B-31628, FEBRUARY 24, 1943, 22 COMP. GEN. 827

B-31628, FEBRUARY 24, 1943, 22 COMP. GEN. 827

OVERTIME AND ADDITIONAL COMPENSATION UNDER ACT OF DECEMBER 22, 1942 - FULL TIME EMPLOYEES WORKING 40 HOURS OR LESS PER WEEK; PART TIME EMPLOYEES FULL TIME EMPLOYEES EMPLOYED ON NIGHT SHIFTS WHO WORK 40 HOURS, OR LESS, PER WEEK ARE NOT ENTITLED TO AN INCREASE IN COMPENSATION--- EITHER ON AN OVERTIME OR 10 PERCENT ADDITIONAL BASIS--- UNDER THE ACT OF DECEMBER 22, 1942. THE "BASIC COMPENSATION" OF PART TIME EMPLOYEES, ON WHICH IS TO BE COMPUTED THE 10 PERCENT ADDITIONAL COMPENSATION AUTHORIZED FOR SUCH EMPLOYEES BY THE ACT OF DECEMBER 22, 1942, IS TO BE REGARDED AS THE COMPENSATION LEGALLY FIXED FOR THE POSITION ON DECEMBER 22, 1942, COMPUTED IN THE PROPORTION THAT THE NUMBER OF HOURS PART TIME EMPLOYEES WORK PER WEEK BEARS TO THE NUMBER OF HOURS IN THE WORKWEEK IN EFFECT ON THAT DATE FOR FULL TIME EMPLOYEES, NOTWITHSTANDING A SUBSEQUENT INCREASE IN THE HOURS OF WORK FOR FULL TIME EMPLOYEES AND IRRESPECTIVE OF WHETHER THE PART TIME EMPLOYEES WERE HIRED BEFORE OR AFTER THE DATE OF SUCH EXTENSION OF THE HOURS FOR FULL TIME EMPLOYEES. IN THE EVENT OF A CHANGE IN THE NUMBER OF HOURS PER WEEK A PART TIME EMPLOYEE IS REQUIRED TO WORK, HIS "BASIC COMPENSATION"--- UPON WHICH THE 10 PERCENT ADDITIONAL COMPENSATION TO WHICH HE IS ENTITLED UNDER THE ACT OF DECEMBER 22, 1942, IS TO BE COMPUTED--- SHOULD BE RECOMPUTED ON THE BASIS OF THE PROPORTION THAT THE NUMBER OF HOURS PER WEEK HE WORKS BEAR TO THE NUMBER OF HOURS IN THE WORKWEEK IN EFFECT FOR FULL TIME EMPLOYEES ON THE DATE OF SAID ACT, IRRESPECTIVE OF ANY INCREASE IN THE WORKWEEK OF FULL TIME EMPLOYEES. MEDICAL CONSULTANTS WHO ARE EMPLOYED BY THE VETERANS' ADMINISTRATION AT RATES FIXED BY THE ADMINISTRATOR OF VETERANS' AFFAIRS WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND WHO ARE NOT REQUIRED TO PERFORM ANY SPECIFIC NUMBER OF HOURS OF SERVICE DURING ANY GIVEN PERIOD, ARE ENTITLED UNDER THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, TO 10 PERCENT ADDITIONAL COMPENSATION COMPUTED ON THE RATES FIXED BY THE ADMINISTRATOR.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, FEBRUARY 24, 1943:

I HAVE YOUR LETTER OF FEBRUARY 2, 1943, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF JANUARY 13, 1943, (B-31628) IN WHICH IS SET FORTH THE BASIS OF ADJUSTMENT ON WHICH ADDITIONAL COMPENSATION SHALL BE COMPUTED FOR THE MONTH OF DECEMBER 1942, UNDER THE PROVISIONS OF PUBLIC LAW NO. 821, 77TH CONGRESS, APPROVED DECEMBER 22, 1942. ADJUSTMENTS, INSOFAR AS FULL-TIME EMPLOYEES ARE CONCERNED, ARE IN PROCESS OF COMPUTATION AND PAYMENT AT THIS TIME, IN ACCORDANCE WITH THE CITED DECISION.

IN ORDER THAT THE PROVISIONS OF PUBLIC LAW NO. 821 MAY BE CORRECTLY APPLIED WITH REFERENCE TO EMPLOYEES OF THE VETERANS' ADMINISTRATION OTHER THAN THOSE WHO ARE EMPLOYED FULL TIME FURTHER INFORMATION IS DESIRED BEFORE ACTION IS TAKEN WITH REFERENCE TO ADJUSTED PAYMENTS.

YOUR DECISION OF JANUARY 7, 1943 (B-31473) TO THE CHAIRMAN OF THE WAR PRODUCTION BOARD HAS BEEN NOTED, THIS DECISION HAVING PARTICULAR REFERENCE TO THE NUMBER OF DAYS PER WEEK AND HOURS PER DAY ON WHICH EMPLOYEES IN THE DEPARTMENTAL SERVICE ARE REQUIRED TO RENDER SERVICE, TAKING INTO CONSIDERATION BOTH THE ACT OF DECEMBER 22, 1942, AND ALSO PRIOR STATUTES ( SEC. 5, ACT OF MARCH 3, 1893, AS AMENDED BY SEC. 7, ACT OF MARCH 15, 1898, ET AL). YOUR DECISION IS CONSTRUED TO REQUIRE UNDER EXISTING LEGISLATION THAT, FOR THE DEPARTMENTAL SERVICE, THE OFFICIALLY PRESCRIBED WORKDAY SHALL NOT BE LESS THAN SEVEN HOURS AND THE OFFICIAL WORKWEEK MAY NOT BE FIXED AT LESS THAN SIX DAYS.

AS STATED IN MY SUBMISSION OF JANUARY 9, 1943, TO YOU, I ISSUED INSTRUCTION THAT, EFFECTIVE DECEMBER 26, 1942,"HOURS OF DUTY VETERANS' ADMINISTRATION WILL BE EIGHT HOURS PER DAY, SIX DAYS PER WEEK, TOTAL FORTY -EIGHT HOURS.'

ATTENTION IS INVITED TO THE GROUPS OF EMPLOYEES HEREINAFTER MENTIONED. WITH REFERENCE TO EACH GROUP YOUR DECISION IS REQUESTED AS TO THE BASIS OR BASES UPON WHICH THEIR COMPENSATION, INCLUDING OVERTIME OR ADDITIONAL COMPENSATION, SHALL BE PAID.

(1) THERE IS A GROUP OF EMPLOYEES, APPOINTED AS JUNIOR CLERKS, CAF 2, $1440 PER ANNUM, NOW RENDERING SERVICE IN THE CENTRAL OFFICE OF THIS ADMINISTRATION IN WASHINGTON, WHOSE TOUR OF DUTY IS FROM 5:00 P.M. TO 12:30 A.M., INCLUDING ONE-HALF HOUR OFF FOR LUNCH, FROM MONDAY TO SATURDAY, INCLUSIVE, MAKING A TOTAL OF FORTY-TWO HOURS PER WEEK. THIS GROUP, TO AND INCLUDING THE WORKWEEK ENDING SATURDAY, JANUARY 2, 1943, WORKED FOUR HOURS ON SATURDAYS, MAKING A TOTAL OF THIRTY-NINE HOURS PER WEEK. COMMENCING WITH THE WORKWEEK ENDING SATURDAY, JANUARY 9, 1943, TO AND INCLUDING THE WORKWEEK ENDING JANUARY 23, 1943, FIVE HOURS OF SERVICE WERE REQUIRED, MAKING A TOTAL OF FORTY HOURS PER WEEK. THE WORKWEEK ENDING SATURDAY, JANUARY 30, 1943, WAS THE FIRST FORTY-TWO HOUR WEEK. FULL-TIME SALARIES HAVE BEEN PAID THESE EMPLOYEES FROM DATES OF APPOINTMENT. THE OPENING AND CLOSING HOURS SPECIFIED AS CONSTITUTING THE TOUR OF DUTY OF THIS GROUP WERE FIXED BY REASON OF THE EXIGENCIES OF THE SERVICE REQUIRING A NIGHT FORCE, CONSIDERATION BEING GIVEN TO THE LIMITED TRANSPORTATION FACILITIES UPON WHICH EMPLOYEES MUST RELY IN RETURNING TO THEIR HOMES IN THE EARLY MORNING HOURS.

(2) THERE IS ALSO A GROUP OF EMPLOYEES IN THE CENTRAL OFFICE, APPOINTED AS JUNIOR CLERKS, CAF-2, TEMPORARY, AT A COMPENSATION OF $720 PER ANNUM WHO RENDER HALF-TIME SERVICE (FOUR HOURS PER DAY) FROM 5:00 TO 9:00 P.M. MONDAY THROUGH SATURDAY OF EACH WEEK. THIS GROUP IS COMPOSED OF PERSONS WHO WILL ACCEPT EMPLOYMENT FOR A LIMITED NUMBER OF HOURS ONLY AND AT SUCH TIME OF DAY AS WILL NOT INTERFERE WITH THEIR OTHER ACTIVITIES. THE EXIGENCIES OF THE SERVICE AND THE IMPOSSIBILITY OF OBTAINING A SUFFICIENT NUMBER OF FULL-TIME EMPLOYEES MAKE MANDATORY THE HIRING OF EMPLOYEES ON A PART-TIME BASIS.

(3) THIS ADMINISTRATION HAS APPROXIMATELY FIVE HUNDRED EMPLOYEES ASSIGNED TO FIELD STATIONS WHO RENDER LESS THAN FULL-TIME SERVICE. THESE ARE MEDICAL CONSULTANTS, PART-TIME PHYSICIANS, AND PART-TIME CHAPLAINS, CHORISTERS, ORGANISTS, BARBERS, ETC. NURSES AND ATTENDANTS, IN SOME INSTANCES, ARE NOT APPOINTED ON A FULL-TIME BASIS.

(A) MEDICAL CONSULTANTS ARE APPOINTED UNDER THE AUTHORITY CARRIED IN THE ANNUAL SALARIES AND EXPENSES APPROPRIATION ITEM FOR THIS ADMINISTRATION, WHICH PROVIDES "THAT THE ADMINISTRATOR IS HEREBY AUTHORIZED TO EMPLOY MEDICAL CONSULTANTS FOR DUTY ON SUCH TERMS AS HE MAY DEEM ADVISABLE AND WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED.' THERE IS NO REQUIREMENT THAT A SPECIFIC NUMBER OF HOURS OF SERVICE SHALL BE RENDERED DURING ANY GIVEN PERIOD BY THIS TYPE OF PERSONNEL.

(B) PART-TIME PHYSICIANS ARE APPOINTED AT AN ANNUAL SALARY BASED UPON CLASSIFICATION ACT RATES, THE APPOINTMENTS SPECIFYING THAT A DESIGNATED NUMBER OF HOURS PER MONTH ARE REQUIRED TO BE WORKED. SERVICE UNDER THESE PART-TIME APPOINTMENTS MAY BE RENDERED AT ANY TIME DURING A MONTH, AS MAY BE REQUIRED BY THE STATION HEAD, I.E., THE ENTIRE TIME COULD BE WORKED AT THE BEGINNING OR AT THE END OF A MONTH, OR THE ENTIRE TIME COULD BE WORKED INTERMITTENTLY THROUGHOUT THE MONTH. PRIOR TO JANUARY 26, 1942, WHEN THIS ADMINISTRATION WAS WORKING UPON THE BASIS OF A THIRTY-NINE HOUR WEEK THE SALARIES PAID TO, AND HOURS OF WORK REQUIRED OF, THESE EMPLOYEES WERE BASED UPON A THIRTY-NINE HOUR WORK WEEK. WHEN, ON THAT DATE, THE WORKWEEK OF VETERANS ADMINISTRATION EMPLOYEES WAS ADMINISTRATIVELY LENGTHENED TO FORTY-FOUR HOURS THE APPOINTMENTS WERE CORRESPONDINGLY CHANGED SO THAT, FOR THE SAME OR APPROXIMATELY THE SAME PER ANNUM COMPENSATION, A GREATER NUMBER OF HOURS OF SERVICE WAS REQUIRED. THE ANNUAL SALARY TO BE PAID AND THE HOURS OF SERVICE TO BE RENDERED ARE COMPUTED IN ACCORDANCE WITH YOUR DECISION OF JANUARY 7, 1932, TO THIS ADMINISTRATION, 11 COMP. GEN. 260, WHICH READS:

"IN ANY CASE WHERE A PART-TIME PHYSICIAN IS REQUIRED UNDER HIS APPOINTMENT OR CONTRACT OF EMPLOYMENT TO GIVE THE GOVERNMENT ONLY A DEFINITE NUMBER OF DAYS OR HOURS OF SERVICE, AND IS NOT OTHERWISE SUBJECT TO CALL BY THE GOVERNMENT, HIS PART-TIME ANNUAL SALARY MAY NOT EXCEED AN AMOUNT PROPERLY PAYABLE FOR THE NUMBER OF DAYS AND/OR HOURS OF ACTUAL SERVICE COMPUTED ON THE BASIS OF THE ANNUAL FULL-TIME SALARY FIXED FOR A SIMILAR POSITION IN ACCORDANCE WITH THE PRINCIPLES OF CLASSIFICATION, THE DAILY RATE BEING 1/360 OF THE FULL-TIME ANNUAL SALARY RATE, AND THE HOURLY RATE BEING THE DAILY RATE DIVIDED BY THE NUMBER OF HOURS THE REGULAR FULL- TIME EMPLOYEES IN SIMILAR POSITIONS ARE REQUIRED TO WORK.'

(C) CHORISTERS, ORGANISTS AND BARBERS ARE APPOINTED ON THE SAME BASIS AS ABOVE SPECIFIED FOR PART-TIME PHYSICIANS.

(D) CHAPLAINS, AT A FEW OF THE LARGER STATIONS, ARE APPOINTED ON THE SAME BASIS AS SPECIFIED FOR PART-TIME PHYSICIANS. AT MOST STATIONS, HOWEVER, THEY ARE APPOINTED ON AN UNCLASSIFIED BASIS AT A SPECIFIED RATE PER WEEK, THE COMPENSATION BEING FIXED ADMINISTRATIVELY ACCORDING TO THE EXTENT OF THE DUTIES TO BE PERFORMED; IN THESE CASES COMPENSATION FOR A FULL CALENDAR WEEK HAS BEEN CONSIDERED AS EARNED AND PAYABLE WHEN THE REQUIRED SERVICES HAVE BEEN RENDERED ON A SUNDAY OR ON ANY OTHER DAY OF THE WEEK AS REQUESTED.

(E) NURSES AND ATTENDANTS WHO DO NOT RENDER FULL-TIME SERVICE ARE APPOINTED TO PERFORM FOUR HOURS OF SERVICE DAILY, MONDAY TO SATURDAY, INCLUSIVE.

YOUR DECISION AT THE EARLIEST PRACTICABLE DATE WILL BE APPRECIATED.

IN DECISION OF FEBRUARY 4, 1943, B-32053, 22 COMP. GEN. 752, TO THE GOVERNOR OF THE PANAMA CANAL, AFTER QUOTING SECTIONS 1, 6, AND 7 OF THE PRESIDENT'S REGULATIONS, EXECUTIVE ORDER NO. 9289, DATED DECEMBER 26, 1942, IT WAS STATED:

CLEARLY, THE PRESIDENT HAS VESTED IN ADMINISTRATIVE OFFICERS THE PRIMARY DUTY AND RESPONSIBILITY OF FIXING THE OFFICIAL HOURS OF DUTY OF EMPLOYEES AND, ALSO, THE AUTHORITY, UNDER SECTION 7 OF THE REGULATIONS, TO DETERMINE IN DOUBTFUL CASES WHICH OF THE TWO FORMULAS FOR INCREASING COMPENSATION SHOULD BE APPLIED TO VARIOUS CLASSES OF EMPLOYEES. OTHER STATUTES HAVE RECOGNIZED THAT THE FIXING OF HOURS OF DUTY PRIMARILY IS AN ADMINISTRATIVE ACTION BASED UPON THE PARTICULAR EXIGENCIES OF THE SERVICE INVOLVED. SEE 5 U.S.C. 29 AND 29 (A).

ACCORDINGLY, IN THE ABSENCE OF DEFINITE EVIDENCE THAT ADMINISTRATIVE ACTION BE CLEARLY ERRONEOUS, THIS OFFICE WOULD NOT BE DISPOSED TO QUESTION ADMINISTRATIVE ACTION TAKEN BY YOU IN RESPECT OF FIXING OFFICIAL HOURS OF DUTY OF EMPLOYEES. HOWEVER, IT MUST BE CONCLUDED THAT, AS THE OVERTIME FORMULA IS EXCLUSIVELY APPLICABLE TO FULL TIME EMPLOYEES WHO ARE PAID COMPENSATION ON A TIME BASIS INVOLVING WORK IN EXCESS OF 40 HOURS A WEEK, THERE IS NO AUTHORITY TO INCREASE BY 10 PERCENT THE COMPENSATION OF FULL TIME EMPLOYEES WHOSE REGULAR WORKWEEK HAS BEEN ADMINISTRATIVELY FIXED AT 40 HOURS, OR LESS, PER WEEK. OTHERWISE, HOWEVER, THIS OFFICE WILL NOT OBJECT TO APPLYING THE OVERTIME FORMULA TO FULL TIME EMPLOYEES WHO ARE PAID COMPENSATION ON A TIME BASIS AND WHO WORK REGULAR HOURS BASED ON AN AVERAGE NUMBER OF HOURS PER WEEK EXCEEDING 40, AND THERE MAY BE INCLUDED IN THE REGULAR WORKWEEK OF SUCH FULL TIME EMPLOYEES COMPENSATORY TIME OFF FROM DUTY DUE TO A REQUIREMENT THAT EMPLOYEES WORK LONG PERIODS AT A TIMEAND BECAUSE OF THE NECESSITY TO ROTATE EMPLOYEES OVER A 24-HOUR PERIOD EVERY DAY OF THE YEAR. SEE 21 COMP. GEN. 853, 855, AND THE DECISIONS THEREIN CITED. IN OTHER WORDS, ANY REASONABLE ADMINISTRATIVE DETERMINATION UNDER THE REGULATIONS OF THE PRESIDENT THAT EMPLOYEES WORK 48 HOURS PER WEEK, OR ANY OTHER LENGTH OF OVERTIME * * * WILL NOT BE QUESTIONED BY THIS OFFICE. ( ITALICS SUPPLIED.)

ACCORDINGLY, BASED ON THE ITALICIZED PORTION OF THE ABOVE-QUOTED DECISION, IT MUST BE CONCLUDED, ON THE FACTS PRESENTED IN YOUR QUESTION (1/--- WHICH QUESTION IS UNDERSTOOD TO RELATE EXCLUSIVELY TO FULL-TIME EMPLOYEES--- THAT THE GROUP OF EMPLOYEES REFERRED TO WOULD NOT BE ENTITLED TO AN INCREASE IN COMPENSATION UNDER THE JOINT RESOLUTION OF DECEMBER 2 1942, 56 STAT. 1068, FOR THE WEEKS DURING WHICH THEY WORKED 39 OR 40 HOURS, BUT WOULD BE ENTITLED TO AN INCREASE IN COMPENSATION ON THE BASIS OF THE "OVERTIME" FORMULA FOR TWO HOURS PER WEEK FOR THE WEEKS DURING WHICH THEY WORKED A TOTAL OF 42 HOURS. SEE ANSWERS TO THE FIRST AND SIXTH QUESTIONS IN THE DECISION OF FEBRUARY 4, 1943, SUPRA.

THE JOINT RESOLUTION OF DECEMBER 22, 1942, PROVIDES THAT EMPLOYEES WHOSE HOURS OF DUTY ARE LESS THAN FULL TIME--- THAT IS, PART-TIME EMPLOYEES SHALL BE PAID ADDITIONAL COMPENSATION "AMOUNTING TO 10 PERCENTUM OF SO MUCH OF THEIR EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF A RATE OF $2,900 PER ANNUM, AND EACH SUCH EMPLOYEE SHALL BE PAID ONLY SUCH ADDITIONAL COMPENSATION OR PORTION THEREOF AS WILL NOT CAUSE HIS AGGREGATE COMPENSATION TO EXCEED A RATE OF $5,000 PER ANNUM.' THUS, IT IS CLEAR THAT PART-TIME EMPLOYEES ARE ENTITLED TO AN ADDITIONAL AMOUNT OF 10 PERCENT OF THEIR EARNED BASIC COMPENSATION. YOUR DOUBT IN THE MATTER APPEARS TO BE AS TO THE BASIS FOR COMPUTING OR DETERMINING THE "BASIC COMPENSATION" OF SUCH PART-TIME EMPLOYEES.

AT THE TIME OF APPROVAL OF THE JOINT RESOLUTION OF DECEMBER 22, 1942, THE METHOD OF COMPUTING THE BASIC COMPENSATION OF PART-TIME EMPLOYEES WAS PROPERLY AND LEGALLY ESTABLISHED BY THE CLASSIFICATION ACT, THE DECISIONS OF THIS OFFICE (SEE 5 COMP. GEN. 302 AND 11 ID. 211), AND CIVIL SERVICE CIRCULAR NO. 389, DATED DECEMBER 12, 1942. APPLICATION OF THAT METHOD FIXED THE AMOUNT TO BE PAID PART-TIME EMPLOYEES AS A PROPORTIONATE AMOUNT OF THE ANNUAL COMPENSATION FOR FULL TIME POSITIONS IN THE SAME CLASSIFICATION GRADE. THUS, ON THE BASIS OF THE FORTY-FOUR HOUR WEEK IN EFFECT IN THE VETERANS' ADMINISTRATION WHEN THE JOINT RESOLUTION OF DECEMBER 22, 1942, WAS APPROVED, THE "BASIC COMPENSATION" FOR 22 HOURS OF WORK IN A POSITION FOR WHICH THE CLASSIFICATION ACT FIXED AN ANNUAL RATE OF $1,440 WAS $720--- 22/44 OF $1,440. FOR THE PURPOSES OF THE STATUTE HERE UNDER CONSIDERATION, THAT "BASIC COMPENSATION" WAS AS LEGALLY FIXED AS THOUGH SPECIFICALLY CONTAINED IN THE CLASSIFICATION ACT. THE "BASIC COMPENSATION" FOR ANY GIVEN NUMBER OF HOURS OF WORK IN A POSITION IN ANY CLASSIFICATION GRADE WAS AS READILY ASCERTAINABLE AND AS LEGALLY FIXED.

IN DECISION OF FEBRUARY 2, 1943, B-31872, 22 COMP. GEN. 738, TO MR. O. H. NIELSON, AUTHORIZED CERTIFYING OFFICER, WAR PRODUCTION BOARD, THE APPLICATION OF THE JOINT RESOLUTION OF DECEMBER 22, 1942, TO PART-TIME EMPLOYEES IN THE SERVICE ON THE DATE OF ITS APPROVAL WAS CONSIDERED AND IT WAS STATED:

THE AUTHORITY CONTAINED IN JOINT RESOLUTION NO. 170, APPROVED DECEMBER 22, 1942, PUBLIC LAW 821, TO PAY ADDITIONAL COMPENSATION TO REGULAR PART- TIME EMPLOYEES AMOUNTING TO TEN PERCENTUM OF SO MUCH OF THEIR EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF A RATE OF $2,900, SUBJECT TO A MAXIMUM COMPENSATION OF $5,000 PER ANNUM, CLEARLY WAS INTENDED TO RESULT IN SUCH EMPLOYEES RECEIVING AN INCREASE OF TEN PERCENTUM IN THEIR COMPENSATION. WHILE THE CONGRESS USED THE EXPRESSION "EARNED BASIC COMPENSATION" WHICH IS NOT ENTIRELY CLEAR, IN THE LIGHT OF THE DECISIONS OF THIS OFFICE AND THE CIRCULAR OF THE CIVIL SERVICE COMMISSION, REFERRED TO IN YOUR LETTER, IT DOES SEEM CLEAR THAT THE CONGRESS DID NOT INTEND TO REDUCE THE SALARIES OR GRANT AN INCREASE IN EXCESS OF TEN PERCENTUM TO EMPLOYEES SUCH AS THOSE DISCUSSED IN YOUR LETTER. THAT THE SAID DECISIONS AND THE PROVISIONS OF THE CIRCULAR REFERRED TO ARE SOUND MUST BE CONCEDED. HOWEVER, THEY WERE ISSUED PRIOR TO THE ACT OF DECEMBER 22, 1942, AND NOW MUST BE CONSIDERED AND APPLIED IN THE LIGHT OF ITS PROVISIONS. * * * FROM WHAT IS STATED IN YOUR LETTER IT APPEARS THAT THE BASIC COMPENSATION OF REGULAR PART-TIME POSITIONS IN THE WAR PRODUCTION BOARD REGULARLY AND LEGALLY WAS FIXED ON THE BASIS OF A 44-HOUR WEEK PRIOR TO APPROVAL OF THE JOINT RESOLUTION OF DECEMBER 22, 1942. THE SAID JOINT RESOLUTION DOES NOT REQUIRE THE RENDITION OF OVERTIME SERVICE BY REGULAR PART-TIME EMPLOYEES TO ENTITLE SUCH EMPLOYEES TO THE PAYMENT OF "TEN PERCENTUM OF * * * THEIR EARNED BASIC COMPENSATION.' SEE DECISION OF JANUARY 2, 1943, B-31316. TO THAT EXTENT, AT LEAST, THE OVERTIME PROVISIONS OF THE STATUTE DO NOT APPLY TO THEM.

UNDER THE CIRCUMSTANCES, AND IN ORDER TO ACCOMPLISH THE PURPOSES OF THE STATUTE AND GIVE FULL EFFECT TO THE INTENT OF THE CONGRESS, IT MUST BE REGARDED THAT THE EARNED BASIC COMPENSATION OF REGULAR PART-TIME EMPLOYEES AND THE TEN PERCENTUM ADDITIONAL COMPENSATION AUTHORIZED TO BE PAID WAS LEGALLY FIXED AND IS TO BE COMPUTED IN LINE WITH THE PRIOR DECISIONS OF THIS OFFICE AND THE CIRCULAR OF THE CIVIL SERVICE COMMISSION, SUPRA, ON THE WORK WEEK IN EFFECT ON THE DATE OF APPROVAL OF JOINT RESOLUTION NO. 170--- DECEMBER 22, 1942.

AS STATED IN THAT DECISION, THE OBVIOUS INTENT OF THE CONGRESS WAS TO AUTHORIZE 10 PERCENT ADDITIONAL COMPENSATION TO PART-TIME EMPLOYEES; AND THAT INTENT CAN BE CARRIED OUT FULLY ONLY BY APPLYING SUCH PERCENTAGE TO THE BASIC COMPENSATION RATES IN EFFECT WHEN THE JOINT RESOLUTION WAS APPROVED. THE SAID JOINT RESOLUTION DID NOT CHANGE THE BASIC COMPENSATION OF PART-TIME EMPLOYEES; IT DOES NOT REQUIRE AN INCREASE IN THE HOURS OF WORK OF PART-TIME EMPLOYEES; PAYMENT OF THE 10 PERCENT INCREASE IT AUTHORIZES IS NOT MADE CONTINGENT UPON SUCH EMPLOYEES BEING REQUIRED TO WORK LONGER HOURS IN THE EVENT OF AN ADMINISTRATIVE INCREASE IN THE WORKWEEK OF FULL-TIME EMPLOYEES; AND THERE IS NOTHING CONTAINED THEREIN, EXPRESSLY OR BY NECESSARY IMPLICATION, WHICH REQUIRES OR AUTHORIZES A CHANGE IN THE BASIC COMPENSATION OF SUCH EMPLOYEES IN THE EVENT OF A LONGER WORKWEEK FOR FULL-TIME EMPLOYEES.

ANY "BASIC COMPENSATION," COMPUTED AT MINIMUM CLASSIFICATION ACT RATES, RELATES TO THE POSITION, NOT TO THE EMPLOYEE, AND THE AMOUNT THEREOF IS DEFINITE AND CONSTANT IRRESPECTIVE OF WHETHER AN EMPLOYEE DOES OR DOES NOT OCCUPY THE POSITION. THEREFORE, IT MUST BE REGARDED THAT THE BASIC COMPENSATION OF PART-TIME EMPLOYEES WAS LEGALLY FIXED AND IS TO BE COMPUTED ON THE FULL WORKWEEK IN EFFECT ON THE DATE OF APPROVAL OF JOINT RESOLUTION NO. 170--- DECEMBER 22, 1942--- IRRESPECTIVE OF WHETHER SUCH EMPLOYEES WERE HIRED PRIOR OR SUBSEQUENT TO THE DATE ON WHICH THE HOURS OF WORK OF FULL-TIME EMPLOYEES WERE INCREASED. ANY CHANGE IN THE HOURS OF WORK OF PART-TIME EMPLOYEES WOULD REQUIRE AN ADJUSTMENT OF THEIR COMPENSATION ON THE SAME BASIS.

ACCORDINGLY, SINCE THE REGULAR WORKWEEK OF FULL-TIME EMPLOYEES IN THE VETERANS' ADMINISTRATION WAS 44 HOURS ON DECEMBER 22, 1942, THE BASIC COMPENSATION OF THE EMPLOYEES MENTIONED IN QUESTIONS 2, 3 (B), (C), (D), AND (E), OF YOUR LETTER IS TO BE COMPUTED IN THE PROPORTION THAT THE NUMBER OF HOURS THEY WORK PER WEEK BEARS TO 44 HOURS. THE 10 PERCENT ADDITIONAL COMPENSATION IS TO BE PAID ON SO MUCH THEREOF AS IS EARNED. WITH RESPECT TO YOUR QUESTION 3 (A), THE EMPLOYEES THEREIN MENTIONED ARE ENTITLED TO A FLAT 10 PERCENT ADDITIONAL TO THE AMOUNT THEY EARN AT THE RATES FIXED BY YOU FOR THEIR EMPLOYMENT.