B-48616, APRIL 9, 1945, 24 COMP. GEN. 737

B-48616: Apr 9, 1945

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THERE IS NO AUTHORITY TO MAKE ADDITIONAL PAYMENTS AT THIS TIME TO EMPLOYEES HERETOFORE CORRECTLY PAID PURSUANT TO THE HOLDING IN SAID DECISION. 1945: I HAVE YOUR LETTER OF MARCH 20. INSTRUCTIONS WERE PUBLISHED IN THE POSTAL BULLETIN OF DECEMBER 26. SINCE PUBLICATION OF THESE INSTRUCTIONS INQUIRIES HAVE BEEN RECEIVED FROM POSTMASTERS AS TO WHETHER PAYMENT CAN BE MADE TO EMPLOYEES FOR OVERTIME SERVICE RENDERED BETWEEN DECEMBER 1. POSTMASTERS MAKING SUCH INQUIRIES HAVE BEEN INFORMED THAT SUCH PAYMENTS COULD BE MADE TO EMPLOYEES. THE INQUIRIES HAVE BEEN ANSWERED IN THIS MANNER UNDER THE ASSUMPTION THAT IT WAS THE INTENT OF CONGRESS TO PERMIT PAYMENT TO EMPLOYEES FOR OVERTIME SERVICE RENDERED BETWEEN DECEMBER 1.

B-48616, APRIL 9, 1945, 24 COMP. GEN. 737

OVERTIME COMPENSATION UNDER ACT OF DECEMBER 22, 1942 - PAYMENTS IN EXCESS OF STATUTORY LIMITATION - RELIEF ACT SCOPE UNDER THE ACT OF DECEMBER 7, 1944, RELIEVING EMPLOYEES OR FORMER EMPLOYEES FROM LIABILITY TO REPAY EXCESS OVERTIME COMPENSATION RECEIVED AS A RESULT OF APPLICATION OF THE $5,000 PER ANNUM SALARY RATE LIMITATION PRESCRIBED BY THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, ON A PAY-PERIOD BASIS RATHER THAN ON A DAILY BASIS, CONTRARY TO THE HOLDING IN DECISION IN 22 COMP. GEN. 953, AND AUTHORIZING REFUNDS OF AMOUNTS ALREADY REPAID TO THE UNITED STATES, THERE IS NO AUTHORITY TO MAKE ADDITIONAL PAYMENTS AT THIS TIME TO EMPLOYEES HERETOFORE CORRECTLY PAID PURSUANT TO THE HOLDING IN SAID DECISION.

ACTING COMPTROLLER GENERAL YATES TO THE POSTMASTER GENERAL, APRIL 9, 1945:

I HAVE YOUR LETTER OF MARCH 20, 1945, REFERENCE 50, AS FOLLOWS:

PURSUANT TO THE ENACTMENT OF PUBLIC LAW 466, APPROVED DECEMBER 7, 1944, INSTRUCTIONS WERE PUBLISHED IN THE POSTAL BULLETIN OF DECEMBER 26, 1944 FOR THE GUIDANCE OF POSTMASTERS IN MAKING AND ACCOUNTING FOR PAYMENTS WITHIN THE PURVIEW OF THE ACT.

SINCE PUBLICATION OF THESE INSTRUCTIONS INQUIRIES HAVE BEEN RECEIVED FROM POSTMASTERS AS TO WHETHER PAYMENT CAN BE MADE TO EMPLOYEES FOR OVERTIME SERVICE RENDERED BETWEEN DECEMBER 1, 1942 AND APRIL 30, 1943, FOR WHICH PAYMENT HAS HERETOFORE NOT BEEN MADE FOR THE REASON THAT THE AMOUNTS INVOLVED WOULD CAUSE THE DAILY RATE TO EXCEED $13.88, OR $208.33 FOR A SEMIMONTHLY PERIOD.

POSTMASTERS MAKING SUCH INQUIRIES HAVE BEEN INFORMED THAT SUCH PAYMENTS COULD BE MADE TO EMPLOYEES, PROVIDED THE AMOUNT INVOLVED WOULD NOT CAUSE THE EMPLOYEE'S AGGREGATE ADJUSTED EARNINGS FOR THE PERIOD TO EXCEED 5/12 OF $5,000, OR $2,083.33. THE INQUIRIES HAVE BEEN ANSWERED IN THIS MANNER UNDER THE ASSUMPTION THAT IT WAS THE INTENT OF CONGRESS TO PERMIT PAYMENT TO EMPLOYEES FOR OVERTIME SERVICE RENDERED BETWEEN DECEMBER 1, 1942 AND APRIL 30, 1943, PROVIDED THE TOTAL EARNINGS DURING SUCH PERIOD DID NOT EXCEED $2,083.33. IT IS FELT THAT IT WILL BE DISCRIMINATORY TO DENY PAYMENTS OF THIS CHARACTER TO EMPLOYEES WHO HAVE HERETOFORE NOT BEEN PAID AND RELIEVE EMPLOYEES WHO WERE PAID OF LIABILITY TO REPAY THE AMOUNTS TO THE UNITED STATES. WHILE THE ACT DOES NOT SPECIFICALLY REFER TO PAYMENTS WHICH HAVE NOT HERETOFORE BEEN MADE, IT APPEARS THAT THE TRANSACTIONS WOULD AUTOMATICALLY FALL WITHIN THE PURVIEW OF THE ACT AT THE TIME OF MAKING PAYMENT AS THE EMPLOYEES INVOLVED WOULD THEN BE RELIEVED OF LIABILITY TO REPAY THE AMOUNTS RECEIVED BY THEM.

DURING AN INFORMAL DISCUSSION OF THIS MATTER BETWEEN THE ASSISTANT COMPTROLLER OF THIS DEPARTMENT AND THE CHIEF OF THE POSTAL ACCOUNTS DIVISION OF THE GENERAL ACCOUNTING OFFICE, IT WAS LEARNED THAT THERE IS A DIFFERENCE OF OPINION WITH RESPECT TO THE PROPRIETY OF MAKING PAYMENTS WITHIN THE LIMITATION PRESCRIBED IN PUBLIC LAW 466 TO EMPLOYEES WHO HAVE HERETOFORE NOT BEEN PAID. IT IS UNDERSTOOD THAT CREDIT FOR PAYMENTS OF THIS CHARACTER WILL BE DISALLOWED IN THE AUDIT OF POSTMASTER'S ACCOUNTS BY THE POSTAL ACCOUNTS DIVISION OF THE GENERAL ACCOUNTING OFFICE. IT WAS MUTUALLY AGREED THAT THE QUESTION WOULD BE SUBMITTED TO YOUR OFFICE FOR CONSIDERATION.

IT WILL BE APPRECIATED IF YOU WILL CONSIDER THIS MATTER AND ADVISE ME WHETHER POSTMASTERS MAY PROPERLY PAY FOR OVERTIME SERVICE RENDERED BETWEEN DECEMBER 1, 1942 AND APRIL 30, 1943, FOR WHICH PAYMENT HAS NOT YET BEEN MADE AND IN AMOUNTS WHICH WILL NOT CAUSE THE AGGREGATE COMPENSATION TO EXCEED 5/12 OF $5,000 FOR THE PERIOD INVOLVED.

THE REFERRED-TO ACT OF DECEMBER 7, 1944, 58 STAT. 796, PUBLIC LAW 466, PROVIDES:

THAT EMPLOYEES OR FORMER EMPLOYEES OF THE UNITED STATES WHO WERE IN THE PURVIEW OF PUBLIC LAW 821, SEVENTY-SEVENTH CONGRESS, APPROVED DECEMBER 2, 1942, WHICH LAW WAS IN EFFECT FROM DECEMBER 1, 1942, TO APRIL 30, 1943, AND WHICH LIMITED THE OVERTIME COMPENSATION OF ANY EMPLOYEE TO AN AMOUNT WHICH "WILL NOT CAUSE HIS AGGREGATE COMPENSATION TO EXCEED A RATE OF $5,000 PER ANNUM," (1) ARE HEREBY RELIEVED OF LIABILITY TO REPAY TO THE UNITED STATES ANY AMOUNTS RECEIVED BY THEM FOR ANY PAY PERIOD WHICH WERE IN EXCESS OF THE MAXIMUM COMPENSATION TO WHICH THEY WERE ENTITLED FOR SUCH PERIOD UNDER THE PROVISIONS OF SAID PUBLIC LAW 821 AND (2) SHALL BE ENTITLED TO REFUNDS OF ANY SUCH AMOUNTS THAT THEY HAVE REPAID TO THE UNITED STATES: PROVIDED, THAT IN NO CASE SHALL THERE BE VALIDATED AGGREGATE PAYMENT TO AN EMPLOYEE IN EXCESS OF FIVE-TWELFTHS OF $5,000.

IN DECISION OF APRIL 12, 1943, 22 COMP. GEN. 953, THE FOLLOWING RULE WAS STATED (QUOTING FROM THE SYLLABUS):

THE DAY, RATHER THAN THE WEEK OR PAY PERIOD, IS TO BE REGARDED AS THE PROPER BASIS FOR APPLYING THE $5,000 PER ANNUM SALARY RATE LIMITATION PRESCRIBED BY THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, TO FULL TIME EMPLOYEES PAID ON A TIME BASIS, SO THAT INCREASED COMPENSATION ON AN OVERTIME BASIS--- WHETHER PRORATED OVERTIME FOR WORK DURING THE REGULARLY ESTABLISHED WORKWEEK OR EXTRA OVERTIME ON AN ACTUAL BASIS FOR WORK IN ADDITION TO SUCH REGULAR WORKWEEK--- MAY NOT BE PAID TO SUCH AN EMPLOYEE TO AN EXTENT THAT WOULD INCREASE HIS AGGREGATE COMPENSATION TO MORE THAN $13.88 ( 1/360 OF $5,000) FOR ANY ONE DAY.

HOWEVER, IT APPEARS THAT PRIOR TO RECEIPT OF NOTICE OF THAT RULE, CERTAIN AGENCIES OF THE GOVERNMENT APPLIED THE LIMITATION OF $5,000 PER ANNUM APPEARING IN THE OVERTIME LAW THEN IN EFFECT UPON A PAY PERIOD BASIS, RATHER THAN UPON A DAILY BASIS, AND THE ABOVE-QUOTED STATUTE OF DECEMBER 7, 1944, WHICH CLEARLY IS A RELIEF MEASURE, ONLY, WAS ENACTED SOLELY FOR THE BENEFIT OF EMPLOYEES WHO ALREADY HAD BEEN PAID UPON THE BASIS THAT THE $5,000 LIMITATION APPLIED TO THE PAY PERIOD RATHER THAN TO THE DAY. THE STATUTE DOES NOT AUTHORIZE PAYMENTS OF ADDITIONAL COMPENSATION TO ANYONE EXCEPT AS A REFUND OF AMOUNTS THAT THEY HAVE REFUNDED TO THE UNITED STATES BECAUSE OF THE APPLICATION OF THE RULE STATED BY THIS OFFICE. CERTAINLY, IF THE EMPLOYEES WERE PAID CORRECTLY, PURSUANT TO THE RULES STATED BY THIS OFFICE, THERE IS NOTHING IN THE ACT OF DECEMBER 7, 1944, WHICH WOULD AUTHORIZE PAYMENT TO THEM OF ANY ADDITIONAL COMPENSATION BECAUSE OF THE FACT THAT THE CONGRESS SAW FIT TO RELIEVE THOSE WHO WERE PAID INCORRECTLY.

ACCORDINGLY, THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.