B-31530, JANUARY 11, 1943, 22 COMP. GEN. 641

B-31530, JANUARY 11, 1943, 22 COMP. GEN. 641

COMPENSATION - ADDITIONAL OR OVERTIME - EMPLOYEES WHOSE WAGES ARE FIXED BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY IN DETERMINING WHETHER AN ADMINISTRATIVE AUTHORITY IS SIMILAR TO AND SERVES THE SAME PURPOSE AS A WAGE BOARD WITHIN THE MEANING OF THE PROVISION IN THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, EXCLUDING FROM ITS BENEFITS EMPLOYEES WHOSE WAGES ARE FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING WAGE RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY, THERE SHOULD BE FOLLOWED, GENERALLY, THE RULES STATED BY THIS OFFICE (FOR EXAMPLE, IN THE DECISIONS IN 13 COMP. GEN. 265, AND 20 ID. 392) UNDER THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, APPLICABLE TO CERTAIN CLASSES OF EMPLOYEES WHOSE COMPENSATION IS "SET BY WAGE BOARDS OR OTHER WAGE FIXING AUTHORITIES.' REGARDLESS OF WHETHER THEY BE PAID ON A PER ANNUM, PER DIEM, OR SOME OTHER BASIS, EMPLOYEES WHOSE WAGE RATES ARE ADMINISTRATIVELY FIXED UNDER GENERAL ADMINISTRATIVE AUTHORITY GRANTED BY OR PURSUANT TO STATUTE WITHOUT REFERENCE TO PREVAILING WAGES ARE NOT EXCLUDED FROM THE OVERTIME COMPENSATION BENEFITS OF THE ACT OF DECEMBER 22, 1942, BY THE PROVISO TO SECTION 1 THEREOF TO THE EFFECT THAT THE OVERTIME COMPENSATION THEREIN AUTHORIZED SHALL NOT APPLY TO EMPLOYEES WHOSE WAGES ARE FIXED ON A DAILY OR HOURLY BASIS AND ADJUSTED FROM TIME TO TIME "IN ACCORDANCE WITH PREVAILING RATES" BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY. THE FACT THAT OVERTIME COMPENSATION AT THE RATE OF TIME AND ONE-HALF HAS NOT HERETOFORE BEEN AUTHORIZED BY AN ADMINISTRATIVE AUTHORITY WHICH HAS ADOPTED A WAGE BOARD PROCEDURE IN RESPECT OF A PARTICULAR CLASS OF EMPLOYEES NOT COMING WITHIN THE PURVIEW OF THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, WOULD NOT, OF ITSELF, OPERATE TO TAKE SUCH EMPLOYEES OUT OF THE EXCEPTION TO THE OVERTIME COMPENSATION ACT OF DECEMBER 22, 1942, WHICH EXCLUDES FROM ITS BENEFITS EMPLOYEES WHOSE WAGES ARE FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY. ALTHOUGH CERTAIN EMPLOYEES OF THE DEPARTMENT OF THE INTERIOR, WHOSE WAGES OR SALARIES ARE ADMINISTRATIVELY FIXED WITH REFERENCE TO LOCAL WAGE RATES PREVAILING IN THE VICINITY OF THEIR EMPLOYMENT, ARE PAID ONLY "STRAIGHT TIME" FOR OVERTIME WORK THEY ARE NOT ENTITLED TO OVERTIME COMPENSATION AT THE RATE OF TIME AND ONE-HALF OR ADDITIONAL COMPENSATION UNDER THE ACT OF DECEMBER 22, 1942, WHICH EXCLUDES FROM ITS BENEFITS EMPLOYEES WHOSE WAGES ARE FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING WAGE RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, JANUARY 11, 1943:

I HAVE YOUR LETTER OF JANUARY 1, 1943, AS FOLLOWS:

THE DEPARTMENT OF THE INTERIOR, EMPLOYS A CONSIDERABLE NUMBER OF PERSONS IN THE FIELD SERVICE WHOSE POSITIONS ARE NOT SUBJECT TO THE CLASSIFICATION ACT OF MARCH 4, 1923 (42 STAT. 1488, 5 U.S.C. SEC. 661). WITH THE EXCEPTION OF ADVISERS AND CONSULTANTS USUALLY PAID ON A PER DIEM BASIS AND CERTAIN ASSISTANTS IN THE OFFICE OF INDIAN AFFAIRS, WAGES OR SALARIES FOR ALL SUCH EMPLOYEES ARE FIXED WITH REFERENCE TO LOCAL WAGE RATES PREVAILING IN THE VICINITY OF THEIR EMPLOYMENT. WAGE RATES FOR PART OF THIS GROUP OF EMPLOYEES ARE FIXED BY WAGE BOARDS, AND CONSEQUENTLY THEY ARE PAID TIME AND ONE-HALF FOR HOURS WORKED IN EXCESS OF FORTY HOURS A WEEK. ALL OTHER EMPLOYEES OF THE DEPARTMENT WHOSE POSITIONS ARE NOT SUBJECT TO THE CLASSIFICATION ACT, WITH THE EXCEPTIONS MENTIONED ABOVE, ARE PAID EITHER STRAIGHT TIME WAGE RATES FOR WORK IN EXCESS OF FORTY HOURS A WEEK OR MONTHLY SALARIES FOR WORK WEEKS OF VARYING LENGTHS.

IN VIEW OF THE PROVISO IN S.J. RES. 170, OF THE 77TH CONGRESS,

* * * SUCH EXTENSION SHALL NOT APPLY TO (A) THOSE WHOSE WAGES ARE FIXED ON A DAILY OR HOURLY BASIS AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE, * * * ( ITALICS SUPPLIED).

I WOULD LIKE TO BE ADVISED IF IT WAS THE INTENTION OF CONGRESS THAT THE BENEFITS OF S.J. RES. 170 BE EXTENDED TO THE EMPLOYEES OF THE DEPARTMENT OF THE INTERIOR WHOSE WAGE RATES ARE FIXED ON A DAILY OR HOURLY BASIS AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY ADMINISTRATIVE AUTHORITY BUT WHO ARE AT PRESENT PAID STRAIGHT TIME WAGE RATES FOR WORK IN EXCESS OF FORTY HOURS A WEEK.

IF YOUR ANSWER IS IN THE AFFIRMATIVE, SHOULD THE EMPLOYEES ON A DAILY BASIS BE PAID FOR OVERTIME AT A RATE OF ONE AND ONE-HALF TIMES ONE-EIGHTH OF THEIR DAILY PAY AND THOSE EMPLOYEES PAID ON AN HOURLY BASIS BE COMPENSATED FOR OVERTIME AT A RATE OF ONE AND ONE-HALF TIMES THEIR BASIC HOURLY RATE OF PAY?

EXCEPTION (A) APPEARING IN THE SECOND PROVISO TO SECTION 1 OF THE ACT OF DECEMBER 22, 1942, 56 STAT. 1068, HAS THE EFFECT OF EXCLUDING FROM ALL OF THE BENEFITS OF THAT STATUTE--- EITHER OVERTIME COMPENSATION OR ADDITIONAL COMPENSATION ON A 10 PERCENT BASIS--- ALL EMPLOYEES WHOSE WAGES ARE FIXED AND ADJUSTED FROM TIME TO TIME, IN ACCORDANCE WITH PREVAILING RATES, BY WAGE BOARDS OR OTHER SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE. IN THAT CONNECTION, SEE DECISION OF JANUARY 4, 1943, TO THE PUBLIC PRINTER, B-31430, 22 COMP. GEN. 596 WHEREIN IT WAS STATED:

THE CONGRESS RECOGNIZED THAT THERE WAS NO NEED TO PROVIDE A STATUTORY INCREASE IN COMPENSATION FOR EMPLOYEES WHOSE WAGES OTHERWISE COULD BE ADJUSTED FROM TIME TO TIME UNDER EXISTING LAWS BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE TO MEET CHANGING CONDITIONS AFFECTING LIVING COSTS AND PREVAILING WAGES, AND IT INDICATED NO INTENT TO SUPERSEDE OR TO RENDER INOPERATIVE ANY EXISTING STATUTE AUTHORIZING ADJUSTMENT OF WAGES BY WAGE BOARDS OR SIMILAR PROCEDURE.

HOWEVER, EMPLOYEES WHOSE RATES OF WAGES ARE ADMINISTRATIVELY FIXED UNDER GENERAL ADMINISTRATIVE AUTHORITY GRANTED BY OR PURSUANT TO STATUTE WITHOUT REFERENCE TO PREVAILING WAGES, DO FALL WITHIN THE PURVIEW OF THE ACT OF DECEMBER 22, 1942, AND ARE ENTITLED TO THE BENEFITS THEREOF REGARDLESS OF WHETHER THEY BE PAID ON A PER ANNUM, PER DIEM, OR SOME OTHER BASIS.

IN THE ABSENCE OF ANY OTHER RULE EXPRESSED OR IMPLIED IN THE STATUTE, IT IS BELIEVED THE CONGRESS INTENDED THAT, IN DETERMINING WHETHER AN ADMINISTRATIVE AUTHORITY IS SIMILAR TO AND SERVES THE SAME PURPOSE AS A WAGE BOARD, THERE SHOULD BE FOLLOWED, GENERALLY, THE RULES STATED BY THIS OFFICE UNDER THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING A FORTY -HOUR WEEK AND AUTHORIZING PAYMENT OF OVERTIME COMPENSATION AT THE RATE OF NOT LESS THAN TIME AND ONE-HALF TO EMPLOYEES IN THE SEVERAL TRADES AND OCCUPATIONS WHOSE COMPENSATION "IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES.' IN THAT CONNECTION, SEE THE DECISION OF APRIL 6, 1934, 13 COMP. GEN. 265, 267, WHEREIN IT WAS STATED:

IN SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT FOR 1935, ENACTED MARCH 28, 1934, 48 STAT. 522, THERE ARE USED THE TERMS "WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES" SHOWING CLEARLY THAT THE STATUTE WAS INTENDED TO APPLY NOT ONLY TO EMPLOYEES OF THE CLASSES INCLUDED WHOSE COMPENSATION IS AUTHORIZED BY LAW TO BE FIXED BY WAGE BOARDS, BUT, ALSO, TO EMPLOYEES WHOSE COMPENSATION IS AUTHORIZED TO BE FIXED ADMINISTRATIVELY UNDER A PROCEDURE SIMILAR TO THAT FOLLOWED BY WAGE BOARDS, THAT IS, WITH REFERENCE TO WAGES, ETC., PAID TO SIMILAR CLASSES IN COMMERCIAL INDUSTRY RATHER THAN WITH REFERENCE TO SALARY RATES OR SCHEDULES OF RATES SPECIFICALLY FIXED BY OR PURSUANT TO STATUTE. ALSO, SEE DECISION OF JANUARY 18, 1941 (20 COMP. GEN. 392), TO YOU.

OF COURSE, THE EXCEPTION CONTAINED IN (A) OF THE SECOND PROVISO IN SECTION 1 OF THE ACT OF DECEMBER 22, 1942, MAY EXCLUDE CERTAIN CLASSES OF EMPLOYEES FROM THE BENEFITS OF THAT STATUTE IF THEIR WAGES ARE FIXED ADMINISTRATIVELY PURSUANT TO A WAGE BOARD PROCEDURE, EVEN THOUGH THEY ARE NOT IN THE SEVERAL TRADES AND OCCUPATIONS COVERED BY THE ACT OF MARCH 28, 1934. THE FACT THAT OVERTIME COMPENSATION AT THE RATE OF TIME AND ONE- HALF HAS NOT HERETOFORE BEEN AUTHORIZED BY AN ADMINISTRATIVE AUTHORITY WHICH HAS ADOPTED A WAGE BOARD PROCEDURE IN RESPECT TO A PARTICULAR CLASS OF EMPLOYEES NOT COMING WITHIN THE PURVIEW OF THE ACT OF 1934, WOULD NOT, OF ITSELF, OPERATE TO TAKE THAT CLASS OF EMPLOYEES OUT OF THE EXCEPTION AND BRING THEM WITHIN THE PURVIEW OF THE ACT OF DECEMBER 22, 1942.

THIS OFFICE CANNOT UNDERTAKE TO DETERMINE ON THE BASIS OF YOUR PRESENT SUBMISSION--- AND IN THE ABSENCE OF ADDITIONAL INFORMATION INCLUDING A REFERENCE TO THE APPLICABLE STATUTES AND/OR ADMINISTRATIVE REGULATIONS AND A DESCRIPTION OF THE DUTIES PERFORMED--- WHETHER THE SECRETARY OF THE INTERIOR, OR THE DEPARTMENT OF THE INTERIOR, MAY BE REGARDED AS CONSTITUTING A "SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE" AS A "WAGE BOARD," IN RESPECT OF ALL OF THE INVOLVED EMPLOYEES. HOWEVER, BASED UPON THE STATEMENT IN YOUR LETTER THAT "WITH THE EXCEPTION OF ADVISERS AND CONSULTANTS USUALLY PAID ON A PER DIEM BASIS AND CERTAIN ASSISTANTS IN THE OFFICE OF INDIAN AFFAIRS, WAGES OR SALARIES FOR ALL SUCH EMPLOYEES ARE FIXED WITH REFERENCE TO LOCAL WAGE RATES PREVAILING IN THE VICINITY OF THEIR EMPLOYMENT," IT IS CONCLUDED THAT NONE OF THE INVOLVED EMPLOYEES WHOSE WAGES ARE FIXED ADMINISTRATIVELY WITH REFERENCE TO WAGE RATES PREVAILING IN THE VICINITY OF THEIR EMPLOYMENT COME WITHIN THE PURVIEW OF, OR ARE ENTITLED TO OVERTIME OR ADDITIONAL COMPENSATION UNDER THE ACT OF DECEMBER 22, 1942.

IN VIEW OF WHAT IS STATED ABOVE, NO ANSWER APPEARS REQUIRED TO THE QUESTION CONTAINED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER.