B-53383, FEBRUARY 7, 1946, 25 COMP. GEN. 584

B-53383: Feb 7, 1946

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AUTHORIZE NIGHT DIFFERENTIAL PAYMENTS OR OTHER ELEMENTS OF A WAGE PROGRAM FOR FEDERAL EMPLOYEES WHOSE WAGES ARE SO FIXED. PROVIDED SUCH WAGE ELEMENTS ARE NOT IN CONTRAVENTION OF LAW OR ESTABLISHED RULE APPLICABLE TO FEDERAL PERSONNEL. 1945 (B-53383) A CONFERENCE WAS HELD BETWEEN REPRESENTATIVES OF THAT DEPARTMENT AND OF YOUR OFFICE CONCERNING CERTAIN QUESTIONS WHICH THE DECISION CREATED. AT THAT TIME IT WAS SUGGESTED THAT THE VIEWS OF THE NAVY DEPARTMENT SHOULD BE SECURED AS TO THE EFFECT OF THE DECISION IN THAT AGENCY. SINCE THE TWO DEPARTMENTS ARE IN FULL ACCORD AS TO THE SERIOUS PROBLEMS INVOLVED AND AS TO THE DESIRABILITY OF GIVING FURTHER CONSIDERATION TO ONE OR TWO OF THE CRUCIAL POINTS IN YOUR DECISION.

B-53383, FEBRUARY 7, 1946, 25 COMP. GEN. 584

COMPENSATION - EMPLOYEES SUBJECT TO WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES - AUTHORITY OF WAGE BOARDS, ETC.; PREMIUM PAY FOR HOLIDAY WORK WAGE BOARDS OR OTHER ADMINISTRATIVE WAGE-FIXING AUTHORITIES MAY, IN THE EXERCISE OF THEIR NORMAL FUNCTION, AUTHORIZE NIGHT DIFFERENTIAL PAYMENTS OR OTHER ELEMENTS OF A WAGE PROGRAM FOR FEDERAL EMPLOYEES WHOSE WAGES ARE SO FIXED, TO CONFORM WITH COMMERCIAL PRACTICES GENERALLY, WITHOUT OBTAINING PRIOR LEGISLATIVE AUTHORITY THEREFOR, PROVIDED SUCH WAGE ELEMENTS ARE NOT IN CONTRAVENTION OF LAW OR ESTABLISHED RULE APPLICABLE TO FEDERAL PERSONNEL. IN VIEW OF THE PRESENT LEGISLATIVE POLICY, AS EVIDENCED BY SECTIONS 201 AND 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AUTHORIZING THE PAYMENT OF "OVERTIME" AND "HOLIDAY" COMPENSATION, RESPECTIVELY, OF CONSIDERING THE TERM "OVERTIME" AS EXCLUSIVE OF WORK ON HOLIDAYS,"OVERTIME" AS USED IN THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, RESPECTING SERVICES PERFORMED BY EMPLOYEES SUBJECT THERETO IN EXCESS OF 40 HOURS PER WEEK, NO LONGER NEED BE REGARDED AS INCLUDING SERVICES PERFORMED ON A HOLIDAY, AND ADMINISTRATIVE REGULATIONS MAY BE ISSUED AUTHORIZING PREMIUM RATES FOR WORK ADMINISTRATIVELY REQUIRED OF SUCH EMPLOYEES ON HOLIDAYS, REGARDLESS OF WHETHER SUCH DAYS FALL WITHIN AN EMPLOYEE'S REGULAR TOUR OF DUTY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, FEBRUARY 7, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 12, 1945--- SIGNED, ALSO, BY THE SECRETARY OF THE NAVY--- AS FOLLOWS:

FOLLOWING RECEIPT IN THE WAR DEPARTMENT OF YOUR DECISION DATED NOVEMBER 29, 1945 (B-53383) A CONFERENCE WAS HELD BETWEEN REPRESENTATIVES OF THAT DEPARTMENT AND OF YOUR OFFICE CONCERNING CERTAIN QUESTIONS WHICH THE DECISION CREATED. AT THAT TIME IT WAS SUGGESTED THAT THE VIEWS OF THE NAVY DEPARTMENT SHOULD BE SECURED AS TO THE EFFECT OF THE DECISION IN THAT AGENCY. SINCE THE TWO DEPARTMENTS ARE IN FULL ACCORD AS TO THE SERIOUS PROBLEMS INVOLVED AND AS TO THE DESIRABILITY OF GIVING FURTHER CONSIDERATION TO ONE OR TWO OF THE CRUCIAL POINTS IN YOUR DECISION, THIS JOINT LETTER HAS BEEN RESORTED TO AS A MEANS OF CONSERVING TIME.

THE INFORMAL DISCUSSIONS WITH YOUR OFFICE, REFERRED TO ABOVE, INDICATED THAT THE ORIGINAL WAR DEPARTMENT SUBMISSION DID NOT EMPHASIZE SUFFICIENTLY THE DISTINCTION BETWEEN OVERTIME PAY AND OTHER TYPES OF PREMIUM OR PENALTY RATES GENERALLY RECOGNIZED IN BOTH INDUSTRIAL AND FEDERAL PRACTICE. APPEARS THAT THIS FAILURE WAS FUNDAMENTALLY RESPONSIBLE FOR THE ULTIMATE DECISION. BOTH OF THE DEPARTMENTS SUBSCRIBING TO THIS LETTER ARE IN FULL AGREEMENT THAT THE MATTER WARRANTS CLARIFICATION AND BOTH ARE OF THE VIEW THAT CLEAR UNDERSTANDING AND ACCEPTANCE OF OUR VIEWS ON THE POINT WILL LEAD TO A DIFFERENT CONCLUSION FROM THAT CONTAINED IN THE LAST PARAGRAPHS OF THE RECENT DECISION.

IT IS OUR VIEW THAT THES A GENERAL CLASS OR CATEGORY OF PAY RATES WHICH IS IN EXCESS OF THOSE USUAL AND PROPER FOR A GIVEN UNGRADED POSITION AND PAYABLE WHEN SERVICES ARE PERFORMED AT SPECIFIED TIMES. EACH OF THE ITEMS WITHIN THIS GENERAL "PENALTY" OR "PREMIUM" PAY CATEGORY IS CO-EQUAL WITH EACH OF THE OTHERS AND NONE IS DEPENDENT FOR ITS AUTHORITY ON SIMULTANEOUS APPLICATION OF ANY OF ITS CO-EQUALS. AT THE PRESENT TIME AT LEAST THREE OF THESE PREMIUM RATE ITEMS ARE RECOGNIZED IN INDUSTRY AND IN THE FEDERAL SERVICE; NAMELY, OVERTIME RATES (PAYABLE FOR HOURS WORKED IN EXCESS OF A SPECIFIED NUMBER OF HOURS PER WEEK OR DAY), NIGHT SHIFT RATES (PAYABLE FOR HOURS WORKED AT INCONVENIENT OR UNDESIRABLE PORTIONS OF THE DAY), AND HOLIDAY RATES (PAYABLE FOR HOURS WORKED ON DAYS WHICH ARE DECLARED TO BE PUBLIC LEGAL HOLIDAYS AND FOR WHICH PAYMENT WOULD HAVE BEEN RECEIVED HAD WORK NOT BEEN REQUIRED). IT APPEARS THAT THE SEPARATE AND INDIVIDUAL NATURE OF EACH OF THESE ITEMS WAS NOT MADE CLEAR IN THE ORIGINAL REQUEST FOR DECISION. CONSEQUENTLY, IN THE DECISION A HOLIDAY PREMIUM RATE IS REGARDED AS "OVERTIME" AND NOT PAYABLE TO AN EMPLOYEE SUBJECT TO WAGE BOARD JURISDICTION "UNTIL HE SHALL HAVE COMPLETED HIS REGULAR TOUR OF DUTY.'

THIS INTERDEPENDENCE OF OVERTIME AND HOLIDAY PAY RATES IS UNDOUBTEDLY DUE TO THE FACT THAT THEY ARE VERY OFTEN FIXED AT THE SAME AMOUNT (AT TIME AND ONE-HALF OR DOUBLE TIME). ACTUALLY, HOWEVER, THERE IS NO MORE BASIS FOR MAKING HOLIDAY PAY DEPENDENT UPON COMPLETION OF THE TOUR OF DUTY THAN THERE WOULD BE FOR A SIMILAR REQUIREMENT IN CONNECTION WITH NIGHT SHIFT RATES. NIGHT AND HOLIDAY RATES ARE REGARDED AS CO-EQUAL WITH OVERTIME. THEY ARE ALL "PREMIUM" RATES. THEY ARE DISTINGUISHABLE IN THAT (1) THEY ARE PAYABLE FOR WORK PERFORMED UNDER DIFFERENT CIRCUMSTANCES, AND (2) THE PREMIUM RATES MAY VARY.

IN ACTUAL FACT, NIGHT SHIFT AND HOLIDAY RATES ARE MORE NEARLY COMPARABLE TO EACH OTHER THAN IS EITHER OF THEM TO OVERTIME PAY. THE FIRST TWO ARE PAYABLE FOR INCONVENIENT HOURS WHICH THE EMPLOYEE IS REQUIRED TO WORK. OVERTIME IS DISTINGUISHABLE SINCE IT IS A PENALTY FOR THE LENGTH OF TIME WORKED. UNDER PRESENT CONDITIONS (INCLUDING INDUSTRIAL PRACTICE AND THE ONLY PERTINENT STATEMENT OF PUBLIC POLICY, THAT IN SECTION 302, FEDERAL EMPLOYEES PAY ACT OF 1945) AND IN THE ABSENCE OF STATUTORY COVERAGE, WE FEEL THAT A DECISION FOLLOWING THE NIGHT SHIFT DIFFERENTIAL PARALLEL WOULD BE PROPER.

YOUR RECENT DECISION PLACES SOME WEIGHT ON PAST PRACTICE AND INDICATES THAT SINCE NEITHER GRADED NOR UNGRADED EMPLOYEES WERE PAID HOLIDAY RATES PRIOR TO PASSAGE OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND SINCE LEGISLATION WAS REQUIRED TO COVER THE GRADED GROUPS, THEN ONLY THROUGH LEGISLATION CAN THE PRESENT PURPOSE BE ACCOMPLISHED. IN THIS CONNECTION, HOWEVER, WE WOULD EMPHASIZE THAT NO RECENT EFFORT HAD BEEN MADE TO SET HOLIDAY RATES ADMINISTRATIVELY FOR UNGRADED EMPLOYEES AND THAT THE CONCEPT OF WAGE FIXING AUTHORITY RECOGNIZED IN THE FIRST PORTION OF YOUR DECISION HAD NEVER BEEN CLEARLY STATED. AS TO GRADED EMPLOYEES, OF COURSE, LEGISLATION WAS NECESSARY TO PROVIDE A RATE FOR HOLIDAYS HIGHER THAN THE NORMAL BASE RATE FIXED BY OTHER LAW. AGAIN THE PARALLEL OF THE NIGHT SHIFT RATE IS PERTINENT SINCE THAT PRACTICE HAS BEEN APPLIED TO UNGRADED EMPLOYEES WITHOUT LEGISLATION, BUT APPLICATION TO GRADED POSITIONS HAD TO AWAIT STATUTORY AUTHORITY. WE FEEL THAT THE EARLY PORTIONS OF YOUR DECISION ARE SOUND AND THAT THE CONCEPT THEREIN ESTABLISHED IS WHOLLY CONSISTENT WITH AN AFFIRMATIVE REPLY TO THE SECOND QUESTION PRESENTED IN THE WAR DEPARTMENT'S ORIGINAL SUBMISSION.

INFORMAL DISCUSSIONS WITH REPRESENTATIVES OF YOUR OFFICE HAS ALSO RAISED SOME QUESTION AS TO THE EFFECT OF THE REPEAL OF THE ACT OF JANUARY 6, 1885 (23 STAT. 516) ON THIS MATTER. A REVIEW OF THAT STATUTE INDICATES, HOWEVER, THAT IT WAS DIRECTIVE IN NATURE AND THAT, LIKE THE FORTY HOUR STATUTE OF 1934, IT ESTABLISHED A MINIMUM PRACTICE IN ONE SECTOR OF THE WAGE FIXING FIELD. ITS REPEAL BY THE ACT OF JUNE 29, 1938 (52 STAT. 1264), WHICH IS CONCERNED ONLY WITH PAYMENT FOR A HOLIDAY WHEN NO WORK IS PERFORMED, MERELY LEAVES THE LAW SILENT ON THE SUBJECT--- JUST AS IT IS SILENT ON THE MATTER OF NIGHT SHIFT PREMIUMS WHICH YOUR OFFICE HAS RECOGNIZED AND APPROVED IN THE ABSENCE OF STATUTORY MINIMUM OR MAXIMUM PRACTICES. THE DECISION IN 18 COMP. GEN. 10 SUPPORTS THIS VIEW BY INTERPRETING THE 1938 HOLIDAY PAY LAW AS REMOVING ADDITIONAL HOLIDAY PAY AS "A VESTED RIGHT OF PER DIEM EMPLOYEES.' IT DOES NOT APPEAR THAT PROPER CONSTRUCTION OF THE REPEAL SECTION OF THAT STATUTE REQUIRES INTERPRETATION WHICH IS MORE RESTRICTIVE THAN THAT STATEMENT.

WE WISH TO EMPHASIZE THE FACT THAT THIS MATTER IS OF CRITICAL IMPORTANCE AT THIS TIME. DESPITE THE TERMINATION OF HOSTILITIES, BOTH OF THE SUBSCRIBING AGENCIES ARE REQUIRED TO MAINTAIN IN CONTINUOUS OPERATION CERTAIN DEMOBILIZATION, TRANSPORT, MEDICAL, AND OTHER FACILITIES AS WELL AS TO PROVIDE MAINTENANCE AND PROTECTIVE SERVICE IN ALL INSTALLATIONS. INABILITY TO AUTHORIZE A PREMIUM RATE FOR HOLIDAY WORK HAS VERY SERIOUSLY IMPAIRED THE EFFICIENCY OF THOSE FACILITIES. FOR THE REASONS HEREINBEFORE STATED WE FEEL THAT EXISTING LAW AND ADMINISTRATIVE AUTHORITY AS RECOGNIZED IN THE FIRST PORTION OF YOUR DECISION OF NOVEMBER 29, 1945, ARE SUFFICIENT TO WARRANT ACTION BY OUR RESPECTIVE WAGE COORDINATION GROUPS TO ESTABLISH PREMIUM RATES FOR HOLIDAY. YOUR EARLY AND FAVORABLE CONSIDERATION OF THE ADDITIONAL MATERIAL DISCUSSED ABOVE IS URGED.

IN DECISION OF NOVEMBER 29, 1945, B-53383, REFERRED TO IN YOUR LETTER, THERE WAS RECOGNIZED THE AUTHORITY OF WAGE BOARDS OR OTHER WAGE FIXING AUTHORITIES, IN THE EXERCISE OF THEIR NORMAL FUNCTION, TO AUTHORIZE NIGHT DIFFERENTIAL PAYMENTS OR OTHER ELEMENTS OF A WAGE PROGRAM FOR FEDERAL EMPLOYEES WHOSE WAGES ARE SO FIXED, TO CONFORM WITH COMMERCIAL PRACTICES GENERALLY, WITHOUT OBTAINING PRIOR LEGISLATIVE AUTHORITY THEREFOR--- PROVIDED SUCH WAGE ELEMENTS OTHERWISE ARE NOT IN CONTRAVENTION OF LAW OR ESTABLISHED RULE APPLICABLE TO FEDERAL PERSONNEL. HOWEVER, IT WAS HELD THAT, SINCE THE PROVISIONS OF SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1935, ENACTED MARCH 28, 1934, 48 STAT. 522--- GENERALLY REFERRED TO AS THE 40-HOUR WEEK STATUTE OF 1934--- IN EFFECT, PRECLUDE THE PAYMENT OF OTHER THAN REGULAR COMPENSATION FOR WORK PERFORMED ON A HOLIDAY FALLING WITHIN AN EMPLOYEE'S REGULAR TOUR OF DUTY, WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, PROPERLY MAY NOT ESTABLISH PREMIUM RATES OF PAY FOR WORK PERFORMED ON SUCH DAYS, EVEN THOUGH SUCH BE THE PRACTICE IN COMMERCIAL INDUSTRY.

THE CONCLUSION REACHED IN THE SAID DECISION OF NOVEMBER 29, 1945, INVOLVED NO NEW CONSTRUCTION OF THE PROVISIONS OF THE SAID 40-HOUR WEEK STATUTE. ON THE CONTRARY, THE HOLDING THEREIN MERELY REITERATED THE VIEWS CONSISTENTLY EXPRESSED BY THIS OFFICE RESPECTING THE OPERATION OF THAT STATUTE WITH REGARD TO PAYMENT OF OTHER THAN REGULAR COMPENSATION FOR WORK PERFORMED ON HOLIDAYS FALLING WITHIN THE TOUR OF DUTY OF EMPLOYEES OF THE CLASS MENTIONED--- AS AMPLY APPEARS FROM THE DECISIONS CITED THEREIN.

IT IS NOT UNDERSTOOD FROM YOUR LETTER THAT A REVERSAL OF THE PRIOR HOLDINGS OF THIS OFFICE IN THE ABOVE MATTER IS SOUGHT. RATHER, IT APPEARS FROM THE VIEWS EXPRESSED IN YOUR LETTER, SUPRA, THAT THE REQUEST FOR RECONSIDERATION OF THE DECISION OF NOVEMBER 29, 1945, IS PREDICATED UPON THE GROUNDS THAT COMPARATIVELY RECENT DEVELOPMENTS IN WAGE-FIXING PROGRAMS FOR EMPLOYEES OF THE FEDERAL GOVERNMENT ALONG THE LINES FOLLOWED FOR EMPLOYEES IN COMMERCIAL INDUSTRY POSSIBLY NOW MIGHT JUSTIFY A VIEW OF THE OPERATION OF THE SAID 1934 STATUTE DIFFERENT FROM THAT HERETOFORE EXPRESSED. ACCORDINGLY, IN THE LIGHT OF THE REPRESENTATIONS MADE IN YOUR LETTER, IT IS DEEMED APPROPRIATE TO REVIEW BRIEFLY THE CONTROLLING PRINCIPLES HERETOFORE APPLIED IN CONSTRUING THE SAID 1934 STATUTE, WHICH PROVIDES:

SEC. 23. 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.

THE QUOTED SECTION CONTAINS NO EXPRESS PROVISION RESPECTING PREMIUM PAY FOR HOLIDAYS, AS SUCH, WHETHER OR NOT WORK IS PERFORMED ON SUCH DAYS. HENCE, IT IS APPARENT THE CONCLUSION HERETOFORE REACHED THAT THE PROVISIONS THEREOF PRECLUDE PAYMENT OF OTHER THAN REGULAR COMPENSATION FOR WORK ON HOLIDAYS FALLING WITHIN AN EMPLOYEE'S REGULAR TOUR OF DUTY, NECESSARILY RESULTED FROM A CONSTRUCTION OF THE LANGUAGE CONTAINED IN THE SAID SECTION--- VIEWED IN THE LIGHT OF THE ORDINARY MEANING ASCRIBED THERETO AT THE TIME OF ITS ENACTMENT. IT IS ASSUMED FROM YOUR LETTER THAT NO OBJECTION IS RAISED AGAINST THE SETTLED CONSTRUCTION OF SECTION 23 THAT THE OVERTIME COMPENSATION THEREIN AUTHORIZED IS PAYABLE ONLY FOR SERVICES RENDERED AFTER AN EMPLOYEE HAS COMPLETED HIS REGULAR TOUR OF DUTY OF 40 HOURS IN HIS WORKWEEK. HOWEVER, IT APPEARS THAT OBJECTION PRINCIPALLY IS DIRECTED TO THE PROPOSITION THAT THE SAID STATUTE PRECLUDES OTHER THAN REGULAR PAY FOR HOLIDAYS FALLING WITHIN THE TOUR OF DUTY FOR THE REASON THAT PREMIUM PAY FOR HOLIDAY WORK PROPERLY FORMS NO PART OF "OVERTIME" COMPENSATION MENTIONED IN THE STATUTE.

THE GENERALLY ACCEPTED DEFINITION OF THE TERM "OVERTIME" IS SERVICE "BEYOND THE REGULAR FIXED HOURS.' FERGUSON V. PORT HURON AND SARRIA FERRY CO., 13 F.2D 489, 492. ALSO, SEE UNITED STATES V. MYERS, 320 U.S. 561; GOODMAN V. MOSS, 43 N.Y.S. 2D 381, 385, TO THE SAME EFFECT. HENCE, UNLESS OTHERWISE SPECIFICALLY RESTRICTED BY STATUTE, THE TERM "OVERTIME," IN ITS BROADEST SENSE, PROPERLY INCLUDES DUTY PERFORMED ANY TIME "BEYOND THE REGULAR FIXED HOURS," REGARDLESS OF THE PARTICULAR HOURS OR THE PARTICULAR DAY ON WHICH SUCH DUTY IS PERFORMED. CONSEQUENTLY, SINCE HOLIDAYS ARE NON -WORK-DAYS FOR FEDERAL EMPLOYEES COMING WITHIN THE PURVIEW OF THE VARIOUS HOLIDAY PAY STATUTES ENACTED BY THE CONGRESS, IT FOLLOWS THAT UNDER THE BROAD CONCEPT OF THE TERM "OVERTIME," WORK PERFORMED ON SUCH DAYS--- WHETHER THEY FALL WITHIN OR WITHOUT A REGULAR TOUR OF DUTY--- REPRESENTS TIME WORKED "BEYOND THE REGULAR FIXED HOURS," AND, THEREFORE, IN THE ABSENCE OF SOME STATUTORY PROVISION TO THE CONTRARY, OVERTIME RATES, WHEN AUTHORIZED, WOULD BE PAYABLE FOR WORK ON SUCH DAYS.

AN EXAMINATION OF FEDERAL STATUTES IN PARI MATERIA, AND WHICH WERE ENACTED PRIOR, AS WELL AS SUBSEQUENT, TO THE SAID 1934 ACT, CLEARLY DISCLOSES THAT IT HAS BEEN THE PRACTICE OF THE CONGRESS WHEN LEGISLATING WITH RESPECT TO EXTRA COMPENSATION FOR FEDERAL EMPLOYEES, TO EMPLOY THE TERM ,OVERTIME" IN THE BROAD SENSE MENTIONED ABOVE. AS ILLUSTRATIVE OF THE MANNER IN WHICH THE CONGRESS GENERALLY HAS USED THE TERM,"OVERTIME," OR ITS VARIANT,"OVERTIME SERVICES," AND WITHOUT ATTEMPTING A DETAILED REFERENCE TO ALL OF THE FEDERAL STATUTES PERTAINING TO THE SUBJECT OF EXTRA COMPENSATION, IT IS SUFFICIENT TO NOTE THAT SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, 36 STAT. 899, AS AMENDED BY THE ACT OF FEBRUARY 7, 1920, 41 STAT. 402, AUTHORIZING EXTRA PAY TO CUSTOMS INSPECTORS, ETC., PROVIDES: SEC. 5. THAT THE SECRETARY OF THE TREASURY SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF INSPECTORS, STOREKEEPERS, WEIGHERS, AND OTHER CUSTOMS OFFICERS AND EMPLOYEES WHO MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN THE HOURS OF FIVE O-CLOCK POST MERIDIAN AND EIGHT O-CLOCK ANTEMERIDIAN, OR ON SUNDAYS OR HOLIDAYS, TO PERFORM SERVICES IN CONNECTION WITH THE LADING OR UNLADING OF CARGO * * *. (ITALICS SUPPLIED.) ALSO, SECTION 1 OF THE ACT OF MARCH 2, 1931, 46 STAT. 1467, AUTHORIZING EXTRA COMPENSATION FOR IMMIGRANT INSPECTORS AND OTHER EMPLOYEES OF THE IMMIGRATION SERVICE, PROVIDES:

THAT THE SECRETARY OF LABOR SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF INSPECTORS AND EMPLOYEES OF THE IMMIGRATION SERVICE WHO MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN THE HOURS OF FIVE O-CLOCK POST MERIDIAN AND EIGHT O-CLOCK ANTEMERIDIAN, OR ON SUNDAYS OR HOLIDAYS, TO PERFORM DUTIES IN CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS AND CREWS OF STEAMSHIPS, TRAINS, AIRPLANES, OR OTHER VEHICLES, ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT BY WATER, LAND OR AIR * * *. (ITALICS SUPPLIES) ALSO, SEE JOINT RESOLUTION 170, APPROVED DECEMBER 22, 1942, 56 STAT. 1068, AND THE WAR OVERTIME PAY ACT OF 1943, 57 STAT. 75.

IN THE LIGHT OF THE FOREGOING STATUTORY PROVISIONS, IT APPEARS THAT IT HAS BEEN THE GENERAL POLICY OF THE CONGRESS TO EMPLOY THE TERM "OVERTIME" IN ITS BROADEST CONCEPT, THUS EMBRACING WITHIN THAT TERM SERVICES ON SUNDAYS AND HOLIDAYS AS WELL AS SERVICES BEYOND THE FIXED HOURS OF DUTY ON REGULAR WORKDAYS. CONSEQUENTLY, IN THE ABSENCE OF ANY INDICATION TO THE CONTRARY, IT IS REASONABLE TO ATTRIBUTE TO THE TERM "OVERTIME" APPEARING IN THE 1934 STATUTE, THE SAME MEANING CONTEMPORANEOUSLY GIVEN THAT TERM IN RELATED STATUTES. SINCE, AS ABOVE STATED, THE PROVISIONS OF THE 40-HOUR WEEK STATUTE CONSISTENTLY HAVE BEEN INTERPRETED AND APPLIED AS AUTHORIZING PAYMENT OF ,OVERTIME" COMPENSATION ONLY FOR HOURS OF WORK IN EXCESS OF 40 HOURS PER WEEK, IT NECESSARILY FOLLOWS THAT, WHILE UNDER THE BROAD CONCEPT OF THE TERM,"OVERTIME," COMPENSATION WOULD BE PAYABLE FOR WORK PERFORMED ON A HOLIDAY, WHERE SUCH HOLIDAY FALLS WITHIN THE REGULAR TOUR OF DUTY--- THAT IS, BEFORE 40 HOURS OF WORK HAD BEEN PERFORMED--- PAYMENT OF EXTRA COMPENSATION FOR SUCH "OVERTIME" WOULD BE PROHIBITED UNDER THE STATUTE. ACCORDINGLY, IT WILL BE SEEN THAT, CONTRARY TO THE VIEWS EXPRESSED IN YOUR LETTER, SUPRA, THE HOLDING IN THE SAID DECISION OF NOVEMBER 29, 1945, DID NOT RESULT FROM A CONFUSION OF THE TERMS "OVERTIME" AND "HOLIDAY PAY" BUT WAS BASED UPON THE ESTABLISHED RELATIONSHIP BETWEEN THOSE TERMS AS THEY HAVE BEEN UNDERSTOOD SINCE THE PASSAGE OF THE 1934 STATUTE. THAT IS TO SAY, SO FAR AS CONCERNS FEDERAL STATUTES,"OVERTIME" HAS BEEN CONSIDERED A GENERAL TERM, ENCOMPASSING SERVICES ON SUNDAYS AND HOLIDAYS AS WELL AS EXTRA SERVICES ON REGULAR WORKDAYS, WHEREAS "HOLIDAY PAY," THAT IS, PAY FOR WORK ON A HOLIDAY, HAS BEEN VIEWED MERELY AS A SPECIES OR TYPE OF OVERTIME COMPENSATION.

IN ARRIVING AT THE CONCLUSION HERETOFORE REACHED RESPECTING THE OPERATION OF THE SAID 1934 STATUTE, THIS OFFICE WAS NOT UNMINDFUL OF THE FACT THAT A DISTINCTION BETWEEN OVERTIME PAY AND PREMIUM PAY FOR HOLIDAY WORK HAS BEEN MAINTAINED BY COMMERCIAL INDUSTRY AND THAT SUCH CLASSES OR CATEGORIES OF PAY ARE CONSIDERED COEQUAL WITH, AND INDEPENDENT OF, EACH OTHER. BUT, THE 1934 STATUTE BEING DIRECTED TO MATTERS PERTAINING TO THE PAY OF FEDERAL EMPLOYEES, ITS PROVISIONS NECESSARILY MUST BE VIEWED IN THE LIGHT OF CONSIDERATIONS CONTROLLING SIMILAR FEDERAL STATUTES RATHER THAN COMMERCIAL PRACTICES. AS ABOVE SHOWN, IT LONG HAS BEEN THE POLICY OF THE CONGRESS, WHEN AUTHORIZING PAYMENT OF EXTRA COMPENSATION FOR EXTRA WORK, TO PRESCRIBE "OVERTIME" COMPENSATION WITHOUT DISTINCTION AS TO THE PARTICULAR DAYS ON WHICH THE EXTRA SERVICES ARE RENDERED, AND THAT ESTABLISHED POLICY HAS GOVERNED THE CONSTRUCTION OF THE 1934 STATUTE. HOWEVER, A DEFINITE DEPARTURE FROM THAT PRACTICE WILL BE FOUND IN THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, 59 STAT. 295, 296, 298, WHEREIN IT IS PROVIDED IN SECTIONS 201 AND 302, AS FOLLOWS:

SEC. 201. OFFICERS AND EMPLOYEES TO WHOM THIS TITLE APPLIES SHALL, IN ADDITION TO THEIR BASIC COMPENSATION, BE COMPENSATED FOR ALL HOURS OF EMPLOYMENT, OFFICIALLY ORDERED OR APPROVED, IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK, AT OVERTIME RATES * * *.

SEC. 302. OFFICERS AND EMPLOYEES TO WHOM THIS TITLE APPLIES WHO ARE ASSIGNED TO DUTY ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER SHALL BE COMPENSATED FOR SUCH DUTY, EXCLUDING PERIODS WHEN THEY ARE IN LEAVE STATUS, IN LIEU OF THEIR REGULAR PAY FOR THAT DAY, AT THE RATE OF ONE AND ONE-HALF TIMES THE REGULAR BASIC RATE OF COMPENSATION: PROVIDED, THAT EXTRA HOLIDAY COMPENSATION PAID UNDER THIS SECTION SHALL NOT SERVICE TO REDUCE THE AMOUNT OF OVERTIME COMPENSATION TO WHICH THE EMPLOYEE MAY BE ENTITLED UNDER THIS OR ANY OTHER ACT DURING THE ADMINISTRATIVE WORKWEEK IN WHICH THE HOLIDAY OCCURS, BUT SUCH EXTRA HOLIDAY COMPENSATION SHALL NOT BE CONSIDERED TO BE A PART OF THE BASIC COMPENSATION FOR THE PURPOSE OF COMPUTING SUCH OVERTIME COMPENSATION. * * * THUS, IT WILL BE SEEN THAT THE CONGRESS NOW HAS AUTHORIZED, BY SPECIFIC LEGISLATION AFFECTING FEDERAL EMPLOYEES GENERALLY, THE PAYMENT OF "HOLIDAY PAY" AS WELL AS ,OVERTIME COMPENSATION," THEREBY ADOPTING THE MORE LIMITED CONCEPT OF THE TERM "OVERTIME" THERETOFORE PREVAILING IN INDUSTRIAL WAGE PROGRAMS AND APPLYING THAT DEFINITION TO THE WAGE PROGRAM FOR FEDERAL EMPLOYEES IN LIEU OF THE BROADER VIEW OF THAT TERM.

THE RESTRICTIVE SCOPE THUS GIVEN TO "OVERTIME" UNDER THE PROVISIONS OF THE SAID FEDERAL EMPLOYEES PAY ACT OF 1945, WHILE NOT NECESSARILY CONTROLLING AS TO THE MEANING TO BE GIVEN THAT TERM AS USED IN THE 1934 STATUTE, IS INDICATIVE, AT LEAST, OF A DISPOSITION ON THE PART OF THE CONGRESS TO CONSIDER "OVERTIME" AS EXCLUSIVE OF PREMIUM PAY FOR WORK ON HOLIDAYS--- IN CONSONANCE WITH COMMERCIAL PRACTICES GENERALLY. IN THAT CONNECTION, IT WILL BE NOTED THAT ON PAGE 8, HOUSE REPORT NO. 726, JUNE 6, 1945, ACCOMPANYING H.R. 3393--- THE ESSENTIAL PROVISIONS OF WHICH INCORPORATED IN S. 807, SUBSEQUENTLY ENACTED INTO LAW AS THE SAID FEDERAL EMPLOYEES PAY ACT OF 1945--- IT WAS STATED:

THE UNITED STATES GOVERNMENT, A SINGLE EMPLOYER, NOW ESTABLISHES PAY POLICIES AND METHODS FOR ITS EMPLOYEES IN A LARGE NUMBER OF INDIVIDUAL STATUTES. FREQUENTLY INCONSISTENCIES AND INEQUITIES ARE CREATED BY TREATING SIMILAR GROUPS IN DIFFERENT WAYS. ALSO, THE GOVERNMENT ESTABLISHES PAY POLICIES FOR INDUSTRY THAT IT DOES NOT ALWAYS ADOPT FOR ITS OWN EMPLOYEES. ACCORDINGLY, APART FROM OVERTIME PAY AND ADJUSTMENTS OF BASIC PAY LEVELS, IT IS DESIRABLE, WHENEVER OCCASION PERMITS, IN SUCH MATTERS AS NIGHT-PAY DIFFERENTIALS, HOLIDAY PAY, OR MERIT INCREASES WITHIN THE EMPLOYEE'S ESTABLISHED PAY SCALE, TO MOVE TOWARD EQUALIZATION OF POLICY, NOT ONLY WITHIN THE GOVERNMENT BUT BETWEEN GOVERNMENT AS AN EMPLOYER AND GOVERNMENT AS A REGULATOR OF PRIVATE INDUSTRY.

THERE IS NOTHING CONTAINED IN THE 1934 ACT EXPRESSLY DEFINING THE TERM "OVERTIME" AS USED THEREIN AND, IN THE LIGHT OF THE FOREGOING STATEMENTS AND THE PRESENT LEGISLATIVE POLICY AS EVIDENCED BY THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, IT REASONABLY APPEARS THAT THERE NOW MAY BE ATTRIBUTED TO THE TERM "OVERTIME," APPEARING IN THE 1934 ACT, THE MORE NARROW CONSTRUCTION PREVAILING IN INDUSTRY.

ACCORDINGLY, YOU ARE ADVISED THAT THIS OFFICE WILL OFFER NO OBJECTION TO OTHERWISE PROPER ADMINISTRATIVE REGULATIONS AUTHORIZING PENALTY RATES FOR WORK ADMINISTRATIVELY REQUIRED ON HOLIDAYS REGARDLESS OF THE FACT THAT SUCH DAYS FALL WITHIN AN EMPLOYEE'S REGULAR TOUR OF DUTY.