A-91188, DECEMBER 21, 1937, 17 COMP. GEN. 523

A-91188: Dec 21, 1937

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GRANTING THEM "SUCH LEAVE OF ABSENCE WITH PAY AS IS GRANTED THE REGULAR ANNUAL EMPLOYEES OF THE DISTRICT OF COLUMBIA FOR SUCH LEGAL HOLIDAYS. " ARE NOT ENTITLED TO COMPENSATION FOR LEGAL HOLIDAYS OCCURRING OUTSIDE THEIR REGULAR TOUR OF DUTY. IF SERVICE IS REQUIRED ON A NONWORKDAY IN ADDITION TO THE REGULAR 40-HOUR TOUR OF DUTY. REQUIRES THAT THE OVERTIME COMPENSATION BE COMPUTED ON THE BASIS OF "NOT LESS THAN TIME AND ONE HALF" WITHOUT REGARD TO WHETHER SUCH NONWORKDAY IS A LEGAL HOLIDAY. IS AS FOLLOWS: THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA DESIRE TO SUBMIT FOR YOUR EARLY CONSIDERATION AND ADVICE THE QUESTION OF WHETHER CERTAIN DISTRICT OF COLUMBIA PER DIEM EMPLOYEES WHOSE SALARY WAS ESTABLISHED BY ORDER OF THE COMMISSIONERS FEBRUARY 16.

A-91188, DECEMBER 21, 1937, 17 COMP. GEN. 523

SUNDAYS AND HOLIDAYS - HOLIDAYS - COMPENSATION - FORTY-HOUR WEEK PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA SUBJECT TO THE 40 HOUR WEEK LAW--- ACT OF MARCH 28, 1934, 48 STAT) 522--- WHILE ENTITLED, REGARDLESS OF THE PERFORMANCE OF SERVICE, TO COMPENSATION FOR LEGAL HOLIDAYS OCCURRING WITHIN THE REGULAR 40-HOUR WEEK TOUR OF DUTY, UNDER THE ACT OF JUNE 5, 1920, 41 STAT. 873, GRANTING THEM "SUCH LEAVE OF ABSENCE WITH PAY AS IS GRANTED THE REGULAR ANNUAL EMPLOYEES OF THE DISTRICT OF COLUMBIA FOR SUCH LEGAL HOLIDAYS," ARE NOT ENTITLED TO COMPENSATION FOR LEGAL HOLIDAYS OCCURRING OUTSIDE THEIR REGULAR TOUR OF DUTY, ON WHICH THEY PERFORM NO SERVICE, BUT IF SERVICE IS REQUIRED ON A NONWORKDAY IN ADDITION TO THE REGULAR 40-HOUR TOUR OF DUTY, THE ACT OF MARCH 28, 1934, SUPRA, REQUIRES THAT THE OVERTIME COMPENSATION BE COMPUTED ON THE BASIS OF "NOT LESS THAN TIME AND ONE HALF" WITHOUT REGARD TO WHETHER SUCH NONWORKDAY IS A LEGAL HOLIDAY. STATUTES AND DECISIONS RELATING TO PER DIEM EMPLOYEES OF THE FEDERAL GOVERNMENT, DISTINGUISHED. ED BY THE 40-HOUR WEEK STATUTE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, DECEMBER 21, 1937:

YOUR LETTER OF DECEMBER 14, 1937, IS AS FOLLOWS:

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA DESIRE TO SUBMIT FOR YOUR EARLY CONSIDERATION AND ADVICE THE QUESTION OF WHETHER CERTAIN DISTRICT OF COLUMBIA PER DIEM EMPLOYEES WHOSE SALARY WAS ESTABLISHED BY ORDER OF THE COMMISSIONERS FEBRUARY 16, 1937, PURSUANT TO THE ACT OF MARCH 28, 1934 (48 STAT. 552), AND IN ACCORDANCE WITH YOUR DECISIONS OF JANUARY 8, 1937 (16 COMP. GEN. 660), SHOULD RECEIVE IN ADDITION TO THEIR WEEKLY PAY, COMPENSATION FOR DECEMBER 25, 1937, AND JANUARY 1, 1938, BOTH OF SAID LEGAL HOLIDAYS BEING NONWORKDAYS.

IN YOUR DECISION TO THE COMMISSIONERS YOU ADVISE THAT "THE 40-HOUR WEEK STATUTORY PROVISIONS ARE NOT SELF-EXECUTING, THE STATUTE PROVIDING THAT THE SCHEDULES OF WAGES IN EFFECT JUNE 1, 1932, ON A BASIS OF 44 OR 48-HOUR WEEK, SHALL BE RE-ESTABLISHED ON A 40-HOUR WEEK BASIS, WITH PROVISIONS FOR OVERTIME AT THE RATE OF TIME AND ONE-HALF.' IN THE SAME DECISION YOU POINTED OUT THAT "THE SATURDAY HALF-HOLIDAY LAW HAS NO APPLICATION TO EMPLOYEES PAID ON A 40-HOUR WEEK BASIS UNDER THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934.'

IN THIS CONNECTION THE NON-PRODUCTIVE TIME FOR WHICH PER DIEM EMPLOYEES ARE IN A PAY STATUS HAS INCREASED FROM 7 PERCENT IN 1930, TO 23 PERCENT IN 1937, DUE TO THE SATURDAY HALF-HOLIDAY LAW, THE LEAVE LAWS, AND THE 40- HOUR WEEK. IN OTHER WORDS, TO COMPENSATE FOR THE INCREASE IN NON- PRODUCTIVE TIME, APPROPRIATIONS INTENDED FOR PER DIEM WORKERS WOULD HAVE TO BE INCREASED 37 PERCENT OVER THE OLD BASIS, BUT AS A MATTER OF FACT NO INCREASE HAS BEEN PROVIDED. TO ILLUSTRATE, IN 1930 DISTRICT PER DIEM EMPLOYEES ACTUALLY WORKED 291 DAYS. AFTER THE PASSAGE OF THE SATURDAY HALF-HOLIDAY LAW, 265 DAYS; AFTER THE PASSAGE OF THE LEAVE LAWS, 239 DAYS; AND AFTER FEBRUARY 27, 1937 (THE EFFECTIVE DATE UNDER THE 40-HOUR-WEEK LAW), 212 DAYS. SEE IN THIS CONNECTION MEMORANDUM QUOTED ON PAGES 192 AND 193 OF THE HEARINGS BEFORE THE SUB-COMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, ON THE 1938 DISTRICT OF COLUMBIA APPROPRIATION BILL.

IN YOUR DECISION TO THE SECRETARY OF THE NAVY DATED APRIL 12, 1935 (14 COMP. GEN. 762), YOU HELD THAT "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, 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 THESE HOLIDAYS.' FURTHER, THAT "IF WORK IS PERFORMED ON HOLIDAYS, IN SUCH CASES PER DIEM EMPLOYEES ARE ENTITLED TO TWICE THEIR REGULAR COMPENSATION.' THE EFFECT OF THIS DECISION IS TO INCREASE THE NON PRODUCTIVE TIME OF THESE EMPLOYEES WITH CORRESPONDING DEPLETED APPROPRIATION.

YOUR PARTICULAR ATTENTION IS DIRECTED TO THE FACT THAT THE ACT OF MARCH 28, 1934, SUPRA, IS SILENT ON THE SUBJECT OF HOLIDAY LEAVE. IN FACT, YOU ADVISED THE COMMISSIONERS UNDER DATE OF DECEMBER 14, 1936 (16 COMP. GEN. 583), THAT "THERE IS NO SPECIAL STATUTE AUTHORIZING TIME OFF WITH PAY FOR POLICEMEN AND FIREMEN OF THE DISTRICT OF COLUMBIA ON SATURDAY AFTERNOONS, OR ON OTHER LEGAL HOLIDAYS IN THE DISTRICT OF COLUMBIA, OR ON DAYS IN LIEU THEREOF.'

TO INCREASE FURTHER THE NON-PRODUCTIVE TIME AND THE CONSEQUENT DRAIN ON THE APPROPRIATIONS, YOU ADVISED THE SECRETARY OF THE NAVY (15 COMP. GEN. 700) THAT "PER DIEM EMPLOYEES ON A 40-HOUR, 5-DAY WEEK SCHEDULE ARE ENTITLED TO GRATUITY PAY FOR LEGAL HOLIDAYS FALLING ON A NON-WORK DAY.' THIS CONCLUSION APPARENTLY WAS BASED UPON THE FACT THAT BY EARLIER STATUTES, PER DIEM EMPLOYEES WERE ENTITLED TO LEGAL HOLIDAYS. IN 15 COMP. GEN. 809, REFERENCE IS MADE TO THE FACT THAT THE SECRETARY OF THE NAVY HAD A 20 PERCENT INCREASE IN THE TOTAL WAGES OF BONA FIDE PER DIEM EMPLOYEES IN THE NAVY YARD AND NAVAL STATIONS FOR THE WORK WEEK COMMENCING MONDAY, FEBRUARY 17, AND IN THAT DECISION YOU CONCLUDED BY HOLDING THAT IF NO WORK IS PERFORMED ON A SATURDAY, SAID EMPLOYEES ARE NOT PAID FOR THE DAY, BUT FOR SATURDAY, FEBRUARY 22, 1936, A LEGAL HOLIDAY, THEY WERE ENTITLED TO ONE DAY'S GRATUITY PAY BUT NOT TO DOUBLE PAY UNLESS WORK WAS ACTUALLY PERFORMED ON THAT DAY.

IN VIEW OF YOUR DECISION TO THE SECRETARY OF THE TREASURY (13 COMP. GEN. 307), IT WOULD APPEAR THAT IN THE INTERPRETATION OF THE 40-HOUR WEEK, CLASSIFIED EMPLOYEES DO NOT RECEIVE THE SAME CONSIDERATION AS PER DIEM EMPLOYEES SUBJECT TO THE ACT OF MARCH 28, 1934. IN THAT DECISION YOU HELD, QUOTING FROM THE SYLLABUS:

"IF THE HOURS OF LABOR OF EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING PAID FOR ON AN HOURLY BASIS UNDER THE TERMS OF THE CLASSIFICATION ACT, ARE LIMITED TO 40 HOURS PER WEEK ON 5 DAYS PER WEEK, THEY WOULD BE ENTITLED TO BE PAID ONLY FOR THE 40 HOURS WORKED AT THE REGULAR RATE PER HOUR AS FIXED BY THE CLASSIFICATION ACT, AS AMENDED.'

IT IS BELIEVED THAT IT WOULD BE LOGICAL TO HOLD, AS WAS DONE IN 16 COMP. GEN. 603, THAT THERE IS NO AUTHORITY IN THE LEAVE STATUTE TO CONVERT THE STATUTORY ALLOWANCE OF "DAYS" LEAVE TO A BASIS OF 40 HOURS PER WEEK. THAT DECISION YOU HELD,"THE SATURDAY HALF-HOLIDAY LAW MAY BE REGARDED AS NOT APPLICABLE TO EMPLOYEES SUBJECT TO THE 40-HOUR WEEK LAW, SUPRA.' THE CONGRESS, BY IMPLICATION, AT LEAST, MUST HAVE INTENDED TO EXCLUDE THE SATURDAY HALF-HOLIDAY LAW, OF MARCH 3, 1931, AND OTHER LEGAL HOLIDAYS, FROM THE 40-HOUR, 5-DAY WEEK REQUIREMENT.

SECTION 7 OF THE ACT OF JUNE 5, 1920 (41 STAT. 873), PROVIDES:

"HEREAFTER ALL PER DIEM EMPLOYEES AND DAY LABORERS OF THE DISTRICT OF COLUMBIA WHO HAVE BEEN REGULARLY EMPLOYED FOR FIFTEEN WORKING DAYS NEXT PRECEDING SUCH DAYS AS ARE LEGAL HOLIDAY IN THE DISTRICT OF COLUMBIA, AND WHOSE EMPLOYMENT CONTINUES THROUGH AND BEYOND SAID LEGAL HOLIDAYS, SHALL BE GRANTED SUCH LEAVE OF ABSENCE WITH PAY AS IS GRANTED THE REGULAR ANNUAL EMPLOYEES OF THE DISTRICT OF COLUMBIA FOR SAID LEGAL HOLIDAYS.'

THE PRINCIPLE ENUNCIATED IN YOUR DECISIONS RELATIVE TO THIS MATTER APPEARS TO BE CONSISTENT, WITH THE EXCEPTION PERHAPS OF 16 COMP. GEN. 600, ID. 581, THAT PER DIEM EMPLOYEES SUBJECT TO THE ACT OF MARCH 28, 1934, ARE ENTITLED TO THEIR REGULAR COMPENSATION FOR LEGAL HOLIDAYS, DOUBLE COMPENSATION FOR HOLIDAYS WHEN WORK IS PERFORMED, AND GRATUITY PAY FOR LEGAL HOLIDAYS FALLING ON NONWORKDAYS, THEREBY BURDENING APPROPRIATIONS ALREADY INSUFFICIENT UNDER PROVISIONS OF LAW WHICH ITIS FAIR TO ASSUME WERE REPEALED BY IMPLICATION.

THE LEAVE ACT OF MARCH 24, 1936, GRANTS 26 DAYS' ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, BUT DOES NOT GRANT ADDITIONAL DAY'S LEAVE WITH PAY. IT SIMPLY EXCLUDES FROM THE COMPUTATION OF THE 26 DAYS' LEAVE THOSE SUNDAYS AND HOLIDAYS. IT WOULD APPEAR EQUALLY PROPER TO CONSIDER THE HOLIDAY LAW IN THE SAME MANNER.

APPROXIMATELY 70 PERCENT OF THE 3,000 DISTRICT OF COLUMBIA PER DIEM EMPLOYEES ARE ENGAGED ON A 40-HOUR, 5-DAY WEEK FROM MONDAY TO FRIDAY, INCLUSIVE, FOR WHICH THEY RECEIVE 48 HOURS' PAY FOR 40 HOURS' WORK, AND IF SUCH WORKERS ARE TO RECEIVE A GRATUITY FOR SATURDAY, DECEMBER 25, AND SATURDAY, JANUARY 1, THEY WILL RECEIVE 56 HOURS' PAY FOR 40 HOURS' WORK, AND IF THEY WORK ON THOSE DAYS, UNDER YOUR RULING THEY WILL RECEIVE 64 HOURS' PAY FOR EACH WEEK. THE OTHER 30 PERCENT UNDOUBTEDLY WILL BE REQUIRED TO WORK ON THESE TWO LEGAL HOLIDAYS, FOR WHICH THEY WILL BE PAID, UNDER YOUR RULING, TWICE THEIR REGULAR RATE OF COMPENSATION, ALL OF WHICH HAS THE EFFECT OF FURTHER DEPLETING THE APPROPRIATIONS BEYOND THE EXTENT PROVIDED BY CONGRESS, BY APPROXIMATELY $40,000 FOR THESE TWO HOLIDAYS ALONE, FOR WHICH NO SERVICES ARE RENDERED.

1.ARE THESE PER DIEM EMPLOYES WHO ARE SUBJECT TO THE 40-HOUR WEEK LAW ENTITLED TO GRATUITY PAY FOR DECEMBER 25, 1937, AND JANUARY 1, 1938, FALLING ON NONWORKDAYS?

2. ARE THESE EMPLOYEES ENTITLED TO DOUBLE COMPENSATION IF REQUIRED TO WORK ON THESE HOLIDAYS--- NONWORKDAYS?

3. IF PER DIEM EMPLOYEES ON A 5-DAY WEEK ARE REQUIRED TO WORK OVERTIME ON A HOLIDAY, ON WHAT BASIS SHOULD THE RATE OF OVERTIME PAY BE COMPUTED?

THE DECISIONS CITED IN YOUR LETTER HAVE LITTLE, IF ANY, BEARING ON THE PAY STATUS OF PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA FOR LEGAL HOLIDAYS.

THE THREE STATUTES GRANTING GRATUITY PAY FOR CERTAIN HOLIDAYS TO PER DIEM EMPLOYEES OF THE FEDERAL GOVERNMENT, TO-WIT, THE ACTS OF JANUARY 6, 1885, 23 STAT. 516, FEBRUARY 23, 1887, 24 STAT. 644, AND JUNE 28, 1894, 28 STAT. 96, ARE NOT APPLICABLE TO PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA FOR THE REASON THAT EMPLOYEES OF THE DISTRICT OF COLUMBIA ARE NOT MENTIONED IN SAID ACTS. THE CONGRESS HAS LEGISLATED SPECIFICALLY WITH REGARD TO THE HOLIDAY STATUS OF SUCH EMPLOYEES BY THE ACTS OF MARCH 3, 1917, 39 STAT. 1045, AUGUST 31, 1918, 40 STAT. 953, AND JUNE 5, 1920, 41 STAT. 873, THE LATEST OF THESE STATUTES, QUOTED IN YOUR LETTER, HAVING SUPERSEDED THE EARLIER TWO STATUTES.

THE DISTINCTION BETWEEN THE HOLIDAY STATUTES APPLICABLE TO PER DIEM EMPLOYEES OF THE FEDERAL GOVERNMENT AND THE STATUTE APPLICABLE TO PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA GOVERNMENT IS THAT THE FORMER GRANT A GRATUITY OF A DAY'S PAY FOR EACH OF THE LEGAL HOLIDAYS THEREIN MENTIONED, WHEREAS THE LATTER MERELY GRANTS "SUCH LEAVE OF ABSENCE WITH PAY AS IS GRANTED THE REGULAR ANNUAL EMPLOYEES OF THE DISTRICT OF COLUMBIA FOR SUCH LEGAL HOLIDAYS.' THIS LEAVE FOR HOLIDAYS UNDER THE DISTRICT OF COLUMBIA STATUTE IS REQUIRED TO BE EXCLUDED IN COMPUTING THE 26 DAYS' ANNUAL LEAVE OF ABSENCE WITH PAY GRANTED TO ALL PERMANENT EMPLOYEES "EXCLUSIVE OF SUNDAYS AND HOLIDAYS" BY THE ACT OF MARCH 14, 1936, 49 STAT. 1161.

THE 40-HOUR WEEK STATUTE, SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, IS AS FOLLOWS:

THE WEEKLY COMPENSATION, MINUS ANY GENERAL PERCENTAGE REDUCTION WHICH MAY BE PRESCRIBED BY ACT OF CONGRESS, FOR THE SEVERAL TRADES AND OCCUPATIONS, WHICH IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES, SHALL BE REESTABLISHED AND MAINTAINED AT RATES NOT LOWER THAN NECESSARY TO RESTORE THE FULL WEEKLY EARNINGS OF SUCH EMPLOYEES IN ACCORDANCE WITH THE FULL- TIME WEEKLY EARNINGS UNDER THE RESPECTIVE WAGE SCHEDULES IN EFFECT ON JUNE 1, 1932: PROVIDED, THAT THE REGULAR HOURS OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE HALF.

THIS STATUTES IS NOT INCONSISTENT WITH, AND DOES NOT SUPERSEDE OR RENDER INOPERATIVE, THE HOLIDAY STATUTE OF 1920 APPLICABLE TO PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA.

AFTER QUOTING THE ACT OF AUGUST 31, 1918, SUPRA, WHICH IS THE SAME AS THE CURRENT STATUTE OF 1920 EXCEPT THAT THE WORD "THROUGH" HAS BEEN ADDED, APPLICABLE TO PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA, THE DECISION OF APRIL 15, 1922, 1 COMP. GEN. 572, HELD AS FOLLOWS:

NOVEMBER 11, 1921, WAS A LEGAL HOLIDAY IN THE DISTRICT OF COLUMBIA. SINCE THE ACT QUOTED PUT PER DIEM EMPLOYEES ON THE SAME FOOTING AS PER ANNUM EMPLOYEES, AS FAR AS LEAVE OF ABSENCE WITH PAY ON LEGAL HOLIDAYS IS CONCERNED, THE DECISION THAT PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA ARE ENTITLED TO PAY FOR NOVEMBER 11, 1921, SUBJECT TO THE REQUIREMENTS OF THE ACT OF AUGUST 31, 1918, IS APPROVED.

IF THE DUTIES OF A PER ANNUM EMPLOYEE HAD BEEN SUCH THAT HE COULD NOT BE SPARED ON NOVEMBER 11, 1921, AND HE HAD BEEN REQUIRED TO WORK ON THAT DAY, HE WOULD NOT HAVE BEEN ENTITLED TO ANY EXTRA PAY FOR HIS SERVICES. SINCE THE PER DIEM EMPLOYEES ARE ON THE SAME BASIS AS THE PER ANNUM EMPLOYEES, AND SINCE THERE IS NO STATUTORY AUTHORITY TO PAY THE PER DIEM EMPLOYEES FOR NOVEMBER 11, 1921, ANY MORE THAN ONE DAY'S PAY, THE DECISION THAT A PER DIEM EMPLOYEE WHO WORKED ON NOVEMBER 11, 1921, IS ENTITLED TO DOUBLE PAY FOR THAT DAY IS DISAPPROVED.

SEE ALSO 25 COMP. DEC. 236 AND 1 COMP. GEN. 551. THE RULES STATED IN THE CITED DECISIONS REMAIN APPLICABLE WITH REGARD TO ANY HOLIDAY OCCURRING WITHIN THE REGULAR 40-HOUR WEEK TOUR OF DUTY OF PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA, BUT IF WORK IS REQUIRED BY SUCH EMPLOYEES ON A HOLIDAY IN ADDITION TO THE REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK, THE ACT OF MARCH 28, 1934, REQUIRES THE PAYMENT OF OVERTIME COMPENSATION AT THE RATE OF "NOT LESS THAN TIME AND ONE HALF.'

QUESTION 1 IS ANSWERED IN THE NEGATIVE.

REFERRING TO QUESTIONS 2 AND 3, IF WORK IS REQUIRED ON SATURDAY, DECEMBER 25, 1937, AND SATURDAY, JANUARY 1, 1938, WHICH ARE NONWORKDAYS, IN ADDITION TO THE 40-HOUR REGULAR TOUR OF DUTY, THE FACT THAT THE DAYS ARE HOLIDAYS SHOULD BE DISREGARDED AND THE RATE OF OVERTIME COMPENSATION SHOULD BE COMPUTED ON THE BASIS OF "NOT LESS THAN TIME AND ONE HALF" AS REQUIR ..END :