B-31908, JANUARY 27, 1943, 22 COMP. GEN. 714

B-31908, JANUARY 27, 1943, 22 COMP. GEN. 714

OVERTIME COMPENSATION UNDER THE ACT OF DECEMBER 22, 1942 - ENTRY ON DUTY AFTER THE BEGINNING, OR SEPARATION FROM SERVICE BEFORE THE END, OF THE REGULARLY ESTABLISHED WORKWEEK IN ACCORDANCE WITH EXECUTIVE ORDER NO. 9289 PROVIDING FOR COMPUTATION ON AN ANNUAL BASIS OF THE OVERTIME COMPENSATION OF PER ANNUM EMPLOYEES PAYABLE UNDER THE ACT OF DECEMBER 22, 1942, FOR EMPLOYMENT IN EXCESS OF 40 HOURS PER WEEK, THE COMPENSATION OF AN EMPLOYEE WHO DOES NOT WORK IN EXCESS OF 40 HOURS DURING THE REGULARLY ESTABLISHED WORKWEEK BECAUSE OF ENTRY ON DUTY AFTER THE BEGINNING, OR SEPARATION FROM SERVICE BEFORE THE END, OF THE WORKWEEK SHOULD BE COMPUTED ON THE BASIS OF ALLOWING 1/360 OF THE GROSS COMPENSATION, INCLUDING BOTH BASIC AND OVERTIME COMPENSATION, FOR EACH DAY IN A PAY STATUS DURING THE PAY PERIOD.

COMPTROLLER GENERAL WARREN TO O. A. ZIMMERLI, DEPARTMENT OF AGRICULTURE, JANUARY 27, 1943:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 20, 1943 (FILE A, DISBURSEMENT, VOUCHERS, PAY ROLLS) AS FOLLOWS:

ENCLOSED HEREWITH ARE THREE PAY ROLLS IN AMOUNTS OF $145.78, $29.92, AND $27.90, WHICH WERE SUBMITTED TO ME FOR SIGNATURE AS AUTHORIZED CERTIFYING OFFICER. THESE PAY ROLLS COVER OVERTIME FOR DECEMBER UNDER ACT APPROVED DECEMBER 22, 1942 ( PUBLIC LAW 821).

I AM UNCERTAIN AS TO LEGALITY OF PAYING THESE ROLLS IN THE AMOUNT STATED FOR THE REASON THAT IN SOME INSTANCES THE AMOUNTS INCLUDE OVERTIME FOR ADMINISTRATIVE WORK WEEKS IN WHICH THE WORKING PERIOD OF THE EMPLOYEE DID NOT EXCEED 40 HOURS. THE ACTS OF JUNE 28, AND OCTOBER 21, 1940 (54 STAT. 676 AND 1205) AND JUNE 3, 1941 (55 STAT. 241) WHICH ARE EXTENDED AS TO TIME LIMIT AND SCOPE BY THE DECEMBER 22 ACT, ALL PROVIDE FOR OVERTIME PAYMENT AT THE RATE OF (OR NOT LESS THAN) 1 1/2 TIMES THE REGULAR RATE "FOR EMPLOYMENT IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORK WEEK.' SECTION 2 OF EXECUTIVE ORDER 9289 DATED DECEMBER 26, 1942 ALSO PROVIDES FOR OVERTIME COMPENSATION FOR EMPLOYMENT IN EXCESS OF 40 HOURS DURING AN OFFICIALLY ESTABLISHED REGULAR WORK WEEK AND FOR WORK ORDERED OR APPROVED IN ADDITION TO SUCH REGULAR WORK WEEK. WHILE SECTION 3 OF THE EXECUTIVE ORDER PERMITS CALCULATION OF OVERTIME COMPENSATION ON AN ANNUAL BASIS AND PAYMENT IN EQUAL AMOUNTS ON THE REGULAR PAY DAYS, IT IS NOT CLEAR THAT THIS SECTION CONTEMPLATES OVERTIME PAYMENT FOR A WEEK IN WHICH AN EMPLOYEE DOES NOT WORK IN EXCESS OF 40 HOURS BECAUSE OF (A) LEAVE WITHOUT PAY, (B) ENTRY ON DUTY AFTER THE BEGINNING OF THE WORK WEEK, OR (C) SEPARATION BEFORE THE END OF THE WORK WEEK.

BEFORE CERTIFYING THE ENCLOSED PAY ROLLS I SHOULD APPRECIATE YOUR DECISION WHETHER THEY MAY BE PAID IN THE AMOUNTS STATED OR SHOULD BE RECOMPUTED SO AS TO EXCLUDE OVERTIME FOR ANY WORK WEEK IN WHICH THE INDIVIDUAL WAS IN PAY STATUS NOT MORE THAN 40 HOURS. SHOULD IT BE DECIDED THAT OVERTIME IS NOT TO BE PAID FOR WEEKS IN WHICH THE TIME WORKED DOES NOT EXCEED 40 HOURS FURTHER DECISION IS DESIRED AS TO WHETHER THE 10 PERCENT INCREASE IS TO BE PAID FOR THE PERIODS EXCLUDED FROM OVERTIME COMPUTATION.

IN DECISION OF JANUARY 21, 1943, B-31789, 22 COMP. GEN. 683, TO THE SECRETARY OF LABOR, A COPY OF WHICH IS ENCLOSED, IT WAS CONCLUDED THAT A PER ANNUM EMPLOYEE WHO IS ABSENT FROM DUTY WITHOUT PAY DURING AN ADMINISTRATIVE WORKWEEK IS ENTITLED TO 1/360 OF THE GROSS COMPENSATION, INCLUDING BOTH BASIC AND OVERTIME COMPENSATION, FOR EACH DAY IN A PAY STATUS DURING THE PAY ROLL PERIOD, AND THAT THERE SHOULD BE WITHHELD ONLY 1/360 OF THE GROSS COMPENSATION, INCLUDING BOTH BASIC AND OVERTIME COMPENSATION, FOR EACH DAY ON WHICH THE EMPLOYEE IS IN A NONPAY STATUS (LEAVE WITHOUT PAY). THE SAME RULE FOR PRORATING THE GROSS COMPENSATION ON AN ANNUAL BASIS IS APPLICABLE IN COMPUTING COMPENSATION FOR A FRACTIONAL PAY PERIOD OF AN EMPLOYEE WHO ENTERS OR LEAVES THE SERVICE DURING AN ADMINISTRATIVE WORKWEEK.

IT IS UNDERSTOOD THE PAY ROLLS FORWARDED WITH YOUR LETTER HAVE BEEN COMPUTED IN ACCORDANCE WITH THE ABOVE-STATED RULE. IF SO, AND IF THEY BE OTHERWISE CORRECT, THEY MAY BE CERTIFIED FOR PAYMENT.