B-33530, APRIL 12, 1943, 22 COMP. GEN. 953

B-33530: Apr 12, 1943

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ARE APPLICABLE TO ANY INCREASED COMPENSATION ON AN OVERTIME BASIS PAID PURSUANT TO THE SAID ACT. REGARDLESS OF WHETHER THE INCREASED COMPENSATION IS THE PRORATED OVERTIME COMPENSATION FOR WORK DURING THE REGULARLY ESTABLISHED WORKWEEK OR EXTRA OVERTIME AT THE RATE OF TIME AND ONE-HALF FOR WORK IN ADDITION TO THE REGULAR WORKWEEK. IS TO BE REGARDED AS THE PROPER BASIS FOR APPLYING THE $5. 1943: I HAVE YOUR LETTER OF MARCH 30. IT IS NOTED THAT SECTION 3 OF THE REGULATIONS AUTHORIZING PRORATING ON AN ANNUAL BASIS OF INCREASED COMPENSATION IS SPECIFICALLY LIMITED TO EMPLOYMENT DURING AN OFFICIALLY ESTABLISHED REGULAR WORK WEEK IN EXCESS OF 40 HOURS. IT THUS APPEARS THAT AN EMPLOYEE IN A PAY STATUS IS ENTITLED TO (1) THE REGULAR RATE OF COMPENSATION AND (2) PRO RATA OVERTIME FOR THE REGULAR WORK WEEK.

B-33530, APRIL 12, 1943, 22 COMP. GEN. 953

OVERTIME COMPENSATION UNDER ACT OF DECEMBER 22, 1942 - APPLICATION OF CEILING RATES THE SALARY RATE LIMITATIONS OF $2,900 AND $5,000 PER ANNUM PRESCRIBED BY THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, ARE APPLICABLE TO ANY INCREASED COMPENSATION ON AN OVERTIME BASIS PAID PURSUANT TO THE SAID ACT, REGARDLESS OF WHETHER THE INCREASED COMPENSATION IS THE PRORATED OVERTIME COMPENSATION FOR WORK DURING THE REGULARLY ESTABLISHED WORKWEEK OR EXTRA OVERTIME AT THE RATE OF TIME AND ONE-HALF FOR WORK IN ADDITION TO THE REGULAR WORKWEEK. THE DAY, RATHER THAN THE WEEK OR PAY PERIOD, IS TO BE REGARDED AS THE PROPER BASIS FOR APPLYING THE $5,000 PER ANNUM SALARY RATE LIMITATION PRESCRIBED BY THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, TO FULL TIME EMPLOYEES PAID ON A TIME BASIS, SO THAT INCREASED COMPENSATION ON AN OVERTIME BASIS--- WHETHER PRORATED OVERTIME FOR WORK DURING THE REGULARLY ESTABLISHED WORKWEEK OR EXTRA OVERTIME ON AN ACTUAL BASIS FOR WORK IN ADDITION TO SUCH REGULAR WORKWEEK--- MAY NOT BE PAID TO SUCH AN EMPLOYEE TO AN EXTENT THAT WOULD INCREASE HIS AGGREGATE COMPENSATION TO MORE THAN $13.88 (1/360 OF $5,000) FOR ANY ONE DAY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, APRIL 12, 1943:

I HAVE YOUR LETTER OF MARCH 30, 1943, AS FOLLOWS:

EXECUTIVE ORDER NO. 9289, DATED DECEMBER 29, 1942, PRESCRIBES GENERAL REGULATIONS IN CONNECTION WITH THE ADMINISTRATION OF THE OVERTIME COMPENSATION PROVISIONS OF PUBLIC LAW 821--- 77TH CONGRESS, APPROVED DECEMBER 22, 1942.

IT IS NOTED THAT SECTION 3 OF THE REGULATIONS AUTHORIZING PRORATING ON AN ANNUAL BASIS OF INCREASED COMPENSATION IS SPECIFICALLY LIMITED TO EMPLOYMENT DURING AN OFFICIALLY ESTABLISHED REGULAR WORK WEEK IN EXCESS OF 40 HOURS.

ALSO, THAT SECTION 2 OF THE REGULATIONS AUTHORIZES PAYMENT OF INCREASED COMPENSATION FOR ORDERED OR APPROVED EMPLOYMENT BEYOND THE OFFICIALLY ESTABLISHED REGULAR WORK WEEK, AND THAT SUCH INCREASED COMPENSATION MAY NOT BE PRORATED ON AN ANNUAL BASIS BUT SHOULD BE PAID FOR AT THE RATE OF TIME AND ONE-HALF THE REGULAR RATE FOR THE ACTUAL NUMBER OF HOURS WORKED IN EXCESS OF THE OFFICIALLY ESTABLISHED REGULAR WORK WEEK.

IT THUS APPEARS THAT AN EMPLOYEE IN A PAY STATUS IS ENTITLED TO (1) THE REGULAR RATE OF COMPENSATION AND (2) PRO RATA OVERTIME FOR THE REGULAR WORK WEEK, PURSUANT TO SECTION 3, PLUS (3) OVERTIME COMPENSATION AT THE RATE OF TIME AND ONE-HALF FOR EXCESS OVERTIME (HOURS IN EXCESS OF THE REGULAR WORK WEEK) PURSUANT TO SECTION 2, SUBJECT TO SALARY LIMITATIONS AND CEILING RATES OF $2,900 AND $5,000 PER ANNUM.

HOWEVER, SALARY LIMITATIONS AND CEILING RATES ARE CONSTRUED TO OPERATE SO THAT NO INCREASED COMPENSATION IS PAYABLE TO THE EXTENT THAT WOULD INCREASE TOTAL COMPENSATION PAID ON A TIME BASIS TO MORE THAN 1/360 OF THE PER ANNUM RATE FOR ANY ONE DAY (VARIOUSLY STATED AS NOT TO EXCEED $8.05 ( 1/360 OF $2,900) PROVIDED THE ADDITIONAL COMPENSATION DOES NOT EXCEED THE DAILY RATE OF $13.88 ( 1/360 OF $5,000); AND AS $208.33 FOR A SEMIMONTHLY PAY PERIOD, ( 15/360 OF $5,000). (COMP. GEN. DEC. B-31488, FEBRUARY 11, 1943).

SPECIFICALLY, IF OVERTIME COMPENSATION UNDER SECTION 2 OF THE PRESIDENT'S REGULATIONS IS PAID FOR THE ACTUAL NUMBER OF HOURS WORKED IN EXCESS OF THE OFFICIALLY ESTABLISHED REGULAR WORK WEEK--- AS DISTINGUISHED FROM OVERTIME COMPENSATION PAID FOR WORK DURING THE REGULAR WORK WEEK--- DOES SUCH COMPENSATION BECOME PART OF THE ADDITIONAL COMPENSATION FOR THE DAY ON WHICH THE EXCESS OVERTIME WAS ACCUMULATED (IN WHICH CASE THAT DAY'S COMPENSATION WOULD BE RESTRICTED TO COMPENSATION WHICH DOES NOT EXCEED THE DAILY RATE OF $13.88) OR THE OFFICIALLY ESTABLISHED REGULAR WORK WEEK (IN WHICH CASE THE SALARY LIMITATION AND CEILING RATE FOR THE WEEK WOULD APPLY RATHER THAN THE $13.88 DAILY LIMITATION) OR THE REGULARLY ESTABLISHED PAY ROLL PERIOD (IN WHICH CASE THE SALARY LIMITATION AND CEILING RATE OF $208.33 OR $416.66, AS APPROPRIATE, WOULD APPLY/?

YOUR CONSIDERATION OF THIS QUESTION WILL BE APPRECIATED.

THE JOINT RESOLUTION OF DECEMBER 22, 1942, 56 STAT. 1068, PUBLIC LAW 821, PROVIDES THAT INCREASED COMPENSATION ON AN OVERTIME BASIS---

* * * SHALL BE PAYABLE ONLY ON THAT PART OF AN EMPLOYEE'S BASIC COMPENSATION NOT IN EXCESS OF $2,900 PER ANNUM, AND EACH SUCH EMPLOYEE SHALL BE PAID ONLY SUCH OVERTIME COMPENSATION OR PORTION THEREOF AS WILL NOT CAUSE HIS AGGREGATE COMPENSATION TO EXCEED A RATE OF $5,000 PER ANNUM:

OF COURSE, AS YOU STATE, THE CEILING PER ANNUM RATES OF $2,900 AND $5,000 PER ANNUM ARE APPLICABLE TO ANY INCREASED COMPENSATION ON AN OVERTIME BASIS PAID PURSUANT TO THE JOINT RESOLUTION IN WHICH THE LIMITATIONS APPEAR, WHETHER THE INCREASED COMPENSATION IS THE REGULAR PRORATED OVERTIME ON A 48-HOUR WEEK BASIS OR EXTRA OVERTIME AT THE RATE OF TIME AND ONE-HALF FOR WORK IN EXCESS OF 48 HOURS PER WEEK.

IN THE DECISION OF FEBRUARY 11, 1943, B-31488, 22 COMP. GEN. 791, TO THE POSTMASTER GENERAL, TO WHICH YOU REFER, IT WAS STATED:

* * * HOWEVER, FOR THE PURPOSE OF COMPUTING THE INCREASED COMPENSATION EITHER ON AN OVERTIME BASIS OR A 10 PERCENT BASIS UNDER THE JOINT RESOLUTION OF DECEMBER 22, 1942, ONE DAY'S COMPENSATION IS REQUIRED BY THE STATUTES EXTENDED BY THAT RESOLUTION TO BE CONSIDERED AS 1/360, NOT 1/365, OF A BASIC PER ANNUM SALARY. ALSO, THE SAME DIVISOR IS REQUIRED TO BE USED IN COMPUTING THE SALARY LIMITATION AT THE RATE OF $5,000 PER ANNUM FOR ONE DAY OR FOR A PAY PERIOD FOR EMPLOYEES WHO ARE PAID COMPENSATION ON A PER ANNUM BASIS EITHER FOR FULL TIME OR PART TIME. SEE DECISION OF JANUARY 2, 1943, B-31316, TO THE ARCHITECT OF THE CAPITOL, WHEREIN IT WAS STATED:

"* * * OF COURSE, THE SALARY LIMITATION OR CEILING RATES ON A DAILY BASIS FOR EMPLOYEES WHO ARE PAID ON A PER ANNUM BASIS FOR PART TIME OR INTERMITTENT SERVICE WOULD BE COMPUTED BY DIVIDING $2,900 AND $5,000 PER ANNUM BY 360. ON THAT BASIS THE SALARY LIMITATION OR CEILING RATE OF $2,900 PER ANNUM FOR ONE DAY WOULD BE $8.05 AND THE SALARY LIMITATION OR CEILING RATE OF $5,000 PER ANNUM FOR ONE DAY WOULD BE $13.88. SEE SALARY TABLES. THE 10 PERCENTUM WOULD BE COMPUTED ON THAT PART OF THE DAILY RATE FOR SUCH EMPLOYEES NOT TO EXCEED $8.05, PROVIDED THE ADDITIONAL COMPENSATION DOES NOT EXCEED THE DAILY RATE OF $13.88.' COMPARE DECISION OF JANUARY 30, 1943, B-31873, 22 COMP. GEN. 720, STATING THE BASIS FOR APPLYING THE CEILING RATES TO COMPENSATION PAID ON A FEE BASIS--- THAT IS, OTHER THAN ON A TIME BASIS.

WHILE THE STATUTE IS NOT ENTIRELY CLEAR IN REGARD TO THE MATTER PRESENTED, IT APPEARS REASONABLE TO CONCLUDE THAT SINCE THE CEILING RATE OF $5,000 PER ANNUM IS ON A RATE TIME BASIS ("RATE OF $5,000 PER ANNUM") AND SINCE THE INCREASED COMPENSATION ON AN OVERTIME BASIS IS PAYABLE ONLY TO FULL-TIME EMPLOYEES PAID ON A TIME BASIS, THE DAY SHOULD BE REGARDED AS THE PROPER BASIS FOR APPLYING THE CEILING RATE OF $5,000 PER ANNUM. THAT IS TO SAY, NO INCREASED COMPENSATION ON AN OVERTIME BASIS, WHETHER REGULAR, PRORATED, OR ON AN ACTUAL BASIS FOR ADDITIONAL OVERTIME, MAY BE MADE TO ANY EMPLOYEE TO AN EXTENT THAT WOULD INCREASE HIS AGGREGATE COMPENSATION TO MORE THAN $13.88 FOR ANY ONE DAY, WHICH SUM REPRESENTS THE DAILY LIMITATION OF 1/360 OF $5,000 PER ANNUM.