B-32075, FEBRUARY 9, 1943, 22 COMP. GEN. 778

B-32075, FEBRUARY 9, 1943, 22 COMP. GEN. 778

OVERTIME COMPENSATION UNDER ACT OF DECEMBER 22, 1942 - OVERTIME WORK IN ADDITION TO REGULAR WORKWEEK OVERTIME COMPENSATION UNDER THE ACT OF DECEMBER 22, 1942, AND EXECUTIVE ORDER NO. 9289 ISSUED IN CONNECTION THEREWITH, FOR WORK ORDERED OR APPROVED IN ADDITION TO THE OFFICIALLY ESTABLISHED REGULAR WORKWEEK--- AS DISTINGUISHED FROM OVERTIME COMPENSATION FOR WORK DURING SUCH REGULAR WORKWEEK--- SHOULD NOT BE PRORATED ON AN ANNUAL BASIS UNDER SECTION 3 OF SAID EXECUTIVE ORDER, BUT, RATHER, THE ACTUAL NUMBER OF HOURS OVERTIME WORKED IN EXCESS OF THE REGULAR WORKWEEK SHOULD BE PAID FOR AT THE RATE OF ONE AND ONE-HALF TIMES THE BASIC HOURLY RATE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, FEBRUARY 9, 1943:

I HAVE YOUR LETTER OF JANUARY 26, 1943, AS FOLLOWS:

CERTAIN QUESTIONS HAVE ARISEN IN THIS DEPARTMENT IN THE ADMINISTRATION OF PUBLIC LAW NO. 821, 77TH CONGRESS, AND EXECUTIVE ORDER NO. 9289, PURSUANT THERETO, RELATIVE TO THE PAYMENT OF OVERTIME COMPENSATION. ON DECEMBER 24, 1942, PURSUANT TO EXECUTIVE ORDER NO. 9289, THIS DEPARTMENT ADOPTED A REGULAR WORKWEEK OF 48 HOURS, WITH PROVISION FOR THE REQUIREMENT, WHEN NECESSARY, OF OVERTIME IN EXCESS OF THE REGULAR WORKWEEK.

THE FIRST PROBLEM WHICH HAS ARISEN IS WITH REGARD TO OVERTIME WHICH MAY BE REQUIRED IN EXCESS OF THE REGULARLY ESTABLISHED WORKWEEK OF 48 HOURS. SECTION 2 OF THE EXECUTIVE ORDER CITED PROVIDES THAT OVERTIME COMPENSATION FOR EMPLOYMENT EXCEEDING 40 HOURS DURING THE OFFICIALLY ESTABLISHED REGULAR WORKWEEK "AND FOR WORK ORDERED OR APPROVED, IN ADDITION TO THE REGULAR WORKWEEK SO ESTABLISHED SHALL BE PAID AT THE RATE OF ONE AND ONE- HALF TIMES THE EMPLOYEE'S REGULAR RATE OF COMPENSATION* * *," SUBJECT TO THE MAXIMUM LIMITATIONS PRESCRIBED BY THE ACT. SECTION 3 OF THE EXECUTIVE ORDER PROVIDES THAT OVERTIME COMPENSATION FOR PER ANNUM EMPLOYEES DURING AN OFFICIALLY ESTABLISHED REGULAR WORKWEEK MAY BE CALCULATED ON AN ANNUAL BASIS AND PAID IN EQUAL AMOUNTS ON REGULAR MONTHLY OR SEMI-MONTHLY PAY DAYS.

UNDER GENERAL REGULATIONS NO. 54, SUPPLEMENT 14, OF YOUR OFFICE, THERE ARE PROVIDED DAILY RATES OF OVERTIME INCREMENT FOR THE VARIOUS ANNUAL SALARIES, BASED ON 416 OVERTIME HOURS; THAT IS, EIGHT HOURS PER WEEK FOR 52 WEEKS, DIVIDING SUCH COMPENSATION EQUALLY OVER 24 PAY PERIODS. THESE RATES ARE IN CONSONANCE WITH SECTION 3 OF THE EXECUTIVE ORDER. THEY ARE, HOWEVER, NOT ADAPTABLE TO THE PAYMENT OF EXCESS OVERTIME ORDERED IN ACCORDANCE WITH SECTION 2 OF THE EXECUTIVE ORDER. IN VIEW OF THE DISTINCTION DRAWN BY THE PRESIDENT BETWEEN OVERTIME DURING THE REGULAR WORKWEEK AND EXCESS OVERTIME, IT WOULD APPEAR THAT EXCESS OVERTIME WHICH MAY BE REQUIRED FROM TIME TO TIME SHOULD BE PAID ON AN ACTUAL BASIS, I.E., ONE AND ONE-HALF TIMES THE BASIC HOURLY RATE CALCULATED AS REQUIRED BY THE ACT AND ORDER, FOR SUCH EXCESS OVERTIME HOURS.

THE SECOND PROBLEM WHICH HAS ARISEN CONCERNS THE METHOD OF DEDUCTING FOR LEAVE WITHOUT PAY FROM THE COMPENSATION OF AN EMPLOYEE WHOSE SALARY IS BEING PAID IN ACCORDANCE WITH THE SCALES PROVIDED IN GENERAL REGULATIONS NO. 54, SUPPLEMENT 14, SUPRA. THE SIMPLEST METHOD OF ADMINISTRATION, WHICH WOULD APPEAR TO BE IN ACCORDANCE WITH THE GENERAL REGULATIONS AND EXECUTIVE ORDER NO. 9289, WOULD BE TO DEDUCT ONE DAY'S GROSS PAY, I.E., BASIC PAY, PLUS THE DAILY OVERTIME RATE AS PROVIDED IN THE GENERAL REGULATIONS, FOR EACH DAY OF ABSENCE. THERE SHOULD BE CONSIDERED, IN THIS CONNECTION, VARIOUS TYPES OF CASES WHICH MAY ARISE, WHERE AN EMPLOYEE MIGHT TAKE SEVERAL DAYS OF LEAVE WITHOUT PAY WITHIN A SINGLE WORKWEEK, SO THAT HE WOULD NOT, IN FACT, BE SERVING IN EXCESS OF 40 HOURS FOR THAT WEEK. THERE ARE ALSO THE RELATED PROBLEMS OF PERSONS ENTERING OR LEAVING EMPLOYMENT AT VARYING DATES WITHIN INDIVIDUAL PAY PERIODS. IT WOULD SEEM THAT, SINCE THE SYSTEM HAS BEEN DEVISED TO SPREAD OVER AN ANNUAL BASIS, IT SHOULD NOW BE ADMINISTERED, IN EFFECT, AS THOUGH THE GROSS PAY RESULTING WERE THE REGULAR PAY FOR THE POSITION.

SECTIONS 2 AND 3 OF THE PRESIDENT'S REGULATIONS, EXECUTIVE ORDER NO. 9289, DATED DECEMBER 26, 1942, PROVIDE IN PERTINENT PART:

SECTION 2. OVERTIME COMPENSATION FOR EMPLOYMENT IN EXCESS OF 40 HOURS DURING AN OFFICIALLY ESTABLISHED REGULAR WORKWEEK, AND FOR WORK ORDERED OR APPROVED IN ADDITION TO THE REGULAR WORKWEEK SO ESTABLISHED SHALL BE PAID AT THE RATE OF ONE AND ONE-HALF TIMES THE EMPLOYEE'S REGULAR RATE OF COMPENSATION, SUBJECT TO THE FOLLOWING LIMITATIONS:

SECTION 3. OVERTIME COMPENSATION OF PER-ANNUM EMPLOYEES FOR EMPLOYMENT DURING AN OFFICIALLY ESTABLISHED REGULAR WORKWEEK IN EXCESS OF 40 HOURSMAY BE CALCULATED ON AN ANNUAL BASIS AND PAID IN EQUAL AMOUNTS ON THE REGULAR MONTHLY OR SEMI-MONTHLY PAY DAYS.

SECTION 3 OF THE REGULATIONS AUTHORIZING PRORATING ON AN ANNUAL BASIS OF INCREASED COMPENSATION PURSUANT TO AN OVERTIME FORMULA IS SPECIFICALLY LIMITED TO "EMPLOYMENT DURING AN OFFICIALLY ESTABLISHED REGULAR WORKWEEK IN EXCESS OF 40 HOURS.' GENERAL REGULATIONS NO. 54, SUPPLEMENT NO. 14, OF THIS OFFICE, DATED DECEMBER 29, 1942, 22 COMP. GEN. 1156, AND THE SALARY TABLES ATTACHED THERETO WERE ISSUED PURSUANT TO SECTION 3 OF THE REGULATIONS. WHILE SECTION 2 OF THE REGULATIONS AND THE LAW AUTHORIZES PAYMENT OF INCREASED COMPENSATION PURSUANT TO AN OVERTIME FORMULA, ALSO, FOR EMPLOYMENT BEYOND THE OFFICIALLY ESTABLISHED WORKWEEK WHEN ORDERED OR APPROVED BY THE PROPER ADMINISTRATIVE OFFICER, THE PRORATING ON AN ANNUAL BASIS OF SUCH ADDITIONAL INCREASE IN COMPENSATION WOULD BE IMPRACTICABLE AND IS NOT AUTHORIZED OR REQUIRED. ACCORDINGLY, THIS OFFICE IS IN AGREEMENT WITH THE VIEW EXPRESSED IN THE LAST SENTENCE OF THE THIRD PARAGRAPH OF YOUR LETTER ,THAT EXCESS OVERTIME WHICH MAY BE REQUIRED FROM TIME TO TIME SHOULD BE PAID ON AN ACTUAL BASIS, I.E., ONE AND ONE-HALF TIMES THE BASIC HOURLY RATE CALCULATED AS REQUIRED BY THE ACT AND ORDER, FOR SUCH EXCESS OVERTIME HOURS.'

THE SECOND PROBLEM PRESENTED IN YOUR LETTER IS SIMILAR TO THE ONE HERETOFORE CONSIDERED IN TWO DECISIONS OF THIS OFFICE. SEE DECISION OF JANUARY 21, 1943, B-31789, 22 COMP. GEN. 683, TO THE SECRETARY OF LABOR, WHEREIN IT WAS HELD THAT A PER ANNUM EMPLOYEE WHO IS ABSENT FROM DUTY WITHOUT PAY DURING AN ADMINISTRATIVE WORKWEEK IS ENTITLED TO 1/360 OF THE GROSS COMPENSATION, INCLUDING BOTH BASIC AND OVERTIME COMPENSATION, FOR EACH DAY IN A PAY STATUS DURING THE PAY ROLL PERIOD AND THAT THERE SHOULD BE WITHHELD ONLY 1/360 OF THE GROSS COMPENSATION, INCLUDING BOTH BASIC AND OVERTIME COMPENSATION, FOR EACH DAY ON WHICH THE EMPLOYEE IS IN A NON-PAY STATUS (LEAVE WITHOUT PAY); ALSO DECISION OF JANUARY 27, 1943, B-31908, 22 COMP. GEN. 714, TO O. A. ZIMMERLI, AUTHORIZED CERTIFYING OFFICER, FOREST SERVICE, DEPARTMENT OF AGRICULTURE, IN WHICH IT WAS STATED, AFTER REFERRING TO THE DECISION TO THE SECRETARY OF LABOR, SUPRA, THAT "THE SAME RULE FOR PRORATING THE GROSS COMPENSATION ON AN ANNUAL BASIS IS APPLICABLE IN COMPUTING COMPENSATION FOR A FRACTIONAL PAY PERIOD OF AN EMPLOYEE WHO ENTERS OR LEAVES THE SERVICE DURING AN ADMINISTRATIVE WORKWEEK.'