B-25457, APRIL 30, 1942, 21 COMP. GEN. 965

B-25457, APRIL 30, 1942, 21 COMP. GEN. 965

40-HOUR WEEK EMPLOYEES - LEAVES OF ABSENCE AND OVERTIME COMPENSATION UNDER THE ACT OF MARCH 28, 1934, THE ACT OF JULY 2, 1940, AND OTHER SIMILAR STATUTES AUTHORIZING OVERTIME COMPENSATION FOR CERTAIN EMPLOYEES AT OVERTIME RATES FOR WORK IN EXCESS OF 40 HOURS PER WEEK, IT IS NECESSARY THAT A REGULAR WEEKLY TOUR OF DUTY OF 40 HOURS BE ADMINISTRATIVELY FIXED FOR SUCH EMPLOYEES DURING WHICH THEIR REGULAR RATES OF COMPENSATION ARE PAYABLE IN ORDER THAT THE COMPENSATION FOR OVERTIME WORK MAY BE PROPERLY COMPUTED, AND IT IS WITHIN ADMINISTRATIVE DISCRETION TO SELECT THE DAYS OF THE WEEK ON WHICH THE 40 HOURS' WORK IS TO BE PERFORMED. WAR DEPARTMENT EMPLOYEES SUBJECT TO THE 40-HOUR WEEK ACT OF MARCH 28, 1934, OR OTHER SIMILAR STATUTE, INCLUDING PER ANNUM EMPLOYEES SUBJECT TO THE ACTS OF OCTOBER 21, 1940, AND JUNE 3, 1941, SHOULD BE CHARGED WITH OR GRANTED ANNUAL OR SICK LEAVES OF ABSENCE ONLY ON DAYS WITHIN THEIR REGULAR 40-HOUR WEEKLY TOUR OF DUTY, AND, THEREFORE, THEY MAY NOT BE GRANTED SUCH LEAVE FOR ANY DAY OUTSIDE SUCH TOUR OF DUTY FOR WHICH OVERTIME COMPENSATION AT OVERTIME RATES AUTHORIZED BY THE ACTS WOULD BE PAYABLE HAD THEY WORKED. ANNUAL AND SICK LEAVE CREDIT FOR EMPLOYEES OF THE WAR DEPARTMENT WHO ARE WITHIN THE PURVIEW OF THE 40-HOUR WEEK ACT OF MARCH 28, 1934, OR OTHER SIMILAR STATUTE, ACCUMULATES ON THE BASIS OF THE YEAR FOR ANNUAL LEAVE AND ON THE BASIS OF THE MONTH FOR SICK LEAVE, RATHER THAN ON THE BASIS OF THE NUMBER OF DAYS IN THEIR ADMINISTRATIVELY ESTABLISHED WORK WEEK OF 40 HOURS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, APRIL 30, 1942:

I HAVE YOUR LETTER OF APRIL 17, 1942, AS FOLLOWS:

ON JANUARY 19, 1942, ORDERS "A" WERE ISSUED ESTABLISHING HOURS OF DUTY OR EMPLOYEES IN THE DEPARTMENTAL AND FIELD SERVICES OF THE WAR DEPARTMENT. COPY OF THE ORDERS IS ENCLOSED HEREWITH. IT IS NOW REPORTED TO THIS OFFICE BY THE COMMANDING GENERAL OF THE SERVICES OF SUPPLY THAT SERIOUS DIFFICULTIES HAVE BEEN EXPERIENCED IN ADMINISTERING THESE ORDERS FROM AN EFFICIENT OPERATING STANDPOINT, BECAUSE OF LACK OF FLEXIBILITY WHICH PREVENTS LOCAL COMMANDING OFFICERS FROM DEALING WITH THEIR PARTICULAR OPERATING PROBLEMS IN THE MOST EFFICIENT MANNER; AND HE HAS SUBMITTED A DRAFT, ENCLOSED HEREWITH, MARKED "B," OF NEW ORDERS TO SUPERSEDE THE ORDERS "A" OF JANUARY 19, 1942.

AFTER A CONFERENCE WITH A REPRESENTATIVE OF YOUR OFFICE, NEW ORDERS ON THIS SUBJECT HAVE BEEN DRAFTED BY THIS OFFICE, AND A COPY OF THIS DRAFT IS ALSO ENCLOSED HEREWITH, MARKED "C.'

AS THE DIFFICULTIES ENCOUNTERED BY YOUR OFFICE IN AUDITING ACCOUNTS WHICH INVOLVE HOURS OF LABOR AND OVERTIME, LEAVE OF ABSENCE OR ABSENCE WITHOUT PAY, ETC., ARE INCREASED BY LACK OF CLARITY IN THE REGULATIONS, IT IS REQUESTED THAT YOU INDICATE WHICH OF THE NEW DRAFTS OR ORDERS WILL, IN YOUR OPINION, BEST ACCOMPLISH THE DESIRED PURPOSE.

THE PROPOSED ORDER, DESIGNATED AS (C), READS AS FOLLOWS:

1. ORDERS "A," JANUARY 19, 1942, ARE HEREBY RESCINDED.

2. ALL DEPARTMENTAL AND FIELD ACTIVITIES OF THE WAR DEPARTMENT WILL BE OPEN FOR BUSINESS ON A 7-DAY WEEK BASIS. OFFICES AND ACTIVITIES IN THE DISTRICT OF COLUMBIA WILL BE OPEN FOR BUSINESS BETWEEN THE HOURS OF 8:15 A.M. AND 5:00 P.M. EVERY DAY INCLUDING SUNDAY. THE STARTING HOURS OF EMPLOYEES IN THE FIELD SERVICE OUTSIDE OF THE DISTRICT OF COLUMBIA WILL BE FIXED BY COMMANDING OFFICERS OR HIGHER AUTHORITY, IN ACCORDANCE WITH LOCAL CONDITIONS.

3. THE FOLLOWING CONDITIONS WILL GOVERN THE HOURS OF WORK OF EMPLOYEES IN THE FIELD SERVICE OF THE DEPARTMENT:

A. AN ADMINISTRATIVE WORK-WEEK OF 40 HOURS, EXCLUSIVE OF PERIODS FOR LUNCH, IS HEREBY ESTABLISHED FOR ALL EMPLOYEES IN THE FIELD SERVICE OF THE DEPARTMENT. ALL ANNUAL AND SICK LEAVE WILL ACCUMULATE AND BE CHARGED ON THE BASIS OF FIVE 8-HOUR DAYS OF WORK PER WEEK. ( ITALICS SUPPLIED.)

B. COMMANDING OFFICERS OR HIGHER AUTHORITY WILL REQUIRE WORK IN EXCESS OF 40 HOURS OR OF FIVE DAYS PER WEEK, EXCEPT WHEN NOT JUSTIFIED BY LOCAL CONDITIONS. IT WILL BE THE POLICY OF THE DEPARTMENT TO WORK EMPLOYEES 8 HOURS OVERTIME PER WEEK, EXCEPT THOSE INDIVIDUALS OR CLASSES OF EMPLOYEES WHO CANNOT BE EFFICIENTLY EMPLOYED THE EXTRA 8 HOURS.

C. THE TOUR OF DUTY OF EMPLOYEES WITHIN AN ADMINISTRATIVE 40-HOUR WORK WEEK WILL BE SET BY COMMANDING OFFICERS OR HIGHER AUTHORITY IN ACCORDANCE WITH LOCAL CONDITIONS, AND OVERTIME COMPENSATION FOR WORK IN EXCESS OF 40 HOURS PER WEEK WILL BE PAID TO THOSE EMPLOYEES ELIGIBLE THEREFOR IN ACCORDANCE WITH CURRENT REGULATIONS AND UNDER EXISTING LEGISLATION AND EXECUTIVE ORDERS.

D. LABORERS AND MECHANICS WILL NOT BE EMPLOYED FOR MORE THAN EIGHT HOURS PER DAY EXCEPT ON PROJECTS FOR WORK ON WHICH THE EIGHT-HOUR LAW HAS BEEN SUSPENDED, BY ACT OF JULY 2, 1940 (54 STAT. 714; 5 U.S.C. 189 A), BY EXECUTIVE ORDER, OR BY SPECIFICATION OF THE SECRETARY OF WAR UNDER AN EXECUTIVE ORDER.

4. THE FOLLOWING CONDITIONS WILL GOVERN HOURS OF WORK FOR EMPLOYEES IN THE DEPARTMENTAL SERVICE OF THE DEPARTMENT:

A. THE HOURS OF WORK IN OFFICES WORKING ONLY ONE SHIFT WILL BE FROM 8:15 A.M. TO 5:00 P.M., TO INCLUDE 45 MINUTES FOR LUNCH. THE CHIEFS OF BUREAUS, STAFF ORGANIZATIONS, AND OPERATING DIVISIONS ARE HEREBY AUTHORIZED TO MAKE MINOR CHANGES IN THESE HOURS TO PROVIDE FOR SECOND AND THIRD SHIFTS.

B. AN ADMINISTRATIVE WORK WEEK OF 48 HOURS, SIX 8-HOUR DAYS, PER WEEK, EXCLUSIVE OF PERIODS FOR LUNCH, IS HEREBY ESTABLISHED FOR ALL EMPLOYEES IN THE DEPARTMENTAL SERVICE. WORK IN EXCESS OF 48 HOURS MAY BE REQUIRED BY THE CHIEFS OF BUREAUS, STAFF ORGANIZATIONS, ADMINISTRATIVE SERVICES, OPERATING DIVISIONS, OR COMMANDS WHEN IT IS ESSENTIAL THAT WORK BE COMPLETED IMMEDIATELY.

5.REFUSAL ON THE PART OF ANY EMPLOYEE TO WORK IN EXCESS OF THE ADMINISTRATIVE WORK WEEKS THEREIN PRESCRIBED WILL BE THE BASIS FOR DISCIPLINARY ACTION BY THE DEPARTMENT.

6. THESE ORDERS WILL BE EFFECTIVE MAY 1, 1942.

THE FIXING OF HOURS OF WORK FOR FEDERAL EMPLOYEES IS THE RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE, THE JURISDICTION OF THIS OFFICE WITH RESPECT THERETO EXTENDING ONLY TO A DETERMINATION THAT EXPENDITURES FOR SALARY OR WAGES ARE AUTHORIZED UNDER THE LAW. 17 COMP. GEN. 3.

THERE APPEAR TO BE FOUR 40-HOUR WEEK STATUTES APPLICABLE TO VARIOUS CLASSES OF EMPLOYEES OF THE WAR DEPARTMENT, WHICH, IN THE ORDER OF THEIR ENACTMENT, ARE AS FOLLOWS:

(1) SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522;

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.

(2) SECTION 4 (B) OF THE ACT OF JULY 2, 1940, 54 STAT. 714;

NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, THE REGULAR WORKING HOURS OF LABORERS AND MECHANICS EMPLOYED BY THE WAR DEPARTMENT, WHO ARE ENGAGED IN THE MANUFACTURE OR PRODUCTION OF MILITARY EQUIPMENT, MUNITIONS OR SUPPLIES SHALL BE EIGHT HOURS PER DAY OR FORTY HOURS PER WEEK DURING THE PERIOD OF ANY NATIONAL EMERGENCY DECLARED BY THE PRESIDENT TO EXIST: PROVIDED, THAT UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE, SUCH HOURS MAY BE EXCEEDED, BUT COMPENSATION FOR EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY WORKWEEK, COMPUTED AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE, SHALL BE PAID TO SUCH LABORERS AND MECHANICS.

(3) ACT OF OCTOBER 21, 1940, 54 STAT. 1205;

THAT NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, 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 IS HEREBY AUTHORIZED TO BE PAID AT SUCH PLACES AND TO SUCH MONTHLY, PER DIEM, HOURLY, AND PIECEWORK EMPLOYEES OF THE FIELD SERVICES OF THE WAR DEPARTMENT AND THE FIELD SERVICES OF THE PANAMA CANAL WHOSE WAGES ARE SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES, AND ALSO TO PROFESSIONAL AND SUBPROFESSIONAL EMPLOYEES, AND TO BLUEPRINTERS, PHOTOSTAT AND ROTAPRINT OPERATORS, INSPECTORS, STOREKEEPERS, TOOLKEEPERS, AND SHOP SUPERINTENDENTS OF THE CAF SERVICE, AS DEFINED BY THE CLASSIFICATION ACT OF MARCH 4, 1923 (42 STAT. 1488; 5 U.S.C. CH. 13), AS AMENDED, AS SHALL BE DESIGNATED FROM TIME TO TIME BY THE SECRETARY OF WAR OR THE GOVERNOR OF THE PANAMA CANAL, AS THE CASE MAY BE, AND THE SECRETARY OF WAR AND THE GOVERNOR OF THE PANAMA CANAL ARE AUTHORIZED TO PRESCRIBE FOR THEIR RESPECTIVE SERVICES, REGULATIONS FOR OVERTIME EMPLOYMENT FOR SAID EMPLOYEES OR ANY OF THEM: PROVIDED, THAT IN DETERMINING THE OVERTIME COMPENSATION OF THE FOREGOING PER ANNUM GOVERNMENT EMPLOYEES THE PAY FOR ONE DAY SHALL BE CONSIDERED TO BE ONE THREE-HUNDRED AND SIXTIETH OF THEIR RESPECTIVE PER ANNUM SALARIES.

SEC. 2. THE PROVISIONS OF THIS ACT SHALL BE EFFECTIVE DURING THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT ON SEPTEMBER 8, 1939, TO EXIST, AND SHALL TERMINATE JUNE 30, 1942, UNLESS THE CONGRESS SHALL OTHERWISE PROVIDE.

(4) SECTION 1 OF THE ACT OF JUNE 3, 1941, 55 STAT. 241;

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, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, TO THOSE PER ANNUM EMPLOYEES IN THE FIELD SERVICE OF THE WAR DEPARTMENT, THE PANAMA CANAL, THE NAVY DEPARTMENT, AND THE COAST GUARD, WHOSE OVERTIME SERVICES ARE ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF THE OVERTIME WORK UPON WHICH THE EMPLOYEES ENUMERATED IN SECTION 5 (A) OF THE ACT OF JUNE 28, 1940, AND SECTION 1 OF THE ACT OF OCTOBER 21, 1940, ARE ENGAGED: 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.

SEE, ALSO, EXECUTIVE ORDER NO. 8837, DATED JULY 30, 1941, ISSUED UNDER THE LAST ABOVE-QUOTED STATUTE.

AS OVERTIME COMPENSATION AT THE RATE OF NOT LESS THAN TIME AND ONE HALF IS AUTHORIZED OR REQUIRED TO BE PAID FOR WORK IN EXCESS OF 40 HOURS PER WEEK UNDER ALL OF THE QUOTED STATUTES, IT IS NECESSARY FOR THE ADMINISTRATIVE OFFICE TO FIX A REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK, DURING WHICH THE REGULAR RATE OF COMPENSATION IS PAYABLE IN ORDER THAT OVERTIME COMPENSATION AT THE OVERTIME RATE MAY BE PROPERLY COMPUTED FOR WORK IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORK WEEK. DECISION OF NOVEMBER 3, 1941, B-21237; 21 COMP. GEN. 471, 473. IT IS WITHIN ADMINISTRATIVE DISCRETION TO FIX THE REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK, THAT IS, TO SELECT THE DAYS OF THE WEEK DURING WHICH THE 40 HOURS' WORK IS TO BE PERFORMED. 13 COMP. GEN. 307; 18 ID. 206. THE USUAL PRACTICE HAS BEEN TO FIX SUCH TOUR OF DUTY AS EIGHT HOURS PER DAY ON ANY FIVE DAYS OF THE WEEK--- THAT APPEARING TO BE THE PLAN ADOPTED IN THE PROPOSED ORDER QUOTED ABOVE. ANNUAL AND SICK LEAVES OF ABSENCE ARE CHARGEABLE ON THE BASIS OF THE NUMBER OF DAYS PER WEEK INCLUDED IN THE REGULAR 40-HOUR TOUR OF DUTY OF THE EMPLOYEES, WHICH TOUR OF DUTY, UNDER THE PROPOSED ORDER, IS FIVE 8-HOUR DAYS PER WEEK. 13 COMP. GEN. 295; ID. 370; 14 ID. 351. LEAVE OF ABSENCE IS NOT ALLOWABLE OR CHARGEABLE FOR ABSENCE ON ANY DAY OF THE WEEK OUTSIDE OF THE REGULAR TOUR OF DUTY OF THE EMPLOYEES EVEN THOUGH THEY MAY BE ORDERED TO WORK OVERTIME ON SUCH DAYS. SEE THE PROVISIONS OF THE LEAVE ACT OF MARCH 2, 1940, 54 STAT. 38. COMPARE DECISION OF APRIL 2, 1942, B-24647, 21 COMP. GEN. 901.

WHILE PER ANNUM EMPLOYEES FOR WHOM THE SECRETARY OF WAR FIXES A 40 HOUR, 5-DAY WEEK, PURSUANT TO THE ACTS OF OCTOBER 21, 1940, OR JUNE 3, 1941, ABOVE-QUOTED, WOULD RECEIVE THEIR REGULAR ANNUAL COMPENSATION FOR DAYS OUTSIDE OF THEIR REGULAR TOUR OF DUTY WITHOUT WORKING (UNLESS WITHHELD AS A DISCIPLINARY MEASURE FOR REFUSAL OR FAILURE TO WORK ON SUCH DAYS AS PROPOSED UNDER PARAGRAPH 5 OF THE QUOTED ORDER), NEVERTHELESS, ANNUAL OR SICK LEAVE WITH PAY, WHICH IS SYNONYMOUS WITH A DUTY STATUS, MAY NOT BE GRANTED OR CHARGED FOR DAYS OUTSIDE THE REGULAR TOUR OF DUTY OF THE EMPLOYEES. THE 40-HOUR WEEK STATUTES ABOVE QUOTED, APPLICABLE TO PER ANNUM EMPLOYEES, CLEARLY CONTEMPLATE PAYMENT OF OVERTIME COMPENSATION ONLY FOR ACTUAL WORK PERFORMED IN ADDITION TO 40 HOURS PER WEEK. WHILE ANNUAL AND SICK LEAVES OF ABSENCE OCCURRING WITHIN THE REGULAR TOUR OF DUTY OF SUCH EMPLOYEES MAY BE INCLUDED AS A PART OF THE 40 HOURS, THERE IS NO AUTHORITY TO GRANT OR CHARGE ANNUAL OR SICK LEAVE FOR ANY DAY FOR WHICH OVERTIME COMPENSATION AT OVERTIME RATES WOULD BE PAYABLE HAD THE EMPLOYEE WORKED.

HOWEVER, LEAVE OF ABSENCE DOES NOT ACCUMULATE ON THE BASIS OF THE NUMBER OF DAYS IN THE REGULAR TOUR OF DUTY OF THE EMPLOYEES, BUT ON THE BASIS OF THE YEAR FOR ANNUAL LEAVE AND ON THE BASIS OF THE MONTH FOR SICK LEAVE. SEE THE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162. HENCE, THE WORDS "ACCUMULATE AND," APPEARING IN PARAGRAPH 3 (A) OF THE PROPOSED ORDER, SUPRA, WHICH I HAVE EMPHASIZED FOR READY IDENTIFICATION, SHOULD BE ELIMINATED THEREFROM.

WITH THAT SUGGESTED AMENDMENT, IT IS THE VIEW OF THIS OFFICE THAT THE ABOVE-QUOTED PROPOSED ORDER, DESIGNATED IN YOUR LETTER AS (C), RATHER THAN THE ORDER DESIGNATED AS (B), WOULD MEET THE TERMS AND CONDITIONS OF THE CONTROLLING STATUTES AND THE NEEDS OF THIS OFFICE IN THE AUDIT OF ACCOUNTS.