B-32442, MARCH 1, 1943, 22 COMP. GEN. 851

B-32442, MARCH 1, 1943, 22 COMP. GEN. 851

OVERTIME AND ADDITIONAL COMPENSATION UNDER ACT OF DECEMBER 22, 1942 - "WHEN ACTUALLY EMPLOYED" EMPLOYEES UNCLASSIFIED SKILLED AND UNSKILLED EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE EMPLOYED ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS FOR WHOM THERE HAS NOT BEEN ADOPTED ADMINISTRATIVELY A WAGE BOARD PROCEDURE IN FIXING THEIR WAGE RATES, ALTHOUGH THEIR WAGES ARE ADJUSTED ADMINISTRATIVELY FROM TIME TO TIME TO BRING THEM IN LINE WITH THOSE PREVAILING IN THE VICINITY, ARE NOT EXCLUDED FROM THE BENEFITS OF THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, BY THE PROVISION THEREOF WHICH EXCLUDES EMPLOYEES WHOSE WAGES ARE FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING WAGE RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY. "WHEN ACTUALLY EMPLOYED" EMPLOYEES WHO ARE PAID ON A TIME BASIS AND REGULARLY WORK FULL TIME, OR ARE REQUIRED TO BE AVAILABLE FOR DUTY FULL TIME, ARE ENTITLED TO INCREASED COMPENSATION UNDER THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, ON THE BASIS OF THE OVERTIME FORMULA PRESCRIBED THEREIN, BUT IF SUCH EMPLOYEES ARE REQUIRED TO WORK, OR TO BE AVAILABLE FOR DUTY, ONLY IRREGULARLY, INTERMITTENTLY, OR LESS THAN FULL TIME, THEY ARE PART TIME EMPLOYEES AND, AS SUCH, ENTITLED TO INCREASED COMPENSATION ON A 10 PERCENT BASIS UNDER THE SAID ACT.

COMPTROLLER GENERAL WARREN TO J. H. BEATTIE, DEPARTMENT OF AGRICULTURE, MARCH 1, 1943:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 11, 1943, AS FOLLOWS:

THERE IS SUBMITTED HEREWITH FOR YOUR DECISION AS TO VALIDITY OF PAYMENT, A SUPPLEMENTAL PAYROLL COVERING THE PAYMENT OF DECEMBER OVERTIME, IN ACCORDANCE WITH PUBLIC LAW 821, 77TH CONGRESS AND EXECUTIVE ORDER 9289 DATED DECEMBER 26, 1942, OF CERTAIN EMPLOYEES EMPLOYED UNDER LETTER OF AUTHORIZATION AND PAID SOLELY ON A DAILY BASIS.

SUBDIVISION (A) OF THE SECOND PROVISO OF SECTION 1 OF THE ACT EXCEPTS FROM THE EXTENSION TO PAY OVERTIME COMPENSATION "THOSE (EMPLOYEES) WHOSE WAGES ARE FIXED ON A DAILY OR HOURLY BASIS AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE.' YOUR DECISION B-31430 OF JANUARY 4, 1943, AND OTHER DECISIONS, MAKE IT CLEAR THAT THIS EXCEPTION WAS INTENDED TO APPLY GENERALLY UNDER THE STATUTE.

THE DEPARTMENT OF AGRICULTURE, SO FAR AS I KNOW, HAS NO FORMALLY CREATED WAGE BOARD OR WAGE FIXING PROCEDURE SET UP FOR THE DEPARTMENT. THE BUREAUS ARE FREE TO ESTABLISH THE WAGE RATES OF UNALLOCATED EMPLOYEES IN THEIR OWN WAY SUBJECT TO A GENERAL ANNOUNCED POLICY OF A MINIMUM WAGE OF THIRTY CENTS AN HOUR. HOWEVER, IN THE CASE OF THE EMPLOYEES HERE INVOLVED, THE BUREAU PRACTICE IS TO BE ALERT FOR CHANGES AND FLUCTUATIONS IN THE PREVAILING RATES OF WAGES FOR THE TYPES OF WORK INVOLVED, AND TO HAVE ADMINISTRATIVE OFFICIALS CONCERNED MEET ON OCCASIONS WHEN CHANGES SEEM TO BE DEMANDED AND DETERMINE WHAT CHANGES SHOULD BE MADE TO MAKE THE RATES PAID FALL IN LINE WITH THE PREVAILING RATE, ALL OTHER THINGS CONSIDERED.

THE EMPLOYEES IN QUESTION ARE SKILLED AND UNSKILLED LABORERS EMPLOYED AT BELTSVILLE IN CONNECTION WITH THE REMOVAL OF ARLINGTON FARM AND PAID ON A DAILY "WHEN ACTUALLY EMPLOYED" BASIS. THE DAILY WAGE OF THESE EMPLOYEES, AS WELL AS THE DAILY WAGE OF ALL OF OUR UNCLASSIFIED EMPLOYEES PAID ON A DAILY BASIS WHEN ACTUALLY EMPLOYED, HAS BEEN ADJUSTED FROM TIME TO TIME IN ORDER TO PAY THE PREVAILING WAGE FOR LIKE WORK IN THE LOCALITY IN WHICH THE EMPLOYEES WORK. HAD THIS NOT BEEN DONE IT WOULD HAVE BEEN IMPOSSIBLE TO GET, OR KEEP, NECESSARY SKILLED AND UNSKILLED LABORERS AT BELTSVILLE, OR AT OTHER FIELD STATIONS. BELOW ARE SHOWN THE DAILY RATES PAID THESE EMPLOYEES AT THE BEGINNING OF THE WORK IN MAY 1941, THE DAILY RATE PAID IN JANUARY 1942 AND THE DAILY RATE PAID IN JANUARY 1943:

MAY 1 TO 15TH, 1941

PER DAY

UNSKILLED LABORERS --------------------------------------- $3.00

BRICKLAYERS ---------------------------------------------- 8.00

CARPENTERS ----------------------------------------------- 8.00

JANUARY 1 TO 15TH, 1942

UNSKILLED LABORERS --------------------------------------- $4.00

BRICKLAYERS ---------------------------------------------- 8.00

CARPENTERS ----------------------------------------------- 8.00

PAINTERS ------------------------------------------------- 8.00

JANUARY 1 TO 15TH, 1943

UNSKILLED LABORERS --------------------------------------- $ 5.00

BRICKLAYERS ----------------------------------------------10.00

CARPENTERS ----------------------------------------------- 10.00

PAINTERS ------------------------------------------------- 10.00

IT CAN BE SEEN THAT BETWEEN MAY 1941 AND JANUARY 1943 UNSKILLED LABORERS HAVE HAD THEIR DAILY WAGE INCREASED 66 2/3 PERCENT AND SKILLED LABORERS HAVE HAD THEIR DAILY WAGE INCREASED 25 PERCENT. OR, BETWEEN THE PERIOD JANUARY 1, 1942 AND JANUARY 1, 1943 BOTH SKILLED AND UNSKILLED LABORERS HAVE HAD THEIR DAILY WAGE INCREASED 25 PERCENT. TO GRANT THEM OVERTIME OR A FURTHER 10 PERCENT INCREASE IN LIEU THEREOF WOULD RAISE THEIR BASE RATES ABOVE THOSE PREVAILING LOCALLY FOR THE SAME OR SIMILAR CLASS OF WORK.

THE SENATE COMMITTEE ON CIVIL SERVICE IN ITS REPORT NO. 1847, 77TH CONGRESS, STATED IN PART:

"THE JOINT RESOLUTION WILL NOT AFFECT EMPLOYEES WHOSE COMPENSATION IS BASED UPON HOURLY RATES FIXED AND ADJUSTED BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE WAGE-FIXING AUTHORITY, ELECTED OFFICIALS, HEADS OF DEPARTMENTS AND AGENCIES * * *.'

IN COMMENTING ON THE INTENT OF THE CONGRESS YOU STATED IN YOUR DECISION B -31430 OF JANUARY 4, 1943 THAT THE "* * * EVIDENT PURPOSE AND INTENT OF THE CONGRESS (WAS) TO EXCLUDE FROM ANY BENEFITS UNDER THE STATUTE--- BOTH OVERTIME COMPENSATION AND ADDITIONAL COMPENSATION ON A 10 PERCENT BASIS--- ALL EMPLOYEES WHOSE WAGES ARE FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE, REGARDLESS OF THE BASIS UPON WHICH THEIR COMPENSATION IS FIXED, THAT IS, WHETHER ON THE BASIS OF THE HOUR, THE DAY, THE YEAR, OR PIECE WORK.'

IT APPEARS TO BE EVIDENT THAT IT WAS NOT THE INTENT OF THE CONGRESS TO PROVIDE A STATUTORY INCREASE IN COMPENSATION FOR EMPLOYEES WHOSE WAGES HAVE, IN FACT, BEEN ADJUSTED FROM TIME TO TIME IN ORDER TO PAY PREVAILING WAGES. THIS APPARENT INTENT IS QUALIFIED TO SOME EXTENT BY THE PROVISION THAT THE EXCEPTED EMPLOYEES ARE THOSE EMPLOYEES WHOSE WAGES ARE ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES "BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE.'

1. WOULD NOT AN ADMINISTRATIVE OFFICER WITH AUTHORITY TO ADJUST THE DAILY WAGE OF EMPLOYEES ON A "WHEN ACTUALLY EMPLOYED" BASIS BE CONSIDERED, FOR THE PURPOSE OF THIS ACT, A "SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE" (AS A WAGE BOARD/?

2. WOULD NOT THE FACT THAT THE WAGES OF THESE EMPLOYEES HAVE BEEN ADMINISTRATIVELY INCREASED FROM TIME TO TIME (25 PERCENT DURING THE PAST YEAR) BE CONSTRUED TO FULFILL THE INTENT OF CONGRESS THAT THEY HAVE BEEN INCREASED BY AN ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE AS A WAGE BOARD SINCE THE NET RESULT IS THE SAME?

3. IF YOUR ANSWERS ARE IN THE AFFIRMATIVE, WOULD THESE EMPLOYEES BE ENTITLED EITHER TO OVERTIME PAY OR 10 PERCENT IN LIEU OF OVERTIME?

4. IF YOUR ANSWERS ARE IN THE NEGATIVE, WOULD THESE EMPLOYEES BE GRANTED 10 PERCENT IN LIEU OF OVERTIME PAY AND BE PAID STRAIGHT TIME IN THE EVENT THEY ARE CALLED UPON TO WORK IN EXCESS OF FORTY HOURS IN ANY ESTABLISHED WORK WEEK?

5. WOULD YOUR ANSWERS APPLY GENERALLY TO ALL INTERMITTENT OR IRREGULAR EMPLOYEES PAID ON A DAILY BASIS WHEN ACTUALLY EMPLOYED?

THERE IS NOTED PARTICULARLY THE FIRST SENTENCE OF THE THIRD PARAGRAPH OF YOUR LETTER, VIZ., "THE DEPARTMENT OF AGRICULTURE, SO FAR AS I KNOW, HAS NO FORMALLY CREATED WAGE BOARD OR WAGE FIXING PROCEDURE SET UP FOR THE DEPARTMENT.' THAT STATEMENT ACCORDS WITH THE STATEMENT MADE BY THE SECRETARY OF AGRICULTURE IN HIS LETTER OF FEBRUARY 4, 1943, TO THIS OFFICE, AS FOLLOWS:

IN GENERAL, HOWEVER, IT MAY BE SAID THAT THERE DOES NOT EXIST IN THE DEPARTMENT OF AGRICULTURE ANY FORMAL PROCEDURE FOR FIXING WAGES OR ANY ADMINISTRATIVE OFFICER OR BODY WHICH MIGHT BE CONSTRUED TO BE A "WAGE BOARD.' WHILE WAGES WERE ADJUSTED FROM TIME TO TIME BY THE VARIOUS BUREAUS PRIOR TO PROMULGATION OF THE WAGE STABILIZATION POLICY ( EXECUTIVE ORDER NO. 9250), THERE WAS NO CONSISTENT POLICY GOVERNING THE ADJUSTMENTS MADE BY THE VARIOUS BUREAUS, NOR WERE THE ADJUSTMENTS BASED EXCLUSIVELY UPON COMPARISONS WITH LOCAL PREVAILING WAGE RATES. IN MANY INSTANCES, THE MINIMUM WAGE OF 30 CENTS PER HOUR IS MORE THAN THE LOCAL PREVAILING RATE. THE CONDITION OF THE BUDGET, THE EFFICIENCY AND LENGTH OF SERVICE OF THE PARTICULAR EMPLOYEE INVOLVED, THE RATES PAID OTHER EMPLOYEES OCCUPYING CLASSIFIED POSITIONS, AND OTHER ADMINISTRATIVE CONSIDERATIONS GENERALLY ENTERED INTO THE FIXING OF EACH RATE. NONE OF THESE EMPLOYEES HAVE HERETOFORE, RECEIVED OVERTIME COMPENSATION. NO FORMAL PROCEDURE IS PRESCRIBED BY THE DEPARTMENT AND LITTLE IS IN FACT FOLLOWED BY THE BUREAUS.

ON THE BASIS OF THAT STATEMENT IT WAS CONCLUDED IN THE DECISION OF FEBRUARY 13, 1943, B-32283, 22 COMP. GEN. 804, TO THE SECRETARY OF AGRICULTURE, AS FOLLOWS:

BASED UPON THE DETAILED ANALYSIS SET FORTH IN YOUR LETTER AS TO THE ADMINISTRATIVE POLICIES AND PRACTICES CONTROLLING THE FIXING OF THE SALARY RATES OF THE INVOLVED EMPLOYEES, THE CONCLUSION APPEARS JUSTIFIED THAT THE DEPARTMENT OF AGRICULTURE HAS NOT ADOPTED ADMINISTRATIVELY--- AND IS NOT REQUIRED BY LAW TO ADOPT--- A WAGE BOARD PROCEDURE IN FIXING THE COMPENSATION OF THE EMPLOYEES UNDER THE DEPARTMENT. * * *

HENCE, THE QUESTION PRESENTED BY THE SECRETARY OF AGRICULTURE IN THAT DECISION, TO WIT:

* * * SPECIFICALLY, MAY THE DEPARTMENT OF AGRICULTURE EXTEND THE BENEFITS OF PUBLIC LAW 821, 77TH CONGRESS, APPROVED DECEMBER 22, 1942, TO THOSE OF ITS EMPLOYEES WHO OCCUPY POSITIONS THAT ARE EXEMPT FROM THE COMPENSATION SCHEDULES OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND FROM CLASSIFICATION UNDER EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934? WAS ANSWERED IN THE AFFIRMATIVE.

NOTWITHSTANDING THE OTHER STATEMENTS MADE IN YOUR LETTER, THAT HOLDING (WHICH APPLIES WITH EQUAL FORCE HERE) JUSTIFIES THE CONCLUSION THAT THE EMPLOYEES WHOSE NAMES APPEAR ON THE INVOLVED PAY ROLL VOUCHER ARE NOT EXCLUDED FROM THE BENEFITS OF THE JOINT RESOLUTION OF DECEMBER 22, 1942, 56 STAT. 1068; THAT IS TO SAY, THEY ARE NOT WITHIN THE EXCEPTION (A) TO THE SECOND PROVISO OF SECTION 1 THEREOF, QUOTED IN THE SECOND PARAGRAPH OF YOUR LETTER. SEE DECISION OF FEBRUARY 22, 1943, B 32310, TO MR. G. O. LATHEM, AUTHORIZED CERTIFYING OFFICER, SOIL CONSERVATION SERVICE, DEPARTMENT OF AGRICULTURE. ACCORDINGLY, QUESTIONS 1 AND 2 ARE ANSWERED IN THE NEGATIVE.

REFERRING TO QUESTIONS 3, 4, AND 5, IT IS UNDERSTOOD FROM YOUR LETTER, FROM THE PAY ROLL VOUCHER, AND FROM INFORMAL ADVICES FROM THE DEPARTMENT OF AGRICULTURE THAT THE APPOINTMENTS OR CONTRACTS OF EMPLOYMENT OF ALL THE INVOLVED PER DIEM EMPLOYEES CONTAIN THE CONDITION THAT THEY ARE TO BE EMPLOYED AND PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED.'

IN THE DECISION OF FEBRUARY 4, 1943, B-32053, 22 COMP. GEN. 752, TO THE GOVERNOR OF THE PANAMA CANAL, IT WAS STATED:

THERE ARE PROVIDED UNDER THE JOINT RESOLUTION OF DECEMBER 22, 1942, PUBLIC LAW 821, FORMULAS FOR PAYMENT OF TWO SEPARATE AND DISTINCT CLASSES OF INCREASED SALARY PAYMENTS, TO WIT: (1) ,OVERTIME COMPENSATION" AT THE RATE OF TIME AND ONE-HALF THE REGULAR RATE FOR EMPLOYMENT IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK, WHICH IS APPLICABLE TO EMPLOYEES WHO ARE PAID COMPENSATION ON A TIME BASIS AND WHO ARE FULL TIME EMPLOYEES, AND (2) ADDITIONAL COMPENSATION ON A 10 PERCENT BASIS, WHICH IS APPLICABLE TO EMPLOYEES WHO ARE PAID COMPENSATION ON OTHER THAN A TIME BASIS, SUCH AS MILEAGE, FEES, POSTAL RECEIPTS, OR WHO ARE EMPLOYED ON A TIME BASIS BUT WHOSE WORK IS INTERMITTENT, IRREGULAR, OR LESS THAN FULL TIME, THAT IS, PART TIME EMPLOYEES. BOTH CLASSES OF INCREASED SALARY PAYMENTS ARE LIMITED TO THE FIRST $2,900 PER ANNUM OF AN EMPLOYEE'S BASIC COMPENSATION AND NEITHER CLASS OF INCREASED SALARY PAYMENTS MAY BE MADE TO ANY EMPLOYEE TO AN EXTENT THAT WOULD INCREASE HIS TOTAL COMPENSATION TO MORE THAN $5,000 PER ANNUM.

WHETHER, AND IF SO UPON WHAT BASIS, EITHER ONE OF THE TWO FORMULAS FOR INCREASING COMPENSATION MAY APPLY TO PARTICULAR CLASSES OF EMPLOYEES OF THE PANAMA CANAL WOULD DEPEND UPON (1) THE NUMBER OF HOURS WORK THEY ARE REQUIRED TO PERFORM EACH WEEK, (2) THE NATURE AND TENURE OF THEIR EMPLOYMENT, AND (3) THE BASIS UPON WHICH THEY ARE PAID COMPENSATION. WHETHER THE OVERTIME FORMULA WOULD BE APPLICABLE TO SUCH EMPLOYEES IS PRIMARILY FOR YOUR CONSIDERATION IN THE MATTER OF ESTABLISHING OFFICIAL HOURS OF DUTY AND A REGULAR WORKWEEK FOR SUCH EMPLOYMENT PURSUANT TO SECTION 1 OF THE PRESIDENT'S REGULATIONS, EXECUTIVE ORDER NO. 9289, DATED DECEMBER 26, 1942, PROVIDING:

"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.'

HENCE, THE FACT THAT EMPLOYEES ARE EMPLOYED AND PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" IS NOT THE CONTROLLING FACTOR IN DETERMINING WHICH OF THE TWO FORMULAS FOR INCREASING COMPENSATION IS APPLICABLE. THE CONTRARY, IF THEY ARE PAID ON A TIME BASIS AND REGULARLY WORK FULL TIME, OR ARE REQUIRED TO BE AVAILABLE FOR DUTY FULL TIME, THEY ARE ENTITLED TO INCREASED COMPENSATION ON THE ,OVERTIME BASIS.' COMPARE THE DECISIONS OF THIS OFFICE APPLYING THE LEAVE STATUTES AND REGULATIONS AND THE HOLIDAY STATUTE TO "INDEFINITE" EMPLOYEES WHICH INCLUDE EMPLOYEES PAID ON THE BASIS OF ,WHEN ACTUALLY EMPLOYED," VIZ., 16 COMP. GEN. 801; 17 ID. 1017; 18 ID. 400, 457; 20 ID. 411, 827; 21 ID. 764. HOWEVER, IF THEY ARE REQUIRED TO WORK, OR TO BE AVAILABLE FOR DUTY ONLY IRREGULARLY, INTERMITTENTLY, OR LESS THAN FULL TIME, THEY ARE PART-TIME EMPLOYEES AND ENTITLED TO INCREASED COMPENSATION ON A 10 PERCENT BASIS. COMPARE THE DECISIONS OF THIS OFFICE APPLYING THE LEAVE STATUTES AND REGULATIONS AND THE HOLIDAY STATUTE TO PART-TIME OR INTERMITTENT EMPLOYEES, VIZ., 15 COMP. GEN. 1058; 16 ID. 442, 678; 18 ID. 457, 1001. QUESTIONS 3, 4, AND 5, ARE ANSWERED ACCORDINGLY. THE SUPPLEMENTAL PAY ROLL VOUCHER PROPOSING INCREASED COMPENSATION PAYMENTS FOR DECEMBER, 1942, FORWARDED WITH YOUR LETTER, BEARS THE HEADING "THIS PAYROLL COVERS 10 PERCENT ADDITIONAL PAY IN LIEU OF OVERTIME PAY * * *" BUT THE AMOUNTS PROPOSED TO BE PAID TO SOME OF THE EMPLOYEES SUGGEST THAT THEY MAY BE REGULAR FULL-TIME EMPLOYEES AND IF THERE BE ANY OF THAT CLASS THEY WOULD BE ENTITLED TO INCREASED COMPENSATION ON AN OVERTIME BASIS--- NOT THE 10 PERCENT BASIS. THE VOUCHER IS RETURNED HEREWITH AND IT MAY NOT BE CERTIFIED FOR PAYMENT IN THE ABSENCE OF A DEFINITE SHOWING THAT THE INVOLVED EMPLOYEES ARE OF THE CLASS ENTITLING THEM TO INCREASED COMPENSATION ON A 10 PERCENT BASIS.