B-30509, DECEMBER 31, 1942, 22 COMP. GEN. 578

B-30509: Dec 31, 1942

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- "WHEN ACTUALLY EMPLOYED" EMPLOYEES EMPLOYEES EMPLOYED AND PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" WHOSE COMPENSATION IS REQUIRED BY LAW TO BE FIXED ON A PER DIEM BASIS. - OR IS ADMINISTRATIVELY FIXED EITHER ON A PER DIEM BASIS UNDER GENERAL ADMINISTRATIVE AUTHORITY OR ON THE BASIS OF 1/360 OF AN ANNUAL SALARY REQUIRED TO BE FIXED FOR FULL TIME SERVICES. ARE ENTITLED UNDER THE SATURDAY HALF-HOLIDAY LAW OF MARCH 3. EMPLOYEES EMPLOYED AND PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" ARE NOT ENTITLED TO COMPENSATORY TIME OFF UNDER THE SATURDAY HALF HOLIDAY LAW OF MARCH 3. AN EMPLOYEE WHO IS EMPLOYED AND PAID ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS AND FOR WHOM NO REGULAR TOUR OF DUTY IS ESTABLISHED FOR WORK ON SATURDAY SHOULD BE PAID ONE-FOURTH OF A DAY'S PAY PER HOUR FOR WORK OF LESS THAN 4 HOURS DURATION ON SATURDAY.

B-30509, DECEMBER 31, 1942, 22 COMP. GEN. 578

SATURDAY HALF-HOLIDAY LAW OF MARCH 3, 1931--- "WHEN ACTUALLY EMPLOYED" EMPLOYEES EMPLOYEES EMPLOYED AND PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" WHOSE COMPENSATION IS REQUIRED BY LAW TO BE FIXED ON A PER DIEM BASIS-- AS DISTINGUISHED FROM AN HOURLY BASIS--- OR IS ADMINISTRATIVELY FIXED EITHER ON A PER DIEM BASIS UNDER GENERAL ADMINISTRATIVE AUTHORITY OR ON THE BASIS OF 1/360 OF AN ANNUAL SALARY REQUIRED TO BE FIXED FOR FULL TIME SERVICES, ARE ENTITLED UNDER THE SATURDAY HALF-HOLIDAY LAW OF MARCH 3, 1931, TO A FULL DAY'S COMPENSATION FOR 4 HOURS WORK ON SATURDAY. 22 COMP. GEN. 93, AMPLIFIED. EMPLOYEES EMPLOYED AND PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" ARE NOT ENTITLED TO COMPENSATORY TIME OFF UNDER THE SATURDAY HALF HOLIDAY LAW OF MARCH 3, 1931, FOR DUTY IN EXCESS OF 4 HOURS ON SATURDAY. UNDER THE SATURDAY HALF-HOLIDAY LAW OF MARCH 3, 1931, AN EMPLOYEE WHO IS EMPLOYED AND PAID ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS AND FOR WHOM NO REGULAR TOUR OF DUTY IS ESTABLISHED FOR WORK ON SATURDAY SHOULD BE PAID ONE-FOURTH OF A DAY'S PAY PER HOUR FOR WORK OF LESS THAN 4 HOURS DURATION ON SATURDAY. EMPLOYEES WHO ARE EMPLOYED AND PAID ON A PER HOUR "WHEN ACTUALLY EMPLOYED" BASIS, FOR WHOM NO REGULAR HOURS OF WORK ARE FIXED, AND WHOSE EMPLOYMENT IS PART TIME OR INTERMITTENT ARE NOT ENTITLED TO THE BENEFITS OF THE SATURDAY HALF-HOLIDAY LAW OF MARCH 3, 1931. 15 COMP. GEN. 800, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, DECEMBER 31, 1942:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF NOVEMBER 20, 1942, AS FOLLOWS:

REFERENCE IS MADE TO DECISION OF JULY 30 (22 COMP. GEN. 93). PRIOR TO RECEIPT OF THIS DECISION IT WAS A COMMON UNDERSTANDING THAT NO PERSON EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS IS ENTITLED TO THE BENEFITS OF THE SATURDAY HALF-HOLIDAY LAW, BEING ENTITLED TO PAY ONLY FOR THE TIME ACTUALLY WORKED. WHILE MOST DECISIONS TO THIS EFFECT HAVE SPECIFICALLY MENTIONED PERSONS PAID BY THE HOUR, DECISION 15 COMP. GEN. 800 MADE NO REFERENCE TO HOURLY WAGES, BUT HELD THAT THE EMPLOYEES THEREIN REFERRED TO, MOSTLY FARMERS ON A "WHEN ACTUALLY EMPLOYED" BASIS, ARE NOT ENTITLED TO THE BENEFITS OF THE SATURDAY HALF HOLIDAY LAW EVEN IN CASES WHERE WORKING CONTINUOUSLY FOR A WEEK OR MORE. SINCE PER DIEM RATES ARE COMMON IN MANY FARMING COMMUNITIES IT WAS ASSUMED THAT THAT DECISION APPLIED TO PER DIEM AS WELL AS HOURLY W.A.E. EMPLOYEES.

THE JULY 30 DECISION STATES THAT AN EMPLOYEE PAID ON PER DIEM BASIS IS ENTITLED TO A FULL DAY'S COMPENSATION FOR SATURDAY IF HE WORKS FOUR HOURS OR MORE, BUT DOES NOT DEFINITELY STATE THAT COMPENSATORY TIME WILL BE ALLOWED FOR THE SATURDAY WORK IN EXCESS OF FOUR HOURS. ALSO, IT IS NOT CLEAR UNDER CERTAIN CIRCUMSTANCES WHAT PAYMENT WOULD BE MADE TO A PER DIEM EMPLOYEE FOR A PERIOD OF LESS THAN FOUR HOURS ON SATURDAY. IT SEEMS UNDER 11 COMP. GEN. 119 THAT WHERE THE SATURDAY HOURS ARE 9:00 A.M. TO 1:00 P.M. AN EMPLOYEE WORKING FROM 9:00 A.M. TO 12:00 A.M. WOULD BE PAID 3/8 OF A DAY'S WAGES WHILE AN EMPLOYEE WORKING FROM 10:00 A.M. TO 1:00 P.M. WOULD BE ENTITLED TO 3/4 OF A DAY'S PAY. BUT IF A PER DIEM FOREST GUARD, FOR EXAMPLE, WERE CALLED TO DUTY AT 6:00 A.M. OR 2:00 P.M. AND WORKED ONLY THREE HOURS, IT IS NOT CLEAR WHETHER HE SHOULD BE CONSIDERED AS WORKING THE LAST THREE HOURS OF A SATURDAY FOUR-HOUR PERIOD OR THE FIRST THREE HOURS. FURTHER CLARIFICATION WOULD BE APPRECIATED AS TO THE FOLLOWING:

1. IF THE W.A.E. EMPLOYEE IS NOT "REQUIRED TO BE EMPLOYED AND PAID ON A PER DIEM BASIS" BUT IS SO EMPLOYED AND PAID, IS HE ENTITLED TO A FULL DAY'S PAYMENT ON SATURDAY IF HE WORKS FOUR HOURS OR MORE?

2. DOES THE SAME RULE APPLY IF THE PER DIEM RATE IS ONE DERIVED FROM AN ANNUAL RATE, HAVING IN MIND THAT A FOREST GUARD MAY BE EMPLOYED FOR CONTINUOUS PERIODS AT $1620 PER ANNUM AND AT OTHER TIMES OF THE YEAR FOR INTERMITTENT SERVICE AT THE CORRESPONDING DAILY RATE, $4.50?

3. IF THE EMPLOYEE IN 1 AND 2 IS ENTITLED TO A FULL DAY'S WAGE FOR FOUR HOURS OR MORE ON SATURDAY, IS HE ALSO ENTITLED TO COMPENSATORY TIME FOR THE PERIOD IN EXCESS OF FOUR HOURS AS, FOR EXAMPLE, FOUR HOURS COMPENSATORY TIME ON MONDAY OR WEDNESDAY OF THE FOLLOWING WEEK BECAUSE OF EIGHT HOURS WORK ON SATURDAY (A) IF HE WOULD OTHERWISE BE EMPLOYED OR IN PAY STATUS ON SUCH MONDAY OR WEDNESDAY AND (B) IF HE WOULD NOT OTHERWISE BE IN PAY STATUS ON THE DAY ON WHICH COMPENSATORY TIME IS GRANTED?

4. A FOREST GUARD AT A PER DIEM RATE ON A W.A.E. BASIS MAY BE CALLED TO DUTY AT ANY TIME. HOW WILL THE DAY'S WAGES BE COMPUTED SHOULD HE WORK LESS THAN FOUR HOURS ON SATURDAY, THAT IS, SHOULD THE PERIOD OF SERVICE BE CONSIDERED AS A FRACTION OF A FOUR HOUR DAY OR OF AN EIGHT HOUR DAY?

5. IS THE DECISION 15 COMP. GEN. 800 TO BE CONSIDERED AS APPLYING ONLY TO PERSONS EMPLOYED AT AN HOURLY RATE?

IN THE DECISION OF JULY 30, 1942, 22 COMP. GEN. 93, 95, TO WHICH YOU REFER, IT WAS STATED AS FOLLOWS:

IN THE DECISION OF MARCH 18, 1935, 14 COMP. GEN. 697, WHEREIN WAS CONSIDERED THE CASE OF AN ARCHITECTURAL CONSULTANT WHO WAS APPOINTED AND PAID AT THE RATE OF $25 PER DIEM WHILE ACTUALLY EMPLOYED, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

"AN EMPLOYEE WHOSE COMPENSATION IS AUTHORIZED BY LAW TO BE PAID ON A PER DIEM BASIS, ENGAGED FULL TIME FOR AN INDEFINITE PERIOD, IS ENTITLED TO A DAY'S COMPENSATION FOR FOUR HOURS WORK ON SATURDAY UNDER THE SATURDAY HALF -HOLIDAY LAW OF MARCH 3, 1931, 46 STAT. 1482, WHICH STATUTORY RIGHT MAY NOT BE DEFEATED BY A PROVISION IN THE APPOINTMENT THAT BOTH COMPENSATION WILL BE PAYABLE ONLY "WHEN ACTUALLY EMPLOYED.' 10 COMP. GEN. 464; ID. 496; ID. 518; DISTINGUISHED.'

WHILE THE FACTS IN THAT CASE SHOW THAT THE CONSULTANT PERFORMED CONTINUOUS SERVICE FOR AN INDEFINITE PERIOD OF TIME, THE SAME RULE MUST BE AND IS APPLICABLE TO CONSULTANTS WHO ARE AUTHORIZED TO BE EMPLOYED AND PAID ON A PER DIEM BASIS, AS DISTINGUISHED FROM AN HOURLY BASIS, EVEN THOUGH THEY MAY WORK ONLY FOR SHORT PERIODS OR INTERMITTENTLY. UNQUESTIONABLY, THE SATURDAY HALF-HOLIDAY LAW, QUOTED IN YOUR LETTER PROVIDES THAT "FOUR HOURS, EXCLUSIVE OF TIME FOR LUNCHEON, SHALL CONSTITUTE A DAY'S WORK ON SATURDAYS THROUGHOUT THE YEAR.' HENCE, IF AN EMPLOYEE IS AUTHORIZED AND REQUIRED TO BE EMPLOYED AND PAID ON A PER DIEM BASIS, AS DISTINGUISHED FROM AN HOURLY BASIS, AND HE WORKS ON SATURDAY 4 HOURS OR MORE, HE IS ENTITLED TO A FULL DAY'S COMPENSATION FOR SATURDAY AT THE RATE OF PER DIEM FIXED IN HIS APPOINTMENT OR CONTRACT OF EMPLOYMENT REGARDLESS OF THE TENURE OF HIS EMPLOYMENT AND EVEN THOUGH HE WORKS ONLY FOR SHORT PERIODS OR INTERMITTENTLY. I KNOW OF NO DECISION OF THIS OFFICE WHICH HOLDS TO THE CONTRARY. COMPARE 10 COMP. GEN. 497.

THE RULE STATED IN THE ABOVE-QUOTED DECISION IS FOR APPLICATION TO ALL PERSONNEL EMPLOYED AND PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" WHOSE COMPENSATION IS REQUIRED BY LAW TO BE FIXED ON A PER DIEM BASIS, OR IS ADMINISTRATIVELY FIXED EITHER ON A PER DIEM BASIS, UNDER GENERAL ADMINISTRATIVE AUTHORITY OR ON THE BASIS OF 1/360 OF AN ANNUAL SALARY REQUIRED TO BE FIXED FOR FULL TIME SERVICES, SUCH AS THE CLASSIFICATION ACT. THE RULE IS NOT FOR APPLICATION TO EMPLOYEES WHOSE COMPENSATION IS FIXED ON AN HOURLY BASIS. QUESTIONS 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE. COMPARE 5 COMP. GEN. 302, 305; 11 ID. 211, 217, 362; 14 ID. 697.

REFERRING TO QUESTION 3, IT DOES NOT FOLLOW SIMPLY BECAUSE PERSONNEL EMPLOYED AND PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" MAY BE ENTITLED TO A FULL DAY'S COMPENSATION FOR 4 HOURS WORK ON SATURDAY THAT THEY ARE ENTITLED, ALSO, TO COMPENSATORY TIME OFF FROM DUTY FOR WORK IN EXCESS OF 4 HOURS ON SATURDAY. IT APPEARS OBVIOUS THAT THE GRANTING OF COMPENSATORY TIME OFF FROM DUTY TO SUCH CLASSES OF PERSONNEL IS ENTIRELY INCONSISTENT WITH THE NATURE OF THEIR EMPLOYMENT--- THE PERIOD OF SERVICES UNDER THEIR EMPLOYMENT NOT BEING REGULAR. THE SATURDAY HALF-HOLIDAY LAW IN RESPECT OF COMPENSATORY TIME WAS NOT INTENDED TO AND IS NOT REQUIRED TO BE APPLIED TO THAT CLASS OF PERSONNEL. 10 COMP. GEN. 497, 518; 13 ID. 17, 370.

REFERRING TO QUESTION 4 RELATING TO A FOREST GUARD FOR WHOM NO REGULAR TOUR OF DUTY IS ESTABLISHED FOR WORK ON SATURDAY, THE RULE FOR COMPUTING PART-TIME SERVICES FOR LESS THAN 4 HOURS ON SATURDAY WOULD BE THAT STATED IN THE DECISION OF SEPTEMBER 29, 1931, 11 COMP. GEN. 119, 121, AS FOLLOWS:

IF A PER DIEM OR A PER ANNUM EMPLOYEE IS PROPERLY ENTITLED TO THE PART HOLIDAY WITH PAY, ACTIVE DUTY PAY FOR PART OF A SATURDAY SHOULD BE COMPUTED ON THE BASIS OF A 4-HOUR DAY, EACH HOUR'S WORK BEING COMPUTED AS ONE-FOURTH OF A DAY'S PAY, WHETHER THE REGULAR NUMBER OF HOURS WORKED ON OTHER DAYS BE SEVEN OR EIGHT. * * *

WITH REFERENCE TO QUESTION 5, THERE IS FOR NOTING THAT THE HOLDING IN THE DECISION--- 15 COMP. GEN. 800--- WAS BASED UPON THE HOLDING MADE IN 10 COMP. GEN. 518, WHICH RELATED TO EMPLOYEES "FOR WHOM NO REGULAR HOURS OF WORK ARE FIXED, WHOSE EMPLOYMENT IS PART TIME OR INTERMITTENT, AND WHO ARE PAID BY THE HOUR FOR THE TIME ACTUALLY WORKED.' HENCE, SAID QUESTION IS ANSWERED IN THE AFFIRMATIVE.

THE FOREGOING ANSWERS--- INTENDED AS A CLARIFICATION OF THE SEVERAL MATTERS INVOLVED IN THE QUESTIONS PRESENTED--- HAVE BEEN MADE WITHOUT REFERENCE TO THE PROVISIONS OF SECTION 3 OF PUBLIC LAW 821, APPROVED DECEMBER 22, 1942, READING AS FOLLOWS:

THE PROVISIONS OF THE SATURDAY HALF-HOLIDAY LAW OF MARCH 3, 1931 (46 STAT. 1482; U.S.C., TITLE 5, SEC. 26 (A) (, ARE HEREBY SUSPENDED FOR THE PERIOD DURING WHICH THIS JOINT RESOLUTION IS IN EFFECT. AS TO "THE PERIOD DURING WHICH THE SAID JOINT RESOLUTION IS IN EFFECT" SECTION 4 THEREOF PROVIDES:

THIS JOINT RESOLUTION SHALL TAKE EFFECT AS OF DECEMBER 1, 1942, AND SHALL TERMINATE ON APRIL 30, 1943, OR SUCH EARLIER DATE AS THE CONGRESS BY CONCURRENT RESOLUTION MAY PRESCRIBE.