B-154984, SEPTEMBER 24, 1964, 44 COMP. GEN. 167

B-154984, SEPTEMBER 24, 1964, 44 COMP. GEN. 167

COMPENSATION - HOLIDAYS - DAYS IN LIEU OF. COMPENSATION - HOLIDAYS - DUTY FIRST-40-HOUR EMPLOYEES. COMPENSATION - HOLIDAYS - EIGHT-HOUR LIMITATION. COMPENSATION - HOLIDAYS' DAYS IN LIEU OF. COMPENSATION - HOLIDAYS - DUTY STATUS. COMPENSATION - HOLIDAYS - SUNDAY HOLIDAYS EMPLOYEES WHOSE BASIC WORKWEEK CONSISTS OF THE FIRST 40 HOURS WORKED DURING ANY ADMINISTRATIVE WORKWEEK HAVING UNPREDICTABLE AND UNCERTAIN DAILY WORK TOURS ARE NOT COVERED BY SECTION 1 OF THE ACT OF SEPTEMBER 22, 1959 (5 U.S.C. 87C), OR EXECUTIVE ORDER NO. 10358 OF JUNE 9, 1952, WHICH PROVIDE HOLIDAY BENEFITS WHEN A HOLIDAY OCCURS ON EITHER SATURDAY OR SUNDAY, NEITHER THE 1959 ACT NOR THE EXECUTIVE ORDER APPLYING TO OTHER THAN EMPLOYEES HAVING REGULARLY SCHEDULED DUTY HOURS AND DAYS AND REGULARLY SCHEDULED WEEKLY NONWORKDAYS, AND ABSENT CLARIFYING LEGISLATION, FIRST-40-HOUR EMPLOYEES HAVING NO REGULAR HOURS OF DUTY OR REGULAR NONWORKDAYS MAY NOT BE GIVEN HOLIDAY BENEFITS DURING EACH WEEK IN WHICH A HOLIDAY OCCURS WITHOUT REGARD TO THE DAY ON WHICH THE HOLIDAY FALLS OR THE DAYS ON WHICH THE EMPLOYEE WORKS BY AUTHORIZING 40 HOURS OF PAY FOR 32 HOURS OF WORK OR ALLOWING 8 HOURS HOLIDAY COMPENSATION AFTER 40 HOURS OR MORE WORK. A FIRST-40-HOUR EMPLOYEE WHO WORKS 8 HOURS ON A WEDNESDAY WHICH IS A HOLIDAY IS ENTITLED TO 8 HOURS HOLIDAY COMPENSATION EXCEPT THAT NO HOLIDAY COMPENSATION MAY BE PAID FOR ANY HOURS OF WORK COMPENSABLE AS OVERTIME. WHEN A HOLIDAY FALLS ON SATURDAY AND THE PRECEDING FRIDAY IS THE "DESIGNATED HOLIDAY," PURSUANT TO 5 U.S.C. 87C, A FIRST-40-HOUR EMPLOYEE WHO WORKS THE FINAL 8 HOURS OF HIS 40-HOUR WEEK ON THE FRIDAY BEING OBSERVED AS A HOLIDAY IN LIEU OF THE HOLIDAY FALLING ON SATURDAY IS ENTITLED ONLY TO HIS REGULAR BASIC RATE OF COMPENSATION FOR HIS SERVICES ON SUCH FRIDAY. HAVING COMPLETED ONLY 32 HOURS OF WORK BEFORE A FRIDAY OBSERVED AS A HOLIDAY IN LIEU OF A SATURDAY HOLIDAY UNDER 5 U.S.C. 87C, A FIRST-40 HOUR EMPLOYEE IS NOT ENTITLED TO 8 HOURS COMPENSATION WITHOUT CHARGE TO LEAVE IF HE DOES NOT WORK ON FRIDAY UNLESS HE IS PREVENTED FROM WORKING ON THAT DAY BECAUSE THE OFFICE IS CLOSED, AND SHOULD THE EMPLOYEE WORK ON SATURDAY HE WOULD BE ENTITLED EITHER TO HOLIDAY PAY OR OVERTIME PAY DEPENDING UPON WHETHER HE WAS PAID FOR THE PRECEDING FRIDAY. A FIRST-40-HOUR EMPLOYEE WHO HAVING NO FIXED DAYS OR HOURS OF DUTY IN HIS BASIC WORKWEEK IS NOT SUBJECT TO THE PROVISIONS OF EXECUTIVE ORDER NO. 10358, JUNE 9, 1952, WHICH IS LIMITED IN APPLICATION TO EMPLOYEES HAVING REGULAR SCHEDULED WORKDAYS WITH DEFINITE DUTY TOURS, AND CONSEQUENTLY A FIRST-40-HOUR EMPLOYEE WHO WORKS 8 HOURS ON A MONDAY DESIGNATED A HOLIDAY IN LIEU OF A HOLIDAY FALLING ON SUNDAY, PURSUANT TO THE EXECUTIVE ORDER, IS ENTITLED ONLY TO STRAIGHT TIME COMPENSATION FOR THE WORK ON MONDAY.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 24, 1964:

WE REFER TO YOUR LETTER OF AUGUST 17, 1964, CONCERNING THE HOLIDAY BENEFITS TO BE ALLOWED THOSE REGULAR FULL-TIME EMPLOYEES OF THE GOVERNMENT WHO BECAUSE OF THE IRREGULAR HOURS OF THEIR WORK ARE CONSIDERED TO HAVE A BASIC WORKWEEK CONSISTING OF THE FIRST 40 HOURS THEY ACTUALLY WORK DURING ANY ADMINISTRATIVE WORKWEEK.

THE UNUSUAL AND UNPREDICTABLE TOUR OF DUTY OF THE EMPLOYEES INVOLVED HAS GIVEN RISE TO SOME PROBLEMS IN GRANTING THEM HOLIDAY BENEFITS ESPECIALLY IN APPLYING THE PROVISIONS OF THE ACT OF SEPTEMBER 22, 1959, PUBLIC LAW 86 -362, 73 STAT. 643, 5 U.S.C. 87C, AND THOSE OF EXECUTIVE ORDER NO. 10358 OF JUNE 9, 1952.

THE ACT OF SEPTEMBER 22, 1959, IS IN PART, AS FOLLOWS:

THAT, FOR THE PURPOSES OF PROVISIONS OF LAW RELATING TO PAY AND LEAVE OF ABSENCE OF CIVILIAN OFFICERS AND EMPLOYEES IN OR UNDER THE GOVERNMENT OF THE UNITED STATES, WITH RESPECT TO NEW YEAR'S DAY (JANUARY 1), WASHINGTON'S BIRTHDAY (FEBRUARY 22), MEMORIAL DAY (MAY 30), INDEPENDENCE DAY (JULY 4), VETERANS DAY (NOVEMBER 11), CHRISTMAS DAY (DECEMBER 25), OR ANY OTHER DAY DECLARED TO BE A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER, THE FOLLOWING RULES SHALL APPLY:

(1) IF ANY SUCH DAY SHALL OCCUR ON A SATURDAY, THE DAY IMMEDIATELY PRECEDING SUCH SATURDAY SHALL BE HELD AND CONSIDERED TO BE A LEGAL PUBLIC HOLIDAY, IN LIEU OF SUCH DAY WHICH SO OCCURS ON SUCH SATURDAY, (A) FOR SUCH OFFICERS AND EMPLOYEES WHOSE BASIC WORKWEEK IS MONDAY THROUGH FRIDAY, AND (B) FOR THE PURPOSES OF SECTION 205 (D) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 (65 STAT. 681), AS AMENDED (5 U.S.C. 2064 (D) ).

(2) IF ANY SUCH DAY SHALL OCCUR ON A REGULAR WEEKLY NONWORKDAY OF ANY OFFICER OR EMPLOYEE WHOSE BASIC WORKWEEK IS OTHER THAN MONDAY THROUGH FRIDAY (EXCEPT THE REGULAR WEEKLY NONWORKDAY ADMINISTRATIVELY SCHEDULED FOR SUCH OFFICER OR EMPLOYEE IN LIEU OF SUNDAY) THE WORKDAY IMMEDIATELY PRECEDING SUCH REGULAR WEEKLY NONWORKDAY SHALL BE HELD AND CONSIDERED TO BE A LEGAL PUBLIC HOLIDAY FOR SUCH OFFICER OR EMPLOYEE IN LIEU OF SUCH DAY WHICH SO OCCURS ON SUCH REGULAR WEEKLY NONWORKDAY.

SIMILAR PROVISIONS DESIGNATING MONDAY AS A HOLIDAY IN LIEU OF HOLIDAYS WHICH FALL ON SUNDAY AND ALLOWING HOLIDAY BENEFITS ON THE FOLLOWING DAY WHEN A HOLIDAY FALLS ON AN EMPLOYEE'S DAY OFF IN LIEU OF SUNDAY ARE CONTAINED IN EXECUTIVE ORDER NO. 10358.

IN THE DECISION OF AUGUST 24, 1962, B-149239, WE SAID:

WE FEEL THAT THERE IS SERIOUS DOUBT WHETHER THE PROVISIONS OF THE ACT OF SEPTEMBER 22, 1959, PUBLIC LAW 86-362, 73 STAT. 643, 5 U.S.C. 87C, CONCERNING HOLIDAYS FALLING ON SATURDAY ARE APPLICABLE TO FIRST 40-HOUR EMPLOYEES. THE PROVISIONS OF THE ACT ARE DIRECTED TO SITUATIONS WHERE EMPLOYEES HAVE A SCHEDULED WORKWEEK AND WHERE THE HOURS WHICH AN EMPLOYEE WILL WORK ON ANY GIVEN DAY ARE REGULAR AND CERTAIN. SINCE THE DAILY WORK TOURS OF FIRST-40-HOUR EMPLOYEES ARE UNPREDICTABLE AND UNCERTAIN TO THE EXTENT THAT THEY HAVE NO REGULAR HOURS OF DUTY OR REGULAR NONWORKDAYS, THEIR SITUATION IS NOT ONE WHICH FITS WITHIN THE FRAMEWORK OF THE ACT.

YOU PROPOSE THAT FIRST-40-HOUR EMPLOYEES BE GIVEN HOLIDAY BENEFITS DURING EACH WEEK IN WHICH A HOLIDAY OCCURS WITHOUT REGARD TO THE DAY ON WHICH THE HOLIDAY FALLS OR THE DAYS ON WHICH THE EMPLOYEE WORKS BY PERMITTING SUCH EMPLOYEES TO WORK 32 HOURS FOR 40 HOURS PAY DURING EACH SUCH WEEK OR BY ALLOWING THEM 8 HOURS HOLIDAY COMPENSATION IF THEY WORK 40 HOURS OR MORE DURING SUCH WEEK.

THE FIRST-40-HOUR CONCEPT ORIGINALLY WAS DESIGNED TO APPLY SOLELY IN OVERTIME SITUATIONS ARISING UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945. SEE 25 COMP. GEN. 14. WE DO NOT CONSIDER THAT SUCH CONCEPT APPROPRIATELY CAN BE EXTENDED BY DECISION OF OUR OFFICE TO APPLY TO THE SATURDAY AND SUNDAY HOLIDAY SITUATIONS TO WHICH YOUR SUBMISSION REFERS.

THE DUTY DAYS AND NONWORKDAYS OF FIRST-40-HOUR EMPLOYEES VARY DEPENDING UPON THE HOURS AND DAYS WORKED. WHILE THE 40-HOUR DUTY COULD BE COMPLETED IN THREE TO FOUR DAYS IT MIGHT NOT BE COMPLETED UNTIL ON OR BEFORE THE SIXTH DAY. THE BASIC WORKWEEK OF SUCH EMPLOYEES IS THE FIRST 40 HOURS OF DUTY PERFORMED WITHIN A PERIOD OF NOT OVER SIX DAYS OF THE ADMINISTRATIVE WORKWEEK OF SEVEN CONSECUTIVE CALENDAR DAYS. HENCE, SUCH EMPLOYEES WOULD NOT BE COVERED BY SECTION 1, PARAGRAPH 1, OF THE QUOTED LAW BECAUSE THAT PARAGRAPH APPLIES ONLY TO EMPLOYEES WHOSE BASIC WORKWEEK IS MONDAY THROUGH FRIDAY AND NEITHER DOES PARAGRAPH 2 OF SECTION 1 APPLY TO SUCH EMPLOYEES BECAUSE THEY DO NOT HAVE ANY REGULAR DUTY HOURS OR DAYS OR REGULAR SCHEDULED WEEKLY NONWORKDAY OR NONWORKDAYS. ACCORDINGLY, WE CONSIDER THAT THE HOLDING IN OUR DECISION OF AUGUST 24, 1962, B-149239, IS CORRECT. SIMILARLY EXECUTIVE ORDER NO. 10358 APPEARS TO BE DESIGNED FOR APPLICATION ONLY TO EMPLOYEES WHO HAVE REGULAR SCHEDULED DUTY HOURS AND DAYS AND A REGULAR SCHEDULED WEEKLY NONWORKDAY OR NONWORKDAYS. THEREFORE, THE PRINCIPLE ENUNCIATED IN OUR DECISION OF AUGUST 24, 1962, WOULD ALSO APPLY IN THE CONSTRUCTION OF THIS ORDER.

THE FOUR SPECIFIC QUESTIONS YOU PRESENT ARE REITERATED AND ANSWERED AS FOLLOWS:

1. WEDNESDAY IS A HOLIDAY AND THE EMPLOYEE WORKS EIGHT HOURS ON THAT DAY. UNDER WHAT CONDITIONS IS HE ENTITLED TO HOLIDAY PREMIUM PAY FOR THOSE EIGHT HOURS?

A FIRST-40-HOUR EMPLOYEE WHO WORKS 8 HOURS ON A WEDNESDAY WHICH IS A HOLIDAY IS ENTITLED TO 8 HOURS HOLIDAY COMPENSATION EXCEPT THAT NO HOLIDAY COMPENSATION MAY BE PAID FOR ANY OF SUCH HOURS OF WORK AS ARE PROPERLY COMPENSABLE AS OVERTIME.

2. SATURDAY IS A HOLIDAY AND THE PRECEDING FRIDAY IS THE "DESIGNATED HOLIDAY.' THE EMPLOYEE COMPLETES HIS FORTY HOUR WORKWEEK BY WORKING EIGHT HOURS ON FRIDAY. IS HE ENTITLED TO THE HOLIDAY PREMIUM RATE FOR THOSE EIGHT HOURS OF WORK?

A FIRST-40-HOUR EMPLOYEE WHO WORKS THE FINAL 8 HOURS OF HIS 40-HOUR WEEK ON A FRIDAY WHICH IS OBSERVED AS A HOLIDAY IN LIEU OF A HOLIDAY WHICH FALLS ON A SATURDAY AS PROVIDED BY 5 U.S.C. 87C, IS ENTITLED TO HIS REGULAR BASIC RATE OF COMPENSATION ONLY FOR SERVICES ON SUCH DAY.

3. SATURDAY IS A HOLIDAY AND THE PRECEDING FRIDAY IS THE "DESIGNATED HOLIDAY.' PRIOR TO FRIDAY THE EMPLOYEE HAS WORKED THIRTY TWO HOURS, AND HE DOES NOT WORK ON FRIDAY. HOWEVER, HE DOES WORK EIGHT HOURS ON SATURDAY. IS THIS SATURDAY WORK OVERTIME?

A FIRST-40-HOUR EMPLOYEE WHO HAS WORKED 32 HOURS BEFORE A FRIDAY WHICH IS OBSERVED AS A HOLIDAY IN LIEU OF A SATURDAY HOLIDAY UNDER 5 U.S.C. 87C, IS NOT ENTITLED TO 8 HOURS COMPENSATION WITHOUT CHARGE TO LEAVE IF HE DOES NOT WORK ON SUCH FRIDAY UNLESS HE IS PREVENTED FROM WORKING ON THAT DAY BECAUSE OF THE CLOSING OF THE OFFICE. IF THE EMPLOYEE WORKS ON THE FOLLOWING SATURDAY HE WOULD BE ENTITLED EITHER TO HOLIDAY PAY OR OVERTIME PAY FOR WORK ON THAT DAY, DEPENDING UPON WHETHER HE WAS PAID FOR THE PRECEDING FRIDAY.

4. SUNDAY IS A HOLIDAY AND ON MONDAY, THE DESIGNATED HOLIDAY, THE EMPLOYEE WORKS EIGHT HOURS. AS IN NO. 1 ABOVE, IS HE ENTITLED TO HOLIDAY PREMIUM PAY FOR THE TIME WORKED ON THE HOLIDAY?

AS POINTED OUT ABOVE, LIKE PUBLIC LAW 86-362, EXECUTIVE ORDER NO. 10358, JUNE 9, 1952, IS LIMITED IN APPLICATION TO EMPLOYEES HAVING REGULAR SCHEDULED WORKDAYS WITH DEFINITE DUTY TOURS. FIRST-40-HOUR EMPLOYEES HAVE NO FIXED DAYS OR HOURS OF DUTY IN THEIR BASIC WORKWEEKS, AND, THEREFORE, ARE NOT SUBJECT TO THE PROVISIONS OF THAT ORDER. CONSEQUENTLY, A FIRST-40 -HOUR EMPLOYEE WHO WORKS ON MONDAY FOLLOWING A SUNDAY HOLIDAY IS ENTITLED TO STRAIGHT TIME COMPENSATION ONLY.

WHATEVER PROVISION SHOULD BE MADE FOR COMPENSATING FIRST-40-HOUR EMPLOYEES FOR HOLIDAYS OTHER THAN IN ACCORDANCE WITH THE ABOVE--- EITHER FOR ABSENCES OR SERVICES PERFORMED--- IS FOR DETERMINATION BY THE CONGRESS RATHER THAN THE GENERAL ACCOUNTING OFFICE, AND UNTIL LEGISLATION MAY BE ENACTED CLARIFYING THE MATTER, WE MUST CONTINUE TO ADHERE TO THE VIEW THAT NEITHER PUBLIC LAW 86-362 NOR EXECUTIVE ORDER NO. 10358 ARE APPLICABLE TO SUCH EMPLOYEES.