A-53210, JANUARY 24, 1934, 13 COMP. GEN. 207

A-53210, JANUARY 24, 1934, 13 COMP. GEN. 207

SUNDAYS AND HOLIDAYS - LEAVE OF ABSENCE WITHOUT PAY WHILE THE GENERAL RULE HAS BEEN RECOGNIZED BY THE ACCOUNTING OFFICERS THAT COMPENSATION MAY BE PAID TO AN EMPLOYEE FOR SUNDAYS AND HOLIDAYS OCCURRING BETWEEN THE TERMINATION OF A DEFINITE PERIOD OF LEAVE OF ABSENCE WITHOUT PAY ADMINISTRATIVELY GRANTED IN ADVANCE, AND THE ACTUAL RETURN OF THE EMPLOYEE TO DUTY AT THE BEGINNING OF THE DUTY DAY NEXT FOLLOWING THE EXPIRATION OF SUCH DEFINITE PERIOD, THE COMPENSATION FOR SUCH SUNDAYS AND HOLIDAYS MAY BE DENIED BY ADMINISTRATIVE REGULATION GOVERNING THE GRANTING OF LEAVE OF ABSENCE WITHOUT PAY APPLICABLE TO ALL EMPLOYEES OF A DEPARTMENT.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, JANUARY 24, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 10, 1934, REQUESTING MY VIEWS ON THE MATTER INVOLVED IN A MEMORANDUM SIGNED BY E. L. FISHER, AN EMPLOYEE OF THE DEPARTMENT OF JUSTICE, AS FOLLOWS:

UNDER DATE OF DECEMBER 20, 1933, THE PRESIDENT ISSUED AN EXECUTIVE ORDER EXCUSING FROM DUTY ON SATURDAY, DECEMBER 23, 1933, AND ON SATURDAY, DECEMBER 30, 1933, CLERKS AND OTHER EMPLOYEES IN THE FEDERAL SERVICE IN THE DISTRICT OF COLUMBIA.

ON THE STRENGTH OF THIS ORDER I APPLIED FOR AND RECEIVED LEAVE OF ABSENCE WITHOUT PAY FOR THE PERIOD FROM 2:30 P.M., DECEMBER 26, 1933, UNTIL 4:30 P.M., DECEMBER 29, 1933, A PERIOD OF THREE DAYS AND TWO HOURS. IN VIEW OF DEPARTMENTAL LEAVE REGULATIONS THERE WAS TO BE DEDUCTED FROM MY SALARY A PERIOD OF FOUR DAYS, INASMUCH AS LEAVE WITHOUT PAY IS NOT GRANTED IN UNITS LESS THAN ONE DAY. HOWEVER, ON RECEIVING MY SALARY CHECK I FOUND THAT SATURDAY, DECEMBER 30 HAD ALSO BEEN DEDUCTED, AND THAT MONDAY, JANUARY 1, 1934,"NEW YEARS," WAS TO BE DEDUCTED FOR THE FIRST HALF OF JANUARY.

I WAS WILLING TO WORK ON SATURDAY, DECEMBER 30, BUT DID NOT AND COULD NOT DO SO BECAUSE OF THE EXECUTIVE ORDER. I FEEL, HOWEVER, IN VIEW OF THE EXECUTIVE ORDER, THAT I WAS AGAIN ON A DUTY STATUS ON DECEMBER 30, AND THAT THE HOLIDAY GRANTED WAS NOT INTENDED TO REACT IN THE MANNER IN WHICH IT HAS BEEN APPLIED. IN THIS CONNECTION ATTENTION IS INVITED TO A DECISION OF THE COMPTROLLER GENERAL (9 C.G. 350) IN WHICH IT WAS STATED:

"AN EMPLOYEE WHO HAS BEEN GRANTED LEAVE WITHOUT PAY FOR A DEFINITE PERIOD MAY BE PRESUMED TO HOLD HIMSELF IN READINESS TO PERFORM SERVICE, IF REQUIRED, AFTER THE TERMINATION OF THE AUTHORIZED LEAVE WITHOUT PAY.'

MY AUTHORIZED LEAVE WITHOUT PAY EXPIRED AT 4:30 P.M., DECEMBER 29, 1933, AND I WAS READY TO RETURN TO WORK AS SOON AS THE OFFICES WERE OPENED FOR BUSINESS.

THE LEAVE REGULATIONS OF THE DEPARTMENT OF JUSTICE PROVIDE UNDER SECTION 37, LEAVE WITHOUT PAY, AS FOLLOWS:

"SUNDAYS AND HOLIDAYS--- SUNDAYS AND DAYS DECLARED TO BE LEGAL HOLIDAYS BY LAW OR EXECUTIVE ORDER OCCURRING AT ANY TIME EXCEPT AT THE BEGINNING OF A PERIOD OF LEAVE WITHOUT PAY WILL BE CHARGED.'

I HARDLY THINK IT THE SPIRIT OF THE EXECUTIVE ORDER THAT PERSONS ON LEAVE WITHOUT PAY THE DAY PRECEDING THE HOLIDAY SHOULD HAVE THREE DAYS' DEDUCTION FROM THEIR SALARY. THE ORDER "EXCUSED" FEDERAL EMPLOYEES "AS AN EVIDENCE OF APPRECIATION OF THE SPLENDID SERVICE" RENDERED, AND WOULD NOT SEEM TO COM WITHIN THE DEPARTMENT REGULATION CHARGING "SUNDAYS" AND "LEGAL HOLIDAYS.' I DO NOT BELIEVE THE EXECUTIVE ORDER MADE LEGAL HOLIDAYS OF THE TWO SATURDAYS ON WHICH FEDERAL EMPLOYEES WERE EXCUSED. IT MERELY GRANTED A HOLIDAY TO THE EMPLOYEES AND SHOULD BE CONSIDERED IN THE SAME LIGHT AS THOUGH IT WERE AN EMPLOYER GIVING THE EMPLOYEES A "DAY OFF.' AFFECTED ONLY FEDERAL EMPLOYEES AND HAD NO BEARING WHATSOEVER ON THE OTHER ACTIVITIES AND PERSONS OF THE NATION. IT WAS NOT NEARLY SO BROAD IN SCOPE AND EFFECT AS TO MAKE A LEGAL HOLIDAY SUCH AS JULY 4TH, LABOR DAY, THANKSGIVING DAY, ETC.

I SHOULD LIKE TO HAVE THIS QUESTION SETTLED AT AN EARLY DATE IN ORDER THAT I MAY BE CONSIDERED AS ON A DUTY STATUS ON AND AFTER DECEMBER 30, 1933, AND THAT I MAY BE REIMBURSED FOR DECEMBER 30 AND ENTITLED TO PAY FOR JANUARY 1.

IT IS UNDERSTOOD THAT THIS EMPLOYEE APPLIED FOR AND WAS GRANTED ADMINISTRATIVELY IN ADVANCE, LEAVE OF ABSENCE WITHOUT PAY FOR A DEFINITE PERIOD, TERMINATING DECEMBER 29, 1933. THE HOLIDAY ON DECEMBER 30, 1933, DECLARED BY EXECUTIVE ORDER, THE SUNDAY ON DECEMBER 31, 1933, AND THE STATUTORY HOLIDAY ON JANUARY 1, 1934, OCCURRED BETWEEN THE TERMINATION OF THE DEFINITE PERIOD OF LEAVE OF ABSENCE WITHOUT PAY AND THE RETURN OF THE EMPLOYEE TO DUTY JANUARY 2, 1934.

WHILE COMPENSATION FOR SUNDAYS AND HOLIDAYS OCCURRING BETWEEN THE TERMINATION OF A DEFINITE PERIOD OF LEAVE OF ABSENCE WITHOUT PAY, ADMINISTRATIVELY GRANTED IN ADVANCE, AND THE ACTUAL RETURN OF THE EMPLOYEE TO DUTY THE BEGINNING OF THE DUTY DAY NEXT FOLLOWING THE EXPIRATION OF SUCH DEFINITE PERIOD, HAS BEEN AUTHORIZED TO BE PAID TO THE EMPLOYEE BY THE DECISIONS OF THE ACCOUNTING OFFICERS IN CERTAIN CASES, THE MATTER IS SUBJECT TO FURTHER RESTRICTION BY ADMINISTRATIVE REGULATION.

AS THE LEAVE REGULATIONS OF THE DEPARTMENT OF JUSTICE QUOTED IN MR. FISHER'S MEMORANDUM REQUIRE A CHARGE FOR "SUNDAYS AND DAYS DECLARED TO BE LEGAL HOLIDAYS BEY LAW OR EXECUTIVE ORDER OCCURRING AT ANY TIME EXCEPT AT THE BEGINNING OF A PERIOD OF LEAVE WITHOUT PAY," THE ADMINISTRATIVE ACTION IN WITHHOLDING COMPENSATION FROM MR. FISHER FOR DECEMBER 30 AND 31, 1933, AND JANUARY 1, 1934, OCCURRING AT THE END OF THE LEAVE PERIOD, WAS CORRECT.