A-36097, APRIL 14, 1931, 10 COMP. GEN. 464

A-36097: Apr 14, 1931

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ARE NOT APPLICABLE TO SUBSTITUTE EMPLOYEES HIRED WITH COMPENSATION BY THE HOUR FOR THE HOURS ACTUALLY WORKED TO PERFORM THE DUTIES OF REGULAR EMPLOYEES DURING AUTHORIZED ABSENCES. MAY NOT EXCEED THREE HOURS FOR EMPLOYEES WHOSE REGULAR WORKING DAY IS SEVEN HOURS. FOUR HOURS FOR EMPLOYEES WHOSE REGULAR WORKING DAY IS EIGHT HOURS. FOR EACH SATURDAY ON WHICH WORK IS REQUIRED IN EXCESS OF FOUR HOURS. SHALL CONSTITUTE A DAY'S WORK ON SATURDAYS THROUGHOUT THE YEAR WITH PAY OR EARNINGS FOR THE DAY THE SAME AS ON OTHER DAYS WHEN FULL TIME IS WORKED. IT WILL BE APPRECIATED IF YOU WILL ADVISE ME WHETHER THIS ACT IS APPLICABLE TO RELIEF TELEPHONE OPERATORS AND OTHER SUBSTITUTE EMPLOYEES IN THE CUSTODIAN SERVICE OF THIS DEPARTMENT WHO ARE APPOINTED IN ACCORDANCE WITH THE CIVIL-SERVICE RULES.

A-36097, APRIL 14, 1931, 10 COMP. GEN. 464

SATURDAY HALF HOLIDAYS - SUBSTITUTE EMPLOYEES - LENGTH OF COMPENSATORY TIME THE PROVISIONS OF THE ACT OF MARCH 3, 1931, 46 STAT. 1482, PROVIDING SATURDAY HALF HOLIDAYS FOR CERTAIN GOVERNMENT EMPLOYEES, ARE NOT APPLICABLE TO SUBSTITUTE EMPLOYEES HIRED WITH COMPENSATION BY THE HOUR FOR THE HOURS ACTUALLY WORKED TO PERFORM THE DUTIES OF REGULAR EMPLOYEES DURING AUTHORIZED ABSENCES. COMPENSATORY TIME AUTHORIZED BY THE ACT OF MARCH 3, 1931, 46 STAT. 1482, IN LIEU OF TIME ON DUTY REQUIRED DURING THE SATURDAY HALF HOLIDAYS PROVIDED BY THE STATUTE, MAY NOT EXCEED THREE HOURS FOR EMPLOYEES WHOSE REGULAR WORKING DAY IS SEVEN HOURS, AND FOUR HOURS FOR EMPLOYEES WHOSE REGULAR WORKING DAY IS EIGHT HOURS, FOR EACH SATURDAY ON WHICH WORK IS REQUIRED IN EXCESS OF FOUR HOURS, EVEN THOUGH THE EMPLOYEES MAY BE REQUIRED TO WORK ON SATURDAY IN EXCESS OF SEVEN OR EIGHT HOURS, RESPECTIVELY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, APRIL 14, 1931:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF MARCH 31, 1931, AS FOLLOWS:

THE ACT OF MARCH 3, 1931, PROVIDES IN PART AS FOLLOWS:

"THAT ON AND AFTER THE EFFECTIVE DATE OF THIS ACT FOUR HOURS, EXCLUSIVE OF TIME FOR LUNCHEON, SHALL CONSTITUTE A DAY'S WORK ON SATURDAYS THROUGHOUT THE YEAR WITH PAY OR EARNINGS FOR THE DAY THE SAME AS ON OTHER DAYS WHEN FULL TIME IS WORKED, FOR ALL CIVIL EMPLOYEES OF THE FEDERAL GOVERNMENT AND THE DISTRICT OF COLUMBIA, EXCLUSIVE OF EMPLOYEES OF THE POSTAL SERVICE, EMPLOYEES OF THE PANAMA CANAL ON THE ISTHMUS, AND EMPLOYEES OF THE INTERIOR DEPARTMENT IN THE FIELD, WHETHER ON THE HOURLY, PER DIEM, ANNUM, PIECEWORK, OR OTHER BASIS: PROVIDED, THAT IN ALL CASES WHERE FOR SPECIAL PUBLIC REASONS, TO BE DETERMINED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT HAVING SUPERVISION OR CONTROL OF SUCH EMPLOYEES, THE SERVICES OF SUCH EMPLOYEES, CAN NOT BE SPARED, SUCH EMPLOYEE SHALL BE ENTITLED TO AN EQUAL SHORTENING OF THE WORKDAY ON SOME OTHER DAY: PROVIDED FURTHER, THAT THE PROVISIONS OF THIS ACT SHALL NOT DEPRIVE EMPLOYEES OF ANY LEAVE OR HOLIDAYS WITH PAY TO WHICH THEY MAY NOW BE ENTITLED UNDER EXISTING LAWS.'

IT WILL BE APPRECIATED IF YOU WILL ADVISE ME WHETHER THIS ACT IS APPLICABLE TO RELIEF TELEPHONE OPERATORS AND OTHER SUBSTITUTE EMPLOYEES IN THE CUSTODIAN SERVICE OF THIS DEPARTMENT WHO ARE APPOINTED IN ACCORDANCE WITH THE CIVIL-SERVICE RULES, AND WITH THE UNDERSTANDING THAT THEY SHALL BE COMPENSATED ONLY FOR SERVICES ACTUALLY RENDERED DURING THE ABSENCE OF A REGULAR EMPLOYEE.

IF IT IS HELD THAT THESE EMPLOYEES ARE ENTITLED TO THE BENEFITS OF THE LEGISLATION REFERRED TO, THEN YOUR DECISION ON THE FOLLOWING WILL BE APPRECIATED:

IF A RELIEF TELEPHONE OPERATOR OR OTHER SUBSTITUTE EMPLOYEE IS REQUIRED, UNDER THE EXIGENCIES OF THE SERVICE, TO RENDER SERVICE IN EXCESS OF FOUR HOURS ON SATURDAYS, HOW SHOULD SUCH EMPLOYEES BE COMPENSATED FOR SERVICE RENDERED IN EXCESS OF THE FOUR HOURS WHEN THEY ARE NOT REQUIRED TO AGAIN REPORT FOR DUTY UNTIL THEIR SERVICES ARE NEEDED BY REASON OF THE ABSENCE OF A REGULAR EMPLOYEE?

AT TIMES THE DEPARTMENT APPOINTS TEMPORARY EMPLOYEES TO SERVE FOR SHORT PERIODS, SUCH AS A FEW DAYS AND UP TO SIXTY DAYS, FOR THE PURPOSE OF ALLOWING REGULAR EMPLOYEES LEAVE WITH PAY, BECAUSE OF THE NECESSITY OF THE OPERATION OF BUILDINGS WHERE ONLY ONE OR TWO EMPLOYEES ARE ASSIGNED. SHOULD THE SERVICE OF SUCH TEMPORARY EMPLOYEES BE LIMITED TO FOUR HOURS ON SATURDAY, OR, IN THE EVENT MORE THAN FOUR HOURS OF SERVICE IS REQUIRED OF THEM, SHOULD THEY BE COMPENSATED FOR THE NUMBER OF HOURS IN EXCESS OF FOUR RENDERED, AND IF SO, HOW SHOULD THEY BE GRANTED SUCH COMPENSATORY TIME, ESPECIALLY WHEN THE PERIOD OF EMPLOYMENT MIGHT TERMINATE WITH THE SATURDAY?

IN YOUR DECISION ADDRESSED TO THE PUBLIC PRINTER ON MARCH 7, 1931 (A- 35655), IT IS STATED:

"WHERE FOR SUCH SPECIAL PUBLIC REASONS EMPLOYEES ARE REQUIRED TO WORK MORE THAN FOUR HOURS ON ANY SATURDAY, THE PROVISIONS IN THE ACT FOR COMPENSATORY TIME, QUOTED IN YOUR LETTER, IS MANDATORY AND REQUIRES "AN EQUAL SHORTENING OF THE WORKDAY ON SAME OTHER DAY," THAT IS, THAT THE EMPLOYEE'S REGULAR WORKING TIME ON SOME OTHER DAY BE REDUCED, WITHOUT LOSS OF PAY OR LEAVE TIME, BY A PERIOD EXACTLY EQUAL TO THE TIME SUCH EMPLOYEE WAS REQUIRED TO WORK IN EXCESS OF FOUR HOURS ON THE SATURDAY.'

IS THE DEPARTMENT TO UNDERSTAND THAT IF FOR SPECIAL PUBLIC REASONS IT IS NECESSARY FOR AN EMPLOYEE TO RENDER FIVE HOURS OF SERVICE IN EXCESS OF FOUR ON SATURDAY, THE EMPLOYEE IS ENTITLED TO COMPENSATORY TIME OF FIVE HOURS ON SOME OTHER DAY, OR SHOULD THE COMPENSATORY TIME BE LIMITED TO THE DIFFERENCE BETWEEN THE NUMBER OF HOURS SERVED AND THE NUMBER OF HOURS WHICH WOULD ORDINARILY CONSTITUTE A WORKING DAY, THAT IS, SEVEN IN THE CASE OF ADMINISTRATIVE PERSONNEL AND EIGHT IN THE CASE OF LABORERS AND MECHANICAL EMPLOYEES IN THE CUSTODIAN SERVICE?

IN DECISION OF APRIL 1, 1931, A-35946, 10 COMP. GEN. 445, ADDRESSED TO THE SECRETARY OF AGRICULTURE, IT WAS HELD:

* * * I AM CONSTRAINED TO HOLD THAT THERE COULD HAVE BEEN NO INTENT TO INCLUDE EMPLOYEES HIRED DURING AN EMERGENCY WITH COMPENSATION BY THE HOUR FOR THE HOURS ACTUALLY WORKED, SOLELY FOR SUCH EMERGENCY WORK AS FIRE FIGHTING, AND OTHER SIMILAR EMERGENCY WORK, THE VERY NATURE OF WHICH WOULD PERMIT OF NO DELAY, NOR THE FIXING OF HOURS OF LABOR, FOR THE PERFORMANCE THEREOF. * * *

THE SAME MAY BE SAID AS TO EMPLOYEES HIRED SOLELY AS SUBSTITUTES TO PERFORM THE DUTIES OF REGULAR EMPLOYEES, DURING THEIR ABSENCE, WITH COMPENSATION BY THE HOUR FOR THE HOURS ACTUALLY WORKED. IT WOULD BE AN ANOMALY TO HOLD THAT EMPLOYEES HIRED BY THE HOUR AS SUBSTITUTES IN ORDER THAT REGULAR EMPLOYEES MIGHT BE GRANTED TIME OFF ON SATURDAY AFTERNOON, OR OTHER ABSENCE WITH PAY AUTHORIZED BY LAW, SHOULD ALSO BE GRANTED THE BENEFITS OF THE ACT OF MARCH 3, 1931, GRANTING SATURDAY HALF HOLIDAYS. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

YOUR SECOND QUESTION IS ANSWERED BY STATING THAT THE COMPENSATORY TIME AUTHORIZED BY THE STATUTE MAY NOT EXCEED THREE HOURS FOR EMPLOYEES WHOSE REGULAR WORK DAY IS SEVEN HOURS, AND FOUR HOURS FOR EMPLOYEES WHOSE REGULAR WORK DAY IS EIGHT HOURS, FOR EACH SATURDAY ON WHICH WORK IS REQUIRED IN EXCESS OF FOUR HOURS, EVEN THOUGH THE EMPLOYEES MAY BE REQUIRED TO WORK ON SATURDAY IN EXCESS OF SEVEN OR EIGHT HOURS, RESPECTIVELY.