B-34644, MAY 29, 1943, 22 COMP. GEN. 1055

B-34644: May 29, 1943

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COMPENSATION - OVERTIME AND ADDITIONAL - EMPLOYEES WHOSE HOURS OF WORK ARE GOVERNED BY THOSE OF PRIVATE ESTABLISHMENTS IN THE CASE OF EMPLOYEES WHOSE HOURS OF WORK ARE GOVERNED BY THOSE OF PRIVATE ESTABLISHMENTS WHICH THEY SERVE. IT IS THE DUTY AND RESPONSIBILITY OF THE UNITED STATES CIVIL SERVICE COMMISSION UNDER THE WAR OVERTIME PAY ACT OF 1943. TO DETERMINE WHETHER OVERTIME WORK SCHEDULES ARE FEASIBLE FOR SUCH EMPLOYEES. THE QUESTION OF WHETHER THEY ARE ENTITLED TO OVERTIME COMPENSATION UNDER THE FORMULA PRESCRIBED IN SECTIONS 2 AND 3 (B) OF THE ACT OR TO ADDITIONAL COMPENSATION. UNDER THE FORMULA PRESCRIBED IN SECTION 3 (A) IS DEPENDENT UPON THE COMMISSION'S DETERMINATION AS TO THE FEASIBILITY OF OVERTIME SCHEDULES FOR SUCH EMPLOYEES.

B-34644, MAY 29, 1943, 22 COMP. GEN. 1055

COMPENSATION - OVERTIME AND ADDITIONAL - EMPLOYEES WHOSE HOURS OF WORK ARE GOVERNED BY THOSE OF PRIVATE ESTABLISHMENTS IN THE CASE OF EMPLOYEES WHOSE HOURS OF WORK ARE GOVERNED BY THOSE OF PRIVATE ESTABLISHMENTS WHICH THEY SERVE, IT IS THE DUTY AND RESPONSIBILITY OF THE UNITED STATES CIVIL SERVICE COMMISSION UNDER THE WAR OVERTIME PAY ACT OF 1943, TO DETERMINE WHETHER OVERTIME WORK SCHEDULES ARE FEASIBLE FOR SUCH EMPLOYEES, AND THE QUESTION OF WHETHER THEY ARE ENTITLED TO OVERTIME COMPENSATION UNDER THE FORMULA PRESCRIBED IN SECTIONS 2 AND 3 (B) OF THE ACT OR TO ADDITIONAL COMPENSATION, IN LIEU OF OVERTIME COMPENSATION, UNDER THE FORMULA PRESCRIBED IN SECTION 3 (A) IS DEPENDENT UPON THE COMMISSION'S DETERMINATION AS TO THE FEASIBILITY OF OVERTIME SCHEDULES FOR SUCH EMPLOYEES. THE DETERMINATION OF THE UNITED STATES CIVIL SERVICE COMMISSION, FOR THE PURPOSE OF PAYMENT OF OVERTIME OR ADDITIONAL COMPENSATION UNDER THE WAR OVERTIME PAY ACT OF 1943, AS TO WHETHER OVERTIME WORK SCHEDULES ARE FEASIBLE FOR EMPLOYEES OF THE BUREAU OF CUSTOMS, TREASURY DEPARTMENT, WHOSE HOURS OF WORK ARE GOVERNED BY THOSE OF PRIVATE WAREHOUSES IN WHICH THEY SERVE, MAY BE MADE WITH REGARD TO THE EMPLOYEES WORKING IN A PARTICULAR WAREHOUSE OR FOR THE ENTIRE SERVICE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, MAY 29, 1943:

I HAVE YOUR LETTER OF MAY 18, 1943, AS FOLLOWS:

WITH RESPECT TO THE APPLICATION OF THE PROVISIONS OF PUBLIC LAW 49 - 78TH CONGRESS, RELATING TO OVERTIME PAY AND ADDITIONAL COMPENSATION FOR FEDERAL EMPLOYEES, YOUR DECISION IS REQUESTED AS TO WHETHER CERTAIN STOREKEEPERS IN THE FIELD SERVICE OF THE BUREAU OF CUSTOMS, WHO WORK ON THE BASIS OF 44 HOURS A WEEK AND WHO ARE COMPENSATED AT $2100 OR MORE PER ANNUM, SHALL BE PAID UNDER THE PROVISIONS OF (A) SEC. 2, WHICH PROVIDES FOR OVERTIME PAY AT THE RATE OF ONE AND ONE HALF TIMES THE REGULAR EARNED BASIC RATE OF COMPENSATION FOR EMPLOYMENT IN EXCESS OF 40 HOURS, OR (B) SEC. 3 (A), WHICH PROVIDES FOR ADDITIONAL COMPENSATION (IN LIEU OF OVERTIME COMPENSATION) AT THE RATE OF 15 PERCENTUM OF SO MUCH OF THE EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF THE RATE OF $2900 PER ANNUM, OR (C) SEC. 3 (B), WHICH PROVIDES FOR THE PAYMENT OF ADDITIONAL COMPENSATION AT THE RATE OF $300 PER ANNUM IN LIEU OF OVERTIME COMPENSATION, IF THE OVERTIME COMPENSATION PAYABLE UNDER SEC. 2 IS NOT AT LEAST EQUAL TO $300 PER ANNUM.

WHILE THE GENERAL ADMINISTRATIVE WORKWEEK FOR FULL-TIME EMPLOYEES OF THE TREASURY DEPARTMENT IS 48 HOURS A WEEK, THE HOURS OF WORK OF FULL TIME STOREKEEPERS IN THE FIELD SERVICE OF THE BUREAU OF CUSTOMS ARE GOVERNED BY THE WORKING HOURS OF PRIVATE WAREHOUSES IN WHICH THEY SERVE. WHERE THE WAREHOUSES OPERATE ON THE BASIS OF FORTY HOURS A WEEK, IT NECESSARILY FOLLOWS THAT THE STOREKEEPERS WORK 40 HOURS A WEEK, SINCE WORK IN EXCESS OF THAT NUMBER OF HOURS IS NOT FEASIBLE. LIKEWISE, WHERE WAREHOUSES OPERATE ON A 44-HOUR BASIS OR ON A 48-HOUR BASIS, THE WORKING HOURS OF THE STOREKEEPERS CORRESPOND TO THOSE OF THE WAREHOUSE.

UNDER THE ABOVE CIRCUMSTANCES, IT IS ASSUMED THAT A STOREKEEPER, WHO WORKS 40 HOURS A WEEK AND WHOSE RATE OF COMPENSATION IS $2400 PER ANNUM, IS ENTITLED TO ADDITIONAL COMPENSATION (IN LIEU OF OVERTIME) AT THE RATE OF 15 PERCENTUM OF HIS EARNED BASIC COMPENSATION. IT IS ASSUMED, ALSO, THAT A STOREKEEPER WHO REGULARLY WORKS 48 HOURS A WEEK AND WHOSE RATE OF COMPENSATION IS $2400 PER ANNUM IS ENTITLED TO OVERTIME COMPENSATION AT THE RATE OF ONE AND ONE-HALF TIMES HIS PER ANNUM RATE OF PAY FOR THE 8 HOURS WORKED IN EXCESS OF 40 HOURS. FOR THOSE STOREKEEPERS WHO REGULARLY WORK 44 HOURS A WEEK AND WHOSE RATE OF COMPENSATION IS $2400 PER ANNUM, AS WELL AS FOR THOSE STOREKEEPERS WHO ARE COMPENSATED AT THE RATE OF $2400 PER ANNUM AND WHO NOW WORK 40 HOURS OR 48 HOURS A WEEK AND WHOSE WORKING TIME MAY BE ADJUSTED IN THE FUTURE TO 44 HOURS A WEEK, THIS DEPARTMENT REQUESTS YOUR ADVICE AS TO WHETHER THEY SHOULD BE PAID OVERTIME COMPENSATION FOR THE 4 HOURS IN EXCESS OF 40 HOURS, OR WHETHER THEY SHOULD BE PAID ADDITIONAL COMPENSATION AT THE RATE OF 15 PERCENTUM OF EARNED BASIC COMPENSATION, OR WHETHER THEY SHOULD BE PAID ADDITIONAL COMPENSATION AT THE RATE OF $300 PER ANNUM IN LIEU OF OVERTIME PAY WHICH DOES NOT AMOUNT TO AT LEAST $300 PER ANNUM.

YOUR ATTENTION IS INVITED TO THE FACT THAT A STOREKEEPER RECEIVING EARNED BASIC COMPENSATION AT THE RATE OF $2400 PER ANNUM WOULD RECEIVE THE SAME AGGREGATE RATE OF PAY, REGARDLESS OF WHETHER HE WORKED 40 HOURS OR 44 HOURS, IF IT IS HELD THAT THE PAY FOR STOREKEEPERS ON A 44 HOUR WORKWEEK MUST BE COMPUTED UNDER THE PROVISIONS OF SEC. 3 (A). ON THE OTHER HAND, A STOREKEEPER RECEIVING EARNED BASIC COMPENSATION AT THE RATE OF $2400 PER ANNUM AND WORKING 44 HOURS A WEEK WOULD RECEIVE LESS PAY THAN A STOREKEEPER RECEIVING THE SAME RATE OF EARNED BASIC COMPENSATION AND WORKING 40 HOURS A WEEK, IF IT IS HELD THAT THE PAY OF THE FORMER MUST BE COMPUTED UNDER THE PROVISIONS OF SEC. 2 OR UNDER THE PROVISIONS OF SEC. 3 (B).

YOUR ADVICE IS ALSO REQUESTED WITH RESPECT TO THE FACTORS ENTERING INTO COMPUTATION OF PAY FOR PART-TIME EMPLOYEES. UNDER THE PROVISIONS OF PUBLIC LAW 821 AND APPLICABLE RULINGS OF THE COMPTROLLER GENERAL, THE BASE PAY PER ANNUM OF PART-TIME EMPLOYEES WITH A REGULAR TOUR OF DUTY WAS DETERMINED BY DIVIDING THE NUMBER OF HOURS OF THE WEEKLY TOUR OF DUTY OF THE PART-TIME EMPLOYEE BY THE NUMBER OF HOURS IN THE FULL TIME ADMINISTRATIVE WORKWEEK OF THE EMPLOYING DEPARTMENT OR AGENCY AT THE TIME OF THE ENACTMENT OF PUBLIC LAW 821, AND MULTIPLYING THE QUOTIENT BY THE PER ANNUM RATE FOR FULL TIME EMPLOYMENT. FOR EXAMPLE, THE BASE PAY OF A $1440 PER ANNUM EMPLOYEE EMPLOYED 33 HOURS A WEEK IN THIS DEPARTMENT, WHICH HAD AN ADMINISTRATIVE WORKWEEK OF 44 HOURS AT THE TIME PUBLIC LAW 821 WAS ENACTED, WAS COMPUTED AS FOLLOWS:

33

-- TIMES $1440 EQUALS $1080

44

SEC. 9 OF PUBLIC LAW 49 AUTHORIZES AND DIRECTS THE CIVIL SERVICE COMMISSION TO PROMULGATE RULES AND REGULATIONS DEEMED NECESSARY AND APPROPRIATE TO THE ADMINISTRATION OF THE PROVISIONS OF THE LAW. DEPARTMENTAL CIRCULAR NO. 424, DATED MAY 8, 1943, ISSUED PURSUANT TO SEC. 9 OF PUBLIC LAW 49, THE COMMISSION DEFINED THE ADMINISTRATIVE WORKWEEK FOR FULL-TIME EMPLOYEES AS FOLLOWS:

"THE ADMINISTRATIVE WORKWEEK FOR EACH GROUP OF FULL-TIME EMPLOYEES SHALL BE THE MINIMUM NUMBER OF HOURS OF WORK PER WEEK SPECIFIED BY THE GENERAL PUBLIC REGULATIONS ISSUED BY THE HEAD OF A DEPARTMENT OR INDEPENDENT ESTABLISHMENT PURSUANT TO SECTION 2 OF THE ACT OF MARCH 14, 1936, 49 STAT. 1161, 5 U.S.C. 29A, AND IN ACCORDANCE WITH APPLICABLE CIRCULARS OF THE BUREAU OF THE DGET.'

THE QUESTION ARISES IN THIS DEPARTMENT, WHICH IS NOW ON A 48-HOUR WORKWEEK BASIS, AS TO WHETHER THE NUMBER OF HOURS OF THE WEEKLY TOUR OF DUTY OF PART-TIME EMPLOYEES SHOULD BE DIVIDED BY 48 RATHER THAN 44, AND YOUR DECISION IN THIS MATTER IS REQUESTED. IF IT IS HELD THAT THE DIVISOR SHOULD BE 48, YOUR DECISION IS REQUESTED AS TO WHETHER THAT FIGURE MUST BE USED IN COMPUTING THE PAY OF PART-TIME EMPLOYEES APPOINTED PRIOR TO MAY 1, 1943 (THE EFFECTIVE DATE OF PUBLIC LAW 49), AS WELL AS THE PART-TIME EMPLOYEES APPOINTED ON OR AFTER MAY 1, 1943.

SECTION 3 (A) AND (B) OF THE ACT OF MAY 7, 1943, 57 STAT. 76, PUBLIC LAW 49, PROVIDES, IN PERTINENT PART---

(A) EXCEPT AS PROVIDED IN SUBSECTION (C), OFFICERS AND EMPLOYEES TO WHOM THIS ACT APPLIES AND WHOSE HOURS OF DUTY ARE INTERMITTENT OR IRREGULAR * * * AND, SUBJECT TO THE APPROVAL OF THE CIVIL SERVICE COMMISSION, OFFICERS AND EMPLOYEES WHOSE HOURS OF WORK ARE GOVERNED BY THOSE OF PRIVATE ESTABLISHMENTS WHICH THEY SERVE AND FOR WHOM ON THIS ACCOUNT OVERTIME WORK SCHEDULES ARE NOT FEASIBLE, SHALL BE PAID, IN LIEU OF THE OVERTIME COMPENSATION AUTHORIZED UNDER SECTION 2 OF THIS ACT, ADDITIONAL COMPENSATION AT THE RATE OF (1) $300 PER ANNUM IF THEIR EARNED BASIC COMPENSATION IS AT A RATE OF LESS THAN $2,000 PER ANNUM, OR (2) 15 PERCENTUM OF SO MUCH OF THEIR EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF A RATE OF $2,900 PER ANNUM IF THEIR EARNED BASIC COMPENSATION IS AT A RATE OF $2,000 PER ANNUM OR MORE.

(B) ANY OFFICER OR EMPLOYEE TO WHOM THIS ACT APPLIES AND WHO IS ENTITLED TO NO ADDITIONAL COMPENSATION UNDER SUBSECTION (A) OR SUBSECTION (C) FOR A PAY PERIOD, SHALL BE PAID FOR SUCH PAY PERIOD, IN LIEU OF OVERTIME COMPENSATION UNDER SECTION 2, ADDITIONAL COMPENSATION AT THE RATE OF $300 PER ANNUM, UNLESS HIS OVERTIME COMPENSATION UNDER SECTION 2 FOR SUCH PAY PERIOD IS AT LEAST EQUAL TO SUCH ADDITIONAL COMPENSATION. SEE, ALSO, SECTION 2, PART IV, OF THE CIVIL SERVICE REGULATIONS, DEPARTMENTAL CIRCULAR NO. 424.

YOU STATE IN THE SECOND PARAGRAPH OF YOUR LETTER THAT "THE HOURS OF WORK OF FULL-TIME STOREKEEPERS IN THE FIELD SERVICE OF THE BUREAU OF CUSTOMS ARE GOVERNED BY THE WORKING HOURS OF PRIVATE WAREHOUSES IN WHICH THEY SERVE.' ACCORDINGLY, THE UNITED STATES CIVIL SERVICE COMMISSION HAS THE DUTY AND RESPONSIBILITY OF DETERMINING WHETHER OVERTIME SCHEDULES ARE OR ARE NOT FEASIBLE FOR SUCH EMPLOYEES, THAT IS, WHETHER THEIR INCREASED COMPENSATION IS FOR COMPUTING PURSUANT TO THE OVERTIME FORMULA (SECTION 2 OF THE STATUTE), OR PURSUANT TO THE FORMULA PRESCRIBED IN SECTION 3 (A) OF THE STATUTE. SHOULD THE COMMISSION DETERMINE THAT OVERTIME SCHEDULES ARE FEASIBLE FOR STOREKEEPERS IN THE CUSTOMS SERVICE, THEN THE OVERTIME FORMULA PRESCRIBED IN SECTION 2 AND SECTION 3 (B) WOULD BE APPLICABLE, BUT ON THE OTHER HAND, IF THE COMMISSION SHOULD DETERMINE THAT OVERTIME SCHEDULES ARE NOT FEASIBLE, THEN THE FORMULA PRESCRIBED IN SECTION 3 (A) OF THE REGULATIONS WOULD BE APPLICABLE TO SUCH EMPLOYEES. IN EITHER EVENT AN EMPLOYEE IS GUARANTEED $300 PER ANNUM MINIMUM INCREASE IN COMPENSATION UNDER THE LAW SUBJECT TO THE LIMITATION PRESCRIBED IN SECTION 3 (D) OF THE STATUTE. THE DETERMINATION OF THE COMMISSION MAY BE MADE WITH REGARD TO THE EMPLOYEES WORKING IN ANY PARTICULAR WAREHOUSE OR FOR THE ENTIRE SERVICE.

QUESTIONS SIMILAR TO THOSE CONTAINED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER REGARDING PART-TIME EMPLOYEES WERE ANSWERED IN DECISION OF MAY 17, 1943, B-34459, 22 COMP. GEN. 1043, TO THE SECRETARY OF WAR, A COPY OF WHICH IS ENCLOSED. WHAT WAS THERE HELD IN RESPECT OF THE METHOD OF COMPUTING OVERTIME COMPENSATION UNDER THE NEW LAW TO PART TIME EMPLOYEES APPLIES WITH EQUAL FORCE TO THE SITUATION HERE PRESENTED.