established rule in that respect would still apply. Accordingly, questions by ani (2) are answered in the negative. B-31383. COMPENSATION-HOLIDAYS-OVERTIME COMPENSATION ACT OF DECEMBER 22, 1942 Federal employees are entitled under the act of December 22, 192, and Executive Order No. 2286 seed thecerboer, ocly to the sime pro na gos compensation bioding base and creme for a billy seeing within the established cɓcal boars of duty and a regular workweek” (gandang from section 1 of sad Executive Order as is payable for other days, regardess of whether work be required co sad holidays. Comptroller General Warren to the Chairman, Interstate Commerce Commission, February 5, 1943: I have your letter of January 3, 1943, as follows: The Interstate Commerce Commission world appreciate a formal ruling from your cfce with respect to the proper interpretation to be placed on Seaate Joint Resolution No. 17 77th Congress & Session, and of Executive Order No. 884 December 28 142, on the question of evertine payment on days de clared poble boudays by law or exentire order. If a day declared a poble bouday by law or executive order falls within a regular tour of duty and our employees are directed to work on that day, are we required by the provisions of S. J. 170 and Executive Order issued pursuant thereda, to pay time and a half for requiring werk ee a broday in addition to the amount that would be paid if no work was required on that day? If your answer is in the negative, we would appreciate your ring as to the proper basis on which overtime should be competed In your ruling of January 7, 143 Na B-3 addressed to the Chairman of the War Production Boant you made reply to four questions propounded by that Board While the specific question here proponded was not schmitted fie formal decision, it seems to us that the language used by you on page 3 of that commnication is of particolar sedance in eccpection with the ques tion proponded. You state "Sherion 5 of the act of March 3, 1888, as amended by section 7 of the act of Martă 15, 1888, 30 Stat. 316 provides, so far as bere material as follows: - Hereafter it shall be the duty of the beads of the severs! Executive Departpects in the interest of the public service, to require of all clerks and ether employees, of whatever grade or class in their respective Departments, not less than seven boars of labor each day, except Sundays and days declared public bouldays by law or Executive Order: Provided. That the beads of the Departments may, by special order, stating the reason further extend the hours of any clerk or employee in their Departments revetively; but in case of an extension it Ball be without additional compensation: With regard to the above quoted statute it was stated in decision of June 4. 1398 15 Comp. Gen. 16062, 167, as follows: This state, which is still in effect, required work en 6 days per week, except when 1 of the 6 days is a boliday declared by law or Executive Order, and is applicable to all administrative employees in the departmental service in the District of Columbia. While the Saturday half-holiday law of March 3, 161, 48 Stat. 142, shortened to 4 bours the work day on Saturday, it did not stberwise affect the requirement of the act of March 15, 186, supra." Section 1 of the act of December 22, 1942, supersedes and renders inoperative that portion of the 188 statute, supra, providing but in case of an extension it shall be withret additional compensation' Section 3 of the act of December 22 1642 suspends the Saturday half-holiday law of March 3, 1931, 46 Stat. 14-2, which shortened the workday on Saturday to 4 bears. Otherwise, however, the amended 1893 statute, supra, remains in full force and effect." There is no statute making specific provision with respect to the payment of compensation of per annum employees for holidays. It has always been accepted that as per annum employees are paid for every day in the year, they are entitled to their regular compensation for a holiday occurring within their regular tour of duty or workweek, regardless of whether they be required to work on the holiday. 21 Comp. Gen. 901. As to employees paid compensation on any other than a per annum basis see Public Resolution No. 127, approved June 29, 1938, 52 Stat. 1246; also, 18 Comp. Gen. 186, 191, 206, 378. While an administrative office is not required or compelled to include holidays within the official hours of duty or regular workweek of Federal employees, it is clear that under the act of March 3, 1893, as amended by the act of March 15, 1898, 30 Stat. 316, quoted in your letter, an administrative office may do so. See the opinion of the Attorney General dated August 15, 1903, 25 Op. Atty. Gen. 40, in which it was held (quoting from the syllabus): Heads of Departments must require at least seven hours' labor of all their clerks and other employees every day in the year except Sundays and days declared to be holidays by section 1389 of the Code of the District of Columbia, and during authorized leave; and, if the public service requires it, the hours of labor may be extended by special order and may include holidays as well as ordinary days. There is nothing in Joint Resolution No. 170, approved December 22, 1942, 56 Stat. 1068, Public Law 821, or in the President's regulations thereunder, Executive Order 9289, dated December 26, 1942, to require any modification in the above-stated rule that an administrative office may, within its discretion, include a holiday within the official hours of duty or regular workweek of employees and to include such time in the computation of increased compensation under the said joint resolution on the "overtime" formula. The statement in the decision of January 7, 1943, B-31473, 22 Comp. Gen. 619, to which you refer, that the words "but in case of an extension it shall be without additional compensation" appearing in the 1893 act, as amended, had been superseded and rendered inoperative by the joint resolution of December 22, 1942, was made only with reference to the operation of the "overtime" formula authorized by the said joint resolution, the effect of which statement was to authorize payment of the pro rata increase in compensation for a holiday the same as for other days. Said statement did not, and was not intended to, authorize the payment of an additional amount of overtime compensation for work on a holiday. Also, attention is invited to the general rule stated by this office in decision of March 11, 1942, 21 Comp. Gen. 853, 855, as follows: In applying the statutes authorizing payment of overtime contai work required in excess of a regular tour of duty, either on a » daily basis, this office has held consistently that time off from for status authorized by law, such as for annual leave of absence, for holidays, or as compensatory time off with pay, must be regarded as a part of the regular tour of duty and overtime compensation is payable for work actually performed in addition to the regular tour of duty, including the time off therein for which regular compensation is paid. 13 Comp. Gen. 295; id. 370; id. 444; 14 id. 761; 16 id. 757; 18 id. 191; id. 575; 20 id. 555; decision of January 30, 1942, B-23172, 21 id. 724. You are advised, therefore, that employees are entitled to the same pro rata gross compensation, including basic and overtime, for a holiday occurring within the "established official hours of duty and a regular workweek" (quoting from section 1 of the President's regulations) as for other days, regardless of whether work be required on said holidays. (B-31945) OVERTIME AND ADDITIONAL COMPENSATION UNDER ACT OF DECEMBER 22, 1942-EMPLOYEES OF MAIL EQUIPMENT SHOPS The overtime and additional compensation act of December 22, 1942, excepts from its provisions "those [employees] whose wages are fixed on a daily or hourly basis and adjusted from time to time in accordance with prevailing rates by wage boards or similar administrative authority serving the same purpose" and, therefore, skilled trades workers of the Mail Equipment Shops, whose compensation is fixed by the Postmaster General under the provisions of section 23 of the act of March 28, 1934, are not within the purview of the 1942 act but rather, their regular and overtime compensation is required to be computed and paid under the provisions of the 1934 act. The overtime and additional compensation act of December 22, 1942, requires no change in the formula for computing overtime compensation under the act of March 28, 1934, for skilled trades workers in the Post Office Mail Equipment Shops whose compensation is fixed under section 23 of the said act applicable to trades and occupations as therein specified, which act restricted hours of labor to 40 per week with the same weekly compensation for five days that formerly was received for six days, resulting in a corresponding increase in the daily rate of compensation; and, therefore, overtime compensation for these employees under a 48-hour week should be computed on the daily rate of compensation as established pursuant to the 1934 act. Post Office employees of the Mail Equipment Shops in the clerical-mechanical service who are paid at hourly rates of compensation prescribed for in the Classification Act of 1923, as amended, are entitled under the overtime and additional compensation act of December 22, 1942, to overtime compensation when required to work in excess of 40 hours during an administratively established workweek if they are full-time employees or, if their hours of duty are intermittent, irregular or less than full timethat is, if they are part-time employees-they are entitled to 10 percent additional compensation under the said act. Post Office employees of the Mail Equipment Shops whose salary rates are fixed in accordance with the Classification Act of 1923, as amended, and not in accordance or in line with the Postal Reclassification Act of 1925, are not employees "in the Postal Service" within the meaning of 39 U. S. Code 822, authorizing computation of the daily rate of annual and monthly salaries on the actual number of days in a month, and, therefore, their daily rate should be computed under the act of June 30, 1906, whereby each month is regarded as containing 30 days, 1 day's compensation being 1/360 of the annual rate; and overtime compensation for these employees under the act of December 22, 1942, is for computation on the daily rate of compensation as computed under the 1906 act. Comptroller General Warren to the Postmaster General, February 6, 1943: Your decision is requested on certain questions pertaining to the provisions of Senate Joint Action 170, 77th Congress, Second Session of Congress, and of Executive Order 9289, December 26, 1942, in order that overtime payments in the Mail Equipment Shops, Bureau of the Fourth Assistant Postmaster General, may be facilitated. 1. The Mail Equipment Shops have per diem and per annum workers (both covered by the Classification Act) and skilled trades workers whose compensation is set by the Postmaster General. Section 23 of the Independent Offices Appropriation Act, 1935, contains the following proviso regarding hours of service and overtime compensation of the several trades and occupations which is set by wage boards or other wage fixing authorities: * * Provided, That the regular hours of labor shall not be more than forty per week; and all overtime shall be compensated for at the rate of not less than time and one-half." (a) Does the new Act restricting overtime payments to salaries not over $2900 per annum apply to this class of employee? If not, overtime compensation to skilled trades workers drawing base pay in excess of $2900 would be out of line with all others. (b) These employees are appointed at a rate of pay based on six working days to the week, but because of the Act above referred to, placing them on a forty-hour week, their pay is restated for accounting purposes at hourly rates based on forty hours per week, with no reduction in pay. How would the overtime be computed in the following case? A foreman in the skilled trades drawing $11.40 per diem on a six-day basis, restated at $1.71 per hour, or $13.68 per diem on a five-day basis, amounting to $3568 per annum, is given a 48-hour tour of duty, extending Monday through Saturday. 2. Per diem workers under the Classification Act: What type of overtime compensation would be applied to these employees, viz., time and one-half or 10 percent? 3. Per annum employees: There appears to be no doubt that the Joint Resolution provides time and one-half for overtime for these employees. However, there appears to be some question as to how it should be computed. The Mail Equipment Shops are classed as field service, and in accordance with the Postal Laws and Regulations the amount paid per annum employees at the present time, semi-monthly, is determined by dividing the annual rate by 12, and the monthly rate so obtained by the number of days in the particular month to determine the daily rate for that month, which is then applied by taking the number of days in the pay period. What procedure would be followed in computing eight hours overtime for a salary in excess of $2900 per annum? In view of the fact that payments under this Resolution are past due, your prompt consideration will be appreciated. Joint Resolution No. 170, approved December 22, 1942, 56 Stat. 1068, Public Law 821, excepts from its provisions "those [employees] whose wages are fixed on a daily or hourly basis and adjusted from time to time in accordance with prevailing rates by wage boards or similar administrative authority serving the same purpose." See exception (a) of the second proviso of section 1 of the statute, as interpreted by the decision of this office dated January 4, 1943, B-31430, 22 Comp. Gen. 596, to the Public Printer. Section 23 of the "Independent Offices Appropriation Act, 1935", approved March 28, 1934, 48 Stat. 522, provides: The weekly compensation, minus any general percentage reduction which may be prescribed by Act of Congress, for the several trades and occupations, which is set by wage boards or other wage-fixing authorities, shall be reestablished and. maintained at rates not lower than necessary to restore the full weekly ea¦ris of such employees in accordance with the full-time weekly earnings under the respective wage schedules in effect on June 1, 1932: Provided, That the regular hours of labor shall not be more than forty per week; and all overtime shall be compensated for at the rate of not less than time and one half. [Italics supplied.] In the decision of May 17, 1934, A-55528, to the Postmaster General, it was held: Neither the annual appropriation act for the Post Office Department (act of March 3, 1933, 47 Stat. 1512, for current fiscal year), containing an item "for compensation to laborers employed in the equipment shops at Washington, District of Columbia," (see Section 14-7 of the Postal Laws and Regulations, 1932), nor any other statute appears to regulate the compensation rates of the employees in question. The authority to fix the rates of compensation of employees not otherwise controlled by statute is vested in the heads of the departments or offices concerned, in this case the Postmaster General. Therefore, as the employees in question are within one of the "several trades and occupations," and since it is understood the Postmaster General fixes their rates of compensation with reference to rates of wages, etc., paid to similar classes in commercial industry, it must be concluded that the provisions of section 23 of the act of March 28, 1934, Public No. 141, establishing a 40-hour week, are applicable to the 21 employees in question. See decision of May 1, 1934, to the Secretary of the Treasury, A-55192, involving the employees of the Bureau of Engraving and Printing. See, also, 15 Comp. Gen. 308. You are advised, therefore, that "skilled trades workers whose compensation is set by the Postmaster General" (quoting from your letter) under the provisions of section 23 of the act of March 28, 1934, supra, do not come within any of the provisions of the joint resolution of December 22, 1942. On the contrary, their regular and overtime compensation is required to be computed and paid under the provisions of the 1934 law without regard to any of the provisions of the said joint resolution. Question 1 (a) is answered accordingly. It is understood that question 1 (b) relates to the employees in the trades and occupations coming within the purview of the 1934 law and not within the purview of the 1942 law. Under the provisions of the 1934 law their "hours of labor shall not be more than forty per week”. Hence, your administrative order requiring those employees to work 48 hours per week has the effect of requiring them to work a regular tour of duty of 40 hours on five days, and overtime of eight hours on one day each week. For the overtime they are entitled to "be compensated for at the rate of not less than time and one-half". The basic rates on which the overtime compensation at the rate of time and onehalf should be computed is the rate fixed on a 40 hour, five-day week based under the 1934 statute. See 13 Comp. Gen. 265. Referring to the example stated, it is understood the rate of $13.68 per diem is the rate the employee has received for each of the five days of his regular tour of duty under the 1934 statute. If so, that rate is the employee's base compensation and there should now be disregarded the fact that the employee received prior to March 28, 1934, the same weekly compensation for six days that he received for five days after that date. See |