B-171162, NOV. 18, 1970

B-171162, NOV. 18, 1970

COMPENSATION - HOURLY PAY - CENSUS ENUMERATOR REAFFIRMING DECISION THAT CENSUS ENUMERATOR WAS TO BE PAID ON A PIECE RATE BASIS RATHER THAN AN HOURLY BASIS. WHERE THE BOOKLET GIVEN ALL CENSUS ENUMERATORS STATES THAT THEY WOULD BE PAID ON A PIECE-RATE BASIS, SUBJECT TO MODIFICATION BY THE DISTRICT MANAGER WHERE CIRCUMSTANCES SUCH AS TERRAIN, DISTRIBUTION OF HOMES, ETC., WARRANT HOURLY PAY, COMPTROLLER GENERAL HAS NO AUTHORITY TO QUESTION SUCH A DETERMINATION WHERE EVIDENCE SUBMITTED BY CLAIMANT DOES NOT SHOW THAT IT WAS ARBITRARY.

TO MRS. MARGARET M. WAGNER:

WE HAVE REVIEWED YOUR CLAIM FOR COMPENSATION ON AN HOURLY RATHER THAN A PIECE-RATE BASIS AS A CENSUS ENUMERATOR WITH THE DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, AT OROVILLE, CALIFORNIA, WHICH WAS THE SUBJECT OF OUR OFFICE SETTLEMENT LETTER TO YOU, DATED OCTOBER 12, 1970. IN YOUR LETTER OF OCTOBER 18, 1970, IN ADDITION TO REQUESTING RECONSIDERATION OF THAT SETTLEMENT, YOU HAVE INCLUDED AN ADDITIONAL CLAIM FOR $674.40 REPRESENTING INTEREST, THE COST OF THREE PAIR OF HOSE, AND A HARASSMENT FEE.

THE BOOKLET THAT WAS GIVEN TO ALL CENSUS ENUMERATORS UPON THEIR EMPLOYMENT, ENTITLED "LET'S TALK CENSUS" STATES THAT EXCEPT IN A FEW "UNUSUAL CIRCUMSTANCES" THE ENUMERATORS WOULD BE PAID ON A PIECE-RATE BASIS, AND THAT ALTHOUGH THE RATES WERE SO DESIGNED THAT THE AVERAGE PIECE -RATE EARNINGS WOULD BE $2 PER HOUR, NO GUARANTEE WAS MADE AS TO WHAT AN INDIVIDUAL ENUMERATOR'S EARNINGS WOULD BE. THAT DEPENDED ON A NUMBER OF VARIABLES. IT WAS WITHIN THE DISCRETION OF THE DISTRICT MANAGER WHO WAS FAMILIAR WITH THE PARTICULARS OF HIS DISTRICT TO DETERMINE ON THE BASIS OF SUCH VARIABLES AS TERRAIN, DISTRIBUTION OF HOMES, ETC., WHETHER THE PIECE- RATE OR HOURLY BASIS OF COMPENSATION OUGHT TO BE APPLIED IN THE CASE OF EACH INDIVIDUAL ENUMERATOR. SINCE IT WAS DETERMINED THAT YOUR COMPENSATION SHOULD BE FIXED ON A PIECE RATE BASIS RATHER THAN AN HOURLY BASIS WE HAVE NO AUTHORITY TO QUESTION SUCH A DETERMINATION IN THE ABSENCE OF EVIDENCE TO SHOW THAT IT WAS ARBITRARY AND CAPRICIOUS.

IN OUR VIEW THE MAPS WHICH YOU HAVE SUBMITTED DO NOT SUPPORT A FINDING OF ARBITRARINESS OR CAPRICIOUSNESS IN THE INSTANCE OF YOUR DISTRICT MANAGER'S DETERMINATION THAT YOUR PARTICULAR TERRITORY DID NOT CONSTITUTE SUCH "UNUSUAL CIRCUMSTANCES" AS TO MAKE YOU ENTITLED TO THE HOURLY-RATE BASIS. ACCORDINGLY, THE ACTION TAKEN IN DISALLOWING YOUR CLAIM FOR ADDITIONAL COMPENSATION WAS PROPER.

IT IS UNFORTUNATE IF A MISUNDERSTANDING OCCURRED REGARDING THE BASIS OF YOUR COMPENSATION. FROM YOUR LETTER OF SEPTEMBER 23, 1970, IT APPEARS THAT YOU UNDERSTOOD THE AFOREMENTIONED BOOKLET TO IMPLY THAT THE GOVERNMENT WOULD AUTOMATICALLY ADJUST THE REMUNERATION OF A PIECE RATE ENUMERATOR TO INSURE PAYMENT AT A MINIMUM RATE OF $2 FOR EACH HOUR ACTUALLY WORKED. WE BELIEVE THE BOOKLET MADE IT SUFFICIENTLY CLEAR, HOWEVER, THAT THIS WAS NOT TO BE THE CASE. ON PAGE 10 OF THE BOOKLET IT STATES IN PART:

" *** NO GUARANTEE CAN BE MADE TO WHAT PIECE RATE EARNINGS WILL BE, ALTHOUGH THESE RATES ARE DESIGNED TO AVERAGE $2.00 PER HOUR.

"SOME ENUMERATORS WILL EARN WELL ABOVE THE AVERAGE. OTHERS WHO WORK LESS EFFECTIVELY WILL EARN LESS. WEEKLY EARNINGS FOR THE FULL FORTY HOUR WEEK, MIGHT RANGE FROM AS LITTLE AS $60 TO MORE THAN $100. EARNINGS GENERALLY WILL BE LOWEST IN THE FIRST FEW DAYS, BUT SHOULD INCREASE AS THEY MASTER THE JOB OF INTERVIEWING."

WITH REGARD TO THE ADDITIONAL CLAIM FOR $674.40, THERE IS NO AUTHORITY WHEREUNDER WE MAY AUTHORIZE PAYMENT OF ANY AMOUNT AS A "HARASSMENT FEE" OR AS REIMBURSEMENT FOR THE EXPENSE OF THREE PAIR OF RUN HOSE. FURTHER, EVEN IF YOUR CLAIM WAS ALLOWABLE THERE WOULD BE NO AUTHORITY FOR PAYMENT OF INTEREST THEREON, IT BEING WELL ESTABLISHED THAT INTEREST IS NOT PAYABLE ON CLAIMS AGAINST THE UNITED STATES IN THE ABSENCE OF A STATUTE SO PROVIDING.