B-39778, FEBRUARY 19, 1944, 23 COMP. GEN. 608

B-39778, FEBRUARY 19, 1944, 23 COMP. GEN. 608

ADDITIONAL OVERTIME COMPENSATION UNDER WAR OVERTIME PAY ACT OF 1943 - CONTRACT EMPLOYEES NAVY DEPARTMENT CONTRACT EMPLOYEES, EVEN THOUGH EMPLOYED AND PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED," WHO WORK AN ADMINISTRATIVELY ESTABLISHED 48 HOUR WORKWEEK MAY BE REGARDED AS FULL TIME EMPLOYEES SO AS TO ENTITLE THEM TO INCREASED COMPENSATION UNDER SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943, ON THE BASIS OF THE OVERTIME FORMULA PRESCRIBED THEREIN; AND THE OVERTIME COMPENSATION FOR SUCH FULL TIME EMPLOYEES MAY BE PRORATED OVER THE ENTIRE YEAR AND THE PRORATED AMOUNT PAID FOR EACH DAY THE EMPLOYEE IS REQUIRED TO WORK. UNDER THE WAR OVERTIME PAY ACT OF 1943, AND REGULATIONS ISSUED THEREUNDER, THE PRORATED OVERTIME COMPENSATION FOR ONE DAY FOR FULL TIME CONTRACT EMPLOYEES WHO WORK A 48 HOUR ADMINISTRATIVELY ESTABLISHED WORKWEEK AND WHO ARE PAID ON A PER DIEM BASIS FOR EVERY DAY IN THE YEAR EXCEPT SUNDAYS SHOULD BE COMPUTED BY MULTIPLYING THE BASIC DAILY RATE BY 313 (365 LESS 52 SUNDAYS) TO DETERMINE THE EQUIVALENT ANNUAL RATE, WHICH RATE SHOULD BE DIVIDED BY 360 TO ASCERTAIN THE DAILY RATE FOR OVERTIME PURPOSES, AND SUCH DAILY RATE SHOULD BE MULTIPLIED BY ONE AND ONE-HALF (THE OVERTIME RATE) AND THAT AMOUNT MULTIPLIED BY 52 (WEEKS IN A YEAR) TO DETERMINE THE PER ANNUM OVERTIME RATE, FROM WHICH THE DAILY RATE OF OVERTIME COMPENSATION IS OBTAINED BY DIVIDING THE SAID PER ANNUM OVERTIME RATE BY 313. WHERE FULL TIME CONTRACT EMPLOYEES PAID COMPENSATION ON A PER DIEM BASIS FOR EVERY DAY OF THE YEAR EXCEPT SUNDAYS ARE REQUIRED TO PERFORM WORK ON SUNDAYS, IN ADDITION TO THE REGULARLY ESTABLISHED 48 HOUR WORKWEEK, ADDITIONAL OVERTIME COMPENSATION FOR WORK PERFORMED ON SUNDAYS SHOULD BE PAID UNDER THE WAR OVERTIME PAY ACT OF 1943 ON AN ACTUAL TIME BASIS--- NOT ON A PRORATED BASIS--- AT THE RATE OF ONE AND ONE-HALF TIMES THE PER DIEM EQUIVALENT OF THE EMPLOYEE'S BASIC RATE OF COMPENSATION NOT IN EXCESS OF $2,900 PER ANNUM, THAT IS, ONE AND ONE HALF TIMES $8.05 ( 1/360 OF $2,900 PER ANNUM). UNDER THE WAR OVERTIME PAY ACT OF 1943, AND REGULATIONS ISSUED THEREUNDER, OVERTIME COMPENSATION FOR FULL TIME CONTRACT EMPLOYEES WHO ARE REQUIRED TO WORK EVERY CALENDAR DAY OF THE FISCAL YEAR 1944--- WHICH CONTAINS 366 DAYS--- AND RECEIVE PER DIEM COMPENSATION FOR EVERY DAY OF THE YEAR SHOULD BE COMPUTED BY MULTIPLYING THE PRESENT DAILY RATE OF 366 DAYS TO DETERMINE THE ANNUAL RATE, WHICH SHOULD BE DIVIDED BY 360 TO ASCERTAIN THE DAILY RATE FOR OVERTIME PURPOSES, AND SUCH DAILY RATE SHOULD BE MULTIPLIED BY ONE AND ONE-HALF (THE OVERTIME RATE) AND THAT AMOUNT MULTIPLIED BY 52 (WEEKS IN A YEAR) TO DETERMINE THE PER ANNUM OVERTIME RATE, FROM WHICH AMOUNT THE DAILY RATE OF OVERTIME COMPENSATION IS OBTAINED BY DIVIDING THE SAID PER ANNUM OVERTIME RATE BY 366.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, FEBRUARY 19, 1944:

I HAVE YOUR LETTER OF JANUARY 17, 1944 (YOUR FILE PS AND M-1A VS:EL), AS FOLLOWS:

PURSUANT TO YOUR DECISION (B-38185) OF 30 NOVEMBER 1943 (23 COMP. GEN. 398) CONCERNING THE PAYMENT OF OVERTIME COMPENSATION TO CONTRACT EMPLOYEES OF THE NAVAL ESTABLISHMENT, THE NAVY DEPARTMENT PROMULGATED TO THE SERVICE A CIRCULAR LETTER OF INSTRUCTIONS DATED 15 DECEMBER, 1943, COPY OF WHICH IS ENCLOSED. THE INSTRUCTIONS CONTAINED IN THIS LETTER WERE PREDICATED ON THE ASSUMPTION THAT ALL CONTRACT EMPLOYEES IN THE NAVAL ESTABLISHMENT WORKING FULL TIME, WERE EMPLOYED ON THE BASIS OF WORKING EVERY WORK-DAY IN THE YEAR, NAMELY 313 (365 52).

THE COMMANDANT OF THE FIFTEENTH NAVAL DISTRICT HAS REFERRED TO THE NAVY DEPARTMENT THE CASES OF TWO CONTRACT EMPLOYEES WHOSE CONTRACT TERMS ARE STATED BELOW, AND WHOM HE PROPOSES TO PAY OVERTIME COMPENSATION, UNDER THE TERMS OF THE CIRCULAR LETTER OF 15 DECEMBER 1943, AS INDICATED IN EACH CASE.

(A) CHARLES W. MELONEY IS EMPLOYED UNDER CONTRACT NO. N5085-433 DATED 1 JULY 1943, WHICH PROVIDES FOR SERVICES TO BE RENDERED MONDAYS THROUGH SATURDAYS INCLUSIVE PLUS ONE SUNDAY PER MONTH DURING THE PERIOD 1 JULY 1943 TO 30 JUNE 1944 AT $22.00 PER DIEM.

CHART

PROPOSED PAYMENT FOR PERIOD 16 TO 31 JANUARY 1944:

DAYS WORKED 14 TIMES $22.00---------------------------$308.00

PRORATED OVERTIME 13 TIMES $2.00745-------------------$ 26.09

ADDITIONAL OVERTIME, 1 DAY----------------------------$ 12.08

TOTAL PAY-------------------------------------$346.17

(B) RALPH DAVID MOYER IS EMPLOYED UNDER CONTRACT NO. N508S-434 DATED 1 JULY 1943 WHICH PROVIDES FOR SERVICES TO BE RENDERED EACH CALENDAR DAY FROM 1 JULY 1943 TO 30 JUNE 1944 INCLUSIVE AT $25.00 PER DIEM.

CHART

PROPOSED PAYMENT FOR PERIOD 16 TO 31 JANUARY 1944:

DAYS WORKED 16 TIMES $25.00---------------------------$400.00

PRORATED OVERTIME 13 TIMES $2.00745-------------------$ 26.09

ADDITIONAL OVERTIME, 3 TIMES $12.08-------------------$ 36.24

TOTAL PAY-------------------------------------$462.33

IN THE LIGHT OF YOUR DECISION OF 10 FEBRUARY 1943 (22 COMP. GEN. 783), A RULING IS REQUESTED CONCERNING THE PROPER METHOD OF COMPUTING BOTH PRORATED AND ADDITIONAL OVERTIME IN THE CASES ABOVE MENTIONED.

INFORMATION IS ALSO REQUESTED AS TO WHETHER THE INSTRUCTIONS CONTAINED IN THE DEPARTMENT'S CIRCULAR LETTER OF 15 DECEMBER 1943 CONCERNING THE COMPUTATION OF PRORATED AND ADDITIONAL OVERTIME IN THE CASE OF FULL-TIME CONTRACT EMPLOYEES ON A 313 WORK-DAY PER YEAR BASIS IS PROPER.

CONTRACT EMPLOYEES, EVEN THOUGH EMPLOYED AND PAID, ON THE BASIS OF "WHEN ACTUALLY EMPLOYED," WHO WORK 48 HOURS PER WEEK, THAT IS, EVERY DAY OF THE YEAR EXCEPT SUNDAYS--- THE ADMINISTRATIVELY ESTABLISHED WORKWEEK FOR REGULAR EMPLOYEES OF THE NAVY DEPARTMENT--- ARE TO BE REGARDED AS FULL- TIME EMPLOYEES AND, AS SUCH, THEY ARE ENTITLED TO WARTIME ADDITIONAL COMPENSATION ON THE BASIS OF THE OVERTIME FORMULA PRESCRIBED UNDER SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, 57 STAT. 76, PUBLIC LAW 49, RATHER THAN TO BE REGARDED AS INTERMITTENT OR IRREGULAR EMPLOYEES WHOSE WARTIME ADDITIONAL COMPENSATION IS CONTROLLED BY SECTION 3 (A) OF SAID STATUTE. THE OVERTIME COMPENSATION FOR SUCH FULL-TIME EMPLOYEES MAY BE PRORATED OVER THE ENTIRE YEAR AND THE PRORATED AMOUNT PAID FOR EACH DAY THE EMPLOYEE IS REQUIRED TO WORK. SEE SECTION 2, PART II, AND SECTIONS 1 AND 2, PART III, OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, DEPARTMENTAL CIRCULAR NO. 424, DATED MAY 8, 1943. ALSO, SEE 22 COMP. GEN. 851. THE FORMULA FOR COMPUTING OVERTIME COMPENSATION UNDER SECTION 2 OF THE ACT OF MAY 7, 1943, IS THE SAME AS WAS PROVIDED UNDER JOINT RESOLUTION OF DECEMBER 22, 1942, 56 STAT. 1068, AND THE REGULATIONS OF THE PRESIDENT ISSUED THEREUNDER, EXECUTIVE ORDER NO. 9289, DATED DECEMBER 28, 1942. IN DECISION OF MARCH 30, 1943, 22 COMP. GEN. 926, IT WAS HELD (QUOTING FROM THE SYLLABUS):

UNDER THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, AND EXECUTIVE ORDER NO. 9289 ISSUED IN CONNECTION THEREWITH, THE PRORATED OVERTIME COMPENSATION FOR ONE DAY FOR FULL TIME EMPLOYEES WHO REGULARLY WORK A 6 DAY 48 HOUR WEEK AND WHO ARE PAID ON A PER DIEM BASIS FOR EVERY DAY IN THE YEAR EXCEPT SUNDAYS SHOULD BE COMPUTED BY MULTIPLYING THE BASIC DAILY RATE BY 313 (365 LESS 52 SUNDAYS) TO DETERMINE THE EQUIVALENT ANNUAL RATE, WHICH RATE SHOULD BE DIVIDED BY 360 TO ASCERTAIN THE DAILY RATE FOR OVERTIME PURPOSES, AND SUCH DAILY RATE SHOULD BE MULTIPLIED BY ONE AND ONE -HALF (THE OVERTIME RATE) AND THAT AMOUNT MULTIPLIED BY 52 (WEEKS IN A YEAR) TO DETERMINE THE PER ANNUM OVERTIME RATE, FROM WHICH THE DAILY RATE OF OVERTIME COMPENSATION IS OBTAINED BY DIVIDING THE SAID PER ANNUM OVERTIME RATE BY 313. 22 COMP. GEN. 868, AMPLIFIED. COMPARE 23 COMP. GEN. 13.

WHEN WORK IS PERFORMED ON SUNDAY IN ADDITION TO THE REGULAR WORKWEEK OF THE EMPLOYEES, OVERTIME COMPENSATION IS PAYABLE, NOT ON A PRORATED BASIS BUT ON AN ACTUAL TIME BASIS. 22 COMP. GEN. 778. OF COURSE, OVERTIME COMPENSATION IS LIMITED TO AN "EMPLOYEE'S BASIC RATE OF COMPENSATION NOT IN EXCESS OF $2,900 PER ANNUM" (QUOTING FROM THE STATUTE), WHICH IN THE FIRST CASE PRESENTED, WOULD BE DIVISIBLE BY 313 DAYS PER ANNUM, OR $9.27 PER DIEM. THE ADDITIONAL OVERTIME COMPENSATION FOR SUNDAY WOULD BE ONE AND ONE-HALF TIMES $8.05 ( 1/360 OF $2,900 PER ANNUM). 22 COMP. GEN. 953.

ACCORDINGLY, THE COMPUTATION IN THE FIRST CASE PRESENTED, THAT OF CHARLES W. MELONEY, APPEARS TO BE CORRECT.

HOWEVER, THE CONTRACT IN THE SECOND CASE PRESENTED, THAT OF RALPH DAVID MOYER, APPEARS TO REQUIRE WORK ON EACH CALENDAR DAY OF THE FISCAL YEAR 1944, WHICH CONTAINS 366 DAYS ( FEBRUARY 1944, CONTAINING 29 DAYS). BEING UNDERSTOOD THAT THE CONTRACT SALARY RATE OF $25 PER DIEM IS NOT A DIVISION OF $9,000 PER ANNUM (THE MAXIMUM SALARY RATE PRESCRIBED BY THE CLASSIFICATION ACT, 42 STAT. 1488) ON THE BASIS OF 360 DAYS PER ANNUM AS REQUIRED BY THE ACT OF JUNE 30, 1906, 34 STAT. 763, BUT IS, RATHER, A PER DIEM RATE AUTHORIZED BY LAW INDEPENDENTLY OF THE CLASSIFICATION ACT, THERE WOULD BE APPLICABLE IN COMPUTING THE OVERTIME COMPENSATION IN THAT CASE THE FOLLOWING RULE STATED IN THE DECISION OF FEBRUARY 10, 1943, 22 COMP. GEN. 783 (QUOTING FROM THE SYLLABUS), EXCEPT THAT 366 DAYS DURING THE YEAR SHOULD BE SUBSTITUTED IN LIEU OF 365 DAYS USED IN THE FORMULA:

UNDER THE OVERTIME ACT OF DECEMBER 22, 1942, AND EXECUTIVE ORDER NO. 9289, ISSUED IN CONNECTION THEREWITH, OVERTIME COMPENSATION FOR FULL TIME EMPLOYEES WHO RECEIVE PER DIEM COMPENSATION FOR EVERY DAY OF THE YEAR SHOULD BE COMPUTED BY MULTIPLYING THE PRESENT DAILY RATE BY 365 TO DETERMINE THE ANNUAL RATE, WHICH SHOULD BE DIVIDED BY 360 TO ASCERTAIN THE DAILY RATE FOR OVERTIME PURPOSES, AND SUCH DAILY RATE SHOULD BE MULTIPLIED BY ONE AND ONE-HALF (THE OVERTIME RATE) AND THAT AMOUNT MULTIPLIED BY 52 (WEEKS IN A YEAR) TO DETERMINE THE PER ANNUM OVERTIME RATE, FROM WHICH AMOUNT THE DAILY RATE OF OVERTIME COMPENSATION IS OBTAINED BY DIVIDING THE SAID PER ANNUM OVERTIME RATE BY 365. HENCE, ON THE BASIS OF THE RULE JUST STATED, IT CAN BE SEEN THAT THE COMPUTATION IN THE CASE OF RALPH DAVID MOYER IS NOT CORRECT.

THE CIRCULAR LETTER OF DECEMBER 15, 1943, FORWARDED WITH YOUR LETTER APPEARS CORRECT FOR APPLICATION TO EMPLOYEES WHO ARE REQUIRED BY THEIR CONTRACTS TO WORK ONLY 313 DAYS PER ANNUM, INCLUDING SUNDAYS, BUT THE FORMULA WOULD NOT BE APPLICABLE TO THE CASE OF RALPH DAVID MOYER AND SIMILAR CASES.