B-35339, JULY 12, 1943, 23 COMP. GEN. 17

B-35339, JULY 12, 1943, 23 COMP. GEN. 17

COMPENSATION - ADDITIONAL - CONSULTANTS EMPLOYED UNDER CONTRACT, BY APPOINTMENT TO "EXCEPTED" POSITIONS, ETC., ON "WHEN ACTUALLY EMPLOYED" BASIS CONSULTANTS EMPLOYED ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS, WHETHER EMPLOYED UNDER A CONTRACT, BY APPOINTMENT TO "EXCEPTED" POSITIONS, OR BY REGULAR APPOINTMENT TO CLASSIFIED POSITIONS, ARE "CIVILIAN OFFICERS AND EMPLOYEES * * * IN OR UNDER THE UNITED STATES GOVERNMENT," WITHIN THE MEANING OF SECTION 1 OF THE WAR OVERTIME PAY ACT OF 1943, ENTITLED TO THE APPLICABLE BENEFITS OF THE SAID ACT. CONSULTANTS EMPLOYED ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS, INCLUDING THOSE EMPLOYED UNDER CONTRACT OR APPOINTED TO "EXCEPTED" POSITIONS AS WELL AS THOSE SERVING UNDER REGULAR APPOINTMENTS TO CLASSIFIED CONSULTANT POSITIONS, WHO ARE NOT REGULARLY REQUIRED TO WORK A SPECIFIED MINIMUM NUMBER OF HOURS PER DAY OR WEEK ARE TO BE REGARDED AS "INTERMITTENT OR IRREGULAR EMPLOYEES" WITHIN THE MEANING OF SECTION 3 (A) OF THE WAR OVERTIME PAY ACT OF 1943 AND REGULATIONS ISSUED THEREUNDER, AND, AS SUCH, ARE ENTITLED TO ADDITIONAL COMPENSATION AT RATE OF $300 PER ANNUM OR 15 PERCENT OF THEIR EARNED BASIC COMPENSATION, AS THE CASE MAY BE, AS AUTHORIZED BY SAID SECTION 3 (A).

ACTING COMPTROLLER GENERAL YATES TO THE CHAIRMAN, BOARD OF ECONOMIC WARFARE, JULY 12, 1943:

BY LETTER OF JUNE 24, 1943, THE UNITED STATES CIVIL SERVICE COMMISSION REFERRED HERE FOR CONSIDERATION YOUR LETTER OF JUNE 5, 1943, REFERENCE LE- 1-NO, TO THE COMMISSION, AS FOLLOWS:

A QUESTION HAS ARISEN UNDER THE NEW OVERTIME LAW AND THE REGULATIONS OF THE COMMISSION.

THIS BOARD EMPLOYS CONSULTANTS TO PERFORM SPECIALIZED PERSONAL SERVICES IN ANY ONE OF THREE WAYS: (1) BY REGULAR APPOINTMENT TO A "CLASSIFIED" CONSULTANT POSITION, AT THE APPLICABLE RATE PER DAY, "WHEN ACTUALLY EMPLOYED," (2) BY APPOINTMENT TO AN "EXCEPTED" POSITION, ALSO AT A FIXED RATE PER DAY "WHEN ACTUALLY EMPLOYED," AND (3) UNDER A CONTRACT COVERING THEIR PERSONAL SERVICES, AT AN AGREED RATE PER DAY. AS YOU MAY KNOW, THE LATTER TWO METHODS ARE SPECIFICALLY AUTHORIZED UNDER OUR APPROPRIATION ITEM, CONTAINED IN PUBLIC NO. 678, 77TH CONGRESS, FOR THE "TEMPORARY EMPLOYMENT OF PERSONS * * * BY CONTRACT OR OTHERWISE WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS * * *.'

SUCH CONSULTANTS ARE USUALLY EMPLOYED AS NEEDED AND ARE NOT REQUIRED TO WORK A SPECIFIED MINIMUM NUMBER OF HOURS PER DAY OR WEEK, ALTHOUGH THEY ARE, OF COURSE, PAID ONLY ON THE BASIS OF HOURS ACTUALLY WORKED. THEY WOULD, THEREFORE, SEEM TO FALL WITHIN THE CATEGORY OF "INTERMITTENT AND IRREGULAR" EMPLOYEES, AS DEFINED IN THE COMMISSION'S REGULATIONS, AND TO BE ENTITLED, ACCORDINGLY, TO "ADDITIONAL COMPENSATION" AS PROVIDED IN SECTION 3 (A) OF THE ACT. NEITHER THE LAW NOR THE REGULATIONS SEEMS TO MAKE ANY DISTINCTION BETWEEN CIVIL SERVICE AND "EXCEPTED" APPOINTMENTS,"CLASSIFIED" AND "UNCLASSIFIED" POSITIONS, OR "CONTRACT" EMPLOYEES, AND THERE WOULD SEEM TO BE NO BASIS UNDER THE ACT FOR DISTINGUISHING ANY ONE OF THE ABOVE-INDICATED THREE TYPES OF CONSULTANT ARRANGEMENTS.

HOWEVER, SINCE THE REGULATIONS ARE NOT EXPLICIT IN THIS REGARD, WE WOULD APPRECIATE A RULING BY THE COMMISSION. IF IT IS FELT NECESSARY TO HAVE A DECISION OF THE COMPTROLLER GENERAL, WE BELIEVE IT SHOULD BE REQUESTED BY THE COMMISSION IN ORDER TO COVER ALL THE AGENCIES WHICH HAVE THE SAME PROBLEM.

SECTIONS 1 AND 3 (A) OF THE WAR OVERTIME PAY ACT OF 1943, 57 STAT. 75, 76, PUBLIC LAW 49, PROVIDE, IN PERTINENT PART, AS FOLLOWS:

THAT THIS ACT SHALL APPLY TO ALL CIVILIAN OFFICERS AND EMPLOYEES * * * IN OR UNDER THE UNITED STATES GOVERNMENT * * *.

SEC. 3. (A) EXCEPT AS PROVIDED IN SUBSECTION (C), OFFICERS AND EMPLOYEES TO WHOM THIS ACT APPLIES AND WHOSE HOURS OF DUTY ARE INTERMITTENT OR IRREGULAR * * * SHALL BE PAID, IN LIEU OF THE OVERTIME COMPENSATION AUTHORIZED UNDER SECTION 2 OF THIS ACT, ADDITIONAL COMPENSATION AT THE RATE OF (1) $300 PER ANNUM IF THEIR EARNED BASIC COMPENSATION IS AT A RATE OF LESS THAN $2,000 PER ANNUM, OR (A) 15 PERCENTUM OF SO MUCH OF THEIR EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF A RATE OF $2,900 PER ANNUM IF THEIR EARNED BASIC COMPENSATION IS AT A RATE OF $2,000 PER ANNUM OR MORE.

SECTION 5, PART II, OF THE CIVIL SERVICE REGULATIONS ( DEPARTMENTAL CIRCULAR NO. 424, DATED MAY 8, 1943), CONTAINS THE FOLLOWING:

SECTION 5. INTERMITTENT OR IRREGULAR EMPLOYEES.

INTERMITTENT OR IRREGULAR EMPLOYEES ARE EMPLOYEES WHO ARE NOT REGULARLY REQUIRED TO WORK A SPECIFIED MINIMUM NUMBER OF HOURS. * * *

IN DECISION OF MARCH 24, 1921, 27 COMP. DEC. 823, 824, WHEREIN WAS CONSIDERED THE RIGHT OF CONTRACT EMPLOYEES TO THE $240 INCREASE IN COMPENSATION PROVIDED BY STATUTE FOR FEDERAL EMPLOYEES FOR THE FISCAL YEARS 1920 AND 1921, IT WAS STATED:

WHETHER AN EMPLOYEE CAN BE PAID THE INCREASE OF COMPENSATION DOES NOT DEPEND ON THE TERMS OF HIS CONTRACT OF EMPLOYMENT BUT DEPENDS ON WHETHER HE COMES WITHIN THE TERMS OF THE ACT GRANTING INCREASE OF COMPENSATION. IF HE IS OTHERWISE ENTITLED TO THE INCREASE OF COMPENSATION, HE WILL NOT BE DEPRIVED OF IT BECAUSE IT IS NOT PROVIDED FOR IN HIS CONTRACT; AND IF HE IS NOT ENTITLED UNDER THE LAW TO THE INCREASE OF COMPENSATION, A CLAUSE IN THE CONTRACT PURPORTING TO GRANT IT WOULD NOT BE EFFECTIVE.

SECTION 1 OF THE WAR OVERTIME PAY ACT OF 1943 CONTAINS A NUMBER OF EXCEPTIONS NONE OF WHICH EXCLUDE FROM THE BENEFITS OF THE LAW CONSULTANTS EMPLOYED ON ANY OF THE BASES LISTED IN YOUR LETTER. SUCH CONSULTANTS ARE "CIVILIAN OFFICERS AND EMPLOYEES * * * IN OR UNDER THE UNITED STATES GOVERNMENT" WITHIN THE MEANING OF SECTION 1 OF THE STATUTE; AND AS THEY ARE NOT OTHERWISE EXCEPTED, IT FOLLOWS THAT THEY ARE ENTITLED TO THE BENEFITS OF THE LAW. AS THEY ARE "NOT REGULARLY REQUIRED TO WORK A SPECIFIED MINIMUM NUMBER OF HOURS" (QUOTING FROM THE REGULATIONS) THEY PROPERLY ARE TO BE REGARDED AS "INTERMITTENT OR IRREGULAR EMPLOYEES" WITHIN THE MEANING OF SECTION 3 (A) OF THE STATUTE, SUPRA, AND, AS SUCH, THEIR ADDITIONAL COMPENSATION SHOULD BE PAID IN ACCORDANCE WITH THE FORMULA STATED IN THAT SECTION OF THE STATUTE.