B-31623, MARCH 30, 1943, 22 COMP. GEN. 926

B-31623, MARCH 30, 1943, 22 COMP. GEN. 926

OVERTIME COMPENSATION UNDER ACT OF DECEMBER 22, 1942 UNDER THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, AND EXECUTIVE ORDER NO. 9289 ISSUED IN CONNECTION THEREWITH, THE PRORATED OVERTIME COMPENSATION FOR ONE DAY FOR FULL TIME EMPLOYEES WHO REGULARLY WORK A 6-DAY, 48-HOUR WEEK AND WHO ARE PAID ON A PER DIEM BASIS FOR EVERY DAY IN THE YEAR EXCEPT SUNDAYS SHOULD BE COMPUTED BY MULTIPLYING THE BASIC DAILY RATE BY 313 (365 LESS 52 SUNDAYS) TO DETERMINE THE EQUIVALENT ANNUAL RATE, WHICH RATE SHOULD BE DIVIDED BY 360 TO ASCERTAIN THE DAILY RATE FOR OVERTIME PURPOSES, AND SUCH DAILY RATE SHOULD BE MULTIPLIED BY ONE AND ONE -HALF (THE OVERTIME RATE) AND THAT AMOUNT MULTIPLIED BY 52 (WEEKS IN A YEAR) TO DETERMINE THE PER ANNUM OVERTIME RATE, FROM WHICH THE DAILY RATE OF OVERTIME COMPENSATION IS OBTAINED BY DIVIDING THE SAID PER ANNUM OVERTIME RATE BY 313. 22 COMP. GEN. 868, AMPLIFIED. THE ACCEPTANCE BY AN EMPLOYEE OF A LOWER RATE OF COMPENSATION THAN THAT PROPERLY DUE UNDER THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, DOES NOT CONSTITUTE A WAIVER OF THE RIGHT TO THE STATUTORY INCREASE PROPERLY DUE. WHERE OVERTIME COMPENSATION HAS BEEN COMPUTED ON THE BASIS OF A FORMULA WHICH RESULTS IN EMPLOYEES RECEIVING AN AMOUNT LESS THAN THE STATUTORY INCREASE PROPERLY DUE UNDER THE ACT OF DECEMBER 22, 1942, THEIR COMPENSATION MAY BE RECOMPUTED ON THE BASIS OF THE CORRECT FORMULA AND, WITHOUT THE FILING OF A FORMAL CLAIM ON THEIR BEHALF, PAYMENT MADE TO THEM ON A SUPPLEMENTAL PAYROLL OF THE DIFFERENCE BETWEEN THE AMOUNT ACTUALLY RECEIVED AND THAT PROPERLY DUE. MECHANICS AND LABORERS WHO OTHERWISE COME WITHIN THE PURVIEW OF THE ACT OF DECEMBER 22, 1942, AUTHORIZING PAYMENT OF OVERTIME COMPENSATION FOR EMPLOYMENT IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK, AND WITH RESPECT TO WHOM THE 8-HOUR LAW OF MARCH 3, 1913, HAS NOT BEEN SUSPENDED, ARE NOT ENTITLED TO OVERTIME COMPENSATION UNDER THE SAID ACT OF DECEMBER 22, 1942, WHEN, DURING PERIODS OF "EXTRAORDINARY EMERGENCY" WITHIN THE MEANING OF THE 8-HOUR LAW, THEY ARE REQUIRED TO WORK IN EXCESS OF 8 HOURS ON A PARTICULAR DAY BUT NOT IN EXCESS OF 40 HOURS DURING THE WEEK. OVERTIME COMPENSATION UNDER THE ACT OF DECEMBER 22, 1942, AND EXECUTIVE ORDER NO. 9289 ISSUED IN CONNECTION THEREWITH, FOR EXTRA OVERTIME--- THAT IS, OVERTIME ORDERED AND APPROVED IN EXCESS OF THE REGULAR OVERTIME ON A 48-HOUR WEEK BASIS--- PERFORMED BY FULL TIME PER DIEM EMPLOYEES WHO REGULARLY WORK, AND ARE PAID ON THE BASIS OF, A 6 DAY, 48-HOUR WEEK WHOULD NOT BE PRORATED ON AN ANNUAL BASIS UNDER SECTION 3 OF THE SAID EXECUTIVE ORDER, BUT, RATHER, THE ACTUAL NUMBER OF HOURS OVERTIME WORKED IN EXCESS OF THE REGULAR WORKWEEK SHOULD BE PAID FOR AT THE RATE OF ONE AND ONE-HALF TIMES THE BASIC HOURLY RATE.

COMPTROLLER GENERAL WARREN TO THE UNITED STATES COMMISSIONER, INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, MARCH 30, 1943:

I HAVE YOUR LETTER OF MARCH 15, 1943, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION B-31623 DATED MARCH 5, 1943, IN WHICH YOU SET OUT THE FORMULA FOR COMPUTING THE AMOUNT TO BE WITHHELD FROM THE COMPENSATION OF A PER DIEM EMPLOYEE OF THIS AGENCY FOR EACH DAY'S ABSENCE FROM DUTY WITHOUT PAY. WHILE THIS DECISION RELATED ONLY TO THE METHOD OF COMPUTING DEDUCTIONS FOR DAYS ABSENT IN A NON-PAY STATUS, IT WOULD SEEM TO FOLLOW THAT THE SAME FORMULA SHOULD BE FOLLOWED IN COMPUTING THE INCREASED COMPENSATION TO BE PAID PER DIEM EMPLOYEES UNDER PUBLIC LAW 821. BY THIS METHOD THE OVERTIME COMPENSATION WOULD BE DETERMINED BY FIRST OBTAINING THE EQUIVALENT ANNUAL RATE, WHICH ANNUAL RATE WOULD THEN BE CONVERTED INTO THE DAILY RATE FOR OVERTIME PURPOSES. THUS, IN THE CASE OF A PER DIEM EMPLOYEE WITH COMPENSATION AT THE RATE OF $3.00 PER DAY, 48 HOURS PER WEEK, THE PER ANNUM RATE OF OVERTIME COMPENSATION COMPUTED BY THIS METHOD WOULD EQUAL $203.424, AND THE DAILY OVERTIME COMPENSATION RATE WOULD BE ?649, MAKING THE TOTAL RATE PER DAY, INCLUDING OVERTIME, $3.65 FOR EACH DAY WORKED REGARDLESS OF THE NUMBER OF DAYS IN THE WEEK ACTUALLY WORKED.

FOR SOME YEARS THE PER DIEM EMPLOYEES OF THIS COMMISSION ENGAGED IN CONSTRUCTION AND OPERATION AND MAINTENANCE WORK HAVE BEEN ON A 48-HOUR WEEK BASIS, PURSUANT TO THE PROVISIONS OF 5 U.S.C. SECTION 26C. AFTER THE PASSAGE OF PUBLIC LAW NO. 821 AND UP TO THE PRESENT, OVERTIME COMPENSATION FOR THESE EMPLOYEES HAS BEEN COMPUTED ON A BASIS OF ONE AND ONE-HALF TIMES THE REGULAR RATE FOR ALL WORK PERFORMED IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK. THAT IS TO SAY, IN THE SEMI-MONTHLY PAYROLLS THE PAY FOR EACH SIXTH DAY'S WORK ( SATURDAY) IN THE PRECEDING 15 DAYS WAS COMPENSATED FOR AT TIME AND ONE-HALF THE REGULAR DAILY RATE, OR AN ADDITIONAL $1.50 COMPENSATION FOR EACH SIX DAY WEEK. THIS AMOUNTED TO AN INCREASE IN COMPENSATION OF APPROXIMATELY 8.3 PERCENT AS AGAINST AN INCREASE OF APPROXIMATELY 21.6 PERCENT WHICH WOULD RESULT FROM THE APPLICATION OF THE FORMULA LAID DOWN IN YOUR DECISION B-31623 OF MARCH 5, 1943.

YOUR ADVICE ON THE FOLLOWING TWO QUESTIONS WOULD BE APPRECIATED.

1. IN THE FUTURE SHOULD COMPENSATION FOR PER DIEM EMPLOYEES BE COMPUTED ACCORDING TO THE FORMULA SET FORTH IN DECISION B-31623 OF MARCH 5, 1943 RATHER THAN BY THE METHOD HITHERTO MPLOYED?

2. SHOULD THIS COMMISSION, WITHOUT FORMAL CLAIM BEING MADE ON BEHALF OF ITS EMPLOYEES, PROCEED TO RECOMPUTE THE COMPENSATION TO BE PAID ITS EMPLOYEES FROM THE EFFECTIVE DATE OF PUBLIC LAW 821, AND BY SUPPLEMENTAL PAYROLL PAY TO THESE EMPLOYEES THE DIFFERENCE BETWEEN THE AMOUNTS PAID AND THE AMOUNTS WHICH WOULD HAVE BEEN PAID THEM UNDER THE FORMULA LAID DOWN IN DECISION B-31623?

IT MIGHT BE POINTED OUT IN THIS CONNECTION THAT A SUBSTANTIAL NUMBER OF OUR EMPLOYEES HAVE LEFT THE SERVICE SINCE THE EFFECTIVE DATE OF PUBLIC LAW 821, AND THERE MAY BE SOME DIFFICULTY IN LOCATING THEM.

THE DECISIONS IN 10 COMP. GEN. 178 AND 14 COMP. GEN. 193 WOULD SEEM TO INDICATE THAT ACCEPTANCE OF THE LOWER RATE OF COMPENSATION BY THE EMPLOYEES DOES NOT CONSTITUTE A WAIVER OF THEIR RIGHT TO THE COMPENSATION PROPERLY DUE THEM. HOWEVER, IN BOTH THESE CASES CLAIM WAS MADE FOR THE DIFFERENCE BETWEEN THE AMOUNTS PAID AND THOSE ACTUALLY DUE, AND HENCE WE DO NOT REGARD THESE DECISIONS AS PRECEDENTS NECESSARILY CONTROLLING THE PRESENT SITUATION.

A FURTHER QUESTION UNDER PUBLIC LAW NO. 821 IS APT TO ARISE IN THE VERY NEAR FUTURE. IN CONNECTION WITH THE OPERATION AND MAINTENANCE WORK ON THE COMMISSION'S FLOOD CONTROL PROJECTS, IT IS OCCASIONALLY NECESSARY FOR ITS PERSONNEL TO WORK IN EXCESS OF 8 HOURS PER DAY DURING TIMES OF FLOOD TO GUARD AGAINST SERIOUS PROPERTY DAMAGE. THIS HAS BEEN DONE EITHER ON THE THEORY THAT THERE EXISTED AN "EXTRAORDINARY EMERGENCY" WITHIN THE MEANING OF THE 8-HOUR LAW (40 U.S.C. 321, 37 STAT. 726), OR ON THE THEORY THAT THESE EMPLOYEES WERE EXCEPTED FROM THE APPLICATION OF THE 8-HOUR LAW BY VIRTUE OF THE PROVISION THAT THE LAW WAS INAPPLICABLE "TO PERSONS ENGAGED IN CONSTRUCTION OR REPAIR OF LEVEES OR REVETMENTS NECESSARY FOR PROTECTION AGAINST FLOODS OR OVERFLOWS ON THE NAVIGABLE RIVERS OF THE UNITED STATES.' NO EXTRA COMPENSATION HAS EVER BEEN PAID THESE EMPLOYEES, AND YOUR OFFICE HAS HELD, IN DECISION B-22255, DATED DECEMBER 12, 1941, AND DIRECTED TO THIS COMMISSION, THAT THERE WAS NO AUTHORITY TO PAY OVERTIME COMPENSATION TO SUCH EMPLOYEES FOR THE OVERTIME WORK PERFORMED BY THEM.

THE QUESTION NOW ARISES WHETHER PUBLIC LAW 821 CHANGES THE SITUATION IN THIS RESPECT. IN THIS CONNECTION THIS OFFICE IS OF THE OPINION THAT PUBLIC LAW 821 DOES NOT REPEAL NOR SUSPEND THE PROVISIONS OF THE 8-HOUR LAW. IT CERTAINLY DOES NOT DO SO EXPRESSLY, AND SINCE ITS TERMS ARE NOT NECESSARILY IN CONFLICT WITH THE 8-HOUR LAW, IT IS BELIEVED THAT IT DOES NOT DO SO BY IMPLICATION. PUBLIC LAW 821 RELATES TO EXTRA COMPENSATION FOR WORK IN EXCESS OF 40 HOURS A WEEK, AND DOES NOT NECESSARILY HAVE ANY BEARING ON THE NUMBER OF HOURS WORKED PER DAY. WEIGHT IS LENT TO THIS CONCLUSION BY THE FACT THAT EXECUTIVE ORDER 9290, DATED DECEMBER 28, 1942 AND ISSUED AFTER THE PASSAGE OF PUBLIC LAW 821, EXPRESSLY SUSPENDS THE OPERATION OF THE 8 HOUR LAW FOR THE DURATION OF THE EMERGENCY AS FAR AS EMPLOYEES OF THE WAR DEPARTMENT ARE CONCERNED. IT WILL BE NOTED ALSO THAT THIS EXECUTIVE ORDER PROVIDES FOR THE PAYMENT OF EXTRA COMPENSATION AT THE RATE OF TIME AND ONE-HALF FOR ALL HOURS OF WORK IN EXCESS OF 8 HOURS IN ANY ONE DAY. THIS DIFFERS FROM THE PROVISIONS OF PUBLIC LAW 821, WHICH RELATES ONLY TO WORK IN EXCESS OF 40 HOURS PER WEEK. IT IS THE OPINION OF THIS OFFICE, HOWEVER, BASED ON THE LANGUAGE OF PUBLIC LAW 821 AND ON THE INTERPRETATION GIVEN THAT LAW BY YOUR OFFICE IN DECISION B-31789, DATED JANUARY 21, 1943, THAT EXTRA COMPENSATION MAY BE PAID TO THE EMPLOYEES OF THIS COMMISSION WHO MAY BE LEGALLY EMPLOYED IN EXCESS OF 8 HOURS PER DAY UNDER THE PROVISIONS OF THE 8-HOUR LAW, BY APPLYING TO THE EXTRA TIME SO WORKED IN EXCESS OF 8 HOURS A RATE PER HOUR ARRIVED AT BY DIVIDING THE DAILY RATE OF COMPENSATION COMPUTED ACCORDING TO DECISION B-31623 BY 8. THUS, SHOULD AN EMPLOYEE NECESSARILY BE EMPLOYED 12 HOURS IN ANY ONE DAY, AND ASSUMING A BASIC DAILY RATE OF $3.00, HIS COMPENSATION WOULD BE $5.47 ($3.65 BASIC COMPENSATION PLUS OVERTIME COMPENSATION FOR ONE DAY, PLUS HALF THAT AMOUNT, OR $1.82 FOR THE EXTRA 4 HOURS).

WE SHOULD, THEREFORE, LIKEWISE APPRECIATE YOUR ADVICE ON THE FOLLOWING TWO ADDITIONAL UESTIONS:

3. MAY THE EMPLOYEES OF THIS COMMISSION NECESSARILY EMPLOYED IN EXCESS OF 8 HOURS UNDER THE PROVISIONS OF THE 8-HOUR LAW (40 U.S.C. 321) BE PAID EXTRA COMPENSATION FOR THE WORK SO PERFORMED IN EXCESS OF 8 HOURS UNDER THE PROVISIONS OF PUBLIC LAW 821?

4. IF SO, HOW SHOULD THE EXTRA COMPENSATION BE COMPUTED?

YOUR EARLY DECISION WOULD BE VERY MUCH APPRECIATED.

THE JOINT RESOLUTION APPROVED DECEMBER 22, 1942, 56 STAT. 1068, PUBLIC LAW 821, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT THE JOINT RESOLUTION ENTITLED " JOINT RESOLUTION EXTENDING THE PERIOD FOR WHICH OVERTIME RATES OF COMPENSATION MAY BE PAID UNDER CERTAIN ACTS," APPROVED JULY 3, 1942, IS AMENDED BY STRIKING OUT " NOVEMBER 30, 1942," AND INSERTING " APRIL 30, 1943: " PROVIDED, THAT THE AUTHORIZATION CONTAINED HEREIN TO PAY OVERTIME COMPENSATION TO CERTAIN GROUPS OF EMPLOYEES IS HEREBY EXTENDED, EFFECTIVE DECEMBER 1, 1942, TO ALL CIVILIAN EMPLOYEES IN OR UNDER THE UNITED STATES GOVERNMENT, INCLUDING GOVERNMENT- OWNED OR CONTROLLED ORGANIZATIONS (EXCEPT EMPLOYEES IN THE LEGISLATIVE AND JUDICIAL BRANCHES), AND TO THOSE EMPLOYEES OF THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT WHO OCCUPY POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED: * * *

THE JOINT RESOLUTION OF JULY 3, 1942, PUBLIC LAW 652, AS AMENDED BY JOINT RESOLUTION OF OCTOBER 2, 1942, 56 STAT. 765, PUBLIC LAW 728, PROVIDES:

THAT THE PROVISIONS FOR THE PAYMENT OF OVERTIME RATES OF COMPENSATION CONTAINED IN THE ACT APPROVED JUNE 28, 1940 (54 STAT. 676); THE ACT APPROVED OCTOBER 21, 1940 (54 STAT. 1205); AND THE ACT APPROVED JUNE 3, 1941 (55 STAT. 241), ARE HEREBY EXTENDED FROM JUNE 30, 1942, TO AND INCLUDING NOVEMBER 30, 1942.

THUS, THE JOINT RESOLUTION APPROVED DECEMBER 22, 1942, EXTENDS TO ALL CIVILIAN EMPLOYEES IN OR UNDER THE UNITED STATES GOVERNMENT--- WITH THE EXCEPTION OF CERTAIN CLASSES OF EMPLOYEES WHO ARE EXPRESSLY ELIMINATED FROM THE LAW--- THE SAME FORMULA FOR PAYING OVERTIME COMPENSATION THAT WAS PRESCRIBED IN THE SEVERAL EARLIER STATUTES MENTIONED IN THE JOINT RESOLUTION OF JULY 3, 1942, 56 STAT. 645, PUBLIC LAW 652, AS AMENDED. THAT FORMULA WAS THE SAME IN ALL OF SAID EARLIER STATUTES AND IS AS FOLLOWS (QUOTING FROM SECTION 1 OF THE ACT OF JUNE 3, 1941, 55 STAT. 241, ONE OF THE STATUTES MENTIONED IN SAID JOINT RESOLUTION OF JULY 3, 1942):

THAT COMPENSATION FOR EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK COMPUTED AT A RATE OF ONE AND ONE-HALF TIMES THE REGULAR RATE IS HEREBY AUTHORIZED TO BE PAID * * * PROVIDED, THAT IN DETERMINING THE OVERTIME COMPENSATION OF THE FOREGOING PER ANNUM EMPLOYEES THE PAY FOR ONE DAY SHALL BE CONSIDERED TO BE ONE THREE HUNDRED-AND- SIXTIETH OF THE RESPECTIVE PER ANNUM SALARIES.

SECTION 2 OF THE REGULATIONS ISSUED BY THE PRESIDENT UNDER THE JOINT RESOLUTION APPROVED DECEMBER 22, 1942, CONTAINS THE FOLLOWING PROVISION:

FOR THE PURPOSE OF COMPUTING OVERTIME COMPENSATION THE PAY FOR ONE HOUR SHALL BE CONSIDERED TO BE 1/8 OF THE EMPLOYEE'S PAY FOR ONE DAY AND THE PAY FOR ONE DAY SHALL BE CONSIDERED TO BE 1/360 OF THE EMPLOYEE'S PER ANNUM SALARY.

WHILE THE FORMULA APPEARING IN THE STATUTES AND THE REGULATIONS ISSUED BY THE PRESIDENT FOR INCREASING COMPENSATION ON A PRORATED OVERTIME BASIS RELATES PRIMARILY TO PER ANNUM EMPLOYEES, NEVERTHELESS THE PURPOSE AND INTENT THEREOF WAS TO ADOPT THE SAME METHOD FOR GRANTING THE STATUTORY INCREASE IN COMPENSATION ON AN OVERTIME BASIS TO FULL TIME PER DIEM EMPLOYEES WORKING IN EXCESS OF 40 HOURS PER WEEK WHO, ALSO, FALL WITHIN THE PURVIEW OF THE JOINT RESOLUTION. IT IS CLEARLY EVIDENT FROM THE JOINT RESOLUTION AND ITS LEGISLATIVE HISTORY THAT THE CONGRESS INTENDED ALL CLASSES OF FULL TIME EMPLOYEES WORKING ON A TIME BASIS, WHETHER BY THE HOUR, DAY, OR YEAR TO RECEIVE THE STATUTORY INCREASE IN COMPENSATION FOR WORK IN EXCESS OF 40 HOURS PER WEEK ON SUBSTANTIALLY THE SAME BASIS; THAT IS, IT WAS INTENDED TO INCREASE BY APPROXIMATELY 21 PERCENT THE COMPENSATION OF ALL FULL TIME EMPLOYEES (EXCEPT THOSE IN THE LEGISLATIVE AND JUDICIAL BRANCHES OF THE GOVERNMENT) WORKING ON A TIME BASIS AND WHO WORK REGULARLY 48 HOURS PER WEEK, AND TO INCREASE BY APPROXIMATELY 10 PERCENT THE COMPENSATION OF PART TIME EMPLOYEES OR THOSE WHO WORK ON OTHER THAN A TIME BASIS, SUBJECT, OF COURSE, TO THE CEILING RATES OF $2,900 A $5,000 PER ANNUM. COMPARE DECISION OF FEBRUARY 2, 1943, B-31872 22 COMP. GEN. 738, TO MR. O. H. NIELSON, AUTHORIZED CERTIFYING OFFICER, PRODUCTION BOARD, AND DECISION OF FEBRUARY 6, 1943, B-31945, 22 COMP. GEN. 764, TO THE POSTMASTER GENERAL, QUESTION AND ANSWER 2. IN ORDER TO ACCOMPLISH THAT RESULT IT IS NECESSARY TO COMPUTE THE PER ANNUM EQUIVALENT OF A PER DIEM SALARY FOR OVERTIME PURPOSES. COMPARE DECISION OF JANUARY 2, 1943, B -31316, 22 COMP. GEN. 589, TO THE ARCHITECT OF THE CAPITOL, AND DECISION OF FEBRUARY 10, 1943, B-32242, 22 COMP. GEN. 783, TO THE SECRETARY OF COMMERCE. IT WAS ON THE ABOVE-STATED BASIS THAT THE FOLLOWING RULE WAS STATED AND APPLIED IN DECISION OF MARCH 5, 1943, B 31623, 22 COMP. GEN. 868, TO WHICH YOU REFER (QUOTING FROM THE SYLLABUS):

UNDER THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, AND EXECUTIVE ORDER NO. 9289 ISSUED IN CONNECTION THEREWITH, THE PRORATED OVERTIME COMPENSATION FOR ONE DAY FOR FULL TIME EMPLOYEES WHO REGULARLY WORK A 6-DAY, 48-HOUR WEEK AND WHO ARE PAID ON A PER DIEM BASIS FOR EVERY DAY IN THE YEAR EXCEPT SUNDAYS SHOULD BE COMPUTED BY MULTIPLYING THE BASIC DAILY RATE BY 313 (365 LESS 52 SUNDAYS) TO DETERMINE THE EQUIVALENT ANNUAL RATE, WHICH RATE SHOULD BE DIVIDED BY 360 TO ASCERTAIN THE DAILY RATE FOR OVERTIME PURPOSES, AND SUCH DAILY RATE SHOULD BE MULTIPLIED BY ONE AND ONE -HALF (THE OVERTIME RATE) AND THAT AMOUNT MULTIPLIED BY 52 (WEEKS IN A YEAR) TO DETERMINE THE PER ANNUM OVERTIME RATE, FROM WHICH THE DAILY RATE OF OVERTIME COMPENSATION IS OBTAINED BY DIVIDING THE SAID PER ANNUM OVERTIME RATE BY 313.

WHERE A PER DIEM EMPLOYEE, WHO NORMALLY WORKS AND RECEIVES PAY FOR EACH OF THE 6 DAYS OF THE ADMINISTRATIVE 48-HOUR WORKWEEK (NO PAY BEING RECEIVED FOR SUNDAY), IS ABSENT ON A MONDAY ON LEAVE WITHOUT PAY, EITHER APPROVED OR UNAPPROVED, THERE SHOULD BE WITHHELD THE EMPLOYEE'S BASIC COMPENSATION, AS WELL AS THE PRO RATA OVERTIME COMPENSATION (AS HEREIN COMPUTED), FOR ONLY ONE DAY. IT FOLLOWS, OF COURSE,"THAT THE SAME FORMULA SHOULD BE FOLLOWED IN COMPUTING THE INCREASED COMPENSATION TO BE PAID PER DIEM EMPLOYEES UNDER PUBLIC LAW 821" (QUOTING FROM THE FIRST PARAGRAPH OF YOUR LETTER). ACCORDINGLY, ASSUMING THAT THE PER DIEM EMPLOYEES REGULARLY WORK 48 HOURS PER WEEK, AS STATED IN YOUR LETTER, THE FORMULA STATED IN THE FIRST PARAGRAPH OF YOUR LETTER IS CORRECT, RATHER THAN THE FORMULA STATED IN THE SECOND PARAGRAPH OF YOUR LETTER, THE LATTER RESULTING IN AN INCREASE IN COMPENSATION OF ONLY 8 1/3 PERCENT.

ACCORDINGLY, QUESTIONS 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE. REFERRING TO THE PARAGRAPH OF YOUR LETTER RELATING TO EMPLOYEES WHO HAVE LEFT THE SERVICE, SEE DECISION OF FEBRUARY 16, 1943, B-32225, 22 COMP. GEN. 810, TO THE DIRECTOR, OFFICE OF STRATEGIC SERVICES, COPY ENCLOSED, QUESTION AND ANSWER 4. REFERRING TO THE RULE STATED IN 10 COMP. GEN. 178 AND 14 ID. 193, TO WHICH YOU REFER, THE ACCEPTANCE OF THE LOWER RATE OF COMPENSATION BY THE INVOLVED EMPLOYEES DOES NOT CONSTITUTE A WAIVER OF THE RIGHT TO THE STATUTORY INCREASE IN COMPENSATION PROPERLY DUE THEM.

IN DECISION OF APRIL 6, 1934, 13 COMP. GEN. 265, 270, IT WAS STATED:

THE 8-HOUR LAW, AS AMENDED BY THE ACT OF MARCH 3, 1913, 37 STAT. 726 (SECS. 321 AND 322, TITLE 40, U.S. CODE), PROHIBITS THE EMPLOYMENT OF MECHANICS, LABORERS, AND THOSE IN SIMILAR OCCUPATIONS FOR MORE THAN 8 HOURS ON ANY 1 CALENDAR DAY,"EXCEPT IN CASE OF EXTRAORDINARY EMERGENCY.' IT IS NOT A COMPENSATION STATUTE AND DOES NOT PROVIDE FOR OVERTIME. HENCE, SECTION 23 OF THE ACT OF MARCH 28, 1934, PROVIDING FOR A 40-HOUR WEEK AND FOR OVERTIME COMPENSATION, IS NOT INCONSISTENT WITH, AND DOES NOT SUPERSEDE NOR RENDER INOPERATIVE THE 8-HOUR LAW. WHILE HERETOFORE OVERTIME COMPENSATION AT THE GOVERNMENT PRINTING OFFICE HAS BEEN PAID ON A DAILY BASIS, OVERTIME IS AUTHORIZED BY SECTION 23 OF THE ACT OF MARCH 28, 1934, ONLY ON A WEEKLY BASIS--- THAT IS, FOR WORK IN EXCESS OF 40 HOURS PER WEEK--- AND NO LONGER ON A DAILY BASIS. THEREFORE, IF, IN CASES OF AN EXTRAORDINARY EMERGENCY, EMPLOYEES ARE REQUIRED TO WORK MORE THAN 8 HOURS ON ANY ONE CALENDAR DAY, BUT ARE NOT REQUIRED TO WORK IN EXCESS OF 40 HOURS DURING THE WEEK, PAYMENT OF OVERTIME COMPENSATION IS NOT AUTHORIZED. * * *

THE SAME RULE IS APPLICABLE UNDER JOINT RESOLUTION OF DECEMBER 22, 1942, TO MECHANICS AND LABORERS OTHERWISE COMING WITHIN THE PURVIEW OF THE JOINT RESOLUTION AND WITH RESPECT TO WHOM THE 8-HOUR LAW HAS NOT BEEN SUSPENDED. COMPARE DECISION OF JANUARY 8, 1943, B-31488, 22 COMP. GEN. 627, QUESTION AND ANSWER 1. HOWEVER, IT IS UNDERSTOOD THAT YOUR QUESTIONS 3 AND 4 RELATE TO EMPLOYEES WHO LEGALLY HAVE BEEN REQUIRED OR ORDERED TO WORK IN EXCESS OF 8 HOURS ON A PARTICULAR DAY WHICH IS "ORDERED" OVERTIME IN EXCESS OF 48 HOURS PER WEEK.

IT HAS BEEN HELD THAT PAYMENT OF ADDITIONAL COMPENSATION FOR EXTRA OVERTIME, THAT IS, OVERTIME IN EXCESS OF THE REGULAR OVERTIME ON A 48 HOUR WEEK BASIS, SHOULD BE COMPUTED AND PAID ON AN ACTUAL BASIS, THAT IS, 1 1/2 TIMES THE REGULAR RATE OF COMPENSATION. SEE DECISION OF FEBRUARY B-32075, 22 COMP. GEN. 778, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

OVERTIME COMPENSATION UNDER THE ACT OF DECEMBER 22, 1942, AND EXECUTIVE ORDER NO. 9289 ISSUED IN CONNECTION THEREWITH, FOR WORK ORDERED OR APPROVED IN ADDITION TO THE OFFICIALLY ESTABLISHED REGULAR WORKWEEK--- AS DISTINGUISHED FROM OVERTIME COMPENSATION FOR WORK DURING SUCH REGULAR WORKWEEK--- SHOULD NOT BE PRORATED ON AN ANNUAL BASIS UNDER SECTION 3 OF SAID EXECUTIVE ORDER, BUT, RATHER, THE ACTUAL NUMBER OF HOURS OVERTIME WORKED IN EXCESS OF THE REGULAR WORKWEEK SHOULD BE PAID FOR AT THE RATE OF ONE AND ONE-HALF TIMES THE BASIC HOURLY RATE.

REFERRING TO THE ILLUSTRATION STATED IN YOUR LETTER, THE EMPLOYEE'S TOTAL COMPENSATION FOR THE DAY ON WHICH HE WORKED 4 HOURS EXTRA OVERTIME WOULD BE $3 BASIC, PLUS $0.65 REGULAR PRORATED OVERTIME, PLUS $2.25 (4 X 1/8 OF $3 X 1 1/2) ADDITIONAL OVERTIME COMPENSATION FOR 4 HOURS, A TOTAL OF $5.90.