A-95376, JUNE 15, 1938, 17 COMP. GEN. 1078

A-95376: Jun 15, 1938

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ARE REQUIRED. IS APPLICABLE TO ALL CLASSES OF EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE REGARDLESS OF THE HOURS OF WORK PER WEEK OR BASIS OF PAYMENT OF COMPENSATION. IS AS FOLLOWS: THERE HAS BEEN RECEIVED A COPY OF YOUR DECISION DATED MAY 4. A QUESTION HAS ARISEN AS TO WHETHER THE DECISION IS FOR APPLICATION IN THE GOVERNMENT PRINTING OFFICE. PROVISION WAS MADE BY LAW FOR "VACATIONS OF GOVERNMENT EMPLOYEES AND FOR OTHER PURPOSES" AND "FOR STANDARDIZED SICK LEAVE. IT IS. THAT EXECUTIVE ORDERS NOS. 7845 AND 7846 PRESCRIBING REGULATIONS FOR ANNUAL AND SICK LEAVE WERE PROMULGATED PURSUANT TO THE PROVISIONS OF THE SAID ACTS AND IN NO WAY AMENDED OR ABROGATED ANY OF THE PROVISIONS THEREOF. THE EMPLOYEES ARE PAID ON AN HOURLY BASIS AND AFTER HAVING COMPLETED 40 HOURS.

A-95376, JUNE 15, 1938, 17 COMP. GEN. 1078

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS, MARCH 14, 1936 - CHARGES FOR ADMINISTRATIVE NONWORK DAYS OCCURRING WITHIN PERIOD OF LEAVE - GOVERNMENT PRINTING OFFICE THE DECISION OF MAY 4, 1938, A-94536, 17 COMP. GEN. 906, REGARDING NAVY DEPARTMENT PER DIEM EMPLOYEES, TO THE EFFECT THAT NONWORK DAYS ADMINISTRATIVELY FIXED, NOT BEING SUNDAYS OR HOLIDAYS, ARE REQUIRED, UNDER THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, RESPECTIVELY, AND THE LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, TO BE CHARGED AS DAYS OF ANNUAL AND SICK LEAVE WHEN FALLING WITHIN A PERIOD OF LEAVE, IS APPLICABLE TO ALL CLASSES OF EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE REGARDLESS OF THE HOURS OF WORK PER WEEK OR BASIS OF PAYMENT OF COMPENSATION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PUBLIC PRINTER, JUNE 15, 1938:

YOUR LETTER OF JUNE 3, 1938, IS AS FOLLOWS:

THERE HAS BEEN RECEIVED A COPY OF YOUR DECISION DATED MAY 4, 1938 (A- 94536), ADDRESSED TO THE SECRETARY OF THE NAVY, INTERPRETING THE ANNUAL AND SICK LEAVE REGULATIONS PROMULGATED BY EXECUTIVE ORDERS NOS. 7845 AND 7846, AS THEY APPLY TO EMPLOYEES ON A FIVE-DAY WEEK AND PAID ON A PER-DIEM BASIS.

WHILE THE SAID DECISION DOES NOT SPECIFICALLY REFER TO EMPLOYEES ON A 40- HOUR WEEK PAID ON AN HOURLY BASIS, IN VIEW OF THE SIMILARITY IN THE PAY STATUS OF THE TWO CLASSES OF EMPLOYEES, A QUESTION HAS ARISEN AS TO WHETHER THE DECISION IS FOR APPLICATION IN THE GOVERNMENT PRINTING OFFICE.

BY THE ACTS APPROVED MARCH 14, 1936 (49 STAT. 1161 AND 49 STAT. 1162), PROVISION WAS MADE BY LAW FOR "VACATIONS OF GOVERNMENT EMPLOYEES AND FOR OTHER PURPOSES" AND "FOR STANDARDIZED SICK LEAVE, AND EXTENDED TO ALL CIVIL EMPLOYEES.' THE ACT APPROVED MARCH 14, 1936 (49 STAT. 1161), AUTHORIZING THE GRANTING OF ANNUAL LEAVE PROVIDES IN PART AS FOLLOWS:

"* * * ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, REGARDLESS OF THEIR TENURE, IN ADDITION TO ANY ACCUMULATED LEAVE SHALL BE ENTITLED TO 26 DAYS ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR EXCLUSIVE OF SUNDAYS AND HOLIDAYS.'

THE ACT APPROVED MARCH 14, 1936 (49 STAT. 1162), PERTAINING TO SICK LEAVE PROVIDES IN PART AS FOLLOWS:

"* * * ACCUMULATED SICK LEAVE WITH PAY AT THE RATE OF 1 1/4 DAYS PER MONTH SHALL BE GRANTED TO ALL CIVILIAN OFFICERS AND EMPLOYEES, THE TOTAL ACCUMULATION NOT TO EXCEED 90 DAYS.'

BOTH OF THE SAID ACTS CONTAIN PROVISIONS THAT THE AUTHORIZED LEAVE OF ABSENCE "SHALL BE ADMINISTERED UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE * * *.' IT IS, THEREFORE, UNDERSTOOD FROM THE LAWS HEREIN CITED:

1. THAT AN EMPLOYEE SHALL BE ENTITLED TO 26 DAYS ANNUAL LEAVE WITH PAY;

2. THAT SICK LEAVE SHALL BE GRANTED WITH PAY TO ALL CIVILIAN OFFICERS AND EMPLOYEES;

3. THAT EXECUTIVE ORDERS NOS. 7845 AND 7846 PRESCRIBING REGULATIONS FOR ANNUAL AND SICK LEAVE WERE PROMULGATED PURSUANT TO THE PROVISIONS OF THE SAID ACTS AND IN NO WAY AMENDED OR ABROGATED ANY OF THE PROVISIONS THEREOF.

SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF MARCH 28, 1934, AUTHORIZED THE PLACING OF THE WORK OF MANY OF THE EMPLOYEES IN THE GOVERNMENT PRINTING OFFICE ON A 40-HOUR, FIVE-DAY WEEK BASIS. THE WORK WEEK USUALLY BEGINS ON MONDAY AND ENDS AT THE CLOSE OF BUSINESS ON FRIDAY. THE EMPLOYEES ARE PAID ON AN HOURLY BASIS AND AFTER HAVING COMPLETED 40 HOURS--- WORK ARE NOT REQUIRED TO PERFORM ADDITIONAL HOURS OF WORK DURING THE GIVEN WEEK UNLESS PLACED IN AN OVERTIME STATUS. THEREFORE, THE EMPLOYEES ARE NOT PAID FOR WORK IN SATURDAYS OR SUNDAYS AND NEITHER OF THESE DAYS IS A WORK DAY.

IN YOUR DECISION APPLYING TO PER DIEM EMPLOYEES AND REFERRED TO HEREIN, IT IS STATED THAT AN EMPLOYEE ABSENT ON ANNUAL LEAVE FROM APRIL 18 TO APRIL 30, 1938, INCLUSIVE, SHOULD BE CHARGED WITH 11 DAYS ANNUAL LEAVE. ONE OF THESE DAYS TO BE CHARGED WOULD BE SATURDAY OR A DAY UPON WHICH AN EMPLOYEE OF THIS OFFICE WOULD NOT BE REQUIRED TO WORK AND FOR WHICH THE EMPLOYEE IS NOT PAID.

IF YOUR DECISION IS FOR APPLICATION IN THE GOVERNMENT PRINTING OFFICE, THAT IS, IF ALL CALENDAR DAYS WITHIN A PERIOD OF ABSENCE ON ANNUAL LEAVE ARE TO BE COUNTED AS DAYS OF LEAVE EXCEPT THAT SUNDAYS AND HOLIDAYS ARE NOT TO BE SO COUNTED, IT APPEARS THAT AN EMPLOYEE WOULD NOT RECEIVE 26 DAYS ANNUAL LEAVE WITH PAY AS PROVIDED FOR BY THE LAW MENTIONED ABOVE; FOR EXAMPLE:

1. AN EMPLOYEE PAID ON AN HOURLY BASIS ABSENT ON ANNUAL LEAVE DURING THE ENTIRE MONTH OF JUNE 1938 WOULD BE CHARGED WITH 26 DAYS ANNUAL LEAVE BUT WOULD ONLY BE PAID FOR 22 DAYS. THEREFORE, HE WOULD NOT RECEIVE PAY FOR THE FOUR ADDITIONAL DAYS CHARGED AGAINST HIS LEAVE. THIS WOULD APPEAR TO BE CONTRARY TO THE WORDING OF THE ACT WHICH STATES THAT AN EMPLOYEE "SHALL BE ENTITLED TO 26 DAYS ANNUAL LEAVE WITH PAY.'

2. AN EMPLOYEE WHO WORKS TEN HOURS EACH DAY, MONDAY THROUGH WEDNESDAY (30 HOURS) AND IS ABSENT ON ANNUAL LEAVE THURSDAY TO MONDAY, INCLUSIVE, WOULD BE CHARGED WITH FOUR DAYS ANNUAL LEAVE EVEN THOUGH HE RECEIVES PAY FOR ONLY 2 1/4 DAYS DURING THE PERIOD OF LEAVE.

AS THE FOREGOING CONDITIONS ALSO ARISE IN THE APPLICATION OF THE SICK LEAVE LAW, EXAMPLES CONCERNING SICK LEAVE ARE NOT INCLUDED.

THE APPARENT THEORY OF LEAVE BEING THAT IT AUTHORIZES THE OFFICE TO PAY AN EMPLOYEE FOR DAYS OF ABSENCE FROM HIS DUTIES WHEN HE WOULD OTHERWISE BE REQUIRED TO WORK IN ORDER TO BE IN A PAY STATUS, IT WOULD SEEM THAT LEAVE COULD NOT BE CHARGED OR GRANTED UNLESS AN EMPLOYEE WAS ABSENT FROM HIS DUTIES. IT REASONABLY FOLLOWS THAT AN EMPLOYEE IS NOT ABSENT FROM HIS DUTIES ON THE NONWORK DAYS HERE IN QUESTION, THERE BEING NO DUTIES FOR HIM TO PERFORM ON THOSE DAYS.

I HAVE STUDIED YOUR DECISION VERY CAREFULLY AND TRUST THAT YOU CAN SEE YOUR WAY CLEAR TO HOLD THAT IT IS NOT APPLICABLE TO THE EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, AS I CANNOT FEEL JUSTIFIED IN AUTHORIZING CHARGES TO THE EMPLOYEES' LEAVE ACCOUNTS THAT WOULD RESULT IN GIVING THEM LESS LEAVE THAN IT WAS, IN MY OPINION, THE CLEAR PURPOSE AND INTENT OF THE LAW TO GRANT.

THE DECISION OF MAY 4, 1938, A-94536, 17 COMP. GEN. 906, TO THE SECRETARY OF THE NAVY, TO THE EFFECT THAT NONWORK DAYS ADMINISTRATIVELY FIXED, NOT BEING SUNDAYS OR HOLIDAYS, ARE REQUIRED TO BE CHARGED AS DAYS OF ANNUAL AND SICK LEAVE WHEN FALLING WITHIN A PERIOD OF LEAVE, IS APPLICABLE TO ALL CLASSES OF EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE REGARDLESS OF THE HOURS OF WORK PER WEEK OR BASIS OF PAYMENT OF COMPENSATION.

THE PROVISIONS OF THE LEAVE ACTS MAKE NO DISTINCTION BETWEEN CLASSES OF EMPLOYEES BASED EITHER ON THE NUMBER OF HOURS OR DAYS PER WEEK THEY ARE REQUIRED TO WORK OR ON THE BASIS OF UNIT OF COMPENSATION, THAT IS, WHETHER ON THE BASIS OF THE YEAR, WEEK, DAY, HOUR, OR PIECE. SAID ACTS WERE NOT INTENDED TO AND DO NOT PURPORT TO INCREASE THE ANNUAL, MONTHLY, OR WEEKLY COMPENSATION OF ANY CLASS OF EMPLOYEES. THEY WERE INTENDED TO AND DO MERELY AUTHORIZE EMPLOYEES TO BE EXCUSED FROM WORK FOR THE PRESCRIBED LENGTH OF TIME STATED THEREIN WITHOUT LOSS OF PAY FOR SUCH PERIOD. THE AUTHORIZATION FOR ABSENCE "WITH PAY" DOES NOT MEAN ADDITIONAL PAY BUT MEANS EXACTLY THE SAME PAY THEY WOULD HAVE RECEIVED HAD THEY REMAINED IN A DUTY STATUS DURING THE PERIOD OF ABSENCE GRANTED PURSUANT TO THE STATUTES AND THE REGULATIONS ISSUED THEREUNDER. THE BASIS FOR COMPUTING LEAVE TIME IS THE CALENDAR DAY IN ALL CASES AND EACH CALENDAR DAY WITHIN A PERIOD OF LEAVE MUST BE CHARGED AS LEAVE WITH THE ONE EXCEPTION OF SUNDAYS AND HOLIDAYS FALLING WITHIN A PERIOD OF ANNUAL LEAVE GRANTED TO EMPLOYEES OTHER THAN TEMPORARY. A NONWORK DAY ADMINISTRATIVELY FIXED IS NEITHER A SUNDAY NOR A HOLIDAY AND SECTION 11 OF THE ANNUAL LEAVE REGULATIONS PROPERLY AND CLEARLY EXCLUDES IT FROM BEING SO REGARDED.

REFERRING TO THE FIRST EXAMPLE STATED IN YOUR LETTER, THE EMPLOYEE SHOULD BE PAID FOR THE ENTIRE MONTH OF JUNE 1938, WHEN ON AUTHORIZED ANNUAL LEAVE FOR THE ENTIRE MONTH (26 LEAVE DAYS) EXACTLY THE SAME AMOUNT OF COMPENSATION HE WOULD HAVE RECEIVED HAD HE BEEN IN DUTY STATUS AND PERFORMED THE WORK REGULARLY REQUIRED OF HIM DURING SAID MONTH. IN OTHER WORDS, HE GETS A MONTH'S VACATION WITH PAY WHICH IS EXACTLY WHAT THE STATUTE CONTEMPLATED. TO PAY THE EMPLOYEE IN QUESTION 4 ADDITIONAL DAYS' COMPENSATION SIMPLY BECAUSE HE IS ON LEAVE, OR AUTHORIZE HIM TO BE ABSENT FROM DUTY WITH PAY 4 ADDITIONAL DAYS IN SOME OTHER MONTH, WOULD CONTRAVENE THE STATUTE AND THE REGULATIONS PRESCRIBED BY THE PRESIDENT.

THE STATEMENT OF THE SECOND EXAMPLE SHOULD SERVE TO SHOW HOW UNREASONABLE WOULD BE THE APPLICATION OF THE LAW AND REGULATIONS FOR WHICH YOU APPEAR TO CONTEND. UNDER SUCH A RULE A FULL-TIME EMPLOYEE ON A 40-HOUR WEEK WHO WORKS ONLY 4 DAYS PER WEEK COULD BE ABSENT FROM DUTY WITH FULL PAY FOR 6 WEEKS AND 2 DAYS EACH YEAR. IF FIND NOTHING IN THE LAW TO AUTHORIZE ANY SUCH RULE.