B-32160, FEBRUARY 10, 1943, 22 COMP. GEN. 780

B-32160: Feb 10, 1943

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1942 - EMPLOYEES IN PAY STATUS LESS THAN FULL WORKWEEK PERFORMING EXCESS OVERTIME WORK A PER ANNUM EMPLOYEE WHO ENTERED ON DUTY ON FRIDAY OF THE ADMINISTRATIVELY ESTABLISHED 48-HOUR WORKWEEK AND WAS REQUIRED ON EACH OF THE 2 DAYS HE WAS IN A PAY STATUS DURING THAT WEEK TO WORK 4 HOURS IN EXCESS OF THE OFFICIAL 8-HOUR DAILY TOUR OF DUTY IS ENTITLED UNDER THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22. A PER ANNUM EMPLOYEE WHO WAS IN A LEAVE-WITHOUT-PAY STATUS FOR ONE DAY OF HIS ADMINISTRATIVELY ESTABLISHED 48-HOUR WORKWEEK BUT WHO WAS REQUIRED ON EACH OF 3 DAYS OF THE REMAINING 5 TO WORK 4 HOURS IN EXCESS OF THE OFFICIAL 8-HOUR DAILY TOUR OF DUTY. IS ENTITLED UNDER THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22.

B-32160, FEBRUARY 10, 1943, 22 COMP. GEN. 780

OVERTIME COMPENSATION UNDER ACT OF DECEMBER 22, 1942 - EMPLOYEES IN PAY STATUS LESS THAN FULL WORKWEEK PERFORMING EXCESS OVERTIME WORK A PER ANNUM EMPLOYEE WHO ENTERED ON DUTY ON FRIDAY OF THE ADMINISTRATIVELY ESTABLISHED 48-HOUR WORKWEEK AND WAS REQUIRED ON EACH OF THE 2 DAYS HE WAS IN A PAY STATUS DURING THAT WEEK TO WORK 4 HOURS IN EXCESS OF THE OFFICIAL 8-HOUR DAILY TOUR OF DUTY IS ENTITLED UNDER THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, AND EXECUTIVE ORDER NO. 9289 ISSUED IN CONNECTION THEREWITH, TO COMPENSATION AT THE REGULAR RATE, PLUS OVERTIME COMPENSATION PRORATED ON AN ANNUAL BASIS, FOR THE 8 HOURS' WORK DURING REGULAR HOURS ON EACH OF THE 2 DAYS, AND TO OVERTIME COMPENSATION AT THE RATE OF TIME AND ONE HALF THE REGULAR RATE FOR THE 8 HOURS EXCESS OVERTIME ON THOSE DAYS. A PER ANNUM EMPLOYEE WHO WAS IN A LEAVE-WITHOUT-PAY STATUS FOR ONE DAY OF HIS ADMINISTRATIVELY ESTABLISHED 48-HOUR WORKWEEK BUT WHO WAS REQUIRED ON EACH OF 3 DAYS OF THE REMAINING 5 TO WORK 4 HOURS IN EXCESS OF THE OFFICIAL 8-HOUR DAILY TOUR OF DUTY, MAKING A TOTAL OF 52 HOURS' WORK FOR THAT WEEK, IS ENTITLED UNDER THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, AND EXECUTIVE ORDER NO. 9289 ISSUED IN CONNECTION THEREWITH, TO COMPENSATION AT THE REGULAR RATE, PLUS OVERTIME COMPENSATION PRORATED ON AN ANNUAL BASIS, FOR THE 8 HOURS' WORK DURING REGULAR HOURS ON EACH OF THE 5 DAYS, AND TO OVERTIME COMPENSATION AT THE RATE OF TIME AND ONE-HALF FOR THE 12 HOURS EXCESS OVERTIME (IN EXCESS OF 48 HOURS PER WEEK).

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, FEBRUARY 10, 1943:

I HAVE YOUR LETTER OF JANUARY 23, 1943, AS FOLLOWS:

IN CONNECTION WITH THE ADMINISTRATION OF THE OVERTIME COMPENSATION PROVISIONS OF PUBLIC LAW 821--- 77TH CONGRESS, APPROVED DECEMBER 22, 1942, THE DEPARTMENT HAS BEEN CALLED UPON TO ISSUE INSTRUCTIONS CONCERNING ITS APPLICATION TO EMPLOYEES WHO ARE REQUIRED BY EXCEPTIONAL CIRCUMSTANCES TO WORK LONG HOURS ON CERTAIN DAYS BUT WHOSE TOTAL HOURS IN A PAY STATUS DURING AN ADMINISTRATIVE WORK-WEEK DO NOT EXCEED FORTY PER WEEK. THIS POINT IS NOT ADEQUATELY COVERED IN THE DEPARTMENT'S ORDERS "U" WHICH YOU DISCUSSED IN YOUR DECISION OF DECEMBER 24, 1942 (B-31212). AN EARLY DECISION ON THE QUESTION HEREINAFTER SET FORTH IS ACCORDINGLY REQUESTED.

BY VIRTUE OF THE ABOVE CITED STATUTE, THE PROVISIONS OF PUBLIC LAW 873--- 76TH CONGRESS--- ARE CONTINUED IN EFFECT UNTIL APRIL 30, 1943 AND THE ACTS COVERAGE IS EXTENDED TO ALL CIVILIAN EMPLOYEES IN OR UNDER THE UNITED STATES GOVERNMENT WITH CERTAIN SPECIFIED EXCEPTIONS. THE PERTINENT PORTION OF THE STATUTE THUS EXTENDED PROVIDES AS FOLLOWS:

"* * * COMPENSATION FOR EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORK-WEEK COMPUTED AT A RATE NOT LESS THAN ONE AND ONE HALF TIMES THE REGULAR RATE IS HEREBY AUTHORIZED TO BE PAID (TO EMPLOYEES COVERED BY PUBLIC LAW 821--- 77TH CONGRESS) * * * PROVIDED, THAT IN DETERMINING THE OVERTIME COMPENSATION OF THE FOREGOING GOVERNMENT EMPLOYEES THE PAY FOR ONE DAY SHALL BE CONSIDERED TO BE ONE THREE-HUNDRED AND SIXTIETH OF THEIR RESPECTIVE PER ANNUM SALARIES.'

EXECUTIVE ORDER NO. 9289, DATED DECEMBER 29, 1942, PRESCRIBES GENERAL REGULATIONS UNDER WHICH THE ABOVE STATUTE IS TO BE APPLIED. SECTIONS 1, 2 AND 3 OF THIS ORDER PROVIDE AS FOLLOWS:

"SECTION 1. HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES, OR SUCH OFFICERS OR EMPLOYEES AS THEY MAY DESIGNATE, SHALL ESTABLISH OFFICIAL HOURS OF DUTY AND A REGULAR WORKWEEK FOR EACH EMPLOYEE OR GROUP OF EMPLOYEES. NO EMPLOYEE SHALL BE REQUIRED TO WORK IN EXCESS OF THE OFFICIALLY ESTABLISHED HOURS OF DUTY EXCEPT UPON THE ORDER OF THE HEAD OF THE DEPARTMENT OR AGENCY OR OF SUCH OFFICER OR EMPLOYEE AS HAS BEEN DELEGATED SPECIFIC AUTHORITY TO REQUIRE SUCH ADDITIONAL WORK.

"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. * * *

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

WAR DEPARTMENT ORDERS "U," ISSUED DECEMBER 26, 1942, CONTAINS TWO PERTINENT PARAGRAPHS WHICH APPLY THE STATUTE AND THE EXECUTIVE ORDER AS FOLLOWS:

"ALL EMPLOYEES OF THE DEPARTMENT WILL BE REQUIRED TO WORK 8 HOURS PER DAY, 48 HOURS PER WEEK, EXCEPT THOSE COVERED BY PARAGRAPH 9 HEREIN AND THOSE INDIVIDUALS OR CLASSES OF EMPLOYEES IN THE FIELD SERVICE WHO CANNOT BE EFFECTIVELY EMPLOYED A FULL 48 HOURS; THE LATTER EMPLOYEES PAID ON A FULL-TIME BASIS WILL BE REQUIRED TO WORK NOT LESS THAN 40 HOURS PER WEEK. WORK IN EXCESS OF 48 HOURS PER WEEK WILL NOT BE REQUIRED BY COMMANDING OFFICERS OR HIGHER AUTHORITY, EXCEPT TO MEET SPECIFIC EMERGENCY WORK SITUATIONS. AN EMPLOYEE WILL NOT BE REQUIRED TO WORK IN EXCESS OF 8 HOURS PER DAY OR 48 HOURS PER WEEK IF, IN THE JUDGMENT OF THE COMMANDING OFFICER OR HIS AUTHORIZED REPRESENTATIVE, SUCH EMPLOYMENT WOULD RESULT IN IMPAIRMENT OF THE HEALTH OR EFFICIENCY OF SUCH EMPLOYEE. WHERE ONE OR TWO SHIFTS ARE IN OPERATION, THE DAILY 8-HOUR TOUR OF DUTY WILL BE EXCLUSIVE OF A PERIOD FOR LUNCH. WHERE THREE 8-HOUR SHIFTS ARE IN OPERATION, THE DAILY 8-HOUR TOUR OF DUTY MAY INCLUDE AS SHORT A PERIOD AS PRACTICABLE FOR LUNCH WHERE THE OVERLAPPING OF SHIFTS IS NOT FEASIBLE.

"B. OVERTIME.

"ALL SUCH EMPLOYEES WILL BE PAID OVERTIME COMPENSATION FOR ALL HOURS IN A PAY STATUS BEYOND 40 DURING THE 48-HOUR WEEKLY TOUR OF DUTY, AND ALSO FOR HOURS WORKED BEYOND THE 48-HOUR WEEKLY TOUR OF DUTY WHEN SUCH WORK IS APPROVED IN ADVANCE BY A COMMANDING OFFICER OR HIS AUTHORIZED REPRESENTATIVE TO MEET A SPECIFIC EMERGENCY WORK SITUATION, AT THE RATE OF TIME AND ONE-HALF OF THEIR REGULAR RATES OF PAY. * * *"

ALL OF THE ABOVE REGULATIONS PERMIT AN ORDERLY APPLICATION IN ALL CASES WHERE A PER ANNUM EMPLOYEE COMPLETES A WEEKLY TOUR OF DUTY. IF HE IS IN A PAY STATUS EIGHT HOURS EACH DAY OF A FULL WEEK, HE IS ENTITLED TO THE REGULAR WEEKLY SALARY PLUS OVERTIME COMPUTED AT ONE AND ONE-HALF TIMES HIS HOURLY RATE FOR 8 HOURS, COMPUTED AND PAID AS STATED IN SECTION 3 OF EXECUTIVE ORDER 9289. A DIFFICULTY HAS ARISEN, HOWEVER, IN THOSE CASES WHERE THE EMPLOYEE IS IN A PAY STATUS FOR ONLY A PORTION OF A WEEKLY TOUR OF DUTY, BUT IN THE COURSE OF THAT TIME AN EXCEPTIONAL CIRCUMSTANCE ARISES TO REQUIRE THAT HE WORK UNUSUALLY LONG HOURS DURING THAT PERIOD. YOUR DECISION IS REQUESTED AS CONCERNS THE FOLLOWING SITUATIONS:

1. AN EMPLOYEE PAID AT THE RATE OF $1800 PER ANNUM ENTERS ON DUTY ON FRIDAY OF A WORK-WEEK WHICH ENDS AT THE CLOSE OF BUSINESS SATURDAY. BECAUSE OF AN UNUSUAL AND PRESSING WORK LOAD EXISTING AT THE ESTABLISHMENT, HE IS REQUIRED TO WORK 12 HOURS ON EACH OF THE TWO DAYS REMAINING IN THE WORK-WEEK. THIS WORK, AUTHORIZED BY A RESPONSIBLE OFFICER PURSUANT TO THE PROVISION OF ORDERS "U" QUOTED ABOVE, AMOUNTS TO 24 HOURS; SIXTEEN HOURS DURING THE WEEKLY TOUR OF DUTY AND EIGHTHOURS EXCESS OVERTIME WORK BEYOND THE DAILY TOURS OF DUTY. MUST THE EMPLOYEE BE PAID ONLY THE DAILY RATE FOR THE TWO DAYS WORKED DURING THAT WEEK PLUS AVERAGE OVERTIME COMPENSATION FOR EACH DAY, A TOTAL COMPENSATION OF $12.00, OR MAY HE BE PAID ALSO FOR THE AUTHORIZED OVERTIME WORK OF 16 HOURS IN EXCESS OF EIGHT HOURS PER DAY, HIS SALARY FOR THE TWO DAYS THUS BEING $19.50 ($12 PLUS (1 1/2 X ?625 X 8) (?

2. AN EMPLOYEE PAID AT THE RATE OF $1800 PER ANNUM IS ON LEAVE WITHOUT- PAY FOR ONE DAY DURING THE WEEKLY TOUR OF DUTY, BUT WORKS 4 HOURS OVERTIME BEYOND THE DAILY 8 HOUR TOUR-OF-DUTY ON 3 DAYS OF THE WEEK. THUS A TOTAL OF 52 HOURS IS WORKED DURING THE WEEK.

A. MAY THE EMPLOYEE BE PAID FOR THE 12 HOURS OF OVERTIME WORK BEYOND THE DAILY TOURS OF DUTY, PLUS THE DAILY AVERAGE AMOUNT OF OVERTIME PAY FOR EACH DAY IN A PAY STATUS?

B. IF THE ANSWER IS IN THE NEGATIVE, THEN MAY THE EMPLOYEE BE PAID FOR 4 HOURS OVERTIME WORK, THE REMAINING 8 HOURS OF EXCESS OVERTIME BEING APPLIED TOWARDS THE 48 HOUR WEEKLY TOUR OF DUTY?

IN DECISION OF JANUARY 27, 1943, B-31908, 22 COMP. GEN. 714, TO MR. O. A. ZIMMERLI, AUTHORIZED CERTIFYING OFFICER, FOREST SERVICE, DEPARTMENT OF AGRICULTURE, IT WAS STATED:

IN DECISION OF JANUARY 21, 1943, B-31789, TO THE SECRETARY OF LABOR, A COPY OF WHICH IS ENCLOSED, IT WAS CONCLUDED 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 NONPAY STATUS (LEAVE WITHOUT PAY). 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. ( ITALICS SUPPLIED.)

IN DECISION OF FEBRUARY 9, 1943, B-32075, 22 COMP. GEN. 778, TO THE SECRETARY OF AGRICULTURE, IT WAS HELD THAT INCREASED COMPENSATION FOR OVERTIME WORK IN EXCESS OF THE OFFICIAL HOURS OF DUTY OR REGULAR WORKWEEK ESTABLISHED ADMINISTRATIVELY PURSUANT TO SECTION 1 OF THE PRESIDENT'S REGULATIONS, SHOULD NOT BE PRORATED ON AN ANNUAL BASIS UNDER SECTION 3 OF THE PRESIDENT'S REGULATIONS, BUT SHOULD BE PAID FOR AT THE RATE OF TIME AND ONE-HALF THE REGULAR RATE FOR THE ACTUAL NUMBER OF HOURS OVERTIME WORKED IN EXCESS OF THE ADMINISTRATIVELY ESTABLISHED WORKWEEK. COPIES OF THE TWO DECISIONS ARE ENCLOSED HEREWITH.

APPLYING THE RULES STATED IN SAID DECISIONS, THE EMPLOYEE IN QUESTION 1 WOULD BE ENTITLED TO HIS REGULAR COMPENSATION FOR FRIDAY AND SATURDAY ($10), PLUS THE PRO RATA PAYMENT OF OVERTIME ON AN ANNUAL BASIS FOR TWO DAYS, PURSUANT TO GENERAL REGULATIONS NO. 54, SUPPLEMENT 14, OF THIS OFFICE, DATED DECEMBER 29, 1942 ($2.16666, THAT IS, $1.08333 X 2), PLUS OVERTIME COMPENSATION AT THE RATE OF TIME AND ONE HALF THE REGULAR RATE FOR EIGHT HOURS EXCESS OVERTIME WORK ON THOSE DAYS--- NOT 16 HOURS AS STATED IN YOUR LETTER--- ($7.50), A TOTAL OF $19.6666 FOR THE TWO DAYS ($10 PLUS $2.16666 PLUS $7.50).

REFERRING TO QUESTION 2A, THE ABOVE-STATED FORMULA WOULD BE FOR APPLICATION, THAT IS, THE EMPLOYEE WOULD BE ENTITLED TO HIS REGULAR RATE OF COMPENSATION, PLUS PRO RATA OVERTIME FOR THE DAYS OF THE WEEK ON WHICH HE WAS ON A PAY STATUS, PLUS OVERTIME COMPENSATION, AT THE RATE OF TIME AND ONE-HALF FOR THE 12 HOURS EXCESS OVERTIME (IN EXCESS OF 48 HOURS PER WEEK).

IN VIEW OF THE ANSWER TO QUESTIONS 1 AND 2A, NO ANSWER IS REQUIRED TO QUESTION 2B.