B-60976, NOVEMBER 26, 1946, 26 COMP. GEN. 363

B-60976, NOVEMBER 26, 1946, 26 COMP. GEN. 363

COMPENSATION - OVERTIME; SUNDAY AND HOLIDAY WORK - "PURCHASE AND HIRE" MECHANICS AND LABORERS "PURCHASE AND HIRE" CONSTRUCTION WORK EMPLOYEES WHOSE RATES OF PAY ARE PRESCRIBED UNDER GENERAL ADMINISTRATIVE AUTHORITY TO CONFORM WITH LOCAL PREVAILING WAGE SCALES ARE NOT WITHIN THE PURVIEW OF THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, APPLICABLE TO EMPLOYEES WHOSE WAGES ARE ESTABLISHED BY ,WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES," SO THAT SUCH EMPLOYEES MAY, PURSUANT TO A PROSPECTIVELY EFFECTIVE ADMINISTRATIVE DETERMINATION, BE PAID OVERTIME COMPENSATION FOR HOURS WORKED IN EXCESS OF 8 DAILY, AND PREMIUM PAY FOR HOURS WORKED BEFORE OR AFTER THE REGULAR TOUR OF DUTY AND FOR SATURDAY, SUNDAY, AND HOLIDAY WORK WITHOUT REGARD TO THE TOTAL NUMBER OF HOURS WORKED IN THE WEEK.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, NOVEMBER 26, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 27, 1946, AS FOLLOWS:

THERE ARE RESPECTFULLY SUBMITTED FOR DECISION CERTAIN QUESTIONS CONCERNING THE RATES OF COMPENSATION PAYABLE TO LABORERS AND MECHANICS, WHO ARE TEMPORARILY EMPLOYED ON CONSTRUCTION WORK IN UNCLASSIFIED POSITIONS, FOR WORK PERFORMED ON SATURDAYS, SUNDAYS AND HOLIDAYS, AND FOR WORK PERFORMED IN EXCESS OF EIGHT HOURS PER DAY ON OTHER DAYS.

THE SPECIFIC QUESTIONS MAY BE STATED AS FOLLOWS:

1. WHETHER THERE IS LEGAL AUTHORITY TO PAY LABORERS AND MECHANICS, WHO ARE TEMPORARILY EMPLOYED IN AN UNCLASSIFIED STATUS, THE PREMIUM RATES OF COMPENSATION AUTHORIZED BY THE WAGE ADJUSTMENT BOARD FOR WORK PERFORMED ON SATURDAYS, SUNDAYS AND HOLIDAYS, AND HOURS WORKED BEFORE OR AFTER THE REGULAR FIXED HOURS IN THE PARTICULAR LOCALITY WITHOUT REGARD TO THE NUMBER OF HOURS OF EMPLOYMENT DURING THE WEEK IN WHICH SUCH WORK WAS PERFORMED.

2. WHETHER THERE IS LEGAL AUTHORITY TO PAY LABORERS AND MECHANICS, WHO ARE TEMPORARILY EMPLOYED IN AN UNCLASSIFIED STATUS, AT SALARY RATES NOT LESS THAN TIME AND ONE-HALF FOR ALL HOURS WORKED IN EXCESS OF EIGHT HOURS PER DAY, WITHOUT REGARD TO THE TOTAL NUMBER OF HOURS WORKED DURING THE WEEK IN WHICH SUCH DAYS FAIL.

THERE IS FOR CONSIDERATION IN THIS CONNECTION EXECUTIVE ORDER NO. 9441 DATED MAY 11, 1944, A COPY OF WHICH IS ATTACHED, WHICH SUSPENDED DURING THE EXISTENCE OF THE PRESENT EMERGENCY, AS FAR AS THE VETERANS' ADMINISTRATION IS CONCERNED, THE PROVISIONS OF THE EIGHT HOUR LAW, SECTION 321, TITLE 40, U.S.C.A., ON THE CONDITION "THAT THE WAGES AND OVERTIME PAY OF ALL LABORERS AND MECHANICS SO EMPLOYED BY THE VETERANS' ADMINISTRATION SHALL BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF EXISTING LAW.'

IN ORDER TO OBTAIN THE NECESSARY LABORERS AND MECHANICS FOR CONSTRUCTION WORK DURING THE PREVAILING LABOR SHORTAGE, IT IS CONSIDERED NECESSARY TO CONFORM AS NEARLY AS POSSIBLE WITH THE COMMERCIAL WAGE SCALES PREVAILING FOR LABORERS AND MECHANICS IN THE LOCALITY IN WHICH THE WORK IS TO BE PERFORMED. AN EARLY DECISION WILL, THEREFORE, BE APPRECIATED.

IT IS UNDERSTOOD THAT THE EMPLOYEES REFERRED TO ARE ENGAGED UPON "PURCHASE AND HIRE" CONSTRUCTION WORK OF THE VETERANS' ADMINISTRATION AND ARE PAID WAGES IN CONFORMITY WITH THE PREVAILING WAGE SCALES FOR LABORERS AND MECHANICS IN THE LOCALITY IN WHICH THE WORK IS PERFORMED RATHER THAN IN ACCORDANCE WITH WAGE SCALES FIXED ADMINISTRATIVELY PURSUANT TO A WAGE BOARD OR OTHER ADMINISTRATIVE WAGE-FIXING AUTHORITY.

AS STATED IN YOUR LETTER, SUPRA, EXECUTIVE ORDER NO. 9441, MAY 11, 1944, SUSPENDED FOR THE DURATION OF THE PRESENT EMERGENCY, THE PROVISIONS OF THE 8-HOUR LAW, APPROVED AUGUST 1, 1892, AS AMENDED, 40 U.S.C. 321, AS TO ALL WORK PERFORMED BY LABORERS AND MECHANICS EMPLOYED BY THE VETERANS' ADMINISTRATION ON ANY PUBLIC WORK WITHIN THE UNITED STATES. HOWEVER, THAT EXECUTIVE ORDER PROPERLY MAY NOT BE VIEWED AS AUTHORIZING EITHER THE PAYMENT OF OVERTIME COMPENSATION ON A DAILY BASIS OR PREMIUM RATES OF PAY FOR WORK PERFORMED ON SATURDAYS, SUNDAYS, AND HOLIDAYS--- AS APPEARS TO BE THE VIEW SUGGESTED IN YOUR LETTER. IN THAT CONNECTION, IT WILL BE NOTED THAT THE SAID EXECUTIVE ORDER PROVIDES MERELY THAT THE WAGES AND OVERTIME PAY OF EMPLOYEES OF THE CATEGORIES MENTIONED "SHALL BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF EXISTING LAW.'

WHILE NOT SPECIFICALLY SO STATED IN YOUR LETTER, IT APPEARS THAT THE QUESTION AS TO THE PROPRIETY OF PAYING OVERTIME COMPENSATION AND PREMIUM RATES OF PAY TO LABORERS AND MECHANICS EMPLOYED ON THE BASIS STATED ABOVE ARISES BECAUSE OF DOUBT AS TO THE APPLICABILITY OF THE PROVISIONS OF THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, 48 STAT. 522, AND THE DECISIONS OF THIS OFFICE THEREUNDER. SECTION 23 OF THE ACT OF MARCH 28, 1934, READS:

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.

IT CONSISTENTLY HAS BEEN HELD THAT, UNDER THE PROVISIONS OF THE ABOVE- QUOTED STATUTE, AN EMPLOYEE WITHIN THE PURVIEW THEREOF IS NOT ENTITLED TO OVERTIME COMPENSATION UNLESS AND UNTIL HE HAS BEEN IN A PAY STATUS FOR HIS REGULARLY ESTABLISHED 40-HOUR WORKWEEK, WITH THE EXCEPTION THAT, IF ADMINISTRATIVE REGULATIONS SO PROVIDE, PREMIUM RATES OF PAY MAY BE PAID FOR WORK PERFORMED ON HOLIDAYS WHETHER OR NOT THE REGULAR 40-HOUR WORKWEEK HAS BEEN COMPLETED. SEE 25 COMP. GEN. 584. HOWEVER, IT LONG HAS BEEN RECOGNIZED THAT LABORERS AND MECHANICS ENGAGED UPON "PURCHASE AND HIRE" CONSTRUCTION WORK CARRIED ON BY FEDERAL AGENCIES AND WHOSE RATES OF PAY ARE PRESCRIBED UNDER THE GENERAL ADMINISTRATIVE AUTHORITY OF THE HEADS OF SUCH AGENCIES IN LINE WITH THE WAGES PAID SIMILAR EMPLOYEES IN THE PARTICULAR LOCALITY DO NOT HAVE THEIR WAGES SET BY "WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES" WITHIN THE MEANING OF THAT PHRASE AS USED IN SECTION 23 OF THE 1934 STATUTE, SUPRA. SEE 13 COMP. GEN. 486; 14 ID. 552. CONSEQUENTLY, EMPLOYEES OF THE TYPE MENTIONED IN YOUR LETTER ARE NOT WITHIN THE PURVIEW OF THAT STATUTE; AND, IN THE ABSENCE OF ANY OTHER STATUTORY LIMITATION UPON THEIR WAGES--- NONE HAVING BEEN CALLED TO ATTENTION--- SUCH EMPLOYEES MAY, IN THE DISCRETION OF THE ADMINISTRATOR OF VETERANS' AFFAIRS, BE PAID OVERTIME COMPENSATION FOR HOURS WORKED IN EXCESS OF 8 HOURS DAILY, AND PREMIUM PAY FOR HOURS WORKED BEFORE OR AFTER THE REGULAR FIXED HOURS OF DUTY, AND FOR SATURDAY, SUNDAY, AND HOLIDAY WORK WITHOUT REGARD TO THE TOTAL NUMBER OF HOURS WORKED IN THE WEEK IN WHICH SUCH WORK IS PERFORMED. OF COURSE, SUCH ADMINISTRATIVE DETERMINATION MAY BE GIVEN PROSPECTIVE APPLICATION, ONLY. ACCORDINGLY, QUESTIONS 1 AND 2 PRESENTED IN YOUR LETTER ARE ANSWERED IN THE AFFIRMATIVE.