B-104310, AUGUST 22, 1951, 31 COMP. GEN. 48

B-104310, AUGUST 22, 1951, 31 COMP. GEN. 48

OVERTIME COMPENSATION - FORTY-HOUR WEEK EMPLOYEES - RATE PAYABLE THE OVERTIME RATE OF COMPENSATION PAYABLE TO WAGE BOARD EMPLOYEES UNDER SECTION 23 OF THE ACT OF MARCH 28, 1934, FOR WORK IN EXCESS OF 40 HOURS PER WEEK IS BASED UPON THE RATE RECEIVED BY THE EMPLOYEE DURING HIS REGULAR TOUR OF DUTY OF 40 HOURS REGARDLESS OF WHETHER THE REGULAR TOUR OF DUTY BE SERVED DURING THE DAY OR DURING THE NIGHT, SO THAT AN EMPLOYEE WHOSE REGULAR TOUR OF DUTY IS DURING THE DAY AND OUTSIDE THE HOURS FOR WHICH NIGHT DIFFERENTIAL IS PAYABLE MAY NOT HAVE NIGHT DIFFERENTIAL INCLUDED IN HIS BASIC COMPENSATION TO DETERMINE HIS OVERTIME COMPENSATION RATE.

COMPTROLLER GENERAL WARREN TO FRANCIS X. HEALY, TREASURY DEPARTMENT, AUGUST 22, 1951:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 22, 1951, ENCLOSING A PAY ROLL VOUCHER IN FAVOR OF JOHN J. COLLINS, AN EMPLOYEE OF THE SAN FRANCISCO MINT, COVERING ADDITIONAL COMPENSATION ALLEGED TO BE DUE BY THE EMPLOYEE FROM NOVEMBER 12 TO 25, 1960, AND REQUESTING A DECISION WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER SET FORTH.

IT IS STATED IN YOUR LETTER THAT THE EMPLOYEE'S REGULAR TOUR OF DUTY WAS FROM 8 A.M. TO 4 P. M. BUT THAT BECAUSE OF AN INCREASED WORK LOAD THE EMPLOYEE'S HOURS OF WORK WERE EXTENDED TO 6 P.M. THE EMPLOYEE WAS PAID STRAIGHT TIME AT THE RATE OF $1.59 AN HOUR FOR 80 HOURS AND OVERTIME COMPENSATION AT THE RATE OF $2.385 AN HOUR FOR 26 HOURS, 18 OF WHICH CONSISTED OF WORK PERFORMED ON SUNDAY. HOWEVER, THE EMPLOYEE CONTENDS THAT HE SHOULD RECEIVE DIFFERENTIAL FOR THE 18 HOURS' WORK BETWEEN 4 P.M. AND 6 P.M. (APPARENTLY 10 PERCENT) AND THAT IN ADDITION HIS OVERTIME RATE OF COMPENSATION SHOULD BE COMPUTED BY INCLUDING THE DIFFERENTIAL IN HIS BASIC COMPENSATION WHICH WOULD GIVE AN OVERTIME RATE OF $2.6235 AN HOUR FOR THE 18 HOURS IN QUESTION.

PRESUMABLY, THE WAGES OF THE EMPLOYEE HERE INVOLVED ARE FIXED UNDER WAGE BOARD AUTHORITY AND THE DIFFERENTIAL REFERRED TO IS THAT AUTHORIZED FOR NIGHT WORK. HOWEVER, YOU FAILED TO INDICATE THE HOURS SPECIFIED BY REGULATION DURING WHICH PAYMENT OF NIGHT DIFFERENTIAL COMPENSATION IS AUTHORIZED. USUALLY SUCH HOURS ARE SPECIFIED AS THOSE OCCURRING BETWEEN 6 P.M. AND 8 A.M. IF SIMILAR HOURS FOR THE PAYMENT OF NIGHT DIFFERENTIAL ARE IN EFFECT AT THE SAN FRANCISCO MINT IT IS OBVIOUS THAT PAYMENT OF NIGHT DIFFERENTIAL COMPENSATION TO MR. COLLINS FOR WORK PERFORMED BETWEEN 4 P.M. AND 6 P.M. WOULD BE UNAUTHORIZED.

WITH RESPECT TO INCLUDING NIGHT DIFFERENTIAL COMPENSATION IN THE BASIC COMPENSATION OF A "WAGE BOARD" EMPLOYEE TO DETERMINE HIS OVERTIME RATE OF COMPENSATION UNDER SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, FOR WORK IN EXCESS OF 40 HOURS PER WEEK, IT HAS BEEN HELD BY THIS OFFICE THAT SUCH OVERTIME RATE OF COMPENSATION SHOULD BE BASED UPON THE RATE RECEIVED BY THE EMPLOYEE DURING HIS REGULAR TOUR OF DUTY OF 40 HOURS, REGARDLESS OF WHETHER THE REGULAR TOUR OF DUTY BE SERVED DURING THE DAY OR DURING THE NIGHT. 23 COMP. GEN. 962, 24 ID. 39 AND 155. ALSO, IN OFFICE DECISION OF SEPTEMBER 6, 1944, TO THE SECRETARY OF THE TREASURY, 24 COMP. GEN. 189, IT WAS HELD THAT THE SAME RULE WAS APPLICABLE TO THE EMPLOYEES OF THE BUREAU OF THE MINT AND THAT WHERE EMPLOYEES HAD A REGULAR TOUR OF DUTY AT NIGHT, THEIR OVERTIME COMPENSATION WAS TO BE COMPUTED ON THE BASIS OF NIGHT DIFFERENTIAL BEING A PART OF THEIR BASIC COMPENSATION.

SINCE IN THE INSTANT CASE THE EMPLOYEE'S REGULAR TOUR OF DUTY WAS DURING THE DAY AND APPARENTLY OUTSIDE THE HOURS FOR WHICH NIGHT DIFFERENTIAL WAS PAYABLE, THERE APPEARS NO LEGAL BASIS FROM THE RECORD BEFORE ME FOR INCLUDING NIGHT DIFFERENTIAL IN HIS BASIC COMPENSATION TO DETERMINE HIS OVERTIME COMPENSATION RATE.

ACCORDINGLY, THE PAYROLL VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT ON THE BASIS OF THE PRESENT RECORD.