B-54625, FEBRUARY 14, 1946, 25 COMP. GEN. 596

B-54625, FEBRUARY 14, 1946, 25 COMP. GEN. 596

FEDERAL EMPLOYEES PAY ACT OF 1945 - COMPENSATION FOR NIGHT WORK - INCLUSION OF DIFFERENTIAL FOR DUTY OUTSIDE U.S. A COMPENSATION DIFFERENTIAL PAID TO AN EMPLOYEE STATIONED OUTSIDE THE CONTINENTAL UNITED STATES CONSTITUTES A PART OF HIS "BASIC RATE OF COMPENSATION" UPON WHICH THE ADDITIONAL PAY FOR NIGHT WORK AT THE RATE OF 10 PERCENT PROVIDED BY SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IS TO BE COMPUTED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, FEBRUARY 14, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 17, 1945, AS FOLLOWS:

A QUESTION HAS ARISEN AS TO WHAT RATE SHOULD BE USED IN COMPUTING THE NIGHT DIFFERENTIAL OF 10 PERCENT AS PROVIDED IN SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IN ALASKA WHERE A REGULAR 25 PERCENT DIFFERENTIAL IS IN EFFECT; THAT IS, WHETHER IT SHOULD BE ON THE CLASSIFICATION ACT RATE ONLY OR ON THE CLASSIFICATION ACT RATE PLUS THE TERRITORIAL DIFFERENTIAL.

IN 22 C.G. 769, IT WAS HELD THAT THE TERRITORIAL DIFFERENTIAL OF 25 PERCENT IS A PART OF AN EMPLOYEE'S BASE COMPENSATION UPON WHICH RETIREMENT DEDUCTIONS ARE REQUIRED TO BE MADE AND UPON WHICH THE INCREASE IN COMPENSATION AND THE SALARY LIMITATIONS OF THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, SHOULD BE COMPUTED. IT WOULD APPEAR LOGICAL THAT THE TERRITORIAL DIFFERENTIAL IS A PART OF THE BASE COMPENSATION UPON WHICH THE NIGHT DIFFERENTIAL WOULD BE PAID, BUT SINCE THE DECISION REFERRED TO WAS MADE PRIOR TO THE ENACTMENT OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 YOUR RULING IS REQUESTED.

A PROMPT REPLY WILL BE APPRECIATED.

SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, 59 STAT. 298, PROVIDES:

ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY, ANY PART OF WHICH FALLS BETWEEN THE HOURS OF 6 O-CLOCK POST MERIDIAN AND 6 O-CLOCK ANTEMERIDIAN, SHALL, FOR DUTY BETWEEN SUCH HOURS, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, BE PAID COMPENSATION AT A RATE 10 PERCENTUM IN EXCESS OF HIS BASIC RATE OF COMPENSATION FOR DUTY BETWEEN OTHER HOURS: PROVIDED, THAT SUCH DIFFERENTIAL FOR NIGHT DUTY SHALL NOT BE INCLUDED IN COMPUTING ANY OVERTIME COMPENSATION TO WHICH THE OFFICER OR EMPLOYEE MAY BE ENTITLED: AND PROVIDED FURTHER, THAT THIS SECTION SHALL NOT OPERATE TO MODIFY THE PROVISIONS OF THE ACT OF JULY 1, 1944 ( PUBLIC LAW NUMBERED 394, SEVENTY- EIGHTH CONGRESS), OR ANY OTHER LAW AUTHORIZING ADDITIONAL COMPENSATION FOR NIGHT WORK.

IT CONSISTENTLY HAS BEEN HELD THAT THE COMPENSATION DIFFERENTIAL AUTHORIZED FOR EMPLOYEES OF THE GOVERNMENT STATIONED OUTSIDE THE UNITED STATES CONSTITUTES A PART OF THE BASE PAY OF SUCH EMPLOYEES. SEE 22 COMP. GEN. 769, AND THE DECISIONS CITED THEREIN; ALSO, 25 ID. 188. CONSEQUENTLY, SINCE SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, SUPRA, EXPRESSLY PROVIDES THAT AN OFFICER OR EMPLOYEES COMING WITHIN THE PURVIEW OF THAT SECTION SHALL BE PAID COMPENSATION AT A RATE OF 10 PERCENTUM IN EXCESS OF HIS "BASIC RATE OF COMPENSATION" FOR DUTY BETWEEN THE HOURS SPECIFIED, IT FOLLOWS THAT SUCH PERCENTUM INCREASE IS TO BE COMPUTED UPON HIS COMPENSATION INCLUSIVE OF THE DIFFERENTIAL.