B-15459, MARCH 25, 1941, 20 COMP. GEN. 555

B-15459, MARCH 25, 1941, 20 COMP. GEN. 555

COMPENSATION - OVERTIME - FORTY-HOUR WEEK EMPLOYEES IN COMPUTING OVERTIME COMPENSATION OF 40-HOUR WEEK EMPLOYEES OF THE NAVY DEPARTMENT UNDER THE ACT OF JUNE 28, 1940, TIME ABSENT ON LEAVE WITH PAY, OR HOLIDAYS FOR WHICH AN EMPLOYEE IS ENTITLED TO PAY WITHOUT WORKING DURING HIS REGULAR TOUR OF DUTY, SHOULD BE REGARDED AS EMPLOYMENT WITHIN THE MEANING OF THE PROVISO TO THE ACT WHICH AUTHORIZES PAYMENT OF "COMPENSATION FOR EMPLOYMENT IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK COMPUTED AT A RATE NOT LESS THAN 1 1/2 TIMES THE REGULAR RATE.'

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, MARCH 25, 1941:

I HAVE YOUR LETTER OF MARCH 11, 1941, REF. LL/L16-4 (11) (410221) S. AS FOLLOWS:

SECTION 5 (A) OF PUBLIC ACT NO. 671--- 76TH CONGRESS, APPROVED JUNE 28, 1940 (54 STAT. 678), PROVIDES IN PERTINENT PART AS FOLLOWS:

" NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAWS, THE REGULAR WORKING HOURS OF THE NAVY DEPARTMENT AND THE COAST GUARD AND THEIR FIELD SERVICES SHALL BE EIGHT HOURS A DAY OR FORTY HOURS PER WEEK DURING THE PERIOD OF THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT ON SEPTEMBER 8, 1939, TO EXIST: PROVIDED, THAT UNDER SUCH REGULATIONS AS THE HEAD OF THE DEPARTMENT CONCERNED MAY PRESCRIBE, AND WHERE ADDITIONAL EMPLOYEES CANNOT BE OBTAINED TO MEET THE EXIGENCIES OF THE SITUATION, THESE HOURS MAY BE EXCEEDED: PROVIDED FURTHER, THAT COMPENSATION FOR EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK COMPUTED AT A RATE NOT LESS THAN ONE AND ONE HALF TIMES THE REGULAR RATE SHALL BE PAID * * *.'

THE EMPLOYEES IN THE FIELD SERVICE OF THE NAVY WITH A FEW EXCEPTIONS HAVE BEEN WORKING ON A FIVE-DAY, FORTY-HOUR WEEK BASIS SINCE THE ENACTMENT OF SECTION 23 OF THE ACT OF MARCH 28, 1934 (48 STAT. 522). THE METHOD OF COMPUTING THE EARNINGS OF THESE EMPLOYEES UNDER THE LAST CITED ACT HAS BEEN DEFINITELY ESTABLISHED THROUGH A LONG LINE OF DECISIONS BY THE ACCOUNTING OFFICERS.

HOWEVER, A NEW CONDITION HAS BEEN CREATED BY REASON OF RECENT ADMINISTRATIVE INSTRUCTIONS CONTEMPLATING MAXIMUM SPEED-UP OF WORK ESSENTIAL TO THE NATIONAL DEFENSE. UNDER SUCH INSTRUCTIONS SOME EMPLOYEES ON A REGULAR FIVE-DAY, FORTY-HOUR WORKWEEK ADMINISTRATIVELY ESTABLISHED AS RUNNING FROM MONDAY THROUGH FRIDAY OF EACH CALENDAR WEEK, ARE BEING DIRECTED IN THE DISCRETION OF LOCAL COMMANDANTS AND COMMANDING OFFICERS TO WORK AN ADDITIONAL TWO HOURS A DAY. THE TEN HOURS A DAY THUS WORKED RESULTS IN SUCH EMPLOYEES COMPLETING FORTY HOURS OF WORK ON THURSDAY, THE FOURTH DAY OF THEIR REGULAR WORKWEEK.

A QUESTION HAS ARISEN AS TO THE APPLICATION TO THESE CURRENT WORK CONDITIONS OF THE RULE LAID DOWN IN DECISION OF THE COMPTROLLER GENERAL OF DECEMBER 30, 1938, TO THE PUBLIC PRINTER (18 COMP. GEN. 575).

IN THE CASE ABOVE MENTIONED NO DOUBT EXISTS AS TO THE RIGHT OF EMPLOYEES WHO HAVE WORKED FORTY HOURS IN THE WORK WEEK UP TO AND INCLUDING THURSDAY, AND WHO ALSO WORK EIGHT HOURS ON FRIDAY, TO RECEIVE FORTY HOURS' STRAIGHT PAY AND EIGHT HOURS' PAY AT OVERTIME RATES.

HOWEVER, WHEN AN EMPLOYEE WHO HAS WORKED FORTY HOURS FROM MONDAY TO THURSDAY, INCLUSIVE, IS EXCUSED FOR GOOD CAUSE ON ANNUAL LEAVE WITH PAY ON FRIDAY, DOUBT HAS ARISEN AS TO WHETHER THIS LEAVE WITH PAY GRANTED ON A DAY CONSTITUTING A PART OF HIS REGULAR FIVE-DAY, FORTY/HOURS TOUR OF DUTY IS STILL SYNONYMOUS WITH WORK IN CONFORMITY WITH THE COMPTROLLER GENERAL'S DECISION OF MAY 19, 1934 (13 COMP. GEN. 370).

IF THE LEAVE WITH PAY THUS GRANTED IS CONSIDERED TO BE SYNONYMOUS WITH WORK, THEN AN EMPLOYEE WHO IS EXCUSED WITH LEAVE WITH PAY ON FRIDAY, THE LAST DAY OF HIS REGULAR FIVE-DAY, FORTY-HOUR TOUR OF DUTY, AFTER HAVING WORKED FORTY HOURS MONDAY THROUGH THURSDAY, IS ENTITLED TO BE CREDITED WITH FORTY HOURS AT STRAIGHT TIME AND EIGHT HOURS AT THE OVERTIME RATE OF PAY. THIS SEEMS EQUITABLE AND IS IN ACCORD WITH THE DECISION OF DECEMBER 30, 1938, ABOVE REFERRED TO. IT MERELY RESULTS, WHEN THE FIVE-DAY, FORTY- HOUR WORK WEEK IS CONSIDERED, IN THE EMPLOYEE BEING PAID AT OVERTIME RATES OF PAY FOR WORK OUTSIDE OF HIS REGULAR FIVE-DAY, FORTY-HOUR TOUR OF DUTY, REGARDLESS OF ON WHAT DAY OF THE WEEK THE OVERTIME WORK WAS PERFORMED. HOLD OTHERWISE WOULD CAUSE AN EMPLOYEE ON A REGULAR FIVE-DAY, FORTY HOUR WORK WEEK, WHO HAD WORKED FORTY HOURS TO THURSDAY AND WHO WAS ON LEAVE ON FRIDAY, TO BE PAID ONLY AT STRAIGHT TIME FOR HIS FORTY-EIGHT HOURS' LEAVE AND WORK FOR THE WEEK, DESPITE THE FACT THAT THE LAW GRANTS TIME AND ONE- HALF TO AN EMPLOYEE FOR TIME IN EXCESS OF FORTY HOURS DURING ANY ONE SEVEN -DAY WEEK.

IN ORDER THAT THE DISBURSING OFFICERS MAY KNOW THE PROPER BASIS ON WHICH TO COMPUTE THE PAY IN SUCH CASES, YOUR DECISION IN THE PREMISES IS REQUESTED AT SUCH EARLY DATE AS MAY BE PRACTICABLE.

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

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

UNDER THIS STATUE AN ADMINISTRATIVE OFFICE HAS A DISCRETION AS TO THE DAYS OF THE WEEK THAT ARE TO BE INCLUDED IN THE REGULAR TOUR OF DUTY OF THE EMPLOYEES COMING WITHIN THE PURVIEW OF THE STATUTE NOT TO EXCEED 40 HOURS PER WEEK. 13 COMP. GEN. 307; 16 ID. 600. HOWEVER, IT HAS BEEN HELD THAT THE 8-HOUR LAW AS AMENDED BY THE ACT OF MARCH 3, 1913, 37 STAT. 726 (40 U.S.C. 321, 322), PROHIBITING THE EMPLOYMENT OF MECHANICS, LABORERS, AND OTHERS IN SIMILAR OCCUPATIONS FOR MORE THAN 8 HOURS ON ANY ONE CALENDAR DAY EXCEPT IN CASE OF EXTRAORDINARY EMERGENCY, HAD NOT BEEN RENDERED INOPERATIVE BY SAID STATUTE. 13 COMP. GEN. 265, 270. HENCE, THERE IS NO ADMINISTRATIVE DISCRETION UNDER THE 40-HOUR WEEK LAW OF 1934, SUPRA, TO FIX THE LENGTH OF ANY REGULAR WORK DAY IN THE 40-HOUR WEEK LAW OF 1934, SUPRA, TO FIX THE LENGTH OF ANY REGULAR WORK DAY IN THE 40-HOUR WEEK AT MORE THAN 8 HOURS. AS IN THE CASE OF THE EMPLOYEES MENTIONED IN YOUR LETTER, THE USUAL PRACTICE UNDER SAID STATUTE HAS BEEN TO FIX THE REGULAR TOUR OF DUTY AS 5 DAYS OF 8 HOURS EACH.

THE 40-HOUR WEEK STATUTE OF JUNE 28, 1940, QUOTED IN YOUR LETTER, SUSPENDS, IN EFFECT, THE 40-HOUR WEEK STATUE OF 1934, SUPRA, SO FAR AS CONCERNS THE INVOLVED EMPLOYEES OF THE NAVY DEPARTMENT,"DURING THE PERIOD OF THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT ON SEPTEMBER 8, 1939," AND AUTHORIZES THE SECRETARY OF THE NAVY TO EXTEND THE HOURS OF WORK ON ANY DAY BEYOND 8 HOURS EITHER AS A PART OF THE REGULAR TOUR OF DUTY OF THE EMPLOYEES OR AS OVERTIME, BUT OVERTIME COMPENSATION IS DIRECTED TO BE PAID UNDER SAID STATUE ONLY "FOR EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK.' THE 40-HOUR WEEK STATUTE OF JUNE 28, 1940, SUSPENDS, IN EFFECT, THE 8-HOUR LAW OF 1913, AS AMENDED, ALSO, DURING THE PERIOD OF THE NATIONAL EMERGENCY, SO FAR AS THESE EMPLOYEES ARE CONCERNED. OF COURSE, THE 8-HOUR LAW IS NOT APPLICABLE IN ANY EVENT TO EMPLOYEES OF THE NAVY DEPARTMENT WHO ARE NOT MECHANICS OR LABORERS, OR WHO DO NOT FALL WITHIN THE CLASSES COMING WITHIN THE PURVIEW OF SAID STATUTE, AND THE LENGTH OF THEIR WORK DAY MAY BE FIXED WITHOUT REGARD TO SAID STATUTE.

IT IS UNDERSTOOD FROM YOUR LETTER THAT NO CHANGE HAS BEEN MADE UNDER AUTHORITY OF THE ACT OF JUNE 28, 1940, IN THE REGULAR TOUR OF DUTY OF EMPLOYEES OF THE FIELD SERVICE OF THE NAVY DEPARTMENT HERE INVOLVED, NAMELY, 5 DAYS OF 8 HOURS EACH FROM MONDAY TO FRIDAY, AND THAT THE 2 HOURS' ADDITIONAL WORK REQUIRED ON THOSE DAYS CONSTITUTES OVERTIME.

THE RULE FOR COMPUTING OVERTIME COMPENSATION DURING A WORK WEEK IN WHICH LEAVE OF ABSENCE WITH PAY HAS BEEN GRANTED, OR IN WHICH A HOLIDAY OCCURS, HAS BEEN STATED IN THE DECISION OF DECEMBER 30, 1938, 18 COMP. GEN. 575, 578, CITED BY YOU, AS FOLLOWS:

AS STATED IN THE DECISION OF APRIL 6, 1934, SUPRA, WHILE OVERTIME COMPENSATION MAY NOT BE COMPUTED ON A DAILY BASIS, THE PROPER PROCEDURE UNDER THE 40-HOUR WEEK STATUTE FOR COMPUTING REGULAR AND OVERTIME COMPENSATION FOR ANY WEEK IS NOT TO REGARD THE FIRST 40 HOURS OF THE WEEK IN A PAY STATUS AS THE WORK WEEK OF THE EMPLOYEE FOR WHOM A REGULAR TOUR OF DUTY HAS BEEN ADMINISTRATIVELY FIXED--- IN THIS CASE FROM MONDAY TO FRIDAY, INCLUSIVE--- BUT TO REGARD THE ENTIRE TOUR OF DUTY OF THE EMPLOYEE AS THE WORK WEEK. ON THAT BASIS THE EMPLOYEE SHOULD BE PAID HIS REGULAR RATE OF COMPENSATION FOR THE 5 DAYS COMPRISING HIS REGULAR WORK WEEK IF IN A PAY STATUS--- ACTUALLY WORKING, ON LEAVE OF ABSENCE WITH PAY, OR IDLE BECAUSE OF A HOLIDAY OCCURRING ON ANY OF HIS REGULAR WORK DAYS--- FOR AN AGGREGATE OF 40 HOURS DURING SUCH WEEK. FOR ANY TIME ACTUALLY WORKED DURING THE WEEK IN ADDITION TO THE 40 HOURS THUS COMPUTED, THE EMPLOYEE IS ENTITLED UNDER THE LAW TO COMPENSATION AT THE OVERTIME RATE OF TIME AND ONE HALF REGARDLESS OF THE DAY OF THE WEEK ON WHICH THE OVERTIME WORK IS PERFORMED. UNDER THAT PROCEDURE OVERTIME COMPENSATION WOULD NOT BE FOR PAYING FOR TIME NOT ACTUALLY WORKED--- REGULAR TIME, ONLY, BEING AUTHORIZED FOR LEAVE WITH PAY FOR HOLIDAYS. UNDER THIS RULE THE EMPLOYEE IN THE ILLUSTRATION STATED IN YOUR LETTER WOULD BE ENTITLED TO 40 HOURS' COMPENSATION AT HIS REGULAR RATE OF PAY AND 8 HOURS' OVERTIME COMPENSATION AT THE RATE OF TIME AND ONE-HALF. THE OVERTIME COMPENSATION SHOULD NOT BE REGARDED AS HAVING BEEN PAID FOR ANY PART OF FRIDAY, THE DAY ON WHICH HE WAS ABSENT ON ANNUAL LEAVE, BUT FOR 8 HOURS' OVERTIME ACTUALLY WORKED FOR THE PREVIOUS 4 DAYS OF THE WEEK. IN OTHER WORDS, THE 40-HOUR WEEK STATUTE OF JUNE 28, 1940, AUTHORIZES BUT REQUIRES NO CHANGE IN THE REGULAR TOUR OF DUTY OF FIELD EMPLOYEES OF THE NAVY DEPARTMENT, AND AS NO CHANGE HAS BEEN MADE ADMINISTRATIVELY IN THE REGULAR TOUR OF DUTY OF THE EMPLOYEE, NO CHANGE IS REQUIRED UNDER THE EXISTING RULE FOR COMPUTING OVERTIME COMPENSATION IN A WORK WEEK IN WHICH LEAVE OF ABSENCE OR HOLIDAY OCCUR.

ALSO, IT MAY BE STATED GENERALLY THAT REGARDLESS OF THE NUMBER OF HOURS OF WORK ON ANY DAY OR THE NUMBER OF DAYS OF WORK DURING THE WEEK WHICH ARE ADMINISTRATIVELY INCLUDED IN THE WORK WEEK OF 40 HOURS UNDER THE PROVISIONS OF THE ACT OF JUNE 28, 1940, TIME ABSENT ON LEAVE WITH PAY, OR HOLIDAYS FOR WHICH THE EMPLOYEE IS ENTITLED TO PAY WITHOUT WORKING DURING THE EMPLOYEE'S REGULAR TOUR OF DUTY, SHOULD BE REGARDED AS "EMPLOYMENT" WITHIN THE MEANING OF THE PROVISO TO SAID STATUTE FOR THE PURPOSE OF COMPUTING OVERTIME COMPENSATION. THERE IS NO PURPOSE OR INTENT SHOWN BY THE ACT OF JUNE 28, 1940, TO DENY THE RIGHT TO ANNUAL LEAVE OF ABSENCE WITH PAY OR TO HOLIDAY PAY GRANTED BY OTHER STATUTES, OR TO DENY THE RIGHT TO OVERTIME COMPENSATION FOR EMPLOYMENT IN EXCESS OF 40 HOURS SIMPLY BECAUSE OF THE FACT THAT ANY PART OF THE 40 HOURS MAY CONSIST OF ANNUAL LEAVE, OR HOLIDAYS ON WHICH NO WORK IS REQUIRED.