B-178557, JUN 5, 1973

B-178557: Jun 5, 1973

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WE HAVE REVIEWED YOUR CLAIM FOR COMPENSATION ON AN HOURLY RATHER THAN A PIECE-RATE BASIS AS A CENSUS ENUMERATOR WITH THE DEPARTMENT OF COMMERCE. YOUR CLAIM WAS DISALLOWED BY OUR OFFICE SETTLEMENT DATED APRIL 13. THE BOOKLET THAT WAS GIVEN TO ALL CENSUS ENUMERATORS UPON THEIR EMPLOYMENT ENTITLED "LET'S TALK CENSUS" STATES THAT EXCEPT IN A FEW "UNUSUAL CIRCUMSTANCES" THE ENUMERATORS WOULD BE PAID ON A PIECE-RATE BASIS. THAT ALTHOUGH THE RATES WERE SO DESIGNED THAT THE AVERAGE PIECE -RATE EARNINGS WOULD BE $2 PER HOUR. NO GUARANTEE WAS MADE AS TO WHAT AN INDIVIDUAL ENUMERATOR'S EARNINGS WOULD BE. IT WAS WITHIN THE DISCRETION OF THE DISTRICT MANAGER WHO WAS FAMILIAR WITH THE PARTICULARS OF HIS OR HER DISTRICT TO DETERMINE ON THE BASIS OF SUCH VARIABLES AS TERRAIN.

B-178557, JUN 5, 1973

AFFIRMANCE UPON REVIEW OF DISALLOWANCE OF CLAIM FOR COMPENSATION ON AN HOURLY RATHER THAN A PIECE-RATE BASIS AS A CENSUS ENUMERATOR.

TO MR. EDWARD J. MURASKE:

PURSUANT TO YOUR LETTER OF APRIL 16, 1973, WE HAVE REVIEWED YOUR CLAIM FOR COMPENSATION ON AN HOURLY RATHER THAN A PIECE-RATE BASIS AS A CENSUS ENUMERATOR WITH THE DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, AT NORWICH, CONNECTICUT. YOUR CLAIM WAS DISALLOWED BY OUR OFFICE SETTLEMENT DATED APRIL 13, 1973.

THE BOOKLET THAT WAS GIVEN TO ALL CENSUS ENUMERATORS UPON THEIR EMPLOYMENT ENTITLED "LET'S TALK CENSUS" STATES THAT EXCEPT IN A FEW "UNUSUAL CIRCUMSTANCES" THE ENUMERATORS WOULD BE PAID ON A PIECE-RATE BASIS, AND THAT ALTHOUGH THE RATES WERE SO DESIGNED THAT THE AVERAGE PIECE -RATE EARNINGS WOULD BE $2 PER HOUR, NO GUARANTEE WAS MADE AS TO WHAT AN INDIVIDUAL ENUMERATOR'S EARNINGS WOULD BE. THAT DEPENDED UPON A NUMBER OF VARIABLES. IT WAS WITHIN THE DISCRETION OF THE DISTRICT MANAGER WHO WAS FAMILIAR WITH THE PARTICULARS OF HIS OR HER DISTRICT TO DETERMINE ON THE BASIS OF SUCH VARIABLES AS TERRAIN, DISTRIBUTION OF HOMES, ETC., WHETHER THE PIECE-RATE OR HOURLY BASIS OF COMPENSATION OUGHT TO BE APPLIED IN THE CASE OF EACH INDIVIDUAL ENUMERATOR. AS POINTED OUT IN THE CLAIM SETTLEMENT LETTER, THE FIXING OF COMPENSATION ON A PIECE-RATE BASIS IS AUTHORIZED BY STATUTE, 68 STAT. 1015. SINCE IT WAS DETERMINED THAT YOUR COMPENSATION SHOULD BE FIXED ON A PIECE RATE BASIS RATHER THAN AN HOURLY BASIS WE HAVE NO AUTHORITY TO QUESTION SUCH A DETERMINATION IN THE ABSENCE OF EVIDENCE TO SHOW THAT IT WAS ARBITRARY AND CAPRICIOUS.

FURTHER, YOUR CLAIM OF UNDERPAYMENT WAS INITIALLY INVESTIGATED BY THE BOSTON DATA COLLECTION CENTER. UPON INQUIRY, WE HAVE ASCERTAINED THAT THEIR INVESTIGATION DELVED INTO ALL FACTS OF YOUR CLAIM AND THERE WAS NO EVIDENCE TO JUSTIFY PAYMENT OF ADDITIONAL COMPENSATION. AS YOU HAVE FURNISHED NO NEW EVIDENCE IN SUPPORT OF YOUR CLAIM, WE HAVE NO AUTHORITY TO PAY YOU ANY ADDITIONAL COMPENSATION.

NOR HAVE YOU SUBMITTED ANY EVIDENCE TO SUPPORT A FINDING OF ARBITRARINESS OR CAPRICIOUSNESS IN THE INSTANCE OF YOUR DISTRICT MANAGER'S DETERMINATION THAT YOUR PARTICULAR ADDRESS REGISTER DID NOT CONSTITUTE SUCH "UNUSUAL CIRCUMSTANCES" AS TO MAKE YOU ENTITLED TO THE HOURLY-RATE BASIS. ACCORDINGLY, THE ACTION TAKEN IN DISALLOWING YOUR CLAIM FOR ADDITIONAL COMPENSATION WAS PROPER.

IT IS UNFORTUNATE IF A MISUNDERSTANDING OCCURRED REGARDING THE BASIS OF YOUR COMPENSATION. FROM YOUR LETTER OF JANUARY 9, 1973, IT APPEARS THAT YOU UNDERSTOOD THE AFOREMENTIONED BOOKLET TO IMPLY THAT THE GOVERNMENT WOULD AUTOMATICALLY ADJUST THE REMUNERATION OF A PIECE-RATE ENUMERATOR TO INSURE PAYMENT AT A MINIMUM RATE OF $2 FOR EACH HOUR ACTUALLY WORKED. BELIEVE THE BOOKLET MADE IT SUFFICIENTLY CLEAR, HOWEVER, THAT THIS WAS NOT TO BE THE CASE. ON PAGE 10 OF THE BOOKLET IT STATES IN PART:

*** NO GUARANTEE CAN BE MADE TO WHAT PIECE RATE EARNINGS WILL BE, ALTHOUGH THESE RATES ARE DESIGNED TO AVERAGE $2.00 PER HOUR.

SOME ENUMERATORS WILL EARN WELL ABOVE THE AVERAGE. OTHERS WHO WORK LESS EFFECTIVELY WILL EARN LESS. WEEKLY EARNINGS FOR THE FULL FORTY HOUR WEEK, MIGHT RANGE FROM AS LITTLE AS $60 TO MORE THAN $100. EARNINGS GENERALLY WILL BE LOWEST IN THE FIRST FEW DAYS, BUT SHOULD INCREASE AS THEY MASTER THE JOB OF INTERVIEWING.

IN VIEW OF THE FOREGOING, YOUR CLAIM FOR COMPENSATION ON AN HOURLY BASIS IS DENIED.