B-51696, AUGUST 21, 1945, 25 COMP. GEN. 210

B-51696, AUGUST 21, 1945, 25 COMP. GEN. 210

FEDERAL EMPLOYEES PAY ACT OF 1945 - AGGREGATE COMPENSATION GUARANTEE THE AGGREGATE COMPENSATION GUARANTEE PROVISIONS OF SECTION 603 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 ARE APPLICABLE NOT ONLY TO EMPLOYEES WHO, ON JUNE 30, 1945, ACTUALLY RECEIVED ADDITIONAL COMPENSATION OF $300 PER ANNUM GUARANTEED BY THE WAR OVERTIME PAY ACT OF 1943 BECAUSE SUFFICIENT OVERTIME COMPENSATION WAS NOT EARNED TO SATISFY SUCH GUARANTEE BUT, ALSO, TO EMPLOYEES WHO WERE EARNING ENOUGH OVERTIME COMPENSATION ON THAT DATE TO SATISFY THE GUARANTEE BUT WHOSE AGGREGATE COMPENSATION SINCE HAS BEEN REDUCED BECAUSE OF A REDUCTION IN WORKING HOURS. AN EMPLOYEE WHO CONTINUES TO PERFORM THE SAME DUTIES AND HAVE THE SAME RESPONSIBILITIES IN THE SAME AGENCY AFTER JUNE 30, 1945, AS ON AND PRIOR TO THAT DATE, ALTHOUGH IN A DIFFERENT ORGANIZATIONAL OR GEOGRAPHICAL LOCATION OR ASSIGNMENT, MAY BE REGARDED AS CONTINUING "TO OCCUPY THE POSITION HE OCCUPIED ON JUNE 30, 1945," SO AS TO BE ENTITLED TO THE AGGREGATE COMPENSATION GUARANTEE BENEFITS PROVIDED BY SECTION 603 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, AUGUST 21, 1945:

I HAVE YOUR LETTER OF AUGUST 8, 1945, AS FOLLOWS:

CERTIFYING OFFICERS OF THE DEPARTMENT HAVE PRESENTED TO MY OFFICE SEVERAL QUESTIONS RELATIVE TO THE APPLICATION, UNDER CERTAIN CIRCUMSTANCES, OF SECTION 603 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945.

SECTION 603 (A) PROVIDES AS FOLLOWS:

"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.'

THE SPECIFIC PROVISIONS OF THIS SECTION INDICATE CLEARLY THAT IT IS TO APPLY TO EMPLOYEES MEETING THE SPECIFIED CONDITIONS WHO, ON 30 JUNE 1945,WERE RECEIVING ADDITIONAL COMPENSATION IN LIEU OF OVERTIME COMPENSATION UNDER THE PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943. HOWEVER, THERE IS DOUBT AS TO THE APPLICATION OF THIS SECTION IN THE CASE OF EMPLOYEES WHO WERE NOT RECEIVING ADDITIONAL COMPENSATION PRIOR TO JULY 1, 1945.

THERE ARE IN THE DEPARTMENT MANY EMPLOYEES MEETING THE CONDITIONS SPECIFIED IN SECTION 603 (A) WHO, ON 30 JUNE 1945, WERE WORKING A SUFFICIENT AMOUNT OF REGULARLY SCHEDULED OVERTIME TO ENTITLE THEM TO PAYMENT OF OVERTIME COMPENSATION UNDER THE PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943, BUT WHO, SUBSEQUENT TO JULY 1, 1945, HAVE HAD THEIR WEEKLY HOURS OF WORK REDUCED TO FORTY AND, AS A RESULT OF SUCH REDUCTION, ARE EARNING AN AGGREGATE COMPENSATION WHICH IS LESS THAN THAT RECEIVED ON JUNE 30, 1945. IT IS NOTED THAT THE INSTRUCTIONS OF THE CIVIL SERVICE COMMISSION ( DEPARTMENTAL CIRCULAR 530, 11 JULY 1945) IMPLY THAT WHERE A REDUCTION IN AGGREGATE SALARY RESULTS FROM A REDUCTION IN REGULARLY SCHEDULED HOURS, THE PROVISIONS OF SECTION 603 (A) SHOULD BE APPLIED. HOWEVER, THESE INSTRUCTIONS DO NOT APPEAR TO BE SPECIFIC ON THIS POINT. FURTHER, A REVIEW OF THE LEGISLATIVE HISTORY OF THE ACT, PARTICULARLY REPORT NO. 726 OF THE HOUSE OF REPRESENTATIVES, INDICATES THAT THIS MAY NOT HAVE BEEN THE INTENT OF CONGRESS. IN VIEW OF THIS FACT, THE FOLLOWING QUESTION IS PRESENTED FOR YOUR CONSIDERATION.

WHEN A REDUCTION IN AGGREGATE COMPENSATION BELOW THE AMOUNT RECEIVED ON JUNE 30, 1945 RESULTS FROM A REDUCTION IN THE SCHEDULED HOURS OF WORK WHICH WERE IN EFFECT ON JUNE 30, 1945, SHOULD THE PROVISIONS OF SECTION 603 (A) BE APPLIED?

ONE OF THE CONDITIONS SPECIFIED FOR APPLICATION OF THE BENEFITS OF SECTION 603 (A) IS THAT THE EMPLOYEE REMAIN IN THE POSITION OCCUPIED ON JUNE 30, 1945. THIS HAS BEEN INTERPRETED BY THE CIVIL SERVICE COMMISSION, AS MEANING CONTINUATION OF THE PERFORMANCE OF THE SAME DUTIES AND RESPONSIBILITIES. IN MANY CASES EMPLOYEES, PARTICULARLY INSPECTORS WORKING IN CONTRACTOR OPERATED PLANTS, ARE TRANSFERRED FROM INSTALLATION TO INSTALLATION OR FROM PLANT TO PLANT WITHOUT A CHANGE IN EITHER DUTIES OR RESPONSIBILITIES BUT WITH A CHANGE BOTH IN ORGANIZATIONAL AND GEOGRAPHICAL LOCATION. IT IS BELIEVED THAT SUCH EMPLOYEES SHOULD BE CONSIDERED AS HOLDING THE SAME POSITION WITHIN THE MEANING OF SECTION 603 (A) AND YOUR DECISION ON THIS POINT IS DESIRED.

IN VIEW OF THE FACT THAT COMPUTATION OF PAY OF A NUMBER OF EMPLOYEES WILL BE AFFECTED BY YOUR DECISION ON THE QUESTIONS PRESENTED AN EARLY REPLY WILL BE APPRECIATED.

IN DECISION OF JULY 18, 1944, 24 COMP. GEN. 30, IT WAS STATED AT PAGE 34, IN RESPECT OF THE $300 GUARANTEE AUTHORIZED BY THE WAR OVERTIME PAY ACT OF 1943, 57 STAT. 76, AS FOLLOWS.

SECTION 3 (B) OF THE STATUTE MERELY SERVES AS A GUARANTEE THAT AN EMPLOYEE WILL NOT RECEIVE LESS ADDITIONAL WARTIME COMPENSATION IN LIEU OF OVERTIME COMPENSATION UNDER SECTION 2 OF THE STATUTE THAN AT THE RATE OF $300 PER ANNUM, WHETHER THE OVERTIME COMPENSATION IN LIEU OF WHICH THE GUARANTEE IS PAID IS PRORATED ON THE BASIS OF A REGULARLY ESTABLISHED WORKWEEK OR IS PAID ON AN ACTUAL TIME BASIS FOR OVERTIME PERFORMED IN EXCESS OF THE REGULARLY ESTABLISHED WORKWEEK. ACCORDINGLY, IN ANY PAY PERIOD IN WHICH AN EMPLOYEE WORKS SUFFICIENT OVERTIME TO ENTITLE HIM TO OVERTIME COMPENSATION AT A RATE OF NOT LESS THAN $300 PER ANNUM, THE GUARANTEE IS SATISFIED AND THE EMPLOYEE BECOMES ENTITLED ONLY TO THE OVERTIME COMPENSATION. LIKEWISE, IF SUFFICIENT OVERTIME IS WORKED TO SATISFY A PORTION OF THE GUARANTEE THERE MUST BE A PROPORTIONATE REDUCTION IN THE GUARANTEE OF $300 PER ANNUM.

SIMILARLY, IT WOULD APPEAR THAT SECTION 603 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 302, WAS INTENDED TO, AND DOES, APPLY TO ANY EMPLOYEE OTHERWISE QUALIFIED BY THE TERMS OF THE STATUTE WHO WAS ENTITLED TO RECEIVE ON JUNE 30, 1945, THE $300 MINIMUM GUARANTEE UNDER THE WAR OVERTIME PAY ACT OF 1943--- REGARDLESS OF WHETHER OVERTIME COMPENSATION ACTUALLY RECEIVED AS OF JUNE 30, 1945, SATISFIED THE GUARANTEE--- RATHER THAN BEING LIMITED TO EMPLOYEES WHO ACTUALLY RECEIVED THE ADDITIONAL COMPENSATION IN THE AMOUNT OF $300 PER ANNUM BECAUSE OF THE FACT THAT SUFFICIENT OVERTIME COMPENSATION WAS NOT EARNED TO SATISFY THE GUARANTEE, AS WOULD APPEAR TO BE SUGGESTED IN THE FIRST SENTENCE OF THE THIRD PARAGRAPH OF YOUR LETTER. I FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE NEW PAY STATUTE, OR IN CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 530, TO WHICH YOU REFER, REQUIRING ANY OTHER CONCLUSION. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE. SEE ANSWER TO QUESTION 1 UNDER THE HEADING "SECTION 603 (A)," DECISION OF JULY 18, 1945, B-50927, 25 COMP. GEN. 62, TO THE FEDERAL WORKS ADMINISTRATOR, AND ALSO, THE "40-HOUR WEEK--- GENERAL ACCOUNTING OFFICE SALARY TABLE NO. 22," PARTICULARLY THE REVERSE SIDE THEREOF.

A CHANGE IN THE ORGANIZATIONAL OR GEOGRAPHICAL LOCATION OR ASSIGNMENT IN THE SAME FEDERAL AGENCY OF AN EMPLOYEE WHO CONTINUES TO PERFORM THE SAME DUTIES AND HAVE THE SAME RESPONSIBILITIES AFTER JUNE 30, 1945, AS ON AND PRIOR TO THAT DATE, MAY BE REGARDED AS CONTINUING "TO OCCUPY THE POSITION HE OCCUPIED ON JUNE 30, 1945," WITHIN THE MEANING OF THOSE WORDS AS USED IN SECTION 603 (A) OF THE NEW PAY STATUTE. THEREFORE, THIS OFFICE IS IN AGREEMENT WITH THE SUGGESTED ANSWER TO YOUR SECOND QUESTION. COMPARE ANSWER TO QUESTION 3 UNDER THE HEADING " SECTION 603 (A)," DECISION OF JULY 18, 1945, B-50927, SUPRA, TO THE FEDERAL WORKS ADMINISTRATOR; ANSWER TO QUESTION 15, DECISION OF JULY 28, 1945, B-51099. 25 COMP. GEN. 121, TO THE SECRETARY OF AGRICULTURE; AND DECISION OF AUGUST 14, 1945, B-51389, 25 COMP. GEN. 188, TO THE CHAIRMAN, NATIONAL WAR LABOR BOARD.