B-38665, DECEMBER 14, 1943, 23 COMP. GEN. 436

B-38665: Dec 14, 1943

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ELIZABETHS AND FREEDMEN'S HOSPITALS WHO HAVE A STATUS AS EMPLOYEES OF THE UNITED STATES ACQUIRED UNDER EXISTING EMPLOYMENT PROCEDURE OTHERWISE THAN SOLELY BY ENROLLING IN THE STUDENT NURSING PROGRAM AUTHORIZED BY THE ACT OF JUNE 15. THEY ARE ENTITLED TO OVERTIME COMPENSATION UNDER THE WAR OVERTIME PAY ACT OF 1943. 23 COMP. ARE REGARDED AS LEAVING THE STATUS OF "STUDENT NURSES" WHO RECEIVE A "STIPEND" UNDER SAID ACT WHILE COMPLETING THEIR TRAINING IN FEDERAL HOSPITALS DURING THEIR SENIOR YEAR. ARE EMPLOYED AND PAID A BASIC COMPENSATION OR SALARY AT A RATE ADMINISTRATIVELY PRESCRIBED AS FOR FEDERAL EMPLOYEES. SUCH NURSES ARE "CIVILIAN * * * EMPLOYEES IN OR UNDER THE UNITED STATES GOVERNMENT" WITHIN MEANING OF THE WAR OVERTIME PAY ACT OF 1943.

B-38665, DECEMBER 14, 1943, 23 COMP. GEN. 436

WAR OVERTIME PAY ACT OF 1943 - APPLICABILITY TO STUDENT NURSES STUDENT NURSES AT ST. ELIZABETHS AND FREEDMEN'S HOSPITALS WHO HAVE A STATUS AS EMPLOYEES OF THE UNITED STATES ACQUIRED UNDER EXISTING EMPLOYMENT PROCEDURE OTHERWISE THAN SOLELY BY ENROLLING IN THE STUDENT NURSING PROGRAM AUTHORIZED BY THE ACT OF JUNE 15, 1943, MAY BE REGARDED AS RETAINING THAT STATUS AFTER THEIR ENROLLMENT, AND, AS SUCH EMPLOYEES, THEY ARE ENTITLED TO OVERTIME COMPENSATION UNDER THE WAR OVERTIME PAY ACT OF 1943. 23 COMP. GEN. 358, AMPLIFIED. IF STUDENT NURSES IN TRAINING UNDER THE GENERAL STUDENT NURSING PROGRAM AUTHORIZED BY THE ACT OF JUNE 15, 1943, ARE REGARDED AS LEAVING THE STATUS OF "STUDENT NURSES" WHO RECEIVE A "STIPEND" UNDER SAID ACT WHILE COMPLETING THEIR TRAINING IN FEDERAL HOSPITALS DURING THEIR SENIOR YEAR, AND ARE EMPLOYED AND PAID A BASIC COMPENSATION OR SALARY AT A RATE ADMINISTRATIVELY PRESCRIBED AS FOR FEDERAL EMPLOYEES, SUCH NURSES ARE "CIVILIAN * * * EMPLOYEES IN OR UNDER THE UNITED STATES GOVERNMENT" WITHIN MEANING OF THE WAR OVERTIME PAY ACT OF 1943, AND ENTITLED TO RECEIVE OVERTIME COMPENSATION.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, DECEMBER 14, 1943:

I HAVE YOUR LETTER OF NOVEMBER 29, 1943, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF NOVEMBER 10, 1943 (B-37690) TO THE EFFECT THAT "STUDENT NURSES" COMING WITHIN THE ACT OF JUNE 15, 1943, ARE NOT WITHIN THE PURVIEW OF THE WAR OVERTIME PAY ACT OF 1943.

AS INDICATED IN MY SUBMITTAL TO YOU OF OCTOBER 15, 1943, THE BASIC STUDENT NURSE TRAINING PROGRAM, IN INSTITUTIONS RECEIVING FUNDS UNDER THE ACT OF JUNE 15, 1943, CONSISTS OF A NINE MONTH PERIOD, LARGELY OF STUDY, A PERIOD OF FROM FIFTEEN TO TWENTY-TWO MONTHS OF COMBINED STUDY AND PRACTICE, AND A FINAL PERIOD NOT OVER SIX MONTHS FOR THOSE STUDENT NURSES WHO HAVE COMPLETED THE REQUIRED PERIOD OF COMBINED STUDY AND PRACTICE BUT WHO HAVE NOT FULFILLED THE REMAINING TIME REQUIREMENT FOR GRADUATION. THE TERMS PRECADET AND JUNIOR CADET NURSES APPLY TO STUDENTS WHO HAVE ENROLLED IN THE CORPS DURING THE FIRST TWO PERIODS, WHILE THOSE IN THE FINAL PERIOD OF TRAINING ARE KNOWN AS SENIOR CADET NURSES. IT IS EXPECTED THAT LARGE NUMBERS OF THESE SENIOR CADET NURSES WILL BE TRANSFERRED FROM THE HOSPITALS IN WHICH THEY ARE ENROLLED AS STUDENTS TO COMPLETE THE REQUIRED TRAINING PERIOD IN FEDERAL HOSPITALS. IT IS WITH RESPECT TO SENIOR CADET NURSES SO TRANSFERRED, GENERALLY, THAT IT IS THOUGHT DESIRABLE TO FIX A UNIFORM CAST STIPEND UNAFFECTED BY THE WAR OVERTIME PAY ACT.

AT THE TIME OF THE PRIOR SUBMITTAL CONSIDERATION HAD NOT BEEN GIVEN TO GOVERNMENT HOSPITALS, SPECIFICALLY SAINT ELIZABETH'S AND FREEDMEN S, WHICH OPERATE SCHOOLS OF NURSING FROM WHICH THEY GRADUATE THEIR OWN STUDENTS. IN BOTH THESE INSTITUTIONS, THE STUDENT NURSES OR TRAINEES ARE RECOGNIZED EMPLOYEES OF THE UNITED STATES.

IN SAINT ELIZABETH'S STUDENT NURSES ARE OBTAINED THROUGH CIVIL SERVICE, TAKE A WRITTEN CIVIL SERVICE EXAMINATION, AND ARE APPOINTED IN THE SAME MANNER AS OTHER EMPLOYEES. THEY TAKE THE PRESCRIBED OATH OF OFFICE AND REPORTS OF THE APPOINTMENTS ARE TRANSMITTED TO THE CIVIL SERVICE COMMISSION. RETIREMENT DEDUCTIONS ARE MADE. ORIGINALLY, THE TRAINEES WERE PAID $180 PER YEAR, TOGETHER WITH MAINTENANCE, THE RATE FIXED BY THE SECRETARY OF THE INTERIOR AND APPROVED BY THE CIVIL SERVICE COMMISSION. THE CASH PAYMENT WAS LATER INCREASED TO $288 PER YEAR AND MAINTENANCE IS VALUED AT $624 PER ANNUM. WITH OVERTIME COMPENSATION WHICH HAS BEEN PAID UNDER THE WAR OVERTIME PAY ACT OF 1943, THE CASH COMPENSATION IS NOW $516.

THIS AMOUNT HAS BEEN PAID TO ALL STUDENT NURSES, INCLUDING THOSE WHO HAVE AND THOSE WHO HAVE NOT ENROLLED IN THE STUDENT NURSE CORPS, UP TO RECEIPT OF YOUR DECISION OF NOVEMBER 10.

STUDENT NURSES WHO HAVE ENROLLED IN THE UNITED STATES CADET NURSE CORPS WILL CONTINUE TO TAKE THE SAME COURSES OF STUDY AND TRAINING AS THOSE NOT SO ENROLLED. THERE IS NO DESIRE ADMINISTRATIVELY TO DISTINGUISH BETWEEN THE TWO GROUPS AS FAR AS CONCERNS THEIR STATUS AS EMPLOYEES OF THE UNITED STATES. THE FACT THAT THE STUDENT NURSE ENROLLS IN THE CORPS, AND PLEDGES HERSELF TO BE AVAILABLE FOR MILITARY OR OTHER FEDERAL GOVERNMENT OR ESSENTIAL CIVILIAN SERVICES DURING THE WAR, IS BELIEVED TO BE IN NO WAY INCONSISTENT WITH THE CONTINUANCE OF THAT STATUS SO AS TO REQUIRE A SEPARATION AND RESULTANT LOSS OF SERVICE CREDIT AS AN EMPLOYEE. THE FACT THAT AN INSTITUTION MAY OR MAY NOT RECEIVE ALLOTMENTS UNDER THE ACT OF JUNE 15, 1943, LIKEWISE APPEARS TO HAVE NO BEARING ON THE NATURE OF THE RELATIONSHIP, WHETHER OF EMPLOYMENT OR OTHERWISE, BETWEEN THE STUDENT NURSE AND THE INSTITUTION.

DUE TO THE FACT THAT SAINT ELIZABETH'S HOSPITAL IS A SPECIALIZED INSTITUTION, THE TRAINEE IS GENERALLY ASSIGNED DURING THE SECOND YEAR FOR TRAINING AT A SCHOOL SELECTED BY SAINT ELIZABETH'S SCHOOL OF NURSING. WHILE AT SUCH SCHOOL SHE IS CARRIED ON A NON-PAY STATUS, SUBJECT TO RECALL AT ANY TIME, AND IS SUBJECT TO THE RULES OF THE SCHOOL TO WHICH ASSIGNED AS TO WORK HOURS, PAY AND MAINTENANCE. IN ADDITION, SAINT ELIZABETH'S RECEIVE AFFILIATES FROM OTHER SCHOOLS OF NURSING, USUALLY FOR PERIODS OF LESS THAN ONE YEAR, FOR SPECIALIZED TRAINING. SUCH AFFILIATES ARE APPOINTED, TAKE THE REGULAR OATH, ARE FINGERPRINTED, AND REPORTS OF THEIR APPOINTMENT ARE TRANSMITTED TO THE CIVIL SERVICE COMMISSION. WHILE ON AFFILIATION, THEY RECEIVE THE SAME COMPENSATION AS THE REGULAR STUDENT NURSES OF THE SCHOOL, AND ARE SUBJECT TO THE SAME RULES WITH RESPECT TO HOURS OF WORK, STUDY, AND TRAINING.

AGAIN, IN THE CONSIDERATION OF THIS PROBLEM, THERE IS NO DESIRE ADMINISTRATIVELY TO ALTER THE ESTABLISHED PRACTICE IN THIS RESPECT, AND THERE WOULD APPEAR TO BE NO NECESSITY, ARISING FROM THE ACT OF JUNE 15, 1943, FOR SO DOING. THE FACT THAT CERTAIN STUDENTS RECEIVED AS AFFILIATES FROM OTHER SCHOOLS MAY HAVE ENROLLED IN THE CADET NURSE CORPS, WHILE OTHERS MAY NOT HAVE ENROLLED, APPEARS NOT TO COMPEL, ALTHOUGH IT IS POSSIBLE THAT IT MIGHT PERMIT, DIFFERENTIATION IN THE BASIS UPON WHICH THEY ARE ACCEPTED FOR THE PERIOD OF TRAINING AND PRACTICE AT SAINT ELIZABETH-S.

AT FREEDMEN'S HOSPITAL, TRAINEES FOR THE SCHOOL OF NURSES ARE RECRUITED BY THE SCHOOL AND MUST MEET THE ENTRANCE REQUIREMENTS OF HOWARD UNIVERSITY WITH WHICH ARRANGEMENTS EXIST FOR TEACHING CERTAIN SUBJECTS. THEY ARE REGULARLY APPOINTED AND TAKE THE REQUIRED OATH OF OFFICE. THEIR POSITIONS ARE EXCEPTED FROM EXAMINATION UNDER SCHEDULE A OF THE CIVIL SERVICE RULES. THEY ARE PAID $120 PER YEAR AND MAINTENANCE VALUED AT $360. THEY HAVE NOT BEEN PAID OVERTIME COMPENSATION. FOR THE PERIOD FROM JULY 1 TO SEPTEMBER 30, 1943, THOSE TRAINEES WHO ENROLLED IN THE CORPS WERE PAID THE CASH ALLOWANCE OF $10 PER MONTH AND IN ADDITION THE STIPEND SPECIFIED IN THE BOLTON ACT; FURTHER PAYMENTS FROM THE REGULAR APPROPRIATION HAVE BEEN WITHHELD PENDING CLARIFICATION OF THE STATUS OF THE CADET STUDENTS.

THE COURSE OF TRAINING AT FREEDMEN'S HOSPITAL INCLUDES 84 DAYS ON AFFILIATION AT SAINT ELIZABETH'S FOR EXPERIENCE IN PSYCHIATRIC NURSING. DURING THIS PERIOD, THEY CONTINUE TO RESIDE IN THE NURSES' RESIDENCE AT FREEDMEN-S, AND ARE SERVED LUNCH AT SAINT ELIZABETH-S. THEY REMAIN ON THE PAY ROLL AT FREEDMEN'S AND RECEIVE NO OTHER COMPENSATION. ALSO FREEDMEN'S RECEIVES AFFILIATES FROM THE BREWSTER HOSPITAL SCHOOL OF NURSING IN FLORIDA FOR A PERIOD OF SIX MONTHS. THESE AFFILIATES RECEIVE NO CASH PAYMENT; THEIR SERVICES TO THE HOSPITAL ARE CONSIDERED AS COMPENSATION FOR THEIR TRAINING AND MAINTENANCE.

ACCORDINGLY, YOU ARE REQUESTED TO ADVISE (1) WHETHER STUDENT NURSES IN SCHOOLS OF NURSING AT SAINT ELIZABETH'S AND FREEDMEN'S HOSPITALS, WHO HAVE BEEN APPOINTED AS EMPLOYEES OF THE UNITED STATES MAY CONTINUE IN SUCH STATUS, SUBSEQUENT TO ENROLLMENT IN THE CORPS, (2) WHETHER SUCH INSTITUTIONS MAY CONTINUE TO EMPLOY STUDENT NURSES ON SUCH BASIS, REGARDLESS OF WHETHER THEY ARE OR ARE NOT ENROLLED IN THE CORPS, AND (3) IF SO, WHETHER THE COMPENSATION PAID, AT WHATEVER RATE IT MAY BE FIXED, IS SUBJECT TO THE WAR OVERTIME PAY ACT.

IF THE ANSWERS TO (1) AND (2) ARE AFFIRMATIVE, MAY SUCH INSTITUTIONS CONTINUE TO EMPLOY OR RECEIVE FOR TRAINING AFFILIATES (AND SENIOR CADET NURSES) FROM OTHER INSTITUTIONS ON THE SAME BASIS AS AFFILIATES HERETOFORE, PROVIDED THAT NO DUAL COMPENSATION IS INVOLVED?

ASIDE FROM STUDENTS IN THE SCHOOLS OF NURSING MAINTAINED AT FREEDMEN'S AND SAINT ELIZABETH'S AND AFFILIATES RECEIVED AS ABOVE DESCRIBED FOR THEIR SECOND YEAR TRAINING, STUDENT NURSES IN THE CORPS WHO ARE AT FEDERAL HOSPITALS WILL CONSIST LARGELY OR ENTIRELY OF SENIOR CADET NURSES WHO HAVE COMPLETED THE 15-21 MONTH PERIOD OF COMBINED STUDY AND PRACTICE WHICH FOLLOWS THE INITIAL 9 MONTH PERIOD OF STUDY. THE ACT REQUIRES THAT WHEN A SENIOR CADET NURSE UNDER AN APPROVED PLAN IN ANY INSTITUTION DESIRES TRANSFER TO A FEDERAL HOSPITAL, AND THE FEDERAL HOSPITAL HAS REQUESTED THE TRANSFER, THE INSTITUTION MUST MAKE SUCH TRANSFER, PROVIDED EXTRAMURAL CREDIT TOWARD GRADUATION CAN BE GIVEN UNDER THE LAW OF THE STATE IN WHICH THE INSTITUTION IS LOCATED. THE PURPOSE OF THIS IS TO INCREASE THE NUMBER OF SUCH STUDENT NURSES AVAILABLE TO MEET THE GROWING NEEDS OF FEDERAL HOSPITALS; SUCH SENIOR CADET NURSES MAY RENDER FULL-TIME NURSING SERVICE UNDER SUPERVISION IN THE INSTITUTIONS IN WHICH THE TRAINING PERIOD IS COMPLETED. WITH RESPECT TO AMOUNTS TO BE PAID STUDENT NURSES UNDER APPROVED PLANS, THE ACT REQUIRES ONLY THAT THE SCHOOL PAY A STIPEND OF NOT LESS THAN SPECIFIED AMOUNTS FOR EACH OF THE THREE PERIODS OF TRAINING. FOR THE SENIOR CADET PERIOD THIS MINIMUM IS $30 PER MONTH, AND WITH RESPECT TO THE SENIOR CADET NURSES IN GOVERNMENT HOSPITALS, WITH POSSIBLE EXCEPTION FOR THOSE WHICH OPERATE SCHOOLS OF NURSING AND REGULARLY APPOINT STUDENT NURSES AS EMPLOYEES, IT IS PROPOSED TO FIX A UNIFORM AMOUNT CONSIDERABLY HIGHER. NO PART OF THIS AMOUNT WILL BE PAID FROM FUNDS ALLOTTED UNDER THE ACT OF JUNE 15, 1943; SECTION 3 OF THAT ACT AUTHORIZED PAYMENTS TO INSTITUTIONS FOR STIPENDS PAID TO STUDENT NURSES ONLY DURING THE FIRST TWO PERIODS OF STUDY AND COMBINED STUDY AND PRACTICE.

YOU ARE REQUESTED TO ADVISE WHETHER THESE CONSIDERATIONS AFFECT YOUR DECISION OF NOVEMBER 10, AND THE CONCLUSION THAT "STUDENT NURSES," INCLUDING SENIOR CADET NURSES AT FEDERAL HOSPITALS, ARE NOT EMPLOYEES IN OR UNDER THE UNITED STATES GOVERNMENT WITHIN THE PURVIEW OF THE WAR OVERTIME PAY ACT OF 1943.

THE DECISION OF NOVEMBER 10, 1943, B-37690, 23 COMP. GEN. 358, WAS BASED SOLELY UPON THE FACTS PRESENTED IN YOUR SUBMISSION OF OCTOBER 15, 1943, THE APPLICABLE PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, 57 STAT. 75, PUBLIC LAW 49, AND SECTION 2 (E) AND (F) OF THE ACT OF JUNE 15, 1943, 57 STAT. 154. PUBLIC LAW 74. NOTHING APPEARED IN SAID SUBMISSION SUGGESTING THAT ANY OF THE CLASSES OF STUDENTS THEREIN DISCUSSED COMPRISED PERSONS ALREADY POSSESSING THE STATUS OF " CIVILIAN OFFICERS AND EMPLOYEES * * * IN OR UNDER THE UNITED STATES GOVERNMENT.' ON THE CONTRARY, IT WAS UNDERSTOOD FROM YOUR SUBMISSION THAT THE STUDENT NURSES THERE INVOLVED WERE PERSONS WHO HAD NO EXISTING STATUS AS AN OFFICER OR EMPLOYEE IN OR UNDER THE UNITED STATES GOVERNMENT, BUT RATHER PERSONS WHO FOR THE FIRST TIME WERE TO UNDERGO TRAINING IN CONNECTION WITH THE STUDENT NURSING PROGRAM AUTHORIZED BY THE ACT OF JUNE 15, 1943. MENTION WAS MADE IN YOUR SUBMISSION--- AND, OF COURSE, NO CONSIDERATION WAS GIVEN--- TO THE STUDENT NURSES AT SAINT ELIZABETH'S HOSPITAL AND FREEDMEN'S HOSPITAL WHO ALREADY HAD A PRIOR EXISTING STATUS AS EMPLOYEES IN OR UNDER THE UNITED STATES GOVERNMENT ACQUIRED UNDER EXISTING EMPLOYMENT PROCEDURES. SINCE THE DECISION WAS PREDICATED UPON THE PROPOSITION OF THE STUDENT NURSES NOR POSSESSING THE STATUS OF FEDERAL EMPLOYEES, IT DID NOT REQUIRE THE DISCONTINUANCE OF THE PAYMENT OF OVERTIME COMPENSATION TO "CIVILIAN OFFICERS AND EMPLOYEES * * * IN OR UNDER THE UNITED STATES GOVERNMENT" (QUOTING FROM SECTION 1 OF THE WAR OVERTIME PAY ACT OF 1943) OR REQUIRE ANY MODIFICATION IN EXISTING EMPLOYMENT PROCEDURES APPLICABLE TO EMPLOYEES OF THE UNITED STATES AT SAINT ELIZABETH'S HOSPITAL AND FREEDMEN'S HOSPITAL OR EMPLOYMENT PROCEDURES APPLICABLE IN THOSE INSTITUTIONS REGARDING STUDENT NURSES SIMPLY BECAUSE OF THE FACT THAT THEY HAD ENROLLED IN THE NEW STUDENT NURSE CORPS.

ACCORDINGLY, QUESTIONS (1) AND (2) ARE ANSWERED IN THE AFFIRMATIVE. REFERRING TO QUESTION 3 THE RULE STATED IN THE DECISION OF NOVEMBER 10, 1943, IS CORRECT AND IS APPLICABLE TO ALL STUDENT NURSES WHO DO NOT HAVE A STATUS OTHERWISE ACQUIRED AS AN EMPLOYEE IN OR UNDER THE UNITED STATES GOVERNMENT. HOWEVER, OVERTIME COMPENSATION IS PAYABLE TO STUDENT NURSES WHO HAVE THE STATUS AS EMPLOYEES OF THE UNITED STATES ACQUIRED UNDER EXISTING EMPLOYMENT PROCEDURES OTHERWISE THAN SOLELY BY ENROLLING IN THE STUDENT NURSE CORPS.

THE QUESTION POSED IN THE ANTEPENULTIMATE PARAGRAPH OF YOUR LETTER PRIMARILY IS NOT FOR THE CONSIDERATION OF THIS OFFICE SO LONG AS "NO DUAL COMPENSATION IS INVOLVED" QUOTING FROM THE QUESTION. NOTHING IN THE DECISION OF NOVEMBER 10, 1943, OR HEREIN, IS IN ANY WISE INTENDED TO AFFECT THE CONTINUATION OF THE ADMINISTRATIVE PRACTICE "TO EMPLOY OR RECEIVE FOR TRAINING AFFILIATES (AND SENIOR CADET NURSES) FROM OTHER INSTITUTIONS ON THE SAME BASIS AS AFFILIATES HERETOFORE.'

REFERRING TO THE QUESTION POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, YOU ARE ADVISED THAT NOTHING WAS PRESENTED IN YOUR LETTER OF OCTOBER 15, 1943, REGARDING THE STATUS OF SENIOR CADET NURSES NOR WAS ANY INFORMATION FURNISHED THAT THEY WERE IN ANY DIFFERENT STATUS THAN OTHER STUDENT NURSES; AND, ACCORDINGLY, NO CONSIDERATION WAS GIVEN TO THAT MATTER IN THE DECISION OF NOVEMBER 10, 1943. FURTHERMORE, YOUR PRESENT LETTER DOES NOT PRESENT A CLEAR PICTURE OF THE DISTINCTION SOUGHT TO BE DRAWN. HOWEVER, IF THEY ARE REGARDED AS LEAVING THE STATUS OF "STUDENT NURSES" WHO RECEIVE A "STIPEND" UNDER THE ACT OF JUNE 15, 1943, DURING THEIR SENIOR YEAR AND ARE EMPLOYED AND PAID A BASIC COMPENSATION OR SALARY AT A RATE ADMINISTRATIVELY PRESCRIBED AS FOR FEDERAL EMPLOYEES, IT FOLLOWS, OF COURSE, THAT THEY ARE "CIVILIAN * * * EMPLOYEES IN OR UNDER UNITED STATES GOVERNMENT" WITHIN THE MEANING OF SECTION 1 OF THE WAR OVERTIME PAY ACT OF 1943, AND ENTITLED TO RECEIVE OVERTIME COMPENSATION.