Robert Shelton, B-199054.O.M.
| Decision Date | 16 December 1980 |
| Docket Number | B-199054.O.M. |
| Parties | ROBERT SHELTON, DEPUTY ASSOCIATE DIRECTOR, FPCD |
| Court | Comptroller General of the United States |
Subject request for informal opinion on DOD foreign national employee compensation practices in korea - b-199054-O.M.
Your memorandum requests our informal opinion on a department of defense (DOD) memorandum prepared by the assistant general counsel, manpower health & public affairs, office of the general counsel, DOD. That memorandum concluded that paragraph 3 of article xvii of the status of forces agreement (SOFA)[1] clearly requires the U.S. Armed forces to adopt republic of korea labor law provisions and that 22 U.S.C. 889(a)(1) (1976) is compatible with that result. You also inquire as to whether you "are in a good position *** to press for implementation of our recommendation" that DOD compute premium pay only on base pay.[2]
Section 889(a) grants authority to the secretary of state, and Sec 889(b) to other government agencies and departments, to establish compensation plans for alien employees of the United States employed abroad. It requires the compensation plans to be based upon "prevailing wage rates and compensation practices for corresponding types of positions in the locality." If the proposed practice meets this requirement, it May be adopted only "to the extent it is consistent with the public interest." See 40 Comp.Gen 650 (1961). Although we have never ruled on the specific question, we do not believe that the above-quoted phrase grants authority for an agency to adopt a practice that is not a prevailing wage rate or compensation practice for corresponding types of positions in the locality. Thus, we disagree with dod's position that section 889(a)(1) authorizes the adoption of the compensation practice that they use to compute overtime in korea, despite the fact that it May not be the prevailing practice in the locality.
However given the facts that you have provided us, we believe that DOD is required by the sofa to compute overtime as a percentage of base pay PLUS the consolidated allowance payment, regardless of the provisions of 22 U.S.C. 889(a)(1).
As an executive agreement, the sofa does not require the advice and consent of the senate before becoming effective, and is not a "treaty" in the constitutional sense. However under international law executive arguments such as the sofa are considered treaties, and as such, become the law of the land and supersede prior inconsistent domestic Law. Rossi v. Brown, 467 F.Supp. 960 (D.C. 1979) and cases cited therein.
In this regard, we note that the provision in section 889 providing for the setting of compensation plans based on locality prevailing wage rates was added by a 1960 amendment, section 6 of public law no. 86 723, September 8, 1960 (74 Stat. 831). The sofa entered into force on February 9, 1967. Thus, at that time the sofa took precedence over the provisions of section 889 that were inconsistent with the sofa for the purpose of determining compensation schedules for alien employees in korea.
Moreover we do not believe that any of the subsequent ...
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