A-63452, OCTOBER 22, 1935, 15 COMP. GEN. 320

A-63452: Oct 22, 1935

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FOR THE PURPOSE OF COMPUTING OVERTIME LEGAL HOLIDAYS FALLING ON ONE OF THE 6 DAYS CONSTITUTING THE REGULAR TOUR OF DUTY ARE TO BE REGARDED AS A PART OF THE 40-HOUR WEEK. WHETHER OR NOT WORK IS ACTUALLY PERFORMED ON THE HOLIDAY. 1935: THERE WAS RECEIVED YOUR LETTER OF JUNE 29. ALTHOUGH A NUMBER OF EMPLOYEES ARE SIMILARLY AFFECTED. MALLETT'S CLAIM IS THE ONLY ONE BEING PRESENTED. MALLETT'S REGULAR WORKING HOURS WERE AS FOLLOWS: CHART 18 19 20 21 22 23 24 MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY SATURDAY SUNDAY 7 HOURS - 7 HOURS . HE WAS REQUIRED TO WORK 16 HOURS. THE COMPUTATION OF PAY WAS BASED ON A TOTAL OF 40 HOURS REGULAR WORK TIME. UNDER THIS DECISION IT APPEARS THAT INASMUCH AS THERE WAS NO CHANGE IN THE REGULAR TOUR OF DUTY OF MR.

A-63452, OCTOBER 22, 1935, 15 COMP. GEN. 320

FORTY-HOUR WEEK - COMPENSATION FOR HOLIDAYS AND OVERTIME - PANAMA CANAL PER DIEM EMPLOYEES OF THE PANAMA CANAL WHOSE REGULAR TOUR OF DUTY HAS BEEN ADJUSTED ON THE BASIS OF 40 HOURS PER WEEK UNDER THE TERMS OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, SO AS TO REQUIRE 7 HOURS' WORK ON 5 DAYS, MONDAY TO FRIDAY, INCLUSIVE, AND 5 HOURS ON SATURDAY, WOULD BE ENTITLED TO GRATUITY PAY ON THE BASIS OF 7 HOURS FOR A HOLIDAY FALLING ON ANY DAY FROM MONDAY TO FRIDAY, INCLUSIVE, AND ON THE BASIS OF 5 HOURS FOR A HOLIDAY FALLING ON SATURDAY. FOR THE PURPOSE OF COMPUTING OVERTIME LEGAL HOLIDAYS FALLING ON ONE OF THE 6 DAYS CONSTITUTING THE REGULAR TOUR OF DUTY ARE TO BE REGARDED AS A PART OF THE 40-HOUR WEEK, WHETHER OR NOT WORK IS ACTUALLY PERFORMED ON THE HOLIDAY.

COMPTROLLER GENERAL MCCARL TO THE GOVERNOR OF THE PANAMA CANAL, OCTOBER 22, 1935:

THERE WAS RECEIVED YOUR LETTER OF JUNE 29, 1935, AS FOLLOWS:

I TRANSMIT HEREWITH LETTER DATED APRIL 13, 1935, ADDRESSED TO YOU BY MR. ADAM MALLETT, BALBOA HEIGHTS, CANAL ZONE, PRESENTING A CLAIM FOR THE DIFFERENCE BETWEEN 18 HOURS PAY AT $1.33 PER HOUR AND 21 1/2 HOURS PAY FOR WORK PERFORMED SATURDAY, FEBRUARY 23, 1935. THE GOVERNOR OF THE PANAMA CANAL IN FORWARDING THIS LETTER TO THIS OFFICE STATES THAT, ALTHOUGH A NUMBER OF EMPLOYEES ARE SIMILARLY AFFECTED, MR. MALLETT'S CLAIM IS THE ONLY ONE BEING PRESENTED, AS THE DECISION IN HIS CASE CAN BE USED AS A BASIS FOR SETTLING THE OTHERS. THE GOVERNOR COMMENTED ON THIS CLAIM AS FOLLOWS:

THE WORK-WEEK IN QUESTION COMMENCED ON FEBRUARY 18, DURING WHICH MR. MALLETT'S REGULAR WORKING HOURS WERE AS FOLLOWS:

CHART

18 19 20 21 22 23 24 MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY SATURDAY SUNDAY 7 HOURS - 7 HOURS -- 7 HOURS --- 7 HOURS --- HOLIDAY 5 HOURS --- --

BUT INSTEAD OF WORKING ONLY 5 HOURS ON SATURDAY THE 23D, HE WAS REQUIRED TO WORK 16 HOURS, AND UNDER PANAMA CANAL TIMEKEEPING REGULATIONS, IN EFFECT AT THAT TIME, THE COMPUTATION OF PAY WAS BASED ON A TOTAL OF 40 HOURS REGULAR WORK TIME, PLUS 6 HOURS OVERTIME (4 HOURS TIME 1 1/2 EQUALS 6), PLUS 7 HOURS GRATUITY TIME FOR THE HOLIDAY ON THE 22D, OR A TOTAL OF 53 HOURS' PAY.

HOWEVER, SINCE THAT TIME THE COMPTROLLER GENERAL'S DECISION NO. A 60747, ADDRESSED TO THE SECRETARY OF THE NAVY UNDER DATE OF APRIL 12, 1935, HAS BEEN RECEIVED AND NOTED. UNDER THIS DECISION IT APPEARS THAT INASMUCH AS THERE WAS NO CHANGE IN THE REGULAR TOUR OF DUTY OF MR. MALLETT FOR THAT ONE WEEK AND FRIDAY THE 22D WOULD HAVE BEEN A REGULAR WORKING DAY, THE NUMBER OF HOURS ALLOWED AS GRATUITY PAY FOR THAT DAY SHOULD POSSIBLY HAVE BEEN INCLUDED IN THE 40 HOURS REGULAR TIME, AND THAT ANY TIME WORKED SUBSEQUENT TO THOSE 40 HOURS WAS OVERTIME AND SHOULD HAVE BEEN PAID FOR AS SUCH.

THE REGULATIONS COVERING THE PAYMENT FOR GRATUITY HOLIDAYS ARE AS FOLLOWS:

PARAGRAPH 1.3 OF THE PERSONNEL REGULATIONS OF THE PANAMA CANAL:

"1.3. THE EXECUTIVE ORDER OF FEBRUARY 2, 1914, AS AMENDED BY EXECUTIVE ORDERS OF JANUARY 15, 1917, NOVEMBER 25, 1919, FEBRUARY 20, 1920, JUNE 17, 1926, AND SEPTEMBER 14, 1927, PRESCRIBES THE FOLLOWING CONDITIONS OF EMPLOYMENT:

"12. EMPLOYEES ABOVE THE GRADE OF LABORER, APPOINTED WITH RATES OF PAY PER HOUR OR PER DAY, WILL NOT BE EMPLOYED OVER 8 HOURS IN ANY ONE CALENDAR DAY, EXCEPT IN CASE OF EMERGENCY. THE TIME SUCH EMPLOYEES WORK OVER 8 HOURS IN ONE CALENDAR DAY, AND TIME WORKED ON SUNDAYS AND REGULARLY AUTHORIZED HOLIDAYS, INCLUDING JANUARY 1ST, FEBRUARY 22D, MAY 30TH, JULY 4TH, LABOR DAY, THANKSGIVING DAY, AND DECEMBER 25TH, SHALL BE CONSIDERED OVERTIME FOR WHICH TIME AND ONE-HALF WILL BE ALLOWED. SUCH EMPLOYEES WHO WORK ON THE DAYS PRIOR AND SUBSEQUENT TO THE HOLIDAYS SPECIFICALLY NAMED ABOVE WILL BE ALLOWED THEIR REGULAR PAY FOR 8 HOURS FOR SUCH DAYS, IN ADDITION TO PAY FOR ANY WORK PERFORMED: PROVIDED, THAT PAYMENT TO SUCH EMPLOYEES FOR EMERGENCY WORK IN EXCESS OF 8 HOURS ON SUNDAYS AND AUTHORIZED HOLIDAYS SHALL BE MADE ON THE SAME BASIS AS NOW AUTHORIZED OR MAY HEREAFTER BE AUTHORIZED FOR EMPLOYEES OF THE NAVAL ESTABLISHMENTS IN THE UNITED STATES. * * *

"* * * THIS INCLUDES THE AMENDMENT PROVIDED BY EXECUTIVE ORDER OF JUNE 17, 1926.'

AND "ALL CONCERNED CIRCULAR" DATED MAY 31, 1934:

"40-HOUR WEEK--- GRATUITY HOLIDAYS

"1. IN CONNECTION WITH PAY FOR GRATUITY HOLIDAYS TO EMPLOYEES AFFECTED BY THE 40-HOUR WEEK, HOURLY EMPLOYEES SO AFFECTED SHALL RECEIVE THE SAME PAY AS ON OTHER DAYS. THOSE WHOSE REGULAR DAILY WORKING PERIOD IS 7 HOURS OR LESS SHALL RECEIVE PAY FOR 7 HOURS. THIS APPLIES TO SUCH EMPLOYEES WHO WORK 6 2/3 HOURS 6 DAYS A WEEK AS WELL AS THOSE WHO WORK 7 HOURS 5 DAYS AND 5 HOURS ON THE 6TH DAY.

"BY DIRECTION OF THE GOVERNOR:

"C. A. MCILVAINE,

"EXECUTIVE SECRETARY.'

IN ORDER TO CLEAR UP ALL DOUBTS AS TO THE EFFECT OF A HOLIDAY GRATUITY TIME ON PAYMENTS FOR OVERTIME, THE GOVERNOR REQUESTS THAT, IN ADDITION TO THE QUESTION RAISED IN MR. MALLETT'S LETTER, YOU GIVE YOUR DECISION ON THE FOLLOWING QUESTIONS:

(A) WHAT NUMBER OF HOURS GRATUITY PAY SHOULD BE ALLOWED TO AN EMPLOYEE FOR MEMORIAL DAY, THURSDAY, MAY 30, 1935, WHOSE REGULAR TOUR OF DUTY IS 7 HOURS A DAY FROM MONDAY TO FRIDAY, INCLUSIVE, AND 5 HOURS ON SATURDAY, AND WHO DOES NOT REGULARLY WORK ON HOLIDAYS?

(B) IN THE EVENT THAT 8 HOURS GRATUITY ARE ALLOWABLE FOR THE HOLIDAY, HOW MANY HOURS OVERTIME, IF ANY, SHOULD THE ABOVE EMPLOYEE BE PAID FOR?

(C) HOW MANY HOURS GRATUITY PAY SHOULD BE ALLOWED THE ABOVE EMPLOYEE IN CASE THE HOLIDAY FELL ON SATURDAY, A DAY ON WHICH HE WOULD HAVE WORKED 5 HOURS HAD IT NOT BEEN A HOLIDAY?

(D) IN THE EVENT THAT 8 HOURS GRATUITY ARE ALLOWABLE FOR THE HOLIDAY (UNDER PARAGRAPH (C) (, HOW MANY HOURS OVERTIME, IF ANY, SHOULD THE ABOVE EMPLOYEE BE PAID FOR?

THE ACTS OF JANUARY 6, 1885, 23 STAT. 516; FEBRUARY 23, 1887, 24 STAT. 644; AND JUNE 28, 1894, 28 STAT. 96, PROVIDE, RESPECTIVELY, AS FOLLOWS:

THAT THE EMPLOYEES OF THE NAVY YARD, GOVERNMENT PRINTING OFFICE, BUREAU OF PRINTING AND ENGRAVING, AND ALL OTHER PER DIEM EMPLOYEES OF THE GOVERNMENT ON DUTY AT WASHINGTON, OR ELSEWHERE IN THE UNITED STATES, SHALL BE ALLOWED THE FOLLOWING HOLIDAYS, TO WIT: THE FIRST DAY OF JANUARY, THE TWENTY-SECOND DAY OF FEBRUARY, THE FOURTH DAY OF JULY, THE TWENTY-FIFTH DAY OF DECEMBER, AND SUCH DAYS AS MAY BE DESIGNATED BY THE PRESIDENT AS DAYS FOR NATIONAL THANKSGIVING, AND SHALL RECEIVE THE SAME PAY AS ON OTHER DAYS.

THAT ALL PER DIEM EMPLOYEES OF THE GOVERNMENT, ON DUTY AT WASHINGTON OR ELSEWHERE IN THE UNITED STATES, SHALL BE ALLOWED THE DAY OF EACH YEAR, WHICH IS CELEBRATED AS "MEMORIAL" OR "DECORATION DAY" AND THE FOURTH OF JULY OF EACH YEAR, AS HOLIDAY, AND SHALL RECEIVE THE SAME PAY AS ON OTHER DAYS.

THAT THE FIRST MONDAY OF SEPTEMBER IN EACH YEAR, BEING THE DAY CELEBRATED AND KNOWN AS "LABOR'S HOLIDAY," IS HEREBY MADE A LEGAL PUBLIC HOLIDAY, TO ALL INTENTS AND PURPOSES, IN THE SAME MANNER AS CHRISTMAS, THE FIRST DAY OF JANUARY, THE TWENTY-SECOND DAY OF FEBRUARY, THE THIRTIETH DAY OF MAY, AND THE FOURTH DAY OF JULY ARE NOW MADE BY LAW PUBLIC HOLIDAYS.

AS PER DIEM EMPLOYEES IN THE CONTINENTAL UNITED STATES ARE ENTITLED TO GRATUITY PAY FOR LEGAL HOLIDAYS ON WHICH NO WORK IS PERFORMED UNDER THE ACTS ABOVE QUOTED, PER DIEM EMPLOYEES OF THE PANAMA CANAL ALSO ARE ENTITLED TO GRATUITY PAY FOR THE SAME HOLIDAYS AND UNDER THE SAME CONDITIONS PURSUANT TO THE EXECUTIVE ORDERS QUOTED IN YOUR LETTER.

YOU WILL NOTE THAT THE HOLIDAY STATUTES OF JANUARY 6, 1885, AND FEBRUARY 23, 1887, SUPRA, PROVIDE THAT PER DIEM EMPLOYEES "SHALL RECEIVE THE SAME PAY AS ON OTHER DAYS.' THAT IS, GRATUITY PAY FOR A HOLIDAY WOULD BE AUTHORIZED ONLY FOR THE NUMBER OF HOURS THE EMPLOYEE WOULD REGULARLY WORK IF THE DAY WERE NOT A HOLIDAY. THE PROVISION OF THE EXECUTIVE ORDER, QUOTED IN YOUR LETTER, FOR ALLOWANCE OF "THEIR REGULAR PAY FOR 8 HOURS FOR SUCH DAYS" MUST BE REGARDED AS RELATING ONLY TO EMPLOYEES WHO REGULARLY WORK 8 HOURS ON OTHER DAYS, THE EXECUTIVE ORDER HAVING BEEN ISSUED PRIOR TO THE PASSAGE OF THE 40-HOUR WEEK STATUTORY PROVISION AT A TIME WHEN THE EMPLOYEES WERE WORKING REGULARLY 8 HOURS PER DAY. EMPLOYEES WHOSE REGULAR TOUR OF DUTY HAS BEEN ADJUSTED ON THE BASIS OF 40 HOURS PER WEEK UNDER THE TERMS OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, SO AS TO REQUIRE 7 HOURS' WORK ON 5 DAYS, MONDAY TO FRIDAY, INCLUSIVE, AND 5 HOURS ON SATURDAY, WOULD BE ENTITLED TO GRATUITY PAY ON THE BASIS OF 7 HOURS FOR A HOLIDAY FALLING ON ANY DAY FROM MONDAY TO FRIDAY, INCLUSIVE, AND ON THE BASIS OF 5 HOURS FOR A HOLIDAY FALLING ON SATURDAY.

QUESTIONS (A) AND (C) ARE ANSWERED ACCORDINGLY, MAKING IT UNNECESSARY TO ANSWER QUESTIONS (B) AND (D).

IN DECISION OF APRIL 12, 1935, 14 COMP. GEN. 761, 762, IT WAS HELD AS FOLLOWS:

LEGAL HOLIDAYS FALLING ON ONE OF THE FIVE DAYS CONSTITUTING THE REGULAR TOUR OF DUTY OF EMPLOYEES SUBJECT TO THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING THE 40 HOUR WEEK, ARE TO BE REGARDED AS A PART OF THE 40-HOUR WEEK, WHETHER OR NOT WORK IS ACTUALLY PERFORMED ON THE HOLIDAY. 13 COMP. GEN. 295; ID. 370; ID. 444. IF NO WORK IS PERFORMED ON THE HOLIDAY, PER DIEM EMPLOYEES ARE ENTITLED TO THEIR REGULAR COMPENSATION. IF WORK IS PERFORMED ON THE HOLIDAY IN SUCH CASES, PER DIEM EMPLOYEES ARE ENTITLED TO TWICE THEIR REGULAR COMPENSATION.

IN THIS CASE, THEREFORE, FRIDAY, FEBRUARY 22, COMPLETED THE REGULAR TOUR OF DUTY OF THESE NAVY-YARD EMPLOYEES FOR THE WEEK BEGINNING WITH SUNDAY, FEBRUARY 17, AND ENDING WITH SATURDAY, FEBRUARY 23, IT BEING UNDERSTOOD THERE WAS NO CHANGE IN THE REGULAR TOUR OF DUTY OF THE EMPLOYEES FOR THAT ONE WEEK. HENCE, WORK ON SATURDAY, FEBRUARY 23, WAS OVERTIME FOR WHICH COMPENSATION IS PAYABLE UNDER THE TERMS OF THE 40-HOUR WEEK STATUTORY PROVISIONS, SUPRA, AT THE RATE OF TIME AND ONE HALF COMPUTED ON THE BASIS OF THE REGULAR INCREASED HOURLY RATE REQUIRED BY SAID STATUTE.

ACCORDINGLY, THE COMPENSATION OF ADAM MALLETT FOR THE WORK WEEK MONDAY, FEBRUARY 18, TO SATURDAY, FEBRUARY 23, INCLUSIVE, SHOULD BE ADJUSTED ON THE BASIS OF 56 1/2 HOURS AT THE RATE OF $1.33 PER HOUR, THAT IS, 40 HOURS, INCLUDING 7 HOURS ON MONDAY TO FRIDAY, INCLUSIVE, AND 5 HOURS ON SATURDAY, AND 16 1/2 HOURS (TIME AND ONE-HALF FOR 11 HOURS) OVERTIME FOR SATURDAY.