B-53938, DECEMBER 21, 1945, 25 COMP. GEN. 464

B-53938: Dec 21, 1945

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FEDERAL EMPLOYEES PAY ACT OF 1945 - OVERTIME COMPENSATION - CONSULTANTS EMPLOYED ON PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS CONSULTANTS PAID ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS AT RATES WHICH ARE FIXED ADMINISTRATIVELY PURSUANT TO STATUTORY AUTHORITY WITHOUT REGARD TO THE CLASSIFICATION ACT. WHO ARE NOT EXPRESSLY EXCEPTED BY THE PROVISIONS OF SECTION 102 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FROM THE OVERTIME PROVISIONS OF SECTION 201 OF SAID ACT. ARE ENTITLED TO AND LIMITED TO OVERTIME COMPUTED IN ACCORDANCE WITH SAID SECTION 201. WHERE THE MAXIMUM AMOUNT OF COMPENSATION WHICH MAY BE EARNED IN ANY ONE YEAR BY A CONSULTANT PAID ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS IS FIXED BY THE EMPLOYEE'S APPOINTMENT.

B-53938, DECEMBER 21, 1945, 25 COMP. GEN. 464

FEDERAL EMPLOYEES PAY ACT OF 1945 - OVERTIME COMPENSATION - CONSULTANTS EMPLOYED ON PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS CONSULTANTS PAID ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS AT RATES WHICH ARE FIXED ADMINISTRATIVELY PURSUANT TO STATUTORY AUTHORITY WITHOUT REGARD TO THE CLASSIFICATION ACT, WHO ARE NOT EXPRESSLY EXCEPTED BY THE PROVISIONS OF SECTION 102 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FROM THE OVERTIME PROVISIONS OF SECTION 201 OF SAID ACT, ARE ENTITLED TO AND LIMITED TO OVERTIME COMPUTED IN ACCORDANCE WITH SAID SECTION 201. WHERE THE MAXIMUM AMOUNT OF COMPENSATION WHICH MAY BE EARNED IN ANY ONE YEAR BY A CONSULTANT PAID ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS IS FIXED BY THE EMPLOYEE'S APPOINTMENT, SUCH AMOUNT MAY BE CONSIDERED AS THE ANNUAL BASIC RATE OF COMPENSATION FROM WHICH THE HOURLY RATE SHOULD BE DETERMINED PURSUANT TO THE FORMULA PRESCRIBED BY SECTION 604 (D) (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR THE PURPOSE OF COMPUTING OVERTIME COMPENSATION UNDER THE FORMULA PRESCRIBED BY SECTION 201 OF SAID ACT. 25 COMP. GEN. 121, OVERRULED IN PART.

COMPTROLLER GENERAL WARREN TO A.D. BURT, DEPARTMENT OF THE INTERIOR, DECEMBER 21, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 2, 1945, AS FOLLOWS:

1. THE BONNEVILLE POWER ADMINISTRATION HAS IN ITS EMPLOY SEVERAL CONSULTANTS WHO ARE PAID ON THE BASIS OF WHEN ACTUALLY EMPLOYED. VARIOUS OCCASIONS SINCE THE PASSING OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IT HAS BEEN FOUND NECESSARY TO REQUIRE THE SERVICES OF CERTAIN OF THOSE CONSULTANTS IN EXCESS OF FORTY HOURS PER WEEK.

2. TO DATE THOSE EMPLOYEES HAVE NOT BEEN PAID FOR THEIR OVERTIME SERVICES, THERE BEING A QUESTION AS TO THE OVERTIME RATE PROPERLY APPLICABLE. THEY HAVE NOW REQUESTED PAYMENT, NOT ON THE BASIS OF AN OVERTIME RATE, BUT ON THE BASIS OF THEIR BASIC WHEN-ACTUALLY-EMPLOYED RATE, IT BEING THEIR CONTENTION THAT THEIR EMPLOYMENT AGREEMENTS WHICH STIPULATED A SPECIFIC PER DIEM RATE FOR EACH EMPLOYEE WHEN ACTUALLY EMPLOYED WERE IN EFFECT CONTRACTS WHICH MIGHT NOT BE MODIFIED TO THE DETRIMENT OF ONE OF THE CONTRACTING PARTIES BY THE APPLICATION OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. THIS ATTITUDE IS MAINTAINED EVEN BY THOSE CONSULTANTS WHOSE EARNINGS ARE LESS THAN $2,980 AND WHO WOULD BENEFIT BY THE APPLICATION OF THE ACT TO THEIR OVERTIME. A VOUCHER COVERING THE OVERTIME OF THOSE CONSULTANTS FOR PAYMENT AT THE BASIC RATE HAS BEEN PRESENTED TO ME FOR CERTIFICATION AS AN AUTHORIZED CERTIFYING OFFICER.

3. THE CONSULTANTS HERE INVOLVED WORK INTERMITTENTLY AS THEIR SERVICES ARE NEEDED. THEY HAVE NO REGULAR TOUR OF DUTY NOR IS A MINIMUM NUMBER OF DAYS WORK PER WEEK REQUIRED. THEIR BASIC SALARY RATES ARE FIXED ADMINISTRATIVELY PURSUANT TO STATUTORY AUTHORITY WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923. IT WOULD THEREFORE APPEAR THAT THOSE EMPLOYEES, SINCE THEY DO NOT FALL WITHIN ANY OF THE EXEMPTIONS OF SECTION 102 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, PUBLIC LAW 106, 79TH CONGRESS, ARE INCLUDED IN SECTION 101 (A) OF THE ACT AND ARE SUBJECT TO SECTION 201. THIS CONCLUSION IS STRENGTHENED BY YOUR LETTER OF JULY 10, 1945, TO THE COMMISSIONER, U.S. SECTION, INTERNATIONAL BOUNDARY COMMISSION (B-50789) (25 COMP. GEN. 35), IN WHICH YOU INDICATED THAT THE PER DIEM EMPLOYEES OF THAT AGENCY WERE SUBJECT TO SECTION 201 (A) OF THE ACT, AND BY YOUR LETTER OF JULY 23, 1945 TO THE SECRETARY OF THE NAVY, (B-50979) (25 COMP. GEN. 86) IN WHICH YOU STATE THAT "ALL CONTRACT EMPLOYEES, WHETHER FULL-TIME, PART TIME OR INTERMITTENT, WHO WORK IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORK WEEK, 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.'

4. ON THE BASIS OF THOSE DECISIONS IT DOES NOT APPEAR THAT THE ENCLOSED VOUCHER MAY BE CERTIFIED FOR PAYMENT IN THE AMOUNTS STATED THEREON. WILL BE NOTED FROM THE ENCLOSED PAYROLL THAT THE PERIOD OF SERVICE OF EACH OF THE CONSULTANTS NAMED THEREIN HAS BEEN LIMITED TO A CERTAIN NUMBER OF DAYS. THE PERIOD IN EACH INSTANCE IS CONSIDERABLY LESS THAN THE BASIC WORK YEAR OF 260 DAYS. THE MAXIMUM PER ANNUM SALARIES WHICH MAY BE EARNED BY THE CONSULTANTS IN QUESTION ARE AS FOLLOWS:

OTTO S. BEYER NOT IN EXCESS OF $7,500.

GEORGE W. HAMILTON NOT IN EXCESS OF $7,500.

EUGENE C. STARR NOT IN EXCESS OF $4,500.

CARL D. THOMPSON NOT IN EXCESS OF $4,500.

MORTON TOMPKINS NOT IN EXCESS OF $3,600.

EDWIN M. KERR NOT IN EXCESS OF $2,700.

HENRY M. HANZEN NOT IN EXCESS OF $1,800.

5. IN THE LAST PARAGRAPH OF YOUR JULY 10, 1945, LETTER TO THE COMMISSIONER, UNITED STATES SECTION, INTERNATIONAL BOUNDARY COMMISSION (B- 50789) YOU USED THE WORDS "PER ANNUM EQUIVALENT" STATING IN SUBSTANCE THAT PER DIEM EMPLOYEES, WHO RECEIVE A PER ANNUM EQUIVALENT OF LESS THAN $2,980, ARE ENTITLED TO OVERTIME COMPENSATION AT ONE AND ONE- HALF TIMES THEIR DAILY OR HOURLY RATE. IT THEREFORE APPEARS THAT THE FORMULA STATED IN YOUR LETTER IS APPLICABLE IN COMPUTING THE OVERTIME COMPENSATION FOR TWO OF THE EMPLOYEES LISTED ABOVE, NAMELY: MESSRS. KERR AND HANZEN, PROVIDED "PER ANNUM EQUIVALENT" MEANS THE MAXIMUM PER ANNUM EARNINGS PERMITTED BY THE EMPLOYEES APPOINTMENT. ON THE OTHER HAND, IF "PER ANNUM EQUIVALENT" MEANS THE TOTAL WHICH AN EMPLOYEE MIGHT RECEIVE WERE HE PERMITTED TO WORK A FULL BASIC WORK YEAR OF 260 DAYS, THEN THE FORMULA COULD BE APPLIED ONLY IN THE CASE OF MR. HANZEN WHOSE MAXIMUM EARNINGS FOR THE BASIC WORK YEAR OF 260 DAYS WOULD BE $2,600 WERE HE PERMITTED TO WORK 260 DAYS.

7. IT WILL BE NOTED FROM THE ENCLOSED VOUCHER THAT IT COVERS THE PERIOD JULY 1 TO OCTOBER 6 AND THAT SOME OF THE OVERTIME SHOWN THEREON DATES BACK TO JULY. DUE TO AN INADVERTENCE IN THIS OFFICE, PRESENTATION OF THIS MATTER FOR YOUR CONSIDERATION HAS BEEN DELAYED. IT WILL THEREFORE BE APPRECIATED IF YOU WILL RENDER AN OPINION IN CONNECTION WITH THE ENCLOSED VOUCHER AT AN EARLY DATE.

IN DECISION OF JULY 10, 1945, B-50789 (25 COMP. GEN. 35), REFERRED TO BY YOU, IT WAS HELD (QUOTING FROM THE SYLLABUS):

THE BASIC COMPENSATION OF PER DIEM EMPLOYEES OF THE UNITED STATES SECTION, INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, WHICH IS FIXED ADMINISTRATIVELY PURSUANT TO STATUTORY AUTHORITY WITHOUT REGARD TO THE CLASSIFICATION ACT, IS NOT AUTOMATICALLY INCREASED BY ANY OF THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 RELATING TO BASIC COMPENSATION RATE INCREASES, BUT MUST BE ADJUSTED ADMINISTRATIVELY, IF AT ALL, SUBJECT TO THE AVAILABILITY OF FUNDS THEREFOR; HOWEVER, SUCH EMPLOYEES ARE ENTITLED TO OVERTIME COMPENSATION UNDER SECTION 201 OF SAID ACT.

THE OVERTIME COMPENSATION FOR WORK IN EXCESS OF 40 HOURS PER WEEK OF PER DIEM EMPLOYEES OF THE UNITED STATES SECTION, INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, WHOSE PER DIEM COMPENSATION AMOUNTS TO A PER ANNUM EQUIVALENT (2,080 TIMES THE HOURLY RATE) OF LESS THAN $2,980, SHOULD BE COMPUTED UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 ON THE BASIS OF 1 1/2 TIMES THEIR DAILY OR HOURLY RATE OF COMPENSATION. ALSO, IT WAS HELD IN DECISION OF JULY 23, 1945, B-50979 (25 COMP. GEN. 86), AS FOLLOWS (QUOTING FROM THE SECOND PARAGRAPH OF THE SYLLABUS):

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 WORK WEEK; 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.

SECTIONS 101 (A) AND 201 (A) AND (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, 296, 297, PROVIDE:

SEC. 101. (A) 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, AND (2) TO THOSE OFFICERS AND EMPLOYEES OF THE JUDICIAL BRANCH OF THE GOVERNMENT, THE LIBRARY OF CONGRESS, THE BOTANIC GARDEN, AND THE OFFICE OF THE ARCHITECT OF THE CAPITOL WHO OCCUPY POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED.

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 WORK-WEEK, AT OVERTIME RATES AS FOLLOWS:

(A) FOR EMPLOYEES WHOSE BASIC COMPENSATION IS AT A RATE LESS THAN $2,980 PER ANNUM, THE OVERTIME HOURLY RATE SHALL BE ONE AND ONE-HALF TIMES THE BASIC HOURLY RATE OF COMPENSATION: PROVIDES, THAT IN COMPUTING SUCH OVERTIME COMPENSATION FOR PER ANNUM EMPLOYEES, THE BASIC HOURLY RATE OF COMPENSATION SHALL BE DETERMINED BY DIVIDING THE PER ANNUM RATE BY TWO THOUSAND AND EIGHTY.

(B) FOR EMPLOYEES WHOSE BASIC COMPENSATION IS AT A RATE OF $2,980 PER ANNUM OR MORE, THE OVERTIME HOURLY RATE SHALL BE IN ACCORDANCE WITH AND IN PROPORTION TO THE FOLLOWING SCHEDULE:

AS CONSULTANTS PAID ON A PER DIEM BASIS AT RATES ADMINISTRATIVELY FIXED ARE NOT EXPRESSLY EXCEPTED BY SECTION 102 OF THE ACT FROM THE PROVISIONS OF SECTION 201, IT FOLLOWS THAT THEY ARE ENTITLED TO AND LIMITED TO OVERTIME COMPUTED IN ACCORDANCE WITH SAID SECTION 201, WHICH LEAVES FOR DECISION ONLY THE QUESTION OF WHAT IS THE BASIC RATE OF COMPENSATION UPON WHICH THE FORMULA THEREIN PRESCRIBED IS TO BE APPLIED -- THAT IS, WHETHER IT IS DERIVED BY MULTIPLYING THE PER DIEM RATE BY THE NUMBER OF WORKING DAYS POSSIBLE IN THE YEAR, OR THE MAXIMUM AMOUNT TO WHICH THE EMPLOYEE IS LIMITED DURING THE YEAR BY HIS APPOINTMENT.

SECTION 604 (D) (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 304, PRESCRIBES THE PROCEDURE TO BE FOLLOWED IN DETERMINING WEEKLY, DAILY, OR HOURLY RATES WHEN THERE IS KNOWN THE MONTHLY OR ANNUAL RATE, BUT CONTAINS NO DIRECTION WITH RESPECT TO THE COMPUTATION OF THE ANNUAL RATE WHEN ONLY THE DAILY RATE IS KNOWN. IN APPLYING THE DOUBLE COMPENSATION STATUTES TO CASES IN WHICH THE EMPLOYEE'S APPOINTMENT CONTAINS NO LIMITATION UPON THE NUMBER OF HOURS OR DAYS TO BE WORKED IN EACH YEAR, IT HAS BEEN THE GENERAL RULE THAT THE PER HOUR OR PER DIEM RATE MUST BE MULTIPLIED BY THE NUMBER OF POSSIBLE WORKING HOURS OR DAYS IN THE YEAR--- RATHER THAN THE NUMBER OF HOURS OR DAYS ACTUALLY WORKED--- IN ORDER TO DETERMINE THE ANNUAL RATE. 3 COMP. GEN. 260; 8 ID. 261; 18 ID. 768. HOWEVER, WHERE AN APPOINTMENT OR CONTRACT OF EMPLOYMENT LIMITS THE EMPLOYMENT TO A SPECIFIED YEARLY MAXIMUM, THE MAXIMUM SO FIXED HAS BEEN CONSIDERED THE ANNUAL RATE FOR THE PURPOSE OF APPLYING THE DOUBLE COMPENSATION STATUTES. 17 COMP. GEN. 249; 20 ID. 407. ACCORDINGLY, IN THE CASES INVOLVED IN YOUR SUBMISSION IN WHICH THE MAXIMUM AMOUNTS WHICH MAY BE EARNED IN ONE YEAR ARE FIXED IN THE EMPLOYEE'S APPOINTMENT, SUCH AMOUNTS MAY BE CONSIDERED THE ANNUAL BASIC RATES FOR PURPOSES OF THE NEW PAY ACT. IN SO HOLDING, THERE HAS NOT BEEN OVERLOOKED THE DECISION IN 25 COMP. GEN. 121, PAGE 135, QUESTION AND ANSWER NO. 16, IN WHICH A DIFFERENT FORMULA FOR COMPUTING THE ANNUAL RATE WAS APPROVED, BUT THE APPLICATION OF EITHER METHOD WOULD HAVE RESULTED IN THE SAME ANSWER TO THAT QUESTION ACCORDINGLY, THE METHOD APPLIED IN THAT CASE WILL NOT BE FOLLOWED HEREAFTER.

HOWEVER, AS THE OVERTIME PAYABLE UNDER SECTION 201 ON SALARIES UP TO $2,980 IS "ONE AND ONE-HALF TIMES THE BASIC HOURLY RATE OF COMPENSATION," THERE ARE FOR APPLICATION IN THE CASE OF THE EMPLOYEES WHOSE MAXIMUM COMPENSATIONS ARE FIXED AT $1,800 AND $2,700, RESPECTIVELY, THE PROVISIONS OF SECTION 604 (D) (1) AND (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 304, WHICH PROVIDE:

(D) (1) HEREAFTER, FOR ALL PAY COMPUTATION PURPOSES AFFECTING OFFICERS OR EMPLOYEES IN OR UNDER THE EXECUTIVE BRANCH, THE JUDICIAL BRANCH, OR THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, BASIC PER ANNUM RATES OF COMPENSATION ESTABLISHED BY OR PURSUANT TO LAW SHALL BE REGARDED AS PAYMENT FOR EMPLOYMENT DURING FIFTY-TWO BASIC ADMINISTRATIVE WORKWEEKS OF FORTY HOURS.

(2) WHENEVER FOR ANY SUCH PURPOSE, IT IS NECESSARY TO CONVERT A BASIC MONTHLY OR ANNUAL RATE TO A BASIC WEEKLY, DAILY, OR HOURLY RATE, THE FOLLOWING RULES SHALL GOVERN:

(A) A MONTHLY RATE SHALL BE MULTIPLIED BY TWELVE TO DERIVE AN ANNUAL RATE;

(B) AN ANNUAL RATE SHALL BE DIVIDED BY FIFTY-TWO TO DERIVE A WEEKLY RATE;

(C) A WEEKLY RATE SHALL BE DIVIDED BY FORTY TO DERIVE AN HOURLY RATE; AND

(D) A DAILY RATE SHALL BE DERIVED BY MULTIPLYING AN HOURLY RATE BY THE NUMBER OF DAILY HOURS OF SERVICE REQUIRED. HENCE, ONE AND ONE HALF TIMES THE HOURLY RATE SO COMPUTED WOULD BE PAYABLE FOR EACH HOUR'S SERVICE RENDERED BY SUCH EMPLOYEE IN EXCESS OF 40 HOURS IN EACH WORKWEEK FOR ALL OVERTIME ORDERED AND APPROVED BY ADMINISTRATIVE AUTHORITY.