B-40000, MARCH 1, 1944, 23 COMP. GEN. 645

B-40000, MARCH 1, 1944, 23 COMP. GEN. 645

OVERTIME COMPENSATION - PER HOUR EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING UNDER THE ACT OF DECEMBER 22, 1942, SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943, AND REGULATIONS THEREUNDER, PER HOUR EMPLOYEES AT THE BUREAU OF ENGRAVING AND PRINTING IN THE CLERICAL-MECHANICAL SERVICE WHO WORK 48 HOURS, 6 DAYS PER WEEK, AND WHO ARE PAID BASIC RATES OF COMPENSATION AS INCREASED BY THE ACT OF JUNE 26, 1936, FOR 313 DAYS PER ANNUM, EXCLUSIVE OF 52 SUNDAYS, SHOULD BE REGARDED AS FULL TIME EMPLOYEES RATHER THAN INTERMITTENT OR IRREGULAR EMPLOYEES, AND, THEREFORE, THE OVERTIME COMPENSATION OF SUCH EMPLOYEES IS REQUIRED TO BE COMPUTED AND PRORATED ON AN ANNUAL BASIS IN ACCORDANCE WITH THE RULE STATED IN 22 COMP. GEN. 868. 22 COMP. GEN. 615, AMPLIFIED. FULL TIME PER HOUR EMPLOYEES AT THE BUREAU OF ENGRAVING AND PRINTING IN THE CLERICAL-MECHANICAL SERVICE WHO ARE REQUIRED TO WORK IN EXCESS OF THE ADMINISTRATIVELY ESTABLISHED 48 HOUR WORKWEEK SHOULD BE PAID OVERTIME COMPENSATION UNDER THE WAR OVERTIME PAY ACT OF 1943 FOR WORK IN EXCESS OF 48 HOURS PER WEEK ON AN ACTUAL TIME BASIS--- NOT ON A PRORATED BASIS--- AT THE RATE OF ONE AND ONE-HALF TIMES THEIR BASIC HOURLY RATE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, MARCH 1, 1944:

I HAVE YOUR LETTER OF JANUARY 20, 1944, AS FOLLOWS:

PRIOR TO JULY 1, 1936, FORTY-EIGHT HOURS CONSTITUTED THE BASIC WORK WEEK FOR EMPLOYEES IN THE CLERICAL-1MECHANICAL SERVICE OF THE BUREAU OF ENGRAVING AND PRINTING. THESE EMPLOYEES ACTUALLY WORKED ONLY FORTY FOUR HOURS, BUT WERE PAID FOR A FULL DAY ON SATURDAY BECAUSE OF THE SATURDAY HALF-HOLIDAY LAW. ON JULY 1, 1936, UNDER AUTHORITY OF PUBLIC LAW 817, 74TH CONGRESS, THE MINIMUM HOURS PER WEEK FOR SUCH EMPLOYEES WERE SET AT FORTY, TO CONFORM TO THOSE OF EMPLOYEES IN THE TRADES AND CRAFTS, WHOSE WORK WEEK HAD PREVIOUSLY BEEN ESTABLISHED AT FORTY HOURS. IN ORDER THAT THESE EMPLOYEES, PAID AT AN HOURLY RATE, WOULD NOT SUFFER A REDUCTION IN WEEKLY PAY, THE ACT ALSO AUTHORIZED AN ADJUSTMENT IN THE HOURLY RATES. EMPLOYEES UNDER THIS CLASSIFICATION, WHO WERE THEREAFTER REQUIRED TO WORK MORE THAN FORTY HOURS IN ONE WEEK, WERE PAID STRAIGHT TIME AT THE ADJUSTED RATE FOR ALL HOURS WORKED.

IN DECEMBER, 1942, UNDER AUTHORITY OF PUBLIC LAW 821, 77TH CONGRESS THE BASIC WORK WEEK FOR THESE EMPLOYEES WAS CHANGED FROM FORTY TO FORTY-EIGHT HOURS. IN OUR LETTER TO YOU, DATED DECEMBER 31, 1942, WE PRESENTED THE QUESTION WHETHER THE ADJUSTMENT MADE UNDER THE ACT OF JUNE 26, 1936 ( PUBLIC LAW 817, 74TH CONGRESS) WAS PERMANENT OR IF, IN VIEW OF THE NEW LEGISLATION, A READJUSTMENT DOWNWARD WOULD HAVE TO BE MADE. THE ANSWER TO THIS QUESTION WAS, IN EFFECT, THAT THE ADJUSTMENT MADE IN 1936 WAS PERMANENT. IN CONNECTION WITH THIS QUESTION WE ASKED SPECIFICALLY WHAT THE OVERTIME RATE OF PAY WOULD BE FOR AN EMPLOYEE IN CM-1 AT 66 CENTS AN HOUR, AND THE ANSWER WAS 99 CENTS AN HOUR, THAT IS, ONE AND ONE-HALF TIMES 66 CENTS. ON THE BASIS OF THIS DECISION THE BUREAU OF ENGRAVING AND PRINTING HAS BEEN PAYING CLERICAL 1MECHANICAL EMPLOYEES STRAIGHT TIME FOR FORTY HOURS AND TIME AND ONE HALF FOR ALL HOURS WORKED OVER FORTY. FOR EXAMPLE, AN EMPLOYEE MAKING 66 CENTS AN HOUR WAS PAID 66 CENTS FOR FORTY HOURS AND 99 CENTS FOR EIGHT HOURS.

A REVIEW OF THE DECISIONS OF FEBRUARY 10, 1943 (22 COMP. GEN. 783) AND MARCH 5, 1943 (22 COMP. GEN. 868) HAS CREATED DOUBT AS TO WHETHER OUR METHOD OF COMPUTING THE COMPENSATION OF THESE EMPLOYEES ON THE FORTY-EIGHT HOUR BASIS IS CORRECT. IN THE DECISION OF FEBRUARY 10, 1943, TO THE SECRETARY OF COMMERCE, IT WAS HELD THAT A FULL TIME EMPLOYEE PAID ON A PER DIEM BASIS FOR EVERY DAY IN THE YEAR SHOULD BE PAID OVERTIME COMPENSATION IN ACCORDANCE WITH THE FORMULA PRESCRIBED IN THAT DECISION, WHICH CALCULATES THE OVERTIME ON A PER ANNUM BASIS AND ADDS THE DAILY RATE OF OVERTIME TO EVERY WORK DAY IN THE YEAR. IN THE DECISION OF MARCH 5, 1943, THE SAME RULES WERE APPLIED TO A PER DIEM EMPLOYEE WHO NORMALLY WORKS ON AND RECEIVES PAY FOR 313 DAYS OF THE YEAR, EXCEPT THAT THE FIGURE 313 WAS SUBSTITUTED FOR THE FIGURE 365 USED IN THE DECISION OF FEBRUARY 10. ALSO, IN THE DECISION RENDERED TO THE POSTMASTER GENERAL, DATED FEBRUARY 6, 1943 (22 COMP. GEN. 764, 767) IT WAS STATED THAT "THE OVERTIME FORMULA PRESCRIBED BY THE SAID JOINT RESOLUTION IS APPLICABLE TO ALL FULL TIME EMPLOYEES PAID ON A TIME BASIS WHO COME WITHIN THE PURVIEW OF THE LAW, REGARDLESS OF THE MEASURE OF TIME ON THE BASIS OF WHICH THEIR REGULAR COMPENSATION IS COMPUTED, * * *.' THIS STATEMENT WAS MADE WITH REFERENCE TO EMPLOYEES OF THE MAIL EQUIPMENT SHOPS IN THE CLERICAL 1MECHANICAL SERVICE, WITH HOURLY RATES OF COMPENSATION PRESCRIBED IN THE CLASSIFICATION ACT.

IN VIEW OF THESE DECISIONS, YOUR OPINION ON THE FOLLOWING QUESTIONS IS REQUESTED:

A. SHOULD THE COMPENSATION OF AN EMPLOYEE IN THE CLERICAL 1MECHANICAL SERVICE, WORKING FORTY-EIGHT HOURS A WEEK, BE CALCULATED ON THE BASIS OF THE BASIC RATE OF PAY FOR THE FIRST FORTY HOURS AND ONE AND ONE-HALF TIMES THE BASIC RATE FOR ALL HOURS OVER FORTY?

B. IF THE ANSWER TO A IS IN THE AFFIRMATIVE, WOULD THESE EMPLOYEES BE ENTITLED TO ADDITIONAL COMPENSATION AT THE RATE OF $300 PER ANNUM, UNDER SECTION 3B OF PUBLIC LAW NO. 49, 78TH CONGRESS, IF THE OVERTIME COMPENSATION IS LESS THAN THAT AMOUNT?

2. IF THE METHOD IN 1 ABOVE IS NOT CORRECT SHOULD THE FORMULA USED IN THE DECISION OF MARCH 5, 1943 (22 COMP. GEN. 868) BE FOLLOWED?

3. SHOULD SOME OTHER METHOD THAN THOSE MENTIONED HEREIN BE USED?

4. IF A METHOD OTHER THAN THAT GIVEN IN NO. 1 ABOVE IS THE CORRECT ONE, WHAT SHOULD BE THE HOURLY RATE OF PAY FOR HOURS WORKED IN EXCESS OF 48?

IF THE PRESENT METHOD (THAT IN NO. ABOVE) OF PAYING THE CLERICAL 1MECHANICAL EMPLOYEES IN THE BUREAU OF ENGRAVING AND PRINTING IS NOT CORRECT, AS OF WHAT DATE SHOULD THE CORRECT METHOD BE MADE EFFECTIVE?

IN A DECISION OF JANUARY 7, 1943, 22 COMP. GEN. 615, 617, AFTER QUOTING THE ACT OF JUNE 26, 1936, 49 STAT. 1969, IT WAS STATED:

THERE IS FOR NOTING THAT THE STATUTE LAST QUOTED ( ACT OF JUNE 26, 1936, 49 STAT. 1969) IS AN AMENDMENT OF THE STATUTE FIRST QUOTED( SEC. 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1935,48 STAT. 522). THE ACT OF MARCH 28, 1934, APPLICABLE TO EMPLOYEES IN THE TRADES AND OCCUPATIONS (CRAFTS) WHOSE WAGES ARE ADJUSTED FROM TIME TO TIME BY WAGE BOARDS OR OTHER WAGE FIXING AUTHORITIES, REQUIRED AN ADJUSTMENT OF WAGES FROM A FORTY-FOUR OR FORTY-EIGHT HOUR WEEK TO FORTY HOUR WEEK WITHOUT LOSS IN WEEKLY EARNINGS. SEE 13 COMP. GEN. 265, 401. ALSO, THE AMENDMENT OF JUNE 26, 1936, SO FAR AS IT APPLIES TO PER HOUR EMPLOYEES, OTHERWISE SUBJECT TO THE CLASSIFICATION ACT, 42 STAT. 1488, WHOSE REGULAR TOUR OF DUTY WAS REQUIRED TO BE REDUCED TO FORTY HOURS PER WEEK BECAUSE OF THE FACT THAT THEY WORKED WITH THE MECHANICS AND LABORERS COMING WITHIN THE PURVIEW OF THE EARLIER LAW, REQUIRED AN ADJUSTMENT OF WAGES FROM A FORTY-FOUR OR FORTY-EIGHT HOUR WEEK TO A FORTY HOUR WEEK WITHOUT LOSS IN WEEKLY EARNINGS. THAT SUCH WAS THE PURPOSE AND INTENT OF THE AMENDATORY STATUTE IS CLEARLY SHOWN FROM THE LEGISLATIVE HISTORY OF THE ENACTMENT, PARTICULARLY THE COMMITTEE REPORTS. SEE SENATE REPORT NO. 1219, 74TH CONGRESS, ST SESSION AND HOUSE REPORT NO. 2827, 74TH CONGRESS, 2D SESSION. HENCE, THERE SEEMS NO QUESTION BUT THAT THE BASIC RATES OF COMPENSATION PRESCRIBED BY THE CLASSIFICATION ACT FOR PER HOUR EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING, HERE INVOLVED, WHO CAME WITHIN THE PURVIEW OF THE AMENDATORY STATUTE OF 1936, WERE INCREASED BY REASON OF THE ADJUSTMENT REQUIRED BY THAT STATUTE.

IN OTHER WORDS, THE BASIC RATES OF COMPENSATION FOR EMPLOYEES IN THE CLERICAL-MECHANICAL SERVICE, FIXED BY THE CLASSIFICATION ACT, AS AMENDED BY THE ACT OF JULY 3, 1930, 46 STAT. 1004, WERE INCREASED BY THE ACT OF JUNE 26, 1936, SO FAR AS CONCERNS THE EMPLOYEES IN THE BUREAU OF ENGRAVING AND PRINTING. THERE HAS BEEN NO OTHER STATUTORY INCREASE IN THE BASIC RATES OF COMPENSATION FOR SUCH EMPLOYEES AS WAS THE CASE WITH RESPECT TO CHARWOMEN WORKING PART TIME AT THE BUREAU OF ENGRAVING AND PRINTING. COMPARE 22 COMP. GEN. 1130. THEREFORE, THE WARTIME ADDITIONAL COMPENSATION AUTHORIZED BY THE WAR OVERTIME PAY ACT OF 1943, 57 STAT. 76, PUBLIC LAW 49, IS REQUIRED TO BE COMPUTED ON THE BASIC RATES OF COMPENSATION FOR SUCH EMPLOYEES AS INCREASED BY THE ACT OF JUNE 26, 1936, SUPRA.

AS SUCH EMPLOYEES ARE FULL-TIME, RATHER THAN INTERMITTENT OR IRREGULAR EMPLOYEES, THE WARTIME ADDITIONAL COMPENSATION IS REQUIRED TO BE COMPUTED AND PRORATED ON AN ANNUAL BASIS IN ACCORDANCE WITH THE OVERTIME FORMULA PROVIDED BY SECTION 2 OF THE WAR OVERTIME PAY ACT, SUPRA, AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION THEREUNDER, RATHER THAN IN ACCORDANCE WITH THE FORMULA PRESCRIBED BY SECTION 3 (A) OF THAT STATUTE. THE OVERTIME FORMULA UNDER SECTION 2 OF THAT STATUTE AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION ARE THE SAME AS THAT PRESCRIBED BY JOINT RESOLUTION OF DECEMBER 22, 1942, 56 STAT. 1068, AND THE PRESIDENT'S REGULATIONS THEREUNDER. IN THE DECISION OF MARCH 5, 1943, 22 COMP. GEN. 868, TO WHICH YOU REFER, THE FOLLOWING RULE WAS STATED (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. SEE, ALSO, 22 COMP. GEN. 926, AND DECISION OF FEBRUARY 19, 1944, B-39778, 23 COMP. GEN. 608, TO THE SECRETARY OF THE NAVY.

AS IT IS UNDERSTOOD THE EMPLOYEES AT THE BUREAU OF ENGRAVING AND PRINTING IN THE CLERICAL-MECHANICAL SERVICE ARE PAID THEIR BASIC COMPENSATION FOR 313 DAYS PER ANNUM, EXCLUSIVE OF 52 SUNDAYS, THE ABOVE STATED RULE IS FOR APPLICATION IN COMPUTING THEIR WARTIME ADDITIONAL COMPENSATION IN ACCORDANCE WITH THE OVERTIME FORMULA PRESCRIBED BY THE JOINT RESOLUTION OF DECEMBER 22, 1942, AND THE PRESIDENT'S REGULATIONS THEREUNDER, AS WELL AS SECTION 2 OF THE WAR OVERTIME PAY ACT AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION THEREUNDER.

ACCORDINGLY, QUESTION A IS ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTION B, EXCEPT TO STATE AS TO THE LATTER QUESTION THAT ALL FULL-TIME EMPLOYEES ARE ENTITLED TO A MINIMUM OF $300 PER ANNUM ADDITIONAL WARTIME COMPENSATION, PURSUANT TO SECTION 3 (B) OF THE STATUTE, LIMITED TO 25 PERCENT OF THE EARNED BASIC COMPENSATION PURSUANT TO SECTION 3 (D) OF THE STATUTE.

QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE, IT BEING UNDERSTOOD THAT THE OVERTIME COMPENSATION, IN ACCORDANCE WITH THE RULE STATED IN THE CITED DECISIONS, IS TO BE COMPUTED ON THE BASIC COMPENSATION OF THE EMPLOYEES AS INCREASED BY THE ACT OF JUNE 26, 1936, SUPRA.

IN THE LIGHT OF THE ANSWER TO QUESTION 2, NO ANSWER IS REQUIRED TO QUESTION 3.

REFERRING TO QUESTION 4, OVERTIME COMPENSATION FOR WORK IN EXCESS OF 48 HOURS PER WEEK SHOULD NOT BE PRORATED, BUT SHOULD BE PAID ON AN ACTUAL TIME BASIS. 22 COMP. GEN. 778. HENCE, AN EMPLOYEE WHOSE BASE PAY IS 66 CENTS PER HOUR WOULD RECEIVE 99 CENTS PER HOUR FOR ADDITIONAL OVERTIME WORK.

REFERRING TO THE QUESTION POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, IT MAY BE STATED THAT THE DECISION OF JANUARY 7, 1943, B-31463, 22 COMP. GEN. 615, RELATED CHIEFLY TO WHAT CONSTITUTED BASIC COMPENSATION FOR PURPOSE OF APPLYING THE OVERTIME PROVISIONS OF JOINT RESOLUTION OF DECEMBER 22, 1942. WHILE IT WAS STATED IN SAID DECISION THAT "THE CORRECT RATES WOULD BE "/C) 66 CENTS AN HOUR FOR REGULAR TIME AND 99 CENTS AN HOUR FOR OVERTIME," " THAT STATEMENT WAS MADE WITHOUT ANY CONSIDERATION OF PRORATING THE OVERTIME--- THE PRORATING FORMULA FOR OVERTIME HAVING BEEN ESTABLISHED LATER. HENCE, ANY SEEMING MISSTATEMENT THEREIN WITH RESPECT TO THE METHOD OF RECKONING OVERTIME WAS CURED IN THE DECISIONS RENDERED SHORTLY THEREAFTER ABOVE CITED. IT HAS BEEN ASCERTAINED INFORMALLY THAT THE PAYMENT OF OVERTIME COMPENSATION UPON THE BASIS OF THE DECISION OF JANUARY 7, 1943--- RATHER THAN UPON THE PRORATING FORMULAS LATER ESTABLISHED--- HAS RESULTED IN PAYMENTS OF OVERTIME COMPENSATION TO THE INVOLVED EMPLOYEES IN AMOUNTS LESS THAN THOSE PROVIDED FOR BY THE APPLICABLE OVERTIME COMPENSATION LAWS. THAT BEING SO, THE CORRECT METHOD OF PRORATING OVERTIME ON THE BASIS OF 313 DAYS PER ANNUM ESTABLISHED IN THE CITED DECISIONS SHOULD BE MADE AS OF DECEMBER 1, 1942, THE EFFECTIVE DATE OF JOINT RESOLUTION OF DECEMBER 22, 1942, AND THE PRESIDENT'S REGULATIONS SPECIFICALLY AUTHORIZING THE PRORATING OF OVERTIME COMPENSATION.