A-88481, AUGUST 28, 1937, 17 COMP. GEN. 192

A-88481: Aug 28, 1937

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IS NOT APPLICABLE TO EMPLOYEES IN THE FIELD SERVICE AND EXCEPT FOR THE 8-HOUR LAW AS AMENDED BY THE ACT OF MARCH 3. THERE IS NO STATUTE FIXING EITHER A MINIMUM OR MAXIMUM NUMBER OF HOURS OF WORK REQUIRED OF FIELD EMPLOYEES PER DAY OR PER WEEK. IS NOT OBJECTIONABLE. THE OFFICE OCCUPIED BY THE COOPERATIVE EMPLOYEES IS IN A STATE BUILDING WHICH IS OFFICIALLY CLOSED ON SATURDAYS. IS AS FOLLOWS: THE QUESTION HAS ARISEN AS TO WHETHER THIS DEPARTMENT WOULD BE EMPOWERED UNDER EXISTING LAW TO AUTHORIZE FIELD EMPLOYEES TO REGULATE THEIR OFFICE HOURS SO AS TO WORK EIGHT HOURS A DAY FROM MONDAY THROUGH FRIDAY. - HAVE BEEN ASSIGNED TO WORK IN COOPERATION WITH CERTAIN ROAD OFFICIALS OF THE STATE. THE OFFICE OCCUPIED BY THE TWO EMPLOYEES OF THE DEPARTMENT IS IN THE BUILDING THAT HOUSES THE STATE HIGHWAY PLANNING OFFICES.

A-88481, AUGUST 28, 1937, 17 COMP. GEN. 192

OFFICERS AND EMPLOYEES - FIELD SERVICE - FIVE-DAY WEEK SECTION 5 OF THE ACT OF MARCH 3, 1893, AS AMENDED BY SECTION 7 OF THE ACT OF MARCH 15, 1898, 30 STAT. 316, REQUIRING "NOT LESS THAN SEVEN HOURS OF LABOR EACH DAY, EXCEPT SUNDAYS AND DAYS DECLARED PUBLIC HOLIDAYS BY LAW OR EXECUTIVE ORDER," AND HENCE REQUIRING WORK ON SIX DAYS EACH WEEK EXCEPTING HOLIDAYS DECLARED BY LAW OR EXECUTIVE ORDER, IS NOT APPLICABLE TO EMPLOYEES IN THE FIELD SERVICE AND EXCEPT FOR THE 8-HOUR LAW AS AMENDED BY THE ACT OF MARCH 3, 1913, 37 STAT. 726, RELATING TO EMPLOYMENT OF MECHANICS, LABORERS, ETC., THERE IS NO STATUTE FIXING EITHER A MINIMUM OR MAXIMUM NUMBER OF HOURS OF WORK REQUIRED OF FIELD EMPLOYEES PER DAY OR PER WEEK. ESTABLISHMENT OF A FIVE-DAY WEEK FOR CERTAIN FIELD EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE ASSIGNED TO WORK IN COOPERATION WITH STATE ROAD OFFICIALS, IS NOT OBJECTIONABLE, IF ADMINISTRATIVELY DETERMINED NECESSARY, WHERE EMPLOYEES OF THE STATE HIGHWAY DEPARTMENT WORK ONLY FROM MONDAY TO FRIDAY, INCLUSIVE, EACH WEEK, AND THE OFFICE OCCUPIED BY THE COOPERATIVE EMPLOYEES IS IN A STATE BUILDING WHICH IS OFFICIALLY CLOSED ON SATURDAYS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, AUGUST 28, 1937:

YOUR LETTER OF AUGUST 18, 1937, IS AS FOLLOWS:

THE QUESTION HAS ARISEN AS TO WHETHER THIS DEPARTMENT WOULD BE EMPOWERED UNDER EXISTING LAW TO AUTHORIZE FIELD EMPLOYEES TO REGULATE THEIR OFFICE HOURS SO AS TO WORK EIGHT HOURS A DAY FROM MONDAY THROUGH FRIDAY, AND TO CLOSE THE OFFICE ON SATURDAY, UNDER THE FOLLOWING SET OF CIRCUMSTANCES:

THE BUREAU OF PUBLIC ROADS HAS ENTERED INTO A COOPERATIVE AGREEMENT WITH THE HIGHWAY DEPARTMENT OF THE STATE OF MICHIGAN, UNDER THE TERMS OF WHICH TWO EMPLOYEES OF THE DEPARTMENT--- AN ADMINISTRATIVE OFFICER AND A STENOGRAPHER--- HAVE BEEN ASSIGNED TO WORK IN COOPERATION WITH CERTAIN ROAD OFFICIALS OF THE STATE. THE OFFICE OCCUPIED BY THE TWO EMPLOYEES OF THE DEPARTMENT IS IN THE BUILDING THAT HOUSES THE STATE HIGHWAY PLANNING OFFICES. THE OFFICE HOURS OF THE STATE HIGHWAY DEPARTMENT EMPLOYEES ARE FROM 8:00 A.M. TO 5:00 P.M., FROM MONDAY TO FRIDAY, INCLUSIVE. THE STATE OFFICES IN THE BUILDING ARE CLOSED ON SATURDAY AND, INASMUCH AS THE ENTIRE BUILDING IS OCCUPIED BY THE STATE HIGHWAY DEPARTMENT, THIS MEANS THAT THE BUILDING ITSELF IS OFFICIALLY CLOSED ON SATURDAYS.

OUR OFFICER, HOWEVER, HAS A PASS KEY WHICH HE COULD USE TO GAIN ACCESS TO THE BUILDING ON SATURDAYS, BUT WHEN HE ENTERS THE BUILDING HE MUST LOCK THE DOOR BEHIND HIM. FURTHERMORE, HE HAS REPORTED THAT INASMUCH AS HIS WORK, AND VIRTUALLY ALL OF THAT OF HIS STENOGRAPHER, IS DONE IN COOPERATION WITH STATE EMPLOYEES, THE ABSENCE OF SUCH EMPLOYEES FROM THE BUILDING ON SATURDAY WOULD MAKE IT DIFFICULT FOR OUR EMPLOYEES TO PERFORM ANY USEFUL WORK. HE REPORTS ALSO THAT BECAUSE OF THE FACT THAT CERTAIN INDIVIDUALS MADE UNAUTHORIZED USE OF THE BUILDING IN QUESTION ON SATURDAY, THE STATE HIGHWAY COMMISSIONER ORDERED THE BUILDING TO BE CLOSED TO ALL PERSONS, INCLUDING EMPLOYEES, EXCEPT DURING OFFICE HOURS. "THIS ORDER STILL STANDS," HE STATES, "AND I AM SURE THAT THE STATE DEPARTMENT DESIRES IT TO STAND WITHOUT EXCEPTION. TO BE SURE, APPROVAL OF KEEPING THIS OFFICE OPEN WOULD PROBABLY BE GRANTED AS A MATTER OF INTER-GOVERNMENTAL COURTESY, BUT IT WOULD MAKE US PARTLY RESPONSIBLE FOR THE WELFARE OF RECORDS HERE. THIS RESPONSIBILITY I WOULD NOT CARE TO ASSUME ALONE.'

IN VIEW OF THE FOREGOING, OUR OFFICER HAS RECOMMENDED THAT THE HOURS OF WORK FOR THE TWO EMPLOYEES CONCERNED "BE ESTABLISHED AS 8 A.M. TO 12 P.M. AND 1 P.M. TO 5 P.M. MONDAY TO FRIDAY, INCLUSIVE, EXCEPTING LEGAL HOLIDAYS; AND THAT FOR LEAVE PURPOSES MONDAY TO THURSDAY, INCLUSIVE, BE CONSIDERED AS ONE DAY--- ONE HOUR, AND FRIDAY AS ONE DAY.'

IN PRESENTING THIS SET OF FACTS TO YOU WE INVITE YOUR ATTENTION TO A DECISION OF JUNE 4, 1936 (A-75744), TO THE ADMINISTRATOR, WORKS PROGRESS ADMINISTRATION, IN WHICH YOU HOLD THAT SECTION 5 OF THE ACT OF MAY (MARCH) 3, 1893, AS AMENDED BY SECTION 7 OF THE ACT OF MARCH 15, 1898 (30 STAT. 316),"REQUIRES WORK ON SIX DAYS PER WEEK, EXCEPT WHEN ONE OF THE SIX DAYS IS A HOLIDAY DECLARED BY LAW OR EXECUTIVE ORDER AND IS APPLICABLE TO ALL ADMINISTRATIVE EMPLOYEES IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA.'

THE FORCE AND EFFECT OF THIS LANGUAGE IS THAT YOU, AND WE BELIEVE PROPERLY, CONSTRUE THIS ACT TO PERTAIN ONLY TO FEDERAL EMPLOYEES IN THE EXECUTIVE DEPARTMENTS AND INDEPENDENT AGENCIES IN WASHINGTON, D.C., AND THAT IT DOES NOT INCLUDE FIELD EMPLOYEES WITHIN ITS SCOPE. IN THE LAST PARAGRAPH OF THE SAME DECISION YOU MAKE THE FOLLOWING STATEMENT:

"* * * NOR DOES THERE APPEAR SUCH A RELATIONSHIP BETWEEN THE WORK OF THE ADMINISTRATIVE FORCE IN WASHINGTON AND THE WORK OF THE EMPLOYEES AND SECURITY WAGE WORKERS IN THE FIELD AS TO REQUIRE SUSPENSION OF WORK IN THE DISTRICT OF COLUMBIA ON SATURDAY OR ANY OTHER DAY OF THE WEEK THAT THE FIELD FORCE DOES NOT WORK.'

THIS STATEMENT INDICATES BY IMPLICATION THAT YOU REGARD A FIVE-DAY WEEK IN THE FIELD SERVICE AS BEING WITHIN THE LAW.

ALSO, IN AN OPINION OF JULY 3, 1937 (A-86898), TO THIS DEPARTMENT, YOU INDICATED THAT THE PROMULGATION OF DEPARTMENTAL REGULATIONS PERMITTING THE STAGGERING OF HOURS OF EMPLOYEES OUTSIDE THE DISTRICT OF COLUMBIA ENGAGED PRINCIPALLY IN OFFICE, STATION, OR LABORATORY WORK, WHERE THE PUBLIC INTEREST REQUIRES SERVICE EVERY DAY IN THE YEAR, IS AN ADMINISTRATIVE ACTION WHICH YOUR OFFICE IS WITHOUT AUTHORITY TO REVIEW "OTHER THAN TO DETERMINE IN THE AUDIT OF ACCOUNTS THAT THE REGULATIONS ADOPTED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT DO NOT CAUSE AN UNLAWFUL EXPENDITURE OF PUBLIC MONIES.'

WE WONDER WHETHER THIS DECISION WOULD CONTRIBUTE ANY JUSTIFICATION TO A SIMILAR ADMINISTRATIVE DETERMINATION THAT THE OFFICE HOURS OF SUCH FIELD EMPLOYEES AS ARE HEREIN CONCERNED MIGHT BE STAGGERED SO AS TO RELIEVE THEM FROM DUTY ON SATURDAYS AND ONLY REQUIRE THEM TO WORK FIVE OF THE REMAINING DAYS OF THE WEEK, PROVIDING, OF COURSE, THAT THE PUBLIC INTEREST AND NOT THE PERSONAL CONVENIENCE OF THE EMPLOYEES WAS PARAMOUNT IN MAKING THE CHANGE.

THE STATUTE THAT CASTS DOUBT UPON THE RIGHT OF THIS DEPARTMENT TO PRESCRIBE A FIVE WORKDAY WEEK FOR EMPLOYEES IN SIMILAR CIRCUMSTANCES TO THOSE ABOVE MENTIONED IS THE SATURDAY HALF-HOLIDAY LAW. THIS STATUTE ENACTED MARCH 3, 1931 (46 STAT. 1482), PROVIDES:

"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, PER ANNUM, PIECE WORK, 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 CANNOT BE SPARED, SUCH EMPLOYEES 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.'

A STRONG INFERENCE MAY BE DRAWN FROM THIS ACT THAT CONGRESS DID NOT INTEND FIELD EMPLOYEES OR EMPLOYEES IN THE DISTRICT OF COLUMBIA TO BE RELIEVED FROM WORKING ON SATURDAYS, EXCEPT FOR THE HALF DAY. THE ANTITHESIS OF THIS ARGUMENT IS THAT THE ACT WAS DESIGNED NOT NECESSARILY TO REQUIRE EMPLOYEES TO WORK ON SATURDAY BUT TO PERMIT THEM TO TAKE A HALF HOLIDAY ON SATURDAYS TO WHICH THEY WERE NOT ENTITLED UNDER PREVIOUSLY EXISTING LAW, IF THEY WERE OTHERWISE REQUIRED TO WORK ON THAT DAY.

IN THE LIGHT OF THE FOREGOING AND OTHER STATUTES AND DECISIONS WHICH YOU MAY FIND APPLICABLE, WE SHOULD APPRECIATE YOUR ADVICE AS TO THE LEGALITY OF AUTHORIZING FIELD EMPLOYEES, AT LEAST UNDER SUCH SPECIAL CIRCUMSTANCES AS ARE MENTIONED ABOVE, TO REGULATE THEIR OFFICE HOURS SO AS TO WORK EIGHT HOURS A DAY FROM MONDAY THROUGH FRIDAY, AND TO CLOSE THE OFFICE ON SATURDAY.

SECTION 5 OF THE ACT OF MARCH 3, 1893, 27 STAT. 715 AS AMENDED BY SECTION 7 OF THE ACT OF MARCH 15, 1898, 30 STAT. 316, REQUIRING "NOT LESS THAN 7 HOURS OF LABOR EACH DAY, EXCEPT SUNDAYS AND DAYS DECLARED PUBLIC HOLIDAYS BY LAW OR EXECUTIVE ORDER," WHICH WAS HELD IN DECISION OF JUNE 4, 1936, 15 COMP. GEN. 1056, 1058, CITED BY YOU, TO REQUIRE "WORK ON 6 DAYS PER WEEK, EXCEPT WHEN 1 OF THE 6 DAYS IS A HOLIDAY DECLARED BY LAW OR EXECUTIVE ORDER," IS NOT APPLICABLE TO EMPLOYEES IN THE FIELD SERVICE. OTHER THAN THE 8-HOUR LAW, AS AMENDED BY THE ACT OF MARCH 3, 1913, 37 STAT. 726, PROHIBITING THE EMPLOYMENT OF MECHANICS, LABORERS, AND THOSE IN SIMILAR OCCUPATIONS FOR MORE THAN 8 HOURS ON ANY 1 CALENDAR DAY, EXCEPT IN CASE OF EXTRAORDINARY EMERGENCY, THERE IS NO STATUTE FIXING EITHER A MINIMUM OR MAXIMUM NUMBER OF HOURS WORK REQUIRED OF FIELD EMPLOYEES PER DAY OR PER WEEK. IT IS UNDERSTOOD THE 8-HOUR LAW IS NOT HERE INVOLVED.

ACCORDINGLY, IF ADMINISTRATIVELY DETERMINED TO BE NECESSARY IN THE PRESENT INSTANCE, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE ESTABLISHMENT OF A 5-DAY WEEK TOUR OF DUTY FOR THE COOPERATIVE EMPLOYEES IN QUESTION.