A-97264, AUGUST 23, 1938, 18 COMP. GEN. 191

A-97264: Aug 23, 1938

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IS REPEALED BY THE SAID RESOLUTION. WILL BE ENTITLED ONLY TO ONE DAY'S PAY. WHO HAVE WORKED 32 HOURS FROM MONDAY TO THURSDAY INCLUSIVE. ARE ENTITLED. - WHETHER WORK IS PERFORMED THEREON OR NOT. ARE NOT ENTITLED. IS AS FOLLOWS: YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS CONCERNING EMPLOYEES OF THIS OFFICE WHO ARE WORKING UNDER THE ACT OF MARCH 28. 40 HOURS PER WEEK OF FIVE 8-HOUR DAYS (MONDAY THROUGH FRIDAY) AND ARE PAID ON THE HOURLY BASIS. THESE QUESTIONS HAVE ARISEN IN CONNECTION WITH PUBLIC RESOLUTION NO. 127 APPROVED JUNE 29. WHICH PROVIDES AS FOLLOWS: "THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY. OR ON A PIECE WORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY.

A-97264, AUGUST 23, 1938, 18 COMP. GEN. 191

HOLIDAY COMPENSATION - GOVERNMENT PRINTING OFFICE PER DIEM, ETC., EMPLOYEES - PUBLIC RESOLUTION NO. 127 - PERFORMANCE OR NONPERFORMANCE OF WORK AND HOLIDAYS WITHIN OR WITHOUT FORTY-HOUR WORK WEEK THE ACT OF JANUARY 12, 1895, 28 STAT. 607, GRANTING GRATUITY HOLIDAY PAY TO EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, BEING INCONSISTENT WITH THE PROVISIONS OF PUBLIC RESOLUTION NO. 127, JUNE 29, 1938, 52 STAT. 1246, IS REPEALED BY THE SAID RESOLUTION. EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WORKING ON A FIVE-DAY 40 HOUR WEEK BASIS, WHO WORK ON LABOR DAY--- SEPTEMBER 5, 1938--- A DAY WITHIN THEIR REGULAR TOUR OF DUTY, WILL BE ENTITLED ONLY TO ONE DAY'S PAY, AND NOT TO PAY FOR THE HOLIDAY AND IN ADDITION FOR THE TIME ACTUALLY WORKED ON THE HOLIDAY AT THEIR REGULAR RATES OF PAY. 13 COMP. GEN. 295, AUTHORIZING ADDITIONAL HOLIDAY PAY UNDER THE EXISTING STATUTES, RENDERED INOPERATIVE BY PUBLIC RESOLUTION NO. 127, JUNE 29, 1938, 52 STAT. 1246. EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WORKING ON A FIVE-DAY 40 HOUR WEEK BASIS (MONDAY THROUGH FRIDAY), WHO WORK ON A LEGAL HOLIDAY FALLING ON A FRIDAY, AND WHO HAVE WORKED 32 HOURS FROM MONDAY TO THURSDAY INCLUSIVE, ARE ENTITLED, UNDER PUBLIC RESOLUTION NO. 127, JUNE 29, 1938, 52 STAT. 1246, TO ONLY ONE DAY'S PAY AT THEIR REGULAR, AND NOT THE OVERTIME RATE, THE HOLIDAY--- WHETHER WORK IS PERFORMED THEREON OR NOT--- MERELY COMPLETING THE 40 HOURS FOR THAT WEEK. EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WORKING ON A FIVE-DAY 40 HOUR WEEK BASIS (MONDAY THROUGH FRIDAY), ARE NOT ENTITLED, IN VIEW OF THE PROVISIONS OF PUBLIC RESOLUTION NO. 127, JUNE 29, 1938, 52 STAT. 1246, TO PAY FOR A LEGAL HOLIDAY FALLING ON SATURDAY, A NON-WORK DAY. 15 COMP. GEN. 700, AUTHORIZING SUCH LEGAL HOLIDAY PAY UNDER THEN EXISTING STATUTES, RENDERED INOPERATIVE BY THE PUBLIC RESOLUTION, SUPRA.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PUBLIC PRINTER, AUGUST 23, 1938:

YOUR LETTER OF AUGUST 15, 1938, IS AS FOLLOWS:

YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS CONCERNING EMPLOYEES OF THIS OFFICE WHO ARE WORKING UNDER THE ACT OF MARCH 28, 1934, 40 HOURS PER WEEK OF FIVE 8-HOUR DAYS (MONDAY THROUGH FRIDAY) AND ARE PAID ON THE HOURLY BASIS. THESE QUESTIONS HAVE ARISEN IN CONNECTION WITH PUBLIC RESOLUTION NO. 127 APPROVED JUNE 29, 1938, WHICH PROVIDES AS FOLLOWS:

"THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE WORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY, WASHINGTON'S BIRTHDAY, MEMORIAL DAY, FOURTH OF JULY, LABOR DAY, THANKSGIVING DAY, CHRISTMAS DAY, OR ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER, THEY SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.

"SEC. 2. THE JOINT RESOLUTION OF JANUARY 6, 1885 (U.S.C., TITLE 5, SEC. 86), AND ALL OTHER LAWS INCONSISTENT OR IN CONFLICT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED TO THE EXTENT OF SUCH INCONSISTENCY OR CONFLICT.'

1. IN YOUR DECISION DATED JULY 6, 1938 (A-94536), TO THE SECRETARY OF THE NAVY, YOU HELD THAT ,THE STATUTE MENTIONED ABOVE REPEALS THE ACT OF JANUARY 6, 1885, WHICH GRANTED GRATUITY PAY FOR HOLIDAYS; HENCE, GRATUITY PAY FOR HOLIDAYS IS NO LONGER A VESTED RIGHT OF PER DIEM EMPLOYEES. SUCH EMPLOYEES ARE NOW ENTITLED TO PAY FOR HOLIDAYS ONLY UNDER AND SUBJECT TO THE CONDITIONS OF THE JOINT RESOLUTION OF JUNE 29, 1938.' IT IS ALSO HELD THAT THE ABOVE RESOLUTION REPEALS THE ACT OF JANUARY 12, 1895 (U.S.C., TITLE 44, PARAGRAPH 44), WHICH READS AS FOLLOWS:

"THE EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE SHALL BE ALLOWED THE FOLLOWING LEGAL HOLIDAYS WITH PAY, TO WIT: THE FIRST DAY OF JANUARY, THE TWENTY-SECOND OF FEBRUARY, THE FOURTH DAY OF JULY, THE TWENTY-FIFTH DAY OF DECEMBER, INAUGURATION DAY, MEMORIAL DAY, LABOR'S HOLIDAY, AND SUCH DAY AS MAY BE DESIGNATED BY THE PRESIDENT OF THE UNITED STATES AS A DAY OF PUBLIC FAST OR THANKSGIVING.'

2. SEPTEMBER 5 NEXT IS A LEGAL HOLIDAY. SEVERAL EMPLOYEES IN THIS OFFICE WILL BE REQUIRED TO WORK ON THAT DAY. SHALL THEY BE PAID FOR THE HOLIDAY- -- EIGHT HOURS--- AND, IN ADDITION, FOR THE TIME ACTUALLY WORKED AT THEIR REGULAR RATE OF COMPENSATION? (SEE COMP. GEN. 13 295.)

3. IN ACCORDANCE WITH THE ABOVE RESOLUTION, WHAT WILL THE COMPENSATION OF AN EMPLOYEE BE WHO IS REQUIRED TO WORK ON A LEGAL HOLIDAY FALLING ON FRIDAY? WILL THE COMPENSATION FOR THE LEGAL HOLIDAY COMPLETE 40 HOURS AND TIME WORKED BE COMPENSATED FOR AT OVERTIME RATE?

4. UNDER THE ACT OF MARCH 28, 1934, THE EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WORK EIGHT HOURS A DAY--- MONDAY THROUGH FRIDAY (40 HOURS). IF A LEGAL HOLIDAY FALLS ON SATURDAY, ARE THESE EMPLOYEES ENTITLED TO PAY FOR 48 HOURS FOR THAT WEEK? (SEE COMP. GEN. 15-700.) OTHER WORDS, ARE THEY ENTITLED TO PAY FOR A LEGAL HOLIDAY FALLING ON A NON -WORK DAY?

AN EARLY DECISION WILL BE APPRECIATED IN ORDER TO AVOID SUSPENSIONS AND DISALLOWANCES THAT MAY RESULT IN EFFECTING SALARY PAYMENTS TO THE EMPLOYEES CONCERNED.

IN DECISION OF AUGUST 19, 1938, A-97193, 18 COMP. GEN. 186, TO THE SECRETARY OF WAR, IT WAS HELD AS FOLLOWS:

HENCE, REGULAR PER DIEM, PER HOUR, AND PIECE-WORK EMPLOYEES ARE ENTITLED TO THEIR REGULAR PAY FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED ONLY IF AND WHEN THEY "ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF" THE HOLIDAY. IF THEY ARE RELIEVED OR PREVENTED FROM WORKING ON THE HOLIDAY FOR ANY REASON OTHER THAN OCCURRENCE OF THE HOLIDAY, SUCH AS WHEN THE HOLIDAY OCCURS ON A NON-WORK DAY, OR WITHIN A PERIOD OF FURLOUGH OR LEAVE OF ABSENCE, NO PAY FOR THE HOLIDAY AS SUCH IS AUTHORIZED. IF SUCH EMPLOYEES ARE REQUIRED TO WORK ON A HOLIDAY OCCURRING WITHIN THEIR REGULAR TOUR OF DUTY, ONLY ONE DAY'S PAY IS AUTHORIZED--- PAYMENT OF GRATUITY HOLIDAY PAY IN ADDITION BEING NO LONGER AUTHORIZED. IF THE HOLIDAY OCCURS ON A DAY OUTSIDE THE REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK AND WORK IS REQUIRED ON THE HOLIDAY, THE EMPLOYEE IS NOT ENTITLED TO TWO DAYS' PAY, ONE FOR WORKING AND ONE FOR THE HOLIDAY, BUT MAY BE ENTITLED TO OVERTIME PAY FOR THE DAY UNDER ADMINISTRATIVE REGULATIONS AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THEIR REGULAR PAY. (SEE THE 40 HOUR WEEK STATUTE, SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522.)

AS THOSE EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WHO WERE ENTITLED TO GRATUITY HOLIDAY PAY UNDER THE ACT OF JANUARY 12, 1895, 28 STAT. 607, QUOTED IN YOUR LETTER, WERE "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT," THAT STATUTE IS INCONSISTENT WITH, AND IS REPEALED BY, THE PROVISIONS OF PUBLIC RESOLUTION NO. 127, DATED JUNE 29, 1938, 52 STAT. 1246, QUESTION NO. 1 IS ANSWERED IN THE AFFIRMATIVE.

IT IS UNDERSTOOD FROM QUESTION NO. 2 THAT SEPTEMBER 5, LABOR DAY, IS WITHIN THE REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK. WHETHER THE EMPLOYEES WORK 8 HOURS OR LESS ON THAT DAY THEY WILL BE ENTITLED ONLY TO 1 DAY'S PAY--- NOT TO PAY FOR THE HOLIDAY AND IN ADDITION FOR THE TIME ACTUALLY WORKED ON THE HOLIDAY AT THEIR REGULAR RATES OF PAY. THE CITED DECISION HAS BEEN RENDERED INOPERATIVE BY PUBLIC RESOLUTION OF JUNE 29, 1938, TO THIS EXTENT.

REFERRING TO QUESTION NO. 3, A HOLIDAY FALLING ON FRIDAY SHOULD BE REGARDED THE SAME FOR PAY PURPOSES AS A HOLIDAY FALLING ON ANY OTHER DAY OF THE WEEK WITHIN THE REGULAR 40-HOUR WEEKLY TOUR OF DUTY. THE EMPLOYEE WOULD BE ENTITLED TO ONLY 1 DAY'S PAY AT HIS REGULAR RATE. WHETHER THE EMPLOYEE IN QUESTION NO. 3, WHOSE REGULAR 40-HOUR WEEKLY TOUR OF DUTY IS FROM MONDAY TO FRIDAY, INCLUSIVE, WORKS OR DOES NOT WORK ON A HOLIDAY FALLING ON FRIDAY, THE 40 HOURS HAS BEEN COMPLETED FOR THAT WEEK--- ASSUMING THAT HE WORKED 32 HOURS FROM MONDAY TO THURSDAY INCLUSIVE--- AND TIME NOT IN EXCESS OF 8 HOURS WORKED ON THE FRIDAY HOLIDAY CANNOT BE COMPENSATED FOR AT OVERTIME RATES.

QUESTION NO. 4 IS ANSWERED IN THE NEGATIVE. THE CITED DECISION HAS BEEN RENDERED INOPERATIVE BY PUBLIC RESOLUTION OF JUNE 29, 1938.