B-40560, MARCH 24, 1944, 23 COMP. GEN. 719

B-40560, MARCH 24, 1944, 23 COMP. GEN. 719

COMPENSATION - OVERTIME - INTERMITTENT OR IRREGULAR EMPLOYEES WORKING OCCASIONAL FULL TIME PERIODS UNDER THE WAR OVERTIME PAY ACT OF 1943, AND REGULATIONS ISSUED PURSUANT THERETO, AN INTERMITTENT OR IRREGULAR EMPLOYEE WHO HAPPENS TO WORK ONE OR MORE WEEKS FULL TIME IS NOT TO BE REGARDED AS A FULL TIME EMPLOYEE ENTITLED TO ADDITIONAL COMPENSATION ON AN OVERTIME BASIS UNLESS AND UNTIL ADMINISTRATIVE ACTION IS TAKEN TO CLASSIFY OR REAPPOINT HIM ON A FULL TIME BASIS, WHICH ACTION WOULD BE PROSPECTIVELY EFFECTIVE ONLY, AND, THEREFORE, A "WHEN ACTUALLY EMPLOYED" EMPLOYEE EMPLOYED FOR INTERMITTENT SERVICE WHO, DURING A CERTAIN PERIOD OF THE EMPLOYMENT, WORKED THE NUMBER OF HOURS IN THE ADMINISTRATIVE WORKWEEK FOR FULL TIME EMPLOYEES IS NOT ENTITLED TO OVERTIME COMPENSATION FOR SUCH PERIOD.

COMPTROLLER GENERAL WARREN TO S. W. BREWER, DEPARTMENT OF AGRICULTURE, MARCH 24, 1944:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 2, 1944, AS FOLLOWS:

THE ENCLOSED SUPPLEMENTAL PAY ROLL BUREAU VOUCHER NO. 19609, MAKING AN ADJUSTMENT OF THE ,ADDITIONAL COMPENSATION" PAID DAVID B. O-KELLY, JR. UNDER THE WAR OVERTIME PAY ACT OF 1943, HAS BEEN PRESENTED TO ME FOR CERTIFICATION.

MR. O-KELLY WAS EMPLOYED EFFECTIVE JUNE 18, 1943 UNDER AN INDEFINITE WAR SERVICE APPOINTMENT FOR INTERMITTENT FIELD WORK WITH THE SOIL CONSERVATION SERVICE AS A CONSERVATION AID, SP-5, $5.00 PER DAY WAE. THE CONTINUITY OF THE WORK IS SUBJECT TO THE SEASONAL AND WEATHER CONDITIONS WHICH GENERALLY AFFECT AGRICULTURAL ACTIVITIES.

ON AUGUST 25, 1943, DUE TO FAVORABLE WORKING CONDITIONS, MR. O-KELLY COMPLETED THIRTY DAYS CONTINUOUS SERVICE (SIX DAYS PER WEEK, EIGHT HOURS PER DAY) WITHOUT BREAK. CONSEQUENTLY, ON AUGUST 26, 1943 HIS EMPLOYMENT STATUS CHANGED FROM THAT DEFINED AS AN " INTERMITTENT"WAE EMPLOYEE TO THAT DEFINED AS A " FULL TIME" WAE EMPLOYEE. ( THE DEFINITIONS USED ARE THOSE ESTABLISHED IN THE CIVIL SERVICE REGULATIONS, DEPARTMENTAL CIRCULAR NO. 424, DATED MAY 8, 1943). MR. O KELLY CONTINUED TO WORK FULL TIME UNTIL NOON OF SEPTEMBER 4, 1943 WHEN THERE OCCURRED A BREAK IN HIS SERVICE AND HIS EMPLOYMENT STATUS REVERTED TO THAT OF AN " INTERMITTENT" WAE EMPLOYEE.

IT IS NOW PROPOSED TO ADJUST THE ADDITIONAL COMPENSATION PAID MR. O KELLY AT THE RATE OF AN " INTERMITTENT" WAE EMPLOYEE, $1.0833 PER DAY, FOR THE PERIOD DURING WHICH HE TEMPORARILY ACQUIRED THE DEFINED STATUS OF A " FULL TIME" WAE EMPLOYEE. PLEASE ADVISE ME WHETHER OR NOT I MAY CERTIFY THE PAY ROLL FOR PAYMENT.

FULL TIME EMPLOYEES, EVEN THOUGH EMPLOYED AND PAID ON THE BASIS OF WHEN ACTUALLY EMPLOYED, ARE ENTITLED TO OVERTIME COMPENSATION UNDER SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, PUBLIC LAW 49. INTERMITTENT OR IRREGULAR EMPLOYEES ARE NOT ENTITLED TO ADDITIONAL COMPENSATION ON AN OVERTIME BASIS BUT ON THE BASIS PRESCRIBED IN SECTION 3 (A) OF SAID STATUTE.

SECTIONS 2 AND 5, PART II, OF THE CIVIL SERVICE REGULATIONS, DEPARTMENTAL CIRCULAR NO. 424, ISSUED UNDER THE WAR OVERTIME PAY ACT, PROVIDE:

SECTION 2. FULL-TIME EMPLOYEES.

FULL-TIME EMPLOYEES ARE EMPLOYEES WHO ARE REGULARLY REQUIRED TO WORK, AS A MINIMUM, THE NUMBER OF HOURS IN THE ADMINISTRATIVE WORKWEEK, SPECIFIED FOR EMPLOYEES IN THEIR RESPECTIVE GROUPS.

SECTION 5. INTERMITTENT OR IRREGULAR EMPLOYEES.

INTERMITTENT OR IRREGULAR EMPLOYEES ARE EMPLOYEES WHO ARE NOT REGULARLY REQUIRED TO WORK A SPECIFIED MINIMUM NUMBER OF HOURS. EMPLOYEES WHOSE WORK REQUIRES THEM TO REMAIN AT, OR WITHIN, THE CONFINES OF THEIR POST OF DUTY FOR MORE THAN FORTY HOURS PER WEEK, BUT DOES NOT REQUIRE THAT ALL OF THEIR TIME BE DEVOTED TO ACTUAL WORK, MAY BE CONSIDERED TO BE INTERMITTENT OR IRREGULAR EMPLOYEES, OR IN THE DISCRETION OF THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED, MAY BE CONSIDERED TO BE FULL-TIME EMPLOYEES HAVING SUCH ADMINISTRATIVE WORKWEEK AS IS SPECIFIED BY SUCH HEAD.

YOU STATE THAT MR. O-KELLY ORIGINALLY WAS EMPLOYED UNDER AN INDEFINITE WAR SERVICE APPOINTMENT FOR INTERMITTENT FIELD WORK UNDER WHICH IT IS UNDERSTOOD HE WAS NOT REGULARLY REQUIRED TO WORK, AS A MINIMUM, THE NUMBER OF HOURS IN THE ADMINISTRATIVE WORKWEEK, THAT IT DEVELOPED HE DID WORK FULL TIME DURING THE PERIOD COMMENCING ABOUT JULY 26 THROUGH NOON OF SEPTEMBER 4, 1943, BUT THAT NO ADMINISTRATIVE ACTION WAS TAKEN PURSUANT TO SECTION 5, PART II, OF THE REGULATIONS TO CLASSIFY HIM AS A FULL-TIME EMPLOYEE.

AN INTERMITTENT OR IRREGULAR EMPLOYEE WHO HAPPENS TO WORK ONE OR MORE WEEKS FULL TIME IS NOT TO BE REGARDED AS A FULL-TIME EMPLOYEE ENTITLED TO ADDITIONAL COMPENSATION ON AN OVERTIME BASIS UNLESS AND UNTIL ADMINISTRATIVE ACTION IS TAKEN TO CLASSIFY OR REAPPOINT THE EMPLOYEE ON A FULL-TIME BASIS, WHICH ACTION WOULD BE PROSPECTIVELY EFFECTIVE ONLY. THAT IS TO SAY, THE REGULATIONS DO NOT CONTEMPLATE THAT THE STATUS OF AN INTERMITTENT OR IRREGULAR EMPLOYEE AUTOMATICALLY CHANGES TO A FULL-TIME EMPLOYEE SOLELY BECAUSE OF THE FACT THAT HE HAPPENS TO WORK 48 HOURS IN ONE OR MORE WEEKS.

ACCORDINGLY, THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT. THE VOUCHER IS RETURNED HEREWITH.