B-156341, MAY 5, 1965, 44 COMP. GEN. 690

B-156341: May 5, 1965

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WORKS AN AGGREGATE OF MORE THAN 40 HOURS PLUS OVERTIME IN ONE POSITION DURING A WEEK IS NOT LIMITED BY SECTION 301 (A) OF THE DUAL COMPENSATION ACT. REGARDLESS OF THE SEQUENCE IN WHICH THE DIFFERENT RATES ARE EARNED AND REGARDLESS OF OVERTIME COMPENSATION. SINCE THE RESTRICTION IS ON RECEIPT OF BASIC COMPENSATION AND NOT UPON OVERTIME COMPENSATION. THE EMPLOYEE DOES NOT HAVE TO RECEIVE COMPENSATION FOR ALL THE BASIC 40 HOURS IN THE ONE POSITION TO QUALIFY FOR OVERTIME IN THAT POSITION WHEN IN FACT HE WORKED MORE THAN 40 HOURS IN SUCH POSITION. WEST WAS EMPLOYED IN AN INTERMITTENT POSITION. WEST WAS PAID FOR THIS WORK WE ERRONEOUSLY PAID HIM FOR ALL HOURS WORKED UNDER BOTH APPOINTMENTS. WE HAVE RECOMPUTED MR.

B-156341, MAY 5, 1965, 44 COMP. GEN. 690

COMPENSATION - DOUBLE - ADDITIONAL EMPLOYMENT - FORTY-HOUR WEEK LIMITATION AN EMPLOYEE WHO, INCIDENT TO HOLDING TWO INTERMITTENT POSITIONS WITH COMPENSATION AT DIFFERENT HOURLY RATES, WORKS AN AGGREGATE OF MORE THAN 40 HOURS PLUS OVERTIME IN ONE POSITION DURING A WEEK IS NOT LIMITED BY SECTION 301 (A) OF THE DUAL COMPENSATION ACT, 5 U.S.C. 3105, WHICH RESTRICTS TO 40 THE NUMBER OF HOURS OF BASIC COMPENSATION AN EMPLOYEE MAY BE PAID IN ONE WEEK WHEN HE HAS MORE THAN ONE POSITION, TO THE COMPENSATION FOR THE FIRST 40 HOURS OF WORK, BUT THE EMPLOYEE SHOULD BE PAID THE MAXIMUM BASIC COMPENSATION BENEFITS, REGARDLESS OF THE SEQUENCE IN WHICH THE DIFFERENT RATES ARE EARNED AND REGARDLESS OF OVERTIME COMPENSATION, AND SINCE THE RESTRICTION IS ON RECEIPT OF BASIC COMPENSATION AND NOT UPON OVERTIME COMPENSATION, THE EMPLOYEE DOES NOT HAVE TO RECEIVE COMPENSATION FOR ALL THE BASIC 40 HOURS IN THE ONE POSITION TO QUALIFY FOR OVERTIME IN THAT POSITION WHEN IN FACT HE WORKED MORE THAN 40 HOURS IN SUCH POSITION.

TO MR. A. L. CHRET, DEPARTMENT OF AGRICULTURE, MAY 5, 1965:

WE REFER TO YOUR LETTER OF MARCH 15, 1965, BY WHICH YOU REQUEST OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE ENCLOSED PAYROLL VOUCHER FOR PAYMENT OF COMPENSATION TO MR. LESLIE L. WEST, AN INTERMITTENT EMPLOYEE OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, FOR WORK HE PERFORMED DURING THE WEEK DECEMBER 20 TO 26, 1964, LESS A DEDUCTION RESULTING FROM THE OVERPAYMENT OF COMPENSATION TO HIM FOR THE PREVIOUS WEEK--- DECEMBER 13 TO 19, 1964.

ON AND FOR SOME TIME PRIOR TO DECEMBER 13, 1964, MR. WEST WAS EMPLOYED IN AN INTERMITTENT POSITION, GS-3, AT $1.93 PER HOUR BY THE STATISTICAL REPORTING SERVICE, DEPARTMENT OF AGRICULTURE. ON THAT DAY HE RECEIVED AN ADDITIONAL APPOINTMENT IN THE AGRICULTURAL MARKETING SERVICE OF THE DEPARTMENT ON AN INTERMITTENT BASIS AS LABORER, WB-2, STEP 1, AT $1.81 PER HOUR.

YOUR LETTER, IN PART, READS AS FOLLOWS:

"DURING THE WEEK DECEMBER 13, 1964 TO DECEMBER 19, 1964, MR. WEST WORKED AS FOLLOWS:

CHART

HOURS WORKED

1ST APPOINTMENT 2ND APPOINTMENT GS-3

WB-2 BASE RATE 1ST

SHIFT 2ND SHIFT $1.93 P.H. $1.81 P.H.

$1.89 P.H. 12/13 ---

--- 812/14 2 1/2 --- 7 12/15 4 --- 7 12/16 5 1/4 --- 7 12/17 --- --- 7 12/18 --- ---

7 12/19 --- 5 --- TOTAL 11 3/4

5 43

"WHEN MR. WEST WAS PAID FOR THIS WORK WE ERRONEOUSLY PAID HIM FOR ALL HOURS WORKED UNDER BOTH APPOINTMENTS. WE HAVE RECOMPUTED MR. WEST'S PAY FOR THIS PERIOD TO COMPLY WITH THE DUAL COMPENSATION ACT. AS A RESULT WE HAVE DETERMINED THAT HE CAN ONLY BE PAID FOR THE TIME WORKED ON HIS 2ND APPOINTMENT. THAT IS: 40 HOURS 2ND SHIFT AT $1.89 PER HOUR; 3 HOURS OVERTIME AT 2ND SHIFT RATE OF $2.84 PER HOUR AND 5 HOURS OVERTIME AT 1ST SHIFT RATE OF $2.72 PER HOUR. A TOTAL OF $97.72. THE OVERPAYMENT OF 11 3/4 HOURS AT $1.93 PER HOUR HAS BEEN DEDUCTED FROM THE ATTACHED SCHEDULE.

"DURING THE WEEK DECEMBER 20, 1964 TO DECEMBER 26, 1964, MR. WEST WORKED AS FOLLOWS:

CHART

HOURS WORKED

1ST APPOINTMENT 2ND APPOINTMENT GS-3

WB-2 BASE RATE 1ST

SHIFT 2ND SHIFT $1.93 P.H. $1.81 P.H.

$1.89 P.H. 12/20 8 1/4

--- --- 12/21 8 --- 7 12/22 8

--- 7 12/23 1 --- 7 12/24 3 1/2 5 --- 12/253 1/2 --- --- 12/26 --- --- 7 TOTAL 32 1/4 5

28

THE ATTACHED PAYROLL IS COMPUTED AS FOLLOWS:12/20 8 1/4 HRS. AT $1.93 - $15.92 12/21 8 HRS. AT 1.93 - 15.44 12/21 7 HRS.

1.89 - 13.23 12/228 HRS. AT 1.93 - 15.44 12/22 7 HRS. AT 1.89 - 13.23 12/23 1 HR. AT 1.93 - 1.93 12/23 3/4 HR. AT 1.89 - 1.42 TOTAL 40 HRS. --- $76.61"

YOU ASK WHETHER YOU ARE CORRECT IN DEDUCTING ONLY THE COMPENSATION MR. WEST RECEIVED AS A RESULT OF HIS WORK FOR THE STATISTICAL REPORTING SERVICE DURING THE WEEK DECEMBER 13 TO 19, ALLOWING HIM TO RETAIN ALL THE BASIC AND OVERTIME COMPENSATION PAID HIM FOR WORK PERFORMED FOR THE AGRICULTURAL MARKETING SERVICE. YOU ALSO ASK WHETHER YOU ARE CORRECT IN ASSUMING THAT HE SHOULD BE PAID FOR THE FIRST 40 HOURS WORKED DURING THE WEEK DECEMBER 20 TO 26 OR WHETHER YOU MAY PAY HIM THE LARGEST PAYMENT POSSIBLE FOR ANY 40 HOURS WORKED DURING THAT WEEK.

SECTION 301 (A) OF THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, PUB.L. 88-448, 78 STAT. 488, 5 U.S.C. 3105, PROVIDES:

"EXCEPT AS PROVIDED BY SUBSECTIONS (B), (C), (D), AND (E) OF THIS SECTION, CIVILIAN PERSONNEL SHALL NOT BE ENTITLED TO RECEIVE BASIC COMPENSATION FROM MORE THAN ONE CIVILIAN OFFICE FOR MORE THAN AN AGGREGATE OF FORTY HOURS OF WORK IN ANY ONE CALENDAR WEEK (SUNDAY THROUGH SATURDAY).'

THAT SECTION PLACES A RESTRICTION UPON THE NUMBER OF HOURS OF BASIC COMPENSATION A CIVILIAN EMPLOYEE MAY BE PAID FOR WORK IN ANY CALENDAR WEEK IF HE IS EMPLOYED IN MORE THAN ONE CIVILIAN OFFICE. IT DOES NOT LIMIT PAYMENT TO THE FIRST 40 HOURS WORKED. THEREFORE, THE EMPLOYEE SHOULD BE ALLOWED THE MAXIMUM BASIC COMPENSATION BENEFITS REGARDLESS OF THE SEQUENCE IN WHICH THE DIFFERENT RATES OF COMPENSATION ARE EARNED.

THE ACT CONTAINS NO SPECIFIC RESTRICTION CONCERNING THE PAYMENT OF OVERTIME COMPENSATION. HOUSE REPORT NO. 890, 88TH CONG., 1ST SESS., CONTAINS THE FOLLOWING EXPLANATION OF SECTION 301 (A) AT PAGE 12:

"THE PROHIBITION IS ON THE RECEIPT OF BASIC COMPENSATION AND WILL NOT AFFECT THE RECEIPT OF OTHERWISE PROPERLY EARNED OVERTIME COMPENSATION FOR WORK IN ONE POSITION IN EXCESS OF THE HOURS REQUIRED FOR OVERTIME COMPENSATION.'

SINCE THE PROVISION IN QUESTION PLACES A RESTRICTION UPON THE RECEIPT OF BASIC COMPENSATION AND NOT UPON THE RECEIPT OF OVERTIME COMPENSATION MR. WEST WAS PROPERLY PAID THE OVERTIME COMPENSATION HE EARNED FOR WORK IN EXCESS OF 40 HOURS IN HIS POSITION WITH THE AGRICULTURAL MARKETING SERVICE. REGARDING THE AMOUNT OF BASIC COMPENSATION TO BE PAID HIM FOR THE WEEK OF DECEMBER 13 TO 19 WE BELIEVE THAT MR. WEST SHOULD BE ALLOWED THE MAXIMUM AMOUNT POSSIBLE REGARDLESS OF THE SEQUENCE IN WHICH THE DIFFERENCE RATES OF COMPENSATION WERE EARNED AND REGARDLESS OF THE OVERTIME COMPENSATION EARNED IN ONE POSITION. WE DO NOT BELIEVE THAT PAYMENT OF COMPENSATION FOR ALL OF THE BASIC 40 HOURS MR. WEST WORKED IN THE AGRICULTURAL MARKETING SERVICE POSITION IS NECESSARY TO QUALIFY HIM FOR OVERTIME COMPENSATION SINCE HE DID IN FACT QUALIFY FOR SUCH COMPENSATION BY WORKING IN EXCESS OF 40 HOURS DURING THE WEEK IN QUESTION IN THAT POSITION.

IN ORDER TO GIVE MR. WEST THE GREATEST BENEFIT IN BASIC COMPENSATION IT APPEARS THAT HE SHOULD BE ALLOWED 11 3/4 HOURS AT THE $1.93 RATE AND 28 1/4 HOURS AT THE $1.89 RATE FOR THE WEEK OF DECEMBER 13 TO 19. ADDITION, HE PROPERLY WAS PAID OVERTIME COMPENSATION FOR THE 8 HOURS OF WORK IN EXCESS OF 40 PERFORMED IN THE SECOND POSITION. FOR THE WEEK OF DECEMBER 20 TO 26, MR. WEST SHOULD BE ALLOWED BASIC COMPENSATION FOR 32 1/4 HOURS AT THE $1.93 RATE AND 7 3/4 HOURS AT THE $1.89 RATE.

THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT IN ACCORDANCE WITH THE ABOVE.