B-52479, OCTOBER 17, 1945, 25 COMP. GEN. 344

B-52479: Oct 17, 1945

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PROVIDED THEY ARE IN THE SURVEY'S POSSESSION AND AVAILABLE FOR USE WHETHER USED OR NOT. FOR DAYS WHEN THE EMPLOYEE IS ABSENT ON LEAVE. 1945: I HAVE YOUR LETTER OF SEPTEMBER 12. THE FOLLOWING QUESTIONS HAVE ARISEN IN THE GEOLOGICAL SURVEY IN ADMINISTERING THE 44-HOUR WORKWEEK: (1) IN YOUR DECISION B-51099. THAT EMPLOYEES SUBJECT TO THE PROVISIONS OF THE PAY ACT OF 1945 WHO WERE IN A TRAVEL STATUS ON SATURDAY AND SUNDAY. UNLESS WORK WAS ACTUALLY ORDERED OR PERFORMED. WOULD AN EMPLOYEE WHO WAS IN A PAY STATUS FROM MONDAY THROUGH FRIDAY (40 HOURS) BE ENTITLED TO OVERTIME PAY OR TO STRAIGHT TIME PAY FOR FOUR HOURS SATURDAY UNDER THE FOLLOWING CONDITIONS? IS IDENTIFIED AS OCCURRING ON A SATURDAY IT WILL NOT BE POSSIBLE.

B-52479, OCTOBER 17, 1945, 25 COMP. GEN. 344

FEDERAL EMPLOYEES PAY ACT OF 1945 - TRAVEL TIME; ABSENCES FOR TREATMENT OF LINE-OF-DUTY INJURIES; CONTRACTS FOR PERSONAL SERVICES TOGETHER WITH HIRE OF EQUIPMENT OR ANIMALS WHERE EMPLOYEES, BY REASON OF TRAVEL BY INDIRECT ROUTE OR BY PRIVATELY OWNED AUTOMOBILE FOR PERSONAL CONVENIENCE, CONSUME EXCESS TIME IN THE PERFORMANCE OF OFFICIAL TRAVEL ON THE "OVERTIME" DAY OF THEIR ADMINISTRATIVE WORKWEEK, OVERTIME COMPENSATION UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 SHOULD BE PAID FOR ONLY THE DIFFERENCE, IF ANY, BETWEEN THE HOURS OF REGULARLY REQUIRED OVERTIME WORK AND THE HOURS ADMINISTRATIVELY DETERMINED AS BEING EXCESS. OVERTIME COMPENSATION MAY NOT BE PAID UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 TO AN EMPLOYEE ABSENT FROM DUTY DURING THE SCHEDULED WORKING HOURS ON THE "OVERTIME" DAY OF HIS ADMINISTRATIVE WORKWEEK DUE TO INJURY INCURRED IN LINE OF DUTY, OR FOR TIME SPENT IN SEEKING TREATMENT FOR SUCH INJURY. UNDER CONTRACTS OF THE GEOLOGICAL SURVEY, INTERIOR DEPARTMENT, FOR THE HIRE OF ANIMALS OR EQUIPMENT WITH PERSONAL SERVICES AT SEPARATE MONTHLY RATES FOR THE PERSONAL SERVICES AND FOR THE HIRE OF THE ANIMALS OR EQUIPMENT, AMOUNTS PROPERLY DUE FOR PERSONAL SERVICES UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 MAY BE PAID ON A PAY ROLL VOUCHER AND AMOUNTS DUE THE EMPLOYEE FOR THE HIRE OF THE ANIMALS OR EQUIPMENT MAY BE PAID ON STANDARD FORM 1034--- PUBLIC VOUCHER FOR PURCHASES AND SERVICES OTHER THAN PERSONAL. UNDER CONTRACTS OF THE GEOLOGICAL SURVEY, INTERIOR DEPARTMENT, FOR THE HIRE OF ANIMALS OR EQUIPMENT WITH PERSONAL SERVICES, SEPARATE MONTHLY RATES BEING PROVIDED FOR THE PERSONAL SERVICES AND FOR THE HIRE OF THE ANIMALS OR EQUIPMENT, AMOUNTS DUE FOR HIRE OF THE ANIMALS OR EQUIPMENT FOR FRACTIONAL PARTS OF A MONTH MAY BE COMPUTED ON THE BASIS OF THE ACTUAL NUMBER OF DAYS IN THE MONTH--- AS DISTINGUISHED FROM A 30 DAY MONTH BASIS. UNDER CONTRACTS OF THE GEOLOGICAL SURVEY, INTERIOR DEPARTMENT, FOR THE HIRE OF EQUIPMENT OR ANIMALS WITH PERSONAL SERVICES AT MONTHLY RATES, FOR USE IN CONNECTION WITH A 44-HOUR ADMINISTRATIVE WORKWEEK CONSISTING OF FIVE 8-HOUR DAYS, MONDAY THROUGH FRIDAY, AND 4 HOURS ON SATURDAY, PAYMENT MAY BE MADE FOR THE EQUIPMENT OR ANIMALS, PROVIDED THEY ARE IN THE SURVEY'S POSSESSION AND AVAILABLE FOR USE WHETHER USED OR NOT, FOR SUNDAYS; FOR THE 4 HOURS OUTSIDE THE REGULAR WORKING HOURS ON SATURDAY; AND FOR DAYS WHEN THE EMPLOYEE IS ABSENT ON LEAVE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, OCTOBER 17, 1945:

I HAVE YOUR LETTER OF SEPTEMBER 12, 1945, AS FOLLOWS:

IN ACCORDANCE WITH THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 THE DEPARTMENT OF THE INTERIOR HAD ESTABLISHED PRIOR TO AUGUST 26 FOR DEPARTMENTAL AND FIELD OFFICES A 44-HOUR ADMINISTRATIVE WORKWEEK CONSISTING OF FIVE 8-HOUR DAYS (ORDINARILY MONDAY THROUGH FRIDAY) PLUS A SIXTH DAY OF 4 HOURS (ORDINARILY SATURDAY).

THE FOLLOWING QUESTIONS HAVE ARISEN IN THE GEOLOGICAL SURVEY IN ADMINISTERING THE 44-HOUR WORKWEEK:

(1) IN YOUR DECISION B-51099, DATED JULY 28, 1945, TO THE SECRETARY OF AGRICULTURE, YOU STATED, IN EFFECT, THAT EMPLOYEES SUBJECT TO THE PROVISIONS OF THE PAY ACT OF 1945 WHO WERE IN A TRAVEL STATUS ON SATURDAY AND SUNDAY, SHOULD BE GRANTED OVERTIME PAY OR STRAIGHT TIME PAY FOR ONLY FOUR HOURS ON SATURDAY AND FOR NO TIME ON SUNDAY, UNLESS WORK WAS ACTUALLY ORDERED OR PERFORMED. WOULD AN EMPLOYEE WHO WAS IN A PAY STATUS FROM MONDAY THROUGH FRIDAY (40 HOURS) BE ENTITLED TO OVERTIME PAY OR TO STRAIGHT TIME PAY FOR FOUR HOURS SATURDAY UNDER THE FOLLOWING CONDITIONS? IT HAS BEEN THE PRACTICE OF THE GEOLOGICAL SURVEY TO CHARGE ANNUAL LEAVE TO A TRAVELER FOR THE EXCESS TRAVEL TIME RESULTING FROM HIS TRAVEL BY COMMON CARRIER OVER AN INDIRECT ROUTE FOR PERSONAL REASONS, OR FOR THE TRAVEL TIME IN EXCESS OF THE RAIL SCHEDULE WHEN HE USES HIS PRIVATELY- OWNED VEHICLE IN POINT-TO-POINT TRAVEL. IF SUCH EXCESS TIME, ORDINARILY CHARGED AS ANNUAL LEAVE, IS IDENTIFIED AS OCCURRING ON A SATURDAY IT WILL NOT BE POSSIBLE, UNDER THE PAY ACT OF 1945, TO CHARGE THE EXCESS TIME TO ANNUAL LEAVE. ACCORDINGLY, IN THE EXAMINATION OF TRAVEL VOUCHERS FOR SUCH TRAVEL, WHEN IT HAS BEEN ADMINISTRATIVELY DETERMINED (A) THAT THERE HAS BEEN INCREASED TRAVEL TIME BECAUSE OF THE EMPLOYEE'S CHOICE OF AN INDIRECT ROUTE, OR BECAUSE OF HIS TRAVEL BY PRIVATELY-OWNED VEHICLE, AND (B) THAT THE GOVERNMENT HAS LOST THE USE OF THE EMPLOYEE'S SERVICES ON A SATURDAY BY REASON OF HIS CHOICE OF MEANS OF TRAVEL, WILL IT BE PERMISSIBLE TO PAY THE EMPLOYEE WHO WAS IN A PAY STATUS FROM MONDAY THROUGH FRIDAY (40 HOURS) AND SALARY FOR THAT SATURDAY EVEN THOUGH HE WAS ACTUALLY TRAVELING? YOUR REPLY IS IN THE AFFIRMATIVE, SHOULD THE PAY BE FOR FOUR HOURS AT STRAIGHT TIME OR AT THE OVERTIME RATES?

(2) IF THOSE EMPLOYEES (A) WHOSE SALARIES ARE FIXED BY THE CLASSIFICATION ACT AND THE AMENDMENTS THERETO, OR (B) WHOSE SALARIES ARE FIXED BY WAGE BOARDS, SUSTAIN AN INJURY WHILE PERFORMING DIRECTED OVERTIME DUTIES ON SATURDAY AND ARE DIRECTED TO SEEK TREATMENT AT THE U.S. PUBLIC HEALTH SERVICE, WOULD EMPLOYEES IN EITHER OF THESE GROUPS BE ENTITLED TO PAY FOR THE TIME ABSENT FROM DUTY ON SATURDAY (ORDINARILY THEIR OVERTIME DAYS/? IF SO, SHOULD PAYMENT FOR SUCH ABSENCE BE AT STRAIGHT TIME OR AT TIME AND ONE -HALF RATES, PROVIDING THE EMPLOYEES HAVE ALREADY WORKED 40 HOURS DURING THE EARLIER DAYS OF THE WEEK?

(3) THE GEOLOGICAL SURVEY HAS HUNDREDS OF EMPLOYEES IN UNCLASSIFIED POSITIONS. UNDER SPECIAL AUTHORIZATION FROM THE CIVIL SERVICE COMMISSION, MANY OF THESE EMPLOYEES (FIELD ASSISTANTS, RECORDERS, RODMEN, PACKERS, ETC.) ARE EMPLOYED LOCALLY IN THE FIELD FOR SEASONAL WORK AT VARYING MONTHLY RATES, AT PRESENT NOT TO EXCEED $1800 PER ANNUM. (THESE RATES ARE FIXED ADMINISTRATIVELY AND NOT BY WAGE BOARDS.) THESE EMPLOYEES ORDINARILY ARE EMPLOYED FOR FULL-TIME WORK, ALTHOUGH A FEW ARE EMPLOYED FOR INTERMITTENT SERVICES. UNDER PUBLIC LAW 49 THE MONTHLY RATE SET FOR SUCH AN EMPLOYEE WAS REGARDED AS HIS BASIC COMPENSATION, FOR THE BASIC 40- HOUR WORKWEEK, AND HE WAS PAID AN ADDITIONAL AMOUNT, AT THE THEN- PREVAILING OVERTIME RATE, FOR HOURS WORKED IN EXCESS OF 40 IN ANY ONE WEEK. IN ACCORDANCE WITH THE PROVISIONS OF THE PAY ACT OF 1945, THERE HAVE BEEN ESTABLISHED BI WEEKLY PAY PERIODS, A BASIC WORKWEEK OF 40 HOURS, AND AN ADMINISTRATIVE WORKWEEK OF 44 HOURS CONSISTING OF FIVE 8-HOUR DAYS, MONDAY THROUGH FRIDAY, AND A FOUR-HOUR DAY, SATURDAY. ALL HOURS WORKED IN EXCESS OF 40 ARE PAID FOR AT THE OVERTIME RATES. SINCE JULY 1, 1945, THE FOLLOWING FORMULA HAS BEEN USED IN ARRIVING AT THE BASE PAY AND OVERTIME HOURLY RATES FOR THESE TYPES OF EMPLOYEES:

A MONTHLY RATE OF $150 X 12 DERIVES AN ANNUAL RATE OF $1800.

$1800 DIVIDED BY 52 WEEKS DERIVES A WEEKLY RATE OF $34.6153

$34.6153 DIVIDED BY 40 HOURS DERIVES AN HOURLY RATE OF ?8653.

FOR AN EMPLOYEE WHO WORKED A BI-WEEKLY PAY PERIOD, A PAY ROLL, FOR EXAMPLE, HAS SHOWN: JULY 1-14, AT $150 MO;

80 HOURS BASE PAY AT ?8653.

8 HOURS OVERTIME PAY AT 1 1/2 X ?8653.

I REQUEST YOUR ADVICE AS TO WHETHER THE METHOD OF COMPUTING THE WAGES OF THE UNCLASSIFIED EMPLOYEES, OUTLINED ABOVE IS CORRECT. IF NOT, PLEASE ADVISE AS TO THE PROPER METHOD TO BE ADOPTED FOR THESE TYPES OF EMPLOYEES (A) ON A FULL-TIME BASIS AND (B) ON AN INTERMITTENT BASIS.

(4) THERE HAS BEEN CONTAINED IN THE INTERIOR DEPARTMENT ANNUAL APPROPRIATION ACTS FOR MANY YEARS ( SEE SEC. 2 OF THE CURRENT ACT), AUTHORITY TO HIRE, WITH OR WITHOUT PERSONAL SERVICES, BOATS, WORK ANIMALS, AND ANIMAL-DRAWN AND MOTOR-PROPELLED VEHICLES AND EQUIPMENT. THE PRACTICE HERETOFORE FOLLOWED IN THE GEOLOGICAL SURVEY HAS BEEN TO HIRE THE ANIMALS, EQUIPMENT, ETC., IN CONNECTION WITH THE PERSON'S SERVICES AT A MONTHLY RATE FOR THE PERSONAL SERVICES AND A MONTHLY RATE FOR THE HIRE OF THE ANIMALS OR EQUIPMENT. (TYPICAL EMPLOYMENT CONTRACTS ARE ENCLOSED.) FOR FRACTIONAL PARTS OF A MONTH, THE AMOUNTS PAID FOR PERSONAL SERVICES AND FOR THE HIRE OF ANIMALS, EQUIPMENT, ETC., HAVE BEEN COMPUTED ON A 30-DAY MONTH BASIS. OVERTIME PAYMENTS, PRIOR TO JULY 1, 1945, HAVE BEEN MADE ONLY FOR PERSONAL SERVICES, IN ACCORDANCE WITH YOUR DECISION B-34032, DATED MAY 1, 1943, ADDRESSED TO MR. T. P. PENDLETON, AN AUTHORIZED CERTIFYING OFFICER OF THE GEOLOGICAL SURVEY. IT IS BELIEVED THAT THERE IS NO AUTHORITY UNDER THE PAY ACT OF 1945 FOR THE PAYMENT OF OVERTIME FOR THE USE OF THE ANIMALS OR EQUIPMENT; THEREFORE, THE RULING EXPRESSED IN THE CITED DECISION IS BEING FOLLOWED. PAYMENTS FOR PERSONAL SERVICES WILL BE COMPUTED IN ACCORDANCE WITH YOUR ANSWER TO QUESTION NO. 3, ABOVE. BECAUSE OF THE FACT THAT THE EMPLOYEE WHOSE EQUIPMENT OR ANIMALS ARE IN USE ORDINARILY WILL WORK ONLY 4 HOURS ON SATURDAYS AND WILL NOT WORK ON SUNDAYS, QUESTIONS HAVE ARISEN AS TO THE PROPER METHOD OF COMPUTING PAYMENTS FOR ANIMALS AND EQUIPMENT HIRED IN CONNECTION WITH HIS PERSONAL SERVICES. AS INDICATED ABOVE, IT IS ALREADY RECOGNIZED THAT OVERTIME PROVISIONS DO NOT APPLY TO THE USE OF ANIMALS OR EQUIPMENT AND DO NOT GIVE ADDITIONAL COMPENSATION TO THE OWNER FOR THEIR USE; THEREFORE, CONVERSELY, IT WOULD SEEM NEITHER LOGICAL NOR EQUITABLE TO APPLY THE BASIC WORKWEEK RULES TO THE ANIMALS AND EQUIPMENT IN SUCH MANNER AS TO DEPRIVE THE OWNER OF ANY PART OF THE COMPENSATION FOR WHICH HE HAD AGREED TO MAKE HIS PROPERTY AVAILABLE FOR GOVERNMENT USE. WOULD YOUR OFFICE HAVE ANY OBJECTION TO THE FOLLOWING PROCEDURE:

(A) PAY THE EMPLOYEE ON A PAYROLL VOUCHER FOR HIS PERSONAL SERVICES. USE A SEPARATE VOUCHER ( STAND. FORM 1034) TO PAY THE EMPLOYEE FOR THE AMOUNT DUE FOR THE HIRE OF HIS ANIMALS OR EQUIPMENT. A REFERENCE WOULD BE MADE ON THE FORM 1034 TO THE EMPLOYMENT CONTRACT, A COPY OF WHICH WOULD BE ON FILE IN THE GENERAL ACCOUNTING OFFICE. (UNDER THE PRESENT PROCEDURE THE AMOUNT DUE FOR HIRE OF EQUIPMENT IS INCLUDED IN THE PAYROLL COVERING THE PERSONAL SERVICE.)

(B) THE COMPUTATION OF THE AMOUNT DUE FOR HIRE OF THE ANIMALS OR EQUIPMENT FOR FRACTIONAL PARTS OF A MONTH WOULD BE MADE ON THE BASIS OF THE ACTUAL NUMBER OF DAYS IN THE MONTH AT THE MONTHLY RATE.

(C) PAYMENT WOULD BE MADE FOR THE ANIMALS OR EQUIPMENT FOR SUNDAYS; FOR THE 4 HOURS ON SATURDAY WHEN THE EMPLOYEE IS NOT WORKING; AND FOR DAYS WHEN THE EMPLOYEE IS ABSENT ON LEAVE PROVIDED THAT THE EQUIPMENT OR ANIMALS ARE IN THE POSSESSION OF THE SURVEY, AND ARE AVAILABLE FOR USE, WHETHER USED OR NOT.

YOUR EARLY CONSIDERATION OF THESE QUESTIONS WILL BE GREATLY APPRECIATED.

THE QUESTIONS PRESENTED WILL BE ANSWERED IN THE ORDER STATED, AS FOLLOWS:

(1) IF IN THE CASE PRESENTED, THE HOURS OF TRAVEL TIME ADMINISTRATIVELY DETERMINED TO BE EXCESS COVER ALL OF THE REGULAR WORKING HOURS ON SATURDAY (4 OR 8 HOURS AS THE CASE MAY BE) NO COMPENSATION FOR OVERTIME OR STRAIGHT TIME WOULD BE PAYABLE FOR SATURDAY. HOWEVER, IF THE EXCESS TRAVEL HOURS DO NOT COVER ALL THE REGULAR HOURS OF DUTY ON SATURDAY, THE REMAINING HOURS BEING COVERED BY ADMINISTRATIVELY APPROVED TRAVEL TIME, SUCH HOURS OF APPROVED TRAVEL TIME OCCURRING WITHIN THE ESTABLISHED WORKWEEK OF 44 OR 48 HOURS AND IN EXCESS OF 40 HOURS SHOULD BE PAID FOR AT THE OVERTIME RATES. B-51099, JULY 28, 1945, 25 COMP. GEN. 121.

(2) SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, AUTHORIZES PAYMENT OF OVERTIME COMPENSATION "FOR ALL HOURS OF EMPLOYMENT, OFFICIALLY ORDERED OR APPROVED, IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK.' THIS CONTEMPLATES THE ACTUAL PERFORMANCE OF REQUIRED DUTY DURING THE PRESCRIBED OVERTIME PERIOD. WHILE AN EMPLOYEE MIGHT BE GRANTED SICK LEAVE DURING THE BASIC 40-HOUR WEEK TO SEEK TREATMENT FOR INJURY INCURRED IN LINE OF DUTY OR OTHERWISE, NO SICK LEAVE CAN BE GRANTED FOR THE OVERTIME DAY AND, ACCORDINGLY, NO COMPENSATION IS PAYABLE FOR TIME ABSENT FROM DUTY DURING THE SCHEDULED NUMBER OF OVERTIME HOURS ON THE OVERTIME DAY DUE TO INJURY INCURRED OR TIME SPENT IN SEEKING TREATMENT FOR SUCH INJURY. SEE B-51218, AUGUST 7, 1945, 25 COMP. GEN. 151, QUESTION AND ANSWER NO. 4.

(3) THE FORMULA STATED IN THIS QUESTION IS CORRECT UNDER THE PROVISIONS OF SECTION 604 (D) (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 304.

(4) THIS QUESTION IS ANSWERED IN THE NEGATIVE. THAT IS TO SAY, THIS OFFICE WILL NOT OBJECT TO THE PROCEDURE PROPOSED.