B-94091, MAY 25, 1950, 29 COMP. GEN. 482

B-94091: May 25, 1950

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHOSE REGULAR TOUR OF DUTY IS MONDAY THROUGH FRIDAY AND WHO IS PROMOTED ON SUNDAY. IS ENTITLED TO HAVE HIS OVERTIME COMPUTED AT 1 1/2 TIMES THE RATE OF COMPENSATION RECEIVED FOR HIS REGULAR EMPLOYMENT. EVEN THOUGH THE RATE OF PAY FOR THE WORK PERFORMED DURING SUCH OVERTIME PERIOD WAS HIGHER THAN THAT OF HIS REGULAR EMPLOYMENT AND THE WORK WAS PERFORMED OUTSIDE HIS REGULAR TOUR OF DUTY. WHOSE REGULAR TOUR OF DUTY IS MONDAY THROUGH FRIDAY ON A NIGHT DIFFERENTIAL SHIFT AND WHO WORKS OVERTIME ON SUNDAY AND RECEIVES A PROMOTION TO LINEMAN ON THE FOLLOWING THURSDAY. IS ENTITLED TO HAVE HIS OVERTIME COMPUTED AT 1 1/2 TIMES THE RATE OF COMPENSATION RECEIVED FOR HIS REGULAR EMPLOYMENT PLUS THE NIGHT DIFFERENTIAL.

B-94091, MAY 25, 1950, 29 COMP. GEN. 482

COMPENSATION - OVERTIME - RATES UPON TEMPORARY PROMOTION AND REASSIGNMENT AN EMPLOYEE SUBJECT TO THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, WHOSE REGULAR TOUR OF DUTY IS MONDAY THROUGH FRIDAY AND WHO IS PROMOTED ON SUNDAY--- AN OVERTIME DAY--- FOR TWO DAYS ONLY, IS ENTITLED TO HAVE HIS OVERTIME COMPUTED AT 1 1/2 TIMES THE RATE OF COMPENSATION RECEIVED FOR HIS REGULAR EMPLOYMENT, EVEN THOUGH THE RATE OF PAY FOR THE WORK PERFORMED DURING SUCH OVERTIME PERIOD WAS HIGHER THAN THAT OF HIS REGULAR EMPLOYMENT AND THE WORK WAS PERFORMED OUTSIDE HIS REGULAR TOUR OF DUTY. A LINEMAN HELPER SUBJECT TO THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, WHOSE REGULAR TOUR OF DUTY IS MONDAY THROUGH FRIDAY ON A NIGHT DIFFERENTIAL SHIFT AND WHO WORKS OVERTIME ON SUNDAY AND RECEIVES A PROMOTION TO LINEMAN ON THE FOLLOWING THURSDAY, IS ENTITLED TO HAVE HIS OVERTIME COMPUTED AT 1 1/2 TIMES THE RATE OF COMPENSATION RECEIVED FOR HIS REGULAR EMPLOYMENT PLUS THE NIGHT DIFFERENTIAL, REGARDLESS OF THE DAY ON WHICH THE OVERTIME WAS PERFORMED OR WHETHER NIGHT DIFFERENTIAL WAS INVOLVED. AN EMPLOYEE WHOSE REGULAR POSITION IS ON A CLASSIFIED PER ANNUM BASIS AND WHO RECEIVED A PROMOTION--- NOT TO EXCEED FOUR DAYS--- TO A POSITION THE COMPENSATION FOR WHICH IS FIXED BY A WAGE BOARD IS ENTITLED TO HAVE HIS RATE OF PAY FOR OVERTIME PERFORMED IN THE TEMPORARY POSITION COMPUTED IN ACCORDANCE WITH SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, WHICH PROVIDES FOR PAYMENT FOR OVERTIME AT 1 1/2 TIMES THE BASIC RATE FOR EMPLOYEES WHOSE BASIC COMPENSATION IS LESS THAN $2,980 AND AT A REDUCING RATIO AS THE SALARY RATE INCREASES, REGARDLESS OF THE DAYS OF THE WEEK ON WHICH THE OVERTIME IS PERFORMED OR WHEN THE CHANGE IN RATES IS MADE EFFECTIVE. A WAGE BOARD EMPLOYEE WHOSE REGULAR TOUR OF DUTY IS MONDAY THROUGH FRIDAY AND WHO RECEIVES A PROMOTION OR DEMOTION EFFECTIVE SATURDAY--- AN OVERTIME DAY--- IS ENTITLED TO HAVE HIS OVERTIME COMPUTED AT 1 1/2 TIMES THE RATE OF COMPENSATION RECEIVED FOR HIS REGULAR EMPLOYMENT, REGARDLESS OF THE DAY OF THE WEEK ON WHICH THE OVERTIME IS PERFORMED OR WHEN THE CHANGE IN RATES IS MADE EFFECTIVE.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE INTERIOR, MAY 25, 1950:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 28, 1950, REQUESTING DECISION UPON THE FOLLOWING QUESTIONS:

1. IF A RIGGER, $2.30 P.H., WHOSE REGULAR TOUR OF DUTY IS MONDAY THROUGH FRIDAY, IS PROMOTED TO DIVER, $5.85 P.H., EFFECTIVE SUNDAY (AN OVERTIME DAY, ALSO FIRST DAY OF ADMINISTRATIVE WORKWEEK) FOR TWO DAYS ONLY, WOULD HIS OVERTIME RATE BE COMPUTED AT 1 1/2 TIMES $5.85, OR 1 1/2 TIMES $2.30, OR SHOULD IT BE COMPUTED AT 1 1/2 TIMES THE AVERAGE HOURLY RATE FOR THE REGULAR WORKWEEK OF 40 HOURS?

2. WOULD YOUR ANSWER TO QUESTION (1) BE THE SAME IF THE OVERTIME DAY HAD BEEN SATURDAY OR THE LAST DAY OF THE ADMINISTRATIVE WORKWEEK?

3. IF A LINEMAN HELPER, $1.80 P.H., WHOSE REGULAR TOUR OF DUTY IS MONDAY THROUGH FRIDAY ON A NIGHT DIFFERENTIAL SHIFT, WORKS OVERTIME ON SUNDAY AND RECEIVES A PROMOTION TO LINEMAN, $2.50 .H., ON THE FOLLOWING THURSDAY, WOULD HIS OVERTIME PAY BE 1 1/2 TIMES $1.80 OR 1 1/2 TIMES $2.50 OR 1 1/2 TIMES THE AVERAGE HOURLY RATE FOR THE REGULAR 40-HOUR WORKWEEK INCLUDING THE NIGHT DIFFERENTIAL PAY?

4. WOULD YOUR ANSWER TO (3) BE THE SAME IF THE OVERTIME WORK WAS PERFORMED ON SATURDAY FOLLOWING THE PROMOTION?

5. WOULD YOUR ANSWER TO (3) AND (4) BE THE SAME IF THERE WERE NO NIGHT DIFFERENTIAL PAY INVOLVED?

6. IN CASE A PER ANNUM EMPLOYEE, INSPECTOR, GS-6, $4,200 PER ANNUM, WHOSE REGULAR TOUR OF DUTY IS MONDAY THROUGH FRIDAY, IS PROMOTED TO A BOILERMAKER WELDER, $2.35 P.H., ON FRIDAY FOR A PERIOD NOT TO EXCEED 4 DAYS AND WHO WORKS OVERTIME ON THE FOLLOWING SATURDAY, WOULD HIS OVERTIME PAY BE COMPUTED AT 1 1/2 TIMES THE $2.35 RATE OR 1 1/2 TIMES THE AVERAGE HOURLY RATE FOR THE REGULAR 40-HOUR WORKWEEK?

7. WOULD YOUR ANSWER TO (6) BE THE SAME IF THE OVERTIME WORK WAS PERFORMED ON SUNDAY FOLLOWING THE PROMOTION?

8. HOW SHOULD THE OVERTIME PAY FOR THE PER ANNUM EMPLOYEE IN QUESTION (6) BE COMPUTED IF THE PROMOTION HAD BEEN EFFECTIVE ON SATURDAY (THE OVERTIME DAY/?

9. HOW SHOULD THE OVERTIME PAY BE COMPUTED ON A WAGE BOARD EMPLOYEE WHO WORKS MONDAY THROUGH FRIDAY AND RECEIVES A PROMOTION OR DEMOTION EFFECTIVE SATURDAY (AN OVERTIME DAY/?

IT IS STATED BY YOU THAT AT VARIOUS TIMES THE CONSTRUCTION PROGRAM ON THE COLUMBIA BASIN PROJECT HAS MADE IT NECESSARY TO MAKE PROMOTIONS AND REASSIGNMENTS OF A TEMPORARY NATURE; THAT IT HAS BEEN THE PRACTICE TO COMPUTE THE OVERTIME AT TIME AND ONE-HALF OF THE AVERAGE DAILY RATE FOR THE REGULAR WORKWEEK OF 40 HOURS, INCLUDING BOTH DAY AND NIGHT RATES IF DIFFERENT RATES ARE INVOLVED.

SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, PROVIDES:

SEC. 23. 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 40 PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE HALF.

A SIMILAR MATTER WAS CONSIDERED IN DECISION OF JULY 28, 1945, TO THE SECRETARY OF AGRICULTURE, 25 COMP. GEN. 121, WHEREIN THERE WERE STATED, AT PAGES 135 AND 136, QUESTION AND ANSWER 17, AS FOLLOWS:

17. IS THE BASIC WEEK OR THE OVERTIME PAY FOR A REGULAR POSITION AFFECTED BY ASSIGNMENT TO OTHER WORK? FOR EXAMPLE, A LABORER ASSIGNED TO ROAD OR TRAIL WORK MAY BE HIRED AT $6.00 A DAY WITH THE UNDERSTANDING THAT IF A FIRE BREAKS OUT, HE WILL BE ASSIGNED TO FIREFIGHTING DURING WHICH TIME HE WILL BE PAID AT THE CURRENT FIRE RATE APPLICABLE TO THE POSITION FILLED. FIRE FIGHTERS ARE PAID AT RATES ESTABLISHED BY WAGE BOARDS BUT SUCH RATES DO NOT PROVIDE FOR OVERTIME COMPENSATION INASMUCH AS FIRE FIGHTERS ARE NOT CONSIDERED MEMBERS OF THE "TRADES AND OCCUPATIONS" REFERRED TO IN THE ACT OF MARCH 28, 1934. WILL THIS EMPLOYEE BE ENTITLED TO OVERTIME AS A LABORER IF HE WORKS EIGHT HOURS A DAY MONDAY THROUGH THURSDAY AND FOUR HOURS ON SATURDAY AS A LABORER, AND 15 HOURS ON FRIDAY AS A FIRE FIGHTER AT THE FIRST RATE? IN THE LABORER POSITION FOR WHICH EMPLOYED, HE WILL HAVE WORKED ONLY 36 HOURS, BUT A TOTAL OF 51 HOURS ON THE TWO JOBS.

IF, AS IS UNDERSTOOD, THE APPOINTMENT OR CONTRACT OF EMPLOYMENT PROVIDED FOR ASSIGNMENT OF THIS EMPLOYEE TO FIREFIGHTING WHEN THE NEED ARISES AND FOR PAYMENT THEREFOR AT A DIFFERENT RATE, HE WOULD BE ENTITLED TO COUNT THE SERVICE AS FIRE FIGHTER FOR EIGHT HOURS ON FRIDAY TO COMPLETE HIS BASIC WORKWEEK OF 40 HOURS. HENCE, HE WOULD BE ENTITLED TO COMPENSATION AT STRAIGHT TIME FOR 32 HOURS ( MONDAY THROUGH THURSDAY) AS LABORER, PLUS FOUR HOURS OVERTIME COMPENSATION FOR SATURDAY AS LABORER, PLUS 15 HOURS STRAIGHT TIME AS FIRE FIGHTER FOR FRIDAY.

SEE, ALSO, QUESTION AND ANSWER 8 IN DECISION OF OCTOBER 2, 1945, B 52095, 25 COMP. GEN. 317.

IN B-23395, JANUARY 16, 1946, THERE WAS CONSIDERED THE QUESTION OF OVERTIME PAYABLE TO AN EMPLOYEE WORKING REGULARLY AS LOCKMASTER CPC-7 AT $2,430 PER ANNUM WHOSE BASIC WORKWEEK OF 40 HOURS CONSISTED OF 8 HOURS DAILY, SUNDAY THROUGH THURSDAY, BUT WHO PERFORMED DUTY AS A DIVER AT $20 PER DAY IN ONE INSTANCE ON FRIDAY AND SATURDAY AND IN ANOTHER INSTANCE ON MONDAY AND TUESDAY AND IN THAT WEEK WORKED AT HIS REGULAR POSITION FRIDAY AND SATURDAY. IN THAT CASE IT WAS HELD WITH RESPECT TO BOTH CIRCUMSTANCES THAT:

AS HE WORKED A TOTAL OF 56 HOURS HE IS ENTITLED (1) TO OVERTIME COMPENSATION FOR 16 HOURS OF THAT TIME, (2) COMPENSATION AS DIVER FOR 16 HOURS, AND (3) PAY AT THE BASIC RATE OF COMPENSATION FOR THE REMAINING 24 HOURS. THE DAYS OF THE WEEK UPON WHICH EMPLOYED AS A DIVER ARE NOT MATERIAL AS HIS COMPENSATION IS FIXED AT A PER DIEM RATE FOR SUCH DUTY AND NO OVERTIME (EXCEEDING 40 HOURS A WEEK) AS DIVER IS INVOLVED.

APPLYING THE FOREGOING TO THE EXAMPLES PRESENTED BY YOU IN QUESTIONS NOS. 1 AND 2, THE EMPLOYEE WORKED A TOTAL OF 48 HOURS AND IS ENTITLED TO 8 HOURS' OVERTIME COMPUTED AT 1 1/2 TIMES THE RATE OF $2.30 PER HOUR, THE RATE FOR HIS REGULAR EMPLOYMENT, 16 HOURS AT $5.85 PER HOUR, AND PAYMENT RATE FOR HIS REGULAR EMPLOYMENT, 16 HOURS AT $5.85 PER HOUR, AND PAY FOR THE REMAINING 24 HOURS AT $2.30 PER HOUR. IT IS NOT CONSIDERED MATERIAL UPON WHAT DAYS OF THE WEEK THE TEMPORARY DUTIES AS DIVER WERE PERFORMED.

IN ANSWER TO QUESTIONS 3, 4, AND 5, YOU ARE ADVISED THAT THE EMPLOYEE WOULD BE ENTITLED TO 8 HOURS' OVERTIME AT 1 1/2 TIMES THE RATE OF $1.80 PER HOUR PLUS THE NIGHT DIFFERENTIAL, 16 HOURS AS LINEMAN AT $2.50 PER HOUR, AND PAY FOR THE REMAINING 24 HOURS AT HIS REGULAR RATE OF $1.80 PER HOUR PLUS NIGHT DIFFERENTIAL. THE DAY UPON WHICH OVERTIME WAS PERFORMED IS IMMATERIAL AND THE DIVISION OF THE TIME FOR PAY PURPOSES WOULD BE THE SAME HAD NO NIGHT DIFFERENTIAL BEEN INVOLVED.

WITH RESPECT TO QUESTIONS 6, 7, AND 8, IT MAY BE STATED THAT, AS THE EMPLOYEE'S REGULAR POSITION WAS ON A CLASSIFIED PER ANNUM BASIS, HIS RIGHT TO OVERTIME IS GOVERNED BY SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, WHICH PROVIDES FOR PAYMENT FOR OVERTIME AT 1 1/2 TIMES THE BASIC RATE FOR EMPLOYEES WHOSE BASIC COMPENSATION IS LESS THAN $2,980 AND AT A REDUCING RATIO AS THE SALARY RATE INCREASES. ACCORDINGLY, THIS PER ANNUM EMPLOYEE WOULD BE ENTITLED TO PAY AT $2.35 PER HOUR FOR 16 HOURS FRIDAY AND SATURDAY, 8 HOURS' OVERTIME AT $4,200 PER ANNUM IN ACCORDANCE WITH THE PROVISIONS OF SECTION 201 OF THE 1945 STATUTE, SUPRA, AND STRAIGHT TIME AT $4,200 PER ANNUM FOR THE REMAINING 24 HOURS. AS STATED IN ANSWER TO THE PRIOR QUESTIONS, IT WOULD NOT MAKE ANY DIFFERENCE ON WHAT DAYS OF THE WEEK THE OVERTIME IS PERFORMED OR WHEN THE CHANGE IN RATES IS MADE EFFECTIVE.

THE SAME METHOD OF COMPUTATION SET OUT ABOVE WOULD BE FOR APPLICATION IN ANSWER TO QUESTION 9; THAT IS, THE EMPLOYEE WOULD BE ENTITLED TO STRAIGHT TIME AT THE DEMOTED OR PROMOTED RATE FOR 8 HOURS WORKED ON SATURDAY, OVERTIME FOR 8 HOURS AT 1 1/2 TIMES HIS REGULAR RATE, AND STRAIGHT TIME AT THE REGULAR RATE FOR THE REMAINING 32 HOURS.