B-79779, NOVEMBER 26, 1948, 28 COMP. GEN. 328

B-79779: Nov 26, 1948

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"WHEN ACTUALLY EMPLOYED" EMPLOYEES APPOINTED FOR INTERMITTENT SERVICE - ENTITLEMENT TO OVERTIME COMPENSATION "WHEN ACTUALLY EMPLOYED" EMPLOYEES WHO ARE APPOINTED FOR INTERMITTENT SERVICE AND FOR WHOM AN ADMINISTRATIVE WORKWEEK OF 40 HOURS HAS BEEN ESTABLISHED MAY BE REGARDED AS "FULL-TIME" EMPLOYEES WITHIN THE MEANING OF THE OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 SO AS TO BE ENTITLED TO THE OVERTIME PAY PRESCRIBED THEREIN IN ADDITION TO THAT ALLOWED UNDER THEIR CONTRACTS OF EMPLOYMENT FOR HOURS WORKED IN EXCESS OF THE BASIC ADMINISTRATIVE WORKWEEK. DECISIONS INCONSISTENT HEREWITH NO LONGER WILL BE FOLLOWED. ARE LIMITED TO THE RATES OF PAY PRESCRIBED IN THEIR APPOINTMENTS REGARDLESS OF THE NUMBER OF HOURS OF WORK PERFORMED.

B-79779, NOVEMBER 26, 1948, 28 COMP. GEN. 328

"WHEN ACTUALLY EMPLOYED" EMPLOYEES APPOINTED FOR INTERMITTENT SERVICE - ENTITLEMENT TO OVERTIME COMPENSATION "WHEN ACTUALLY EMPLOYED" EMPLOYEES WHO ARE APPOINTED FOR INTERMITTENT SERVICE AND FOR WHOM AN ADMINISTRATIVE WORKWEEK OF 40 HOURS HAS BEEN ESTABLISHED MAY BE REGARDED AS "FULL-TIME" EMPLOYEES WITHIN THE MEANING OF THE OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 SO AS TO BE ENTITLED TO THE OVERTIME PAY PRESCRIBED THEREIN IN ADDITION TO THAT ALLOWED UNDER THEIR CONTRACTS OF EMPLOYMENT FOR HOURS WORKED IN EXCESS OF THE BASIC ADMINISTRATIVE WORKWEEK. DECISIONS INCONSISTENT HEREWITH NO LONGER WILL BE FOLLOWED. COMP. GEN. 776, DISTINGUISHED. WHERE NO ADMINISTRATIVE WORKWEEK OF 40 HOURS HAS BEEN ESTABLISHED FOR "WHEN ACTUALLY EMPLOYED" EMPLOYEES APPOINTED FOR INTERMITTENT SERVICE, SUCH EMPLOYEES MAY NOT BE REGARDED AS "FULL-TIME" EMPLOYEES WITHIN THE MEANING OF THE OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND, THEREFORE, ARE LIMITED TO THE RATES OF PAY PRESCRIBED IN THEIR APPOINTMENTS REGARDLESS OF THE NUMBER OF HOURS OF WORK PERFORMED. WHERE THE CONTRACT OF EMPLOYMENT OF A "WHEN ACTUALLY EMPLOYED" EMPLOYEE FOR WHOM AN ADMINISTRATIVE WORKWEEK OF 40 HOURS HAS BEEN ESTABLISHED FIXES A RATE OF PAY PER HOUR OR PER DAY WITH A LIMITATION UPON THE AGGREGATE AMOUNT THAT MAY BE EARNED IN ANY ONE YEAR, THE HOURLY OR DAILY RATE SHOULD BE USED IN ASCERTAINING THE CONSTRUCTIVE PER ANNUM RATE FOR OVERTIME COMPENSATION PURPOSES UNDER THE PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, THE YEARLY LIMITATION MERELY RESTRICTING THE AMOUNT OF COMPENSATION--- BASIC AND OVERTIME--- WHICH MAY BE RECEIVED. DECISIONS INCONSISTENT HEREWITH NO LONGER WILL BE FOLLOWED.

COMPTROLLER GENERAL WARREN TO J. FOURNIER, DEPARTMENT OF AGRICULTURE, NOVEMBER 26, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 19, 1948, REQUESTING DECISION AS TO THE PROPRIETY OF THE PAYMENT OF OVERTIME COMPENSATION ON THE VOUCHER THEREWITH TRANSMITTED TO CERTAIN FIELD EMPLOYEES OF THE SOIL CONSERVATION SERVICE AT THE RATE OF ONE AND ONE-HALF TIMES THEIR BASIC RATES OF COMPENSATION FOR WORK IN EXCESS OF 40 HOURS FOR THE ADMINISTRATIVE RATES OF COMPENSATION FOR WORK IN EXCESS OF 40 HOURS FOR THE ADMINISTRATIVE WORKWEEK JULY 25 THROUGH AUGUST 7, 1948.

THE INFORMATION FURNISHED WITH YOUR LETTER DISCLOSES THE EMPLOYEES INVOLVED WERE EMPLOYED ON A ,WHEN ACTUALLY EMPLOYED" BASIS, AS UNCLASSIFIED LABORERS, AT HOURLY RATES OF PAY, AND THAT THEY WERE APPOINTED FOR "INTERMITTENT" SERVICE. ALSO, IT IS DISCLOSED THAT THE LETTER OF APPOINTMENT FOR ONE OF THE SAID EMPLOYEES (APPOINTED FOR ONE MONTH) LIMITS THE WAGES PAYABLE THEREUNDER TO "NOT TO EXCEED $720 IN SERVICE YEAR.'

YOUR DOUBT IN THE MATTER ARISES BY VIRTUE OF THE DECISION OF THIS OFFICE DATED DECEMBER 21, 1945, 25 COMP. GEN. 464, WHEREIN IT WAS HELD, IN EFFECT, THAT CONSULTANTS EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS FOR INTERMITTENT SERVICE ARE ENTITLED AND LIMITED TO THE OVERTIME COMPENSATION COMPUTED IN ACCORDANCE WITN SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, FOR WORK IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK. ALSO, IT WAS HELD IN THAT DECISION THAT 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 IS TO E CONSIDERED AS THE BASIC ANNUAL 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, 59 STAT. 304, FOR THE PURPOSE OF COMPUTING OVERTIME COMPENSATION FOR SUCH EMPLOYEE UNDER SECTION 201 OF THAT ACT. HOWEVER, AS POINTED OUT IN YOUR LETTER, IN DECISION OF JUNE 24, 1948, B- 77331, 27 COMP. GEN. 776, IT WAS HELD THAT EXPERTS AND CONSULTANTS APPOINTED PURSUANT TO THE PROVISIONS OF SECTION 15 OF PUBLIC LAW 600, 60 STAT. 810, FOR TEMPORARY OR INTERMITTENT SERVICES ARE NOT SUBJECT TO THE OVERTIME PROVISIONS OF THE SAID SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. BUT, RATHER, SUCH EXPERTS OR CONSULTANTS IF EMPLOYED ON A PER DIEM BASIS ARE ENTITLED, FOR EACH DAY OF SERVICE, TO THE PER DIEM RATE PRESCRIBED IN THEIR CONTRACTS OF EMPLOYMENT REGARDLESS OF THE TOTAL NUMBER OF HOURS WORKED OR THEIR DAILY RATE OF COMPENSATION.

THE HOLDING IN THE SAID DECISION OF JUNE 24, 1948, WAS PREDICATED UPON THE BASIS THAT THE OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 ARE APPLICABLE ONLY TO "FULL TIME" OFFICERS AND EMPLOYEES, AND THAT SECTION 15 OF PUBLIC LAW 600 CONTEMPLATES THE EMPLOYMENT OF EXPERTS AND CONSULTANTS UPON OTHER THAN A "FULL-TIME" BASIS, AS THAT TERM IS USED IN THE SAID SECTION 201 OF THE 1945 PAY STATUTE. THAT IS TO SAY, IT WAS HELD THAT EXPERTS OR CONSULTANTS APPOINTED PURSUANT TO THE PROVISIONS OF SECTION 15 FOR TEMPORARY OR INTERMITTENT SERVICES ARE NOT "FULL-TIME OFFICERS OR EMPLOYEES" SUCH AS CONTEMPLATED BY SECTION 201. HOWEVER, IT IS EVIDENT THAT SUCH CONCLUSION IS NOT NECESSARILY DETERMINATIVE OF THE STATUS, FOR OVERTIME COMPENSATION PURPOSES, OF EMPLOYEES, GENERALLY, EMPLOYED ON AN "INTERMITTENT" BASIS. IN THAT CONNECTION, IT WAS STATED IN DECISION OF APRIL 20, 1948, 27 COMP. GEN. 651, 653, AS OLLOWS:

THE TERM,"INTERMITTENT," HAS BEEN THE SUBJECT OF VARIOUS INTERPRETATIONS BOTH BY THE COURTS AND THE ACCOUNTING OFFICERS OF THE GOVERNMENT. IN EACH CASE, THE INTERPRETATION THERE GIVEN HAS BEEN BASED UPON THE CONTEXT OF THE LAW OR REGULATION BEING CONSTRUED, TOGETHER WITH A CONSIDERATION OF THE PARTICULAR FACTS AND CIRCUMSTANCES INVOLVED. FOR THAT REASON, NO GENERAL DEFINITION OF THE WORD, "INTERMITTENT," WHICH WOULD BE APPLICABLE TO ALL CASES HAS BEEN ATTEMPTED BY THE ACCOUNTING OFFICERS, AND NEITHER WOULD IT APPEAR THAT SUCH AN ATTEMPT IS FEASIBLE. * * *

IN THE LIGHT OF THE FOREGOING, IT WILL BE SEEN THAT THE MERE RECITATION IN THE APPOINTMENTS OF THE EMPLOYEES HERE INVOLVED THAT THE SERVICES TO BE REQUIRED ARE "INTERMITTENT" IS NOT DETERMINATIVE OF THEIR STATUS AS "FULL- TIME" EMPLOYEES WITHIN THE MEANING OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. RATHER, SUCH STATUS IS DEPENDENT UPON THE ACTUAL CONDITIONS AND CIRCUMSTANCES UNDER WHICH THEY RENDER SERVICE. IF, AS A MATTER OF FACT, AN ADMINISTRATIVE WORK-WEEK OF 40 HOURS HAS BEEN ESTABLISHED FOR SUCH EMPLOYEES, IT REASONABLY APPEARS THAT THEY ARE ,FULL- TIME" EMPLOYEES AND, THEREFORE, WORK IN EXCESS OF SUCH ADMINISTRATIVELY PRESCRIBED WORKWEEK IF OFFICIALLY ORDERED OR APPROVED IS COMPENSABLE AT THE OVERTIME RATES PRESCRIBED BY SECTION 201 OF THE 1945 PAY STATUTE. BUT, IF NO SUCH WORKWEEK IS ESTABLISHED ADMINISTRATIVELY, THE MERE FACT THAT CIRCUMSTANCES MAY REQUIRE WORK IN EXCESS OF 40 HOURS IN A PARTICULAR CALENDAR WEEK WOULD NOT CONSTITUTE THEM "FULL-TIME" EMPLOYEES. IN SUCH A SITUATION THERE IS FOR APPLICATION THE REASONING EMPLOYED IN DECISION OF JUNE 24, 1948, SUPRA, TO THE EFFECT THAT EMPLOYEES HAVING NO ADMINISTRATIVELY PRESCRIBED WORKWEEK OF 40 HOURS CANNOT BE CONSIDERED "FULL-TIME" EMPLOYEES. HENCE, FOR WORK PERFORMED--- REGARDLESS OF THE NUMBER OF HOURS THEREOF--- SUCH EMPLOYEES ARE ENTITLED AND LIMITED TO THE RATES PRESCRIBED IN THEIR APPOINTMENTS.

A CAREFUL EXAMINATION OF THE METHOD PRESCRIBED IN THE SAID DECISION OF DECEMBER 21, 1945, RESPECTING THE COMPUTATION OF OVERTIME COMPENSATION OF "WHEN ACTUALLY EMPLOYED" EMPLOYEES WHOSE MAXIMUM AMOUNT OF COMPENSATION TO BE EARNED IN ANY ONE YEAR IS FIXED IN THEIR APPOINTMENTS, AS IN THE CASE OF ONE OF THE EMPLOYEES HERE INVOLVED, LEADS TO THE CONCLUSION THAT SUCH METHOD PRODUCES INEQUITABLE AND HARSH RESULTS NOT NECESSARILY DICTATED BY THE OVERTIME PAY PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. THAT SECTION AUTHORIZES OVERTIME COMPENSATION AT ONE AND ONE -HALF TIMES THE BASIC HOURLY RATE OF COMPENSATION FOR EMPLOYEES WHOSE BASIC COMPENSATION IS AT A RATE LESS THAN $2,980 PER ANNUM AND UPON A PRO RATA BASIS FOR EMPLOYEES WHOSE BASIC COMPENSATION IS AT A RATE OF $2,980 PER ANNUM, OR MORE. WHERE AN EMPLOYEE HAS A STATED RATE OF PAY PER HOUR OR PER DAY, WITH A FIXED LIMITATION UPON THE AMOUNT HE MAY EARN IN ANY ONE YEAR, HIS BASIC COMPENSATION REASONABLY APPEARS TO BE THAT STATED IN HIS APPOINTMENT FOR EACH HOUR OR EACH DAY, AS THE CASE MAY BE. THE YEARLY LIMITATION OPERATES MERELY TO RESTRICT THE AMOUNT OF COMPENSATION--- BASIC AND OVERTIME--- WHICH HE MAY RECEIVE. ACCORDINGLY, THE PRESCRIBED HOURLY OR DAILY RATE SHOULD BE THE RATE USED IN ASCERTAINING HIS PER ANNUM RATE FOR OVERTIME PURPOSES, AND IF SUCH PER ANNUM RATE BE BELOW $2,980, HE IS ENTITLED TO OVERTIME AT THE RATE OF ONE AND ONE HALF TIMES HIS PRESCRIBED HOURLY RATE OR DAILY RATE REDUCED TO AN HOURLY RATE. IF THE CONSTRUCTIVE PER ANNUM RATE EQUALS OR EXCEEDS $2,980, THE EMPLOYEE IS ENTITLED TO A PRO RATA OVERTIME COMPENSATION THEREON IN ACCORDANCE WITH THE FORMULA PRESCRIBED IN SECTION 301 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945.

THE CONCLUSIONS REACHED HEREIN REPRESENT A DEPARTURE FROM STATEMENTS MADE IN PRIOR DECISIONS OF THIS OFFICE AND SUCH DECISIONS, TO THE EXTENT THAT THEY ARE INCONSISTENT WITH THE STATEMENTS MADE HEREIN, NO LONGER WILL BE FOLLOWED. HOWEVER, NOTHING HEREIN SHALL BE CONSTRUED AS DISTURBING ACTIONS HERETOFORE TAKEN IN ACCORDANCE WITH SUCH PRIOR DECISIONS.

THE VOUCHER, WHICH TOGETHER WITH SUPPORTING PAPERS IS RETURNED HEREWITH, MAY CERTIFIED FOR PAYMENT ONLY IN ACCORDANCE WITH THE FOREGOING.