B-50979, JULY 23, 1945, 25 COMP. GEN. 86

B-50979, JULY 23, 1945, 25 COMP. GEN. 86

FEDERAL EMPLOYEES PAY ACT OF 1945 - APPLICABILITY TO CONTRACT EMPLOYEES THE BASIC SALARY RATES OF CONTRACT EMPLOYEES WHICH ARE FIXED ADMINISTRATIVELY PURSUANT TO STATUTORY AUTHORITY WITHOUT REGARD TO THE CLASSIFICATION ACT ARE NOT AUTOMATICALLY INCREASED BY ANY OF THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 RELATING TO BASIC COMPENSATION NCREASES; HOWEVER, THE BASIC RATES OF THOSE CONTRACT EMPLOYEES WHOSE POSITIONS HAVE BEEN MADE SUBJECT TO THE CLASSIFICATION ACT BY ADMINISTRATIVE ACTION ARE INCREASED IN ACCORDANCE WITH THE FORMULA PRESCRIBED BY SECTION 405 OF THE ACT. CONTRACT EMPLOYEES EMPLOYED ON A FULL TIME BASIS, OR ON A PART TIME OR INTERMITTENT BASIS AT SO MUCH PER DAY OR PER HOUR FOR A LIMITED NUMBER OF DAYS OR HOURS PER YEAR, ARE ENTITLED TO OVERTIME COMPENSATION UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR EMPLOYMENT IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK; TO THE NIGHT PAY DIFFERENTIAL PROVIDED BY SECTION 301 OF SAID ACT WHEN ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY AT NIGHT; AND TO COMPENSATION FOR HOLIDAY WORK UNDER THE TERMS AND CONDITIONS OF SECTION 302 OF SAID ACT. THE PROVISIONS OF SECTION 603 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, GUARANTEEING FOR FULL TIME EMPLOYEES WHOSE COMPENSATION IS FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT A MINIMUM RATE BELOW WHICH THEIR AGGREGATE COMPENSATION FOR ANY PAY PERIOD SHALL NOT FALL, ARE APPLICABLE TO FULL TIME CONTRACT EMPLOYEES OCCUPYING POSITIONS MADE SUBJECT TO THE CLASSIFICATION ACT BY ADMINISTRATIVE ACTION, IF THEY OCCUPIED THE SAME POSITIONS ON JUNE 30 AND JULY 1, 1945, BUT SUCH PROVISIONS ARE INAPPLICABLE TO PART TIME OR INTERMITTENT CONTRACT EMPLOYEES REGARDLESS OF THE POSITIONS THEY OCCUPY OR HOW THEIR COMPENSATION IS FIXED. SECTION 602 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, PROVIDING FOR AN INCREASE IN "BASIC RATES OF COMPENSATION SPECIFICALLY PRESCRIBED BY STATUTE," HAS THE EFFECT OF INCREASING THE MAXIMUM PER DIEM RATES OF COMPENSATION FIXED BY STATUTE FOR CONTRACT EMPLOYEES (FOR EXAMPLE, THE FORMER MAXIMUM OF $25 PER DAY IS INCREASED TO $37.69); HOWEVER, EXISTING RATES PROVIDED FOR INDIVIDUAL CONTRACT EMPLOYEES ARE NOT AUTOMATICALLY INCREASED, BUT MAY BE ADJUSTED ADMINISTRATIVELY WITHIN THE LIMITS OF THE NEW MAXIMUM RATES, PROSPECTIVELY EFFECTIVE, SUBJECT TO THE AVAILABILITY OF FUNDS.

ACTING COMPTROLLER GENERAL MCFARLAND TO THE SECRETARY OF THE NAVY, JULY 23, 1945:

I HAVE YOUR LETTER OF JULY 10, 1945 (YOUR FILE JAG:II:WJG:Z 14-3 ( LL), AS FOLLOWS:

THE EXPIRATION OF THE WAR OVERTIME PAY ACT OF 1943 (57 STAT. 75-78) ON JUNE 30, 1945, AND THE APPROVAL OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 ( PUBLIC LAW 106--- 79TH CONGRESS) ON JUNE 30, 1945, EFFECTIVE JULY 1, 1945, HAVE RAISED CERTAIN QUESTIONS IN THE NAVY DEPARTMENT CONCERNING THE SPECIFIC COVERAGE OF EMPLOYEES UNDER THE LATTER ACT WHO WERE HELD IN DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES TO COME WITHIN THE SCOPE OF THE WAR OVERTIME PAY ACT OF 1943.

IN DECISION OF NOVEMBER 30, 1943 (23 COMP. GEN. 398), AND LATER DECISIONS (23 ID. 608, 721), IT WAS HELD IN EFFECT THAT CONTRACT OFFICERS OR EMPLOYEES, WHO WERE EMPLOYED ON A PERSONAL SERVICE BASIS, WERE ENTITLED TO THE APPLICABLE BENEFITS OF THE WAR OVERTIME PAY ACT OF 1943, WHETHER WORKING ON A FULL-TIME OR INTERMITTENT BASIS AND EVEN THOUGH THE CONTRACT OF EMPLOYMENT SPECIFICALLY EXCLUDES PAYMENT OF SUCH ADDITIONAL OVERTIME COMPENSATION.

THE FEDERAL EMPLOYEES PAY ACT OF 1945 REPLACES THE WAR OVERTIME PAY ACT OF 1943 AS PERMANENT LEGISLATION. THE 1945 ACT CONTAINS NO LANGUAGE WHICH IN SPECIFIC TERMS INCLUDES OR EXCLUDES CONTRACT EMPLOYEES OR EMPLOYEES EMPLOYED ON A PERSONAL SERVICE BASIS AS MENTIONED ABOVE. HOWEVER, UNDER THE "COVERAGE" PROVISIONS OF SECTION 101 (A), SAID ACT, SUBJECT TO THE EXEMPTIONS SPECIFIED IN SECTION 102, IS MADE EXPRESSLY APPLICABLE "/1) TO ALL CIVILIAN OFFICERS AND EMPLOYEES IN OR UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT * * * .' THE QUOTED COVERAGE PROVISION FROM THE 1945 ACT, IN THE ABSENCE OF ANY EXPRESS LANGUAGE THEREIN TO THE CONTRARY, APPEARS TO INCLUDE WITHIN THE BENEFITS OF SAID ACT CONTRACT OFFICERS OR EMPLOYEES EMPLOYED ON A PERSONAL SERVICE BASIS, EXCEPT THOSE OTHERWISE COMING WITHIN THE "EXEMPTIONS" SPECIFIED IN SECTION 102 OF THE ACT.

THIS INTERPRETATION OF THE FEDERAL EMPLOYEES ACT OF 1945, WITH RESPECT TO CONTRACT OFFICERS OR EMPLOYEES EMPLOYED ON A PERSONAL SERVICE BASIS, IS CONSISTENT WITH THE INTERPRETATION PLACED BY YOUR OFFICE ON THE WAR OVERTIME PAY ACT OF 1943, AS TO WHICH IT WAS HELD IN 23 COMP. GEN. 398, AS FOLLOWS:

" * * * IN OTHER WORDS, IT MAY BE STATED THAT UNLESS AN OFFICER OR EMPLOYEE IN OR UNDER THE UNITED STATES GOVERNMENT BE EXPRESSLY EXCEPTED FROM THE TERMS OF THE ACT HE MUST BE REGARDED AS INCLUDED WITHIN ITS PROVISIONS NOTWITHSTANDING THAT HE MAY BE EMPLOYED ON A CONTRACT BASIS. CONTRACT OFFICERS OR EMPLOYEES, AS DISTINGUISHED FROM CONTRACTORS EMPLOYED ON OTHER THAN A PERSONAL SERVICE BASIS--- GENERALLY THOSE WHO DO NOT PERFORM THEIR WORK UNDER THE SUPERVISION AND CONTROL OF THE GOVERNMENT--- ARE NOT EXCLUDED BY ANY OF THE PROVISIONS OF THE ACT. ACCORDINGLY, IT MUST BE CONCLUDED THAT EMPLOYEES OF THE CLASSES REFERRED TO IN YOUR LETTER COME WITHIN THE PURVIEW OF THE OVERTIME LAW AND ARE ENTITLED TO THE ADDITIONAL COMPENSATION SOLELY BY OPERATION OF THAT STATUTE.

"THE APPROPRIATION LIMITATION OF $25 PER DAY, TO WHICH YOU REFER, RELATES ONLY TO BASIC COMPENSATION, THE ADDITIONAL COMPENSATION BEING AUTHORIZED BY OPERATION OF THE OVERTIME LAW IRRESPECTIVE OF THE TERMS OF THE CONTRACT FOR PERSONAL SERVICES. SINCE THE OVERTIME COMPENSATION IS PAYABLE BY OPERATION OF LAW AND OPERATES UPON THE BASIC COMPENSATION, A PROVISION IN A CONTRACT FOR PERSONAL SERVICES TO EXCLUDE PAYMENT OF THE ADDITIONAL COMPENSATION WOULD BE NON-EFFECTIVE, WHILE A PROVISION THEREIN TO INCLUDE PAYMENT OF THE OVERTIME COMPENSATION PROVIDED BY LAW WOULD CONSTITUTE MERE SURPLUSAGE.'

THERE ARE FORWARDED HEREWITH COPIES OF FIVE PERSONAL SERVICE CONTRACTS COVERING FULL-TIME, PART-TIME AND INTERMITTENT EMPLOYMENT OF PERSONAL SERVICE CONTRACT EMPLOYEES OF THE NAVY DEPARTMENT.

IN CONNECTION WITH THE FOREGOING, THE NAVY DEPARTMENT REQUESTS YOUR DECISION AS TO---

(1) THE EXACT COVERAGE UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 OF CONTRACT OFFICERS OR EMPLOYEES EMPLOYED ON A PERSONAL SERVICE BASIS WHO WORK

(A) IN EXCESS OF FORTY HOURS PER WEEK;

(B) ON A PART-TIME BASIS; AND

(C) ON AN INTERMITTENT BASIS, WITH PARTICULAR RESPECT AS TO WHETHER OR NOT ANY SUCH CONTRACT OFFICER OR EMPLOYEE COMING WITHIN ANY ONE OF CATEGORIES (A), (B), OR (C) ABOVE IS ENTITLED UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, IF OTHERWISE ELIGIBLE THEREFOR, TO EACH OF THE FOLLOWING:

(1) INCREASE IN BASIC COMPENSATION.

(2) PAYMENT OF OVERTIME COMPENSATION.

(3) PAYMENT OF NIGHT DIFFERENTIAL AND HOLIDAY PAY.

(4) BENEFITS OF THE PAY SAVING CLAUSE APPLICABLE TO EMPLOYEES IN THE

LOWER PAY BRACKETS, AS CONTAINED IN SECTION 603 (A) OF THE

EMPLOYEES PAY ACT OF 1945.

(2) WHETHER OR NOT PERSONAL SERVICE CONTRACT OFFICERS OR EMPLOYEES RECEIVING MAXIMUM COMPENSATION OF $25 PER DIEM, WHICH MAXIMUM PER DIEM RATE IS PRESCRIBED IN VARIOUS PROVISIONS OF THE NAVAL APPROPRIATION ACT, 1946 ( PUBLIC LAW 62--- 79TH CONGRESS, APPROVED MAY 29, 1945), ARE ENTITLED TO AUTOMATIC INCREASE IN PER DIEM COMPENSATION IN EXCESS OF THE $25 MAXIMUM PER DIEM RATE AUTHORIZED IN THEIR EXISTING CONTRACTS OF EMPLOYMENT, BASED ON THE MAXIMUM BASIC RATE OF COMPENSATION OF $9,800 PER ANNUM NOW AUTHORIZED FOR OFFICERS AND EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, OR (1) WHETHER ADDITIONAL LEGISLATION WILL BE REQUIRED TO PROVIDE FOR SUCH INCREASE IN MAXIMUM PER DIEM BASIC RATE OF COMPENSATION OF SUCH EMPLOYEES, OR (2) WHETHER NEW PERSONAL SERVICE CONTRACTS MAY PROPERLY BE EXECUTED AT THIS TIME TO BE EFFECTIVE JULY 1, 1945, THE EFFECTIVE DATE OF SAID ACT, PROVIDING FOR PAYMENT OF INCREASED PER DIEM RATE OF COMPENSATION IN THE CASE OF SUCH EMPLOYEES IN PROPORTION TO THE MAXIMUM BASIC RATE OF $9,800 PER ANNUM?

PENDING RECEIPT OF YOUR DECISION IN THIS MATTER, THE NAVY DEPARTMENT HAS DIRECTED THAT NO CHANGE BE MADE IN THE BASIC COMPENSATION OF PERSONS EMPLOYED UNDER PERSONAL SERVICE CONTRACTS AND THAT ONLY THE STIPULATED BASIC CONTRACT COMPENSATION SHALL BE PAID AFTER JUNE 30, 1945.

IN VIEW OF THE REAL URGENCY OF THIS MATTER, THE NAVY DEPARTMENT REQUESTS THAT YOUR DECISION BE EXPEDITED.

THERE APPEARS NO PROVISION IN SECTION 102 (EXEMPTIONS) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, THAT EXCLUDES FROM THE BENEFITS OF THE ACT (OTHERWISE APPLICABLE TO THEM) CONTRACT OFFICERS OR EMPLOYEES WHO ARE EMPLOYED UPON A PERSONAL SERVICE BASIS WITH COMPENSATION COMPUTED UPON A TIME BASIS. HENCE, FOR THE REASONS STATED IN THE DECISIONS OF THIS OFFICE CITED IN THE SECOND PARAGRAPH OF YOUR LETTER, THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945--- NOT OTHERWISE INAPPLICABLE TO THEM AS HEREINAFTER EXPLAINED--- ARE APPLICABLE TO SUCH CONTRACT EMPLOYEES. ADDITION TO THE DECISIONS CITED IN YOUR LETTER, YOUR ATTENTION IS INVITED TO THE FOLLOWING EXCERPT FROM THE DECISION OF JUNE 12, 1945, B-46039, TO THE SECRETARY OF WAR:

THE RELEVANT STATUTE (56 STAT. 1068), IN EFFECT FROM DECEMBER 1, 1942, TO APRIL 30, 1943, COVERS "ALL CIVILIAN EMPLOYEES IN OR UNDER THE UNITED STATES GOVERNMENT," WHILE THE STATUTE IN EFFECT THEREAFTER (57 STAT. 75), COVERS "ALL CIVILIAN OFFICERS AND EMPLOYEES * * * IN OR UNDER THE UNITED STATES GOVERNMENT" WITH CERTAIN SPECIFIED EXCEPTIONS. ANY PREMISE THAT THE ACT INFERENTIALLY WOULD BE INOPERATIVE ABROAD IS REPELLED BY THE SPECIFIC EXCEPTION EVIDENTLY THOUGHT TO HAVE BEEN NECESSARY AS TO THOSE EMPLOYED IN FOREIGN COUNTRIES AT LOCAL PREVAILING NATIVE WAGE RATES. ALSO, IT IS STATED THAT SO-CALLED "CONTRACT EMPLOYEES" ARE COVERED, AS A CLASS, AS MUCH AS ANY OTHER (23 COMP. GEN. 17; ID. 398; ID. 608; ID. 721), WHETHER THEIR CONTRACTS INCLUDE, EXCLUDE, OR DO NOT MENTION OVERTIME. (FOR A LIKE RESULT UNDER THE COMPARABLE LANGUAGE OF THE FAIR LABOR STANDARDS ACT, SEE OVERNIGHT MOTOR TRANSPORTATION CO. V. MISSEL, 316 U.S. 572; WALLING V. HARNISCHFEGER CORP. ( CCA 7, 1944) 145 F. 2D 589.) ON THE OTHER HAND, THE PRINCIPLE OF CONSTRUCTION HAS BEEN STATED THAT A STATUTORY INCREASE IN COMPENSATION IS NOT TO BE APPLIED TO THOSE NOT WITHIN THE INTENDED PURPOSE OF THE ENACTMENT, REGARDLESS OF WHETHER WITHIN ITS LITERAL MEANING. UNITED STATES V. SAUNDERS. 22 WALL. 492; BENJ. WALL V. UNITED STATES (1928), 66 C.1CLS. 23; AND FOR A SIMILAR HOLDING UNDER THE ADAMSON EIGHT-HOUR LAW, SEE FORT SMITH AND WESTERN RD. CO. V. MILLS, 253 U.S. 206.

WITH REFERENCE TO QUESTION (1) AS PRESENTED IN YOUR LETTER, SUPRA, WHEN VIEWED IN THE LIGHT OF THE SPECIMEN CONTRACTS TRANSMITTED THEREWITH, IT IS UNDERSTOOD THAT ITEM (A) RELATES TO CONTRACT EMPLOYEES WHO WORK IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK AND THAT ITEMS (B) AND (C) RELATE TO CONTRACT EMPLOYEES WHO WORK ON A PART-TIME OR INTERMITTENT BASIS AT SO MUCH PER DAY OR PER HOUR WITH A LIMITATION UPON THE DAYS OR HOURS THEY MAY WORK DURING A YEAR, RATHER THAN TO THOSE WHO WORK A PORTION OF EACH WEEK FOR WHOM THERE HAVE BEEN FIXED PART-TIME ANNUAL SALARY RATES AS PROVIDED IN CIVIL SERVICE CIRCULAR 389, REVISION 2, DATED MAY 4, 1945. HENCE, NO CONSIDERATION WILL BE GIVEN HEREIN AS TO THE PROPER FORMULA UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR PART-TIME EMPLOYEES WHO WORKED PRIOR TO JULY 1, 1945, A REGULAR PART-TIME WEEKLY TOUR OF DUTY.

AS TO SUBQUESTION (1), SO FAR AS HERE MATERIAL THE ONLY PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 WHICH INCREASE BASIC SALARY RATES ARE CONTAINED IN SECTION 405 THEREOF, 59 STAT. 300, APPLICABLE TO EMPLOYEES WHOSE POSITIONS ARE SUBJECT TO THE CLASSIFICATION ACT OF 1923 AS AMENDED, AND SECTION 602 (B), 59 STAT. 302, APPLICABLE TO "BASIC RATES OF COMPENSATION SPECIFICALLY PRESCRIBED BY STATUTE.' THEREFORE, THE BASIC SALARY RATES OF CONTRACT EMPLOYEES, WHETHER FULL TIME, PART TIME, OR INTERMITTENT, FIXED ADMINISTRATIVELY PURSUANT TO STATUTORY AUTHORITY WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923 ARE NOT AUTOMATICALLY INCREASED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945. SEE DECISION OF JULY 10, 1945, B-50789, 25 C.G. 35, TO THE COMMISSIONER, UNITED STATES SECTION, INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, AND DECISION OF JULY 11, 1945, B-50808, 25 C.G. 41, TO THE GOVERNOR OF THE PANAMA CANAL. HOWEVER, THE BASIC RATES OF CONTRACT EMPLOYEES, WHETHER FULL TIME, PART TIME, OR INTERMITTENT, WHOSE POSITIONS HAVE BEEN MADE SUBJECT TO THE ENTIRE PROCEDURE OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, BY ADMINISTRATIVE ACTION--- IF THERE BE ANY SUCH EMPLOYEES--- ARE INCREASED TO CONFORM TO THE FORMULA PRESCRIBED BY SECTION 405 OF THE STATUTE. SEE DECISION OF JULY 14, 1945, B-50909, 25 C.G. 58, TO THE REGISTER OF WILLS AND CLERK OF THE PROBATE COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA. THE FACT THAT AN EMPLOYEE IS ENGAGED BY A PERSONAL SERVICE CONTRACT PURSUANT TO STATUTORY AUTHORITY, RATHER THAN BY AN APPOINTMENT UNDER THE CIVIL SERVICE LAWS AND REGULATIONS, DOES NOT DEFEAT HIS RIGHT TO THE INCREASE IN BASIC COMPENSATION IF HE OCCUPIES A POSITION SUBJECT TO THE CLASSIFICATION ACT.

IN ANSWER TO SUBQUESTION (2), IT MAY BE STATED THAT--- FOR THE REASONS STATED IN THE REFERRED-TO DECISIONS OF THIS OFFICE RENDERED UNDER EARLIER OVERTIME LAWS--- ALL CONTRACT EMPLOYEES, WHETHER FULL TIME, PART TIME, OR INTERMITTENT, WHO WORK IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK ARE ENTITLED TO OVERTIME COMPENSATION FOR THAT WEEK IN ACCORDANCE WITH THE FORMULA PRESCRIBED BY SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296.

REFERRING TO SUBQUESTION (3), SINCE SECTION 101 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, PROVIDES THAT TITLE III OF THE ACT CONTAINING THE PROVISIONS (SECTIONS 301 AND 302, 59 STAT. 298) FOR " NIGHT PAY DIFFERENTIAL" AND " COMPENSATION FOR HOLIDAY WORK," IS APPLICABLE TO ALL CIVILIAN OFFICERS AND EMPLOYEES IN OR UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT, AND SINCE CONTRACT EMPLOYEES ARE NOT EXEMPTED BY ANY PROVISION APPEARING IN SECTION 102 OF THE STATUTE THE CONCLUSION APPEARS REQUIRED THAT ALL CONTRACT EMPLOYEES, WHETHER FULL TIME, PART TIME, OR INTERMITTENT, WHO HAVE BEEN "ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY" AT NIGHT ARE ENTITLED TO THE NIGHT PAY DIFFERENTIAL UNDER THE TERMS AND CONDITIONS STATED IN THE LAW, AND THAT ALL CONTRACT EMPLOYEES, WHETHER FULL TIME, PART TIME, OR INTERMITTENT, ARE ENTITLED TO THE ONE-HALF DAY'S EXTRA PAY FOR HOLIDAY WORK UNDER THE TERMS AND CONDITIONS OF SECTION 302 OF THE STATUTE. OF COURSE, SECTION 302 OF THE STATUTE DOES NOT BECOME OPERATIVE UNTIL THE CESSATION OF HOSTILITIES OR UNTIL THE PRESIDENT SHALL HAVE DECLARED THAT HOLIDAYS SHALL NOT BE, GENERALLY, A WORKDAY IN THE FEDERAL SERVICE.

SUBQUESTION (4) INVOLVES THE APPLICATION OF SECTION 603 (A) OF THE STATUTE, 59 STAT. 303, WHICH 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 THE 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 20, 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 COMPENSATION, WHICHEVER IS THE SMALLER AMOUNT. SO FAR AS CONTRACT EMPLOYEES OF THE NAVY DEPARTMENT ARE CONCERNED, THE GUARANTEE PROVIDED BY THE QUOTED SECTION OF THE STATUTE IS APPLICABLE ONLY TO EMPLOYEES WHO WERE EMPLOYED ON A FULL- TIME BASIS, ON BOTH JUNE 30 AND JULY 1, 1945, AND WHOSE COMPENSATION IS FIXED IN ACCORDANCE WITH THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED. THEREFORE, THE GUARANTEE IS NOT APPLICABLE TO PART-TIME OR INTERMITTENT CONTRACT EMPLOYEES REGARDLESS OF THE POSITIONS THEY OCCUPY OR HOW THEIR COMPENSATION IS FIXED; BUT IT IS APPLICABLE TO A FULL-TIME CONTRACT EMPLOYEE OCCUPYING POSITION MADE SUBJECT TO THE CLASSIFICATION ACT BY ADMINISTRATIVE ACTION, PROVIDED HE OCCUPIED THE SAME POSITION ON JUNE 30 AND JULY 1, 1945.

IT IS UNDERSTOOD THAT YOUR QUESTION 2 RELATES ONLY TO THE APPROPRIATION PROVISION AUTHORIZING THE EMPLOYMENT OF PERSONNEL "AT RATES OF PAY NOT EXCEEDING $25 PER DIEM" (QUOTING FROM THE APPROPRIATION ITEM " NAVAL RESEARCH LABORATORY" APPEARING IN THE ACT OF MAY 29, 1945, PUBLIC LAW 62, 59 STAT. 203), OR SIMILAR STATUTORY AUTHORITY PROVIDING A MAXIMUM PER DIEM RATE OF $25. SECTION 602 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 HAS THE EFFECT OF INCREASING THE STATUTORY MAXIMUM FROM $25 TO $37.69 (ONE DAY'S PAY AT THE RATE OF $9,800 PER ANNUM--- SEE SALARY TABLE) WITHOUT ADDITIONAL LEGISLATION, BUT THE EXISTING CONTRACT RATES HERETOFORE FIXED FOR INDIVIDUAL CONTRACT EMPLOYEES PURSUANT TO SUCH AUTHORITY ARE NOT AUTOMATICALLY INCREASED. THEREFORE, BOTH SUBQUESTIONS (1) AND (2) ARE ANSWERED IN THE NEGATIVE, BUT, REFERRING TO SUBQUESTION (2), THE EXISTING CONTRACT RATES FOR INDIVIDUAL EMPLOYEES MAY BE ADJUSTED PROSPECTIVELY EFFECTIVE WITHIN THE NEW LIMITATION OF $37.69 PER DIEM BY ADMINISTRATIVE ACTION IF FUNDS BE AVAILABLE FOR THAT PURPOSE.