B-31747, FEBRUARY 9, 1943, 22 COMP. GEN. 776

B-31747, FEBRUARY 9, 1943, 22 COMP. GEN. 776

ADDITIONAL COMPENSATION UNDER ACT OF DECEMBER 22, 1942 - LIBRARY OF CONGRESS "SUNDAY OPENING" EMPLOYEES THE SPECIAL ADMINISTRATIVELY FIXED PER DIEM RATE COMPENSATION PAID TO REGULAR EMPLOYEES OF THE LIBRARY OF CONGRESS OR OTHER FEDERAL AGENCY WHO ARE ENGAGED UNDER THE " SUNDAY OPENING" ITEM IN THE LEGISLATIVE BRANCH APPROPRIATION ACT, 1943, FOR WORK ON SUNDAYS OR HOLIDAYS AT THE LIBRARY OF CONGRESS IS SEPARATE AND DISTINCT FROM AND NOT TO BE COMBINED IN ANY MANNER WITH THE EMPLOYEES' REGULAR RATE OF COMPENSATION FOR PURPOSES OF APPLYING THE SALARY LIMITATIONS OF $2,900 AND $5,000 PER ANNUM, OR THE FORMULAS FOR INCREASING EITHER OR BOTH RATES OF COMPENSATION, PRESCRIBED BY THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942. IN APPLYING THE SALARY LIMITATIONS OF $2,900 AND $5,000 PER ANNUM, PRESCRIBED BY THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, TO THE ADMINISTRATIVELY FIXED SPECIAL PER DIEM COMPENSATION RATE FOR PERSONS ENGAGED UNDER THE " SUNDAY OPENING" ITEM IN THE LEGISLATIVE BRANCH APPROPRIATION ACT, 1943, FOR SUNDAY AND HOLIDAY WORK AT THE LIBRARY OF CONGRESS, THE PER DIEM EQUIVALENTS OF THE PER ANNUM SALARY LIMITATIONS MAY BE COMPUTED BY DIVIDING $2,900 AND $5,000 BY 60, THE TOTAL NUMBER OF SUNDAYS AND HOLIDAYS DURING THE YEAR FOR WHICH THE EMPLOYEES NORMALLY COULD RECEIVE THE SPECIAL COMPENSATION IF THEY WORKED ON ALL OF THE SUNDAYS AND HOLIDAYS OF THE YEAR.

COMPTROLLER GENERAL WARREN TO THE LIBRARIAN OF CONGRESS, FEBRUARY 9, 1943:

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

I ACKNOWLEDGE WITH THANKS THE RECEIPT OF YOUR LETTER (B-31747) OF JANUARY 20, 1943, RELATING TO THE PAYMENT OF ADDITIONAL COMPENSATION, UNDER PUBLIC LAW 821, 77TH CONGRESS, TO EMPLOYEES OF THE LIBRARY OF CONGRESS PAID FOR EXTRA SERVICES UNDER THE APPROPRIATION " SUNDAY OPENING, LIBRARY OF CONGRESS" AND " SUNDAY OPENING, LIBRARY BUILDINGS, LIBRARY OF CONGRESS.'

IN COMPUTING THIS ADDITIONAL COMPENSATION IN ACCORDANCE WITH YOUR DECISION I PROPOSE TO ADOPT THE FOLLOWING PROCEDURE:

1. I PROPOSE TO DETERMINE THE $2,900 AND $5,000 SALARY LIMITATIONS INVOLVED IN THE APPLICATION OF THE ACT IN ACCORDANCE WITH THE METHOD PRESCRIBED IN YOUR LETTER B-31316, JANUARY 2, 1943, TO THE ARCHITECT OF THE CAPITOL, BY COMPUTING THE PER ANNUM EQUIVALENT OF THE PER DIEM RATES OF THE EMPLOYEES INVOLVED. IT WILL BE ASSUMED FOR THE PURPOSE OF THIS COMPUTATION THAT EACH OF THESE EMPLOYEES WILL WORK ON ALL OF THE SUNDAYS AND HOLIDAYS COVERED BY THE APPROPRIATIONS, TOTALING 60 PER ANNUM. NEVERTHELESS, SINCE IT IS IMPOSSIBLE TO PREDICT THE ACTUAL NUMBER OF SUNDAYS AND HOLIDAYS WHICH ANY ONE EMPLOYEE WILL WORK DURING THE YEAR, THE MAXIMUM NUMBER WHICH ANY ONE COULD WORK OFFERS THE MOST CONVENIENT BASIS FOR CALCULATION.

2. IN CALCULATING THE ADDITIONAL COMPENSATION ON PAYMENTS FOR " SUNDAY OPENING" I PROPOSE TO DISREGARD THE REGULAR PER ANNUM SALARIES OF THE EMPLOYEES INVOLVED. SIMILARLY, IN CALCULATING THE ADDITIONAL COMPENSATION ON THEIR PER ANNUM SALARIES I PROPOSE TO DISREGARD THE EXTRA PAYMENTS MADE TO THEM FROM " SUNDAY OPENING.' INDEED, TO DO OTHERWISE WOULD BE IMPOSSIBLE DUE TO THE INTERMITTENT CHARACTER AND UNPREDICTABLE AMOUNT OF THESE EXTRA PAYMENTS. (IN THIS CONNECTION IT MAY BE NOTED THAT EXTRA PAYMENTS FROM " SUNDAY OPENING" ARE NOT RECKONED WITH REGULAR PER ANNUM COMPENSATION FOR PURPOSES OF COMPUTING, FOR EXAMPLE, RETIREMENT DEDUCTIONS.)

I AM ANXIOUS TO LEARN AS SOON AS POSSIBLE WHETHER YOU WILL APPROVE THE PROCEDURE OUTLINED ABOVE.

IT WAS HELD IN DECISION OF JANUARY 20, 1943, 22 COMP. GEN. 682, TO YOU, THAT THE BASIC RATE OF COMPENSATION ADMINISTRATIVELY FIXED FOR EXTRA SERVICES ON SUNDAYS AND HOLIDAYS AUTHORIZED UNDER THE APPROPRIATION ITEM " SUNDAY OPENING" IN THE LEGISLATIVE BRANCH APPROPRIATION ACT, 1943, APPROVED JUNE 8, 1942, 56 STAT. 330, PUBLIC LAW 600, SHOULD BE INCREASED BY 10 PERCENT UNDER JOINT RESOLUTION 170 OF DECEMBER 22, 1942, 56 STAT. 1068. THAT INCREASE FOR SUNDAY AND HOLIDAY WORK, AS WELL AS THE SALARY LIMITATIONS OF $2,900 AND $5,000 PER ANNUM PRESCRIBED IN PUBLIC LAW 821, ARE REQUIRED TO BE COMPUTED ON THE SUNDAY OPENING RATES OF COMPENSATION WITHOUT REGARD TO THE REGULAR RATES OF COMPENSATION OF THE EMPLOYEES OF THE LIBRARY OF CONGRESS OR OTHER FEDERAL AGENCY IN WHICH THE EMPLOYEES ARE REGULARLY EMPLOYED. IN OTHER WORDS, REGULAR COMPENSATION AND THE SPECIAL RATE COMPENSATION FOR WORK ON SUNDAYS AND HOLIDAYS ARE SEPARATE AND DISTINCT AND ARE NOT TO BE COMBINED IN ANY MANNER IN APPLYING THE FORMULAS FOR INCREASING EITHER OR BOTH RATES UNDER THE SAID LAW.

IN DECISION OF JANUARY 2, 1943, B-31316, 22 COMP. GEN. 589, TO THE ARCHITECT OF THE CAPITOL, TO WHICH YOU REFER, IT WAS STATED:

* * * IT IS HELD THAT IN APPLYING THE SALARY LIMITATIONS OR CEILING RATES OF $2,900 AND $5,000 PER ANNUM FOR EMPLOYEES WHO ARE PAID COMPENSATION ON A PER DIEM OR PER HOUR BASIS, RATHER THAN ON A PER ANNUM BASIS FOR FULL TIME, INTERMITTENT, OR PART TIME SERVICE, THE PER DIEM SALARY LIMITATIONS OR CEILING RATES MAY BE COMPUTED BY DIVIDING THE RATES OF $2,900 AND $5,000 PER ANNUM BY THE NUMBER OF DAYS DURING THE YEAR FOR WHICH THE EMPLOYEES RECEIVE THEIR COMPENSATION. * * *

THE HOLDING IN THAT DECISION WAS MADE WITH PARTICULAR REFERENCE TO FULL- TIME EMPLOYEES PAID ON A PER DIEM OR PER HOUR BASIS. HOWEVER, IT IS BELIEVED THAT THE UNDERLYING PRINCIPLE OF SAID HOLDING SHOULD BE APPLIED, ALSO, IN COMPUTING THE SALARY LIMITATIONS OR CEILING RATES OF $2,900 AND $5,000 PER ANNUM FOR EMPLOYEES WHO WORK INTERMITTENTLY OR IRREGULARLY AND WHOSE COMPENSATION IS COMPUTED ON A PER DIEM OR PER HOUR BASIS WHEN ACTUALLY EMPLOYED, AS DISTINGUISHED FROM PART-TIME EMPLOYEES WHO WORK A REGULAR WEEKLY TOUR OF DUTY AND WHOSE COMPENSATION IS COMPUTED ON A PROPORTIONATE PER ANNUM BASIS. (SEE CIVIL SERVICE CIRCULAR NO. 389, DATED DECEMBER 12, 1942, AND DECISION OF FEBRUARY 2, 1943, B-31872, 22 COMP. GEN. 738, TO MR. O. H. NIELSON, AUTHORIZED CERTIFYING OFFICER, WAR PRODUCTION BOARD. COMPARE 8 COMP. GEN. 261. THAT IS TO SAY THE PER ANNUM SALARY LIMITATION OR CEILING RATE FOR SUNDAY AND HOLIDAY WORK MAY BE COMPUTED BY DIVIDING THE RATES OF $2,900 AND $5,000 PER ANNUM BY 60, THE TOTAL NUMBER OF SUNDAYS AND HOLIDAYS DURING THE YEAR FOR WHICH THE EMPLOYEES NORMALLY COULD RECEIVE THE SPECIAL PER DIEM RATE OF COMPENSATION IF THEY WORKED ON ALL OF THE SUNDAYS AND HOLIDAYS OF THE YEAR, AS YOU SUGGEST. HENCE, ON THAT BASIS ALL EMPLOYEES MAY BE PAID A 10 PERCENT INCREASE ON THE ENTIRE AMOUNT OF THE ADMINISTRATIVELY FIXED SPECIAL PER DIEM SALARY FOR SUNDAY AND HOLIDAY WORK, FOR THE REASON THAT THE TOTAL UNQUESTIONABLY WOULD BE LESS THAN THE PER DIEM SALARY LIMITATION OR CEILING RATE.