A-50301, AUGUST 10, 1933, 13 COMP. GEN. 44

A-50301: Aug 10, 1933

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NATIONAL INDUSTRIAL RECOVERY ACT - APPLICATION TO FEDERAL EMPLOYEES THERE IS NOTHING IN THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16. DEDUCTIONS FROM THE COMPENSATION FOR SATURDAY ON WHICH NO WORK IS PERFORMED AS TO EMPLOYEES FOR WHOM A 5-DAY WEEK IS ADOPTED MUST BE ON THE BASIS OF A FULL DAY'S PAY. AS FOLLOWS: YOUR ADVICE IS REQUESTED AS TO WHAT PROCEDURE THE DEPARTMENT SHOULD FOLLOW IN MAKING DEDUCTIONS FROM THE PAY OF CIVILIAN EMPLOYEES WHO ARE WORKING IN THE PRISON INDUSTRIES ON THE FIVE-DAY WEEK BASIS. WE WISH TO KEEP OUR INDUSTRIAL SHOPS IN OPERATION ONLY FOR SUCH PERIOD AS IS ABSOLUTELY ESSENTIAL TO PROVIDE ONLY THOSE EMPLOYMENT OPPORTUNITIES FOR INMATES OF OUR INSTITUTIONS WHICH ARE NECESSARY TO THE MAINTENANCE OF DISCIPLINE AND MORALE.

A-50301, AUGUST 10, 1933, 13 COMP. GEN. 44

NATIONAL INDUSTRIAL RECOVERY ACT - APPLICATION TO FEDERAL EMPLOYEES THERE IS NOTHING IN THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 195, OR ANY OTHER STATUTE AUTHORIZING OR REQUIRING APPLICATION OF THE INDUSTRIAL CODES TO CIVILIAN EMPLOYEES OF THE FEDERAL GOVERNMENT. DEDUCTIONS FROM THE COMPENSATION FOR SATURDAY ON WHICH NO WORK IS PERFORMED AS TO EMPLOYEES FOR WHOM A 5-DAY WEEK IS ADOPTED MUST BE ON THE BASIS OF A FULL DAY'S PAY.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, AUGUST 10, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 29, 1933, AS FOLLOWS:

YOUR ADVICE IS REQUESTED AS TO WHAT PROCEDURE THE DEPARTMENT SHOULD FOLLOW IN MAKING DEDUCTIONS FROM THE PAY OF CIVILIAN EMPLOYEES WHO ARE WORKING IN THE PRISON INDUSTRIES ON THE FIVE-DAY WEEK BASIS. AS A MATTER OF POLICY THE DEPARTMENT HAS DECIDED TO OPERATE ALL OF ITS INDUSTRIAL ENTERPRISES THE MINIMUM NUMBER OF HOURS SPECIFIED BY THE VARIOUS INDUSTRIAL CODES, AND IN NO CASE MORE THAN FORTY HOURS PER WEEK. DURING THE PRESENT UNEMPLOYMENT EMERGENCY, WE WISH TO KEEP OUR INDUSTRIAL SHOPS IN OPERATION ONLY FOR SUCH PERIOD AS IS ABSOLUTELY ESSENTIAL TO PROVIDE ONLY THOSE EMPLOYMENT OPPORTUNITIES FOR INMATES OF OUR INSTITUTIONS WHICH ARE NECESSARY TO THE MAINTENANCE OF DISCIPLINE AND MORALE.

SATURDAY IS THE MOST CONVENIENT DAY TO CLOSE OUR FACTORIES. THIS, HOWEVER, MAY WORK A HARDSHIP ON OUR CIVILIAN FOREMEN, INSPECTORS, AND OTHER EMPLOYEES IF THEY MUST LOSE A FULL DAY'S PAY. IT WOULD ALSO SEEM TO VIOLATE THE SPIRIT OF THE RECOVERY ACT TO LIMIT WORKING HOURS IF THE EMPLOYEES WERE REQUIRED TO FORFEIT A FULL DAY'S PAY, WHEN, AS A MATTER OF FACT, THE SHOPS ARE CLOSED ONLY FOUR HOURS.

YOUR INSTRUCTIONS ARE REQUESTED AS TO HOW AND AT WHAT RATE WE SHOULD MAKE DEDUCTIONS FROM THE PAY OF CIVILIAN EMPLOYEES WHO ARE NOT EMPLOYED AT LEAST FOUR HOURS ON SATURDAY, AND WHO HAVE NO ACCRUED ANNUAL LEAVE.

YOUR OPINION IS ALSO REQUESTED AS TO WHETHER OUR CIVILIAN EMPLOYEES WHO ARE NOW PAID ON THE ANNUAL BASIS COULD HAVE THEIR PAY COMPUTED AT AN HOURLY RATE BY DIVIDING THEIR ANNUAL COMPENSATION BY THE ACTUAL NUMBER OF WORKING HOURS IN THE YEAR AND APPROPRIATE DEDUCTIONS MADE ON AN HOURLY BASIS FOR THE NUMBER OF HOURS THE EMPLOYEE IS NOT ON DUTY. APPROPRIATE DEDUCTIONS WOULD, OF COURSE, BE MADE FOR THE 15 PERCENT REDUCTION IN SALARY AND FOR THE 3 1/2 PERCENT RETIREMENT DEDUCTION.

THERE IS NOTHING IN THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 195, OR ANY OTHER STATUTE AUTHORIZING OR REQUIRING APPLICATION OF THE INDUSTRIAL CODES TO CIVILIAN EMPLOYEES OF THE FEDERAL GOVERNMENT. THE PROVISIONS OF SECTION 206 OF THE ACT, PLACING CERTAIN LIMITATIONS AND RESTRICTIONS ON THE EMPLOYMENT OF PERSONNEL ENGAGED ON CONSTRUCTION PROJECTS FINANCED UNDER THE ACT, INCLUDING THE 30-HOUR WEEK, HAVE BEEN HELD TO APPLY TO FEDERAL PERSONNEL AS WELL AS CONTRACTORS' PERSONNEL ENGAGED DIRECTLY ON SUCH PROJECTS, BUT THIS IS UNDERSTOOD NOT TO BE INVOLVED IN YOUR SUBMISSION. DECISION OF AUGUST 2, 1933, A-50072, 13 COMP. GEN. 35.

ADOPTION OF A 5-DAY WEEK FOR THE PRISON INDUSTRIES IS PRIMARILY A MATTER OF ADMINISTRATION, BUT IN THE ABSENCE OF ANY STATUTORY PROVISION AUTHORIZING OR REQUIRING APPLICATION OF THE INDUSTRIAL CODES, THE HOURS OF LABOR AND RATES OF COMPENSATION OF CIVILIAN EMPLOYEES OF THE FEDERAL GOVERNMENT ENGAGED IN CONNECTION WITH PRISON INDUSTRIES REMAIN SUBJECT TO EXISTING LAWS, SUCH AS THE CLASSIFICATION ACT, AS EXTENDED TO THE FIELD SERVICE, THE SATURDAY HALF-HOLIDAY LAW, AND THE PROVISIONS OF THE ECONOMY ACT, AS AMENDED, INCLUDING SECTION 215 LIMITING ANNUAL LEAVE OF ABSENCE WITH PAY TO 15 DAYS EACH YEAR EXCLUSIVE OF SUNDAYS AND HOLIDAYS.

THE ACT OF MARCH 3, 1931, 46 STAT. 1482, PROVIDES IN PART AS FOLLOWS:

* * * 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 * * * WHETHER ON THE HOURLY, PER DIEM, PER ANNUM, PIECEWORK, OR OTHER BASIS: * *

SINCE THE STATUTE SPECIFICALLY PROVIDES THAT 4 HOURS SHALL CONSTITUTE A DAY'S WORK ON SATURDAY, IF NO WORK IS PERFORMED ON SATURDAY, EITHER THE TIME ABSENT MUST BE CHARGED TO ANNUAL LEAVE WITH PAY IF AVAILABLE UNDER SECTION 215 OF THE ECONOMY ACT, OR AS ON FURLOUGH OR LEAVE WITHOUT PAY.

IN DECISION OF APRIL 21, 1933, TO THE PUBLIC PRINTER, 12 COMP. GEN. 602, 606, IT WAS STATED AS FOLLOWS:

REFERRING TO THE QUESTION CONTAINED IN THE SECOND PARAGRAPH OF YOUR LETTER OF MARCH 30, 1933, YOU ARE ADVISED THAT THE SAME RULES APPLICABLE TO THE GRANTING OF LEAVE ON SATURDAY MORNING IN FORCE PRIOR TO JULY 1, 1932, ARE AGAIN APPLICABLE ON AND AFTER APRIL 1, 1933. SEE IN THIS CONNECTION 36 OP.ATTY.GEN. 407, ID. 444. THAT IS TO SAY, IF AN EMPLOYEE IS ENTITLED TO AND IS GRANTED LEAVE WITH PAY FOR A SATURDAY, FOUR HOURS' TIME WILL BE CHARGED AGAINST HIS LEAVE, BUT IF HE IS GRANTED LEAVE WITHOUT PAY FOR A SATURDAY HE WILL LOSE A FULL DAY'S PAY THEREFOR.

THE RULES CONTROLLING DEDUCTION OF THE COMPENSATION FOR LEAVE OF ABSENCE WITHOUT PAY ON SATURDAY IN FORCE PRIOR TO JULY 1, 1932, ARE STATED IN 11 COMP. GEN. 119; ID. 129; ID. 216; ID. 304.

IN ANSWER TO YOUR FIRST QUESTION, YOU ARE ADVISED, THEREFORE, THAT DEDUCTIONS FROM THE COMPENSATION OF THE EMPLOYEES IN QUESTION FOR SATURDAY ON WHICH NO WORK IS PERFORMED SHOULD BE ON THE BASIS OF A FULL DAY'S PAY.

FROM AN EXAMINATION OF THE PAY ROLLS IN THIS OFFICE IT IS UNDERSTOOD THAT THE EMPLOYEES REFERRED TO IN YOUR CONCLUDING PARAGRAPH ARE SUBJECT TO THE TERMS OF THE CLASSIFICATION ACT AS EXTENDED TO THE FIELD SERVICE. IF SO, AND THEIR POSITIONS HAVE BEEN PROPERLY ALLOCATED TO A FIELD GRADE OR SALARY RANGE CARRYING ONLY PER ANNUM SALARY RATES, THERE IS NO AUTHORITY OF LAW TO CHANGE THE BASIS OF PAYMENT OF COMPENSATION FROM PER ANNUM, AS PRESCRIBED BY THE CLASSIFICATION ACT, TO PER HOUR. FURTHERMORE, NO ADJUSTMENT IN THE BASIS OF PAYING COMPENSATION WOULD BE AUTHORIZED WHICH WOULD RESULT IN A DEDUCTION FOR ABSENCE FOR ALL OF SATURDAY OF LESS THAN ONE FULL DAY'S PAY OF THE USUAL NUMBER OF HOURS, OR WHICH RESULTED IN AN INCREASE IN THE RATE OF COMPENSATION FOR THE TIME ACTUALLY WORKED IN VIOLATION OF SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515.