B-37690, NOVEMBER 10, 1943, 23 COMP. GEN. 358

B-37690, NOVEMBER 10, 1943, 23 COMP. GEN. 358

WAR OVERTIME PAY ACT OF 1943 - APPLICABILITY TO STUDENT NURSES STUDENT NURSES WHO ARE RECEIVING TRAINING FOR THE PURPOSE OF ASSURING A SUPPLY OF NURSES FOR THE ARMED FORCES, GOVERNMENTAL AND CIVILIAN HOSPITALS, ETC., AND WHO ARE PAID A SPECIFIED "STIPEND" DURING THE TRAINING PERIOD PURSUANT TO THE ACT OF JUNE 15, 1943, MAY NOT BE REGARDED AS "CIVILIAN OFFICERS AND EMPLOYEES * * * IN OR UNDER THE UNITED STATES GOVERNMENT" WITHIN THE MEANING OF THE WAR OVERTIME PAY ACT OF 1943, SO AS TO ENTITLE THEM TO THE BENEFITS OF THE SAID ACT.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, NOVEMBER 10, 1943:

I HAVE YOUR LETTER OF OCTOBER 15, 1943, AS FOLLOWS:

YOUR ADVICE IS REQUESTED WHETHER WE ARE REQUIRED TO PAY OVERTIME COMPENSATION, UNDER THE WAR OVERTIME PAY ACT OF 1943, TO STUDENT NURSES WHO ARE RECEIVING TRAINING IN GOVERNMENT HOSPITALS, IN ACCORDANCE WITH SECTION 2 (E) AND (F) OF THE ACT OF JUNE 15, 1943 ( PUBLIC LAW NO. 74. 78TH CONGRESS).

PUBLIC LAW NO. 74 PROVIDES FOR THE TRAINING OF NURSES, AND RECITES IN SECTION 1 THAT IT IS FOR THE PURPOSE "OF ASSURING A SUPPLY OF NURSES FOR THE ARMED FORCES, GOVERNMENTAL AND CIVILIAN HOSPITALS * * *.' CONTEMPLATES THAT EACH STUDENT NURSE WILL UNDERTAKE NINE MONTHS OF STUDY AND PRACTICE, AND THEREAFTER A FURTHER PERIOD OF TRAINING PRIOR TO GRADUATION. IT IS APPARENT THAT THE DOMINANT PURPOSE OF THE PROGRAM ENVISAGED BY THE ACT IS EDUCATIONAL, AND THAT SUCH PRACTICE AND SUCH RENDITION OF SERVICE AS ARE INVOLVED ARE INCIDENTAL TO THIS EDUCATIONAL OBJECTIVE.

IT IS ANTICIPATED THAT MANY OF THESE STUDENT NURSES WILL RECEIVE THEIR FINAL PERIOD OF TRAINING, PRIOR TO GRADUATION, IN HOSPITALS OF THE PUBLIC HEALTH SERVICE AND OTHER DEPARTMENTS AND AGENCIES OF THE FEDERAL GOVERNMENT, AND IT IS CHIEFLY IN CONNECTION WITH THIS PERIOD OF THEIR TRAINING THAT THE QUESTION OF OVERTIME PAY ARISES. DURING THIS PERIOD THE STUDENT NURSES WILL RENDER SOME SERVICE TO THE RESPECTIVE HOSPITALS, BUT IN ACCORDANCE WITH THE PURPOSE OF PUBLIC LAW NO. 74, THE PRIMARY EMPHASIS WILL CONTINUE TO BE ON THEIR INSTRUCTION AND TRAINING. IN A FEW INSTANCES THE PRELIMINARY PERIOD OF STUDY, AND THE INTERMEDIATE PERIOD OF COMBINED STUDY AND PRACTICE, WILL LIKEWISE BE CONDUCTED IN GOVERNMENT HOSPITALS.

IT WILL BE NOTED THAT PUBLIC LAW NO. 74 STIPULATES A MINIMUM "STIPEND" (NOT "COMPENSATION" OR ,SALARY"), RANGING FROM $15 TO $30 A MONTH, TO BE PAID TO THE STUDENT NURSES DURING EACH OF THE THREE PERIODS IN QUESTION. THE CIVIL SERVICE COMMISSION HAS ADVISED US THAT SUCH STUDENT NURSES ARE NOT TO BE CONSIDERED AS HOLDING POSITIONS UNDER THE CLASSIFICATION ACT OF 1923. IN VIEW OF THIS RULING THE STIPEND IS FOR DETERMINATION BY THE HEAD OF EACH DEPARTMENT AND AGENCY CONCERNED.

IT HAS BEEN AGREED THAT THE STIPEND SHOULD BE MADE UNIFORM THROUGHOUT THE GOVERNMENT HOSPITALS. SINCE THE RATE OF STIPEND IS DISCRETIONARY, IT MIGHT BE POSSIBLE TO ACHIEVE SUBSTANTIAL UNIFORMITY EVEN THOUGH THE OVERTIME PAY ACT WERE APPLICABLE. BECAUSE OF THE DIFFERENT METHODS OF TREATING ACCOMMODATIONS, SUBSISTENCE, ALLOWANCES, AND OTHER BENEFITS, HOWEVER, THE PROBLEM WOULD BE RENDERED MUCH MORE DIFFICULT IF THAT ACT WERE HELD APPLICABLE. WE ARE ADVISED, FOR INSTANCE, THAT THE OFFICE OF INDIAN AFFAIRS PLACES A DIFFERENT EVALUATION UPON ACCOMMODATIONS AT EACH STATION. EVEN IF IT WERE POSSIBLE TO ATTAIN SUBSTANTIAL UNIFORMITY IN THE ACTUAL CASH PAYMENTS, SERIOUS ADMINISTRATIVE AND ACCOUNTING PROBLEMS WOULD BE PRESENTED, AND VARIATIONS IN THE BASIC STIPEND AND IN THE AMOUNTS ALLOWED FOR OVERTIME WOULD BE DIFFICULT TO EXPLAIN SATISFACTORILY TO THE STUDENT NURSES.

UNDER THESE CIRCUMSTANCES IT IS SUBMITTED THAT THE STUDENT NURSES SHOULD NOT BE CONSIDERED AS ,CIVILIAN EMPLOYEES" WITHIN THE MEANING OF THE WAR OVERTIME PAY ACT, AND THAT THE RELATIVELY SMALL "STIPEND" FIXED PURSUANT TO PUBLIC LAW NO. 74 SHOULD BE CONSIDERED NOT AS COMPENSATION FOR SERVICES RENDERED, BUT RATHER IN THE NATURE OF AN ALLOWANCE FOR PERSONAL EXPENSES DURING A PERIOD OF TRAINING.

SECTION 2 OF THE ACT OF JUNE 15, 1943, 57 STAT. 153, PUBLIC LAW 74, PROVIDES IN PART:

A PLAN FOR TRAINING OF NURSES MAY BE LIMITED TO STUDENT-NURSE TRAINING OR TO POSTGRADUATE OR REFRESHER-NURSING COURSES, OR MAY INCLUDE BOTH. A PLAN SUBMITTED BY ANY INSTITUTION MAY BE APPROVED ONLY IF IT PROVIDES---

(A) THAT NO STUDENT OR GRADUATE NURSE WILL BE INCLUDED UNDER THE PLAN UNLESS IN THE JUDGMENT OF THE HEAD OF THE INSTITUTION SUCH NURSE WILL BE AVAILABLE FOR MILITARY OR OTHER FEDERAL GOVERNMENTAL OR ESSENTIAL CIVILIAN SERVICES FOR THE DURATION OF THE PRESENT WAR, AND SUCH NURSE SO STATES IN HER APPLICATION FOR INCLUSION UNDER THE PLAN;

(B) THAT NURSES UNDER THE PLAN WILL BE PROVIDED COURSES OF STUDY AND TRAINING MEETING STANDARDS PRESCRIBED BY THE SURGEON GENERAL;

(C) THAT THE INSTITUTION WILL FURNISH STUDENT NURSES UNDER THE PLAN (WITHOUT CHARGE FOR TUITION, FEES, OR OTHER EXPENSES) COURSES OF STUDY AND TRAINING, UNIFORMS, INSIGNIA, AND MAINTENANCE IN ACCORDANCE WITH REGULATIONS OF THE SURGEON GENERAL;

(D) THAT THE INSTITUTION WILL PAY STUDENT NURSES UNDER THE PLAN A STIPEND AT NOT LESS THAN THE FOLLOWING MONTHLY RATES: $15 FOR THE FIRST NINE MONTHS OF STUDY; $20 FOR THE FOLLOWING FIFTEEN TO TWENTY ONE MONTHS OF COMBINED STUDY AND PRACTICE, DEPENDING UPON THE CURRICULUM OF EACH INSTITUTION;

(E) THAT THE INSTITUTION WILL EITHER AFFORD STUDENT NURSES UNDER THE PLAN AN OPPORTUNITY TO COMPLETE THEIR COURSE OF TRAINING UNTIL GRADUATION AT SUCH INSTITUTION AND WILL PAY SUCH STUDENT NURSE A STIPEND AT A MONTHLY RATE NOT LESS THAN $30 FOR THE PERIOD FOLLOWING THE PERIOD OF COMBINED STUDY AND PRACTICE AND PRIOR TO GRADUATION, OR WILL TRANSFER SUCH STUDENT, AFTER COMPLETION OF THE PERIOD OF COMBINED STUDY AND PRACTICE AND PRIOR TO GRADUATION, FOR TRAINING IN SOME OTHER INSTITUTION, BUT ONLY IF SUCH TRAINING MAY BE CREDITED TOWARD GRADUATION, AND THE INSTITUTION TO WHICH THE NURSE IS TRANSFERRED AGREES TO PAY HER A STIPEND AT A MONTHLY RATE OF NOT LESS THAN $30 UNTIL GRADUATION; * * *

THE " WAR OVERTIME PAY ACT OF 1943" APPROVED MAY 7, 1943, 57 STAT. 75, PUBLIC LAW 49, IS APPLICABLE "TO ALL CIVILIAN OFFICERS AND EMPLOYEES * * * IN OR UNDER THE UNITED STATES GOVERNMENT" WITH CERTAIN EXPRESS EXCEPTIONS NOT HERE APPLICABLE, AND THE OVERTIME COMPENSATION IS AUTHORIZED BY THE LAW TO BE PAID IN ADDITION TO "BASIC RATE OF COMPENSATION NOT IN EXCESS OF $2,900 PER ANNUM.' IT IS QUITE EVIDENT FROM THE TERMS OF THE ACT OF JUNE 15, 1943, THAT "STUDENT NURSES" ARE NOT TO BE REGARDED AS OFFICERS OR EMPLOYEES IN OR UNDER THE UNITED STATES GOVERNMENT, THE PURPOSE OF THE LAW ESSENTIALLY BEING THE TRAINING OF NURSES TO EQUIP THEM FOR FUTURE EMPLOYMENT BY THE GOVERNMENT. COMPARE DECISIONS CONSIDERING THE STATUS OF SECURITY WAGE WORKERS OR PROJECT WORKERS (15 COMP. GEN. 1129; 19 ID. 383), ENROLLEES OF THE CIVILIAN CONSERVATION CORPS (17 COMP. GEN. 276, 578), AND ,NEEDY COLLEGE STUDENTS" (17 COMP. GEN. 904).

ACCORDINGLY, I AM IN AGREEMENT WITH THE VIEWS EXPRESSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER AND, ACCORDINGLY, IT IS CONCLUDED THAT STUDENT NURSES COMING WITHIN THE ACT OF JUNE 15, 1943, ARE NOT WITHIN THE PURVIEW OF THE WAR OVERTIME PAY ACT OF 1943.