B-50927, JULY 18, 1945, 25 COMP. GEN. 62

B-50927: Jul 18, 1945

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THE ISSUANCE OF REGULATIONS IN RESPECT OF SUCH COMPENSATORY TIME IS NOT MANDATORY. THERE IS NO DISCRETION VESTED BY SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IN THE HEAD OF AN AGENCY TO GRANT COMPENSATORY TIME OFF FROM DUTY IN LIEU OF OVERTIME COMPENSATION FOR OCCASIONAL OR IRREGULAR OVERTIME SERVICE IN EXCESS OF 48 HOURS IN ANY ADMINISTRATIVE WORKWEEK. OVERTIME COMPENSATION MAY NOT BE DENIED WHERE THE FAILURE IS DUE TO AN EXIGENCY OF THE SERVICE BEYOND THE EMPLOYEE'S CONTROL. IS PAYABLE AT THE COMPENSATION RATE IN EFFECT FOR THE EMPLOYEE AS OF JUNE 30. RATHER THAN AT THE RATE IN EFFECT WHEN PAYMENT IS MADE. AT A RATE 10 PERCENT IN EXCESS OF THE "BASIC" RATE OF COMPENSATION IS NOT PAYABLE DURING THE PERIOD OVER WHICH OVERTIME COMPENSATION IS PAID.

B-50927, JULY 18, 1945, 25 COMP. GEN. 62

FEDERAL EMPLOYEES PAY ACT OF 1945 UNDER SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, PROVIDING THAT THE HEADS OF DEPARTMENTS, ETC., "MAY" BY REGULATION PROVIDE FOR THE GRANTING OF COMPENSATORY TIME OFF FROM DUTY IN LIEU OF OVERTIME COMPENSATION FOR IRREGULAR OR OCCASIONAL WORK IN EXCESS OF 48 HOURS IN ANY ADMINISTRATIVE WORKWEEK, THE ISSUANCE OF REGULATIONS IN RESPECT OF SUCH COMPENSATORY TIME IS NOT MANDATORY, AND THEREFORE, THE HEAD OF THE AGENCY MAY DETERMINE THAT ALL OVERTIME SERVICE ORDERED OR APPROVED SHALL BE PAID FOR IN MONEY. THERE IS NO DISCRETION VESTED BY SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IN THE HEAD OF AN AGENCY TO GRANT COMPENSATORY TIME OFF FROM DUTY IN LIEU OF OVERTIME COMPENSATION FOR OCCASIONAL OR IRREGULAR OVERTIME SERVICE IN EXCESS OF 48 HOURS IN ANY ADMINISTRATIVE WORKWEEK, OVERTIME COMPENSATION BEING PAYABLE FOR ALL OVERTIME SERVICE UNLESS THE EMPLOYEE SPECIFICALLY REQUESTS COMPENSATORY TIME OFF FROM DUTY IN LIEU OF PAYMENT. UNDER AUTHORITY OF SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, THE HEAD OF AN AGENCY MAY BY REGULATION FIX A TIME LIMIT WITHIN WHICH COMPENSATORY TIME OFF FROM DUTY IN LIEU OF OVERTIME COMPENSATION FOR IRREGULAR OR OCCASIONAL SERVICE IN EXCESS OF 48 HOURS PER WEEK MAY BE REQUESTED OR TAKEN, AND PROVIDE FOR FORFEITURE OF RIGHT TO OVERTIME COMPENSATION UPON FAILURE TO TAKE, WITHIN THE PRESCRIBED LIMIT, THE COMPENSATORY TIME OFF WHICH THE EMPLOYEE HAD REQUESTED; BUT OVERTIME COMPENSATION MAY NOT BE DENIED WHERE THE FAILURE IS DUE TO AN EXIGENCY OF THE SERVICE BEYOND THE EMPLOYEE'S CONTROL. COMPARE 23 COMP. GEN. 253. OVERTIME COMPENSATION IN LIEU OF COMPENSATORY TIME OFF FROM DUTY WHICH AN EMPLOYEE FAILED TO RECEIVE ON OR PRIOR TO JUNE 30, 1945, THROUGH NO FAULT OF HIS OWN, FOR OVERTIME WORK IN EXCESS OF 48 HOURS PER WEEK PRIOR TO JULY 1, 1945, UNDER THE TERMS AND CONDITIONS OF THE WAR OVERTIME PAY ACT OF 1943, AND REGULATIONS PURSUANT THERETO, IS PAYABLE AT THE COMPENSATION RATE IN EFFECT FOR THE EMPLOYEE AS OF JUNE 30, 1945, RATHER THAN AT THE RATE IN EFFECT WHEN PAYMENT IS MADE. THE NIGHT DIFFERENTIAL AUTHORIZED BY SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR THAT PORTION OF A "REGULARLY SCHEDULED TOUR OF DUTY" FALLING BETWEEN 6 P.M. AND 6 A.M. AT A RATE 10 PERCENT IN EXCESS OF THE "BASIC" RATE OF COMPENSATION IS NOT PAYABLE DURING THE PERIOD OVER WHICH OVERTIME COMPENSATION IS PAID, REGARDLESS OF WHEN SUCH OVERTIME SERVICE MAY BE PERFORMED; THAT IS, BOTH OVERTIME COMPENSATION AND NIGHT DIFFERENTIAL MAY NOT BE PAID FOR WORK ON SATURDAY NIGHT OR ON ANY OTHER OVERTIME DAY OR NIGHT. EMPLOYEES AFFECTED BY THE PROVISIONS OF SECTION 603 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 RELATING TO AGGREGATE COMPENSATION SAVINGS ARE ENTITLED ONLY TO THEIR BASIC COMPENSATION, WITHOUT REGARD TO THE GUARANTEED AGGREGATE, IN ANY PAY PERIOD DURING WHICH THEY DO NOT WORK THE 4 OR 8 HOURS OF OVERTIME SERVICE INCLUDED WITHIN AN ADMINISTRATIVE WORKWEEK OF 44 OR 48 HOURS. WHEN AN EMPLOYEE WITHIN THE PURVIEW OF THE PROVISIONS OF SECTION 603 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, RELATING TO AGGREGATE COMPENSATION SAVINGS, RECEIVES A WITHIN-GRADE SALARY ADVANCEMENT SO THAT THE AMOUNT OF SUCH ADVANCEMENT WHEN ADDED TO THE BASIC COMPENSATION PROVIDED BY SECTION 405 OF SAID ACT SATISFIES THE AGGREGATE COMPENSATION GUARANTEE--- THAT IS, HIS BASIC RATE OF COMPENSATION NOT EXCEEDING $1,800 PER ANNUM ON JUNE 30, 1945, PLUS $300 OR 25 PERCENT OF SUCH BASIC RATE--- SAID SECTION 603 (A) THEREAFTER HAS NO APPLICATION TO THE EMPLOYEE. THE PROVISIONS OF SECTION 603 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, GUARANTEEING FOR CERTAIN EMPLOYEES A MINIMUM RATE BELOW WHICH THEIR AGGREGATE COMPENSATION FOR ANY PAY PERIOD SHALL NOT FALL, SO LONG AS THE EMPLOYEE CONTINUES TO OCCUPY THE "POSITION" HE OCCUPIED ON JUNE 30, 1945, HAVE NO APPLICATION TO AN EMPLOYEE AFTER HE IS TRANSFERRED TO ANOTHER POSITION, EVEN THOUGH THE NEW POSITION BE IN THE SAME GRADE WITH NO CHANGE IN THE RATE OF COMPENSATION.

ACTING COMPTROLLER GENERAL YATES TO THE FEDERAL WORKS ADMINISTRATOR, JULY 18, 1945:

I HAVE YOUR LETTER OF JULY 9, 1945, REQUESTING DECISION UPON A NUMBER OF QUESTIONS ARISING UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, PUBLIC LAW 106. THE QUESTIONS PRESENTED WILL BE STATED AND ANSWERED IN GROUPS UNDER THE SEVERAL SECTIONS OF THE STATUTE IN THE ORDER PRESENTED IN YOUR LETTER.

SECTION 202 (A). 1. DO THE PROVISIONS OF THIS SECTION REQUIRE THE GRANTING OF COMPENSATORY TIME OFF IN LIEU OF PAYMENT OF OVERTIME OR MAY THE HEAD OF AN AGENCY BY REGULATION DETERMINE THAT ALL OVERTIME SHALL BE PAID FOR IN MONEY?

2. IF THE REGULATIONS OF THE AGENCY PERMIT THE GRANTING OF COMPENSATORY TIME OFF IN LIEU OF PAYMENT FOR OVERTIME, BUT LIMIT THE PERIOD OF TIME IN WHICH SUCH COMPENSATORY TIME OFF MAY BE GRANTED, SHOULD ANY SUCH OVERTIME TO THE CREDIT OF THE EMPLOYEE AT THE EXPIRATION OF THE PERIOD BE PAID FOR IN MONEY?

3. SHOULD ANY BALANCE OF COMPENSATORY OVERTIME TO THE CREDIT OF AN EMPLOYEE ON JUNE 30, 1945, BE PAID FOR AT THE RATES IN EFFECT ON THAT DATE OR AT THE RATES IN EFFECT AT THE TIME PAYMENT IS MADE?

SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 297, PROVIDES AS FOLLOWS:

THE HEADS OF DEPARTMENTS, OR OF INDEPENDENT ESTABLISHMENTS OR AGENCIES, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, AND OF THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, AND THE HEADS OF LEGISLATIVE OR JUDICIAL AGENCIES TO WHICH THIS TITLE APPLIES, MAY BY REGULATION PROVIDE FOR THE GRANTING OF COMPENSATORY TIME OFF FROM DUTY, IN LIEU OF OVERTIME COMPENSATION FOR IRREGULAR OR OCCASIONAL DUTY IN EXCESS OF FORTY-EIGHT HOURS IN ANY REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK, TO THOSE PER ANNUM EMPLOYEES REQUESTING SUCH COMPENSATORY TIME OFF FROM DUTY.

1. IN VIEW OF THE WORDS IN THE SECTION "MAY BY REGULATION PROVIDE FOR THE GRANTING OF COMPENSATORY TIME OFF FROM DUTY" ( ITALICS SUPPLIED), THE ISSUANCE OF REGULATIONS PURSUANT TO THE SECTION IN RESPECT OF COMPENSATORY TIME IS NOT MANDATORY; AND IT FOLLOWS, THEREFORE, THAT THE HEAD OF AN AGENCY MAY DETERMINE THAT ALL OVERTIME SERVICE ORDERED OR APPROVED SHALL BE PAID FOR IN MONEY.

2. UNLIKE THE PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943, 57 STAT. 76, SECTION 202 (A) OF THE NEW STATUTE DOES NOT VEST ANY DISCRETION IN THE HEAD OF AN AGENCY TO GRANT COMPENSATORY TIME OFF FROM DUTY; BUT, ON THE CONTRARY, SAID SECTION IS TO THE EFFECT THAT OVERTIME COMPENSATION SHALL BE PAID FOR ALL OVERTIME SERVICE UNLESS AN EMPLOYEE SPECIFICALLY REQUESTS COMPENSATORY TIME OFF FROM DUTY IN LIEU OF OVERTIME COMPENSATION FOR OCCASIONAL OR IRREGULAR OVERTIME SERVICE PERFORMED IN EXCESS OF 48 HOURS PER WEEK. HOWEVER, THE HEAD OF AN AGENCY MAY BY REGULATION FIX A LIMIT OF TIME WITHIN WHICH SUCH COMPENSATORY TIME OFF FROM DUTY MAY BE REQUESTED OR TAKEN. ALSO, IT WOULD NOT BE IMPROPER TO PROVIDE BY ADMINISTRATIVE REGULATION THAT UPON FAILURE OF AN EMPLOYEE TO TAKE THE COMPENSATORY TIME OFF FROM DUTY WHICH HE HAD REQUESTED WITHIN THE TIME PRESCRIBED HE WOULD LOSE HIS RIGHT TO OVERTIME COMPENSATION. HOWEVER, THERE WOULD BE NO AUTHORITY TO DENY PAYMENT OF OVERTIME COMPENSATION WHERE THE FAILURE TO TAKE THE COMPENSATORY TIME OFF FROM DUTY WITHIN THE PERIOD PRESCRIBED BY ADMINISTRATIVE REGULATION WAS DUE TO AN EXIGENCY OF THE SERVICE BEYOND THE CONTROL OF THE EMPLOYEE. REFERENCE IS MADE TO THE DECISION OF OCTOBER 5, 1943, 23 COMP. GEN. 253, WHEREIN RULES WERE STATED WITH RELATION TO THE GRANTING OF COMPENSATORY TIME OFF FROM DUTY UNDER THE PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943 AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION ISSUED THEREUNDER, WHICH DECISION MAY BE OF ASSISTANCE IN FORMULATING ADMINISTRATIVE REGULATIONS UNDER SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945.

3. THIS QUESTION IS UNDERSTOOD AS REFERRING TO THE PAYMENT OF OVERTIME COMPENSATION IN LIEU OF COMPENSATORY TIME OFF FROM DUTY WHICH AN EMPLOYEE FAILED TO RECEIVE THROUGH NO FAULT OF HIS OWN ON OR PRIOR TO JUNE 30, 1945, FOR OVERTIME WORK PERFORMED IN EXCESS OF 48 HOURS PER WEEK PRIOR TO JULY 1, 1945, UNDER THE TERMS AND CONDITIONS OF THE WAR OVERTIME PAY ACT OF 1943 AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION THEREUNDER. IF THAT UNDERSTANDING OF THE QUESTION BE CORRECT, YOU ARE ADVISED THAT THE PAYMENT SHOULD BE MADE AT THE COMPENSATION RATE IN EFFECT FOR THE EMPLOYEE AS OF JUNE 30, 1945.

SECTION 203. 1. DO THE PROVISIONS OF THIS SECTION PERTAINING TO WAGES FOR EMPLOYEES, MODIFY SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, SO AS TO PERMIT PAYMENT OF TIME AND ONE-HALF FOR SERVICES IN EXCESS OF 40 HOURS TO THOSE CLASSES OF EMPLOYEES WHO, UNDER YOUR DECISION OF APRIL 15, 1943 (B-33619,) WERE HELD NOT TO BE ENTITLED TO SUCH OVERTIME?

SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 297, PROVIDES:

EMPLOYEES WHOSE BASIC RATE OF COMPENSATION IS FIXED ON AN ANNUAL OR MONTHLY BASIS AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE SHALL BE ENTITLED TO OVERTIME PAY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934 ( U.S.C., 1940EDITION, TITLE 5, SEC. 673C). THE RATE OF COMPENSATION FOR EACH HOUR OF OVERTIME EMPLOYMENT OF ANY SUCH EMPLOYEE SHALL BE COMPUTED AS FOLLOWS:

(A) IF THE BASIC RATE OF COMPENSATION OF THE EMPLOYEE IS FIXED ON AN ANNUAL BASIS, DIVIDE SUCH BASIC RATE OF COMPENSATION BY TWO THOUSAND AND EIGHTY AND MULTIPLY THE QUOTIENT BY ONE AND ONE-HALF; AND

(B) IF THE BASIC RATE OF COMPENSATION OF THE EMPLOYEE IS FIXED ON A MONTHLY BASIS, MULTIPLY SUCH BASIC RATE OF COMPENSATION BY TWELVE TO DERIVE A BASIC ANNUAL RATE OF COMPENSATION, DIVIDE SUCH BASIC ANNUAL RATE OF COMPENSATION BY TWO THOUSAND AND EIGHTY, AND MULTIPLY THE QUOTIENT BY ONE AND ONE-HALF.

1. THE DECISION OF APRIL 15, 1943, B-33619, TO WHICH YOU REFER, DID NOT HOLD SPECIFICALLY THAT ANY CLASS OF EMPLOYEES WERE NOT ENTITLED TO RECEIVE OVERTIME COMPENSATION. HOWEVER, IT IS PRESUMED YOU REFER TO THAT PART OF THE DECISION WHICH STATED THAT "THIS OFFICE HAS NO OBJECTION TO OFFER TO THE DETERMINATION OF THE WAGE BOARD THAT THE POSITIONS APPEARING IN THE * * * SECOND LIST PROPERLY ARE NOT TO BE REGARDED AS WITHIN THE "SEVERAL TRADES AND OCCUPATIONS.'" THE "SECOND LIST" REFERRED TO IS UNDERSTOOD TO HAVE INCLUDED THE FOLLOWING (QUOTING FROM THE SUBMISSION OF APRIL 5, 1943, UPON THE BASIS OF WHICH THAT DECISION WAS RENDERED)

* * * THE OTHER GROUP OF EMPLOYEES, WHICH INCLUDES ASSISTANT CIVIL ENGINEERS, TREE SURGEONS, ASSISTANT HORTICULTURISTS, AMONG OTHERS, THE BOARD HELD WAS NOT IN RECOGNIZED TRADES OR OCCUPATIONS AND THEREFORE DECIDED THAT SUCH EMPLOYEES COULD ONLY BE PAID STRAIGHT TIME FOR ALL WORK IN EXCESS OF FORTY HOURS A WEEK.

SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, PROVIDES:

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.

AS THE WAGE BOARD IN THAT INSTANCE CONCLUDED IN 1943 THAT THE GROUP OF EMPLOYEES ABOVE REFERRED TO DID NOT COME WITHIN THE PURVIEW OF THE 1934 STATUTE--- IT BEING UNDERSTOOD THEIR SALARIES WERE FIXED ADMINISTRATIVELY WITHOUT ADVICE OF A WAGE BOARD--- IT WOULD APPEAR THAT SUCH EMPLOYEES DO NOT AUTOMATICALLY COME WITHIN THE PURVIEW OF THAT STATUTE BY OPERATION OF SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. ON THE CONTRARY, SUCH CLASS OF EMPLOYEES WOULD APPEAR TO BE ENTITLED TO OVERTIME COMPENSATION UNDER THE PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296.

HOWEVER, IF, AS A MATTER OF FACT, THE BASIC RATES OF COMPENSATION OF SUCH CLASS OF EMPLOYEES ARE "ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE" (QUOTING FROM SECTION 203 OF THE STATUTE), THEIR OVERTIME COMPENSATION WOULD BE PAYABLE UNDER THE 1934 STATUTE.

SECTION 301. 1. DO THE PROVISIONS OF THIS SECTION REQUIRE THE PAYMENT OF 10 PERCENT NIGHT DIFFERENTIAL FOR SERVICES PERFORMED BETWEEN 6:00 P.M. AND 6:00 A.M. INCLUDING THE OVERTIME DAY, OR IS IT LIMITED TO PAYMENT OF NIGHT DIFFERENTIAL FOR SERVICES PERFORMED BETWEEN 6:00 P.M.AND 6:00 A.M. ON ONLY THE DAYS OF THE BASIC WORK WEEK?

SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298, PROVIDES:

NIGHT PAY DIFFERENTIAL

SEC. 301. ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY, ANY PART OF WHICH FALLS BETWEEN THE HOURS OF 6 O-CLOCK POST MERIDIAN AND 6 O-CLOCK ANTEMERIDIAN, SHALL, FOR DUTY BETWEEN SUCH HOURS, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, BE PAID COMPENSATION AT A RATE 10 PERCENT IN EXCESS OF HIS BASIC RATE OF COMPENSATION FOR DUTY BETWEEN SUCH HOURS. PROVIDED, THAT SUCH DIFFERENTIAL FOR NIGHT DUTY SHALL NOT BE INCLUDED IN COMPUTING ANY OVERTIME COMPENSATION TO WHICH THE OFFICER OR EMPLOYEE MAY BE ENTITLED: AND PROVIDED FURTHER, THAT THIS SECTION SHALL NOT OPERATE TO MODIFY THE PROVISIONS OF THE ACT OF JULY 1, 1944 ( PUBLIC LAW NUMBERED 394, SEVENTY- EIGHTH CONGRESS), OR ANY OTHER LAW AUTHORIZING ADDITIONAL COMPENSATION FOR NIGHT WORK.

1. THE NIGHT DIFFERENTIAL OF 10 PERCENT IS PAYABLE ONLY FOR THAT PORTION OF A "REGULARLY SCHEDULED TOUR OF DUTY" FALLING BETWEEN 6 P.M. AND 6 A.M. THE DIFFERENTIAL IS NOT PAYABLE FOR ANY PERIOD OUTSIDE OF A REGULARLY SCHEDULED TOUR OF DUTY. IN OTHER WORDS, THE DIFFERENTIAL IS NOT PAYABLE DURING THE PERIOD OVER WHICH OVERTIME COMPENSATION IS PAID, REGARDLESS OF THE TIME SUCH OVERTIME SERVICE MAY BE PERFORMED. WHEN THE WORDS,"REGULARLY SCHEDULED TOUR OF DUTY," ARE CONSIDERED IN CONNECTION WITH THE WORDS,"AT A RATE OF 10 PERCENTUM IN EXCESS OF HIS BASIC RATE OF COMPENSATION" ( ITALICS SUPPLIED), THERE APPEARS REQUIRED THE CONCLUSION THAT THERE CAN BE NO BASIC RATE OF COMPENSATION FOR THE OVERTIME DAY EXCEPT THAT APPLICABLE FOR THE 40 HOURS OF THE BASIC ADMINISTRATIVE WORKWEEK, AND THAT BOTH OVERTIME AND NIGHT DIFFERENTIAL MAY NOT BE PAID FOR WORK ON SATURDAY NIGHT OR ON ANY OTHER OVERTIME DAY OR NIGHT. COMPARE 22 COMP. GEN. 791 (QUESTIONS 1 AND 2). IN COMING TO THIS CONCLUSION THERE HAS NOT BEEN OVERLOOKED THE DEFINITION OF "REGULARLY SCHEDULED TOUR OF DUTY" APPEARING IN SECTION 202, PART II, CHAPTER III, OF THE REGULATIONS ISSUED BY THE UNITED STATES CIVIL SERVICE COMMISSION PURSUANT TO SECTION 605 OF THE STATUTE, 59 STAT. 304, FROM WHICH AN INFERENCE MIGHT BE DRAWN THAT THE NIGHT DIFFERENTIAL MAY BE PAID FOR WORK ON SATURDAY NIGHT OR OTHER OVERTIME DAY UPON THE BASIS OF THE OVERTIME RATE ALLOWED FOR DAYTIME EMPLOYEES ON THAT DAY. IF THAT BE THE INTENDED INFERENCE OF THE REGULATION, THIS OFFICE IS UNABLE TO AGREE THEREWITH. HENCE, YOU ARE ADVISED THAT THE FIRST ALTERNATE QUESTION PRESENTED UNDER THIS SECTION OF THE STATUTE IS ANSWERED IN THE NEGATIVE AND THE SECOND ALTERNATE QUESTION, IN THE AFFIRMATIVE.

SECTION 603 (A). 1. AT THE PRESENT TIME, THE ANNUAL RATE OF COMPENSATION OF EMPLOYEES OF THIS AGENCY WHO ARE ON A 44 OR 48 HOUR WORK-WEEK WILL EXCEED THE "FLOOR" ESTABLISHED IN THIS SECTION BY THE CONGRESS. HOWEVER, AN EMPLOYEE ABSENT ON THE TWO OVERTIME DAYS OF THE PAY PERIOD WOULD RECEIVE FOR THE PARTICULAR PERIOD LESS THAN ONE TWENTY-SIXTH OF THE ANNUAL RATE PROVIDED BY THE SECTION. DO THE PROVISIONS OF THIS SECTION PERTAIN TO THE ANNUAL RATE OF COMPENSATION, OR TO THE PAY FOR EACH PAY PERIOD?

2. WHERE AN EMPLOYEE, WHOSE JUNE 30 BASIC RATE WITHOUT OVERTIME IS $1,200, NOW WORKING ON A 40 HOUR WORK-WEEK AND RECEIVING THE $300 INCREASED BASE PAY PROVIDED IN THIS SECTION, RECEIVES A WITHIN-GRADE PROMOTION, IS THE NEW RATE OF PAY THE NEXT STEP IN THE NEW PAY SCALE, $1,506 PLUS THE $300, OR THE NEXT STEP IN THE NEW PAY SCALE, $1,506 PLUS $294?

3. IF AN EMPLOYEE IN A GRADE TWO FILE CLERK POSITION IS TRANSFERRED TO SOME OTHER GRADE TWO POSITION, SUCH AS A GRADE TWO STATISTICAL CLERK, WITHOUT A CHANGE IN THE RATE OF PAY, DOES HE LOSE THE BENEFITS OF THE SECTION?

SECTION 603 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 302, PROVIDES:

THE AGGREGATE PER ANNUM RATE OF COMPENSATION WITH RESPECT TO ANY PAY PERIOD, IN THE CASE OF ANY FULL-TIME EMPLOYEE IN THE SERVICE ON JULY 1, 1945, (1) WHO WAS A FULL-TIME EMPLOYEE ON JUNE 30, 1945, (2) WHOSE PER ANNUM BASIC RATE OF COMPENSATION ON JUNE 30, 1945, DID NOT EXCEED A RATE OF $1,800 PER ANNUM, AND (3) WHOSE COMPENSATION IS FIXED IN ACCORDANCE WITH THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, OR THE ACT ENTITLED "AN ACT TO ADJUST THE COMPENSATION OF CERTAIN EMPLOYEES IN THE CUSTOMS SERVICE," APPROVED MAY 29, 1928, AS AMENDED, SHALL NOT UNDER THE RATES OF COMPENSATION ESTABLISHED BY THIS ACT, SO LONG AS HE CONTINUES TO OCCUPY THE POSITION HE OCCUPIED ON JUNE 30, 1945, BE LESS THAN HIS PER ANNUM BASIC RATE OF COMPENSATION ON SUCH DATE, PLUS THE RATE OF $300 PER ANNUM OR 25 PERCENTUM OF SUCH PER ANNUM BASIC RATE OF COMPENSATION, WHICHEVER IS THE SMALLER AMOUNT. 1. YOUR FIRST ALTERNATE QUESTION APPEARS TO BE ANSWERED SPECIFICALLY BY THE OPENING PHRASE OF THE SECTION, VIZ,"THE AGGREGATE PER ANNUM RATE OF COMPENSATION WITH RESPECT TO ANY PAY PERIOD" ( ITALICS SUPPLIED). HOWEVER, THIS QUESTION PRESENTS ANOTHER ONE BY INFERENCE WHICH IS DEEMED ADVISABLE TO BE CONSIDERED. WHILE AN EMPLOYEE WHOSE ADMINISTRATIVE WORKWEEK IS ONLY 40 HOURS, THAT IS, ONE WHO IS NOT REGULARLY REQUIRED TO WORK ANY OVERTIME DURING THE WEEK, IS ENTITLED TO THE GUARANTEE IN AGGREGATE COMPENSATION PROVIDED BY SECTION 603 (A) OF THE STATUTE, IT IS NOT TO BE ASSUMED THAT THE CONGRESS INTENDED BY SECTION 603 (A) TO GUARANTEE THE SALARY FOR ANY PAY PERIOD OF AN EMPLOYEE WHOSE ADMINISTRATIVE WORKWEEK IS 44 OR 48 HOURS, IF THE EMPLOYEE FAILS OR REFUSES TO WORK THE 4 OR 8 HOURS OVERTIME REQUIRED. OTHERWISE, SOME OF THE LOW SALARY EMPLOYEES AFFECTED BY THE SECTION COULD STAY OFF FROM WORK ON SATURDAY OR OTHER OVERTIME DAY WITHOUT LOSS OF SALARY. THEREFORE, EMPLOYEES AFFECTED BY SECTION 603 (A) OF THE STATUTE ARE ENTITLED ONLY TO THEIR BASIC COMPENSATION WITHOUT THE GUARANTEE IN ANY PAY PERIOD DURING WHICH THEY DO NOT WORK THE 4 OR 8 HOURS OF OVERTIME SERVICE INCLUDED WITHIN AN ADMINISTRATIVE WORKWEEK OF 44 OR 48 HOURS.

2. THE NEW BASIC COMPENSATION OF EMPLOYEES WHOSE POSITIONS ARE SUBJECT TO THE CLASSIFICATION ACT IS FIXED BY SECTION 405 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 300, ONLY. SECTION 603 (A) OF THE STATUTE MERELY IS A GUARANTEE ON "THE AGGREGATE PER ANNUM RATE OF COMPENSATION WITH RESPECT TO ANY PAY PERIOD" RATHER THAN AN INCREASE IN THE BASIC COMPENSATION. IN OTHER WORDS, SAID PROVISION GUARANTEES THAT THE AGGREGATE COMPENSATION AUTHORIZED BY ALL PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 SHALL NOT FALL BELOW THE AGGREGATE COMPENSATION RECEIVED BY AN EMPLOYEE ON JUNE 30, 1945, WHO WAS RECEIVING THE $300 MINIMUM GUARANTEE ADDITIONAL WARTIME COMPENSATION IN LIEU OF OVERTIME COMPENSATION AUTHORIZED BY THE WAR OVERTIME PAY ACT OF 1943, SO LONG AS THE EMPLOYEE OCCUPIES THE SAME POSITION HELD JUNE 30, 1945. HENCE, SUCH ADDITIONAL COMPENSATION PAID PURSUANT TO SECTION 603 (A) OF THE STATUTE MAY NOT BE REGARDED AS BASIC COMPENSATION. THUS, THE NEW BASIC COMPENSATION OF AN EMPLOYEE RECEIVING $1,200 PER ANNUM ON JUNE 30, 1945, IS $1,440 (20 PERCENT INCREASE) UNDER SECTION 405 OF THE STATUTE, BUT THE EMPLOYEE ON A 40-HOUR ADMINISTRATIVE WORKWEEK WOULD CONTINUE TO RECEIVE AN AGGREGATE COMPENSATION FOR ANY PAY PERIOD AT THE RATE OF $1,500 PER ANNUM WHILE HE CONTINUES TO OCCUPY THE SAME POSITION AND UNTIL HIS AGGREGATE COMPENSATION HAS BEEN INCREASED BY REASON OF OTHER PROVISIONS OF THE LAW TO SATISFY THE $300 GUARANTEE. HENCE, IN THE CASE PRESENTED, WHEN THE EMPLOYEE RECEIVES A WITHIN-GRADE PROMOTION, THE NEW BASIC COMPENSATION WILL BE $1,506 PER ANNUM WHICH WOULD MORE THAN SATISFY THE GUARANTEE OF $300 PER ANNUM OVER THE AMOUNT RECEIVED JUNE 30, 1945, AND THEREAFTER SECTION 603 (A) OF THE STATUTE WOULD HAVE NO APPLICATION TO THE EMPLOYEE. IN VIEW OF THE ABOVE NEITHER OF THE RATES OF COMPUTATION IN THE ALTERNATE QUESTIONS PRESENTED IS CORRECT.

3. THE GUARANTEE OF $300 VESTS ONLY SO LONG AS AN EMPLOYEE "CONTINUES TO OCCUPY THE POSITION HE OCCUPIED ON JUNE 30, 1945.' THE ORIGINAL CLASSIFICATION ACT OF 1923, APPROVED MARCH 4, 1923, 42 STAT. 1488, DEFINES THE TERMS "POSITION" AND "GRADE" AS FOLLOWS:

THE TERM "POSITION" MEANS A SPECIFIC CIVILIAN OFFICE OR EMPLOYMENT, WHETHER OCCUPIED OR VACANT, IN A DEPARTMENT, WITH CERTAIN EXPRESS EXCEPTIONS.

THE TERM "GRADE" MEANS A SUBDIVISION OF A SERVICE, INCLUDING ONE OR MORE POSITIONS FOR WHICH APPROXIMATELY THE SAME BASIC QUALIFICATIONS AND COMPENSATION ARE PRESCRIBED, THE DISTINCTION BETWEEN GRADES BEING BASED UPON DIFFERENCES IN THE IMPORTANCE, DIFFICULTY, RESPONSIBILITY, AND VALUE OF THE WORK. HENCE, THE TERMS "POSITION" AND "GRADE" ARE NOT SYNONYMOUS. A POSITION CONSISTS OF DUTIES AND RESPONSIBILITIES WHEREAS A GRADE CONSISTS OF A SALARY RANGE OR LEVEL APPLICABLE TO A NUMBER OF CLASSES OF SEPARATE AND DISTINCT POSITIONS. SEE 4 COMP. GEN. 474, 475; 8 ID. 496, 497; 13 ID. 1. AS THE STATUTE IN THIS INSTANCE USES THE TERM "POSITION" RATHER THAN THE TERM "GRADE" THIS QUESTION MUST BE AND IS ANSWERED IN THE AFFIRMATIVE.