B-43115, JULY 20, 1944, 24 COMP. GEN. 39

B-43115: Jul 20, 1944

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IS REQUIRED TO BE COMPUTED IS THE RATE RECEIVED DURING AN EMPLOYEE'S REGULAR HOURS OF LABOR OF NOT MORE THAN FORTY HOURS PER WEEK. VESTS NO DISCRETION TO EXCLUDE A NIGHT DIFFERENTIAL OR BONUS FIXED BY A WAGE BOARD OR OTHER WAGE- FIXING AUTHORITY FOR A REGULAR TOUR OF DUTY AT NIGHT FROM THE BASIC RATE OF COMPENSATION UPON WHICH THE OVERTIME COMPENSATION UNDER THE STATUTE IS TO BE COMPUTED FOR WORK IN EXCESS OF THE REGULAR FORTY HOUR WEEKLY TOUR OF DUTY. 23 COMP. IS TO BE REGARDED AS EFFECTIVE ON AND AFTER THE DATE OF THE STATUTE. ADMINISTRATIVE ACTION BY THE WAR DEPARTMENT IS REQUIRED TO RECOMPUTE PAY ROLLS AND TO MAKE RETROACTIVE PAYMENTS TO ALL EMPLOYEES STILL IN THE SERVICE WHO ARE AFFECTED BY THE RULE STATED IN DECISION OF JUNE 17.

B-43115, JULY 20, 1944, 24 COMP. GEN. 39

OVERTIME COMPENSATION - FORTY-HOUR WEEK EMPLOYEES - NIGHT WORK THE BASIC RATE OF COMPENSATION ON WHICH THE OVERTIME COMPENSATION PRESCRIBED BY THE FORTY-HOUR WEEK STATUTE OF MARCH 28, 1934, IS REQUIRED TO BE COMPUTED IS THE RATE RECEIVED DURING AN EMPLOYEE'S REGULAR HOURS OF LABOR OF NOT MORE THAN FORTY HOURS PER WEEK, REGARDLESS OF THE TIME DURING THE TWENTY-FOUR HOURS OF THE DAY OR THE SEVEN DAYS OF THE WEEK SUCH REGULAR HOURS OF LABOR MAY BE PERFORMED. THE FORTY-HOUR WEEK STATUTE OF MARCH 28, 1934, VESTS NO DISCRETION TO EXCLUDE A NIGHT DIFFERENTIAL OR BONUS FIXED BY A WAGE BOARD OR OTHER WAGE- FIXING AUTHORITY FOR A REGULAR TOUR OF DUTY AT NIGHT FROM THE BASIC RATE OF COMPENSATION UPON WHICH THE OVERTIME COMPENSATION UNDER THE STATUTE IS TO BE COMPUTED FOR WORK IN EXCESS OF THE REGULAR FORTY HOUR WEEKLY TOUR OF DUTY. 23 COMP. GEN. 962, AMPLIFIED. THE RULE STATED IN DECISION OF JUNE 17, 1944, 23 COMP. GEN. 962, WITH RESPECT TO THE INCLUSION OF A NIGHT DIFFERENTIAL IN COMPUTING THE OVERTIME COMPENSATION OF FORTY-HOUR WEEK EMPLOYEES, CONSTITUTES AN ORIGINAL CONSTRUCTION OF THE ACT OF MARCH 28, 1934, AND, ACCORDINGLY, IS TO BE REGARDED AS EFFECTIVE ON AND AFTER THE DATE OF THE STATUTE, AND AS AFFECTING ALL ACCOUNTS NOT SO ADJUSTED SINCE THAT DATE. ADMINISTRATIVE ACTION BY THE WAR DEPARTMENT IS REQUIRED TO RECOMPUTE PAY ROLLS AND TO MAKE RETROACTIVE PAYMENTS TO ALL EMPLOYEES STILL IN THE SERVICE WHO ARE AFFECTED BY THE RULE STATED IN DECISION OF JUNE 17, 1944, 23 COMP. GEN. 962, WITH RESPECT TO THE INCLUSION OF A NIGHT DIFFERENTIAL IN COMPUTING THE OVERTIME COMPENSATION OF FORTY-HOUR WEEK EMPLOYEES UNDER THE ACT OF MARCH 28, 934: HOWEVER, AS TO EMPLOYEES NOT NOW IN THE SERVICE, NO ACTION SHOULD BE TAKEN UNLESS AND UNTIL A CLAIM OVER THE SIGNATURE OF THE FORMER EMPLOYEE SHALL HAVE BEEN FILED (SEE 24 COMP. GEN. 9). AN EMPLOYEE COMING WITHIN THE PURVIEW OF THE FORTY-HOUR WEEK STATUTE OF MARCH 28, 1934, WHO IS GRANTED AUTHORIZED LEAVE OF ABSENCE WITH PAY FROM A REGULAR TOUR OF DUTY AT NIGHT IS ENTITLED TO RECEIVE DURING THE ABSENCE THE REGULAR RATE OF COMPENSATION (INCLUDING A NIGHT DIFFERENTIAL) FOR NIGHT DUTY RECEIVED BY HIM WHEN HE GOES ON LEAVE, WHETHER FOR A SHORT OR LONG PERIOD: BUT AN EMPLOYEE ROTATING ON DAY AND NIGHT SHIFTS WHO IS GRANTED LEAVE WHILE NOT ON THE NIGHT SHIFT DIFFERENTIAL IS NOT ENTITLED TO THE NIGHT DIFFERENTIAL WHILE ON LEAVE.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, JUNE 20, 1944:

I HAVE YOUR LETTER OF JULY 3, 1944, AS FOLLOWS:

IN VIEW OF YOUR DECISION OF JUNE 17, 1944 (B-41933) IN THE MATTER OF MR. STUART KELLY'S CLAIM FOR ADDITIONAL OVERTIME COMPENSATION FROM THE GOVERNMENT PRINTING OFFICE, THE DEPARTMENT HAS AN URGENT NEED FOR ANY ADVICE AND DECISION CONCERNING THE PROPRIETY OF A PRACTICE ADOPTED BY THIS AGENCY UNDER SIMILAR BUT NOT IDENTICAL CIRCUMSTANCES.

PAYMENT OF A DIFFERENTIAL OR BONUS FOR NIGHT WORK HAS BEEN AUTHORIZED FOR MANY INSTALLATIONS IN ORDER TO SECURE PERSONNEL FOR THE LESS DESIRABLE WORK SHIFTS AND TO MEET THE PRACTICE OF INDUSTRY IN THEIR RESPECTIVE AREAS. DURING THE LATTER PART OF 1943 MANY REQUESTS WERE RECEIVED FROM THE FIELD SERVICE FOR CLARIFICATION OF PAY COMPLICATIONS THAT HAD ARISEN AFTER ADOPTION OF NIGHT DIFFERENTIAL PAYMENT. THESE INQUIRIES RELATED PRIMARILY TO THE METHOD OF COMPUTING THE DIFFERENTIAL OR BONUS RATE, OVERTIME RATES, AND RETIREMENT CONTRIBUTIONS. A DILIGENT SEARCH OF THE DECISIONS OF YOUR OFFICE AND OF THE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION ON OVERTIME PAY AND RETIREMENT ADMINISTRATION FAILED TO DISCLOSE ANY APPLICABLE PRECEDENT. NOR DID THERE APPEAR TO BE ANY UNIFORMITY OF PRACTICE IN PRIVATE INDUSTRY IN THIS REGARD, THERE BEING EVIDENCE OF A VARIETY OF SUCH PRACTICES. IT WAS CONCLUDED THEREFORE THAT IT WAS WITHIN THE DEPARTMENT'S PROPER AUTHORITY TO ESTABLISH ITS OWN ADMINISTRATIVE REGULATIONS IN THIS MATTER, SUBJECT ONLY TO TWO QUALIFICATIONS: (1) THAT A BASIC CONSISTENCY BE OBSERVED IN ALL CONSIDERATIONS OF BASIC COMPENSATION (THAT IS, BOTH OVERTIME PAY AND RETIREMENT CONTRIBUTIONS MUST BE COMPUTED ON THE SAME BASE), AND (2) THAT THESE REGULATIONS BE CONCURRED IN (FOR RETIREMENT ADMINISTRATION PURPOSES) BY THE CIVIL SERVICE COMMISSION.

A CIVILIAN PERSONNEL CIRCULAR WAS PREPARED (LATER PUBLISHED AS CPC NO. 6, JANUARY 11, 1944) WHICH IS QUOTED IN FULL AS FOLLOWS:

"PAYMENT OF NIGHT DIFFERENTIAL FOR UNGRADED EMPLOYEES--- COMPUTATION OF OVERTIME COMPENSATION AND RETIREMENT DEDUCTIONS.--- IN THOSE INSTANCES WHERE A NIGHT DIFFERENTIAL HAS BEEN AUTHORIZED FOR INCUMBENTS OF UNGRADED POSITIONS, THE AMOUNT OF SUCH DIFFERENTIAL IS TO BE CONSIDERED AS AN ADDITION TO RATHER THAN A PART OF BASIC COMPENSATION. ACCORDINGLY, OVERTIME PAYMENTS AND RETIREMENT DEDUCTIONS WILL BE COMPUTED ONLY ON THE BASIC COMPENSATION, EXCLUDING ANY DIFFERENTIAL RECEIVED IN CONSIDERATION OF NIGHT WORK. SIMILARLY, THE NIGHT DIFFERENTIAL WILL BE COMPUTED ON THE SAME BASE RATE, EXCLUDING OVERTIME COMPENSATION.'

A DRAFT OF THIS ISSUANCE WAS SUBMITTED TO THE CIVIL SERVICE COMMISSION FOR COMMENT AND THE FOLLOWING REPLY RECEIVED:

"RECEIPT IS ACKNOWLEDGED OF YOUR LETTER DATED NOVEMBER 4, 1943, TRANSMITTING COPY OF THE DEPARTMENT'S PROPOSED CIVILIAN PERSONNEL CIRCULAR,"PAYMENT OF NIGHT DIFFERENTIAL FOR UNGRADED EMPLOYEES--- COMPUTATION OF OVERTIME COMPENSATION AND RETIREMENT DEDUCTIONS," AND REQUESTING THE COMMISSION'S COMMENTS THEREON.

"THE CIVIL SERVICE RETIREMENT ACT AUTHORIZES DEDUCTIONS ONLY FROM THE BASIC SALARY, PAY, OR COMPENSATION AND EXCLUDES FROM CONSIDERATION THEREUNDER ALL BONUSES, ALLOWANCES, OVERTIME PAY, OR SALARY GIVEN IN ADDITION TO THE BASE PAY OF THE POSITION AS FIXED BY LAW OR REGULATION. IN CASE OF ANY INCREASED SALARY INCREMENT, IT BECOMES NECESSARY TO DETERMINE WHETHER SAME IS AN INTEGRAL PART OF THE BASIC COMPENSATION OR MERELY AN ADDITIONAL ALLOWANCE OF BONUS OVER AND ABOVE THE BASIC PAY.

"AS REGARD THE 25 PERCENT DIFFERENTIAL ALLOWED CERTAIN EMPLOYEES SERVING BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES, THE COMPTROLLER GENERAL STATED THAT A DIFFERENTIAL WHEN FIXED PURSUANT TO PROPER AUTHORITY BECOMES PART OF THE REGULAR SALARY OR COMPENSATION OF THE POSITION (22 COMP. GEN. 79), AND THAT THIS DIFFERENTIAL CONSTITUTES A PART OF BASE COMPENSATION FROM WHICH RETIREMENT DEDUCTIONS ARE REQUIRED TO BE MADE (22 ID. 769). ANY DIFFERENTIAL, REGARDLESS OF THE REASON OR PURPOSE FOR ITS ALLOWANCE, BECOMES AN INTEGRAL PART OF BASIC SALARY UNLESS THE AUTHORIZATION UNDER WHICH ALLOWED NEGATIVES SUCH CONCLUSION.

"THE NIGHT DIFFERENTIAL BY THE UNGRADED POSITIONS HERE UNDER CONSIDERATION IS APPROVED IN THE FOLLOWING MANNER:

"BY AUTHORITY DELEGATED TO THE WAR DEPARTMENT WAGE ADMINISTRATION AGENCY BY THE NATIONAL WAR LABOR BOARD AND THE COMMISSIONER OF INTERNAL REVENUE, APPROVAL IS HEREBY GRANTED UNDER EXECUTIVE ORDER 9328 TO PAY A NIGHT SHIFT DIFFERENTIAL OF 5 PERCENT ABOVE APPROVED DAY RATES TO UNGRADED EMPLOYEES ASSIGNED TO SHIFTS OTHER THAN THE USUAL DAY SHIFT. (ITALICS SUPPLIED.)

"THE PHRASE "ABOVE APPROVED DAY RATES" IS NOT ENTIRELY CLEAR AS GOVERNING THE QUESTION HERE UNDER CONSIDERATION. IT IS APPARENT, HOWEVER, THAT THE DEPARTMENT DEFINITELY INTENDED THIS INCREASE TO CONSTITUTE A BONUS OR ADDITIONAL ALLOWANCE RATHER THAN AN INCREASE IN THE BASIC SALARY FOR THE POSITIONS. THE COMMISSION ACCORDINGLY CONCURS IN YOUR PROPOSED CIRCULAR TO THE EFFECT THAT RETIREMENT DEDUCTIONS WILL NOT BE WITHHELD FROM SUCH ADDITIONAL ALLOWANCE.'

DETERMINATION AS TO WHETHER A NIGHT DIFFERENTIAL IS TO BE PAID AT WAR DEPARTMENT ESTABLISHMENTS IN A GIVEN LOCALITY IS MADE BY THE WAR DEPARTMENT WAGE AGENCY AT THE TIME OF APPROVAL OF SCHEDULES FOR INSTALLATIONS WITHIN THE LOCALITY. THE WAGE AGENCY, OPERATING UNDER AUTHORITY DELEGATED TO THE SECRETARY OF WAR BY THE NATIONAL WAR LABOR BOARD, HAS UNIFORMLY FOLLOWED THE PRACTICE OF AUTHORIZING NIGHT DIFFERENTIALS UNDER THE CONDITIONS STATED IN THE ABOVE QUOTED CIRCULAR. IN A FEW INSTANCES, ARSENALS OF THE ORDNANCE DEPARTMENT HAVE NOT BEEN REQUIRED TO CONFORM TO THIS PRACTICE BECAUSE OF A LONG ESTABLISHED PRACTICE TO THE CONTRARY. IN ALL SUCH EXCEPTIONAL CASES, HOWEVER, THE DIFFERENTIAL HAS BEEN CONSIDERED AS A PART OF BASE PAY AND OVERTIME PAY AND RETIREMENT CONTRIBUTIONS ARE COMPUTED ACCORDINGLY. IN THOSE INSTANCES THEREFORE IT WILL BE SEEN THAT THERE HAS BEEN FULL COMPLIANCE WITH YOUR RECENT DECISION.

IT APPEARS THAT YOUR DECISION OF JUNE 17 RELIES HEAVILY ON THE PRACTICE OF THE GOVERNMENT PRINTING OFFICE IN CONSIDERING THE NIGHT DIFFERENTIAL AS A PART OF BASE PAY. THE FACT THAT RETIREMENT DEDUCTIONS WERE COMPUTED ON A RATE WHICH INCLUDED THE NIGHT DIFFERENTIAL IS RELIED ON HEAVILY IN YOUR DECISION. ANALYSIS OF THE DEPARTMENT'S GOVERNING CIRCULAR AND THE CIVIL SERVICE COMMISSION'S CONCURRENCE THEREIN SHOWS THAT THIS DEPARTMENT ADOPTED A CONTRARY VIEW, CONSIDERING THE ADDED COMPENSATION FOR NIGHT WORK AS A BONUS RATHER THAN A RATE ENTIRELY DIVORCED FROM THE BASIC DAY RATE APPLICABLE TO THE SAME TYPE OF WORK. IN THE ABSENCE OF A STATUTE OR OTHER REGULATION GOVERNING THIS MATTER, IT APPEARS THAT THE DEPARTMENT'S POSITION WAS VERY SIMILAR TO THAT OF THE POST OFFICE DEPARTMENT UNDER SECTION 828, TITLE 39 OF THE U.S.C. AND THAT OUR DECISION IN THE MATTER IS ENTIRELY CONSISTENT WITH YOUR DECISION IN 7 COMP. GEN. 778 AND 22 ID. 627.

THE DEPARTMENT WILL APPRECIATE YOUR EARLY CONSIDERATION AND REPLY TO THE FOLLOWING QUESTIONS:

1. DO THE ACT OF MARCH 28, 1934 (48 STAT. 522) AND YOUR DECISION REFERRED TO ABOVE RENDER THE DEPARTMENT'S CIRCULAR INVALID?

2. IF REPLY TO (1) ABOVE IS IN THE AFFIRMATIVE, IS IT REQUIRED THAT THE DEPARTMENT TAKE ACTION TO RECOMPUTE PAY ROLLS AND TO MAKE RETROACTIVE PAYMENT TO ALL EMPLOYEES AFFECTED? OR IN VIEW OF THE DEPARTMENT'S PRACTICE, WHICH WAS A MATTER OF RECORD, MAY YOUR DECISION BE CONSIDERED AS HAVING PROSPECTIVE EFFECT ONLY?

3. A FURTHER QUESTION HAS BEEN RAISED WITH REGARD TO THE RATE OF COMPENSATION TO BE PAID TO NIGHT SHIFT EMPLOYEES RECEIVING A NIGHT DIFFERENTIAL DURING PERIODS OF ANNUAL AND SICK LEAVE. IT IS SUGGESTED THAT THERE MAY BE A BASIS FOR DISTINGUISHING BETWEEN SHORT PERIODS OF LEAVE TAKEN DURING A WORK WEEK AND LONGER PERIODS OF ABSENCE FOR VACATION PURPOSES OR BECAUSE OF EXTENDED ILLNESS. IN ANY CASE, HOWEVER, YOUR ADVICE IS REQUESTED AS TO WHETHER SUCH PERIODS OF LEAVE WITH PAY SHOULD BE COMPENSATED FOR AT THE APPROVED DAY RATE OR AT A RATE WHICH WOULD INCLUDE THE NIGHT DIFFERENTIAL.

IT IS UNDERSTOOD FROM THE WORDING OF QUESTION 1 AND FROM ORAL INFORMATION RECEIVED FROM REPRESENTATIVES OF THE WAR DEPARTMENT THAT ALL OF THE EMPLOYEES HERE INVOLVED ARE IN "THE SEVERAL TRADES AND OCCUPATIONS" WHOSE "WEEKLY COMPENSATION * * * IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES" AND, THEREFORE, THAT THE COMPUTATION AND PAYMENT OF THEIR OVERTIME COMPENSATION ARE CONTROLLED BY THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, PROVIDING:

THE WEEKLY COMPENSATION, MINUS ANY GENERAL PERCENTAGE REDUCTION WHICH MAY BE PRESCRIBED BY ACT OF CONGRESS, FOR THE SEVERAL TRADES AND OCCUPATIONS, WHICH IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES, SHALL BE REESTABLISHED AND MAINTAINED AT RATES NOT LOWER THAN NECESSARY TO RESTORE THE FULL WEEKLY EARNINGS OF SUCH EMPLOYEES IN ACCORDANCE WITH THE FULL- TIME WEEKLY EARNINGS UNDER THE RESPECTIVE WAGE SCHEDULES IN EFFECT ON JUNE 1, 1932: PROVIDED, THAT THE REGULAR HOURS OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE HALF.

IN THE DECISION OF JUNE 17, 1944, B-41933, 23 COMP. GEN. 962, TO MR. STUART KELLY, IT WAS HELD, SO FAR AS HERE MATERIAL, AS FOLLOWS:

OVERTIME COMPENSATION IS PAYABLE UNDER THE TERMS OF THE ACT OF MARCH 28, 1934,"AT A RATE OF NOT LESS THAN TIME AND ONE HALF.' IT IS NOT BELIEVED THE CONGRESS INTENDED THEREBY ANY CONSTRUCTION OTHER THAN THAT THE OVERTIME RATE OF TIME AND ONE HALF FOR WORK IN ADDITION TO THE REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK SHOULD BE BASED UPON THE RATE RECEIVED BY THE EMPLOYEE DURING HIS REGULAR TOUR OF DUTY OF 40 HOURS-- THE EMPLOYEE'S BASE PAY--- REGARDLESS OF WHETHER THE REGULAR TOUR OF DUTY BE SERVED DURING THE DAY OR DURING THE NIGHT. * * * IT IS BELIEVED THE NIGHT RATE--- THAT IS, THE RATE OF COMPENSATION RECEIVED BY YOU DURING YOUR REGULAR TOUR OF DUTY AT NIGHT--- IS YOUR BASE PAY AND THAT THE OVERTIME COMPENSATION PROVIDED FOR UNDER THE 1934 STATUTE AT THE RATE OF NOT LESS THAN TIME AND ONE HALF SHOULD BE COMPUTED ON THE BASIS THEREOF DURING THE PERIOD OF YOUR CLAIM * * *.

THAT RULE IS APPLICABLE IN THE CASE OF ANY EMPLOYEE "WHOSE HOURS OF LABOR" AND "WEEKLY COMPENSATION" ARE AUTHORIZED AND REQUIRED TO BE FIXED IN ACCORDANCE WITH THE ACT OF MARCH 28, 1934, SUPRA. APPARENTLY, THE THEORY IS ADVANCED IN YOUR LETTER THAT THE STATUTE VESTS A DISCRETION IN A WAGE BOARD OR OTHER WAGE-FIXING AUTHORITY TO AUTHORIZE A NIGHT DIFFERENTIAL FOR A REGULAR TOUR OF DUTY AT NIGHT, EITHER (1) AS A PART OF THE BASE PAY TO BE INCLUDED IN COMPUTING OVERTIME COMPENSATION FOR WORK IN EXCESS OF THE REGULAR TOUR OF DUTY OF FORTY HOURS PER WEEK AT NIGHT, OR (2) AS A BONUS OR EXTRA COMPENSATION. IN FACT, THE RECORDS OF THIS OFFICE, AS WELL AS THE STATEMENTS CONTAINED IN YOUR LETTER, DISCLOSE THAT THE WAR DEPARTMENT ACTUALLY HAS USED BOTH METHODS FOR EMPLOYEES WORKING ON DIFFERENT ACTIVITIES OF THE WAR DEPARTMENT, ALTHOUGH THE HOURS OF DUTY AND COMPENSATION OF ALL OF THE EMPLOYEES IN THE SEVERAL TRADES AND OCCUPATIONS ARE CONTROLLED BY THE PROVISIONS OF THE SAME STATUTE OF 1934. IT IS UNDERSTOOD THAT AT THE ARSENALS METHOD (1) HAS BEEN USED FROM THE TIME A NIGHT DIFFERENTIAL WAS ESTABLISHED--- WHICH YOU DO NOT CONTEND WAS ERRONEOUS--- WHEREAS METHOD (2) HAS BEEN USED IN THE CASE OF OTHER ACTIVITIES OF THE WAR DEPARTMENT. THERE IS NOTHING EXPRESSED OR IMPLIED IN THE STATUTE FROM WHICH IT REASONABLY MAY BE CONCLUDED THAT SUCH A DISCRETION EXISTS. IT IS NOT TO BE PRESUMED THAT SUCH A LACK OF UNIFORMITY IN THE APPLICATION OF THE CONTROLLING STATUTE--- ESPECIALLY IN THE SAME DEPARTMENT--- BASED SOLELY UPON THE PLACE WHERE THE EMPLOYEE HAPPENS TO WORK, COULD HAVE BEEN CONTEMPLATED BY THE CONGRESS. UNLIKE THE STATUTES APPLICABLE TO POSTAL EMPLOYEES CONSIDERED IN THE DECISIONS OF THIS OFFICE TO WHICH YOU REFER, 7 COMP. GEN. 778; 22 ID. 627, THE 1934 STATUTE HERE UNDER CONSIDERATION MAKES NO REFERENCE TO REGULAR COMPENSATION, EXTRA COMPENSATION, DAY RATES, OR NIGHT RATES, AND PROVIDES NO OTHER METHOD FOR COMPUTING OVERTIME COMPENSATION THAN THAT APPEARING IN THE PROVISO, WHICH (1) LIMITS THE REGULAR HOURS OF LABOR TO FORTY PER WEEK AND (2) SPECIFICALLY FIXES THE MINIMUM LIMITATION ON OVERTIME COMPENSATION AS "THE RATE OF NOT LESS THAN TIME AND ONE HALF.' READING THE TWO PARTS OF THE PROVISO TOGETHER, NO OTHER CONCLUSION REASONABLY IS JUSTIFIED THAN THAT THE BASIC RATE OF COMPENSATION ON WHICH THE OVERTIME COMPENSATION IS REQUIRED TO BE COMPUTED IS THE RATE RECEIVED DURING AN EMPLOYEE'S "REGULAR HOURS OF LABOR" OF NOT MORE THAN FORTY HOURS, REGARDLESS OF THE TIME DURING THE TWENTY-FOUR HOURS OF THE DAY OR THE SEVEN DAYS OF THE WEEK SUCH REGULAR HOURS OF LABOR MAY BE PERFORMED. SEE WALLING V. WM. SCHOLLHORN CO., 54 FED. SUPP. 1022, REGARDING THE STATUS OF DIFFERENTIAL PAYMENT FOR NIGHT SHIFT WORK IN RESPECT OF THE FAIR LABOR STANDARDS ACT. WHILE WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES MAY HAVE DISCRETION IN FIXING BASIC RATES OF COMPENSATION FOR ANY TRADE OR OCCUPATION COMING WITHIN THE PURVIEW OF THE LAW FOR ANY PORTION OF THE TWENTY-FOUR HOURS AND MAY OR MAY NOT ESTABLISH A NIGHT DIFFERENTIAL, THEY HAVE NO DISCRETION UNDER THE STATUTE REGARDING THE METHOD FOR COMPUTING OVERTIME COMPENSATION AND MAY NOT FIX A LOWER RATE OF OVERTIME COMPENSATION THAN THE MINIMUM RATE PRESCRIBED BY THE STATUTE. REGARDLESS OF THE DESIGNATION THAT MAY BE GIVEN ADMINISTRATIVELY TO A NIGHT DIFFERENTIAL--- SEE WALLING V. WM. SCHOLLHORN CO., SUPRA--- IT MUST BE INCLUDED IN COMPUTING OVERTIME COMPENSATION UNDER THE STATUTE OF 1934. ACCORDINGLY, SO FAR AS THE PRESENT MATTER IS CONCERNED, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

THE RULE STATED IN THE DECISION OF JUNE 17, 1944, AND CONFIRMED IN THE ANSWER TO QUESTION 1, DOES NOT CHANGE OR MODIFY ANY PREVIOUS RULING BY THIS OFFICE ON THE QUESTION, BUT CONSTITUTES AN ORIGINAL CONSTRUCTION OF THE ACT OF MARCH 28, 1934, AND ACCORDINGLY, IS TO BE REGARDED AS EFFECTIVE ON AND AFTER THE DATE OF THE STATUTE, AND AS AFFECTING ALL ACCOUNTS NOT SO ADJUSTED SINCE THAT DATE. 12 COMP. DEC. 745; 4 COMP. GEN. 1002. CF. 3 COMP. GEN. 966; 4 ID. 636. NECESSARILY, THE DECISION OF JUNE 17, 1944, ITSELF INVOLVED A PERIOD PRIOR TO THE DATE OF THE DECISION. IN VIEW OF THE LACK OF UNIFORMITY IN THE ADMINISTRATIVE PRACTICE OVER A LONG PERIOD REGARDING THE MATTER INVOLVED--- BOTH IN THE WAR DEPARTMENT ITSELF AND AMONG THE SEVERAL DEPARTMENTS AND AGENCIES OF THE GOVERNMENT ADMINISTERING THE 1934 STATUTE--- THIS OFFICE FINDS NO PROPER BASIS UPON WHICH TO NEGATIVE THE CLAIMS OF CERTAIN GROUPS OF EMPLOYEES FOR SHORT PAYMENTS OF OVERTIME COMPENSATION OVER PAST PERIODS ON THE BASIS OF THE EXISTING ADMINISTRATIVE PRACTICE, AS YOU SUGGEST, OR BECAUSE OF THE WORK THAT MAY BE INVOLVED IN PROCESSING THE CLAIMS, AND AT THE SAME TIME NOT QUESTION SIMILAR PAYMENTS TO OTHER GROUPS OF EMPLOYEES PAID UNDER A DIFFERENT ADMINISTRATIVE PRACTICE. CF. 20 COMP. GEN. 53. AS HAVING AN IMPORTANT BEARING UPON THAT POINT, REFERENCE IS MADE TO THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF UNITED STATES V. MYERS, 320 U.S. 561, WHEREIN THE COURT ALLOWED OVERTIME COMPENSATION CONTRARY TO A LONG EXISTING ADMINISTRATIVE PRACTICE AND A DECISION OF THIS OFFICE FOR WORK PERFORMED BY CERTAIN CUSTOMS EMPLOYEES ON SUNDAYS AND HOLIDAYS OVER A LONG RETROACTIVE PERIOD, AND TO THE ACT OF JUNE 3, 1944, 58 STAT. 269, PUBLIC LAW 328, APPROPRIATING FUNDS WITH WHICH TO PAY SUCH CLAIMS. ACCORDINGLY, QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE AS TO EMPLOYEES NOW IN THE SERVICE. WITH REGARD TO EMPLOYEES NOT NOW IN THE SERVICE, NO ACTION SHOULD BE TAKEN UNLESS AND UNTIL A CLAIM OVER THE SIGNATURE OF THE FORMER EMPLOYEE SHALL HAVE BEEN FILED. AS TO THE PROCEDURE FOR FOLLOWING IN SUCH CLASS OF CASES SEE DECISION OF JULY 4, 1944, B-42776, 24 COMP. GEN. 9, TO THE WAR FOOD ADMINISTRATOR.

UNLIKE THE ANSWERS TO QUESTIONS 1 AND 2, THE ANSWER TO QUESTION 3, OF COURSE, IS DEPENDENT NOT ENTIRELY ON THE ACT OF MARCH 28, 1934, BUT, ALSO, ON THE PROVISIONS OF LAW AND REGULATION APPLICABLE TO THE GRANTING OF ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY. IN THE ABSENCE OF A STATUTE OTHERWISE PROVIDING, IT HAS BEEN HELD CONSISTENTLY THAT THE RATE OF COMPENSATION PAYABLE DURING LEAVE IS THE SAME RATE PAID WHILE THE EMPLOYEE IS WORKING AT THE TIME OF TAKING THE LEAVE, REGARDLESS OF THE RATE RECEIVED WHEN THE LEAVE WAS EARNED. 15 COMP. GEN. 879; 17 ID. 348, 646; 19 ID. 1015; 23 ID. 904. CF. 12 COMP. GEN. 602. WHILE NONE OF THESE DECISIONS CONSIDERED THE QUESTION HERE PRESENTED, NEVERTHELESS, AS THE NIGHT DIFFERENTIAL PROPERLY IS TO BE REGARDED AS A PART OF THE BASE PAY OF THE EMPLOYEE WHOSE REGULAR TOUR OF DUTY IS AT NIGHT, I AM UNABLE TO CONCLUDE OTHERWISE THAN THAT SUCH EMPLOYEES ARE ENTITLED UNDER THE 1934 STATUTE TO THE SAME WEEKLY COMPENSATION WHILE ON AUTHORIZED LEAVE OF ABSENCE WITH PAY FROM A REGULAR TOUR OF DUTY AT NIGHT THAT THEY WOULD HAVE RECEIVED HAD THEY REMAINED ON DUTY. THAT IS TO SAY, THE REGULAR RATE OF COMPENSATION FOR NIGHT DUTY RECEIVED BY THE EMPLOYEE WHEN HE GOES ON LEAVE CONTINUES DURING THE PERIOD OF LEAVE, WHETHER FOR A SHORT OR LONG PERIOD. WHERE EMPLOYEES ROTATE ON DAY AND NIGHT SHIFTS, AND LEAVE IS GRANTED WHILE AN EMPLOYEE IS NOT ON THE NIGHT SHIFT AND IS NOT RECEIVING THE NIGHT DIFFERENTIAL WHEN HE GOES ON LEAVE, IT FOLLOWS, OF COURSE, THAT HE IS NOT ENTITLED TO THE NIGHT DIFFERENTIAL WHILE ON LEAVE. QUESTION 3 IS ANSWERED ACCORDINGLY. COMPARE THE ACT OF JULY 1, 1944, 58 STAT. 648, PUBLIC 394, APPLICABLE TO A CLASS OF EMPLOYEES NOT UNDER THE 1934 STATUTE.