A-35946, APRIL 1, 1931, 10 COMP. GEN. 445

A-35946, APRIL 1, 1931, 10 COMP. GEN. 445

SATURDAY HALF HOLIDAYS - FIRE FIGHTERS THE ACT OF MARCH 3, 1931, 46 STAT. 1482, PROVIDING FOR SATURDAY HALF HOLIDAYS FOR CERTAIN GOVERNMENT EMPLOYEES, IS NOT APPLICABLE TO EMPLOYEES HIRED DURING AN EMERGENCY WITH COMPENSATION BY THE HOUR FOR THE HOURS ACTUALLY WORKED SOLELY FOR SUCH EMERGENCY WORK AS FIRE FIGHTING, AND OTHER SIMILAR EMERGENCY WORK, THE VERY NATURE OF WHICH WOULD PERMIT OF NO DELAY NOR THE FIXING OF HOURS OF LABOR FOR THE PERFORMANCE THEREOF.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, APRIL 1, 1931:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF MARCH 24, 1931, AS FOLLOWS:

YOUR CONSIDERATION IS DESIRED AS TO THE APPLICATION OF THE ACT OF MARCH 3, 1931 (PUBLIC 783) TO THE FOLLOWING SITUATION:

A LARGE NUMBER OF LABORERS ARE EMPLOYED ANNUALLY IN THE FOREST SERVICE IN THE SUPPRESSION OF FOREST FIRES, THE MEN BEING HIRED FOR THE PERIOD OF THE FIRE AT AN HOURLY RATE AND PAID FOR THE NUMBER OF HOURS OF ACTUAL WORK. THEY ARE ALLOWED NO LEAVE PRIVILEGES NOR ARE THEY GRANTED TIME OFF WITH PAY ON SUNDAYS OR HOLIDAYS. BECAUSE OF THE PUBLIC EXIGENCY THEY ARE ALMOST INVARIABLY EMPLOYED MORE THAN EIGHT HOURS PER DAY. THEY HAVE NO FIXED WORK DAY, THE NUMBER OF HOURS OF LABOR BEING GOVERNED BY SUCH FACTORS AS THE PHYSICAL LIMITATIONS OF THE MEN, AVAILABILITY OF RELIEF CREWS, CLIMATIC CONDITIONS INTENSITY OF THE FIRE, ETC. IN THE EARLY STAGES OF FIRES WHEN THE MEN ARE FRESH AND CONDITIONS CRITICAL, 16 OR 18 HOURS' WORK PER DAY MAY SOMETIMES BE REQUIRED, THE AVERAGE WORK DAY APPROXIMATING TWELVE HOURS.

ASSUME THAT A FIRE BURNED FROM MARCH 6 TO 9, 1931, INCLUSIVE, AND THAT A LABORER WORKED FIVE HOURS ON THE 6TH, 14 HOURS ON THE 7TH (SATURDAY), 12 HOURS ON THE 8TH, AND SIX HOURS ON THE 9TH FROM 6:00 A.M. UNTIL NOON WHEN THE FIRE WAS PRONOUNCED COMPLETELY EXTINGUISHED AND THE CREW DISCHARGED. WOULD SUCH A MAN BE ENTITLED TO BUT 37 HOURS PAY AS HAS BEEN THE CASE HITHERTO OR SHOULD HE BE ALLOWED COMPENSATION FOR 47 HOURS? THE LATTER FIGURE IS BASED ON THE ACTUAL HOURS OF SATURDAY LABOR INVOLVED IN THE ILLUSTRATION. IT MAY BE CONTENDED THAT THE MEN SHOULD BE ALLOWED 41 HOURS PAY BASED ON THE USUAL EIGHT-HOUR DAY AS THE MAXIMUM FOR COMPUTATION PURPOSES, OR 45 HOURS BASED ON ACCEPTANCE OF THE AVERAGE WORK DAY OF FIRE FIGHTERS OF 12 HOURS AS THE MAXIMUM GUIDE.

WITH REGARD TO ALLOWING TIME OFF, THE ACT PROVIDES TWO ALTERNATIVE METHODS; (1) WHEN AN EMPLOYEE CAN BE SPARED ON SATURDAY HE SHALL BE EXCUSED AFTER COMPLETING FOUR HOURS' WORK AND PAID A FULL DAY'S PAY THEREFOR, AND (2) WHEN MORE THAN FOUR HOURS' WORK IS REQUIRED ON SATURDAY THERE SHALL BE AN EQUAL SHORTENING OF THE WORK DAY ON SOME OTHER DAY. NEITHER OF THESE CONDITIONS COULD POSSIBLY BE CARRIED OUT IN THE CASE OF EMERGENCY EMPLOYEES SUCH AS FIRE FIGHTERS. THAT IS TO SAY, THEY COULD NOT BE EXCUSED AFTER HAVING PERFORMED FOUR HOURS' WORK ON SATURDAYS NOR COULD THEY BE GRANTED COMPENSATORY TIME SUBSEQUENTLY WITHIN THE PERIOD OF THEIR EMPLOYMENT. THE PAY-ROLL PERIOD COULD BE ARBITRARILY EXTENDED AFTER THE FIRE IS OUT AND THE JOB COMPLETED TO INCLUDE TIME EQUIVALENT TO THE COMPENSATORY TIME LOST BUT IT IS NOT MY UNDERSTANDING THAT THE LAW IMPLIES SUCH AUTHORITY.

I SHALL APPRECIATE YOUR DECISION WITH RESPECT TO THE EFFECT OF THE ACT UPON FIRE FIGHTERS AND OTHER SHORT-TERM EMPLOYEES HIRED FOR PURELY EMERGENCY WORK.

WHILE THE ACT OF MARCH 3, 1931, 46 STAT. 1482, IS BROADLY APPLICABLE TO "ALL CIVIL EMPLOYEES OF THE FEDERAL GOVERNMENT AND THE DISTRICT OF COLUMBIA, EXCEPT EMPLOYEES OF THE POSTAL SERVICE, EMPLOYEES OF THE PANAMA CANAL ON THE ISTHMUS, AND EMPLOYEES OF THE INTERIOR DEPARTMENT IN THE FIELD, WHETHER ON THE HOURLY, PER DIEM, PER ANNUM, PIECEWORK, OR OTHER BASIS," AND WOULD INCLUDE TEMPORARY OR SEASONAL EMPLOYEES GENERALLY--- OTHER THAN THOSE UNDER THE SERVICES EXPRESSLY EXCEPTED--- I AM CONSTRAINED TO HOLD THAT THERE COULD HAVE BEEN NO INTENT TO INCLUDE EMPLOYEES HIRED DURING AN EMERGENCY WITH COMPENSATION BY THE HOUR FOR THE HOURS ACTUALLY WORKED, SOLELY FOR SUCH EMERGENCY WORK AS FIRE FIGHTING, AND OTHER SIMILAR EMERGENCY WORK, THE VERY NATURE OF WHICH WOULD PERMIT OF NO DELAY, NOR THE FIXING OF HOURS OF LABOR, FOR THE PERFORMANCE THEREOF. OF COURSE, IF REGULAR EMPLOYEES UNDER YOUR DEPARTMENT WHO ORDINARILY HAVE REGULAR WORKING HOURS SHOULD BE REQUIRED IN AN EMERGENCY TO ENGAGE IN FIRE FIGHTING ON SATURDAY IN EXCESS OF FOUR HOURS, THEY WOULD BE ENTITLED TO COMPENSATORY TIME.