B-150265, B-149986, DECEMBER 26, 1962, 42 COMP. GEN. 329

B-149986,B-150265: Dec 26, 1962

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

DOUBLE BENEFIT FOR THE SAME HOURS IS NOT AUTHORIZED. A WAGE BOARD EMPLOYEE WHO IS ASSIGNED TO A REGULARLY SCHEDULED WORKWEEK OF FIVE 8-HOUR DAYS AND WHO RECEIVES OVERTIME COMPENSATION FOR THREE AND ONE-HALF HOURS OF OVERTIME WORK IN EXCESS OF 8 HOURS ON ONE DAY. WHICH IS THE SAME NUMBER OF HOURS IN EXCESS OF 40 PER WEEK. HAS RECEIVED ALL THE OVERTIME COMPENSATION TO WHICH HE IS ENTITLED. AN EMPLOYEE WHOSE REGULARLY SCHEDULED WORK WEEK IS COMPRISED OF THREE 12-HOUR DAYS AND ONE 10-HOUR DAY. IS ASSIGNED TO A REGULARLY SCHEDULED WORKWEEK OF FIVE 8-HOUR DAYS. THE EMPLOYEE WAS ORDERED TO PERFORM 3 1/2 HOURS OF WORK IN EXCESS OF HIS 8-HOUR TOUR. YOU INDICATE THERE IS A SUBSTANTIAL BASIS FOR PAYMENT OF THE ADDITIONAL AMOUNT REPRESENTED BY THE SUBMITTED VOUCHER.

B-150265, B-149986, DECEMBER 26, 1962, 42 COMP. GEN. 329

COMPENSATION - WAGE BOARD EMPLOYEES - OVERTIME - WORK IN EXCESS OF DAILY AND WEEKLY LIMITATION. COMPENSATION - WAGE BOARD EMPLOYEES - OVERTIME WORK IN EXCESS OF DAILY AND WEEKLY LIMITATION. COMPENSATION - WAGE BOARD EMPLOYEES - OVERTIME - WORK IN EXCESS OF DAILY AND WEEKLY LIMITATION THE METHOD OF COMPUTING OVERTIME HOURS FOR EMPLOYEES OF INDEPENDENT GOVERNMENT CONTRACTORS UNDER TITLE I OF THE CONTRACT WORK HOURS STANDARDS ACT WHEN WORK EXCEEDS BOTH THE 8 HOURS PER DAY AND THE 40 HOURS PER WEEK LIMITATIONS, WHICH METHOD GIVES THE EMPLOYEES THE BENEFIT OF THE GREATER NUMBER OF OVERTIME HOURS, SHOULD BE USED FOR GOVERNMENT EMPLOYEES SUBJECT TO SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962; HOWEVER, DOUBLE BENEFIT FOR THE SAME HOURS IS NOT AUTHORIZED. A WAGE BOARD EMPLOYEE WHO IS ASSIGNED TO A REGULARLY SCHEDULED WORKWEEK OF FIVE 8-HOUR DAYS AND WHO RECEIVES OVERTIME COMPENSATION FOR THREE AND ONE-HALF HOURS OF OVERTIME WORK IN EXCESS OF 8 HOURS ON ONE DAY, WHICH IS THE SAME NUMBER OF HOURS IN EXCESS OF 40 PER WEEK, HAS RECEIVED ALL THE OVERTIME COMPENSATION TO WHICH HE IS ENTITLED. ALTHOUGH SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962, 5 U.S.C. 673C, WHICH PROVIDES THAT OVERTIME WORK IN EXCESS OF 8 HOURS PER DAY OR IN EXCESS OF 40 HOURS PER WEEK SHALL BE COMPENSATED FOR AT NOT LESS THAN TIME AND ONE-HALF THE BASIC RATE OF COMPENSATION MUST BE CONSTRUED AS PROVIDING ALTERNATE OR SEPARATE METHODS FOR DETERMINING OVERTIME WORK IN EXCESS OF 8 HOURS OR IN EXCESS OF 40 HOURS A WEEK, THE METHOD OF COMPUTING OVERTIME HOURS TO ALLOW THE GREATER NUMBER OF OVERTIME HOURS SHOULD BE USED; THEREFORE, AN EMPLOYEE WHOSE REGULARLY SCHEDULED WORK WEEK IS COMPRISED OF THREE 12-HOUR DAYS AND ONE 10-HOUR DAY, OR 46 HOURS PER WEEK, WOULD BE ENTITLED TO OVERTIME COMPENSATION FOR THE 14 HOURS PER WEEK IN EXCESS OF 8 HOURS PER DAY BUT NOT TO OVERTIME FOR THE 6 HOURS IN EXCESS OF 40 HOURS PER WEEK. 42 COMP. GEN. 195, MODIFIED.

TO JOHN P. COOKSON, UNITED STATES DEPARTMENT OF AGRICULTURE, DECEMBER 26, 1962:

YOUR LETTER OF NOVEMBER 7, 1962, SUBMITS A VOUCHER IN THE AMOUNT OF $5.18, WITH RELATED PAPERS, REPRESENTING A PROPOSED PAYMENT OF ADDITIONAL OVERTIME COMPENSATION FOR SERVICE IN EXCESS OF 40 HOURS PER WEEK UNDER THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, 5 U.S.C. 673C, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962, PUBLIC LAW 87-581, 76 STAT. 360.

YOU SAY THAT THE EMPLOYEE INVOLVED, A TRUCK DRIVER, WB-8, $2.96 PER HOUR, IS ASSIGNED TO A REGULARLY SCHEDULED WORKWEEK OF FIVE 8-HOUR DAYS. DURING THE PERIOD OCTOBER 14 THROUGH 27, 1962, ON A THURSDAY OF THE SECOND WORKWEEK, THE EMPLOYEE WAS ORDERED TO PERFORM 3 1/2 HOURS OF WORK IN EXCESS OF HIS 8-HOUR TOUR. THE RECORD SHOWS THAT ON THE REGULAR PAYROLL HE RECEIVED PAYMENT FOR THE 3 1/2 HOURS OF OVERTIME IN EXCESS OF 8 HOURS FOR THAT DAY UNDER THE AMENDATORY PROVISION OF SECTION 201 OF PUBLIC LAW 87-581, AT TIME AND ONE-HALF HIS BASIC RATE OF COMPENSATION. IN VIEW OF OUR HOLDING IN 42 COMP. GEN. 195, B 149986, OCTOBER 9, 1962, ANSWER TO QUESTION 3, YOU INDICATE THERE IS A SUBSTANTIAL BASIS FOR PAYMENT OF THE ADDITIONAL AMOUNT REPRESENTED BY THE SUBMITTED VOUCHER; BUT YOU EXPRESS DOUBT AS TO THE PROPRIETY OF SUCH PAYMENT BECAUSE OUR DECISION CONCERNED AN EMPLOYEE WHOSE OVERTIME WAS "REGULARLY SCHEDULED" WHEREAS THE OVERTIME HERE INVOLVED WAS ,UNSCHEDULED.'

QUESTION 3 AND THE ANSWER THERETO READ AS FOLLOWS:

3. AN EMPLOYEE REGULARLY WORKS A 46-HOUR WEEK, CONSISTING OF THREE 12- HOUR DAYS AND ONE 10-HOUR DAY. EVIDENTLY 4 HOURS OF EACH OF THE 12 HOUR DAYS WILL BE PAID AT THE OVERTIME RATE. AFTER 4 HOURS OF THE 10 HOUR DAY HE WILL EXCEED 40 HOURS FOR THE WEEK. WILL HE BE PAID AT THE OVERTIME RATE FOR THE LAST 6 HOURS? WOULD THERE BE A DOUBLE PREMIUM FOR THE 2 HOURS WHICH WILL EXCEED BOTH THE 8 HOURS IN THE DAYAND THE 40 HOURS IN THE WEEK?

THE APPLICABLE PROVISO READS, IN PERTINENT PART, AS FOLLOWS: "THAT OVERTIME WORK IN EXCESS OF EIGHT HOURS PER DAY OR IN EXCESS OF FORTY HOURS PER WEEK SHALL BE COMPENSATED FOR AT NOT LESS THAN TIME AND ONE HALF THE BASIC RATE OF COMPENSATION.' WE BELIEVE THE CONGRESS INTENDED TO PROVIDE ALTERNATE OR SEPARATE METHODS FOR DETERMINING THE OVERTIME WORK COMPENSABLE AT TIME AND ONE-HALF THE BASIC RATE OF COMPENSATION THEREUNDER. UPON THAT PREMISE THE EMPLOYEE WHOSE REGULARLY SCHEDULED WORKWEEK IS COMPRISED OF 3 12-HOUR DAYS AND 1 10 HOUR DAY, A TOTAL OF 46 HOURS PER WEEK, WOULD BE ENTITLED TO COMPENSATION AT TIME AND ONE-HALF FOR THE 4 HOURS OVERTIME WORK IN EXCESS OF 8 HOURS PER DAY ON THE 12-HOUR DAYS. HE WOULD BE ENTITLED TO 6 HOURS OVERTIME WORK IN EXCESS OF 40 HOURS PER WEEK ON THE 10-HOUR DAY. WE FIND NO BASIS IN THE LANGUAGE OF THE STATUTE OR IN ITS LEGISLATIVE HISTORY FOR PAYMENT OF A DOUBLE PREMIUM FOR THE 2 HOURS ON THE 4TH WORKDAY--- A TEN HOUR DAY--- THAT EXCEEDS BOTH THE 8 HOURS PER DAY AND THE 40 HOURS PER WEEK.

IN OUR ANSWER TO QUESTION 3, WE DID NOT INTEND TO CREATE A DOUBLE BENEFIT FOR EMPLOYEES. AS WE POINTED OUT THEREIN WE BELIEVE THE CONGRESS INTENDED TO PROVIDE ALTERNATE OR SEPARATE METHODS FOR DETERMINING THE OVERTIME WORK TO BE COMPENSATED AT TIME AND ONE-HALF THE BASIC RATE OF COMPENSATION UNDER THE AMENDATORY LANGUAGE.

WE NOTE THAT S.REPT. NO. 1722, 87TH CONGRESS, 2D SESSION, ACCOMPANYING H.R. 10786, WHICH BECAME PUBLIC LAW 87-581, APPROVED AUGUST 13, 1962 (WORK HOURS ACT OF 1962), HAD THIS TO SAY CONCERNING SECTION 201 OF SUCH ACT--- WHICH IS THE PROVISO QUOTED IN OUR ANSWER TO QUESTION 3 OF B-149986, OCTOBER 9, 1962, SET OUT ABOVE: "THIS SECTION AMENDS SECTION 23 OF THE ACT OF MARCH 28, 1934, TO BRING THAT ACT INTO CONFORMITY WITH THE POLICY OF TITLE I OF THIS ACT.' SECTION 102 (A) OF TITLE I, PUBLIC LAW 87-581, 42 U.S.C. 328 (A), PROVIDES AS FOLLOWS:

SEC. 102. (A) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE WAGES OF EVERY LABORER AND MECHANIC EMPLOYED BY ANY CONTRACTOR OR SUBCONTRACTOR IN HIS PERFORMANCE OF WORK ON ANY CONTRACT OF THE CHARACTER SPECIFIED IN SECTION 103 SHALL BE COMPUTED ON THE BASIS OF A STANDARD WORKDAY OF EIGHT HOURS AND A STANDARD WORKWEEK OF FORTY HOURS, AND WORK IN EXCESS OF SUCH STANDARD WORKDAY OR WORKWEEK SHALL BE PERMITTED SUBJECT TO THE PROVISIONS OF THIS SECTION. FOR EACH WORKWEEK IN WHICH ANY SUCH LABORER OR MECHANIC IS SO EMPLOYED, SUCH WAGES SHALL INCLUDE COMPENSATION, AT A RATE NOT LESS THAN ONE AND ONE HALF TIMES THE BASIC RATE OF PAY, FOR ALL HOURS WORKED IN EXCESS OF EIGHT HOURS IN ANY CALENDAR DAY OR IN EXCESS OF FORTY HOURS IN THE WORKWEEK, AS THE CASE MAY BE.

WE HAVE ASCERTAINED FROM THE DEPARTMENT OF LABOR THAT UNDER SECTION 105 OF THE CONTRACT WORK HOURS STANDARDS ACT, 42 U.S.C. 331, WHICH AUTHORIZES THE SECRETARY OF LABOR TO MAKE CERTAIN RULES AND REGULATIONS UNDER SUCH ACT, A DIRECTIVE HAS BEEN ISSUED (SEE MEMORANDUM NO. 40, DATED SEPTEMBER 7, 1962) REQUIRING THE FOLLOWING STIPULATION TO BE INCLUDED IN ANY CONTRACT SUBJECT TO THE CONTRACT WORK HOURS STANDARDS ACT:

(A) OVERTIME REQUIREMENTS.

NO CONTRACTOR OR SUBCONTRACTOR CONTRACTING FOR ANY PART OF THE CONTRACT WORK SHALL REQUIRE OR PERMIT ANY LABORER OR MECHANIC TO BE EMPLOYED ON SUCH WORK IN EXCESS OF EIGHT HOURS IN ANY CALENDAR DAY OR IN EXCESS OF FORTY HOURS IN ANY WORKWEEK UNLESS SUCH LABORER OR MECHANIC RECEIVES COMPENSATION AT A RATE NOT LESS THAN ONE AND ONE HALF TIMES HIS BASIC RATE OF PAY FOR ALL HOURS WORKED IN EXCESS OF EIGHT HOURS IN ANY CALENDAR DAY OR IN EXCESS OF FORTY HOURS IN SUCH WORKWEEK, WHICHEVER IS THE GREATER NUMBER OF OVERTIME HOURS.

WE UNDERSTAND THAT THE COMPUTATION OF OVERTIME HOURS TO ALLOW THE GREATER NUMBER OF SUCH OVERTIME HOURS IN EXCESS OF EIGHT PER DAY OR FORTY PER WEEK IS IN ACCORD WITH THE PRACTICE AND INTERPRETATION UNDER THE WALSH-HEALEY ACT, 49 STAT. 2036, 41 U.S.C. 35. SEE RULINGS AND INTERPRETATIONS NO. 3, PARTICULARLY SECTION 42 (C) (2), ISSUED BY THE DEPARTMENT OF LABOR, CONCERNING WALSH-HEALEY ACT CONTRACTS; AND WALLING V. PATTON-TULLEY TRANSPORTATION COMPANY, 134 F.2D 945.

IN VIEW OF THE STATEMENT IN SENATE REPORT NO. 1722, PREVIOUSLY QUOTED, AND AS THE STIPULATION FOR PAYMENT OF OVERTIME COMPENSATION REQUIRED TO BE INCLUDED IN ANY CONTRACT SUBJECT TO THE CONTRACT WORK HOURS STANDARDS ACT APPEARS REASONABLE WE BELIEVE THE SAME METHOD OF COMPUTING OVERTIME HOURS SHOULD PREVAIL FOR EMPLOYEES SUBJECT TO SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED BY SECTION 201 OF THE WORK HOURS ACT OF 1962.

APPLYING THE "WHICHEVER IS GREATER" METHOD OF COMPUTING OVERTIME HOURS TO THE EXAMPLE HERE INVOLVED, WE FIND THAT THE OVERTIME HOURS IN EXCESS OF EIGHT PER DAY AMOUNT TO THREE AND ONE-HALF HOURS WHICH IS THE SAME AS THE HOURS IN EXCESS OF FORTY PER WEEK. THEREFORE THE EMPLOYEE IS ENTITLED TO OVERTIME COMPENSATION FOR ONLY THE THREE AND ONE-HALF HOURS. THE FACT THAT THE OVERTIME HOURS WERE "UNSCHEDULED" IS IMMATERIAL. SINCE THE EMPLOYEE HAS RECEIVED OVERTIME COMPENSATION TO THE EXTENT OF THREE AND ONE -HALF HOURS HE IS NOT ENTITLED TO ANY ADDITIONAL AMOUNT.

THE VOUCHER IS RETURNED HEREWITH AND MAY NOT BE CERTIFIED FOR PAYMENT.

THE ANSWER TO QUESTION 3 IN OUR DECISION OF OCTOBER 9, 1962, B 149986, IS MODIFIED ACCORDINGLY. SPECIFICALLY, THE EMPLOYEE WHOSE REGULARLY SCHEDULED WORKWEEK IS COMPRISED OF THREE 12-HOUR DAYS AND ONE 10-HOUR DAY, OR 46 HOURS PER WEEK, WOULD BE ENTITLED TO OVERTIME COMPENSATION FOR THE 14 HOURS WORKED PER WEEK IN EXCESS OF 8 HOURS PER DAY. NO OVERTIME WOULD BE PAYABLE IN SUCH CASE FOR THE 6 HOURS WORKED IN EXCESS OF 40 HOURS PER WEEK.