B-159950, DECEMBER 24, 1968, 48 COMP. GEN. 439

B-159950, DECEMBER 24, 1968, 48 COMP. GEN. 439

COMPENSATION - WAGE BOARD EMPLOYEES - OVERTIME - WORK IN EXCESS OF DAILY AND WEEKLY LIMITATIONS - INTERMITTENT AND PART-TIME EMPLOYEES INTERMITTENT AND PART-TIME WAGE BOARD EMPLOYEES REGARDLESS OF WHETHER A 40-HOUR ADMINISTRATIVE WORKWEEK OR AN 8-HOUR DAY HAS BEEN ESTABLISHED FOR THEM ARE ENTITLED TO OVERTIME COMPENSATION AT NOT LESS THAN TIME AND ONE- HALF FOR TIME WORKED IN EXCESS OF 8 HOURS A DAY OR 40 HOURS A WEEK PURSUANT TO SECTION 201 OF THE "WORK HOURS ACT OF 1962," AMENDING SECTION 23 OF THE ACT OF MARCH 28, 1934, THE LANGUAGE OF SECTION 23, AS AMENDED, REGARDING THE "ESTABLISHMENT" OF REGULAR HOURS OF LABOR AT NOT MORE THAN 8 PER DAY OR 40 PER WEEK INTENDING ONLY TO PRESCRIBE A MEASURE AS TO WHEN REGULAR AND OVERTIME RATES OF COMPENSATION ARE PAYABLE AND NOT TO REQUIRE THE FORMAL ESTABLISHMENT OF REGULAR HOURS OF WORK.

TO THE ACTING ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, DECEMBER 24, 1968:

WE REFER TO YOUR LETTER OF OCTOBER 17, 1968, REQUESTING OUR DECISION WHETHER INTERMITTENT AND PART-TIME WAGE BOARD EMPLOYEES FOR WHOM A 40 HOUR ADMINISTRATIVE WORKWEEK HAS NOT BEEN ESTABLISHED ARE ENTITLED TO OVERTIME COMPENSATION FOR TIME WORKED IN EXCESS OF 40 HOURS IN A WORKWEEK.

YOU POINT OUT THE DIFFERENCES IN THE OVERTIME AND HOURS OF WORK STATUTES APPLICABLE TO WAGE BOARD EMPLOYEES (5 U.S.C. 5544 (A), 6102) AND CLASSIFICATION ACT EMPLOYEES (5 U.S.C. 5542 (A), 6101 (A) ( AND THE SEPARATE DERIVATIONS OF THE SEVERAL PROVISIONS, THE FORMER FROM SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, AND THE LATTER FROM THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295. IN VIEW THEREOF YOU QUESTION WHETHER THE RULE EXPRESSED IN OUR DECISION 46 COMP. GEN. 667 IS APPLICABLE TO WAGE BOARD EMPLOYEES.

IN 46 COMP. GEN. 667 WE AFFIRMED THE EARLIER DECISIONS OF OUR OFFICE HOLDING THAT PART-TIME AND INTERMITTENT EMPLOYEES WHO HAVE NO ADMINISTRATIVELY ESTABLISHED WORKWEEK OF 40 HOURS ARE NOT COVERED BY SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, NOW 5 U.S.C. 5542 (A), AUTHORIZING OVERTIME COMPENSATION FOR HOURS WORKED IN EXCESS OF 40 PER WEEK. SEE 27 COMP. GEN. 776; 28 ID. 328; 34 ID. 471. EXPLANATION OF THOSE EARLIER DECISIONS WE POINTED OUT THAT OUR ACTION THEREIN WAS PREDICATED ON SECTION 654 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 303, NOW 5 U.S.C. 6101 (A) (2), WHICH PROVIDES AS FOLLOWS:

(2) THE HEAD OF EACH EXECUTIVE AGENCY, MILITARY DEPARTMENT, AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA SHALL---

(A) ESTABLISH A BASIC ADMINISTRATIVE WORKWEEK OF 40 HOURS FOR EACH FULL- TIME EMPLOYEE IN HIS ORGANIZATION; AND

(B) REQUIRE THAT THE HOURS OF WORK WITHIN THAT WORKWEEK BE PERFORMED WITHIN A PERIOD OF NOT MORE THAN 6 OF ANY 7 CONSECUTIVE DAYS. WE WENT ON TO SAY THAT---

IT WAS OUR VIEW THAT THE PROVISION IN SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, ABOVE, WHICH AT THAT TIME ONLY AUTHORIZED PAYMENT OF OVERTIME COMPENSATION FOR HOURS OF WORK IN EXCESS OF 40 IN AN ADMINISTRATIVE WORKWEEK HAD REFERENCE TO THE ADMINISTRATIVE WORKWEEK OF 40 HOURS REQUIRED TO BE ESTABLISHED FOR FULL-TIME OFFICERS AND EMPLOYEES BY SECTION 604 (A), QUOTED ABOVE, AND THUS OVERTIME COMPENSATION FOR WORK IN EXCESS OF 40 HOURS IN A WEEK WAS LIMITED TO FULL-TIME EMPLOYEES WITH AN ESTABLISHED ADMINISTRATIVE WORKWEEK OF 40 HOURS. THAT RULE HAS BEEN IN EFFECT FOR MANY YEARS AND EVEN THOUGH THE SUBJECT OF OVERTIME AND PREMIUM COMPENSATION HAS BEEN BEFORE THE CONGRESS ON SEVERAL OCCASIONS THERE HAS BEEN NO CHANGE (OR EVEN A PROPOSED CHANGE SO FAR AS WE ARE AWARE) IN THE LANGUAGE OF THE LAW REGARDING OVERTIME COMPENSATION FOR HOURS OF WORK IN EXCESS OF 40 IN AN ADMINISTRATIVE WORKWEEK. WE POINT OUT THAT THE AMENDMENT OF JULY 18, 1966, TO SECTION 201 DID NOT DISTURB THE LANGUAGE THEREIN PERTAINING TO OVERTIME COMPENSATION FOR HOURS IN EXCESS OF 40 PER WEEK. NEITHER DID SUCH AMENDMENT AFFECT THE WORDING OF SECTION 604 (A) OF THE 1945 ACT. UNDER SUCH CIRCUMSTANCES WE MUST AFFIRM OUR DECISION IN 28 COMP. GEN. 328 AND 34 ID. 471.

THE PROVISO OF SECTION 23 OF THE ACT OF MARCH 28, 1934 (PRIOR TO ITS AMENDMENT IN 1962), CONCERNING THE HOURS OF WORK AND OVERTIME COMPENSATION FOR WAGE BOARD EMPLOYEES, READ AS FOLLOWS:

* * * PROVIDED, THAT THE REGULAR HOURS OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE-HALF.

AS YOU POINT OUT IN YOUR LETTER OUR OFFICE HAS STATED IN AT LEAST ONE DECISION (21 COMP. GEN. 965, 968) THAT UNDER THE ABOVE-QUOTED PROVISION IT WAS NECESSARY FOR AN ADMINISTRATIVE OFFICE TO FIX A REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK, DURING WHICH THE REGULAR RATE OF COMPENSATION WAS PAYABLE, IN ORDER THAT OVERTIME COMPENSATION AT THE OVERTIME RATE COULD BE PROPERLY COMPUTED FOR WORK IN EXCESS OF 40 HOURS PER WEEK. COMPARE 32 COMP. GEN. 399, 400; 20 ID. 392 AT PAGE 397. WHILE WE CONCEDE THAT THE STATEMENT IN THE DECISION IN 21 COMP. GEN. 965 IS SUSCEPTIBLE OF AN INTERPRETATION (SIMILAR TO 46 COMP. GEN. 667) TO THE EFFECT THAT OVERTIME COMPENSATION UNDER SECTION 23 OF THE 1934 ACT IS PAYABLE ONLY TO FULL TIME EMPLOYEES FOR WHOM A REGULAR TOUR OF DUTY OF 40 HOURS HAS BEEN ESTABLISHED IT WAS NOT SO INTENDED. RATHER, OUR INTENT WAS ONLY TO ESTABLISH THE RULE THAT AN EMPLOYEE MUST BE IN A PAY STATUS FOR 40 HOURS IN A WORKWEEK DURING WHICH HIS REGULAR RATE OF COMPENSATION WOULD BE PAYABLE IN ORDER TO BE ELIGIBLE FOR OVERTIME COMPENSATION UNDER THE 1934 ACT.

SECTION 23 OF THE 1934 ACT WAS AMENDED BY SECTION 201 OF THE "WORK HOURS ACT OF 1962," PUBLIC LAW 87-581, 76 STAT. 357, AS FOLLOWS:

THE PROVISO OF SECTION 23 OF THE ACT OF MARCH 28, 1934 (48 STAT. 509, 522), AS AMENDED, IS HEREBY AMENDED TO READ AS FOLLOWS: "PROVIDED, THAT THE REGULAR HOURS OF LABOR ARE HEREBY ESTABLISHED AT NOT MORE THAN EIGHT PER DAY OR FORTY PER WEEK, BUT WORK IN EXCESS OF SUCH HOURS SHALL BE PERMITTED WHEN ADMINISTRATIVELY DETERMINED TO BE IN THE PUBLIC INTEREST: PROVIDED FURTHER, THAT OVERTIME WORK IN EXCESS OF EIGHT HOURS PER DAY OR IN EXCESS OF FORTY HOURS PER WEEK SHALL BE COMPENSATED FOR AT NOT LESS THAN TIME AND ONE-HALF THE BASIC RATE OF COMPENSATION, EXCEPT THAT EMPLOYEES SUBJECT TO THIS SECTION WHO ARE REGULARLY REQUIRED TO REMAIN AT OR WITHIN THE CONFINES OF THEIR POST OF DUTY IN EXCESS OF EIGHT HOURS PER DAY IN A STANDBY OR ON-CALL STATUS SHALL BE PAID OVERTIME RATES ONLY FOR HOURS OF DUTY, EXCLUSIVE OF EATING AND SLEEPING TIME, IN EXCESS OF FORTY PER WEEK.'

AS DISCUSSED ABOVE, OUR DECISIONS CONCERNING PAYMENT OF OVERTIME COMPENSATION TO PART-TIME AND INTERMITTENT CLASSIFICATION ACT EMPLOYEES WERE PREDICATED ON THE SPECIFIC STATUTORY LANGUAGE OF SECTIONS 201 AND 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. THE LANGUAGE OF SECTION 23, AS AMENDED, QUOTED ABOVE, DOES NOT, IN OUR OPINION, REQUIRE A SIMILAR CONCLUSION WITH RESPECT TO PART-TIME AND INTERMITTENT WAGE BOARD EMPLOYEES. ALTHOUGH SECTION 23, AS AMENDED, SPEAKS OF THE ESTABLISHMENT OF REGULAR HOURS OF LABOR AT NOT MORE THAN EIGHT PER DAY OR FORTY PER WEEK, WE BELIEVE THAT SUCH LANGUAGE IS TO BE CONSTRUED AS PRESCRIBING ONLY A MEASURE AS TO WHEN REGULAR RATES AND OVERTIME RATES OF COMPENSATION ARE PAYABLE. THEREFORE, WE HOLD THAT UNDER THE PROVISIONS OF 5 U.S.C. 5544 (A) PART-TIME AND INTERMITTENT WAGE BOARD EMPLOYEES ARE ENTITLED TO OVERTIME COMPENSATION FOR TIME WORKED IN EXCESS OF 8 HOURS A DAY OR 40 HOURS A WEEK REGARDLESS OF WHETHER A40 HOUR WORKWEEK OR AN 8-HOURS DAY HAS BEEN ADMINISTRATIVELY ESTABLISHED.