B-104310, FEBRUARY 15, 1952, 31 COMP. GEN. 391

B-104310, FEBRUARY 15, 1952, 31 COMP. GEN. 391

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 IS DURING THE DAY OR NIGHT, AND THEREFORE, AN EMPLOYEE WHOSE REGULAR TOUR OF DUTY IS DURING THE DAY MAY NOT HAVE NIGHT DIFFERENTIAL INCLUDED AS PART OF BASIC COMPENSATION IN DETERMINING THE OVERTIME COMPENSATION RATE, EVEN THOUGH OVERTIME SERVICES WERE PERFORMED DURING THE HOURS FOR WHICH NIGHT DIFFERENTIAL IS PAYABLE. WHILE SECTION 23, ACT OF MARCH 23, 1934, NEITHER REQUIRES NOR PRECLUDES PAYMENT OF NIGHT DIFFERENTIAL IN ADDITION TO OVERTIME COMPENSATION FOR SERVICES "AT NIGHT" OUTSIDE A REGULAR TOUR OF DUTY, AS DISTINGUISHED FROM REGARDING NIGHT DIFFERENTIAL AS BASIC COMPENSATION IN COMPUTING OVERTIME RATE FOR EMPLOYEE WHOSE REGULAR TOUR OF DUTY IS AT NIGHT, IN VIEW OF POLICY ADOPTED UNDER DIRECTIVES AND REGULATIONS OF THE TREASURY DEPARTMENT WAGE BOARD AND THE DIRECTOR OF THE MINT THAT MINT EMPLOYEES ON THE DAY SHIFT WOULD NOT BE PAID NIGHT DIFFERENTIAL IN ADDITION TO OVERTIME WHEN REQUIRED TO WORK BEYOND THE REGULAR WORKDAY, SUCH EMPLOYEES ARE NOT ENTITLED UNDER SAID POLICY TO NIGHT DIFFERENTIAL IN ADDITION TO OVERTIME WHEN REQUIRED TO WORK AT NIGHT.

COMPTROLLER GENERAL WARREN TO FRANCIS X. HEALY, FEBRUARY 15, 1952:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 28, 1951, WHEREIN YOU FURNISH CERTAIN ADDITIONAL INFORMATION IN CONNECTION WITH OFFICE DECISION OF AUGUST 22, 1951, B-104310, 31 COMP. GEN. 48, TO YOU, AND REQUESTING ADVICE WHETHER SUCH INFORMATION WOULD IN ANY WAY CHANGE THE CONCLUSION REACHED IN THAT DECISION.

THE DECISION OF AUGUST 22, 1951, RESTATED THE RULE THAT OVERTIME COMPENSATION OF A "WAGE BOARD" EMPLOYEE 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 NIGHT, AND WENT ON TO CONCLUDE THAT AN EMPLOYEE OF THE SAN FRANCISCO MINT WITH A REGULAR TOUR OF DUTY DURING THE DAY WAS NOT ENTITLED TO HAVE NIGHT DIFFERENTIAL INCLUDED AS A PART OF HIS BASIC COMPENSATION IN DETERMINING HIS OVERTIME COMPENSATION FOR OVERTIME SERVICES APPARENTLY RENDERED OUTSIDE THE HOURS FOR WHICH A NIGHT DIFFERENTIAL WAS PAYABLE. ALSO, IN THAT DECISION THERE WAS NOTED THE ABSENCE OF ANY INFORMATION SHOWING THE HOURS SPECIFIED BY REGULATION DURING WHICH THE PAYMENT OF NIGHT DIFFERENTIAL IS AUTHORIZED.

YOU NOW SUBMIT INFORMATION TO THE EFFECT THAT THE TREASURY DEPARTMENT WAGE BOARD APPROVED THE PAYMENT OF NIGHT DIFFERENTIAL COMPENSATION FOR WORK PERFORMED BETWEEN THE HOURS OF 4:00 P.M. AND :00 A.M., STANDARD TIME, EFFECTIVE MAY 4, 1948, FOR PER DIEM EMPLOYEES OF THE SAN FRANCISCO MINT.

YOU ARE ADVISED THAT THE RULE IN RESPECT OF COMPUTATION OF OVERTIME COMPENSATION STILL WOULD PRECLUDE THE INCLUSION OF A NIGHT DIFFERENTIAL IN ARRIVING AT THE OVERTIME COMPENSATION PAYABLE EVEN THOUGH THE OVERTIME SERVICES WERE RENDERED DURING THE HOURS FALLING WITHIN THE PERIOD FOR WHICH NIGHT DIFFERENTIAL COMPENSATION IS AUTHORIZED. THIS IS SO, BECAUSE AS PREVIOUSLY INDICATED, THE EMPLOYEE HERE INVOLVED SERVED HIS REGULAR TOUR OF DUTY DURING THE DAY.

WITH RESPECT TO THE PAYMENT OF NIGHT DIFFERENTIAL COMPENSATION IN ADDITION TO OVERTIME COMPENSATION FOR SERVICES RENDERED "AT NIGHT" OUTSIDE THE REGULAR TOUR OF DUTY, AS DISTINGUISHED FROM REGARDING NIGHT DIFFERENTIAL AS BASIC COMPENSATION IN COMPUTING THE OVERTIME RATE OF COMPENSATION FOR AN EMPLOYEE WHOSE REGULAR TOUR OF DUTY IS AT NIGHT, IT MAY BE STATED THAT THERE IS NOTHING CONTAINED IN SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, NOR IS THIS OFFICE AWARE OF ANY OTHER STATUTE, WHICH REQUIRES OR PRECLUDES THE PAYMENT OF A NIGHT DIFFERENTIAL UNDER THE RELATED CIRCUMSTANCES. HOWEVER, THIS OFFICE INFORMALLY HAS OBTAINED FROM THE BUREAU OF THE MINT COPIES OF CERTAIN DIRECTIVES AND REGULATIONS OF THE TREASURY DEPARTMENT WAGE BOARD AND/OR THE DIRECTOR OF THE MINT, COVERING OVERTIME AND NIGHT DIFFERENTIAL, WHICH INDICATE THAT, WHEN NIGHT DIFFERENTIAL WAS FIRST AUTHORIZED FOR EMPLOYEES OF THE MINT, IT WAS NOT INTENDED THAT THOSE EMPLOYEES ON THE DAY SHIFT SHOULD BE PAID NIGHT DIFFERENTIAL IN ADDITION TO OVERTIME COMPENSATION WHEN REQUIRED TO WORK BEYOND THE REGULAR WORKDAY. THERE APPEARS TO HAVE BEEN NO CHANGE IN THAT POLICY WHICH, OF COURSE, WAS NOT AFFECTED BY OFFICE DECISION OF SEPTEMBER 6, 1944, 24 COMP. GEN. 189, REQUIRING THE INCLUSION OF NIGHT DIFFERENTIAL IN THE OVERTIME RATE FOR EMPLOYEES WITH A REGULAR TOUR OF DUTY AT NIGHT. ACCORDINGLY, IT MUST BE CONCLUDED THAT PAYMENT OF A NIGHT DIFFERENTIAL IN ADDITION TO OVERTIME COMPENSATION UNDER THE RELATED CIRCUMSTANCES WOULD NOT BE AUTHORIZED.