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B-157963, MAY 18, 1966, 45 COMP. GEN. 710

B-157963 May 18, 1966
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COMPENSATION - POSTAL SERVICE - OVERTIME - SUBSTITUTE EMPLOYEES A SUBSTITUTE POSTAL EMPLOYEE ENTITLED TO PAYMENT OF OVERTIME PURSUANT TO 39 U.S.C. 3573 FOR WORK PERFORMED IN EXCESS OF 40 HOURS PER WEEK WHO AT THE TIME OF REPORTING IN ILL HAD WORKED 4 DAYS OF HIS SCHEDULED WORKWEEK AND WAS IN A PAY STATUS FOR 36 HOURS MAY NOT BE GRANTED 8 HOURS OF SICK OR ANNUAL LEAVE FOR THE LAST DAY OF THE SERVICE WEEK AND PAID OVERTIME RATES FOR THE 4 HOURS IN EXCESS OF HIS BASIC 40 HOUR WORKWEEK. EMPLOYEE A IS A SUBSTITUTE. HE WAS GRANTED 8 HOURS OF SICK LEAVE ON SATURDAY WHICH IS THE FIRST DAY IN THE POSTAL FIELD SERVICE WORKWEEK. HE WAS DUE TO REPORT FOR WORK ON THURSDAY WHEN IT WAS ANTICIPATED THAT HE WOULD WORK FOR 8 HOURS.

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B-157963, MAY 18, 1966, 45 COMP. GEN. 710

COMPENSATION - POSTAL SERVICE - OVERTIME - SUBSTITUTE EMPLOYEES A SUBSTITUTE POSTAL EMPLOYEE ENTITLED TO PAYMENT OF OVERTIME PURSUANT TO 39 U.S.C. 3573 FOR WORK PERFORMED IN EXCESS OF 40 HOURS PER WEEK WHO AT THE TIME OF REPORTING IN ILL HAD WORKED 4 DAYS OF HIS SCHEDULED WORKWEEK AND WAS IN A PAY STATUS FOR 36 HOURS MAY NOT BE GRANTED 8 HOURS OF SICK OR ANNUAL LEAVE FOR THE LAST DAY OF THE SERVICE WEEK AND PAID OVERTIME RATES FOR THE 4 HOURS IN EXCESS OF HIS BASIC 40 HOUR WORKWEEK, OVERTIME PAYABLE ONLY FOR WORK ACTUALLY PERFORMED AFTER A SUBSTITUTE EMPLOYEE HAS BEEN IN A WORK OR PAID LEAVE STATUS FOR 40 HOURS, THE EMPLOYEE MAY ONLY BE GRANTED 4 HOURS' LEAVE, ANNUAL OR SICK, TO COMPLETE HIS BASIC 40-HOUR WORKWEEK AND PAID STRAIGHT TIME COMPENSATION FOR THE COMPLETED 40 HOURS.

TO THE POSTMASTER GENERAL, MAY 18, 1966:

WE REFER TO YOUR LETTER OF APRIL 12, 1966, REFERENCE 800, REQUESTING A DECISION ON THREE SPECIFIC QUESTIONS PERTAINING TO THE FOLLOWING CASE.

EMPLOYEE A IS A SUBSTITUTE. HE WAS GRANTED 8 HOURS OF SICK LEAVE ON SATURDAY WHICH IS THE FIRST DAY IN THE POSTAL FIELD SERVICE WORKWEEK. WORKED 10 HOURS ON THE FOLLOWING MONDAY; 8 HOURS ON TUESDAY, AND 10 HOURS ON WEDNESDAY. WHEN HE LEFT WORK ON WEDNESDAY HE HAD BEEN IN A PAID STATUS FOR 36 HOURS IN THE SERVICE WEEK. HE WAS DUE TO REPORT FOR WORK ON THURSDAY WHEN IT WAS ANTICIPATED THAT HE WOULD WORK FOR 8 HOURS. THURSDAY MORNING HE REPORTED HE WAS ILL AND WAS UNABLE TO WORK. REQUESTED THAT HE BE GRANTED 8 HOURS SICK LEAVE FOR THURSDAY.

YOUR THREE QUESTIONS ARE REITERATED AS FOLLOWS:

1. IS IT DISCRETIONARY EITHER TO GRANT OR TO DENY SICK LEAVE FOR 8 HOURS ON THURSDAY?

2. IF THE DEPARTMENT IS EITHER OBLIGATED TO, OR IN THE EXERCISE OF ITS DISCRETION MAY GRANT SICK LEAVE FOR 8 HOURS ON THURSDAY, WILL EMPLOYEE A BE DUE PAY AT OVERTIME RATES FOR THE 4 HOURS IN A PAID STATUS IN EXCESS OF 40 HOURS IN THE SERVICE WEEK?

3. IF EMPLOYEE A HAD STATED THAT EVEN THOUGH HE WAS ILL, HE WISHED TO BE GRANTED ANNUAL LEAVE AND HAD BEEN GRANTED 8 HOURS OF ANNUAL LEAVE ON THURSDAY, WOULD HE BE DUE PAY AT OVERTIME RATES FOR THE 4 HOURS IN A PAID STATUS IN EXCESS OF 40 HOURS IN THE SERVICE WEEK?

WE SEE NO REASON WHY THE EMPLOYEE SHOULD NOT BE GRANTED SICK LEAVE TO THE EXTENT OF 4 HOURS OF HIS ABSENCE ON THURSDAY TO COMPLETE THE 40 HOURS OF HIS BASIC WORKWEEK. HOWEVER, THERE WOULD BE NO AUTHORITY TO GRANT HIM SICK LEAVE FOR HOURS IN EXCESS OF 40 THAT HE THEREAFTER WAS DIRECTED TO WORK DURING THE WEEK. IT FOLLOWS, THEREFORE, THAT STRAIGHT TIME COMPENSATION FOR 40 HOURS ONLY WOULD BE PAYABLE. WHILE SICK LEAVE MAY BE ADDED TO HOURS ACTUALLY WORKED BY A SUBSTITUTE FOR THE PURPOSE OF DETERMINING WHEN HE HAS COMPLETED THE BASIC 40 HOURS IN A WORKWEEK, OVERTIME IS PAYABLE ONLY FOR WORK ACTUALLY PERFORMED AFTER THE SUBSTITUTE HAS BEEN IN A WORK OR PAID LEAVE STATUS FOR THE BASIC 40 HOURS IN A WEEK. YOUR FIRST TWO QUESTIONS ARE ANSWERED ACCORDINGLY.

CONCERNING YOUR THIRD QUESTION, IT WOULD BE PROPER TO GRANT THE EMPLOYEE ANNUAL LEAVE FOR 4 HOURS ONLY ON THURSDAY WITH NO CHARGE TO LEAVE FOR THE ABSENCE IN EXCESS OF 4 HOURS ON THAT DAY. COMPENSATION WOULD BE PAYABLE FOR 40 HOURS ONLY AND AT THE STRAIGHT TIME RATE.

WE HAVE NOT OVERLOOKED THE PROVISIONS IN SECTION 721.324 AND 721.433 B (1), INDICATING THAT THE 40 HOURS PER WEEK LIMITATIONS ON PAID ANNUAL OR SICK LEAVE DO NOT APPLY TO A COMBINATION OF LEAVE HOURSAND WORK HOURS. HOWEVER, THOSE PROVISIONS WERE INCLUDED IN THE MANUAL AT A TIME WHEN THERE WAS NO AUTHORITY FOR THE ESTABLISHMENT OF A 40-HOUR BASIC WORKWEEK AND PAYMENT OF OVERTIME COMPENSATION FOR ALL HOURS IN EXCESS THEREOF TO SUBSTITUTE EMPLOYEES. SECTION 5 OF PUBLIC LAW 89 301, WHICH AMENDED 39 U.S.C. 3573, TO PROVIDE AMONG OTHER THINGS FOR THE PAYMENT OF OVERTIME COMPENSATION TO SUBSTITUTE EMPLOYEES IN THE POSTAL SERVICE FOR WORK PERFORMED IN EXCESS OF 40 HOURS PER WEEK CONTEMPLATES THE PAYMENT OF OVERTIME ONLY FOR WORK ACTUALLY PERFORMED AFTER THE EMPLOYEE HAS COMPLETED THE BASIC NUMBER OF HOURS OF WORK (40) REQUIRED AS A CONDITION OF ENTITLEMENT TO PAYMENT OF OVERTIME COMPENSATION FOR ADDITIONAL WORK PERFORMED. THUS THE PROVISIONS IN SECTION 721.324 AND 721.433B (1) ARE INCONSISTENT WITH THE CURRENT LAW AND ARE NOT REGARDED AS CONTROLLING. THE CURRENT POLICY OF THE POST OFFICE DEPARTMENT WHICH IN OUR OPINION IS NOT ONLY CONSISTENT WITH BUT IS REQUIRED BY THE PRESENT LAW (PUBLIC LAW 89 -301) IS REFLECTED IN THE FOLLOWING QUESTION AND ANSWER APPEARING ON PAGE 5 OF THE POSTAL BULLETIN FOR MAY 5, 1966, QUOTED FOR CONVENIENT REFERENCE AS FOLLOWS:

(4) GRANTING OF ANNUAL LEAVE TO SUBSTITUTES DURING THE FIRST PART OF THE WEEK. DISPOSITION: SUBSTITUTES MAY BE GRANTED ANNUAL LEAVE ON ANY DAY THEY REQUEST SUCH LEAVE PROVIDED THEY CAN BE SPARED AND PROVIDED THEY DO NOT ALREADY HAVE TO THEIR CREDIT FOR THAT WEEK A TOTAL OF 40 HOURS OF COMBINED WORK AND PAID LEAVE. LEAVE CHARGE CANNOT EXCEED 8 HOURS IN ANY ONE DAY.

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