B-88962, DECEMBER 7, 1949, 29 COMP. GEN. 271

B-88962, DECEMBER 7, 1949, 29 COMP. GEN. 271

OVERTIME COMPENSATION - EMPLOYEES IN CLERICAL-MECHANICAL SERVICE OF BUREAU OF ENGRAVING AND PRINTING - NIGHT WORK THE NIGHT DIFFERENTIAL AUTHORIZED BY THE ACT OF JULY 1, 1944, TO BE PAID EMPLOYEES IN THE CLERICAL-MECHANICAL SERVICE OF THE BUREAU OF ENGRAVING AND PRINTING IN ADDITION TO THE COMPENSATION FIXED FOR SUCH EMPLOYEES BY THE CLASSIFICATION ACTS IS NOT TO BE REGARDED AS PART OF THEIR "BASIC COMPENSATION" FOR PURPOSES OF COMPUTING THE OVERTIME COMPENSATION PAYABLE UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR TIME WORKED IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, DECEMBER 7, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 24, 1949, REQUESTING A DECISION AS TO WHETHER THE METHOD OF COMPENSATING EMPLOYEES IN THE CLERICAL-MECHANICAL SERVICE OF THE BUREAU OF ENGRAVING AND PRINTING FOR TIME WORKED IN EXCESS OF 40 HOURS PER WEEK IS CORRECT.

IT IS STATED IN THE SAID LETTER, AND IN YOUR SUPPLEMENTAL LETTER OF NOVEMBER 4, THAT SINCE THE ENACTMENT OF THE ACT OF JULY 1, 1944, 58 STAT. 648, IT HAS BEEN THE ADMINISTRATIVE PRACTICE TO EXCLUDE THE NIGHT DIFFERENTIAL AUTHORIZED BY SAID ACT IN THE COMPUTATION OF OVERTIME PAY UNDER STATUTES IN EFFECT PRIOR TO THE PASSAGE OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, AS WELL AS IN COMPUTATIONS OF OVERTIME PAY UNDER THE LATTER ACT. IT IS UNDERSTOOD THAT THERE NOW ARE PENDING NUMEROUS CLAIMS COVERING ALLEGED UNDERPAYMENTS IN OVERTIME COMPENSATION UNDER THE SAID 1945 STATUTE, WHICH, IN EFFECT, QUESTION THE VALIDITY OF THE ADMINISTRATIVE PRACTICE MENTIONED ABOVE, AND, FOR THAT REASON, AN AUTHORITATIVE DECISION IN THE MATTER IS REQUESTED AT THIS TIME.

RATES OF COMPENSATION FOR EMPLOYEES IN THE CLERICAL-MECHANICAL SERVICE OF THE BUREAU OF ENGRAVING AND PRINTING WERE PRESCRIBED BY THE CLASSIFICATION ACT OF 1923 AND NOW ARE CONTINUED UNDER SECTION 1105 (C) OF THE CLASSIFICATION ACT OF 1949, PUBLIC LAW 429, APPROVED OCTOBER 28, 1949, 63 STAT. 972, UNTIL SUCH TIME AS RATES OF COMPENSATION SHALL HAVE BEEN PRESCRIBED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 202 (7) OF THAT ACT, 63 STAT. 955. OVERTIME COMPENSATION FOR SUCH EMPLOYEES IS GOVERNED BY SECTION 201 OF THE SAID FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

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 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 * * *. (ITALICS SUPPLIED.)

FROM THE ITALICIZED PORTION OF THE QUOTED SECTION, IT IS CLEAR THAT THE OVERTIME PAY THEREIN AUTHORIZED IS REQUIRED TO BE COMPUTED UPON "BASIC COMPENSATION.' HENCE, IN THE PRESENT MATTER, THERE IS FOR DETERMINATION WHETHER THE NIGHT-DIFFERENTIAL PAY AUTHORIZED FOR CLERICAL-MECHANICAL EMPLOYEES BY THE 1944 STATUTE CONSTITUTES "BASIC COMPENSATION" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 201 QUOTED ABOVE.

MANIFESTLY, THE RATES OF PAY PRESCRIBED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, ARE RATES OF "BASIC COMPENSATION.' CONSEQUENTLY, SUCH RATES ARE THE RATES TO BE USED IN COMPUTING OVERTIME COMPENSATION UNDER SECTION 201 OF THE 1945 STATUTE UNLESS, IN THE PRESENT MATTER, IT BE CONSIDERED THAT THE CONGRESS, IN ENACTING THE SAID NIGHT DIFFERENTIAL PAY STATUTE OF JULY 1, 1944, SO AMENDED THE CLASSIFICATION ACT OF 1923 AS TO CHANGE THE RATES OF BASIC COMPENSATION THEREIN PROVIDED FOR EMPLOYEES IN THE CLERICAL-MECHANICAL SERVICE WHO ARE ASSIGNED TO PERFORM THEIR WORK AT NIGHT. THE 1944 STATUTE, 58 STAT. 648, READS AS FOLLOWS:

THAT ALL EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING WHO HOLD POSITIONS IN THE CLERICAL-MECHANICAL SERVICE, AND WHO ARE ASSIGNED TO PERFORM THEIR WORK AT NIGHT, SHALL BE PAID IN RESPECT OF THEIR REGULAR WORKWEEK OF FORTY HOURS AND EXCEPT WHEN IN LEAVE STATUS, A RATE OF COMPENSATION WHICH IS 15 PERCENTUM IN EXCESS OF THE DAY RATE FOR THE SAME WORK: PROVIDED, THAT NIGHT WORK SHALL BE CONSTRUED TO MEAN ALL WORK ON ANY ESTABLISHED SHIFT OR TOUR OF DUTY, HALF OR MORE OF WHICH OCCURS AFTER 6 O- CLOCK POST MERIDIAN OR BEFORE 6 O-CLOCK ANTEMERIDIAN. (ITALICS SUPPLIED.)

BY SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298, AUTHORIZING NIGHT-PAY DIFFERENTIAL FOR CLASSIFICATION ACT EMPLOYEES, GENERALLY, IT IS SPECIFICALLY PROVIDED THAT NOTHING THEREIN SHALL OPERATE TO MODIFY THE PROVISIONS OF THE QUOTED 1944 STATUTE.

IT IS TO BE NOTED THAT THE PROVISION IN THE QUOTED STATUTE THAT THE EMPLOYEES SPECIFIED SHALL BE PAID IN RESPECT OF THEIR REGULAR WORKWEEK OF FORTY HOURS "A RATE OF COMPENSATION WHICH IS 15 PERCENTUM IN EXCESS OF THE DAY RATE FOR THE SAME WORK" IS APPLICABLE ONLY TO TIME ACTUALLY WORKED AT NIGHT. THE LANGUAGE CONTAINED IN THE ITALICIZED PORTION OF THE STATUTE EXPRESSLY PROHIBITS THE PAYMENT OF THE 15 PERCENTUM DIFFERENTIAL FOR ALL PERIODS THAT EMPLOYEES ARE IN A LEAVE STATUS. CONSEQUENTLY, WHEN AN EMPLOYEE IS IN A LEAVE STATUS FOR A PORTION OF HIS WORKWEEK, HIS TOTAL COMPENSATION IS THE SUM OF TWO SEPARATE COMPUTATIONS--- ONE UPON THE CLASSIFICATION ACT RATES ONLY, AND THE OTHER UPON THE CLASSIFICATION ACT RATES PLUS THE PRESCRIBED PERCENTAGE DIFFERENTIAL. IT CONSISTENTLY HAS BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT A LEAVE-WITH- PAY STATUS IS SYNONYMOUS WITH A DUTY STATUS AND THAT COMPENSATION PAYABLE FOR PERIODS OF LEAVE IS THE SAME AS THAT PAYABLE IN A DUTY STATUS. THAT PRINCIPLE LONG HAS BEEN RECOGNIZED BY THE CONGRESS. HENCE, IN THE ABSENCE OF A COMPELLING INDICATION OTHERWISE, IT IS DIFFICULT TO ASCRIBE TO THE CONGRESS, IN ENACTING THE SAID 1944 STATUTE, AN INTENT TO CONSTITUTE THE NIGHT DIFFERENTIAL PAY AS PART OF "BASIC" COMPENSATION WHILE, AT THE SAME TIME, SPECIFICALLY DENYING TO SUCH DIFFERENTIAL THE PRIME CHARACTERISTIC OF BASIC COMPENSATION, NAMELY, ITS INCLUSION IN COMPENSATION PAYABLE WHILE IN A LEAVE-WITH-PAY STATUS.

AS A FURTHER INDICATION NEGATIVING A CONGRESSIONAL INTENT THAT THE DIFFERENTIAL BE CONSIDERED ,BASIC" COMPENSATION IS THE FACT, AS DISCLOSED BY THE LEGISLATIVE HISTORY OF THE 1944 STATUTE, THAT THE SOLE REASON FOR THE ENACTMENT OF THAT ACT WAS TO PROVIDE EQUALITY IN PAY BETWEEN WAGE- BOARD EMPLOYEES OF THE BUREAU FOR WHOM A SIMILAR NIGHT DIFFERENTIAL WAS THEN IN EFFECT--- BUT WHICH, AT THAT TIME ADMINISTRATIVELY HAD NOT BEEN CONSIDERED AS FORMING A PART OF BASIC COMPENSATION--- AND THEIR CO-WORKERS IN THE CLERICAL-MECHANICAL SERVICE. THERE IS NO EVIDENCE THAT THE CONGRESS INTENDED TO GO ANY FURTHER THAN TO CORRECT THE THEN EXISTING INEQUITY.

FOR THE REASONS STATED ABOVE, YOU ARE ADVISED THAT THE ADMINISTRATIVE PRACTICE, AS SET OUT ABOVE, IS CORRECT.