B-62282, DECEMBER 20, 1946, 26 COMP. GEN. 428

B-62282: Dec 20, 1946

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ARE TO BE REGARDED AS NOT SUBJECT TO THE PROVISIONS OF SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 WITH RESPECT TO ESTABLISHMENT OF A 40-HOUR BASIC WORKWEEK. SUCH EMPLOYEES ARE NOT SUBJECT TO THE OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF SAID ACT. 1946: I HAVE YOUR LETTER OF DECEMBER 2. SOME OF THE STATES HAVE REQUESTED THE DETAIL. OF PERSONS WHO ON THE DATE OF THE ENACTMENT OF THIS ACT WERE EMPLOYED IN THE STATE AND LOCAL OFFICES OF THE UNITED STATES EMPLOYMENT SERVICE. THE OPERATION OF STATE AND LOCAL PUBLIC EMPLOYMENT OFFICE FACILITIES AND PROPERTIES WHICH WERE TRANSFERRED BY SUCH STATE TO THE FEDERAL GOVERNMENT IN 1942 TO PROMOTE THE NATIONAL WAR EFFORT. * * * "THE SECRETARY OF LABOR MAY WITHHOLD OR DENY CERTIFICATIONS OF FUNDS FOR A STATE SYSTEM OF PUBLIC EMPLOYMENT OFFICES UNLESS HE FINDS THAT THE STATE "/1) (A) HAS MADE PROVISION FOR THE TRANSFER TO AND RETENTION IN THE STATE-WIDE SYSTEM OF PUBLIC EMPLOYMENT OFFICES OF EMPLOYEES OF THE FEDERAL GOVERNMENT WHO (ON THE EFFECTIVE DATE OF THIS ACT) WERE EMPLOYED IN STATE OR LOCAL EMPLOYMENT SERVICE FUNCTIONS IN SUCH STATE.

B-62282, DECEMBER 20, 1946, 26 COMP. GEN. 428

EMPLOYEES DETAILED TO STATE EMPLOYMENT AGENCIES - HOURS OF WORK; COMPENSATION EMPLOYEES OF THE UNITED STATES EMPLOYMENT SERVICE, LABOR DEPARTMENT, DETAILED TO A STATE EMPLOYMENT AGENCY PENDING AN OPPORTUNITY TO ACQUIRE ELIGIBILITY FOR STATE EMPLOYMENT, PURSUANT TO THE ACT OF JULY 26, 1946, ARE TO BE REGARDED AS NOT SUBJECT TO THE PROVISIONS OF SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 WITH RESPECT TO ESTABLISHMENT OF A 40-HOUR BASIC WORKWEEK, BUT AS HAVING THE SAME HOURS OF WORK AS SIMILARLY SITUATED STATE EMPLOYEES; AND SUCH EMPLOYEES ARE NOT SUBJECT TO THE OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF SAID ACT. THE PRESENT SALARIES OF EMPLOYEES OF THE UNITED STATES EMPLOYMENT SERVICE, LABOR DEPARTMENT, DETAILED TO A STATE EMPLOYMENT AGENCY PENDING AN OPPORTUNITY TO ACQUIRE ELIGIBILITY FOR STATE EMPLOYMENT, PURSUANT TO THE ACT OF JULY 26, 1946, NEED NOT BE ADJUSTED IN VIEW OF THE COMPENSATION RESTRICTION CONTAINED IN SAID ACT UNLESS SUCH SALARIES SUBSTANTIALLY EXCEED THOSE OF SIMILARLY SITUATED STATE EMPLOYEES, REGARDLESS OF THE NUMBER OF HOURS IN THE BASIC WORKWEEK FOR STATE EMPLOYEES. ONLY IN A CASE WHERE STATE LAWS OR REGULATIONS PROVIDE FOR PAYMENT OF OVERTIME COMPENSATION FOR WORK IN EXCESS OF THE BASIC WORKWEEK, WHICH MAY BE MORE OR LESS THAN FORTY HOURS, WOULD THOSE EMPLOYEES OF THE UNITED STATES EMPLOYMENT SERVICE, LABOR DEPARTMENT, DETAILED TO A STATE EMPLOYMENT AGENCY PENDING AN OPPORTUNITY TO ACQUIRE ELIGIBILITY FOR STATE EMPLOYMENT, PURSUANT TO THE ACT OF JULY 26, 1946, BE ENTITLED TO OVERTIME COMPENSATION, AND THE RATE WOULD BE FOR ASSIMILATING TO THAT USED IN COMPUTING OVERTIME COMPENSATION OF STATE EMPLOYEES--- OVERTIME COMPENSATION AND RATES AUTHORIZED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945 NOT BEING FOR APPLICATION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF LABOR, DECEMBER 20, 1946:

I HAVE YOUR LETTER OF DECEMBER 2, 1946, AS FOLLOWS:

IN ACCORDANCE WITH THE PROVISIONS OF PUBLIC LAW 549, 79TH CONGRESS, APPROVED JULY 26, 1946, SOME OF THE STATES HAVE REQUESTED THE DETAIL, COMMENCING NOVEMBER 16, 1946, OF PERSONS WHO ON THE DATE OF THE ENACTMENT OF THIS ACT WERE EMPLOYED IN THE STATE AND LOCAL OFFICES OF THE UNITED STATES EMPLOYMENT SERVICE.

PUBLIC LAW 549, UNDER THE TITLE," GRANTS TO STATES FOR PUBLIC EMPLOYMENT OFFICES," READS, IN PERTINENT PART, AS FOLLOWS:

"ON NOVEMBER 15, 1946, THE SECRETARY OF LABOR SHALL TRANSFER, TO THE STATE AGENCY IN EACH STATE DESIGNATED UNDER SECTION 4 OF THE ACT OF CONGRESS APPROVED JUNE 6, 1933, AS AMENDED, AS THE AGENCY TO ADMINISTER THE STATE-WIDE SYSTEM OF PUBLIC EMPLOYMENT OFFICES IN COOPERATION WITH THE UNITED STATES EMPLOYMENT SERVICE UNDER SAID ACT, THE OPERATION OF STATE AND LOCAL PUBLIC EMPLOYMENT OFFICE FACILITIES AND PROPERTIES WHICH WERE TRANSFERRED BY SUCH STATE TO THE FEDERAL GOVERNMENT IN 1942 TO PROMOTE THE NATIONAL WAR EFFORT. * * *

"THE SECRETARY OF LABOR MAY WITHHOLD OR DENY CERTIFICATIONS OF FUNDS FOR A STATE SYSTEM OF PUBLIC EMPLOYMENT OFFICES UNLESS HE FINDS THAT THE STATE

"/1) (A) HAS MADE PROVISION FOR THE TRANSFER TO AND RETENTION IN THE STATE-WIDE SYSTEM OF PUBLIC EMPLOYMENT OFFICES OF EMPLOYEES OF THE FEDERAL GOVERNMENT WHO (ON THE EFFECTIVE DATE OF THIS ACT) WERE EMPLOYED IN STATE OR LOCAL EMPLOYMENT SERVICE FUNCTIONS IN SUCH STATE, IN THE POSITIONS OCCUPIED BY THEM UNDER THE FEDERAL SERVICE OR IN REASONABLY COMPARABLE POSITIONS, * * *

"/2) HAS REQUESTED THE DETAIL OF SUCH EMPLOYEES TO THE STATE AGENCY UNDER THE FOLLOWING PROVISIONS: SO MUCH OF THE FUNDS APPROPRIATED FOR STATE-WIDE SYSTEMS OF PUBLIC EMPLOYMENT OFFICES AS MAY BE NECESSARY SHALL BE AVAILABLE TO THE SECRETARY OF LABOR, IN LIEU OF ANY PORTION OF THE GRANT TO THE STATE, FOR THE PAYMENT OF COMPENSATION (UNDER THE SALARY SCALES APPLICABLE TO SUCH EMPLOYEES PRIOR TO THE EFFECTIVE DATE OF THIS ACT) TO EMPLOYEES OF THE UNITED STATES EMPLOYMENT SERVICE IN THE DEPARTMENT OF LABOR, WHO, UPON THE REQUEST OF THE STATE, AND FOR THE PURPOSE OF PERMITTING CONTINUITY IN THEIR EMPLOYMENT PENDING AN OPPORTUNITY TO ACQUIRE ELIGIBILITY FOR STATE EMPLOYMENT IN ACCORDANCE WITH CLAUSE (1) (A) OF THIS PARAGRAPH, MAY BE DETAILED BY THE SECRETARY OF LABOR TO THE STATE AGENCY FOR SERVICE IN THE STATEWIDE SYSTEM OF PUBLIC EMPLOYMENT OFFICES.'

SECTION 301 OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY THE FEDERAL EMPLOYEES PAY ACT OF 1946, READS IN PERTINENT PART:

"/A) HEADS OF DEPARTMENTS * * * SHALL, WITH RESPECT TO EACH GROUP OF FULL -TIME EMPLOYEES TO WHOM THESE REGULATIONS APPLY, ESTABLISH BY REGULATION:

"/1) A BASIC WORKWEEK OF FORTY HOURS IN LENGTH WHICH SHALL NOT EXTEND OVER MORE THAN SIX OF ANY SEVEN CONSECUTIVE DAYS.'

THE WORKWEEK FOR EMPLOYEES OF SOME OF THE STATES WHO HAVE REQUESTED THE DETAIL OF PERSONNEL IN ACCORDANCE WITH PUBLIC LAW 549, IS LESS THAN FORTY HOURS; IN OTHERS, IT IS MORE THAN FORTY HOURS.

IN VIEW OF THE FOREGOING, I SHOULD APPRECIATE YOUR ADVICE AS TO WHETHER I AM REQUIRED TO ESTABLISH A WORKWEEK OF FORTY HOURS FOR EMPLOYEES OF THE UNITED STATES EMPLOYMENT SERVICE IN THE DEPARTMENT OF LABOR WHO ARE DETAILED TO THE SEVERAL STATES AFTER NOVEMBER 15, 1946, IN ACCORDANCE WITH THE CITED REGULATIONS OF THE CIVIL SERVICE COMMISSION.

IF YOUR ANSWER TO THE ABOVE IS IN THE NEGATIVE, THE FOLLOWING QUESTIONS ARISE:

(1) IF THE BASIC WORKWEEK, AS ESTABLISHED FOR STATE EMPLOYEES, IS MORE OR LESS THAN FORTY HOURS, SHOULD SUCH DETAILED EMPLOYEES BE COMPENSATED AT THE SAME RATE NOW PAID FOR FORTY HOURS?

(2) IF THE BASIC WORKWEEK, AS ESTABLISHED FOR STATE EMPLOYEES, IS LESS THAN FORTY HOURS, SHOULD OVERTIME BE PAID FOR WORK PERFORMED IN EXCESS OF THE STATE BASIC WORKWEEK?

(3) IF THE BASIC WORKWEEK, AS ESTABLISHED FOR STATE EMPLOYEES, IS MORE THAN FORTY HOURS, AT WHAT RATE SHOULD SUCH DETAILED EMPLOYEES BE PAID FOR OVERTIME?

THE REGULATION OF THE CIVIL SERVICE COMMISSION REFERRED TO IN YOUR LETTER MERELY REITERATES THE LANGUAGE APPEARING IN SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 303.

IN DECISION OF MAY 21, 1946, B-57556, TO YOU, IT WAS HELD THAT THE PROVISIONS IN THE APPROPRIATION ACTS FOR THE UNITED STATES EMPLOYMENT SERVICE LIMITING THE COMPENSATION OF EMPLOYEES ENGAGED IN EMPLOYMENT SERVICE DUTIES IN POSITIONS WITHIN ANY LOCAL OR STATE OFFICES TO THAT WHICH WOULD HAVE BEEN APPLICABLE HAD STATE OPERATION OF SUCH OFFICES CONTINUED WITHOUT INTERRUPTION, PRECLUDED AN INCREASE OF COMPENSATION IN A SUFFICIENT AMOUNT TO COMPENSATE THEM FOR THE DIFFERENCE BETWEEN THE HOURS WORKED BY THE STATE EMPLOYEES AND THE 40-HOUR BASIC WORKWEEK ESTABLISHED FOR FEDERAL EMPLOYEES GENERALLY BY SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945.

WHILE THAT RULING INDICATED THAT THE FEDERAL EMPLOYEES PAY ACT OF 1945 WAS APPLICABLE, GENERALLY, TO EMPLOYEES OF THE UNITED STATES EMPLOYMENT SERVICE ENGAGED IN EMPLOYMENT SERVICE WITHIN LOCAL OR STATE OFFICES, IT WAS RENDERED PRIOR TO THE ENACTMENT OF PUBLIC LAW 549, 60 STAT. 684, WHICH LAW CREATES A DIFFERENT SITUATION WITH RESPECT TO SUCH EMPLOYEES FROM THAT EXISTING THERETOFORE.

THE APPLICATION OF THE LATTER ACT, PROVIDING FOR THE RETURN OF THE LOCAL AND STATE EMPLOYMENT OFFICES TO STATE CONTROL AS OF NOVEMBER 15, 1946, AND FOR THE DETAIL OF FEDERAL EMPLOYEES TO A STATE AGENCY UNDER CERTAIN CIRCUMSTANCES PENDING ACTUAL TRANSFER OF SUCH EMPLOYEES TO STATE EMPLOYMENT, MIGHT RESULT IN THE UNDESIRABLE SITUATION OF FEDERAL EMPLOYEES WORKING SIDE BY SIDE WITH STATE EMPLOYEES IN THE SAME OFFICE AND BEING REQUIRED TO PERFORM SERVICES IN EXCESS OF OR LESS THAN THE HOURS WORKED BY THE STATE EMPLOYEES ALTHOUGH RECEIVING SUBSTANTIALLY THE SAME COMPENSATION. THIS, AS WELL AS OTHER PROBLEMS THAT MIGHT ARISE BECAUSE OF DIFFERENT WORKING HOURS OF THE FEDERAL AND STATE EMPLOYEES, DOUBTLESS WOULD BE DETRIMENTAL TO EFFICIENT ADMINISTRATION OF THE EMPLOYMENT OFFICES BY THE APPROPRIATE AGENCIES OF THE VARIOUS STATES.

ACCORDINGLY, IT APPEARS REASONABLE TO CONCLUDE THAT THE CONGRESS INTENDED BY THE STATUTORY PROVISIONS QUOTED IN YOUR LETTER THAT THE FEDERAL EMPLOYEES DETAILED TO STATE AGENCIES IN ACCORDANCE WITH THE PROVISIONS OF PUBLIC 549 WERE TO WORK THE SAME HOURS AS THE STATE EMPLOYEES SIMILARLY SITUATED AND THUS INTENDED TO EXEMPT THEM FROM THE OPERATION OF SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. THE QUESTION POSED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER IS THEREFORE ANSWERED IN THE NEGATIVE. FOR THE SAME REASONS, SECTION 201 OF SAID ACT, 59 STAT. 296, RELATING TO PAYMENT OF OVERTIME COMPENSATION FOR HOURS OF SERVICE PERFORMED IN EXCESS OF 40 HOURS PER WEEK, LIKEWISE WOULD NOT BE FOR APPLICATION.

REFERRING, GENERALLY, TO THE QUESTIONS IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, THE RATES OF COMPENSATION OF SUCH DETAILED EMPLOYEES WOULD STILL BE GOVERNED BY THE CONTINUED RESTRICTION IN PUBLIC LAW 549 AGAINST PAYMENT OF SALARY TO ANY INDIVIDUAL ENGAGED IN EMPLOYMENT SERVICE WITHIN ANY LOCAL OR FIELD OR STATE OFFICE WHICH SUBSTANTIALLY EXCEEDS THE SALARY WHICH WOULD APPLY TO SUCH POSITION IF THE RELEVANT STATE MERIT SYSTEM APPLIED AND IF STATE OPERATION OF SUCH OFFICE HAD CONTINUED. B-36029, AUGUST 11, 1943; B-57851, JUNE 11, 1946.

ACCORDINGLY, WITH RESPECT TO QUESTION NO. (1), THE SALARIES OF THE INVOLVED EMPLOYEES NEED NOT BE ADJUSTED UNLESS THEY SUBSTANTIALLY EXCEED THE SALARIES OF THE STATE EMPLOYEES, REGARDLESS OF THE NUMBER OF HOURS IN THE BASIC WORKWEEK FOR STATE EMPLOYEES.

QUESTION NO. (2) IS ANSWERED IN THE AFFIRMATIVE, ASSUMING, OF COURSE, THAT THE STATE LAWS OR REGULATIONS PROVIDE FOR PAYMENT OF OVERTIME FOR WORK PERFORMED IN EXCESS OF THE BASIC WORKWEEK ESTABLISHED FOR STATE EMPLOYEES; OTHERWISE, IN THE NEGATIVE.

REFERRING TO QUESTION NO. (3), OVERTIME COMPENSATION WOULD BE PAYABLE ONLY IF AUTHORIZED FOR STATE EMPLOYEES, AS STATED IN THE PRIOR QUESTION, AND THE RATE THEREFOR WOULD BE FOR ASSIMILATING TO THAT USED IN COMPUTING THE OVERTIME COMPENSATION OF THE STATE EMPLOYEES--- THE OVERTIME COMPENSATION AND RATES AUTHORIZED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945 NOT BEING FOR APPLICATION, AS PREVIOUSLY STATED.