B-13125, OCTOBER 31, 1940, 20 COMP. GEN. 233

B-13125: Oct 31, 1940

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IS APPLICABLE TO WORK ON AND AFTER SEPTEMBER 9. A GOVERNMENT CONTRACTOR MAY EMPLOY HIS LABORERS AND MECHANICS MORE THAN 8 HOURS PER DAY AT RATES LESS THAN TIME AND ONE-HALF FOR THE EXCESS WORK WHEN SUCH EXCESS IS DUE TO THE EMERGENCY CONDITIONS SPECIFIED IN SECTION 2 OF THE EIGHT-HOUR LAW OF JUNE 19. 1940: I HAVE YOUR LETTER OF OCTOBER 24. THERE IS ENCLOSED A COPY OF CIRCULAR LETTER NO. 435. YOUR DECISION IN THE FOLLOWING QUESTIONS IS RESPECTFULLY REQUESTED: (1) WHETHER THE PROVISIONS OF SECTION 303. IS ASSUMED THAT WITH RESPECT TO CONTRACTS EXECUTED PRIOR TO SEPTEMBER 9. THAT THE OLD EIGHT-HOUR LAW WILL BE APPLICABLE IN THE CASE OF EIGHT- HOUR VIOLATIONS OCCURRING PRIOR TO SEPTEMBER 9.

B-13125, OCTOBER 31, 1940, 20 COMP. GEN. 233

CONTRACTS - EIGHT-HOUR LAW - EFFECT OF OVERTIME WAGE PROVISIONS OF ACT OF SEPTEMBER 9, 1940 SECTION 303 OF THE ACT OF SEPTEMBER 9, 1940, PUBLIC, NO. 781, WHICH PROVIDES THAT UNDER CONTRACTS OF THE CHARACTER SPECIFIED IN THE EIGHT HOUR LAW OF JUNE 19, 1912, LABORERS AND MECHANICS MAY BE PERMITTED TO WORK MORE THAN 8 HOURS PER DAY IF OVERTIME COMPENSATION BE PAID AT A SPECIFIED RATE, IS APPLICABLE TO WORK ON AND AFTER SEPTEMBER 9, 1940, UNDER CONTRACTS EXECUTED PRIOR THERETO WHICH CONTAIN THE REQUIREMENTS OF THE 1912 ACT, BUT SAID SECTION DOES NOT APPLY TO WORK UNDER SUCH CONTRACTS OR VIOLATIONS OF THE 1912 ACT, PRIOR TO SEPTEMBER 9, 1940. SECTION 303 OF THE ACT OF SEPTEMBER 9, 1940, PUBLIC, NO. 781, REMOVES THE PROHIBITION OF THE EIGHT-HOUR LAW OF JUNE 19, 1912, AGAINST EMPLOYING LABORERS OR MECHANICS ON GOVERNMENT CONTRACTS IN EXCESS OF 8 HOURS PER DAY PROVIDED THE CONTRACTOR PAYS SUCH LABORERS OR MECHANICS AT THE RATE OF TIME AND ONE-HALF FOR THE EXCESS HOURS, BUT IF THE CONTRACTOR PERMITS OR REQUIRES A LABORER OR MECHANIC TO WORK MORE THAN 8HOURS PER DAY WITHOUT PAYING TIME AND ONE-HALF FOR THE OVERTIME, HE CANNOT ESCAPE THE PENALTY OF THE 1912 STATUTE. SECTION 303 OF THE ACT OF SEPTEMBER 9, 1940, PUBLIC, NO. 781, PERMITS THE EMPLOYMENT OF LABORERS AND MECHANICS IN EXCESS OF 8 HOURS PER DAY, UNDER CONTRACTS SUBJECT TO THE EIGHT-HOUR LAW OF JUNE 19, 1912, ONLY IF THE CONTRACTOR PAYS HIS LABORERS AND MECHANICS TIME AND ONE-HALF FOR WORK IN EXCESS OF 8 HOURS PER DAY, BUT HIS FAILURE TO PAY SUCH OVERTIME WAGES DOES NOT REQUIRE THE WITHHOLDING, UNDER ARTICLE 17 (A) OF STANDARD FORM NO. 23, REVISED, OF ANY AMOUNT REPRESENTING THE DIFFERENCE BETWEEN THE WAGES SPECIFICALLY REQUIRED BY THE CONTRACT AND THOSE WAGES ON THE BASIS OF TIME AND ONE-HALF FOR THE EXCESS HOURS WORKED. A GOVERNMENT CONTRACTOR MAY EMPLOY HIS LABORERS AND MECHANICS MORE THAN 8 HOURS PER DAY AT RATES LESS THAN TIME AND ONE-HALF FOR THE EXCESS WORK WHEN SUCH EXCESS IS DUE TO THE EMERGENCY CONDITIONS SPECIFIED IN SECTION 2 OF THE EIGHT-HOUR LAW OF JUNE 19, 1912, WITHOUT BEING SUBJECT TO THE PENALTY PROVISIONS OF SAID ACT OR VIOLATING THE ACT OF SEPTEMBER 9, 1940, WHICH PERMITS A CONTRACTOR TO EMPLOY LABORERS, ETC., IN EXCESS OF 8 HOURS PER DAY IF TIME AND ONE-HALF BE PAID FOR SUCH EXCESS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, OCTOBER 31, 1940:

I HAVE YOUR LETTER OF OCTOBER 24, 1940, AS FOLLOWS:

SECTION 303 OF PUBLIC ACT NO. 781, 76TH CONGRESS APPROVED SEPTEMBER 9, 1940, PROVIDES AS FOLLOWS:

"SECTION 303. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE WAGES OF EVERY LABORER AND MECHANIC EMPLOYED BY ANY CONTRACTOR OR SUBCONTRACTOR ENGAGED IN THE PERFORMANCE OF ANY CONTRACT OF THE CHARACTER SPECIFIED IN THE ACT OF JUNE 19, 1912 (37 STAT. 138; U.S.C., TITLE 40, SECS. 324, 325,) SHALL BE COMPUTED ON A BASIC DAY RATE OF EIGHT HOURS PER DAY AND WORK IN EXCESS OF EIGHT HOURS PER DAY SHALL BE PERMITTED UPON COMPENSATION FOR ALL HOURS WORKED IN EXCESS OF EIGHT HOURS PER DAY AT NOT LESS THAN ONE AND ONE -HALF TIMES THE BASIC RATE OF PAY.'

THERE IS ENCLOSED A COPY OF CIRCULAR LETTER NO. 435, DATED SEPTEMBER 20, 1940, FROM THE PROCUREMENT DIVISION OF THE TREASURY DEPARTMENT, REGARDING THE NEW EIGHT-HOUR CONTRACT PROVISIONS TO BE INSERTED IN U.S. STANDARD FORM NO. 23 REVISED.

YOUR DECISION IN THE FOLLOWING QUESTIONS IS RESPECTFULLY REQUESTED:

(1) WHETHER THE PROVISIONS OF SECTION 303, QUOTED ABOVE, SHOULD BE APPLIED TO CONTRACTS EXECUTED PRIOR TO SEPTEMBER 9, 1940, WHICH CONTAIN THE OLD EIGHT-HOUR LAW CONTRACT PROVISIONS BASED UPON THE ACT OF JUNE 19, 1912, 37 STAT. 137, AND THE ACT OF MARCH 3, 1913, 37 STAT. 726, WHEN WORK IN EXCESS OF EIGHT HOURS PER DAY OCCURS ON OR AFTER SEPTEMBER 9, 1940. IS ASSUMED THAT WITH RESPECT TO CONTRACTS EXECUTED PRIOR TO SEPTEMBER 9, 1940, THAT THE OLD EIGHT-HOUR LAW WILL BE APPLICABLE IN THE CASE OF EIGHT- HOUR VIOLATIONS OCCURRING PRIOR TO SEPTEMBER 9, 1940, BUT IT IS DESIRED TO HAVE YOUR CONFIRMATION ON THIS POINT.

(2) IF YOUR ANSWER TO THE FIRST QUESTION IS IN THE AFFIRMATIVE, WHETHER A CONTRACTOR WHO VIOLATES THE EIGHT-HOUR LAW, AS AMENDED BY THE AFOREMENTIONED PUBLIC ACT NO. 781 BY WORKING HIS EMPLOYEES IN EXCESS OF EIGHT HOURS PER DAY AND FAILING TO PAY THEM ONE AND ONE-HALF TIMES THEIR BASIC RATE OF PAY FOR SUCH EXCESS TIME, SHOULD BE FINED $5 FOR EACH VIOLATION.

(3) SHOULD THERE ALSO BE A REDUCTION OF SUCH MONEYS AS MAY BE NECESSARY TO PAY THE DIFFERENCE BETWEEN THE WAGES REQUIRED BY THE CONTRACT (TIME AND ONE-HALF FOR WORK IN EXCESS OF EIGHT HOURS), AND THE WAGES ACTUALLY RECEIVED BY THE LABORERS AND MECHANICS, AS PROVIDED BY ARTICLE 17 (A) OF U.S. STANDARD FORM NO. 23 REVISED.

(4) WHETHER IN THE CASE OF EXTRAORDINARY EMERGENCY, LABORERS AND MECHANICS MAY BE PERMITTED TO BE EMPLOYED BY CONTRACTORS AFTER SEPTEMBER 9, 1940, IN EXCESS OF EIGHT HOURS PER DAY WITHOUT PAYMENT OF ONE AND ONE- HALF TIMES THEIR BASIC RATE OF PAY. THE PROVISO TO THE NEW ARTICLE 11, QUOTED IN CIRCULAR LETTER NO. 435, IS AS FOLLOWS:

"PROVIDED, THAT THIS STIPULATION SHALL BE SUBJECT IN ALL RESPECTS TO THE EXCEPTIONS AND PROVISIONS OF U.S. CODE, TITLE 40, SECTIONS 321, 324,325, AND 326, RELATING TO HOURS OF LABOR, AS IN PART MODIFIED BY THE PROVISIONS OF SECTION 303 OF PUBLIC ACT NO. 781, 76TH CONGRESS, APPROVED SEPTEMBER 9, 1940, RELATING TO COMPENSATION FOR OVERTIME.'

THE QUOTATION WOULD SEEM TO INDICATE THAT AN EXTRAORDINARY EMERGENCY (THE EXCEPTION IN THE OLD EIGHT-HOUR LAW) WOULD EXCUSE AN EXCESS OF EIGHT HOURS OF WORK WITHOUT REQUIRING THE PAYMENT OF TIME AND ONE HALF. HOWEVER, YOUR ATTENTION IS DIRECTED TO THE FACT THAT NO EXCEPTIONS HAVE BEEN SPECIFICALLY INCORPORATED IN SAID SECTION 303.

AS URGENT INQUIRIES ARE BEING RECEIVED FROM THE FIELD OFFICES OF THE BUREAU OF RECLAMATION FOR CLARIFICATION OF THESE MATTERS, IT IS REQUESTED THAT YOUR REPLY BE EXPEDITED.

THE GENERAL RULE IS THAT AN ACT OF CONGRESS BECOMES A LAW AT THE DATE OF THE PRESIDENT'S APPROVAL OF THE BILL. GARDNER V. THE COLLECTOR, 6 WALL. 499, SEIFFERT V. JONES, 186 PAC. 472, AND AUTHORITIES THERE CITED. ALSO, IT IS A WELL SETTLED AND FUNDAMENTAL RULE THAT STATUTES ARE TO BE CONSTRUED AS HAVING ONLY A PROSPECTIVE OPERATION, AND NOT AS ACTING RETROSPECTIVELY UNLESS THE STATUTES EXPRESSLY PROVIDE OTHERWISE OR UNLESS THE INTENTION OF THE LEGISLATURE TO GIVE THEM A RETROSPECTIVE EFFECT PLAINLY AND UNMISTAKABLY APPEARS. UNITED STATES V. MAGNOLIA COMPANY, 276 U.S. 160; SHWAB V. DOYLE, 258 U.S. 529. I FIND NOTHING IN THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, PUBLIC NO. 781, APPROVED SEPTEMBER 9, 1940, EITHER EXPRESSLY OR IMPLIEDLY, INDICATING AN INTENTION ON THE PART OF THE CONGRESS THAT THE ACT BE EFFECTIVE AT ANY DATE OTHER THAN THE DATE OF ITS APPROVAL BY THE PRESIDENT OR THAT IT OPERATE RETROSPECTIVELY. ACCORDINGLY, THE GENERAL RULES ABOVE STATED ARE FOR APPLICATION. THEREFORE, AS THE ACT IS TO BE CONSTRUED AS EFFECTIVE FROM THE DATE OF ITS APPROVAL BY THE PRESIDENT, SEPTEMBER 9, 1940, YOU ARE ADVISED THAT SECTION 303 THEREOF IS APPLICABLE TO WORK ON OR AFTER SEPTEMBER 9, 1940, UNDER CONTRACTS EXECUTED PRIOR THERETO, WHICH CONTAIN THE REQUIREMENTS OF THE EIGHT-HOUR LAW OF JUNE 19, 1912, 37 STAT. 137, BUT, SINCE THE STATUTE IS NOT TO BE CONSTRUED AS OPERATING RETROSPECTIVELY, THE SAID SECTION DOES NOT APPLY TO WORK UNDER SUCH CONTRACTS, OR VIOLATIONS OF THE EIGHT-HOUR LAW, SUPRA, PRIOR TO THE DATE OF APPROVAL OF THE ACT, SEPTEMBER 9, 1940, AND THE PROVISIONS OF THE 1912 ACT WILL BE APPLICABLE THERETO. THIS ANSWERS YOUR FIRST QUESTION IN THE AFFIRMATIVE.

THE EIGHT-HOUR LAW OF 1912 (40 U.S.C. 324-325), PROVIDES, GENERALLY, THAT EVERY CONTRACT WITHIN THE SCOPE THEREOF SHALL CONTAIN A PROVISION THAT NO LABORER OR MECHANIC EMPLOYED THEREUNDER SHALL BE REQUIRED OR PERMITTED TO WORK MORE THAN 8 HOURS IN ANY ONE CALENDAR DAY UPON SUCH WORK AND THAT AS A MEANS OF ENFORCING SUCH PROVISION THERE SHALL BE STIPULATED, AS A MATTER OF CONTRACT, A PENALTY OF $5 FOR EACH LABORER OR MECHANIC FOR EVERY CALENDAR DAY IN WHICH HE SHALL BE REQUIRED OR PERMITTED TO LABOR MORE THAN 8 HOURS UPON SUCH WORK. SECTION 303 OF PUBLIC, NO. 781, SUPRA, DID NOT REPEAL THE EIGHT-HOUR LAW OF 1912, BUT MERELY REMOVED THE PROHIBITION AGAINST EMPLOYING LABORERS OR MECHANICS IN EXCESS OF 8 HOURS PER DAY PROVIDED THAT THE CONTRACTOR PAY SUCH LABORERS AND MECHANICS AT THE RATE OF TIME AND ONE-HALF FOR ALL HOURS WORKED IN EXCESS OF 8 HOURS PER DAY. THE LATER STATUTE IS MERELY SUPPLEMENTARY TO THE FORMER, WHICH CONTINUES IN FULL EFFECT WITH THE QUALIFICATION CONTAINED IN THE LATER ACT. WHEREAS THE 1912 STATUTE PROHIBITS EMPLOYMENT OF LABORERS AND MECHANICS IN EXCESS OF 8 HOURS PER DAY UNDER PENALTY OF $5 FOR EACH VIOLATION THEREOF, SECTION 303 OF PUBLIC, NO. 781, SUPRA, RECOGNIZES THE EXISTENCE AND EFFECT OF THE 1912 STATUTE BUT AUTHORIZES THE EMPLOYMENT OF LABORERS AND MECHANICS IN EXCESS OF 8 HOURS PER DAY ON THE CONDITION, AND ONLY ON THE CONDITION, THAT TIME AND ONE-HALF BE PAID FOR ALL HOURS OF WORK IN EXCESS OF 8 HOURS PER DAY. OBVIOUSLY, IF A CONTRACTOR PERMITS OR REQUIRES A LABORER OR MECHANIC TO WORK IN EXCESS OF 8 HOURS PER DAY AND DOES NOT PAY TIME AND ONE-HALF FOR WORK IN EXCESS OF 8 HOURS, THE ACT OF SEPTEMBER 9, 1940, CONTAINS NO AUTHORITY FOR SUCH EXCESS WORK AND THE CONTRACTOR CANNOT ESCAPE THE PENALTY OF THE 1912 STATUTE BY RELIANCE UPON THE 1940 ACT. THE 1940 STATUTE IS MERELY PERMISSIVE, AS DISTINGUISHED FROM RESTRICTIVE OR PROHIBITIVE, AND, IN EFFECT, SIMPLE WAIVES THE PENALTY SPECIFIED IN THE 1912 STATUTE SO LONG AS A CONTRACTOR PAYS TIME AND ONE-HALF FOR THE OVERTIME. THE 1940 STATUTE DOES NOT REQUIRE A CONTRACTOR TO PAY TIME AND ONE-HALF FOR ALL HOURS WORKED PER DAY IN EXCESS OF EIGHT BY ANY LABORER OR MECHANIC--- IT MERELY PERMITS THE EMPLOYMENT OF SUCH PERSONS IN EXCESS OF 8 HOURS PER DAY UPON THE CONDITION THAT TIME AND ONE- HALF BE PAID FOR OVERTIME. HENCE, ANY FAILURE TO PAY TIME AND ONE-HALF IS A VIOLATION NOT OF THE 1940 STATUTE BUT THE 1912 STATUTE. THE VIOLATION IN SUCH CASE DOES NOT RELATE TO THE WAGES PAID BUT RATHER TO THE EMPLOYMENT IN EXCESS OF 8 HOURS PER DAY AND AS SUCH IS SUBJECT TO THE PENALTY SPECIFIED IN THE 1912 STATUTE. ACCORDINGLY, YOUR SECOND QUESTION, ALSO, IS ANSWERED IN THE AFFIRMATIVE.

WHAT HAS BEEN SAID WITH RESPECT TO YOUR QUESTION NUMBER 2 IS APPLICABLE TO, AND DETERMINATIVE OF, THE ANSWER TO YOUR QUESTION NUMBER 3. AS STATED ABOVE, ANY FAILURE ON THE PART OF A CONTRACTOR TO PAY TIME AND ONE-HALF TO LABORERS AND MECHANICS FOR ALL TIME WHICH THEY ARE PERMITTED OR REQUIRED TO WORK IN EXCESS OF 8 HOURS PER DAY IS NOT A VIOLATION OF THE ACT OF SEPTEMBER 9, 1940. SAID ACT DOES NOT REQUIRE PAYMENT OF TIME AND ONE-HALF BUT MERELY PERMITS EMPLOYMENT OF LABORERS AND MECHANICS IN EXCESS OF 8 HOURS PER DAY ON THE CONDITION THEREIN STATED. THE EMPLOYMENT OF LABORERS AND MECHANICS IN EXCESS OF 8 HOURS PER DAY IS A VIOLATION OF THE EIGHT- HOUR LAW OF 1912, GENERALLY, AND A CONTRACTOR IS SUBJECT TO THE PENALTY SPECIFIED THEREIN UNLESS TIME AND ONE-HALF FOR SUCH EXCESS WORK IS PAID, IN WHICH EVENT THE 1940 STATUTE, IN EFFECT, WAIVES THE PENALTY. SUCH BEING THE RELATION OF THE 1940 STATUTE TO THE 1912 STATUTE, THERE WOULD APPEAR TO BE NO LEGAL AUTHORITY OR JUSTIFICATION, BY REASON OF THE 1940 STATUTE, FOR WITHHOLDING FROM PAYMENTS OTHERWISE DUE A CONTRACTOR, UNDER ARTICLE 17 (A) OF STANDARD FORM NO. 23, REVISED--- SAID ARTICLE BEING BASED UPON AND HAVING REFERENCE TO THE PROVISIONS OF THE BACON-DAVIS ACT, 49 STAT. 1011--- ANY AMOUNT REPRESENTING THE DIFFERENCE BETWEEN THE WAGES SPECIFICALLY REQUIRED BY THE CONTRACT TO BE PAID AND THOSE WAGES ON THE BASIS OF TIME AND ONE-HALF FOR HOURS WORKED IN EXCESS OF 8 HOURS PER DAY BY LABORERS OR MECHANICS.

THE BACON-DAVIS ACT, SUPRA, REQUIRES THE PAYMENT OF THE MINIMUM HOURLY RATES SPECIFIED IN CONTRACTS WITHIN ITS PURVIEW, BUT IT DOES NOT LIMIT THE HOURS OF EMPLOYMENT PER DAY OF LABORERS AND MECHANICS OR REQUIRE THE PAYMENT OF TIME AND ONE-HALF FOR WORK IN EXCESS OF 8 HOURS PER DAY. THE ACT OF SEPTEMBER 9, 1940, DOES NOT REQUIRE AS A MATTER OF CONTRACT THE PAYMENT OF TIME AND ONE-HALF FOR WORK IN EXCESS OF 8 HOURS PER DAY BY LABORERS AND MECHANICS. CONSEQUENTLY, THE FAILURE OF A CONTRACTOR TO PAY LABORERS AND MECHANICS TIME AND ONE-HALF FOR WORK IN EXCESS OF 8 HOURS PER DAY IS A MATTER NOT WITHIN THE PURVIEW OF ARTICLE 17 (A) OF THE STANDARD FORM NO. 23, REVISED, WHICH IS BASED UPON THE REQUIREMENTS OF THE BACON- DAVIS ACT, AND RELATES TO WITHHOLDING FROM THE CONTRACTOR THE DIFFERENCE BETWEEN THE RATES OF WAGES REQUIRED BY THE CONTRACT TO BE PAID LABORERS AND MECHANICS AND THE RATES OF WAGES RECEIVED BY THEM. THE ACT OF SEPTEMBER 9, 1940, DOES NOT HAVE ANY EFFECT UPON THE BACON-DAVIS ACT OR THE STIPULATIONS REQUIRED BY SUCH ACT TO BE INSERTED IN THE CONTRACTS COVERED THEREBY.

IN THE LIGHT OF THE FOREGOING THE ANSWER TO YOUR QUESTION NUMBER 4 NECESSARILY MUST BE IN THE AFFIRMATIVE. THE ACT OF SEPTEMBER 9, 1940, DOES NOT REQUIRE THE PAYMENT OF TIME AND ONE-HALF FOR WORK IN EXCESS OF 8 HOURS PER DAY AND THE FAILURE TO PAY TIME AND ONE-HALF WOULD NOT BE A VIOLATION OF THAT ACT. NEITHER WOULD SUCH FAILURE, IN THE CASE OF AN EXTRAORDINARY EMERGENCY SUBJECT A CONTRACTOR TO THE PENALTY SPECIFIED IN THE EIGHT-HOUR LAW OF 1912 BECAUSE SECTION 2 THEREOF PROVIDES THAT THE PENALTY SPECIFIED THEREIN SHALL NOT BE IMPOSED WHEN THE EXCESS WORK IS "DUE TO ANY EXTRAORDINARY EVENTS OR CONDITIONS OF MANUFACTURE, OR TO ANY EMERGENCY CAUSED BY FIRE, FAMINE, OR FLOOD, BY DANGER TO LIFE OR TO PROPERTY," ETC. ..END :