B-158012, NOV. 29, 1965, 45 COMP. GEN. 291

B-158012, NOV. 29, 1965, 45 COMP. GEN. 291

RETIREMENT - CIVILIAN - INCREASED BENEFITS UNDER 1965 AMENDMENT - STATUS ON DECEMBER 30, 1965 EMPLOYEES WHO HAVE APPLIED FOR CIVIL SERVICE RETIREMENT ON THE BASIS OF DISABILITY UNDER THE ACT OF SEPTEMBER 27, 1965, AS AMENDED, 5 U.S.C. 2688, WHICH REQUIRES SUCH EMPLOYEES TO HAVE THEIR PAY STATUS STOPPED ON DECEMBER 31, 1965, TO BE ENTITLED TO THE INCREASED RETIREMENT BENEFITS, MUST BE PLACED IN A LEAVE WITHOUT PAY STATUS 1 HOUR BEFORE THE CLOSE OF BUSINESS ON DECEMBER 30, 1965, RATHER THAN AT THE BEGINNING OF THE HOLIDAY ON DECEMBER 31, 1965, SINCE THE LONGSTANDING RULE THAT EMPLOYEES HAVE A VESTED RIGHT TO COMPENSATION FOR A HOLIDAY WHEN THEY ARE IN A PAY STATUS FOR THE FULL WORKDAY PRECEDING OR SUCCEEDING THE HOLIDAY, WOULD REQUIRE PAYMENT OF COMPENSATION FOR THE HOLIDAY AND THEREBY DISQUALIFY THEM FOR THE INCREASED RETIREMENT BENEFITS.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, NOVEMBER 29, 1965:

YOUR LETTER OF NOVEMBER 15, 1965, ASKS OUR DECISION WHETHER AN EMPLOYEE MAY REQUEST AND BE GRANTED LEAVE WITHOUT PAY BEGINNING ON A HOLIDAY, PARTICULARLY WHEN AN ADMINISTRATIVE REGULATION PROVIDES THAT EMPLOYEES WHO ARE IN A PAY STATUS AT THE CLOSE OF BUSINESS THE DAY BEFORE A HOLIDAY WILL BE PAID THEIR BASIC PAY FOR THE HOLIDAY.

THE CIRCUMSTANCES GIVING RISE TO THE QUESTION ARE STATED IN YOUR LETTER AS FOLLOWS:

IT IS ANTICIPATED THAT THERE WILL BE SOME PENDING DISABILITY RETIREMENT APPLICATIONS WHICH CANNOT BE ACTED ON BY DECEMBER 30, 1965, THE LAST DATE ON WHICH A RETIRING EMPLOYEE MAY BE IN PAY STATUS AND STILL RECEIVE THE BENEFIT OF THE ANNUITY INCREASES PROVIDED BY RECENT LEGISLATION FOR EMPLOYEES WHOSE RETIREMENT BEGINS NOT LATER THAN DECEMBER 31, 1965. THE EMPLOYEE IS ON SICK OR ANNUAL LEAVE, HE WILL PROBABLY WANT TO HAVE HIS PAY STATUS STOPPED IN TIME TO HAVE HIS RETIREMENT EFFECTIVE DECEMBER 31, 1965, IF IT IS FINALLY APPROVED. UNTIL THE RETIREMENT IS APPROVED, OF COURSE, THE EMPLOYEE WOULD NOT WANT TO BE SEPARATED FROM THE ROLLS.

AS DECEMBER 31 IS A HOLIDAY FOR EMPLOYEES WHOSE WORKWEEKS DO NOT INCLUDE SATURDAY, JANUARY 1 (PUBLIC LAW 86-362), THESE EMPLOYEES WOULD NORMALLY RECEIVE BASIC PAY FOR DECEMBER 31 WITHOUT WORKING OR USING PAID LEAVE ON THAT DAY, IF THEY ARE IN PAY STATUS IMMEDIATELY BEFORE THE HOLIDAY. IT IS CLEAR THAT THEY MAY AVOID BEING PAID FOR DECEMBER 31 BY REQUESTING AND BEING GRANTED LEAVE WITHOUT PAY BEGINNING WITH THE LAST HOUR OF THE DECEMBER 30 WORKDAY, SINCE PAYMENT IS NOT MADE FOR A HOLIDAY OCCURRING WITHIN A PERIOD OF LEAVE WITHOUT PAY (13 COMP. GEN. 206). THE QUESTION IS ASKED HOWEVER, WHETHER THE ONE HOUR OF LEAVE WITHOUT PAY ON DECEMBER 30 IS NECESSARY, OR WHETHER THE AGENCY MAY, ON THE EMPLOYEES' REQUEST GRANT LEAVE WITHOUT PAY BEGINNING ON THE HOLIDAY. * * *

IMPLICIT IN THE QUESTION PRESENTED BY YOUR LETTER IS THE FURTHER QUESTION OF WHETHER, BY LONGSTANDING GENERAL RULE OF LAW (SEE 7 COMP. GEN. 430; 12 ID. 204; 13 ID. 206) OR REGULATION, THERE NOW IS VESTED IN AN EMPLOYEE A LEGAL RIGHT TO BE PAID BASIC COMPENSATION FOR A HOLIDAY ON WHICH HE IS NOT ORDERED OR DIRECTED TO WORK, WHEN HE HAS BEEN IN A PAY STATUS FOR THE FULL WORKDAY IMMEDIATELY PRECEDING OR SUCCEEDING THE HOLIDAY.

OUR OPINION IS THAT NO AUTHORITY EXISTS FOR AN ADMINISTRATIVE DENIAL OF PAY FOR A HOLIDAY WHEN IN ORDINARY CIRCUMSTANCES AN EMPLOYEE HAS BEEN IN A PAY STATUS IMMEDIATELY BEFORE OR AFTER THE HOLIDAY. DISTINGUISH 44 COMP. GEN. 274 IN WHICH THE STATUS OF THE EMPLOYEE WAS SYNONYMOUS TO THAT OF "ABSENT WITHOUT LEAVE.' IN THAT REGARD, 5 U.S.C. 86A PROVIDES THAT REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE WORK BASIS WHO ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF A HOLIDAY "SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.' THIS SAME CONCEPT HAS LONG BEEN RECOGNIZED FOR MONTHLY AND PER ANNUM EMPLOYEES.

WE HAVE NOT OVERLOOKED THE SUGGESTION IN YOUR LETTER THAT AN EMPLOYEE SHOULD NOT BE PRECLUDED FROM BEGINNING LEAVE WITHOUT PAY ON A HOLIDAY WHEN SUCH A COURSE APPEARS TO BE TO HIS BENEFIT. HOWEVER, WE MUST POINT OUT THAT THE COURTS DO NOT LOOK WITH FAVOR UPON THE WAIVER BY AN EMPLOYEE OF A RIGHT CONFERRED BY LAW IN EXCHANGE FOR SOME OTHER BENEFIT WHICH HE MAY DEEM TO BE MORE FAVORABLE. SEE BANCROFT V. UNITED STATES, 56 CT.CL. 218, AFFIRMED 260 U.S. 706.

THE EMPLOYEES TO WHOM YOUR LETTER REFERS MUST WITHOUT QUESTION BE IN A NONPAY STATUS ON DECEMBER 31, 1965, TO RECEIVE THE RETIREMENT BENEFITS CONFERRED BY PUBLIC LAW 89-205, APPROVED SEPTEMBER 27, 1965, AS AMENDED BY PUBLIC LAW 89-314, APPROVED NOVEMBER 1, 1965, 5 U.S.C. 2268. OUR VIEW IS THAT THEY MUST BE IN A LEAVE WITHOUT PAY STATUS AS OF THE CLOSE OF BUSINESS ON DECEMBER 30, 1965; OTHERWISE, THEY WOULD BE ENTITLED TO PAY FOR DECEMBER 31.