B-51571, AUGUST 22, 1945, 25 COMP. GEN. 212

B-51571: Aug 22, 1945

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THAT IS. INCLUDING LEGAL HOLIDAYS ON WHICH NO SERVICES ARE RENDERED. IN THE ABSENCE OF A FORMULA IN THE FEDERAL EMPLOYEES PAY ACT OF 1945 RESPECTING THE GRADE STEPS TO WHICH EMPLOYEES IN THE CLERICAL MECHANICAL SERVICE ARE TO BE ADVANCED BY OPERATION OF SECTION 405 (B) (2). IN WHICH THERE ARE ONLY TWO SALARY STEPS. SUCH CIRCULAR HAVING APPLICATION ONLY WHERE THERE ARE AT LEAST THREE SALARY RATES WITH AN AVERAGE OR MIDDLE RATE. A TEMPORARY EMPLOYEE'S ABSENCE FROM DUTY ON THE "OVERTIME" DAY OF AN ADMINISTRATIVE WORKWEEK DURING HIS INITIAL SERVICE MONTH IS NOT TO BE REGARDED AS A BREAK IN SERVICE PREVENTING ACCRUAL OF LEAVE FOR THAT MONTH. WHO IS SPECIFICALLY EXEMPTED FROM THE OPERATION OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AS THE HEAD OF THE DEPARTMENT.

B-51571, AUGUST 22, 1945, 25 COMP. GEN. 212

FEDERAL EMPLOYEES PAY ACT OF 1945 EVEN THOUGH AN EMPLOYEE COMPENSATED AT THE RATE OF $9,800 PER ANNUM WORKS ONLY ONE OF THE TWO 8-HOUR "OVERTIME" DAYS DURING A BIWEEKLY PAY PERIOD, HE MAY BE PAID THE MAXIMUM AMOUNT OF OVERTIME COMPENSATION AUTHORIZED UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR A PAY PERIOD, IN THE LIGHT OF THE $10,000 PER ANNUM AGGREGATE COMPENSATION LIMITATION PRESCRIBED BY SECTION 603 (B); THAT IS, NOT TO EXCEED $7.69 ( $200/26 ( COMPUTED AT THE RATE OF $1.51 PER HOUR. THE NIGHT PAY DIFFERENTIAL AUTHORIZED BY SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 ,FOR DUTY" WITHIN A REGULAR SCHEDULED TOUR OF DUTY--- BASIC WORKWEEK OF 40 HOURS--- BETWEEN 6 P.M. AND 6 A.M. MAY NOT BE PAID DURING LEAVE OF ABSENCE WITH PAY OR ANY OTHER PERIODS OF ABSENCE FROM DUTY, INCLUDING LEGAL HOLIDAYS ON WHICH NO SERVICES ARE RENDERED. IN THE ABSENCE OF A FORMULA IN THE FEDERAL EMPLOYEES PAY ACT OF 1945 RESPECTING THE GRADE STEPS TO WHICH EMPLOYEES IN THE CLERICAL MECHANICAL SERVICE ARE TO BE ADVANCED BY OPERATION OF SECTION 405 (B) (2), SUCH EMPLOYEES' HOURLY RATES SHOULD BE INCREASED IN ACCORDANCE WITH THE SCHEDULE OF RATES APPEARING IN THAT SECTION TO THE SAME RELATIVE RATE THAT THEY RECEIVED ON JUNE 30, 1945, UNDER THE LAW THEN IN EFFECT. EMPLOYEES IN THE CLERICAL-MECHANICAL SERVICE PAID AT THE MAXIMUM RATE IN GRADES CM-1, -2, AND -3, IN WHICH THERE ARE ONLY TWO SALARY STEPS, WHO RECEIVED "FAIR" EFFICIENCY RATINGS AS OF MARCH 31, 1945, NEED NOT BE REDUCED ONE SALARY STEP UNDER THE TERMS AND PROVISIONS OF CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 458, SUCH CIRCULAR HAVING APPLICATION ONLY WHERE THERE ARE AT LEAST THREE SALARY RATES WITH AN AVERAGE OR MIDDLE RATE. IN VIEW OF SECTIONS 201 AND 604 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, PROVIDING FOR DIVISION OF AN ANNUAL SALARY RATE INTO UNITS OF WEEKS AND HOURS OF EMPLOYMENT WITH NO CREDIT FOR TIME NOT WORKED OR NOT OTHERWISE IN A LEAVE WITH PAY STATUS, PART TIME SALARY RATES OF EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT SHOULD NO LONGER BE COMPUTED AND PAID UPON A PER ANNUM BASIS (COMPARE 22 COMP. GEN. 1043;) RATHER, SUCH EMPLOYEES SHOULD BE PAID FOR THE NUMBER OF HOURS ACTUALLY EMPLOYED AT HOURLY RATES DETERMINED FROM THE NEW ANNUAL RATES FOR FULL TIME EMPLOYEES, DIVIDED PURSUANT TO THE FORMULA PRESCRIBED BY SECTION 604 (D). UNDER CURRENT LEAVE REGULATIONS, AND IN THE LIGHT OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, A TEMPORARY EMPLOYEE'S ABSENCE FROM DUTY ON THE "OVERTIME" DAY OF AN ADMINISTRATIVE WORKWEEK DURING HIS INITIAL SERVICE MONTH IS NOT TO BE REGARDED AS A BREAK IN SERVICE PREVENTING ACCRUAL OF LEAVE FOR THAT MONTH. FOR PURPOSES OF CREDITING PERMANENT EMPLOYEES WITH ANNUAL LEAVE IN ACCORDANCE WITH THE CURRENTLY USED LEAVE CREDIT TABLE (4 HOURS' LEAVE CREDIT FOR A MINIMUM OF 7 DAYS' SERVICE WITH ADDITIONAL CREDIT OF 4 HOURS AFTER EACH OF 15, 22 AND 30 DAYS' SERVICE WITHIN A CALENDAR MONTH,) THE EMPLOYEES MUST BE ON THE ROLL FOR THE PRESCRIBED NUMBER OF DAYS, AND, DURING SUCH PERIOD, WORK OR OTHERWISE BE IN A PAY STATUS ALL OF THEIR BASIC WORKWEEKS PRESCRIBED PURSUANT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945, SUBJECT TO LEAVE CREDIT REDUCTION AS PROVIDED BY SECTION 4.3 OF THE ANNUAL AND SICK LEAVE REGULATIONS FOR PERIODS IN A NONPAY STATUS (25 COMP. GEN. 147). OFFICERS OF THE TREASURY DEPARTMENT APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, OTHER THAN THE SECRETARY, WHO IS SPECIFICALLY EXEMPTED FROM THE OPERATION OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AS THE HEAD OF THE DEPARTMENT, ARE SUBJECT TO THE OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF THE ACT. THE RULE THAT AN "OFFICER," AS DISTINGUISHED FROM AN "EMPLOYEE," IS ENTITLED TO THE COMPENSATION ATTACHED TO HIS OFFICE AS AN INCIDENT TO THE TITLE TO THE OFFICE, RATHER THAN AS AN INCIDENT TO THE ACTUAL RENDERING OF SERVICE, RELATES ONLY TO BASIC COMPENSATION AND DOES NOT ENTITLE AN OFFICER TO OVERTIME COMPENSATION UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 WHEN HE IS NOT ACTUALLY ON THE JOB PERFORMING THE DUTIES OF HIS OFFICE. IN MAKING LUMP-SUM PAYMENTS FOR LEAVE UNDER THE ACT OF DECEMBER 21, 1944, IN THE CASE OF OFFICERS APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, A CERTIFICATE OF THE OFFICER STATING THE AMOUNT OF UNUSED ANNUAL LEAVE TO HIS CREDIT AT DATE OF SEPARATION WILL BE SUFFICIENT SUPPORTING EVIDENCE SO FAR AS THIS OFFICE IS CONCERNED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, AUGUST 22, 1945:

I HAVE YOUR LETTER OF AUGUST 7, 1945, REQUESTING DECISION UPON A NUMBER OF QUESTIONS ARISING UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, PUBLIC LAW 106, WHICH QUESTIONS WILL BE STATED AND ANSWERED IN THE ORDER PRESENTED.

1. UNDER THE ACT, IS A PER ANNUM EMPLOYEE ENTITLED TO PAYMENT OF SALARY WHILE HE IS IN TRAVEL STATUS ON (1) SUNDAY, OR (2) SATURDAY WHERE A 40 OR 44 HOUR WORKWEEK HAS BEEN ESTABLISHED? IF HE IS ENTITLED TO SUCH PAYMENT, AT WHAT RATE SHOULD HE BE PAID?

A LIKE QUESTION WAS CONSIDERED AND ANSWERED (QUESTION AND ANSWER 8) IN DECISION OF JULY 28, 1945, B-51099, 25 COMP. GEN. 121, TO THE SECRETARY OF AGRICULTURE, AND NEED NOT BE RESTATED HERE. SEE, ALSO, QUESTION AND ANSWER 2, DECISION OF AUGUST 7, 1945, B-51218, 25 COMP. GEN. 151, TO THE PRICE ADMINISTRATOR.

2. WHAT OVERTIME PAYMENT SHOULD AN EMPLOYEE WHOSE BASIC SALARY RATE IS $9,800 PER ANNUM RECEIVE WHEN HE WORKS ONLY ONE OVERTIME PERIOD DURING THE TWO-WEEK PAY PERIOD OF A 48 HOUR WORKWEEK? TO PUT THE QUESTION ALTERNATIVELY, IS THE $200 LIMITATION IN PAYMENT OF OVERTIME TO EMPLOYEES AT $9,800 TO BE PRORATED WEEKLY, BIWEEKLY, OR SHOULD IT BE REGARDED MERELY AS A LIMITATION?

SECTION 603 (B) OF THE NEW PAY STATUTE, 59 STAT. 303, PROVIDES, SO FAR AS HERE MATERIAL, AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF THIS ACT, NO OFFICER OR EMPLOYEE SHALL, BY REASON OF THE ENACTMENT OF THIS ACT, BE PAID, WITH RESPECT TO ANY PAY PERIOD, BASIC COMPENSATION, OR BASIC COMPENSATION PLUS ANY ADDITIONAL COMPENSATION PROVIDED BY THIS ACT, AT A RATE IN EXCESS OF $10,000 PER ANNUM * * * . (ITALICS SUPPLIED.)

THAT PORTION OF THE STATUTE UNQUESTIONABLY PROVIDES A LIMITATION UPON THE PAYMENT OF AGGREGATE COMPENSATION UNDER ALL PROVISIONS OF THE STATUTE FOR ANY BIWEEKLY PAY PERIOD. IN DECISION OF AUGUST 7, 1945, B 51218, SUPRA, TO THE PRICE ADMINISTRATOR (ANSWER TO QUESTION 5,) IT WAS STATED:

* * * IF ON JUNE 30, 1945, THE AGGREGATE SALARY OF ANY OFFICER OR EMPLOYEE STATIONED EITHER WITHIN OR WITHOUT THE CONTINENTAL LIMITS OF THE UNITED STATES WAS $10,000 PER ANNUM OR LESS, NO AMOUNT MAY BE PAID FOR ANY BIWEEKLY PAY PERIOD UNDER ANY OF THE PROVISIONS OF THE NEW PAY STATUTE WHICH WOULD CAUSE THE RATE FOR SUCH PERIOD TO EXCEED $384.61. THEREFORE, IN THE CASE PRESENTED, WHILE OVERTIME COMPENSATION IS REQUIRED BY SECTION 201 OF THE STATUTE, 59 STAT. 296, TO BE COMPUTED UPON THE BASIS OF THE WEEK AS THE UNIT, THE LIMITATION OF $200 PER ANNUM IN EXCESS OF $9,800 PER ANNUM PRESCRIBED BY SECTION 603 (B), SUPRA, OF THE STATUTE MUST BE COMPUTED UPON THE BASIS OF THE BIWEEKLY PAY PERIOD AS THE UNIT. THAT IS TO SAY, THERE MAY BE PAID OVERTIME COMPENSATION NOT TO EXCEED $7.69 ($100 DIVIDED BY 26) FOR ANY BIWEEKLY PAY PERIOD. SUCH AN EMPLOYEE IS REQUIRED TO WORK ONLY A SUFFICIENT NUMBER OF HOURS OF OFFICIALLY ORDERED OR APPROVED OVERTIME DURING THE BIWEEKLY PAY PERIOD TO EARN THE $7.69 OVERTIME COMPENSATION AT THE RATE OF $1.51 PER HOUR TO RECEIVE THE MAXIMUM AMOUNT OF OVERTIME COMPENSATION$ION AT THE RATE OF $200 PER ANNUM. SINCE THE EMPLOYEE IN THE CASE PRESENTED WORKED 8 HOURS OVERTIME DURING THE BIWEEKLY PAY PERIOD--- MORE THAN ENOUGH TO EARN $7.69 AT THE RATE OF $1.51 PER HOUR- - IT IS PROPER TO PAY HIM $7.69 OVERTIME COMPENSATION FOR THE PAY PERIOD EVEN THOUGH HE WORKED ONLY ON ONE OF THE SO-CALLED OVERTIME DAYS OF THE BIWEEKLY PAY PERIOD.

3. UNDER SECTION 301 OF THE ACT, WILL THE 10 PERCENT NIGHT PAY DIFFERENTIAL BE PAYABLE ON A LEGAL HOLIDAY OCCURRING DURING THE BASIC WORKWEEK, ASSUMING THE DAY IS DECLARED ON A NON-WORK DAY AND THE EMPLOYEE DOES NOT RENDER ANY SERVICE THEREON?

SECTION 301 OF THE NEW PAY STATUTE, 59 STAT. 298, EXPLICITLY PROVIDES FOR PAYMENT OF THE NIGHT DIFFERENTIAL ONLY "FOR DUTY" WITHIN A REGULARLY SCHEDULED TOUR OF DUTY--- BASIC WORKWEEK OF 40 HOURS--- BETWEEN 6 P.M. AND 6 A.M. SUCH PAYMENT IS AUTHORIZED TO BE PAID DURING LEAVE OF ABSENCE WITH PAY, OR ANY OTHER ABSENCE FROM DUTY, AND IT OTHERWISE IS NOT REGARDED AS A PART OF BASIC COMPENSATION. SEE ANSWER TO QUESTION (A) (4) (D), DECISION OF JULY 26, 1945, B-51076, 25 COMP. GEN. 102, TO THE ARCHITECT OF THE CAPITOL. ACCORDINGLY, THIS QUESTION IS ANSWERED IN THE NEGATIVE.

4. SECTION 405, PARAGRAPH (B) (2) OF THE ACT ESTABLISHES NEW HOURLY RATES OF COMPENSATION FOR THE CLERICAL-MECHANICAL SERVICE AS FOLLOWS:

CHART

OLD RATE NEW RATE

GRADE CM-1 ---------------------------------$0.66 $0.78

.72 .85

GRADE CM-2 --------------------------------- .78 .91

.84 .98

GRADE CM-3 --------------------------------- .90 1.05

.96 1.11

GRADE CM-4 --------------------------------- 1.02 1.18

(1.08) (1.25)

1.14 1.31 MAY EMPLOYEES PREVIOUSLY AT THE OLD MAXIMUM RATE BE GIVEN THE MAXIMUM OF THE NEW RATE?

SECTION 405 (B) (2) OF THE NEW PAY STATUTE, 59 STAT. 300, PROVIDES:

SUCH SECTION IS AMENDED SO AS TO PROVIDE THE FOLLOWING RATES OF COMPENSATION FOR POSITIONS IN THE CLERICAL-MECHANICAL SERVICE:

GRADE 1, 78 TO 85 CENTS AN HOUR.

GRADE 2, 91 TO 98 CENTS AN HOUR.

GRADE 3, $1.05 TO $1.11 AN HOUR.

GRADE 4, $1.18 TO $1.31 AN HOUR.

IN THE ABSENCE OF ANY OTHER FORMULA APPEARING IN THE NEW PAY STATUTE, IT IS TO BE PRESUMED THAT THESE EMPLOYEES IN THE CLERICAL MECHANICAL SERVICE PRESCRIBED BY THE CLASSIFICATION ACT SHOULD BE INCREASED TO THE SAME RELATIVE SALARY RATE UNDER THE NEW STATUTE THAT THEY RECEIVED JUNE 30, 1945, UNDER THE LAW THEN IN EFFECT. THEREFORE, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

5. EMPLOYEES IN THE CLERICAL-MECHANICAL SERVICE IN THE BUREAU OF ENGRAVING AND PRINTING WERE GIVEN EFFICIENCY RATINGS FOR THE FIRST TIME AS OF MARCH 31, 1945. SOME OF THESE EMPLOYEES WHO ARE PAID AT THE MAXIMUM RATE IN THEIR RESPECTIVE GRADES HAVE RECEIVED EFFICIENCY RATINGS OF "FAIR.' MUST THESE EMPLOYEES BE REDUCED (AFTER APPROVAL OF THE CIVIL SERVICE COMMISSION) TO THE MINIMUM OF THE GRADE BECAUSE OF THE FACT THAT THERE IS NO INTERMEDIATE RATE IN GRADES CM-1, 2, AND 3?

AS THESE EMPLOYEES ARE NOT PAID COMPENSATION ON A PER ANNUM BASIS, THEY ARE NOT SUBJECT TO THE PROVISION OF SECTION 402 OF THE NEW PAY STATUTE, 59 STAT. 299, AMENDING SECTION 7 (B) OF THE CLASSIFICATION ACT PROVIDING FOR WITHIN-GRADE SALARY ADVANCEMENTS UPON THE ATTAINMENT OF EFFICIENCY RATING OF "GOOD" OR BETTER. HOWEVER, IN VIEW OF THE FACT THAT THESE EMPLOYEES ARE SUBJECT TO THE CLASSIFICATION ACT, AND AS THERE APPEARS NO PROVISION OTHERWISE APPLICABLE TO THEM, IT MUST BE CONCLUDED THAT SUCH EMPLOYEES ARE SUBJECT TO THE PROVISIONS OF SECTION 9 OF THE ORIGINAL CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1490, PROVIDING:

THAT THE BOARD (NOW CIVIL SERVICE COMMISSION) SHALL REVIEW AND MAY REVISE UNIFORM SYSTEMS OF EFFICIENCY RATING ESTABLISHED OR TO BE ESTABLISHED FOR THE VARIOUS GRADES OR CLASSES THEREOF, WHICH SHALL SET FORTH THE DEGREE OF EFFICIENCY WHICH SHALL CONSTITUTE GROUND FOR (A) INCREASE IN THE RATE OF COMPENSATION FOR EMPLOYEES WHO HAVE NOT ATTAINED THE MAXIMUM RATE OF THE CLASS TO WHICH THEIR POSITIONS ARE ALLOCATED, (B) CONTINUANCE AT THE EXISTING RATE OF COMPENSATION WITHOUT INCREASE OR DECREASE, (C) DECREASE IN THE RATE OF COMPENSATION FOR EMPLOYEES WHO AT THE TIME ARE ABOVE THE MINIMUM RATE FOR THE CLASS TO WHICH THEIR POSITIONS ARE ALLOCATED, AND (D) DISMISSAL.

THE HEAD OF EACH DEPARTMENT SHALL RATE IN ACCORDANCE WITH SUCH SYSTEMS THE EFFICIENCY OF EACH EMPLOYEE UNDER HIS CONTROL OR DIRECTION. THE CURRENT RATINGS FOR EACH GRADE OR CLASS THEREOF SHALL BE OPEN TO INSPECTION BY THE REPRESENTATIVES OF THE BOARD AND BY THE EMPLOYEES OF THE DEPARTMENT UNDER CONDITIONS TO BE DETERMINED BY THE BOARD AFTER CONSULTATION WITH THE DEPARTMENT HEADS.

REDUCTIONS IN COMPENSATION AND DISMISSALS FOR INEFFICIENCY SHALL BE MADE BY HEADS OF DEPARTMENTS IN ALL CASES WHENEVER THE EFFICIENCY RATINGS WARRANT, AS PROVIDED HEREIN, SUBJECT TO THE APPROVAL OF THE BOARD.

THE BOARD MAY REQUIRE THAT ONE COPY OF SUCH CURRENT RATINGS SHALL BE TRANSMITTED TO AND KEPT ON FILE WITH THE BOARD.

SECTION 5 (B) OF CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 458, DATED DECEMBER 23, 1943 (SEE, ALSO, APPENDIX B OF THE EFFICIENCY RATING MANUAL, FORM 3823, QUOTING DEPARTMENTAL CIRCULAR NO. 302 WHICH WAS SUPERSEDED BY DEPARTMENTAL CIRCULAR NO. 458,) PROVIDES:

THE RATE OF COMPENSATION OF AN EMPLOYEE WHOSE EFFICIENCY RATING IS "FAIR" SHALL BE REDUCED ONE SALARY STEP IF HIS RATE OF COMPENSATION IS ABOVE THE MIDDLE RATE. IF THE RATE OF COMPENSATION IS EQUAL TO OR BELOW SUCH MIDDLE SALARY RATE, IT SHALL NOT BE SUBJECT TO REDUCTION ON THAT ACCOUNT.

IT IS UNDERSTOOD FROM QUESTION 4 THAT THERE ARE ONLY TWO SALARY RATES IN GRADES CM-1, 2, AND 3; ALSO, THAT THE EFFICIENCY RATING SYSTEM HAS NOT BEEN APPLIED HERETOFORE TO THE EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING IN THE CLERICAL-MECHANICAL SERVICE AND THAT THE ABOVE-QUOTED REGULATION NEVER HAS BEEN REGARDED AS APPLICABLE TO SUCH EMPLOYEES. OBVIOUSLY, THE REGULATION IS NOT DESIGNED TO APPLY TO A GRADE HAVING ONLY TWO SALARY RATES. BEFORE SAID REGULATION MAY OPERATE, OR APPLY, THERE MUST BE AT LEAST THREE SALARY RATES WITH AN AVERAGE OR MIDDLE RATE. THAT CONCLUSION IS STRENGTHENED WHEN VIEWED IN THE LIGHT OF THE FACT THAT A SPECIAL PROVISION HAS BEEN MADE IN THE REGULATION FOR A GRADE WITH SIX SALARY RATES. ACCORDINGLY, THE SALARY RATES OF EMPLOYEES IN THE CLERICAL- MECHANICAL SERVICE IN GRADES CM-1, 2, AND 3--- TO WHICH IT IS UNDERSTOOD THIS QUESTION RELATES--- WHOSE EFFICIENCY RATING NOW ON RECORD IS "FAIR," ARE NOT REQUIRED TO BE REDUCED UNDER THE TERMS AND CONDITIONS OF THE EXISTING REGULATIONS OF THE CIVIL SERVICE COMMISSION.

6. IN THE CUSTOMS SERVICE, PERSONS ARE APPOINTED UNDER SECTION A, PART 1, PARAGRAPH 6, AS DEPUTY COLLECTORS, CAF-5, WITH AGGREGATE SALARY NOT IN EXCESS OF $540 PER ANNUM. THE SALARIES ARE SET AT A CERTAIN PERCENTAGE OF THE MINIMUM OF SALARY OF CAF-5. FOR EXAMPLE, AN EMPLOYEE BEING PAID $450 IS ESTIMATED TO BE DEVOTING 27 PERCENT OF HIS TIME TO THE WORK AND HAS BEEN PAID 27 PERCENT OF $2,000. ARE THESE EMPLOYEES ENTITLED TO ANY INCREASE IN PAY UNDER THE ACT, AND, IF SO, SHOULD IT BE AT THE RATE OF 20 PERCENT OF THEIR PER ANNUM PAY OR A PROPORTIONAL PART OF THE BASIC RATE FOR CAF-5?

THIS OFFICE HAS BEEN ADVISED INFORMALLY BY YOUR OFFICE THAT THE REGULATION TO WHICH REFERENCE IS MADE IN THIS QUESTION IS SCHEDULE A, PART 1, PARAGRAPH 6, OF THE CIVIL SERVICE RULES AND REGULATIONS. THAT REGULATION FIXES MERELY A LIMITATION UPON THE SALARY OF PART-TIME EMPLOYEES WHO MAY BE APPOINTED WITHOUT COMPETITIVE EXAMINATION AND DOES NOT PRESCRIBE THE FORMULA FOR FIXING PER ANNUM SALARY RATES OF PART TIME EMPLOYEES. NEITHER IS THERE ANY STATUTE HERE APPLICABLE THAT DOES SO. HOWEVER, FOR MANY YEARS THIS OFFICE HAS RECOGNIZED IN DECISIONS THAT PART- TIME SALARY RATES OF EMPLOYEES OCCUPYING POSITIONS SUBJECT TO THE CLASSIFICATION ACT MAY BE FIXED UPON A PER ANNUM BASIS WITH A PROPORTIONATE CREDIT FOR SUNDAYS AND HOLIDAYS ON WHICH NO WORK IS PERFORMED BY FULL-TIME EMPLOYEES. ALSO, THERE HAS BEEN STATED IN THE DECISIONS THE FORMULA FOR COMPUTING THE PER ANNUM PART-TIME SALARY RATE AND, ALSO, FOR INCREASING SUCH RATES UNDER THE PROVISIONS OF THE OVERTIME LAWS IN EFFECT PRIOR TO JULY 1, 1945. SEE, PARTICULARLY, 22 COMP. GEN. 1043. THE UNDERLYING REASON FOR THOSE DECISIONS WAS THAT COMPENSATION PRIOR TO JULY 1, 1945, WAS PAID FOR EVERY DAY OF THE YEAR INCLUDING SUNDAYS AND HOLIDAYS AND OTHER NONWORK DAYS FOR FULL-TIME EMPLOYEES AND, UPON THAT BASIS, IT WAS CONCLUDED THAT A PART-TIME EMPLOYEE SHOULD RECEIVE A PROPORTIONATE BENEFIT FOR COMPENSATION WHICH A FULL-TIME PER ANNUM EMPLOYEE WOULD HAVE RECEIVED ON SUNDAYS, HOLIDAYS, AND OTHER NONWORK DAYS ON WHICH NO WORK WAS PERFORMED. HOWEVER, SECTIONS 201 AND 604 OF THE NEW PAY STATUTE, 59 STAT. 296, 303, EFFECTIVE JULY 1, 1945, PROVIDING FOR DIVISION OF AN ANNUAL SALARY RATE INTO UNITS OF WEEKS AND HOURS OF EMPLOYMENT WITH NO CREDIT ALLOWED FOR ANY TIME NOT WORKED OR NOT OTHERWISE IN A LEAVE WITH PAY STATUS--- WHICH LATTER STATUS A PART-TIME EMPLOYEE CANNOT HAVE--- THERE NO LONGER EXISTS ANY REASONABLE BASIS FOR CONTINUING THE COMPUTATION AND PAYMENT OF PART-TIME SALARY RATES UPON A PER ANNUM BASIS. THEREFORE, IN THE ABSENCE OF A STATUTE PROVIDING OTHERWISE (COMPARE DECISION OF AUGUST 14, 1945, B-51244, 25 COMP. GEN. 185,) ALL PART-TIME WORK OF EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT SHOULD BE PAID FOR UPON THE BASIS OF THE NUMBER OF HOURS ACTUALLY EMPLOYED, THE ANNUAL RATE FIXED BY THE CLASSIFICATION ACT FOR FULL-TIME EMPLOYEES TO BE DIVIDED PURSUANT TO THE FORMULA PRESCRIBED BY SECTION 604 (D) OF THE NEW PAY STATUTE, 59 STAT. 304, TO DETERMINE THE RATE PER HOUR. SEE ALSO, DECISION OF JULY 28, 1945, B-51099, SUPRA, TO THE SECRETARY OF AGRICULTURE, WHEREIN IT WAS STATED IN ANSWER TO QUESTION 7: UNDER SECTION 604 (A) OF THE STATUTE, ESTABLISHING A 40-HOUR BASIC WORKWEEK, AND SECTION 604 (D) THEREOF, PROVIDING THE FORMULA FOR COMPUTING BASIC COMPENSATION BY THE HOUR, THE COMPENSATION OF ALL PERSONNEL SUBJECT TO SAID SECTIONS OF THE STATUTE WHO WORK LESS THAN FULL TIME SHOULD BE COMPUTED AND PAID UPON AN HOURLY BASIS RATHER THAN UPON A DAILY BASIS. THE PROVISIONS OF THE ACT OF JUNE 30, 1906, 34 STAT. 763, WHICH REQUIRED THE DIVISION OF THE ANNUAL SALARY OF EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT BY 360 TO DETERMINE THE DAILY RATE, NO LONGER IS OPERATIVE AS TO EMPLOYEES WHOSE COMPENSATION IS COMPUTED IN ACCORDANCE WITH SECTION 604 (D) OF THE NEW STATUTE. * * * THEREFORE, IN THE EXAMPLE STATED, THE PART-TIME EMPLOYEES SHOULD BE PAID FOR THE NUMBER OF HOURS ACTUALLY EMPLOYED AT THE MINIMUM SALARY RATE OF GRADE CAF-5, OR $2,320 PER ANNUM, COMPUTED IN ACCORDANCE WITH THE FORMULA PRESCRIBED BY SECTION 604 (D), SUPRA, OF THE NEW STATUTE.

7. IF A TEMPORARY EMPLOYEE, WHOSE ANNUAL LEAVE DOES NOT BEGIN TO ACCRUE UNTIL HE HAS PERFORMED AN INITIAL MONTH OF SERVICE, IS ABSENT FROM DUTY ON THE OVERTIME DAY OF AN ADMINISTRATIVE WORK-WEEK DURING THAT INITIAL PERIOD, DOES SUCH ABSENCE CONSTITUTE A BREAK IN SERVICE AND REQUIRE HIM AGAIN TO COMMENCE A NEW MONTH OF SERVICE?

OF COURSE, THE LEAVE LAWS WERE ENACTED, AND THE LEAVE REGULATIONS PROMULGATED, IN THE LIGHT OF THE SALARY LAWS IN EFFECT PRIOR TO JULY 1, 1945. HOWEVER, THE NEW PAY STATUTE DOES NOT AMEND ANY PROVISIONS OF THE LEAVE LAWS OR REGULATIONS. CONSEQUENTLY, UNLESS AND UNTIL THE LEAVE LAWS OR REGULATIONS SHALL HAVE BEEN MODIFIED TO CORRESPOND TO THE FORMULAS FOR COMPUTING BASIC AND OVERTIME COMPENSATION PRESCRIBED BY THE NEW PAY STATUTE, IT IS NECESSARY TO STATE RULES FOR THE EARNING AND CREDITING OF LEAVE WHICH STILL MUST REFLECT THE PURPOSE AND INTENT OF THE LEAVE LAWS AND REGULATIONS. WHILE TEMPORARY EMPLOYEES EARN LEAVE UPON THE BASIS OF THE SERVICE MONTH, IT IS NOT REASONABLE TO REQUIRE THAT AN EMPLOYEE WORK OVERTIME DURING HIS SERVICE MONTH IN ORDER TO EARN LEAVE. THEREFORE, IN THE ABSENCE OF REGULATIONS OTHERWISE CONTROLLING, THIS QUESTION IS ANSWERED IN THE NEGATIVE. COMPARE ANSWER TO QUESTIONS 2, 3, AND 6, IN DECISION OF JULY 28, 1945, B-51099, SUPRA, TO THE SECRETARY OF AGRICULTURE.

8. PERMANENT EMPLOYEES ARE CREDITED WITH ANNUAL LEAVE UNDER THE FOLLOWING FORMULA:

PERIODS OF SERVICE: CREDIT

LESS THAN 7 DAYS ----------------------------- 10.

7 THROUGH 14 DAYS ---------------------------- 4 HOURS.

L5 THROUGH 21 DAYS --------------------------- 8 HOURS.

22 THROUGH 29 DAYS --------------------------- 12 HOURS.

30 DAYS -------------------------------------- 16 HOURS. DOES ESTABLISHMENT OF THE BASIC 40 HOUR WORKWEEK AFFECT THIS FORMULA, AND, IF SO, IN WHAT MANNER?

PERMANENT EMPLOYEES EARN LEAVE UPON THE BASIS OF THE CALENDAR MONTH. WHAT WAS STATED IN ANSWERING QUESTION 7, SUPRA, IS FOR CONSIDERATION IN ANSWERING THIS QUESTION, ALSO. IN OTHER WORDS, PERMANENT EMPLOYEES MUST BE ON THE ROLL FOR THE NUMBER OF DAYS STATED IN THE SCHEDULE QUOTED IN YOUR LETTER, AND WORK (OR OTHERWISE BE IN A PAY STATUS) ALL OF THEIR BASIC WORKWEEKS DURING SUCH PERIOD TO EARN THE NUMBER OF HOURS LEAVE CREDIT LISTED, SUBJECT TO REDUCTION IN LEAVE CREDIT REQUIRED BY THE PROVISIONS OF SECTION 4.3 OF THE LEAVE REGULATIONS FOR PERIODS IN A NONPAY STATUS. TO REDUCTION IN LEAVE CREDITS UNDER SECTION 4.3 OF THE LEAVE REGULATIONS, SEE DECISION OF JULY 31, 1945, B-51306, 25 COMP. GEN. 147.

9. SINCE IN MOST CASES THE BASIC WORKWEEK NOW CONSISTS OF FIVE DAYS, DOES THE 30-DAY PROVISION IN THE FOLLOWING CASES MEAN "CALENDAR" OR "WORKING" DAYS?

(A) APPLICATION OF THE PROVISIONS OF THE VETERANS' PREFERENCE ACT OF 1944 ( DEPARTMENTAL CIRCULAR NO. 507, NOVEMBER 4, 1944) IN THE CASES OF SUSPENSIONS OF MORE THAN 30 DAYS OF PERSONS COVERED BY THAT LAW:

(B) APPLICATION OF THE PROVISIONS OF EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, WHICH STIPULATES THE CREDITING OF TIME LAPSING IN A NON -PAY STATUS TOWARD WITHIN-GRADE PROMOTIONS, PROVIDED SUCH TIME DOES NOT EXCEED 30 DAYS;

WHILE SUBSECTION (A) OF THIS QUESTION PRIMARILY IS NOT A MATTER FOR THE CONSIDERATION OF THIS OFFICE--- SEE 24 COMP. GEN. 709--- IT WOULD SEEM THAT THE WORDS,"SUSPENDED FOR MORE THAN THIRTY DAYS," AND THE WORDS,"AT LEAST THIRTY DAYS' ADVANCE WRITTEN NOTICE," APPEARING IN SECTION 14 OF THE " VETERANS' PREFERENCE ACT OF 1944" APPROVED JUNE 27, 1944, 58 STAT. 390, REFER TO CALENDAR DAYS RATHER THAN WORK DAYS AND THAT THE FEDERAL EMPLOYEES PAY ACT OF 1945 HAS NO EFFECT TO MODIFY THAT STATUTE.

SUBSECTION (B) OF THIS QUESTION WOULD APPEAR TO BE ANSWERED BY THE ANSWER TO QUESTION 12 IN DECISION OF JULY 28, 1945, B-51099, SUPRA, TO THE SECRETARY OF AGRICULTURE.

10. ARE OFFICERS APPOINTED BY THE PRESIDENT, WITH THE CONSENT OF THE SENATE, SUBJECT TO THE OVERTIME PROVISIONS OF THE ACT, AND IF THEY ARE, WHETHER, IN VIEW OF YOUR EARLIER DECISION TO THE EFFECT THAT ABSENCE DOES NOT DEPRIVE OFFICERS OF THE UNITED STATES OF THE RIGHT TO COMPENSATION, THEY MAY BE PAID FOR THE OVERTIME DAY OF THE ADMINISTRATIVE WORKWEEK IF THEY PERFORM NO DUTY ON THAT DAY?

OVERTIME COMPENSATION IS AUTHORIZED TO BE PAID ONLY PURSUANT TO THE FORMULA PRESCRIBED BY SECTION 201, TITLE II, OF THE NEW PAY STATUTE, 59 STAT. 296. SECTION 101 (A) OF THE STATUTE, 59 STAT. 295, PROVIDES, IN MATERIAL PART:

SUBJECT TO THE EXEMPTIONS SPECIFIED IN SECTION 102 OF THIS ACT, TITLES II AND III OF THIS ACT SHALL APPLY (1) TO ALL CIVILIAN OFFICERS AND EMPLOYEES IN OR UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT, INCLUDING GOVERNMENT- OWNED OR CONTROLLED CORPORATIONS, AND IN OR UNDER THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT .

SECTION 102, 59 STAT. 296, CONTAINS NO GENERAL EXEMPTION OF OFFICERS APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, BUT EXEMPTION (3) OF THAT SECTION OF THE STATUTE DOES EXCLUDE FROM ALL PROVISIONS OF THE ACT THE RIGHT TO RECEIVE OVERTIME COMPENSATION BY "HEADS OF DEPARTMENTS OR OF INDEPENDENT ESTABLISHMENTS OR AGENCIES OF TH FEDERAL GOVERNMENT, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS.' HENCE, THE ONLY "OFFICER" IN THE TREASURY DEPARTMENT EXEMPTED FROM THE OVERTIME PROVISIONS OF THE LAW IS THE SECRETARY OF THE TREASURY. FURTHERMORE, ALL FULL-TIME "OFFICERS" IN THE TREASURY DEPARTMENT, OTHER THAN THE SECRETARY, ALSO ARE INCLUDED SPECIFICALLY WITHIN THE PROVISION OF SECTION 604 (A) OF THE STATUTE, 59 STAT. 303, REQUIRING THE ESTABLISHMENT OF A "BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS, AND TO REQUIRE THAT THE HOURS OF WORK IN SUCH WORKWEEK BE PERFORMED WITHIN A PERIOD OF NOT MORE THAN SIX OF ANY SEVEN CONSECUTIVE DAYS.' THEREFORE, ALL "OFFICERS" IN THE TREASURY DEPARTMENT, OTHER THAN THE SECRETARY, ARE SUBJECT TO THE OVERTIME PROVISIONS OF THE NEW PAY STATUTE. THE FIRST SUBQUESTION IN THIS QUESTION IS ANSWERED ACCORDINGLY.

REFERRING TO THE SECOND SUBQUESTION, YOU ARE ADVISED THAT THE RULE THAT AN "OFFICER" AS DISTINGUISHED FROM AN "EMPLOYEE" IS ENTITLED TO THE COMPENSATION ATTACHED TO HIS OFFICE AS AN INCIDENT TO THE TITLE TO THE OFFICE, RATHER THAN AS AN INCIDENT TO THE ACTUAL RENDERING OF SERVICE (24 COMP. GEN. 45, 804; ANSWER TO QUESTION 1, DECISION OF AUGUST 7 B-51218, SUPRA; COMPARE DECISION OF AUGUST 9, 1945, B-51172,) RELATES ONLY TO THE BASIC COMPENSATION OF HIS OFFICE AS FIXED BY OR PURSUANT TO LAW AND DOES NOT ENTITLE AN OFFICER TO OVERTIME COMPENSATION FOR THE SO-CALLED OVERTIME DAY OR FOR ANY OTHER "HOURS OF EMPLOYMENT, OFFICIALLY ORDERED OR APPROVED, IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK" (QUOTING FROM SECTION 201 OF THE NEW PAY STATUTE) THAT THE OFFICER IS NOT ACTUALLY ON THE JOB PERFORMING THE DUTIES OF HIS OFFICE. SO FAR AS THE EARNING OF OVERTIME COMPENSATION IS CONCERNED, AN "OFFICER" IS IN THE SAME STATUS AS AN "EMPLOYEE.' THEREFORE, THE SECOND SUBQUESTION IN THIS QUESTION IS ANSWERED IN THE NEGATIVE.

11. SINCE THE PASSAGE OF THE ACT OF DECEMBER 21, 1944, PROVIDING FOR THE LUMP-SUM PAYMENT FOR ACCUMULATED AND ACCRUED ANNUAL LEAVE, THE QUESTION HAS ARISEN AS TO THE PROCEDURE TO BE FOLLOWED IN THE CASE OF PRESIDENTIAL OFFICERS, WHO BECAUSE THEIR SALARIES CAN NOT BE REDUCED IF THEY ARE ABSENT FROM DUTY, DO NOT KEEP RECORDS OF THEIR ANNUAL LEAVE. YOUR DECISION IS DESIRED AS TO WHETHER IN SUCH CASES, LUMP-SUM PAYMENT FOR ACCUMULATED AND ACCRUED ANNUAL LEAVE MAY BE MADE, AND, IF SO, WHAT KIND OF SUPPORTING EVIDENCE IS SATISFACTORY TO YOUR OFFICE TO PROTECT THE CERTIFYING OFFICER.

THE FIRST SUBQUESTION IS SIMILAR TO THAT WHICH WAS ANSWERED IN THE AFFIRMATIVE IN DECISION OF MAY 5, 1945, 24 COMP. GEN. 804. REFERRING TO THE SECOND SUBQUESTION, A CERTIFICATE OF THE OFFICER STATING THE AMOUNT OF UNUSED ANNUAL LEAVE TO HIS CREDIT AT DATE OF SEPARATION WILL BE SUFFICIENT SUPPORTING EVIDENCE TO PROTECT THE AUTHORIZED CERTIFYING OFFICER SO FAR AS THIS OFFICE IS CONCERNED.