMPENSATION FOR ALL HOURS IN A PARTICULAR BIWEEKLY PAY PERIOD IRRESPECTIVE OF WHETHER HOURS WORKED ARE IN EXCESS OF 40 HOURS PER WEEK. 1955: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 2. A VOUCHER COVERING THE CLAIMED PAYMENT WAS NOT ENCLOSED WITH YOUR LETTER. WITH THE UNDERSTANDING THAT PROPERLY PREPARED VOUCHERS WILL BE SUBMITTED IN THE FUTURE WITH REQUESTS FOR DECISIONS. THE REQUIREMENT FOR A VOUCHER IN THIS PARTICULAR INSTANCE WILL BE WAIVED.

B-121978, MARCH 25, 1955, 34 COMP. GEN. 471

"WHEN ACTUALLY EMPLOYED" EMPLOYEES - COMPENSATION FOR IRREGULAR HOURS OF EMPLOYMENT AN ATTORNEY WHOSE POSITION WAS CONVERTED FROM "FULL-TIME" TO "WHEN ACTUALLY-EMPLOYED" STATUS, AND WHO RENDERED SERVICES OF LESS THAN FULL TIME FOR SEVERAL PAY PERIODS PRIOR TO HIS RESIGNATION, IS ENTITLED TO COMPENSATION PURSUANT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945 AS A ,WHEN- ACTUALLY-EMPLOYED" EMPLOYEE FOR WHOM NO REGULAR TOUR OF DUTY HAD BEEN ESTABLISHED AND, ACCORDINGLY, IS ENTITLED TO STRAIGHT-TIME COMPENSATION FOR ALL HOURS IN A PARTICULAR BIWEEKLY PAY PERIOD IRRESPECTIVE OF WHETHER HOURS WORKED ARE IN EXCESS OF 40 HOURS PER WEEK.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO E. J. DWYER, HOUSING AND HOME FINANCE AGENCY, MARCH 25, 1955:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 2, 1954, SUBMITTING FOR DECISION CERTAIN QUESTIONS ARISING OUT OF THE CLAIM OF MR. DAVID S. ALLS HOUSE FOR ADDITIONAL SALARY COVERING THE PAY PERIOD AUGUST 29 TO SEPTEMBER 11, 1954.

A VOUCHER COVERING THE CLAIMED PAYMENT WAS NOT ENCLOSED WITH YOUR LETTER. ORDINARILY, THE VOUCHER PRESENTED TO A CERTIFYING OFFICER FOR CERTIFICATION MUST ACCOMPANY THE REQUEST FOR A DECISION ON ANY QUESTION OF LAW INVOLVED IN THE CERTIFICATION OF THE VOUCHER. 26 COMP. GEN. 797; 21 ID. 1128. HOWEVER, SINCE IT APPEARS THAT A CLAIM HAS BEEN SUBMITTED TO YOU BY MR. ALLS HOUSE, AND WITH THE UNDERSTANDING THAT PROPERLY PREPARED VOUCHERS WILL BE SUBMITTED IN THE FUTURE WITH REQUESTS FOR DECISIONS, THE REQUIREMENT FOR A VOUCHER IN THIS PARTICULAR INSTANCE WILL BE WAIVED.

IT IS REPORTED THAT MR. ALLS HOUSE'S APPOINTMENT AS AN ATTORNEY AT GRADE GS-15, $10,800 PER ANNUM, WAS CONVERTED, UNDER DATE OF SEPTEMBER 1, 1954, FROM "FULL TIME" TO "WHEN ACTUALLY PLOYED.' HIS PER ANNUM SALARY WAS SHOWN ON THE FORM EFFECTING THE CHANGE AS $10,800 PER ANNUM, BUT CARRYING THE NOTATION "41.52 PER DIEM, W.A.E.' YOU STATE THAT THERE IS NO CONTRACT WITH MR. ALLS HOUSE LIMITING THE HOURS FOR WHICH HE MAY BE PAID.

THE QUESTIONS PRESENTED FOR DECISION ARE STATED IN YOUR LETTER, AS FOLLOWS:

(A) CAN HE BE PAID FOR A FULL DAY'S PAY ( $41.52) FOR LESS THAN EIGHT HOURS WORK? I. E., IF HE WORKS ONLY TWO OR THREE HOURS IN ANY ONE DAY IS HE ENTITLED TO THE FULL DAY'S PAY?

(B) CAN HE BE PAID IN EXCESS OF $41.52 FOR A WORK DAY WHERE HE EXCEEDS EIGHT HOURS DUTY?

(C) PROVIDING HE WORKS ON SATURDAY AND/OR SUNDAY CAN HE BE PAID FOR MORE THAN FIVE DAY/S) PER WEEK?

IT INFORMALLY HAS BEEN ASCERTAINED FROM YOU THAT MR. ALLS HOUSE IS NOT EMPLOYED AS AN EXPERT OR CONSULTANT UNDER SECTION 15 OF PUBLIC LAW 600, 60 STAT. 810, OR OTHERWISE, BUT IS A REGULAR EMPLOYEE APPOINTED UNDER NORMAL PROCEDURES AND IS SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED; ALSO, THAT HE HAS NO ESTABLISHED TOUR OF DUTY BUT SELECTS THE HOURS AND DAYS ON WHICH HE WILL PERFORM SERVICES DEPENDING UPON HIS FREEDOM FROM PRIVATE LAW PRACTICE. IT FURTHER HAS BEEN ASCERTAINED FROM YOU THAT MR. ALLS HOUSE RESIGNED AS OF THE CLOSE OF BUSINESS ON NOVEMBER 19, 1954, AND THAT FOR THE SIX PAY PERIODS FROM AUGUST 29, 1954, TO NOVEMBER 20, 1954, HIS HOURS OF WORK FOR EACH OF SUCH PAY PERIODS WERE 76, 78, 105 1/2, 83, 80, AND 68, RESPECTIVELY.

IT MAY BE STATED THAT THE COMPENSATION OF EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1071-1153, WHETHER THEY BE APPOINTED FULL-TIME, PART-TIME, OR ON A WHEN-ACTUALLY-EMPLOYED BASIS, IS COMPUTED IN ACCORDANCE WITH THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 901-958. NEITHER OF THOSE STATUTES CONTAINS ANY PROVISION AUTHORIZING A FULL DAY'S PAY FOR SERVICES LESS THAN THE LENGTH OF THE NORMAL WORKDAY; NOR DO THEY AUTHORIZE THE PAYMENT OF COMPENSATION FOR ANY NUMBER OF HOURS LESS THAN THOSE ACTUALLY WORKED EXCEPT TO THE EXTENT THAT AN EMPLOYEE'S COMPENSATION MAY BE LIMITED BY THE AGGREGATE COMPENSATION PROVISIONS OF SECTION 603 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 302, AS AMENDED.

ACCORDINGLY, IT FOLLOWS THAT, GENERALLY, THE COMPENSATION OF EMPLOYEES APPOINTED ON A "WHEN ACTUALLY EMPLOYED" BASIS IS DETERMINED IN THE SAME MANNER AS THAT OF FULL-TIME EMPLOYEES. EXCEPTIONS TO THE GENERAL RULE OCCUR IN THOSE INSTANCES WHERE THE "WHEN ACTUALLY EMPLOYED" EMPLOYEES HAVE NO ADMINISTRATIVELY ESTABLISHED WORK-WEEKS AND PERFORM SERVICES IN EXCESS OF 40 HOURS PER WEEK FOR ONE OR BOTH OF THE WEEKS IN THE BIWEEKLY PAY PERIOD. UNDER SUCH CIRCUMSTANCES, THE "WHEN ACTUALLY EMPLOYED" EMPLOYEES MAY NOT BE PAID OVERTIME COMPENSATION SINCE THEY HAVE NO ESTABLISHED WORKWEEKS AND, FOR THAT REASON, ARE NOT TO BE REGARDED AS FULL-TIME EMPLOYEES WITHIN THE MEANING OF THE OVERTIME COMPENSATION PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. 27 COMP. GEN. 776. RATHER, SUCH EMPLOYEES ARE ENTITLED TO STRAIGHT TIME COMPENSATION FOR ALL HOURS WORKED IN A PARTICULAR BIWEEKLY PAY PERIOD IRRESPECTIVE OF WHETHER SERVICES BE PERFORMED IN EXCESS OF 40 HOURS PER WEEK. 28 COMP. GEN. 328. MOREOVER, UNLESS SUCH EMPLOYEES ARE ACTUALLY SUBJECT TO THE OVERTIME OR OTHER PREMIUM COMPENSATION PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, THE AGGREGATE COMPENSATION LIMITATION SPECIFIED IN THAT STATUTE WOULD NOT BE FOR APPLICATION. 27 COMP. GEN. 46.

IN THE INSTANT CASE THERE IS CONSIDERABLE SUPPORT FOR THE VIEW THAT THE EMPLOYEE BE REGARDED AS CONTINUING IN A FULL-TIME STATUS FOR COMPENSATION PURPOSES ON AND AFTER SEPTEMBER 1, 1954, SINCE THE ACTION IN CONVERTING HIM FROM A FULL-TIME EMPLOYEE TO ONE EMPLOYED ON A "WHEN ACTUALLY MPLOYED" BASIS APPEARS TO HAVE BEEN PRIMARILY FOR HIS CONVENIENCE. HOWEVER, IN LIGHT OF THE SHORT PERIOD OF THE EMPLOYMENT UNDER THE "WHEN ACTUALLY EMPLOYED" APPOINTMENT-- THE EMPLOYEE HAVING RESIGNED ON NOVEMBER 19, 1954- -- AND THE FACT THAT THE EMPLOYEE RENDERED SERVICES OF LESS THAN FULL TIME FOR MOST OF THE PAY PERIODS INVOLVED, IT IS CONCLUDED THAT HE IS ENTITLED TO COMPENSATION AS A "WHEN ACTUALLY EMPLOYED" EMPLOYEE FOR WHOM NO REGULAR TOUR OF DUTY HAD BEEN ESTABLISHED.

ACCORDINGLY, QUESTION (A) IS ANSWERED IN THE NEGATIVE AND QUESTIONS (B) AND (C) ARE ANSWERED IN THE AFFIRMATIVE. IT IS UNDERSTOOD THAT COMPENSATION FOR HOURS WORKED IN EXCESS OF 80 HOURS PER BIWEEKLY PAY PERIOD HAS BEEN WITHHELD PENDING RECEIPT OF THIS DECISION. A VOUCHER COVERING THE COMPENSATION SO WITHHELD MAY NOW BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.