B-24647, NOVEMBER 9, 1964, 44 COMP. GEN. 274

B-24647, NOVEMBER 9, 1964, 44 COMP. GEN. 274

HOLIDAYS - FAILURE TO REPORT FOR ADMINISTRATIVELY REQUIRED DUTY. OFFICERS AND EMPLOYEES - ADVERSE PERSONNEL ACTIONS - COMPENSATION DENIAL FOR FAILURE TO REPORT FOR DUTY. COMPENSATION - WITHHOLDING - FAILURE TO REPORT FOR ADMINISTRATIVELY REQUIRED DUTY THE REFUSAL OF AN EMPLOYEE TO WORK ON A HOLIDAY, IN COMPLIANCE WITH AN ADMINISTRATIVE ORDER REQUIRING HIS SERVICES, FOR REASON WHICH THE AGENCY DETERMINES TO BE UNJUSTIFIABLE IS GROUNDS FOR DEDUCTION OF COMPENSATION FOR THAT DAY, EVEN THOUGH THE EMPLOYEE HAS EARNED ANNUAL LEAVE TO HIS CREDIT. THE DENIAL OF COMPENSATION TO AN EMPLOYEE FOR AN UNJUSTIFIABLE REFUSAL TO WORK ON A HOLIDAY IN COMPLIANCE WITH AN ADMINISTRATIVE ORDER REQUIRING HIS SERVICES, ON SUCH HOLIDAY, NEED NOT, UNDER CURRENT LEAVE REGULATIONS, BE REGARDED AS IN THE NATURE OF A DISCIPLINARY ACTION OR AN ADVERSE ACTION BECAUSE THE EMPLOYEE BY HIS OWN ACTION HAS FAILED TO BE AVAILABLE FOR DUTY ON THE HOLIDAY. 21 COMP. GEN. 901, AMPLIFIED. THE RULE THAT AN EMPLOYEE WHO UNJUSTIFIABLY REFUSES TO WORK ON A REGULAR WORKDAY IS NOT ENTITLED TO COMPENSATION FOR THAT DAY AND THE AGENCY IS NOT REQUIRED TO CHANGE THE ABSENCE TO ANNUAL LEAVE IS APPLICABLE TO HOLIDAYS ON WHICH AN EMPLOYEE UNJUSTIFIABLY REFUSES TO WORK, IN COMPLIANCE WITH AN ADMINISTRATIVE ORDER, FOR PURPOSES OF PLACING THE EMPLOYEE IN A LEAVE WITHOUT PAY STATUS AND DEDUCTING COMPENSATION FOR SUCH FAILURE TO BE AVAILABLE FOR DUTY ON THE HOLIDAY.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, NOVEMBER 9, 1964:

YOUR LETTER OF OCTOBER 26, 1964, REQUESTS OUR DECISION WHETHER OR NOT WE CONSIDER THE STATEMENT IN OUR DECISION, 21 COMP. GEN. 901, OF APRIL 2, 1942, QUOTED BELOW, AS BEING OBSOLETE.

THE STATEMENT, WHICH CONCERNED A HOLIDAY, WAS IN RESPONSE TO THIS QUESTION:

3. WOULD IT BE PROPER, THEREFORE, TO CARRY IN A LEAVE-WITHOUT-PAY STATUS AN EMPLOYEE WHO HAD BEEN OFFICIALLY NOTIFIED TO WORK ON FEBRUARY 23 BUT WHO WAS ABSENT ON THAT DAY FOR SOME PERSONAL REASON, (A) ALTHOUGH HE HAD SUFFICIENT EARNED ANNUAL LEAVE TO HIS CREDIT, AND (B) IN THE EVENT HE HAD NO ANNUAL LEAVE TO HIS CREDIT?

THE STATEMENT REFERRED TO BY YOU, IS AS FOLLOWS:

ALSO, IT IS WITHIN ADMINISTRATIVE DISCRETION AS IN THE NATURE OF A DISCIPLINARY MEASURE TO REFUSE TO AUTHORIZE OR APPROVE ABSENCE ON FEBRUARY 23, 1942, AND TO DEDUCT ONE DAY'S PAY FOR FAILURE TO WORK ON THE HOLIDAY UNDER THE GENERAL ADMINISTRATIVE ORDER, IF IT BE DETERMINED ADMINISTRATIVELY THAT THE EXIGENCIES OF THE SITUATION IN THE INDIVIDUAL CASE DO NOT JUSTIFY ADMINISTRATIVE ACTION EXCUSING THE EMPLOYEE FROM WORKING BECAUSE OF THE OCCURRENCE OF THE HOLIDAY, PARTICULARLY WHERE THERE WAS ANY REASON TO BELIEVE AN EMPLOYEE WAS DELIBERATELY TRYING TO AVAIL HIMSELF OF AN ABSENCE BECAUSE IT WOULD NOT BE CHARGED AS LEAVE.

WE ALSO SAID IN SPECIFIC ANSWER TO THE QUESTION THAT:

QUESTIONS 3 (A) AND (B) ARE ANSWERED IN THE NEGATIVE. WHETHER IN THIS CASE THERE SHOULD BE DEDUCTED ONE DAY'S PAY FOR FAILURE TO WORK ON THE HOLIDAY IS FOR ADMINISTRATIVE DETERMINATION.

YOU INDICATE THAT YOU QUESTION THE CONTINUED VALIDITY OF THIS STATEMENT BECAUSE THE DECISION WAS RENDERED BEFORE THE VETERANS PREFERENCE ACT, 5 U.S.C. 851 NOTE, AND THE 1948 AMENDMENT TO THE LLOYD LAFOLLETTE ACT (5 U.S.C. 652), AND BEFORE EMPLOYEES IN GENERAL RECEIVED ANYTHING IN ADDITION TO THEIR BASIC PAY FOR ACTUALLY WORKING ON A HOLIDAY.

WE DO NOT CONSIDER THE STATEMENT IN THE DECISION OF APRIL 2, 1942, AS OBSOLETE EXCEPT FOR THAT PART WHICH INDICATES THAT THE DEDUCTION OF PAY FOR THE HOLIDAY IS IN THE NATURE OF A DISCIPLINARY MEASURE. APPARENTLY THAT PART OF THE STATEMENT WAS INFLUENCED BY THE PROVISION IN THE LEAVE REGULATIONS AT THAT TIME THAT AN EMPLOYEE COULD NOT BE GRANTED LEAVE WITHOUT PAY WHEN HE HAD ANNUAL LEAVE TO HIS CREDIT. NO SUCH PROVISION IS CONTAINED IN THE CURRENT LEAVE REGULATIONS.

AN EMPLOYEE WHO UNJUSTIFIEDLY REFUSES TO WORK ON AN ORDINARY WORKDAY IS NOT ENTITLED TO HIS REGULAR COMPENSATION FOR THAT DAY AND AN AGENCY IS NOT REQUIRED TO CHARGE SUCH AN ABSENCE TO ANNUAL LEAVE. THE FACT THAT THE DAY ON WHICH THE EMPLOYEE REFUSES TO WORK IS A HOLIDAY DOES NOT CHANGE THE SITUATION IN REGARD TO ENTITLEMENT TO REGULAR COMPENSATION. MOREOVER, WE DO NOT VIEW THE MERE DENIAL OF COMPENSATION FOR THAT DAY UNDER THE RELATED CIRCUMSTANCES AS AN ADVERSE ACTION (SUSPENSION FROM SERVICE) BECAUSE AN EMPLOYEE, BY HIS OWN ACTION, HAS FAILED TO BE AVAILABLE FOR DUTY ON THE HOLIDAY.

THERE IS NO REQUIREMENT THAT AN EMPLOYEE MUST BE EXCUSED FROM WORK ON A HOLIDAY AND PAID HIS REGULAR COMPENSATION FOR THAT DAY REGARDLESS OF THE NEED FOR HIS SERVICES. RATHER, IT IS ESTABLISHED THAT THE HEAD OF A DEPARTMENT OR AGENCY MAY REQUIRE THE SERVICES OF EMPLOYEES ON A HOLIDAY IN CASES OF NECESSITY OR EMERGENCY. SEE, GENERALLY, 22 COMP. GEN. 762. ONCE AN EMPLOYEE HAS ABSENTED HIMSELF FROM WORK CONTRARY TO AN ADMINISTRATIVE ORDER, THE ISSUE IS WHETHER OR NOT THE EMPLOYEE HAS JUSTIFIABLE GROUNDS FOR REFUSING TO WORK. AN UNJUSTIFIABLE REFUSAL TO WORK ON A HOLIDAY IN COMPLIANCE WITH A PROPER ORDER TO WORK WOULD BE GROUNDS FOR DEDUCTION OF PAY FOR THAT DAY. THE DETERMINATION WHETHER THE REFUSAL WAS SO UNJUSTIFIED AS TO WARRANT DEDUCTION OF PAY IS AN ADMINISTRATIVE RESPONSIBILITY. THIS, IN EFFECT,IS OUR AMPLIFIED VIEW OF THE REFERRED-TO HOLDING IN 21 COMP. GEN. 901. OF COURSE, ANY APPLICABLE LAWS, REGULATIONS OR PROCEDURES WHICH NOW EXIST OR SHOULD COME INTO EXISTENCE CONCERNING SUCH AN ACTION SHOULD BE FOLLOWED BY THE AGENCY. ALSO, ANY SUSPENSION OR OTHER ACTION TAKEN AS A DISCIPLINARY ACTION BY THE AGENCY WHICH WOULD AFFECT THE EMPLOYEE'S ENTITLEMENT TO PAY FOR ANY OTHER DAY THAN THE PARTICULAR DAY ON WHICH HE REFUSED TO WORK WOULD BE SUBJECT TO THE LAWS, REGULATIONS AND PROCEDURES APPLICABLE TO SUCH ACTIONS.