B-178678, NOV 12, 1974, 54 COMP GEN 371

B-178678: Nov 12, 1974

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TO PAY ACCORDING TO COMPUTATION MOST BENEFICIAL TO THE EMPLOYEE ARE NOT ILLEGAL. ARE IN ACCORD WITH STATUTORY CONSTRUCTION PRINCIPLE TO HARMONIZE STATUTES DEALING WITH THE SAME SUBJECT WHENEVER POSSIBLE. IS CONSISTENT WITH CONGRESSIONAL INTENT. WILL BE REFERRED TO HEREINAFTER AS "FLSA.". ARE COVERED BY TWO LAWS. WHERE THE FLSA AND OTHER STATUTES ARE NOT CONSISTENT. NONEXEMPT EMPLOYEES WILL RECEIVE THE GREATER BENEFIT. CONTENDS THAT THE FLSA AND THE TITLE 5 PROVISIONS ARE INCONSISTENT. THAT THE CSC INSTRUCTIONS ALLOWING EMPLOYEES THE GREATER OF COMPENSATION UNDER THE FLSA OR TITLE 5 ARE NOT LAWFUL. THAT THE PROVISIONS OF TITLE 5 ARE CONTROLLING IN THE MATTER OF OVERTIME COMPENSATION. THREE ARGUMENTS AGAINST THE LEGALITY OF THE CSC INSTRUCTIONS ARE PRESENTED.

B-178678, NOV 12, 1974, 54 COMP GEN 371

CANAL ZONE GOVERNMENT - EMPLOYEES - OVERTIME - FAIR LABOR STANDARDS ACT V. OTHER PAY LAWS CIVIL SERVICE COMMISSION'S INTERIM INSTRUCTIONS, REQUIRING AGENCIES TO COMPUTE OVERTIME BENEFITS UNDER BOTH THE FAIR LABOR STANDARDS AMENDMENTS OF 1974 AND UNDER VARIOUS PROVISIONS OF TITLE 5 OF THE U.S. CODE, AND TO PAY ACCORDING TO COMPUTATION MOST BENEFICIAL TO THE EMPLOYEE ARE NOT ILLEGAL, AS CANAL ZONE ACTING GOVERNOR CONTENDS, BUT ARE IN ACCORD WITH STATUTORY CONSTRUCTION PRINCIPLE TO HARMONIZE STATUTES DEALING WITH THE SAME SUBJECT WHENEVER POSSIBLE, AND IS CONSISTENT WITH CONGRESSIONAL INTENT.

IN THE MATTER OF OVERTIME COMPENSATION FOR CANAL ZONE GOVERNMENT EMPLOYEES, NOVEMBER 12, 1974:

THE ACTING GOVERNOR OF THE CANAL ZONE GOVERNMENT HAS REQUESTED A DECISION AS TO THE LEGALITY OF THE CIVIL SERVICE COMMISSION'S (CSC) INTERPRETATION OF THE OVERTIME PROVISIONS OF THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, 29 U.S.C. 201-219 (1970 ED.), AS AMENDED BY THE FAIR LABOR STANDARDS AMENDMENTS OF 1974, PUBLIC LAW 93-259, APPROVED APRIL 8, 1974, 88 STAT. 55 (29 U.S.C. 203 NOTE). THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, WILL BE REFERRED TO HEREINAFTER AS "FLSA."

EFFECTIVE MAY 1, 1974, THE PROVISIONS OF THE FLSA BECAME APPLICABLE TO EMPLOYEES OF THE FEDERAL GOVERNMENT, INCLUDING EMPLOYEES OF THE CANAL ZONE GOVERNMENT. THE QUESTION FOR CONSIDERATION HERE RELATES TO THE OVERTIME PROVISIONS OF THE FLSA AND THE CORRESPONDING PROVISIONS OF 5 U.S.C. 5542, 5543, AND 5547 (1970), WHICH IN A NUMBER OF RESPECTS OFFER DIFFERENT BENEFITS. THE CSC HAS ISSUED "INTERIM INSTRUCTIONS FOR IMPLEMENTING THE FAIR LABOR STANDARDS ACT," FEDERAL PERSONNEL MANUAL LETTER NO. 551-1, MAY 15, 1974. SECTION A OF ATTACHMENT 5 TO THE CITED LETTER STATES THE FOLLOWING:

THE FLSA DOES NOT CHANGE ANYTHING ON OVERTIME ENTITLEMENTS WITH RESPECT TO "EXEMPT" EMPLOYEES, HOWEVER, "NONEXEMPT" EMPLOYEES, FOR OVERTIME PURPOSES, BEGINNING MAY 1, 1974, ARE COVERED BY TWO LAWS. WHERE THE FLSA AND OTHER STATUTES ARE NOT CONSISTENT, NONEXEMPT EMPLOYEES WILL RECEIVE THE GREATER BENEFIT.

THE ACTING GOVERNOR, CANAL ZONE, CONTENDS THAT THE FLSA AND THE TITLE 5 PROVISIONS ARE INCONSISTENT, THAT THE CSC INSTRUCTIONS ALLOWING EMPLOYEES THE GREATER OF COMPENSATION UNDER THE FLSA OR TITLE 5 ARE NOT LAWFUL, AND THAT THE PROVISIONS OF TITLE 5 ARE CONTROLLING IN THE MATTER OF OVERTIME COMPENSATION. THREE ARGUMENTS AGAINST THE LEGALITY OF THE CSC INSTRUCTIONS ARE PRESENTED.

FIRST, IT IS SUGGESTED THAT THE FLSA AND THE TITLE 5 PROVISIONS SHOULD NOT BE READ IN PARI MATERIA BECAUSE THE DOCTRINE OF PARI MATERIA DOES NOT APPLY WHERE THE STATUTES ARE CLEAR AND UNAMBIGUOUS.

THE SECOND ARGUMENT IS THAT A SPECIFIC STATUTE WILL PREVAIL OVER A GENERAL STATUTE ON THE SAME SUBJECT MATTER. THE ACTING GOVERNOR CONSIDERS THE PROVISIONS OF TITLE 5 TO BE CONTROLLING SINCE THEY ARE MORE EXPLICIT IN THE TREATMENT OF OVERTIME COMPENSATION AND BECAUSE THEY ARE NARROWER IN SCOPE THAN THE FLSA WHICH COVERS BOTH GOVERNMENTAL AND PRIVATE INDUSTRY EMPLOYEES.

THE THIRD ARGUMENT IS THAT THE LEGISLATIVE HISTORY OF THE FLSA SHOULD NOT BE CONSULTED ON THE ISSUE OF APPLICABILITY BECAUSE "THE CLEAR INCONSISTENCY BETWEEN THE TWO LAWS" PRECLUDES RESORT TO THE LEGISLATIVE HISTORY.

WITH RESPECT TO THE FIRST ARGUMENT, WE AGREE THAT THE TWO STATUTES PROVIDING FOR PAYMENT OF OVERTIME TO FEDERAL EMPLOYEES ARE CLEAR AND UNAMBIGUOUS, AND SEE NO NEED TO RESORT TO THE DOCTRINE OF PARI MATERIA TO CONSTRUE THEM CONSISTENTLY. THERE IS AN EQUALLY PERSUASIVE RULE OF STATUTORY CONSTRUCTION THAT TWO STATUTES SHOULD BE INTERPRETED TO HARMONIZE WHENEVER POSSIBLE. IN THIS CONNECTION AN AUTHORITY ON STATUTORY CONSTRUCTION STATES THE FOLLOWING:

IN TERMS OF LEGISLATIVE INTENT, IT IS ASSUMED THAT WHENEVER THE LEGISLATURE ENACTS A PROVISION IT HAS IN MIND PREVIOUS STATUTES RELATING TO THE SAME SUBJECT MATTER, WHEREFORE IT IS HELD THAT IN THE ABSENCE OF ANY EXPRESS REPEAL OR AMENDMENT THEREIN, THE NEW PROVISION WAS ENACTED IN ACCORD WITH THE LEGISLATIVE POLICY EMBODIED IN THOSE PRIOR STATUTES, AND THEY ALL SHOULD BE CONSTRUED TOGETHER.

PRIOR STATUTES RELATING TO THE SAME SUBJECT MATTER ARE TO BE SO CONSTRUED THAT EFFECT IS GIVEN TO EVERY PROVISION IN ALL OF THEM.

SEE 2A J.G. SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION, SECTION 51.02 (4TH ED. C.D. SAND 1972) (FOOTNOTES OMITTED.) (HEREINAFTER CITED AS SUTHERLAND.)

SEE ALSO WALLING V. PATTON-TULLEY TRANSPORTATION CO., 134 F.2D 945 (6TH CIR. 1943), WHERE TWO STATUTES REGARDING OVERTIME COMPENSATION WERE CONSTRUED TO GIVE EFFECT TO BOTH STATUTES.

THE FLSA WAS FIRST ENACTED INTO LAW ON JUNE 25, 1938, AND HAS BEEN AMENDED SEVERAL TIMES TO RAISE THE MINIMUM WAGE PROVISIONS OF THE ORIGINAL ACT AS WELL AS TO EXPAND THE COVERAGE OF THE ACT TO ENCOMPASS ADDITIONAL GROUPS OF EMPLOYEES. IT IS CLEAR, HOWEVER, THROUGHOUT ITS 36 YEAR HISTORY, THAT THE BENEFITS PROVIDED WERE ALWAYS REGARDED AS MINIMUMS, NOT MAXIMUMS; A FLOOR AND NOT A CEILING. THE CENTRAL AIM OF THE ACT WAS TO ACHIEVE, IN THOSE INDUSTRIES WITHIN ITS SCOPE, CERTAIN MINIMUM LABOR STANDARDS. MITCHELL V. ROBERT DE MARIO JEWELRY, INC., 361 U.S. 288 (1960). THE BASIC PURPOSES OF THE ACT ARE TWOFOLD: 1) TO STOP EMPLOYMENT AT SUBSTANDARD RATES OF PAY BY ESTABLISHING A FLOOR UNDER WAGES; AND 2) TO INCREASE EMPLOYMENT BY INCREASING THE COST OF OVERTIME, I.E., TIME WORKED IN EXCESS OF 40 HOURS A WEEK. CULKEN V. GLENN L. MARTIN NEB. CO., 97 F. SUPP. 661, 671 (D. NEB. 1951), AFF'D., 197 F.2D 981 (8TH CIR. 1952), CERT. DENIED. 344 U.S. 866 (1952), REHEARING DENIED, 344 U.S. 888 (1952). SEE ALSO "HISTORY OF THE ACT," H. REPORT 93-913, MARCH 15, 1974, PP. 4-9; "BACKGROUND," S. REPORT 93 690, FEBRUARY 22, 1974, PP. 3-7. WE KNOW OF NO LEGISLATIVE PROSCRIPTION TO PREVENT AN EMPLOYER - WHETHER PUBLIC OR PRIVATE - FROM OFFERING AN EMPLOYEE MORE THAN THE MINIMUM BENEFITS PROVIDED. AS THE ACTING GOVERNOR CONCEDES, THE FEDERAL GOVERNMENT IN MOST INSTANCES ALREADY PAYS A HIGHER WAGE THAN THE MINIMUM REQUIRED. APPARENTLY HAS NO DIFFICULTY IN VIEWING THE PURPOSE OF THE FLSA AS THE PROVISION OF A FLOOR IN THIS INSTANCE. HIS OBJECTION IS TO THE APPLICATION OF THIS INTERPRETATION IN INSTANCES - PRIMARILY WITH REFERENCE TO OVERTIME COMPENSATION - WHERE THE FEDERAL GOVERNMENT DOES NOT, UNDER OTHER PAY LAWS, PROVIDE AT LEAST AS GREAT A BENEFIT AS THE FLSA REQUIRES. WE BELIEVE THIS DISTINCTION IS NOT TENABLE. BY EXTENDING THE APPLICATION OF THE FLSA TO FEDERAL EMPLOYEES, THE CONGRESS OBVIOUSLY WISHED THEM TO ENJOY THE SAME PROTECTIONS AND BENEFITS AS ARE PROVIDED FOR EMPLOYEES IN OTHER SECTORS. THE FACT THAT OTHER PAY LAWS EXIST WHICH PROVIDE LESSER BENEFITS SHOULD NOT BE ALLOWED TO DISTURB THAT ENTITLEMENT. WE THEREFORE ENDORSE THE CSC'S HARMONIZING INTERPRETATION IN FPM LTR. NO. 551-1 (PAGE 2), WHICH SAYS:

WHILE THE FLSA DOES NOT MODIFY ANY EXISTING PAY LAWS, IT DOES ESTABLISH A MINIMUM STANDARD TO WHICH NONEXEMPT EMPLOYEES ARE ENTITLED. TO THE EXTENT THAT THE FLSA WOULD PROVIDE A GREATER PAY BENEFIT TO A NONEXEMPT EMPLOYEE (E.G., A HIGHER OVERTIME RATE) THAN THE BENEFIT PAYABLE UNDER OTHER EXISTING PAY RULES, THE EMPLOYEE IS ENTITLED TO THE FLSA BENEFIT. OTHER EXISTING PAY RULES PROVIDE A GREATER BENEFIT, OF COURSE, THE EMPLOYEE CONTINUES TO RECEIVE THAT BENEFIT. EXEMPT EMPLOYEES CONTINUE TO BE PAID FOR OVERTIME WORK IN EXACTLY THE SAME WAY AS IN THE PAST, I.E., BY APPLICATION OF BOOK 550, FPM SUPPLEMENT 990-2.

THE SECOND ARGUMENT OF THE CANAL ZONE GOVERNOR IS THAT THE PROVISIONS OF TITLE 5 ARE MORE SPECIFIC THAN THOSE OF THE FLSA. WE DO NOT AGREE. BOTH SETS OF STATUTORY PROVISIONS PROVIDE READILY CALCULABLE COMPENSATION FOR OVERTIME. ALSO, THE PROVISIONS OF TITLE 5 CANNOT BE TERMED MORE SPECIFIC SIMPLY BECAUSE THEY INCLUDE A NARROWER CLASS OF EMPLOYEES. THE CONGRESS AMENDED THE FLSA TO INCLUDE FEDERAL EMPLOYEES, AND THIS AMENDMENT WAS EQUALLY AS SPECIFIC AS THE PROVISIONS OF TITLE 5. HAD THE FLSA COVERED SIMPLY "EMPLOYEES ENGAGED IN INTERSTATE COMMERCE," FOR EXAMPLE, WITHOUT FURTHER ELABORATION, THEN IT COULD BE ARGUED THAT FEDERAL EMPLOYEES, ALREADY COVERED BY OTHER LAW, WERE NOT INCLUDED UNDER THE FLSA. BUT WHERE THE CONGRESS EXPRESSLY INCLUDED FEDERAL EMPLOYEES UNDER THE FLSA, THOSE EMPLOYEES MAY NOT BE EXCLUDED FROM THE PROVISIONS OF THAT ACT ON THE GROUND THAT OTHER CLASSES OF EMPLOYEES ARE ALSO INCLUDED.

WE DO NOT BELIEVE THAT THE FINAL ARGUMENT - THAT THE LEGISLATIVE HISTORY OF THE ACT SHOULD NOT BE CONSULTED IN DETERMINING CONGRESSIONAL INTENT - CAN BE MAINTAINED. FOR THE INTERPRETATION OF STATUTES, "INTENT OF THE LEGISLATURE" IS THE CRITERION, OR TEST, THAT IS MOST OFTEN RECITED. ALMOST OVERWHELMING MAJORITY OF JUDICIAL OPINIONS ON STATUTORY ISSUES ARE WRITTEN IN THE IDIOM OF LEGISLATIVE INTENT. 2A SUTHERLAND SEC. 45.05. NOTE THAT IN SUPPORT OF HIS POSITION, THE ACTING GOVERNOR, HIMSELF, QUOTED THE FOLLOWING PORTION OF THE LEGISLATIVE HISTORY:

IT IS THE INTENT OF THE COMMITTEE THAT THE COMMISSION WILL ADMINISTER THE PROVISIONS OF THE LAW IN SUCH A MANNER AS TO ASSURE CONSISTENCY WITH THE MEANING, SCOPE, AND APPLICATION ESTABLISHED BY THE RULINGS, REGULATIONS, INTERPRETATIONS, AND OPINIONS OF THE SECRETARY OF LABOR WHICH ARE APPLICABLE IN OTHER SECTORS OF THE ECONOMY. THE PROVISIONS OF THE BILL WOULD LEAVE THE PREMIUM PAY PROVISIONS OF TITLE 5, U.S.C. IN EFFECT TO THE EXTENT THAT THEY ARE NOT INCONSISTENT WITH THE FAIR LABOR STANDARDS ACT.

SEE S. REPORT NO. 690, FEBRUARY 22, 1974, P. 23. HOWEVER, INSTEAD OF CONCLUDING FROM THE EXCERPT THAT THE FLSA APPLIED, HE CONCLUDED THAT THE LANGUAGE MERELY INDICATED THAT THERE WAS A CONFLICT BETWEEN THE TWO SETS OF STATUTORY PROVISIONS AND THAT THE CONGRESS WOULD HAVE TO REPEAL THE INCONSISTENT PROVISIONS OF TITLE 5 OR TAKE OTHER ACTION TO PRESERVE THE EFFECT OF THE FLSA WHEN ITS BENEFITS ARE MORE FAVORABLE OR LESS LIMITING THAN THE OVERTIME PROVISIONS OF TITLE 5.

FOR THE REASONS STATED BEFORE, WE CANNOT APPROVE THAT INTERPRETATION. THEREFORE FIND THAT THE CSC, WHICH IS VESTED WITH THE ADMINISTRATION OF ALL PROVISIONS OF THE FLSA AS THEY APPLY TO FEDERAL EMPLOYEES, PROPERLY SET FORTH THE INTERRELATIONSHIP OF THE OVERTIME PROVISIONS OF THE FLSA AND TITLE 5 IN ACCORDANCE WITH RECOGNIZED PRINCIPLES OF STATUTORY CONSTRUCTION AND WITH THE INTENT OF THE FLSA, AND ITS INTERIM INSTRUCTIONS REQUIRING FEDERAL AGENCIES TO COMPUTE AN EMPLOYEE'S OVERTIME BENEFITS UNDER BOTH THE FLSA AND TITLE 5 OF THE U.S.C. AND TO PAY ACCORDING TO THE COMPUTATION MOST BENEFICIAL TO THE EMPLOYEE ARE LEGALLY PERMISSIBLE.