B-36792, SEPTEMBER 15, 1943, 23 COMP. GEN. 195

B-36792: Sep 15, 1943

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COMPENSATION - INTERMITTENT EMPLOYEES COMPENSATED AT HOURLY RATES INTERMITTENT EMPLOYEES APPOINTED ON A "WHEN ACTUALLY EMPLOYED" BASIS TO POSITIONS NOT WITHIN THE CLASSIFICATION ACT WHOSE HOURLY RATES OF COMPENSATION ARE NOT REQUIRED TO BE FIXED IN ACCORDANCE WITH THE 40 HOUR WEEK STATUTE OF MARCH 28. IS NOT REQUIRED TO BE FIXED IN ACCORDANCE WITH THE 40- HOUR WEEK STATUTE OF MARCH 28. THE AMOUNT ACTUALLY EARNED BY THE EMPLOYEE IS HIS "EARNED BASIC COMPENSATION" WITHIN THE MEANING OF THE WAR OVERTIME PAY ACT OF 1943. UPON WHICH THE ADDITIONAL COMPENSATION AUTHORIZED BY SECTION 3 OF SAID ACT FOR INTERMITTENT EMPLOYEES IS TO BE COMPUTED. 1943: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1.

B-36792, SEPTEMBER 15, 1943, 23 COMP. GEN. 195

COMPENSATION - INTERMITTENT EMPLOYEES COMPENSATED AT HOURLY RATES INTERMITTENT EMPLOYEES APPOINTED ON A "WHEN ACTUALLY EMPLOYED" BASIS TO POSITIONS NOT WITHIN THE CLASSIFICATION ACT WHOSE HOURLY RATES OF COMPENSATION ARE NOT REQUIRED TO BE FIXED IN ACCORDANCE WITH THE 40 HOUR WEEK STATUTE OF MARCH 28, 1934, MAY BE PAID BASIC COMPENSATION FOR THE ACTUAL NUMBER OF HOURS WORKED EVEN THOUGH IN EXCESS OF 8 HOURS PER DAY. 23 COMP. GEN. 13, DISTINGUISHED. IN THE CASE OF A "WHEN ACTUALLY EMPLOYED" INTERMITTENT EMPLOYEE APPOINTED TO A POSITION NOT WITHIN THE CLASSIFICATION ACT WHOSE COMPENSATION, BASED ON HOURLY RATES, IS NOT REQUIRED TO BE FIXED IN ACCORDANCE WITH THE 40- HOUR WEEK STATUTE OF MARCH 28, 1934, THE AMOUNT ACTUALLY EARNED BY THE EMPLOYEE IS HIS "EARNED BASIC COMPENSATION" WITHIN THE MEANING OF THE WAR OVERTIME PAY ACT OF 1943, UPON WHICH THE ADDITIONAL COMPENSATION AUTHORIZED BY SECTION 3 OF SAID ACT FOR INTERMITTENT EMPLOYEES IS TO BE COMPUTED.

ACTING COMPTROLLER GENERAL YATES TO N. A. OLMSTEAD, DEPARTMENT OF AGRICULTURE, SEPTEMBER 15, 1943:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1, 1942 ( FILE T-), AS FOLLOWS:

YOUR OPINION IS RESPECTFULLY REQUESTED AS TO WHETHER THE ATTACHED PAY VOUCHER FOR $4.50 MAY LEGALLY BE CERTIFIED FOR PAYMENT SINCE IT COVERS BASIC AND ADDITIONAL COMPENSATION FOR SERVICES PERFORMED IN EXCESS OF 8 HOURS PER DAY BY AN UNSKILLED LABORER APPOINTED ON A "WHEN ACTUALLY EMPLOYED" BASIS AT 30 CENTS PER HOUR.

YOUR DECISION OF JULY 9, 1943, TO THE SECRETARY OF AGRICULTURE, B 35384, INDICATES THE TOTAL BASIC COMPENSATION THAT MAY BE EARNED FOR ANY ONE DAY BY 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 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. WITH RESPECT TO ADDITIONAL COMPENSATION, THIS DECISION STATES THAT NO PROVISION HAS BEEN MADE FOR PAYING INTERMITTENT EMPLOYEES OF THIS CLASS ANY MORE THAN THE AMOUNTS SPECIFICALLY AUTHORIZED BY THE PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943.

YOUR DECISION IS DESIRED AS TO WHETHER THE TOTAL ADDITIONAL COMPENSATION WHICH COULD BE PAID TO MR. DOWDELL UNDER THE WAR OVERTIME PAY ACT OF 1943 IS 1/313 OF $300.00, NOT TO EXCEED 25 PERCENT OF HIS EARNED BASIC COMPENSATION FOR SERVICE NOT IN EXCESS OF 8 HOURS ON ANY ONE DAY FOR SUCH PAY PERIOD. IF THE SERVICES PERFORMED BY HIM HAD NOT EXCEEDED 8 HOURS IN ANY ONE DAY, THE ADDITIONAL COMPENSATION WOULD BE COMPUTED AS FOLLOWS: $0.30 PER HOUR TIMES 8 HOURS TIMES 313 DAYS EQUALS PER ANNUM SALARY RATE, $751.20. SINCE THE PER ANNUM SALARY RATE IS LESS THAN $1,200, THE ADDITIONAL COMPENSATION IS LIMITED TO 25 PERCENT OF HIS EARNED BASIC COMPENSATION FOR SUCH PAY PERIOD.

IT IS ASSUMED, IN SUCH INSTANCES, THAT THE EARNED BASIC COMPENSATION REFERRED TO IS THE COMPENSATION FOR SERVICES NOT IN EXCESS OF 8 HOURS ON ANY ONE DAY. IF ADDITIONAL COMPENSATION IS PAYABLE ON SERVICE IN EXCESS OF 8 HOURS ON ANY ONE DAY AND SUCH SERVICE IS TAKEN INTO ACCOUNT IN DETERMINING THE EMPLOYEE'S PER ANNUM SALARY RATE, THE PER ANNUM RATE WOULD BE INCREASED. IN SOME INSTANCES, THE INCREASE IN THE PER ANNUM RATE WOULD CHANGE THE METHOD OF COMPUTING THE ADDITIONAL COMPENSATION, DEPENDING ON WHETHER THE INCREASE WAS LARGE ENOUGH TO BRING THE PER ANNUM RATE ABOVE $1200 OR $2000, AS THE CASE MIGHT BE.

YOUR OPINION IS ALSO DESIRED AS TO WHETHER INTERMITTENT EMPLOYEES WHO ARE APPOINTED ON A "WHEN ACTUALLY EMPLOYED" BASIS TO POSITIONS THAT ARE NOT ALLOCATED TO SERVICES AND GRADES PURSUANT OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, MAY BE PAID BASIC COMPENSATION FOR AN INDEFINITE NUMBER OF HOURS OF SERVICE AT HOURLY RATES.

A MEMORANDUM COPY OF A PAY ROLL WHICH HAS BEEN CERTIFIED FOR PAYMENT COVERING THE BASIC AND ADDITIONAL COMPENSATION TO WHICH MR. DOWDELL WAS ENTITLED FOR SERVICE NOT IN EXCESS OF 8 HOURS ON ANY ONE DAY DURING THE PAY PERIOD IS ALSO ENCLOSED FOR YOUR INFORMATION.

THE RULES STATED IN THE DECISION OF JULY 9, 1943, B-35384, 23 COMP. GEN. 13, TO WHICH YOU REFER IN THE SECOND PARAGRAPH OF YOUR LETTER, ARE APPLICABLE ONLY TO INTERMITTENT EMPLOYEES OCCUPYING POSITIONS SUBJECT TO THE CLASSIFICATION ACT AND WHOSE HOURLY OR DAILY SALARY ARE DERIVED FROM PER ANNUM SALARY RATES PRESCRIBED BY THE CLASSIFICATION ACT. HENCE, THOSE RULES HAVE NO APPLICATION IN THE CASE HERE PRESENTED.

ASSUMING THAT THE BASIC AND OVERTIME COMPENSATION OF THE LABORER HERE INVOLVED IS NOT REQUIRED TO BE FIXED IN ACCORDANCE WITH SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522 (SEE 22 COMP. GEN. 804), AND ASSUMING, ALSO, THAT HE PROPERLY IS CLASSED AS AN INTERMITTENT OR IRREGULAR EMPLOYEE, RATHER THAN AS A FULL-TIME EMPLOYEE (SEE DEFINITION OF THOSE TERMS IN SECTIONS 2 AND 5, PART II OF THE CIVIL SERVICE REGULATIONS, DEPARTMENTAL CIRCULAR NO. 424, DATED MAY 8, 1943), HE MAY BE PAID BASIC COMPENSATION FOR THE ACTUAL NUMBER OF HOURS WORKED EVEN THOUGH IN EXCESS OF 8 HOURS PER DAY. THE AMOUNT ACTUALLY EARNED IS HIS "EARNED BASIC COMPENSATION" WITHIN THE MEANING OF THE WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, PUBLIC LAW 49. SEE SECTION 6, PART II OF THE CIVIL SERVICE REGULATIONS ABOVE CITED. COMPARE DECISION OF JULY 9, 1943, (B- 35329), 23 COMP. GEN. 11.

ACCORDINGLY, THE VOUCHER IN QUESTION PROPOSING PAYMENT OF $3.60 EARNED BASIC COMPENSATION FOR A TOTAL OF 12 HOURS ADDITIONAL SERVICE (4 HOURS PERFORMED ON MAY 17, 18 AND 19, 1943) AT THE RATE OF 30 CENTS PER HOUR, PLUS 90 CENTS, REPRESENTING 25 PERCENT OF SUCH EARNED BASIC COMPENSATION AUTHORIZED BY SECTION 3 (D) OF THE WAR OVERTIME PAY ACT OF 1943, MAY BE CERTIFIED FOR PAYMENT.