is different in your case for the reason that said section of the regulation in respect of the requirement for refund on account of excess sick leave is specifically limited to "the case of voluntary separation or removal for cause." Your entry into the active military service, whether by enlistment or by induction, is not for regarding as a “voluntary separation or removal for cause" within the meaning of section 11 of the Sick Leave Regulations, so as to require collection from you for overdrawn sick leave. While the earlier laws and decisions made a distinction between employees who were "ordered" into the active military or naval service and those who voluntarily enlisted, with respect to leave benefits and reemployment rights (see 21 Comp. Gen. 210, 403, and the statutes therein considered), later statutes now in force and the decision thereunder show a definite intention to treat all employees alike with regard to such benefits, regardless of the circumstances under which they enter the active military or naval service (i. e., whether by induction or by enlistment). See section 7 of the act of August 18, 1941, 55 Stat. 627, act of April 7, 1942, Public Law 517, 56 Stat. 200, amending the act of August 1, 1941, and 22 Comp. Gen. 47. It is concluded, therefore, that under the terms of section 11 of the Sick Leave Regulations, overdrawn sick leave is not required to be charged to an employee whose "separation" is due to his entering into the active military or naval service without a break in service. Accordingly, the settlement of your claim No. 1112071 of February 8, 1943, will be revised so as to apply the above-stated rules on the basis of your leave record, and you will be promptly advised when such action shall have been taken. Your right to reinstatement may be given consideration by this office only if and when you are discharged from the active military service, at which time proper consideration will be given the provisions of section 8 of the Selective Training and Service Act of 1940, approved September 16, 1940, 54 Stat. 890, and section 7 of the act of August 18, 1941, 55 Stat. 627, extending reemployment rights to employees who voluntarily enlist in the armed forces, and the regulations of the Civil Service Commission issued under such statutes. (B-33727) CONTRACTS-COST-PLUS-EXPENSES AND JUDGMENT PAYMENTS INCIDENT TO FAIR LABOR STANDARDS ACT LITIGATION Under cost-plus-a-fixed-fee contracts covering the construction of ordnance plants, etc., and providing for reimbursement to the contractors for all labor and for losses and expenses sustained or incurred in connection with the contract work, the contractors may be reimbursed for properly substantiated and approved costs directly attributable to civil suits instituted against them by employees under the Fair Labor Standards Act of 1938-including amounts paid in satisfaction of final judgments and attorneys' fees if it is impossible or impracticable to provide Government counsel where it is administratively determined to be in the best interests of the Government to have the contractors resist such suits rather than to pay the overtime benefits provided for in the act. Comptroller General Warren to the Secretary of War, April 27, 1943: I have your letter of April 7, 1943, as follows: The War Department in the past two years has entered into a number of costplus-a-fixed-fee contracts for, the construction of camps, ordnance plants and other military installations. It has been the understanding of the War Department that non-manual employees of these contractors were not entitled to receive time and one-half for overtime under the provisions of the Fair Labor Standards Act (Act of June 25, 1938, 52 Stat. 1060, 29 U. S. C. 201-19), and the salary scales hitherto paid such employees have been determined and approved on this assumption. Recently, a number of such non-manual employees have commenced actions at law against the contractors who employed them, seeking the recovery of overtime pay and penalties under the Fair Labor Standards Act. The total of all potential claims of this nature involves a very large sum of money, and it is believed that the cost-plus-a-fixed-fee contractors will not only expect reimbursement for all overtime payments they are forced to make as a result of such actions, but also will claim reimbursement for any penalties they are forced to pay and the costs and expenses of litigation. (See § 16 of the Act, 29 U. S. C. 216). Accordingly, the War Department will be called upon to advise such contractors as to whether or not they will be entitled to receive reimbursement under their contracts for any amounts for which final judgments may be entered against them and for the costs and expenses of litigation in such actions. The policy of the War Department will be to permit resistance to these claims only where, in the opinion of the Department, the claim is not legally meritorious and payment of overtime has not been customary within the trade or industry involved. In such cases, the War Department will make available to contractors the services of the litigation officers of The Judge Advocate General's Office to defend the actions commenced. There may be a few cases, however, where it is either impractical or impossible to furnish the services of such litigation officers, and in such cases the War Department will authorize contractors to retain private counsel. The War Department believes that the above referred to items are properly reimbursable, when incurred with the approval of the contracting officer, and that if contractors can be so advised serious financial uncertainties on their part will be eliminated and the construction and production work on which they are engaged will be benefited and expedited correspondingly. In order that instructions and advice with respect to the questions raised may be given to contractors, your opinion on the following question will be appreciated. May cost-plus-a-fixed-fee contractors with the War Department be reimbursed for (a) all amounts paid in satisfaction of final judgments entered against them in civil actions brought under the provisions of the Fair Labor Standards Act where defense of the action has been authorized by the contracting officer and (b) the reasonable and necessary costs and expenses of litigation as approved by the contracting officer. While ordinarily there is nothing contained in cost-plus-a-fixed-fee contracts covering construction of ordnance plants, etc., expressly providing that litigation expenses and expenses relating thereto are to be paid by the Government, such contracts generally provide for reimbursement to the contractors for all labor and for losses and expenses sustained or incurred in connection with the work to be performed, and found and certified by the contracting officer in accordance with the pertinent provisions of the particular contract involved. Accordingly, where it is administratively determined to be to the best interests of the Government for the contractors to resist civil suits instituted against them under the Fair Labor Standards Act, rather than to pay the overtime benefits provided for therein, and it is impossible or impracticable to furnish Government attorneys to represent the contractors, there would appear to be no legal objection to reimbursing the contractors for properly substantiated and approved costs directly attributable to said suits. See Central Construction Corporation v. United States, 63 C. Cls. 290, 296; also, see 22 Comp. Gen. 109. The specific questions presented are answered in the affirmative. (B-33825) CONSCIENTIOUS OBJECTORS-ASSIGNMENT TO WORK OF GOVERNMENT DEPARTMENTS AND ESTABLISHMENTS-APPROPRIATION AVAILABILITY FOR MAINTENANCE EXPENSES; ETC. Funds available under the Department of Commerce Appropriation Act, 1943, to certain bureaus of that department for the expenses necessary to accomplish designated objects and purposes may be used for the payment of maintenance expenses (such as for food, shelter, work clothes, medical care, transportation, etc.) necessarily incurred in connection with utilizing the services of qualified conscientious objectors who may be assigned to the bureaus to aid in the accomplishment of work of the nature described in the appropriation act, which assignments are to be made pursuant to statutory authority vested in the Director of Selective Service to utilize the services of conscientious objectors on "work of national importance." While funds available under the Department of Commerce Appropriation Act, 1943, to certain bureaus of that department for the expenses necessary to accomplish the bureaus' work may be used for the payment of the maintenance expenses of conscientious objectors assigned by the Director of Selective Service to the work of said bureaus, there is no authority to use such funds to provide conscientious objectors with any allowance of cash or compensation of any kind. Conscientious objectors who are assigned under authority of the Selective Training and Service Act of 1940 and Executive Order No. 8675 to the Coast and Geodetic Survey, Department of Commerce, for performance of "work of national importance" may not be given temporary appointments as civil servants or employees of the United States. The assignment of conscientious objectors to "work of national importance" is the duty and responsibility of the Director of Selective Service under the Selective Training and Service Act of 1940 and Executive Order No. 8675, and, therefore, details of the assignment of conscientious objectors to aid in the work of a Government department should be covered by agreement between the Selective Service System and the Government department concerned, rather than by contract-or even arrangement-with the conscientious objectors as individuals. Comptroller General Warren to the Secretary of Commerce, April 27, 1943: I have your letter of April 14, 1943, as follows: In accordance with arrangements made with the Selective Service System, it is proposed to utilize the services of conscientious objectors on specialized projects performing work for the war effort. These men have been called for military duty but, because they conscientiously oppose performing combatant or noncombatant service in the armed forces, efforts are being made to employ them on projects of national importance. Under the terms of our agreement with the Selective Service System, these men can be detailed for the performance of such work provided that adequate maintenance is furnished and that the men are compensated at a rate not to exceed $5 per month. 540712m-43-65 Section 4 (b) of the Annual Leave Regulations (Executive Order No. 8384 dated March 29, 1940), provides: In cases of separation where an employee is indebted to the Government for advanced annual leave, such indebtedness shall be charged against the employee on the basis of the salary rate obtaining during the period of advanced annual leave and on the basis of one day's pay for each day of absence on a day upon which such employee would otherwise work and receive pay, such days of absence being exclusive of Sundays which do not occur within a regular tour of duty, holidays, and all nonwork days established by Federal statute or by Executive or administrative order. Absences for fractional parts of a day shall be charged proportionately. This subsection shall not apply in cases of death, retirement for age or disability, or reduction of force, or in case an employee who is not eligible for retirement is unable to return to duty because of disability, evidence of which shall be supported by an acceptable certificate from a registered practicing physician or other practitioner. See also, section 11 of the Sick Leave Regulations (Executive Order No. 8385 dated March 29, 1940), providing: In the case of voluntary separation or removal for cause of an employee to whom sick leave has been advanced in an amount in excess of that accumulated, the employee shall refund the amount paid him for the period of such excess, or deduction therefor shall be made from any salary due him or from any amount in the retirement fund to his credit. Such indebtedness shall be charged against the employee on the basis of the salary rate obtaining during the period of advanced sick leave and on the basis of one day's pay for each day of absence on a day upon which the employee would otherwise work and receive pay, such days of absence being exclusive of Sundays which do not occur within a regular tour of duty, holidays, and all nonwork days established by Federal statute or by Executive or administrative order. Absences for fractional parts of a day shall be charged proportionafely. This section shall not apply in cases of death, retirement for age or disability, or reduction of force, or in case an employee who is not eligible for retirement is unable to return to duty because of disability, evidence of which shall be supported by an acceptable certificate from a registered practicing physician or other practitioner. [Italics supplied.] In decision of July 16, 1942, 22 Comp. Gen. 42, the following rule, among others, was stated (quoting from the syllabus): A furlough without pay to enter the military service is to be regarded as a "separation" under section 7 of the Annual Leave Regulations providing that an employee voluntarily separated from the service without prejudice during any calendar year shall be entitled to all of his accumulated and current accrued leave "to and including the date of separation.” Obviously, the same meaning must prevail as to the use of the word, "separation", appearing in section 4 (b) of the Annual Leave Regulations and section 11 of the Sick Leave Regulations. In section 4 (b) of the Annual Leave Regulations no distinction is made between voluntary and involuntary separations, except as to the several factors included in the last sentence of said section. Thus, as to annual leave, no conclusion is warranted other than that section 4 (b) of the Annual Leave Regulations required collection from you to cover the amount of annual leave overdrawn at the time of your entry into active military service, for the reason that your status at that time did not bring you within any of the exceptions to that regulation. However, the situation as to collection on account of overdrawn sick leave under section 11 of the Sick Leave Regulations above quoted, is different in your case for the reason that said section of the regulation in respect of the requirement for refund on account of excess sick leave is specifically limited to "the case of voluntary separation or removal for cause." Your entry into the active military service, whether by enlistment or by induction, is not for regarding as a "voluntary separation or removal for cause" within the meaning of section. 11 of the Sick Leave Regulations, so as to require collection from you for overdrawn sick leave. While the earlier laws and decisions made a distinction between employees who were "ordered" into the active military or naval service and those who voluntarily enlisted, with respect to leave benefits and reemployment rights (see 21 Comp. Gen. 210, 403, and the statutes therein considered), later statutes now in force and the decision thereunder show a definite intention to treat all employees alike with regard to such benefits, regardless of the circumstances under which they enter the active military or naval service (i. e., whether by induction or by enlistment). See section 7 of the act of August 18, 1941, 55 Stat. 627, act of April 7, 1942, Public Law 517, 56 Stat. 200, amending the act of August 1, 1941, and 22 Comp. Gen. 47. It is concluded, therefore, that under the terms of section 11 of the Sick Leave Regulations, overdrawn sick leave is not required to be charged to an employee whose "separation" is due to his entering into the active military or naval service without a break in service. Accordingly, the settlement of your claim No. 1112071 of February 8, 1943, will be revised so as to apply the above-stated rules on the basis of your leave record, and you will be promptly advised when such action shall have been taken. Your right to reinstatement may be given consideration by this office only if and when you are discharged from the active military service, at which time proper consideration will be given the provisions of section 8 of the Selective Training and Service Act of 1940, approved September 16, 1940, 54 Stat. 890, and section 7 of the act of August 18, 1941, 55 Stat. 627, extending reemployment rights to employees who voluntarily enlist in the armed forces, and the regulations of the Civil Service Commission issued under such statutes. (B-33727) CONTRACTS-COST-PLUS-EXPENSES AND JUDGMENT PAYMENTS INCIDENT TO FAIR LABOR STANDARDS ACT LITIGATION Under cost-plus-a-fixed-fee contracts covering the construction of ordnance plants, etc., and providing for reimbursement to the contractors for all labor and for losses and expenses sustained or incurred in connection with the contract work, the contractors may be reimbursed for properly substantiated and approved costs directly attributable to civil suits instituted against them |