A-54807, MAY 19, 1934, 13 COMP. GEN. 370

A-54807, MAY 19, 1934, 13 COMP. GEN. 370

COMPENSATION - 40-HOUR WEEK - LEAVE OF ABSENCE - NAVAL ESTABLISHMENT EMPLOYEES UNLESS AND UNTIL MODIFIED IN THE MANNER PROVIDED BY LAW, ALL SCHEDULES, REGULATIONS, AND PRACTICES IN EFFECT PRIOR TO MARCH 28, 1934, RELATIVE TO COMPENSATION FOR OVERTIME, SUNDAY, AND HOLIDAY WORK FOR EMPLOYEES OF THE NAVAL ESTABLISHMENT ARE RENDERED INOPERATIVE INSOFAR AS THEY MAY BE IN CONFLICT WITH THE TERMS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, BUT OTHERWISE ARE TO REMAIN IN FULL FORCE AND EFFECT. THERE MAY CONTINUE TO BE PAID ADDITIONAL COMPENSATION RATES FIXED BY THE SCHEDULE OF WAGES APPLICABLE TO NAVAL ESTABLISHMENT EMPLOYEES FOR WORK ON SUNDAYS AND LEGAL HOLIDAYS WHEN NOT WITHIN THE REGULAR TOUR OF 40 HOURS PER WEEK OF THE EMPLOYEES, BUT FOR WORK ON SUNDAYS WITHIN THE REGULAR TOUR OF 40 HOURS ONLY THE REGULAR RATE OF COMPENSATION SHOULD BE PAID AND FOR WORK ON LEGAL HOLIDAYS WITHIN THE REGULAR TOUR OF 40 HOURS, ONLY TWICE THE REGULAR RATE OF COMPENSATION SHOULD BE PAID. ANNUAL AND SICK LEAVE OF ABSENCE GRANTED ADMINISTRATIVELY WITH PAY IS SYNONYMOUS WITH WORK AND A PART OF THE 40 HOURS PER WEEK FOR THE PURPOSE OF COMPUTING OVERTIME COMPENSATION OF EMPLOYEES OF THE NAVAL ESTABLISHMENT, BUT NOT LEAVE OF ABSENCE WITHOUT PAY. THE RETROACTIVE SUBSTITUTION OF LEAVE WITH PAY FOR LEAVE WITHOUT PAY WILL IN NO CASE BE REGARDED AS CHANGING THE STATUS OF SERVICE ALREADY RENDERED FROM REGULAR TIME TO OVERTIME SO AS TO AUTHORIZE PAYMENT OF AN ADDITIONAL AMOUNT OF COMPENSATION. PER DIEM EMPLOYEES OF THE NAVAL ESTABLISHMENT WHOSE REGULAR TOUR OF DUTY OF 40 HOURS IS ON 5 DAYS PER WEEK ARE ENTITLED TO GRATUITY OR HOLIDAY PAY FOR A LEGAL HOLIDAY FALLING ON A NONWORK DAY ON WHICH NO WORK IS PERFORMED. THERE IS NOTHING IN THE 40-HOUR WEEK STATUTORY PROVISION TO AUTHORIZE PAYMENT OF A NIGHT DIFFERENTIAL IN ADDITION TO OVERTIME, SUNDAY, OR HOLIDAY PAY TO EMPLOYEES OF THE NAVAL ESTABLISHMENT ALL OF WHOSE REGULAR TOUR OF DUTY IS SERVED BETWEEN 7 A.M. AND 6 P.M. WHO MAY BE REQUIRED TO WORK OVERTIME BETWEEN THE HOURS OF 6 P.M. AND 7 A.M. THE SATURDAY HALF-HOLIDAY LAW IS INOPERATIVE TO REQUIRE GRANTING OF COMPENSATORY TIME FOR WORK IN EXCESS OF 4 HOURS ON SATURDAY FOR ALL EMPLOYEES WHOSE REGULAR TOUR OF DUTY IS 40 HOURS ON 5 DAYS PER WEEK, BUT THE SATURDAY HALF HOLIDAY LAW REMAINS OPERATIVE TO EMPLOYEES REGULARLY WORKING ON A 5 1/2-DAY WEEKLY SCHEDULE. UNDER A PERSONAL SERVICE CONTRACT PROVIDING A PER DIEM RATE OF COMPENSATION ONLY WHEN ACTUALLY EMPLOYED, NO COMPENSATION WOULD BE PAYABLE FOR SATURDAYS ON WHICH NO WORK MAY BE PERFORMED DUE TO ADMINISTRATIVE ACTION IN CLOSING THE OFFICE, YARD, OR SHOP IN ORDER TO MAINTAIN A 40-HOUR WEEK SCHEDULE OF WORK FOR REGULAR EMPLOYEES. WHERE THE APPLICATION OF THE 40-HOUR WEEK TO AMERICAN CITIZEN EMPLOYEES AT NAVAL STATIONS OUTSIDE THE CONTINENTAL UNITED STATES REQUIRES REDUCING THE HOURS OF LABOR OF NATIVE OR ALIEN EMPLOYEES WHO ARE PAID COMPENSATION IN ACCORDANCE WITH A SEPARATE AND DISTINCT SCHEDULE, SUCH REDUCTION IN HOURS SHOULD BE WITHOUT REDUCTION IN THE WEEKLY COMPENSATION OF THE NATIVE OR ALIEN EMPLOYEES. AS TO EMPLOYEES OF THE NAVAL ESTABLISHMENT, PAID BY THE MONTH OR YEAR, WHO ARE ON A 5-DAY WORK WEEK, ALL NONWORK DAYS OCCURRING WITHIN A PERIOD OF SICK LEAVE OR LEAVE WITHOUT PAY SHOULD BE REGARDED THE SAME AS SUNDAY HERETOFORE ON A 5 1/2-DAY WEEK. THERE IS NO AUTHORITY UNDER SECTION 215 OF THE ECONOMY ACT FOR DEPARTMENT EMPLOYEES SUBJECT TO THE ACT OF MARCH 15, 1898, TO SUBSTITUTE LEAVE WITH PAY ACCRUED IN ONE LEAVE YEAR FOR LEAVE WITHOUT PAY TAKEN IN A PRIOR LEAVE YEAR, NOR FOR PER DIEM EMPLOYEES OF THE NAVAL ESTABLISHMENT SUBJECT TO THE LEAVE ACT OF AUGUST 29, 1916, 39 STAT. 617, TO SUBSTITUTE LEAVE WITH PAY ACCRUED DURING THE THIRD OR SUBSEQUENT LEAVE YEARS FOR LEAVE WITHOUT PAY TAKEN IN ANY PRIOR LEAVE YEAR.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MAY 19, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 5, 1934, AS FOLLOWS:

THE REGULAR HOURS OF WORK FOR EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT AND MARINE CORPS ON JUNE 1, 1932, IN GROUPS I, II, III, AND IVA (LABORERS, HELPERS AND APPRENTICES, MECHANICS AND SUPERVISORY LABORERS AND MECHANICS), WERE 44 HOURS PER WEEK, 8 HOURS PER DAY, MONDAY TO FRIDAY, INCLUSIVE, AND 4 HOURS ON SATURDAY IN THE CALENDAR WEEK,SUNDAY TO SATURDAY, INCLUSIVE, FOR WHICH THEY RECEIVED 48 HOURS' PAY. THE REGULAR HOURS OF LABOR FOR EMPLOYEES IN GROUP IVB (CLERICAL, ADMINISTRATIVE AND FISCAL, PROFESSIONAL, SUBPROFESSIONAL, AND CUSTODIAL SERVICE) WERE EITHER 44 OR 39 HOURS PER WEEK (8 OR 7 HOURS PER DAY) MONDAY TO FRIDAY, INCLUSIVE, AND 4 HOURS ON SATURDAY IN THE CALENDAR WEEK, SUNDAY TO SATURDAY, INCLUSIVE, FOR WHICH THEY RECEIVED A FULL WEEK'S PAY. TWENTY- FOUR HOUR SERVICE, SUCH AS SERVICE IN THE POWER PLANT OF A NAVY YARD, WAS MAINTAINED BY THE STAGGERING OF SHIFTS. EMPLOYEES ENGAGED IN THIS SERVICE ROTATED ON SUNDAY WORK AND WHEN EMPLOYED ON SUNDAY WERE REQUIRED TO TAKE AN EQUAL AMOUNT OF TIME OFF DURING THE WEEK PRECEDING OR SUCCEEDING THE SUNDAY. THE REGULATIONS GOVERNING HOURS OF WORK AND SUNDAY WORK ARE CONTAINED IN PARAGRAPHS 4 AND 3, RESPECTIVELY, OF THE "INSTRUCTIONS" IN THE SCHEDULE OF WAGES FOR CIVIL EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT AND THE MARINE CORPS, REVISED TO JULY 23, 1931.

IN ORDER TO COMPLY WITH THE PROVISIONS OF SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, THE HOURS OF WORK OF EMPLOYEES IN GROUPS I, II, III, AND IVA WERE CHANGED, EFFECTIVE MARCH 28, 1934, TO 40 HOURS PER WEEK, 8 HOURS PER DAY, MONDAY TO FRIDAY, INCLUSIVE, IN THE CALENDAR WEEK SUNDAY TO SATURDAY, INCLUSIVE, FOR WHICH THEY RECEIVE 48 HOURS' PAY, EXCEPT PER DIEM NATIVE AND ALIEN EMPLOYEES OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES (INCLUDING THOSE PERFORMING SERVICE SIMILAR TO GROUP IVB EMPLOYEES) WHO CONTINUE TO PERFORM THE SAME NUMBER OF HOURS PER DAY AS ON JUNE 1, 1932, BUT NOW WORK ONLY 5 DAYS PER WEEK FOR WHICH THEY RECEIVE ONLY THE RATES OF WAGES PROVIDED IN THE SCHEDULE OF WAGES, ABOVE REFERRED TO.

EFFECTIVE APRIL 14, 1934, BASED ON YOUR DECISION OF APRIL 12, 1934, NO. A -54807, THE HOURS OF WORK OF EMPLOYEES IN GROUP IVB WHO FORMERLY WORKED 7 HOURS PER DAY WERE CHANGED TO 8 HOURS PER DAY ON MONDAY TO THURSDAY, INCLUSIVE, AND 7 HOURS ON FRIDAY. NO CHANGE WAS MADE IN THE HOURS PER DAY OF GROUP IVB EMPLOYEES WHO FORMERLY WORKED 8 HOURS PER DAY. THE HOURS PER WEEK IN THE CALENDAR WEEK SUNDAY TO SATURDAY, INCLUSIVE, FOR GROUP IVB EMPLOYEES ARE EITHER 40 OR 39, FOR WHICH THEY RECEIVE A FULL WEEK'S PAY.

THESE SCHEDULES OF HOURS OF WORK WERE EFFECTED BY THE CLOSING OF ALL NAVY YARDS AND NAVAL STATIONS AND OTHER ACTIVITIES, IN THE FIELD SERVICE OF THE NAVY DEPARTMENT AND THE MARINE CORPS ON SATURDAYS. TWENTY-FOUR HOUR SERVICE, SUCH AS SERVICE IN THE POWER PLANT OF A NAVY YARD, IS MAINTAINED BY THE STAGGERING OF SHIFTS.

A FEW EXCEPTIONS HAVE BEEN MADE TO THE 5-DAY WORK WEEK, ABOVE REFERRED TO, SUCH AS IN THE CASE OF GROUP IVB EMPLOYEES IN VARIOUS INSPECTION OFFICES, OFFICES OF SUPERINTENDING CONSTRUCTORS, AND PUBLIC WORKS INSPECTORS, WHERE IT IS NECESSARY FOR THEM TO WORK ON SATURDAY BECAUSE CONTRACTORS WORK ON THAT DAY.

INCIDENT TO THE NEW PROCEDURE ABOVE OUTLINED CERTAIN QUESTIONS HAVE ARISEN WHICH REQUIRE YOUR CONSIDERATION AND DECISION. MOST OF THEM AFFECT ONLY A SMALL NUMBER OF EMPLOYEES, THOSE WORKING UNDER UNUSUAL CONDITIONS.

1. PRIOR TO THE PASSAGE OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF MARCH 28, 1934, AND YOUR DECISION OF APRIL 12, 1934 (A-54807), IN ANSWER TO QUESTION 5 OF THE DEPARTMENT'S LETTER OF APRIL 6, 1934 "OVERTIME" HAD BEEN DEFINED AS WORK IN EXCESS OF EIGHT HOURS ON ANY ONE CALENDAR DAY. UNDER THE RESTRICTIONS IMPOSED BY THE EIGHT HOUR LAW, OVERTIME, AS THUS DEFINED, IS ONLY PERMITTED WHEN REQUIRED TO MEET AN EXTRAORDINARY EMERGENCY. FOR SUCH OVERTIME THE SCHEDULE OF WAGES AUTHORIZED PAYMENT OF ADDITIONAL COMPENSATION AT THE RATE OF 50 PERCENT. THIS ADDITIONAL COMPENSATION FOR OVERTIME, AS IT WAS THUS DEFINED, WAS ENTIRELY SEPARATE AND DISTINCT FROM THE CORRESPONDING ADDITIONAL COMPENSATION AUTHORIZED BY THE SCHEDULE OF WAGES FOR WORK ON SUNDAYS AND ON LEGAL HOLIDAYS NOT IN EXCESS OF EIGHT HOURS. SHOULD THE NAVY DEPARTMENT CONTINUE TO APPLY THE ADDITIONAL PAY FOR SUNDAYS AND HOLIDAYS PROVIDED IN PARAGRAPH TWO OF THE "INSTRUCTIONS" IN THE SCHEDULE OF WAGES FOR CIVIL EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT AND THE MARINE CORPS, REVISED TO JULY 23, 1931, PAGES 58 59, WHICH QUOTES AS FOLLOWS:

"2. OVERTIME, SUNDAY AND HOLIDAY RATES OF PAY FOR PER DIEM EMPLOYEES---

"FOR WORK IN EXCESS OF EIGHT HOURS ON THE SAME CALENDAR DAY, PERFORMED BY REASON OF AN EXTRAORDINARY EMERGENCY, THE SCHEDULE RATE OF PAY, PLUS 50 PERCENT ADDITIONAL, SHALL BE ALLOWED.

"THOSE ORDINARILY EMPLOYED ON A 7-HOUR DAY BASIS WHO ARE REQUIRED TO WORK OVERTIME IN EXCESS OF EIGHT HOURS ON THE SAME CALENDAR DAY SHALL BE PAID FOR EACH HOUR OF SUCH OVERTIME ONE-SEVENTH OF THEIR SCHEDULE PLUS 50 PERCENT ADDITIONAL.

"FOR WORK ON SUNDAYS NOT EXCEEDING EIGHT HOURS, PERFORMED UNDER PROPER AUTHORITY, THE SCHEDULE RATE OF PAY, PLUS 50 PERCENT ADDITIONAL, SHALL BE ALLOWED.

"FOR WORK ON LEGAL HOLIDAYS NOT EXCEEDING EIGHT HOURS, PERFORMED UNDER PROPER AUTHORITY, THE SCHEDULE RATE OF PAY, PLUS 50 PERCENT ADDITIONAL, SHALL BE ALLOWED, AND IN ADDITION THERETO, GRATUITY PAY FOR THE LEGAL HOLIDAY.

"FOR WORK IN EXCESS OF EIGHT HOURS ON SUNDAYS OR LEGAL HOLIDAYS, PERFORMED BY REASON OF AN EXTRAORDINARY EMERGENCY, 50 PERCENT ADDITIONAL TO THE SUNDAY OR HOLIDAY RATE OF PAY SHALL BE ALLOWED.

"WORK PERFORMED BETWEEN MIDNIGHT SATURDAY AND MIDNIGHT SUNDAY SHALL BE COMPUTED AS SUNDAY WORK AND PAID FOR AT SUNDAY RATES.

"FOR WORK ON SATURDAYS IN EXCESS OF EIGHT HOURS, PERFORMED BY REASON OF AN EXTRAORDINARY EMERGENCY, THE SCHEDULE OF RATE OF PAY, PLUS 50 PERCENT ADDITIONAL SHALL BE ALLOWED. (COMP. GEN. DECISION A-35655, APRIL 9, 1931, ON THE ACT OF MARCH 3, 1931, ESTABLISHING SATURDAY HALF HOLIDAYS.)

"3. * * *"

2. IS AN EMPLOYEE WHO TAKES LEAVE DURING HIS 40-HOUR WORK WEEK ENTITLED TO OVERTIME PAY FOR WORK PERFORMED IN EXCESS OF THE 40 HOURS, LEAVE AND WORK?

(A) IN THE CASE OF LEAVE WITH PAY?

(B) IN THE CASE OF SICK LEAVE?

(C) IN THE CASE OF LEAVE WITHOUT PAY?

(D) WHERE LEAVE WITHOUT PAY IS SUBSEQUENTLY RETROACTIVELY CONVERTED TO LEAVE WITH PAY?

3. WHAT PAY SHALL A PER-HOUR, PER-DIEM, OR PIECEWORK EMPLOYEE WORKING ON A STAGGERED SHIFT RECEIVE FOR WORK ON A SUNDAY IN EXCESS OF 40 HOURS ACTUALLY WORKED DURING THE EMPLOYEE'S WORK EEK?

4. WHAT PAY SHALL A PER-HOUR, PER-DIEM, OR PIECEWORK EMPLOYEE RECEIVE FOR WORK ON A SUNDAY OCCURRING WITHIN THE EMPLOYEE'S REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK?

5. A PER-HOUR, PER-DIEM, OR PIECEWORK EMPLOYEE WHOSE REGULAR WEEK IS FROM SUNDAY TO SATURDAY, INCLUSIVE, AND WHOSE REGULAR WORK WEEK IS FROM MONDAY TO FRIDAY, INCLUSIVE, IS CALLED IN IN AN EMERGENCY FOR WORK ON SUNDAY, AND IN THE SAME WEEK, IN ADDITION TO 8 HOURS WORK ON SUNDAY, PERFORMS 8 HOURS WORK EACH DAY ON MONDAY, TUESDAY, WEDNESDAY, THURSDAY, AND FRIDAY. WHAT RATE OF PAY IS APPLICABLE FOR THE 8 HOURS WORK ON SUNDAY AND THE WORK IN EXCESS OF 40 HOURS IN THAT WEEK (AS CAUSED BY WORK ON FRIDAY/?

ASSUMING SAME CONDITIONS, WOULD THE EMPLOYEE RECEIVE THE SAME PAY FOR FRIDAY, IF INSTEAD OF PERFORMING 8 HOURS WORK ON THAT DAY, HE IS GRANTED LEAVE WITH PAY FOR THE DAY?

6. WHAT PAY IN ADDITION TO THE GRATUITY PAY FOR THE HOLIDAY SHALL A PER- HOUR, PER-DIEM, OR PIECEWORK EMPLOYEE RECEIVE FOR WORK ON A LEGAL HOLIDAY OCCURRING WITHIN THE EMPLOYEES REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK?

7. WHAT PAY IN ADDITION TO THE GRATUITY PAY FOR THE HOLIDAY SHALL A PER- HOUR, PER-DIEM, OR PIECEWORK EMPLOYEE RECEIVE FOR WORK ON A LEGAL HOLIDAY IN EXCESS OF THE 40-HOUR WORK WEEK?

8. WHAT PAY IN ADDITION TO THE GRATUITY PAY FOR THE HOLIDAY SHALL A PER- HOUR, PER-DIEM, OR PIECEWORK EMPLOYEE RECEIVE FOR WORK PERFORMED ON A LEGAL HOLIDAY WHICH FALLS ON A NONWORK DAY OF A 5-DAY, 40 HOUR WORK WEEK?

9. WHAT PAY SHALL A PER-HOUR, PER-DIEM, OR PIECEWORK EMPLOYEE RECEIVE FOR A LEGAL HOLIDAY WHICH OCCURS ON A NONWORK DAY OF HIS 5-DAY, 40-HOUR WORK WEEK WHERE THE EMPLOYEE HAS ALREADY PERFORMED 40 HOURS WORK IN THAT WEEK AND DOES NOT WORK ON THE HOLIDAY? FOR EXAMPLE, THE EMPLOYEE HAS WORKED 5 DAYS, 40 HOURS, MONDAY TO FRIDAY, INCLUSIVE, FOR WHICH HE IS ENTITLED TO 48 HOURS PAY. THE LEGAL HOLIDAY FALLS ON SATURDAY OF THE SAME WORK WEEK AND HE DOES NOT WORK ON THAT DAY. IS HE ENTITLED TO GRATUITY PAY FOR THE HOLIDAY?

10. IS AN EMPLOYEE WHO IS PAID OVERTIME FOR WORK PERFORMED IN EXCESS OF 40 HOURS, OR ADDITIONAL PAY FOR SUNDAY OR HOLIDAY WORK, ENTITLED TO NIGHT WORK PAY ON THE DAY FOR WHICH HE IS PAID OVERTIME, SUNDAY OR HOLIDAY RATE UNDER THE PROVISIONS OF PARAGRAPH 7, PAGE 60 OF THE SCHEDULE OF WAGES, WHICH PROVIDES AS FOLLOWS:

"7. NIGHT WORK

"ALL PER DIEM EMPLOYEES, EXCEPT AS NOTED IN PARAGRAPH 19, WHOSE WHOLE TIME OF WORK OR ANY PART THEREOF IS BETWEEN THE HOURS OF 6 P.M. AND 7 A.M., SHALL BE PAID $0.05 PER HOUR IN ADDITION TO THEIR SCHEDULE RATE OF PAY FOR WORK PERFORMED BETWEEN THE HOURS MENTIONED, EXCEPT THAT NO EMPLOYEE SHALL RECEIVE EXTRA PAY FOR NIGHT WORK FOR WHICH HE IS PAID SUNDAY, HOLIDAY, OR OVERTIME RATES OF PAY. APPLIES IN UNITED STATES AND HAWAII ONLY.'

11. ARE PER-HOUR, PER-DIEM, PER-MONTH, PER-ANNUM, OR PIECE-WORK EMPLOYEES WHO ARE REQUIRED TO WORK IN EXCESS OF 4 HOURS ON SATURDAY ENTITLED TO EQUIVALENT TIME OFF AND SOME OTHER DAY? (ACT OF MARCH 3, 1931.)

(A) IF SATURDAY IS ONE OF THE 5 WORK DAYS?

(B) IF THE SATURDAY IS IN ADDITION TO ONE OF THE 5 WORK DAYS?

12. ARE PER-HOUR, PER-DIEM, OR PIECE-WORK EMPLOYEES WHO PERFORM 4 HOURS WORK ON SATURDAY ENTITLED TO THE FULL DAY'S PAY?

(A) IF THE 4 HOURS' WORK ON SATURDAY IS ONE OF THE EMPLOYEE'S REGULAR 5 WORK DAYS?

(B) IF THE 4 HOURS' WORK ON SATURDAY IS NOT ON ONE OF THE EMPLOYEE'S REGULAR 5 WORK DAYS?

13. IN THE CASE OF A PER-DIEM EMPLOYEE WHOSE REGULAR TOUR OF DUTY INCLUDES SATURDAY, IT APPEARS THAT SUCH EMPLOYEE IS ENTITLED ONLY TO THE SAME RATE OF COMPENSATION FOR WORK ON THAT DAY AS FOR OTHER WEEK DAYS. HOWEVER, HOW SHALL THE PAY OF AN EMPLOYEE BE COMPUTED WHOSE REGULAR TOUR OF DUTY OF 40 HOURS A WEEK IS FROM MONDAY TO FRIDAY, INCLUSIVE, BUT WHO IS REQUIRED TO WORK ON SATURDAY DUE TO AN EMERGENCY, THE WORK ON SATURDAY NOT BEING IN EXCESS OF 40 HOURS WORK FOR THE WEEK DUE TO TIME HAVING BEEN LOST ON ONE OR MORE OF THE REGULAR WORKING DAYS?

14. IN THE CASE OF AN EMPLOYEE WHOSE REGULAR TOUR OF DUTY IS FROM MONDAY TO FRIDAY, INCLUSIVE, WHO WORKS MONDAY AND TUESDAY, IS ON LEAVE WITHOUT PAY ON WEDNESDAY AND THURSDAY, WORKS FRIDAY, AND IS CALLED BACK FOR WORK ON SATURDAY, TO WHAT RATE OF PAY IS HE ENTITLED FOR THE WORK ON SATURDAY? IF THE LEAVE WITHOUT PAY ON WEDNESDAY AND THURSDAY IS SUBSEQUENTLY CHANGED RETROACTIVELY TO LEAVE WITH PAY, WOULD THIS INVOLVE A CHANGE ALSO IN THE COMPUTATION OF PAY FOR SATURDAY WORK?

15. WHILE THE DEPARTMENT HAS ADMINISTRATIVELY PLACED NEARLY ALL EMPLOYEES IN ITS FIELD SERVICE ON A 5-DAY, 40-HOUR WORK WEEK, A LIMITED NUMBER HAVE BEEN PLACED ON A 5 1/2-DAY WORK WEEK. ARE THE LATTER MENTIONED EMPLOYEES ENTITLED TO EQUIVALENT TIME OFF FOR WORK PERFORMED ON SATURDAY IN EXCESS OF 4 HOURS?

(A) IN THE CASE OF PER-MONTH OR PER-ANNUM EMPLOYEES?

(B) IN THE CASE OF PER-HOUR, PER-DIEM, OR PIECE-WORK EMPLOYEES?

16. THE DEPARTMENT HAS ENTERED INTO CONTRACT WITH CERTAIN INDIVIDUALS WHEREBY THESE INDIVIDUALS AGREE TO PERFORM A CERTAIN NUMBER OF DAYS WORK BETWEEN CERTAIN DATES FOR WHICH THEY SHALL RECEIVE SPECIFIED AMOUNTS PER DAY. THE EFFECT OF PLACING THE FIELD SERVICE ON A 5-DAY WORK WEEK OPERATES TO PREVENT THESE INDIVIDUALS FROM WORKING ON SATURDAYS AND THEREBY REDUCES THEIR COMPENSATION FOR A CALENDAR WEEK. WITH THE REDUCTION IN THE NUMBER OF WORKING DAYS PER WEEK SOME INDIVIDUALS WILL BE PREVENTED FROM COMPLETING THEIR CONTRACT WITHIN THE CONTRACT PERIOD. MAY SUCH INDIVIDUALS BE PAID THE FULL CONTRACT PRICE BY INCREASING HIS SPECIFIED PER DIEM PROPORTIONATELY?

17. IN VIEW OF YOUR DECISION TO THE PANAMA CANAL OF APRIL 12, 1934 (A- 54762), IN WHICH IT WAS STATED THAT ALIEN EMPLOYEES WHOSE RATES OF WAGES AND HOURS OF LABOR HAVE NOT HERETOFORE CORRESPONDED TO THE RATES OF WAGES AND HOURS OF LABOR PRESCRIBED FOR THE REGULAR FORCE OF THE EMPLOYEES UNDER THE PANAMA CANAL, THE NAVY DEPARTMENT HAS NOT EXTENDED THE BENEFITS OF SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT FOR THE FISCAL YEAR 1935 TO ITS FIELD EMPLOYEES AT NAVAL STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES PAID AT PER-HOUR AND PER-DIEM RATES UNDER NATIVE AND ALIEN SCHEDULE OF WAGES. THE LARGEST SINGLE GROUP OF EMPLOYEES AFFECTED BY THIS RULING IS AT THE NAVY YARD, CAVITE, PHILIPPINE ISLANDS. DUE TO THE NAVY DEPARTMENT PLACING ITS FIELD ACTIVITIES ON A 5-DAY WORK WEEK AND THE APPLICATION OF YOUR DECISION, ABOVE MENTIONED, THESE EMPLOYEES ARE DEPRIVED OF THE DAY'S PAY HERETOFORE RECEIVED FOR WORKING 4 HOURS ON SATURDAY, THUS REDUCING THEIR WEEK'S COMPENSATION BELOW THAT RECEIVED BY THEM ON JUNE 1, 1932, AND ALSO JUST PRIOR TO THE PASSAGE OF THE ACT. THE EMPLOYEES UNDER THE NATIVE AND ALIEN SCHEDULES OF WAGES HAVE HERETOFORE WORKED THE SAME HOURS, ON THE SAME KIND OF WORK, SIDE BY SIDE WITH AMERICAN CITIZEN EMPLOYEES, THE ONLY DIFFERENCE BEING THAT UNDER THE SCHEDULES OF WAGES IN EFFECT THESE NATIVE AND ALIEN EMPLOYEES RECEIVE A MUCH LOWER RATE OF PAY. THUS THE AMERICAN CITIZEN EMPLOYEES HAVE BENEFITED AND THE NATIVE EMPLOYEES ARE INJURED, WHICH LATTER SEEMS CONTRARY TO THE LANGUAGE OF SECTION 23. AS THIS SITUATION HAS LED TO DISSATISFACTION AND LOSS OF MORALE, YOUR DECISION IS REQUESTED AS TO WHETHER THE NAVY DEPARTMENT WAS CORRECT IN ITS APPLICATION OF YOUR DECISION OF APRIL 12, 1934 (A-54762), TO THESE NATIVE AND ALIEN EMPLOYEES.

18. IF YOUR ANSWER TO QUESTION 17 IS IN THE AFFIRMATIVE, ARE SUCH EMPLOYEES ENTITLED TO THE OVERTIME PAY FOR WORK PERFORMED IN EXCESS OF 8 HOURS PER DAY AND THE ADDITIONAL PAY FOR SUNDAYS AND HOLIDAYS PROVIDED IN PARAGRAPH TWO OF THE SCHEDULE OF WAGES, WHICH THEY HAVE HERETOFORE BEEN PAID?

19. IN THE CASE OF PER MONTH AND PER ANNUM EMPLOYEES UNDER THE 5 DAY WORK WEEK, SHOULD SATURDAYS AND SUNDAYS OCCURRING WITHIN A PERIOD OF SICK LEAVE OR LEAVE WITHOUT PAY BE CONSIDERED THE SAME AS SUNDAYS HAVE BEEN CONSIDERED ON THE 5 1/2-DAY WORK WEEK?

20.MAY LEAVE WITH PAY BE RETROACTIVE TO COVER LEAVE WITHOUT PAY SUBSEQUENT TO APRIL 1, 1933?

(A) IN THE CASE OF DEPARTMENTAL EMPLOYEES DURING ANY CALENDAR YEAR (ACT OF MARCH 15, 1898, AS AMENDED BY SECTION 215 OF THE ACT OF JUNE 30, 1932 (ECONOMY ACT).

(B) IN THE CASE OF FIELD SERVICE EMPLOYEES WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES DURING ANY SERVICE YEAR (ACT OF AUGUST 29, 1916, AS AMENDED BY SECTION 215 OF THE ACT OF JUNE 30, 1932 (ECONOMY ACT) ).

THE QUESTIONS PRESENTED ARE ANSWERED AS FOLLOWS, THE NUMBER INDICATING IN EACH INSTANCE THE NUMBERED QUESTION ANSWERED:

1. IN DECISION OF APRIL 23, 1934, TO THE PUBLIC PRINTER, A-54736, 13 COMP. GEN. 295, IT WAS HELD:

REFERRING TO QUESTION 2 IT IS NOT STATED WHETHER SUNDAY IS A PART OF THE REGULAR TOUR OF DUTY OF ANY EMPLOYEE OF THE GOVERNMENT PRINTING OFFICE. SUNDAY HAS NEVER BEEN REGARDED GENERALLY AS A WORK-DAY BUT AS A SPECIAL DAY FOR WHICH OVERTIME COMPENSATION HAS BEEN PAID TO PER DIEM EMPLOYEES. FOR EMPLOYEES WHOSE REGULAR TOUR OF DUTY OF 40 HOURS PERWEEK DOES NOT INCLUDE SUNDAY, AND WHO ARE NOT PAID ON AN ANNUAL BASIS, WORK ON SUNDAY PERFORMED IN AN EMERGENCY SHOULD BE REGARDED AS OVERTIME WITHIN THE MEANING OF SECTION 23 OF THE ACT OF MARCH 28, 1934, AND PAID FOR AT THE RATE OF TIME AND ONE-HALF. IF THE REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK FOR AN EMPLOYEE OR GROUP OF EMPLOYEES IS ESTABLISHED ADMINISTRATIVELY TO INCLUDE SUNDAY, ONLY THE REGULAR RATE OF COMPENSATION ON A 40-HOUR WEEK BASIS WOULD BE PAYABLE FOR WORK ON SUNDAY. THE LEGAL HOLIDAYS MENTIONED IN THE ACT OF JANUARY 12, 1895, 28 STAT. 607, SHOULD BE INCLUDED AS A PART OF THE 40-HOUR WEEK FOR EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE. COMP. GEN. 21; DECISION OF JANUARY 25, 1934, A-53169. EMPLOYEES WHO ARE NOT REQUIRED TO WORK ON SAID HOLIDAYS ARE NEVERTHELESS ENTITLED TO THEIR REGULAR COMPENSATION FOR THE DAY, AND EMPLOYEES NOT PAID ON AN ANNUAL BASIS, WHO ARE REQUIRED TO WORK ON SAID HOLIDAYS ARE ENTITLED, FOR THE TIME WORKED ON SUCH DAYS, AT THEIR REGULAR RATE OF COMPENSATION (NOT "TIME AND ONE-HALF") IN ADDITION TO THE REGULAR PAY FOR THE HOLIDAYS. QUESTION 2 IS ANSWERED ACCORDINGLY.

SEE ALSO, THE QUESTION AND ANSWER 3 (A) IN DECISION OF MAY 1, 1934, TO THE SECRETARY OF THE TREASURY, A-55192, 13 COMP. GEN. 307. UNLESS AND UNTIL MODIFIED IN THE MANNER PROVIDED BY LAW, ALL SCHEDULES, REGULATIONS, AND PRACTICES IN EFFECT PRIOR TO MARCH 28, 1934, RELATIVE TO COMPENSATION FOR OVERTIME, SUNDAY, AND HOLIDAY WORK ARE RENDERED INOPERATIVE INSOFAR AS THEY MAY BE IN CONFLICT WITH THE TERMS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING THE 40-HOUR WEEK, BUT OTHERWISE ARE TO REMAIN IN FULL FORCE AND EFFECT. THEREFORE, THE NAVY DEPARTMENT MAY CONTINUE TO PAY THE ADDITIONAL COMPENSATION RATES PROVIDED IN THE QUOTED PARAGRAPH 2 OF THE "INSTRUCTIONS" IN THE SCHEDULE OF WAGES--- WHICH ARE NOT LESS THAN THE MINIMUM OVERTIME RATE REQUIRED TO BE PAID BY THE PROVISO TO SECTION 23 OF THE ACT OF MARCH 28, 1934--- FOR WORK ON SUNDAYS AND HOLIDAYS WHEN NOT WITHIN THE REGULAR TOUR OF DUTY OF THE EMPLOYEES. BUT FOR WORK ON SUNDAYS WITHIN THE REGULAR TOUR OF DUTY OF THE EMPLOYEES, ONLY THE REGULAR RATE OF COMPENSATION ON THE BASIS OF 40 HOUR WEEK SHOULD BE PAID, THAT IS TO SAY, THE COMPENSATION FOR WORK ON A SUNDAY UNDER SUCH CIRCUMSTANCES IS TO BE THE SAME AS FOR WORK ON THE OTHER DAYS OF THE WEEK. FOR WORK ON THE LEGAL HOLIDAYS MENTIONED IN THE ACTS OF JANUARY 6, 1885, 23 STAT. 516, FEBRUARY 23, 1887, 24 STAT. 644, AND JUNE 28, 1894, 28 STAT. 96, WITHIN THE REGULAR TOUR OF DUTY OF THE EMPLOYEES, ONLY TWICE THE REGULAR RATE OF COMPENSATION ON A 40 HOUR WEEK BASIS SHOULD BE PAID.

2. IN DECISION OF APRIL 23, 1934, TO THE PUBLIC PRINTER, A-54736, THERE IS STATED THE FOLLOWING QUESTION AND ANSWER:

3. AN EMPLOYEE WORKS 8 HOURS EACH DAY MONDAY TO THURSDAY, INCLUSIVE, IS ON LEAVE WITH PAY 8 HOURS ON FRIDAY, AND BY AN EMERGENCY IS REQUIRED TO WORK 8 HOURS ON SATURDAY, ALL IN THE SAME WEEK. IS HE TO BE PAID AT THE RATE OF TIME AND ONE-HALF FOR THE SATURDAY WORK, ALTHOUGH HE HAS ACTUALLY WORKED ONLY 40 HOURS BUT WAS IN A PAY STATUS 48 HOURS; IN OTHER WORDS, IS LEAVE GRANTED WITH PAY SYNONYMOUS WITH WORK, AND THEREFORE A PART OF THE 40 HOURS REQUIRED TO BE WORKED IN ONE WEEK BEFORE OVERTIME MAY BE PAID?

REFERRING TO QUESTION 3, ANNUAL LEAVE GRANTED WITH PAY IS SYNONYMOUS WITH WORK AND A PART OF THE 40 HOURS PER WEEK. IN THE EXAMPLE STATED THE EMPLOYEE WOULD BE ENTITLED TO COMPENSATION AS FOR OVERTIME AT THE RATE OF TIME AND ONE-HALF FOR THE WORK ON SATURDAY.

THE SAME RULE IS APPLICABLE TO ADMINISTRATIVELY APPROVED SICK LEAVE WITH PAY OCCURRING DURING THE REGULAR TOUR OF DUTY OF 40 HOURS, BUT, OF COURSE, LEAVE WITHOUT PAY, WHETHER AUTHORIZED IN ADVANCE OR NOT, TAKEN DURING THE REGULAR TOUR OF DUTY OF 40 HOURS, CANNOT BE REGARDED AS SYNONYMOUS WITH WORK. QUESTIONS 2 (A) AND (B) ARE ANSWERED IN THE AFFIRMATIVE, AND QUESTIONS 2 (C) AND (D) IN THE NEGATIVE. REFERRING TO QUESTION 2 (D), THE RETROACTIVE SUBSTITUTION OF LEAVE WITH PAY FOR LEAVE WITHOUT PAY WILL IN NO CASE BE REGARDED AS CHANGING THE STATUS OF SERVICE ALREADY RENDERED FROM REGULAR TIME TO OVERTIME SO AS TO AUTHORIZE PAYMENT OF AN ADDITIONAL AMOUNT OF COMPENSATION.

3. FOR WORK ON SUNDAY NOT EXCEEDING 8 HOURS, WHEN NOT A PART OF THE REGULAR TOUR OF DUTY, THE THIRD RULE QUOTED FROM PARAGRAPH 2 OF "INSTRUCTIONS" IN THE SCHEDULE OF WAGES, AUTHORIZES PAYMENT OF 1 1/2 TIMES THE REGULAR RATE OF COMPENSATION, AND FOR WORK IN EXCESS OF 8 HOURS ON SUNDAYS, WHICH IS NOT A PART OF THE REGULAR TOUR OF DUTY, RULE 5 OF SAID "INSTRUCTIONS" AUTHORIZES 1 1/2 TIMES THE SUNDAY RATE, OR 2 1/4 TIMES THE REGULAR RATE OF COMPENSATION. IT IS UNDERSTOOD THAT YOUR QUESTION RELATES TO CASES WHERE THE EMPLOYEE'S REGULAR TOUR OF DUTY IS FROM MONDAY TO FRIDAY, INCLUSIVE, AND THAT IN ADDITION TO WORKING 40 HOURS DURING SAID TOUR HE IS REQUIRED TO WORK ON SUNDAY. UNDER SUCH CIRCUMSTANCES, THE TWO RULES LAST ABOVE STATED ARE FOR APPLICATION.

4. FOR WORK ON SUNDAYS WITHIN THE EMPLOYEE'S REGULAR TOUR OF DUTY ONLY THE REGULAR RATE OF COMPENSATION ON THE BASIS OF THE 40-HOUR WEEK IS PAYABLE. SEE ANSWER TO QUESTION 1.

5. IF THIS EMPLOYEE'S REGULAR TOUR OF DUTY IS FROM MONDAY TO FRIDAY, INCLUSIVE, HIS WEEK MUST BE REGARDED AS BEGINNING WITH MONDAY, NOT SUNDAY. AND THE REGULAR 40 HOURS' WORK DURING SAID WEEK WOULD BE THAT PERFORMED AT THE RATE OF 8 HOURS ON MONDAY TO FRIDAY, INCLUSIVE, AND THE WORK ON FRIDAY OVERTIME. HENCE, FOR THE 8 HOURS' WORK ON SUNDAY, THE RATE OF COMPENSATION WOULD BE 1 1/2 TIMES THE REGULAR RATE (SEE FIRST PART OF THE ANSWER TO QUESTION 3), AND THERE WOULD BE NO OVERTIME COMPENSATION PAYABLE FOR WORK OR LEAVE WITH PAY ON FRIDAY.

6. FOR WORK ON A LEGAL HOLIDAY OCCURRING WITHIN THE EMPLOYEE'S REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK, THERE IS PAYABLE THE REGULAR RATE OF COMPENSATION, THAT IS, THE SAME RATE AS FOR THE DAYS, AND, ALSO, THE GRATUITY OR HOLIDAY PAY AT THE SAME RATE, OR TWICE THE REGULAR RATE. SEE ANSWER TO QUESTION 1.

7 AND 8. FOR WORK, NOT EXCEEDING 8 HOURS ON A LEGAL HOLIDAY NOT WITHIN THE EMPLOYEE'S REGULAR TOUR OF DUTY OF 40 HOURS, THE FOURTH RULE OF THE "INSTRUCTIONS" HEREINBEFORE QUOTED FROM THE SCHEDULE OF WAGES AUTHORIZES PAYMENT OF 1 1/2 TIMES THE REGULAR RATE PLUS THE HOLIDAY OR GRATUITY PAY, OR A TOTAL OF 2 1/2 TIMES THE REGULAR RATE OF COMPENSATION. FOR WORK IN EXCESS OF 8 HOURS ON A LEGAL HOLIDAY NOT WITHIN THE REGULAR TOUR OF DUTY OF 40 HOURS, THE FIFTH RULE OF THE ,INSTRUCTIONS" QUOTED FROM THE SCHEDULE OF WAGES, AUTHORIZES PAYMENT OF 1 1/2 TIMES THE HOLIDAY RATE OR 2 1/4 TIMES THE REGULAR RATE. FOR INSTANCE, UNDER THE EXISTING RATES, AN EMPLOYEE WHOSE REGULAR RATE OF COMPENSATION ON A 40-HOUR WEEK BASIS IS $1.20 PER HOUR AND WHO WORKED 10 HOURS ON A LEGAL HOLIDAY NOT WITHIN HIS REGULAR TOUR OF DUTY OF 40 HOURS, WOULD BE ENTITLED TO THE FOLLOWING:

TABLE (1) HOLIDAY OR GRATUITY PAY ---------------------- 8 TIMES $1.20 -- $9.60 (2) FIRST 8 HOURS ------------------ 8 TIMES 1 1/2 TIMES $1.20 -- 14.40 (3) IN EXCESS OF 8 HOURS ------------- 2 TIMES 2 1/4 TIMES $1.20 -- 5.40

TOTAL --------------------------------------------------------- 29.40

9. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. 5 COMP. GEN. 312; 12 ID. 204.

10. IT IS PRESUMED THAT EACH EMPLOYEE HAS A REGULAR TOUR OF DUTY FIXED ADMINISTRATIVELY TO INCLUDE DEFINITE DAYS OF THE WEEK, AND, ALSO, DEFINITE BEGINNING AND ENDING TIME ON EACH DAY. THE NIGHT WORK RATE IS PAYABLE UNDER THE QUOTED REGULATION ONLY FOR WORK PERFORMED BETWEEN THE HOURS OF 6 P.M. AND 7 A.M., DURING THE REGULAR TOUR OF DUTY OF THE EMPLOYEES, AND THERE IS NOTHING IN THE 40-HOUR WEEK STATUTORY PROVISION TO AUTHORIZE PAYMENT OF A NIGHT DIFFERENTIAL IN ADDITION TO OVERTIME, SUNDAY, OR HOLIDAY PAY, TO AN EMPLOYEE ALL OF WHOSE REGULAR TOUR OF DUTY IS SERVED BETWEEN 7 A.M. AND 6 P.M., WHO MAY BE REQUIRED TO WORK OVERTIME BETWEEN THE HOURS OF 6 P.M. AND 7 A.M. THE QUESTION IS ANSWERED IN THE NEGATIVE.

11 AND 12. IN DECISION OF APRIL 6, 1934, TO THE PUBLIC PRINTER, A 54736, IT WAS HELD:

* * * IF THE 40 HOURS ARE DISTRIBUTED OVER 5 DAYS OF THE WEEK ONLY, THE SATURDAY HALF-HOLIDAY LAW BECOMES INOPERATIVE AND THE ADMINISTRATIVE OFFICE MAY, DUE TO THE EXIGENCIES OF THE SERVICE, INCLUDE SATURDAY AS ONE OF THE 5 WORKING DAYS OF THE WEEK EITHER AS TO INDIVIDUAL EMPLOYEES, GROUPS OF EMPLOYEES, OR THE ENTIRE FORCE. 13 COMP. GEN. 57.

ACCORDINGLY, ALL FOUR PARTS OF QUESTIONS 11 AND 12 ARE ANSWERED IN THE NEGATIVE.

13 AND 14. AS THE REGULAR TOUR OF DUTY OF THE EMPLOYEE REFERRED TO IN EITHER QUESTION IS ON 5 DAYS OF THE WEEK, THE SATURDAY HALF HOLIDAY LAW IS INOPERATIVE AND THE EMPLOYEE WOULD BE ENTITLED ONLY TO HIS REGULAR RATE OF COMPENSATION FOR WORK ON SATURDAY PERFORMED IN LIEU OF TIME LOST DURING THE REGULAR TOUR OF DUTY IN THE SAME WEEK. FOR THE ANSWER TO THE LAST PART OF QUESTION 14 REGARDING RETROACTIVE SUBSTITUTION OF LEAVE, SEE THE ANSWER TO QUESTION 2 (D).

15. BOTH QUESTIONS (A) AND (B) ARE ANSWERED IN THE AFFIRMATIVE. THE SATURDAY HALF HOLIDAY LAW REMAINS OPERATIVE AS TO EMPLOYEES REGULARLY WORKING ON A 5 1/2-DAY WEEK SCHEDULE. 13 COMP. GEN. 17.

16. THE FACTS DISCLOSED ARE NOT SUFFICIENT TO WARRANT A DEFINITE ANSWER. EACH SUCH CASE WOULD DEPEND UPON THE PARTICULAR FACTS THEREOF AND THE TERMS OF THE CONTRACT INVOLVED. IT MAY BE STATED GENERALLY, HOWEVER, THAT UNDER A PERSONAL SERVICE CONTRACT PROVIDING A PER DIEM RATE OF COMPENSATION ONLY WHEN ACTUALLY EMPLOYED, NO COMPENSATION WOULD BE PAYABLE FOR SATURDAYS ON WHICH NO WORK MAY BE PERFORMED DUE TO ADMINISTRATIVE ACTION IN CLOSING THE OFFICE, YARD, OR SHOP.

17 AND 18. IN DECISION OF APRIL 12, 1934, TO THE GOVERNOR OF THE PANAMA CANAL, A-54762, IT WAS HELD:

* * * LIKEWISE SAID SECTION (SECTION 23 OF THE ACT OF MARCH 28, 1934) IS NOT APPLICABLE * * * TO ALIEN EMPLOYEES WHOSE RATES OF WAGES AND HOURS OF LABOR HAVE NOT HERETOFORE CORRESPONDED TO THE RATES OF WAGES AND HOURS OF LABOR PRESCRIBED FOR THE REGULAR FORCE OF EMPLOYEES UNDER THE PANAMA CANAL. 5 COMP. GEN. 235; 10 ID. 322.

IT HAD BEEN STATED BY THE GOVERNOR OF THE PANAMA CANAL IN HIS SUBMISSION THAT THE NATIVE OR ALIEN EMPLOYEES ON THE ISTHMUS "WORK 48 OR MORE HOURS WEEKLY WHICH COMPARES FAVORABLY WITH HOURS FOR NATIVE WORKERS IN ADJOINING COUNTRIES.' IN OTHER WORDS, THE WEEKLY HOURS OF LABOR OF THE NATIVE OR ALIEN EMPLOYEES ON THE ISTHMUS DID NOT CORRESPOND WITH THE HOURS OF WORK OF AMERICAN CITIZEN EMPLOYEES. SAID DECISION WOULD NOT BE APPLICABLE TO EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS OUTSIDE THE CONTINENTAL UNITED STATES PAID UNDER THE NATIVE AND ALIEN SCHEDULE OF WAGES WHO "HAVE HERETOFORE WORKED THE SAME HOURS, ON THE SAME KIND OF WORK, SIDE BY SIDE WITH AMERICAN CITIZEN EMPLOYEES, THE ONLY DIFFERENCE BEING THAT UNDER THE SCHEDULES OF WAGES IN EFFECT THESE NATIVESAND ALIEN EMPLOYEES RECEIVE A MUCH LOWER RATE OF PAY," (QUOTING FROM YOUR QUESTION 17). ON THE CONTRARY, THE 40-HOUR WEEK PROVISION WOULD BE APPLICABLE TO SAID EMPLOYEES AND QUESTION 17 IS ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTION 18. THAT IS TO SAY, WHERE THE APPLICATION OF THE 40-HOUR WEEK TO AMERICAN CITIZEN EMPLOYEES REQUIRES REDUCING THE HOURS OF EMPLOYMENT OF NATIVE AND ALIEN EMPLOYEES SUCH REDUCTION IN HOURS SHOULD BE WITHOUT REDUCTION IN WEEKLY COMPENSATION.

19. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. SEE ANSWER TO QUESTIONS 1 (A) AND (B), DECISION OF MAY 1, 1934, TO THE SECRETARY OF THE TREASURY, A-55192, 13 COMP. GEN. 307.

20. QUESTION (A) IS ANSWERED IN THE NEGATIVE. THERE IS NOTHING IN SECTION 215 OF THE ECONOMY ACT REDUCING THE ANNUAL LEAVE FROM 30 TO 15 DAYS AND AUTHORIZING CUMULATION THEREOF THROUGH ANY NUMBER OF LEAVE YEARS, TO AUTHORIZE SUBSTITUTION OF LEAVE WITH PAY RETROACTIVELY TO COVER LEAVE WITHOUT PAY TAKEN IN A PRIOR LEAVE YEAR. IN DECISION OF MAY 9, 1933, 12 COMP. GEN. 621, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE SAME PRACTICE IN FORCE PRIOR TO JULY 1, 1932, WHEREBY LEAVE WITH PAY WAS AUTHORIZED TO BE SURRENDERED BY EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS AND SUBSTITUTED FOR LEAVE PREVIOUSLY TAKEN WITHOUT PAY, MAY CONTINUE ON AND AFTER APRIL 1, 1933, SUBJECT TO THE REDUCTION IN THE AMOUNT OF LEAVE AUTHORIZED BY SECTION 215 OF THE ECONOMY ACT. LEAVE EARNED AFTER MARCH 31, 1933, MAY BE SURRENDERED FOR LEAVE WITHOUT PAY TAKEN PRIOR TO JULY 1, 1932, IN ACCORDANCE WITH THE PRACTICE THERETOFORE EXISTING, BUT LEAVE EARNED AFTER MARCH 31, 1933, MAY NOT BE SURRENDERED FOR LEAVE WITHOUT PAY TAKEN DURING THE PERIOD JULY 1, 1932, TO MARCH 31, 1933, INCLUSIVE.

IT IS UNDERSTOOD THAT SAID PAST PRACTICE WAS LIMITED TO THE SUBSTITUTION OF LEAVE WITH PAY DUE IN THE SECOND SERVICE YEAR FOR LEAVE OF ABSENCE WITHOUT PAY TAKEN DURING THE FIRST SERVICE YEAR WHEN LEAVE ACCRUED BUT COULD NOT BE GRANTED UNTIL THE SECOND SERVICE YEAR, AND TO THE SUBSTITUTION OF LEAVE WITH PAY FOR LEAVE WITHOUT PAY TAKEN EARLIER IN THE SAME LEAVE YEAR AND BEFORE LEAVE WITH PAY HAD ACCRUED. IN OTHER WORDS, THE BASIS FOR THE PRACTICE IS UNDERSTOOD TO BE THE FIRST PROVISO OF THE LEAVE ACT OF AUGUST 29, 1916, 39 STAT. 617, WHICH READS: "THAT IT SHALL BE LAWFUL TO ALLOW PRO RATA LEAVE ONLY TO THOSE SERVING 12 CONSECUTIVE MONTHS OR MORE.' THE PROVISIONS OF SECTION 215 OF THE ECONOMY ACT DO NOT JUSTIFY ANY EXTENSION OF THIS PAST PRACTICE TO PERMIT RETROACTIVE SUBSTITUTION OF LEAVE WITH PAY ACCRUED DURING THE THIRD OR SUBSEQUENT LEAVE YEARS FOR LEAVE WITHOUT PAY TAKEN IN ANY PRIOR LEAVE YEAR. QUESTION (B) IS ANSWERED ACCORDINGLY.