B-31872, FEBRUARY 2, 1943, 22 COMP. GEN. 738

B-31872: Feb 2, 1943

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1942 - PART TIME EMPLOYEES WHERE THE NUMBER OF HOURS OF THE ADMINISTRATIVE WORKWEEK FOR FULL TIME EMPLOYEES WAS INCREASED AFTER THE DATE OF APPROVAL OF THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22. NO CHANGE WAS MADE IN THE NUMBER OF HOURS OF REGULAR PART TIME EMPLOYEES IN SIMILAR POSITIONS. THE PART TIME EMPLOYEES ARE ENTITLED UNDER AND WITHIN THE LIMITATIONS OF THE SAID ACT TO 10 PERCENT INCREASE IN THE COMPENSATION WHICH THEY WERE RECEIVING ON THE DATE OF APPROVAL OF THE ACT. 1943: I HAVE YOUR LETTER OF JANUARY 19. AS FOLLOWS: THE WAR PRODUCTION BOARD HAVE APPOINTED A NUMBER OF MESSENGERS ON A PART TIME BASIS IN ACCORDANCE WITH DEPARTMENT CIRCULAR NO. 389 OF THE CIVIL SERVICE COMMISSION.

B-31872, FEBRUARY 2, 1943, 22 COMP. GEN. 738

ADDITIONAL COMPENSATION UNDER THE ACT OF DECEMBER 22, 1942 - PART TIME EMPLOYEES WHERE THE NUMBER OF HOURS OF THE ADMINISTRATIVE WORKWEEK FOR FULL TIME EMPLOYEES WAS INCREASED AFTER THE DATE OF APPROVAL OF THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, AND NO CHANGE WAS MADE IN THE NUMBER OF HOURS OF REGULAR PART TIME EMPLOYEES IN SIMILAR POSITIONS, THE PART TIME EMPLOYEES ARE ENTITLED UNDER AND WITHIN THE LIMITATIONS OF THE SAID ACT TO 10 PERCENT INCREASE IN THE COMPENSATION WHICH THEY WERE RECEIVING ON THE DATE OF APPROVAL OF THE ACT.

COMPTROLLER GENERAL WARREN TO O. H. NIELSON, WAR PRODUCTION BOARD, FEBRUARY 2, 1943:

I HAVE YOUR LETTER OF JANUARY 19, 1943, AS FOLLOWS:

THE WAR PRODUCTION BOARD HAVE APPOINTED A NUMBER OF MESSENGERS ON A PART TIME BASIS IN ACCORDANCE WITH DEPARTMENT CIRCULAR NO. 389 OF THE CIVIL SERVICE COMMISSION, DATED DECEMBER 12, 1942 ( SECTION 7), WHICH STATES IN PART AS FOLLOWS:

"PART-TIME EMPLOYEES WITH A REGULAR TOUR OF DUTY MUST BE PAID A PROPORTIONATE AMOUNT OF THE ANNUAL COMPENSATION FOR FULL-TIME POSITIONS IN THE SAME CLASSIFICATION GRADE. IN OTHER WORDS, THE COMPENSATION SHOULD BE FIXED AT A RATE HAVING THE SAME RELATION TO THE RATE FIXED BY THE CLASSIFICATION ACT FOR FULL-TIME IN A SIMILAR POSITION WHICH THE TIME WORKED BY THE PART-TIME EMPLOYEES BEARS TO THE NUMBER OF HOURS PER WEEK PRESCRIBED BY THE HEAD OF THE AGENCY FOR FULL-TIME EMPLOYEES.'

UNDER DATE OF SEPTEMBER 28, 1942, THE CHAIRMAN'S DESIGNEE FOR THE BOARD FIXED THE REGULAR WORK WEEK OF ALL EMPLOYEES FOR NOT MORE THAN 44 HOURS NOR LESS THAN 39 HOURS. IN ACCORDANCE WITH THIS DIRECTIVE AND THE CIVIL SERVICE COMMISSION CIRCULAR, THE MESSENGERS WERE EMPLOYED ON A TWENTY- EIGHT HOUR WEEK BASIS, AND COMPENSATION HAS BEEN PAID ON 28/44 OF THE ANNUAL SALARY RATE ($1320).

THE CONGRESS IN JOINT RESOLUTION NO. 170 EXTENDING THE OVERTIME RATES OF COMPENSATION PROVIDED IN PART THAT:

"THAT OFFICERS OR EMPLOYEES WHOSE COMPENSATION IS BASED ON MILEAGE, POSTAL RECEIPTS, FEES, PIECEWORK, OR OTHER THAN A TIME PERIOD BASIS, OR WHOSE HOURS OF DUTY ARE INTERMITTENT, IRREGULAR, OR LESS THAN FULL TIME, SUBSTITUTE EMPLOYEES WHOSE COMPENSATION IS BASED UPON A RATE PER HOUR OR PER DAY, AND EMPLOYEES IN OR UNDER THE LEGISLATIVE BRANCHES, SHALL BE PAID ADDITIONAL COMPENSATION, IN LIEU OF THE OVERTIME COMPENSATION AUTHORIZED HEREIN, AMOUNTING TO TEN PERCENTUM OF SO MUCH OF THEIR EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF A RATE OF $2,900.00 PER ANNUM, AND EACH SUCH EMPLOYEE SHALL BE PAID ONLY SUCH ADDITION/AL) COMPENSATION OR PORTION THEREOF AS WILL NOT CAUSE HIS AGGREGATE COMPENSATION TO EXCEED A RATE OF $5,000 PER ANNUM.'

UNDER THE PROVISIONS OF THE CITED RESOLUTION, THE EMPLOYEES IN QUESTION ARE ENTITLED TO ADDITIONAL COMPENSATION AMOUNTING TO TEN PERCENTUM OF SO MUCH OF THEIR EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF A RATE OF $2,900 PER ANNUM.

AS A RESULT OF THE APPROVAL OF RESOLUTION 170, THE CHAIRMAN OF THE BOARD, THROUGH HIS DESIGNEE, FIXED THE REGULAR WORK WEEK AT FORTY-EIGHT HOURS, AND THERE ARE NOW IN PREPARATION FOR MY CERTIFICATION AS AUTHORIZED CERTIFYING OFFICER SEMI-MONTHLY PAYROLLS CONTAINING PAYMENT FOR OVERTIME.

PRIOR TO THE OVERTIME PROVISIONS, THE BASIC ANNUAL SALARY OF THESE EMPLOYEES WAS COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF 11 COMPTROLLER GENERAL 362, WHICH STATES IN PART THAT:

"THE COMPENSATION OF A PART-TIME EMPLOYEE REGULARLY EMPLOYED THROUGHOUT THE YEAR OR FOR SUBSTANTIAL PERIODS SHOULD BE COMPUTED BY MULTIPLYING THE SALARY RATE PER ANNUM FIXED ADMINISTRATIVELY FOR A SIMILAR FULL-TIME POSITION BY THE FRACTION OF TIME ACTUALLY EMPLOYED.'

FOR EXAMPLE:

28/44 OF ANNUAL RATE

7/11 OF $1320 OR -----------------------------------------$840.00

ON THE BASIS OF THE OVERTIME PROVISIONS, IF THE SALARY COMPUTATION IS BASED ON A FORTY-EIGHT HOUR WEEK, PLUS TEN PERCENT OF THE JOINT RESOLUTIONS, THE BASIC ANNUAL SALARY AMOUNTS TO $847.00 WHICH IS ONLY $7.00 IN EXCESS OF THE AMOUNT RECEIVED PRIOR TO THE OVERTIME PROVISIONS. IT, THEREFORE, DOES NOT APPEAR THAT COMPENSATION PAID ON THIS BASIS WOULD BE AN EQUITABLE ADJUSTMENT OF THESE EMPLOYEES' PAY IN ACCORDANCE WITH THE INTENT OF THE RESOLUTION.

(1) FOR EXAMPLE:

SALARY:

28/48 OF ANNUAL RATE

7/12 OF $1320 OR ---------------------------------$770.00

PLUS 10 PERCENT ( JOINT RESOLUTION) ------------ 77.00

$ 847.00

FURTHER, IF COMPUTED ON A FORTY HOUR WEEK, PLUS TEN PERCENT ( JOINT RESOLUTION), THE TOTAL SALARY WOULD BE $1,016.40, WHICH APPEARS TO BE THE MOST EQUITABLE MEANS OF ALLOWING THE FULL BENEFITS UNDER THE PROVISIONS OF THE RESOLUTION.

(2) FOR EXAMPLE:

28/40 OF ANNUAL RATE

7/10 OF $1320 OF (OR) ---------------------------- $924.00

PLUS 10 PERCENT ( JOINT RESOLUTION) ----------- 92.40

$1016.40

SINCE THE RESOLUTION PROVIDES FOR A TEN PERCENT INCREASE IN PAY OF THE EMPLOYEES IN QUESTION, IN LIEU OF OVERTIME, UP TO AND INCLUDING $2900.00 OF THEIR INCOME, IT SEEMS THAT THE METHOD AS SET FORTH IN THE LATTER EXAMPLE WOULD COMPENSATE THE EMPLOYEES AS WAS INTENDED. HOWEVER, SHOULD THEIR PAY BE COMPUTED BY MULTIPLYING THE SALARY RATE PER ANNUM AT WHICH THEY ARE ALLOCATED BY THE FRACTION OF TIME THEY ACTUALLY WORK AND A FORTY- EIGHT HOUR WEEK, PLUS TEN PERCENT ( JOINT RESOLUTION/? OR WOULD THE PAY BE COMPUTED BY MULTIPLYING THE SALARY RATE PER ANNUM AT WHICH THEY ARE ALLOCATED BY THE FRACTION OF TIME THEY ACTUALLY WORK ON A FORTY HOUR WEEK, PLUS TEN PERCENT ( JOINT RESOLUTION/?

YOUR OPINION IS RESPECTFULLY REQUESTED ON THE QUESTION PRESENTED IN ORDER THAT A UNIFORM METHOD MAY BE DETERMINED IN COMPUTING THE BASIC ANNUAL SALARY RATE OF PART-TIME MESSENGERS, AS EFFECTED BY THE PROVISIONS OF RESOLUTION 170.

IT IS NOT THE GENERAL PRACTICE TO RENDER A DECISION TO A CERTIFYING OFFICER UNLESS A VOUCHER ACCOMPANIES THE SUBMISSION (SEE 21 COMP. GEN. 1128) BUT SINCE THE MATTER PRESENTED HERE RELATES TO PAY ROLLS AND IN VIEW OF YOUR STATEMENT THAT "THERE ARE NOW IN PREPARATION FOR MY CERTIFICATION AS AUTHORIZED CERTIFYING OFFICER SEMI-MONTHLY PAY ROLLS CONTAINING PAYMENT FOR OVERTIME," THE FAILURE TO SUBMIT PREPARED PAY ROLLS WILL NOT BE OBJECTED TO.

THE AUTHORITY CONTAINED IN JOINT RESOLUTION NO. 170, APPROVED DECEMBER 22, 1942, 56 STAT. 1068, PUBLIC LAW 821, TO PAY ADDITIONAL COMPENSATION TO REGULAR PART-TIME EMPLOYEES AMOUNTING TO TEN PERCENTUM OF SO MUCH OF THEIR EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF A RATE OF $2,900, SUBJECT TO A MAXIMUM COMPENSATION OF $5,000 PER ANNUM, CLEARLY WAS INTENDED TO RESULT IN SUCH EMPLOYEES RECEIVING AN INCREASE OF TEN PERCENTUM IN THEIR COMPENSATION," WHICH IS NOT ENTIRELY CLEAR, IN THE LIGHT OF THE DECISIONS OF THIS OFFICE AND THE CIRCULAR OF THE CIVIL SERVICE COMMISSION, REFERRED TO IN YOUR LETTER, IT DOES SEEM CLEAR THAT THE CONGRESS DID NOT INTEND TO REDUCE THE SALARIES OR GRANT AN INCREASE IN EXCESS OF TEN PERCENTUM TO EMPLOYEES SUCH AS THOSE DISCUSSED IN YOUR LETTER. THAT THE SAID DECISIONS AND THE PROVISIONS OF THE CIRCULAR REFERRED TO ARE SOUND MUST BE CONCEDED. HOWEVER, THEY WERE ISSUED PRIOR TO THE ACT OF DECEMBER 22, 1942, AND NOW MUST BE CONSIDERED AND APPLIED IN THE LIGHT OF ITS PROVISIONS. HOWEVER, THE APPLICATION OF THE SAID DECISIONS AND CIRCULAR, TO THE STATUTE, IN ACCORDANCE WITH THE EXAMPLES CITED IN YOUR LETTER (WHICH HAVE BEEN NUMBERED AS 1 AND 2 FOR REFERENCE PURPOSES) CERTAINLY WOULD NOT ACCOMPLISH THE EVIDENT PURPOSE OF THE STATUTE. IN EXAMPLE NO. 1 THE APPLICATION OF THE STATUTE WOULD REQUIRE A CONSIDERABLE REDUCTION IN THE BASIC COMPENSATION OF THE EMPLOYEES WITH THE RESULT THAT THE TEN PERCENTUM INCREASE AUTHORIZED ACTUALLY WOULD RESULT IN A TOTAL SALARY INCREASE OF LESS THAN ONE PERCENTUM OVER THE SALARY RECEIVED PRIOR TO ENACTMENT OF THE STATUTE. ON THE OTHER HAND IN EXAMPLE NO. 2, THE APPLICATION OF THE STATUTE WOULD RESULT IN A TOTAL SALARY INCREASE OF APPROXIMATELY TWENTY-ONE PERCENTUM OVER THE SALARY RECEIVED PRIOR TO ENACTMENT OF THE STATUTE. ON THE OTHER HAND IN EXAMPLE NO. 2, THE APPLICATION OF THE STATUTE WOULD RESULT IN A TOTAL SALARY INCREASE OF APPROXIMATELY TWENTY-ONE PERCENTUM OVER THE SALARY RECEIVED PRIOR TO ENACTMENT OF THE STATUTE. OBVIOUSLY, NO SUCH RESULTS WERE INTENDED.

FROM WHAT IS STATED IN YOUR LETTER IT APPEARS THAT THE BASIC COMPENSATION OF REGULAR PART-TIME POSITIONS IN THE WAR PRODUCTION BOARD REGULARLY AND LEGALLY WAS FIXED ON THE BASIS OF A 44-HOUR WEEK PRIOR TO APPROVAL OF THE JOINT RESOLUTION OF DECEMBER 22, 1942. THE SAID JOINT RESOLUTION DOES NOT REQUIRE THE RENDITION OF OVERTIME SERVICE BY REGULAR PART-TIME EMPLOYEES TO ENTITLE SUCH EMPLOYEES TO THE PAYMENT OF "TEN PERCENTUM OF * * * THEIR EARNED BASIC COMPENSATION.' SEE DECISION OF JANUARY 2, 1943, B-31316, 22 COMP. GEN. 589. TO THAT EXTENT, AT LEAST, THE OVERTIME PROVISIONS OF THE STATUTE DO NOT APPLY TO THEM.

UNDER THE CIRCUMSTANCES, AND IN ORDER TO ACCOMPLISH THE PURPOSES OF THE STATUTE AND GIVE FULL EFFECT TO THE INTENT OF THE CONGRESS, IT MUST BE REGARDED THAT THE EARNED BASIC COMPENSATION OF REGULAR PART-TIME EMPLOYEES AND THE TEN PERCENTUM ADDITIONAL COMPENSATION AUTHORIZED TO BE PAID WAS LEGALLY FIXED AND IS TO BE COMPUTED IN LINE WITH THE PRIOR DECISIONS OF THIS OFFICE AND THE CIRCULAR OF THE CIVIL SERVICE COMMISSION, SUPRA, ON THE WORK WEEK IN EFFECT ON THE DATE OF APPROVAL OF JOINT RESOLUTION NO. 170--- DECEMBER 22, 1942.