B-35384, JULY 9, 1943, 23 COMP. GEN. 13

B-35384: Jul 9, 1943

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COMPENSATION - INTERMITTENT EMPLOYEES COMPENSATED AT HOURLY RATES IN THE CASE OF INTERMITTENT EMPLOYEES WHO ARE APPOINTED ON A "WHEN ACTUALLY EMPLOYED" BASIS TO POSITIONS ALLOCATED TO SERVICES AND GRADES PURSUANT TO THE CLASSIFICATION ACT. WHO ARE PAID ON THE BASIS OF HOURLY RATES DERIVED FROM PER ANNUM RATES. INTERMITTENT EMPLOYEES WHO ARE APPOINTED ON A "WHEN ACTUALLY EMPLOYED" BASIS TO POSITIONS ALLOCATED TO SERVICES AND GRADES PURSUANT TO THE CLASSIFICATION ACT. WHO ARE PAID ON THE BASIS OF HOURLY RATES DERIVED FROM PER ANNUM RATES ARE ENTITLED TO BE PAID FOR SERVICES RENDERED ON SUNDAYS. "WHEN ACTUALLY EMPLOYED" INTERMITTENT EMPLOYEES WHO ARE COMPENSATED AT HOURLY RATES. ARE ENTITLED TO ADDITIONAL COMPENSATION.

B-35384, JULY 9, 1943, 23 COMP. GEN. 13

COMPENSATION - INTERMITTENT EMPLOYEES COMPENSATED AT HOURLY RATES IN THE CASE OF INTERMITTENT EMPLOYEES WHO ARE APPOINTED ON A "WHEN ACTUALLY EMPLOYED" BASIS TO POSITIONS ALLOCATED TO SERVICES AND GRADES PURSUANT TO THE CLASSIFICATION ACT, AND WHO ARE PAID ON THE BASIS OF HOURLY RATES DERIVED FROM PER ANNUM RATES, THE TOTAL BASIC COMPENSATION THAT MAY BE EARNED FOR ANY ONE DAY MAY NOT EXCEED 1/360 OF THE ANNUAL SALARY RATE PRESCRIBED BY THE SAID ACT FOR SIMILAR FULL TIME POSITIONS, REGARDLESS OF THE NUMBER OF HOURS WORKED IN ADDITION TO THE HOURS ADMINISTRATIVELY REQUIRED OF FULL TIME EMPLOYEES. INTERMITTENT EMPLOYEES WHO ARE APPOINTED ON A "WHEN ACTUALLY EMPLOYED" BASIS TO POSITIONS ALLOCATED TO SERVICES AND GRADES PURSUANT TO THE CLASSIFICATION ACT, AND WHO ARE PAID ON THE BASIS OF HOURLY RATES DERIVED FROM PER ANNUM RATES ARE ENTITLED TO BE PAID FOR SERVICES RENDERED ON SUNDAYS, HOLIDAYS, AND THE 31ST DAY OF A MONTH. UNDER THE WAR OVERTIME PAY ACT OF 1943,"WHEN ACTUALLY EMPLOYED" INTERMITTENT EMPLOYEES WHO ARE COMPENSATED AT HOURLY RATES, NOT TO EXCEED FOR ANY ONE DAY 1/360 OF THE PER ANNUM RATE FOR SIMILAR FULL TIME EMPLOYEES, ARE ENTITLED TO ADDITIONAL COMPENSATION, SUBJECT TO THE LIMITATION OF THE ACT, ONLY AT THE RATE OF $300 PER ANNUM OR 15 PERCENT OF EARNED BASIC COMPENSATION, AS THE CASE MAY BE, AS SPECIFICALLY PRESCRIBED FOR INTERMITTENT, ETC., EMPLOYEES BY SECTION 3 (A) OF THE ACT, EVEN THOUGH SUCH EMPLOYEES MAY BE REQUIRED TO WORK A GREATER NUMBER OF HOURS PER DAY OR WEEK THAN REGULARLY REQUIRED OF FULL TIME EMPLOYEES.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF AGRICULTURE, JULY 9, 1943:

I HAVE YOUR LETTER OF JUNE 24, 1943, AS FOLLOWS:

IT IS THE PURPOSE OF THIS LETTER TO OBTAIN YOUR RULING AS TO THE PROPER METHOD OF COMPENSATING INTERMITTENT EMPLOYEES WHO ARE APPOINTED ON A "WHEN ACTUALLY EMPLOYED" BASIS TO POSITIONS THAT ARE ALLOCATED TO SERVICES AND GRADES PURSUANT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND WHO ARE PAID ON AN HOURLY BASIS FOR THE TIME ACTUALLY WORKED.

THE DEPARTMENT OF AGRICULTURE EMPLOYS CONSIDERABLE NUMBERS OF TEMPORARY, SEASONAL, OR EMERGENCY EMPLOYEES WHO WORK INTERMITTENTLY OR IRREGULARLY AS REQUIRED. MANY OF THE INTERMITTENT EMPLOYEES WHO OCCUPY CLASSIFIED POSITIONS WORK SIDE BY SIDE DURING THE PERIODS OF THEIR TEMPORARY EMPLOYMENT WITH REGULAR PER ANNUM EMPLOYEES. AT TIMES IT BECOMES NECESSARY FOR BOTH REGULAR AND INTERMITTENT EMPLOYEES TO WORK IN EXCESS OF EIGHT HOURS PER DAY OR FORTY-EIGHT HOURS PER WEEK. THIS IS PARTICULARLY TRUE IN CONNECTION WITH FIRE CONTROL WORK IN THE FOREST SERVICE. DURING THE MOST CRITICAL PERIODS OF THE FIRE SEASON, EXTRA GUARDS ARE EMPLOYED FOR BRIEF PERIODS AND IT IS OFTEN NECESSARY FOR BOTH REGULAR AND EXTRA GUARDS TO WORK HOURS IN EXCESS OF THE ADMINISTRATIVE WORK WEEK PREVAILING GENERALLY THROUGHOUT THE DEPARTMENT.

UNDER THE WAR OVERTIME PAY ACT OF 1943 AND REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION PURSUANT THERETO, IT IS CLEAR THAT THE REGULAR EMPLOYEES ARE ENTITLED TO COMPENSATION AT A RATE OF ONE AND ONE-HALF TIMES THEIR REGULAR BASIC RATES OF PAY FOR ALL HOURS OF WORK IN EXCESS OF THE REGULAR WORK WEEK. THE MANNER OF DETERMINING THE AMOUNT OF PAY TO WHICH AN INTERMITTENT EMPLOYEE IS ENTITLED UNDER SUCH CIRCUMSTANCES IS NOT CLEAR, HOWEVER. IN THIS CONNECTION, WE HAVE NOTED WITH PARTICULAR CARE THE FOLLOWING PUBLISHED DECISIONS OF YOUR OFFICE: 11 COMP. GEN. 105; 11 COMP. GEN. 211; 11 COMP. GEN. 217; 11 COMP. GEN. 261; AND 11 COMP. GEN. 362. THE MANNER OF FIXING THE PROPER HOURLY RATE FOR INTERMITTENT EMPLOYEES OCCUPYING CLASSIFIED POSITIONS IS CLEARLY STATED IN THESE DECISIONS, BUT IT IS NOT CLEAR WHETHER SUCH EMPLOYEES MAY BE PAID FOR AN INDEFINITE NUMBER OF HOURS OF SERVICE AT SUCH HOURLY RATES.

WHERE IT IS NECESSARY TO REQUIRE AN INTERMITTENT EMPLOYEE WHO OCCUPIES AN ALLOCATED POSITION TO WORK IN EXCESS OF EIGHT HOURS PER DAY OR FORTY-EIGHT HOURS PER WEEK, MAY THE DEPARTMENT PROPERLY PAY SUCH EMPLOYEE FOR ALL HOURS ACTUALLY WORKED AT THE HOURLY EQUIVALENT OF THE MINIMUM PER ANNUM RATE OF HIS GRADE, OR IS THERE AN ARBITRARY LIMIT UPON THE NUMBER OF HOURS FOR WHICH HE MAY BE COMPENSATED IN A GIVEN DAY OR WORK WEEK? ASSUMING THAT THE EMPLOYEE IS ENTITLED TO COMPENSATION FOR ALL HOURS ACTUALLY WORKED, TO WHAT ADDITIONAL COMPENSATION IN LIEU OF OVERTIME WOULD HE BE ENTITLED ON THOSE DAYS IN WHICH HE WORKS IN EXCESS OF EIGHT HOURS OR DURING THOSE WEEKS IN WHICH HE WORKS IN EXCESS OF FORTY-EIGHT HOURS?

SINCE, AS STATED ABOVE, WE HAVE CONSIDERABLE NUMBERS OF EMPLOYEES IN THIS CATEGORY, YOUR EARLY DECISION IN THE MATTER WILL BE APPRECIATED.

IN DECISION OF DECEMBER 7, 1931, 11 COMP. GEN. 217, IT WAS HELD (QUOTING FROM THE SYLLABUS):

TEMPORARY, SEASONAL, OR EMERGENCY FIELD EMPLOYEES WORKING PART TIME, AS DISTINGUISHED FROM EMPLOYEES WHO ARE REGULARLY EMPLOYED PART TIME THROUGHOUT THE YEAR OR FOR SUBSTANTIAL PERIODS, WHOSE POSITIONS ARE SUBJECT TO THE PRINCIPLES OF CLASSIFICATION, MAY BE PAID ON AN HOURLY BASIS, WHICH SHOULD BE COMPUTED BY DIVIDING 1/360 OF THE MINIMUM SALARY RATE PRESCRIBED IN THE CLASSIFICATION ACT FOR A SIMILAR FULL-TIME POSITION BY THE NUMBER OF HOURS PER DAY THE ANNUAL EMPLOYEES ARE REGULARLY REQUIRED TO WORK. 11 COMP. GEN. 211, DISTINGUISHED. SEE, ALSO, DECISION OF MARCH 23, 1632, 11 COMP. GEN. 362, 363, WHEREIN IT WAS STATED:

HOWEVER, IF THE EMPLOYEES ARE TEMPORARY, SEASONAL, OR EMERGENCY FIELD EMPLOYEES, WORKING ONLY PART TIME FOR SHORT PERIODS AS DISTINGUISHED FROM EMPLOYEES WHO ARE REGULARLY EMPLOYED PART TIME, THAT IS, A PART OF EACH WORKING DAY, THROUGHOUT THE YEAR, OR FOR SUBSTANTIAL PERIODS, THE SECOND COMPUTATION IN THE QUOTED SUBMISSION WOULD BE PROPER AND THE EMPLOYEE WOULD BE ENTITLED TO PAY FOR ONLY THE TIME ACTUALLY WORKED, INCLUDING TIME ON THE 31ST DAY OF THE MONTH. SEE, PARTICULARLY, 11 COMP. GEN. 217. THE "SECOND COMPUTATION IN THE QUOTED SUBMISSION," REFERRED TO IN THE DECISION LAST ABOVE-QUOTED, WAS AS FOLLOWS:

OR WOULD THIS EMPLOYEE BE ENTITLED TO 50 CENTS PER HOUR, THE PER DIEM SALARY AS SHOWN IN GOVERNMENT SALARY TABLES ($3.50), DIVIDED BY 7, ONLY FOR THE NUMBER OF HOURS HE OR SHE IS ACTUALLY EMPLOYED, OR A MAXIMUM OF $3.50 PER DAY? IF PAID BY THE HOUR, WOULD THIS EMPLOYEE BE ENTITLED TO PAY FOR SERVICES RENDERED ON THE THIRTY-FIRST DAY OF A MONTH? " ( ITALICS SUPPLIED.)

BASED UPON THE RULES STATED IN THOSE DECISIONS, AND AS FULL-TIME EMPLOYEES WHOSE COMPENSATION IS FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT MAY NOT BE PAID ANY MORE BASIC COMPENSATION FOR ONE DAY'S WORK THAN 1/360 OF THE ANNUAL SALARY RATE, IT MUST BE CONCLUDED-- IN ANSWER TO THE FIRST QUESTION IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER-- - THAT THE TOTAL BASIC COMPENSATION THAT MAY BE EARNED FOR ANY ONE DAY BY "INTERMITTENT EMPLOYEES WHO ARE APPOINTED ON A "WHEN ACTUALLY MPLOYED" BASIS TO POSITIONS THAT ARE ALLOCATED TO SERVICES AND GRADES PURSUANT TO THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, AS AMENDED, AND WHO ARE PAID ON AN HOURLY BASIS FOR THE TIME ACTUALLY WORKED" (QUOTING FROM THE FIRST PARAGRAPH OF YOUR LETTER), MAY NOT EXCEED 1/360 OF THE ANNUAL SALARY RATE PRESCRIBED BY THE CLASSIFICATION ACT FOR SIMILAR FULL-TIME POSITIONS, REGARDLESS OF THE NUMBER OF HOURS OF SERVICE RENDERED BY SUCH INTERMITTENT EMPLOYEES ON ANY ONE DAY IN ADDITION TO THE NUMBER OF HOURS ADMINISTRATIVELY REQUIRED OF FULL-TIME EMPLOYEES. OF COURSE, SUCH EMPLOYEES MAY BE PAID THE SAME AMOUNT OF BASIC COMPENSATION FOR WORK ON SUNDAYS, HOLIDAYS AND ON THE 31ST DAY OF A MONTH

IT IS ONLY BY REASON OF THE PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943, 57 STAT. 75, PUBLIC LAW 49, THAT EITHER FULL-TIME OR INTERMITTENT EMPLOYEES WHOSE SALARY RATES ARE FIXED ON AN ANNUAL BASIS PURSUANT TO THE CLASSIFICATION ACT NOW ENTITLED TO COMPENSATION IN ADDITION TO THEIR BASIC COMPENSATION REPRESENTING 1/360 OF THE ANNUAL SALARY RATE FOR EACH DAY OF THE YEAR. THE PROVISIONS OF THE LAW APPLICABLE TO INTERMITTENT EMPLOYEES ARE AS FOLLOWS:

SEC. 3. (A) EXCEPT AS PROVIDED IN SUBSECTION (C), OFFICERS AND EMPLOYEES TO WHOM THIS ACT APPLIES AND WHOSE HOURS OF DUTY ARE INTERMITTENT OR IRREGULAR * * * 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.

(D) IN NO CASE SHALL ANY OFFICER OR EMPLOYEE BE PAID ADDITIONAL COMPENSATION UNDER THIS SECTION FOR ANY PAY PERIOD AMOUNTING TO MORE THAN 25 PERCENTUM OF HIS EARNED BASIC COMPENSATION FOR SUCH PAY PERIOD.

THE MAXIMUM RATE OF ADDITIONAL COMPENSATION FOR INTERMITTENT EMPLOYEES AUTHORIZED TO BE PAID "IN LIEU OF THE OVERTIME COMPENSATION AUTHORIZED UNDER SECTION 2 OF THIS ACT" IS SPECIFICALLY PRESCRIBED IN THE FORMULAS (1) AND (2) IN SECTION 3 (A), 57 STAT. 76, AND THE SAID ADDITIONAL COMPENSATION IS FURTHER LIMITED BY SECTION 3 (D), 57 STAT. 77. THAT IS TO SAY, WHILE REGULAR FULL-TIME EMPLOYEES MAY BE PAID ADDITIONAL OVERTIME COMPENSATION FOR WORK IN EXCESS OF 48 HOURS PER WEEK BY REASON OF THE FORMULA PRESCRIBED IN SECTION 2 OF THE STATUTE, NO CORRESPONDING PROVISION HAS BEEN MADE FOR PAYING INTERMITTENT EMPLOYEES OF THE CLASS HERE UNDER CONSIDERATION ANY MORE THAN THE AMOUNTS SPECIFICALLY AUTHORIZED BY THE STATUTE. THE SECOND QUESTION IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER IS ANSWERED ACCORDINGLY.