B-1098, FEBRUARY 23, 1939, 18 COMP. GEN. 673

B-1098: Feb 23, 1939

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1938 PER DIEM EMPLOYEES ENGAGED IN 24-HOUR SERVICE WHO WORK IN SHIFTS ON 5 DAYS OF 8 HOURS EACH OUT OF 7 CONSECUTIVE DAYS ARE REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WITHIN THE MEANING OF THE HOLIDAY RESOLUTION OF JUNE 29. MAY NOT BE EXEMPTED FROM THE RULE THAT EMPLOYEES REQUIRED TO WORK ON A HOLIDAY OR CLOSED DAY WITHIN THEIR REGULAR TOUR OF DUTY ARE ENTITLED ONLY TO THEIR REGULAR PAY FOR THE TIME ACTUALLY WORKED AND MAY NOT BE PAID IN ADDITION THERETO 1 DAY'S GRATUITY PAY FOR THE HOLIDAY. IS AS FOLLOWS: PURSUANT TO PUBLIC RESOLUTION NO. 127. SUBSTITUTE THE FOLLOWING SUBPARAGRAPHS IN LIEU THEREOF: " "FOR WORK ON ANY 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.

B-1098, FEBRUARY 23, 1939, 18 COMP. GEN. 673

HOLIDAY COMPENSATION - PER DIEM 24-HOUR SERVICE 8-HOUR SHIFT EMPLOYEES - HOLIDAY STATUTE OF JUNE 29, 1938 PER DIEM EMPLOYEES ENGAGED IN 24-HOUR SERVICE WHO WORK IN SHIFTS ON 5 DAYS OF 8 HOURS EACH OUT OF 7 CONSECUTIVE DAYS ARE REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WITHIN THE MEANING OF THE HOLIDAY RESOLUTION OF JUNE 29, 1938, 52 STAT. 1246, AND MAY NOT BE EXEMPTED FROM THE RULE THAT EMPLOYEES REQUIRED TO WORK ON A HOLIDAY OR CLOSED DAY WITHIN THEIR REGULAR TOUR OF DUTY ARE ENTITLED ONLY TO THEIR REGULAR PAY FOR THE TIME ACTUALLY WORKED AND MAY NOT BE PAID IN ADDITION THERETO 1 DAY'S GRATUITY PAY FOR THE HOLIDAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, FEBRUARY 23, 1939:

YOUR LETTER OF JANUARY 30, 1939, IS AS FOLLOWS:

PURSUANT TO PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938 (52 STAT. 1246), AND IN CONFORMITY WITH DECISIONS OF THE ACTING COMPTROLLER GENERAL OF JULY 6, 1938 (18 COMP. GEN. 10); AUGUST 23, 1938 (18 COMP. GEN. 191); AND AUGUST 29, 1938 (18 COMP. GEN. 206), THE NAVY DEPARTMENT HAS AMENDED THE "SCHEDULE OF WAGES FOR CIVIL EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT AND THE MARINE CORPS--- REVISED TO MARCH 1, 1936," AS FOLLOWS:

"STRIKE OUT SUBPARAGRAPHS 3, 4, 6, AND 7 OF PARAGRAPH 3 OF THE "INSTRUCTIONS," ON PAGES 55 AND 56, AND SUBSTITUTE THE FOLLOWING SUBPARAGRAPHS IN LIEU THEREOF:

" "FOR WORK ON ANY 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, WITHIN THE EMPLOYEE'S REGULAR TOUR OF DUTY, THE SCHEDULE RATE OF PAY SHALL BE ALLOWED.

" "WHENEVER AN EMPLOYEE IS RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF ANY 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, HE SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.

" "FOR WORK ON ANY 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, NOT EXCEEDING EIGHT HOURS, WHEN NOT A PART OF THE EMPLOYEE'S REGULAR TOUR OF DUTY, PERFORMED UNDER PROPER AUTHORITY, THE SCHEDULE RATE OF PAY PLUS 50 PERCENT ADDITIONAL SHALL BE ALLOWED.

" "FOR WORK IN EXCESS OF EIGHT HOURS ON SUNDAY OR ON ANY 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, WHEN SUCH DAYS ARE NOT A PART OF THE EMPLOYEE'S REGULAR TOUR OF DUTY, PERFORMED BY REASON OF EXTRAORDINARY EMERGENCY, 50 PERCENT ADDITIONAL TO THE SUNDAY OR HOLIDAY RATE OF PAY, OR 125 PERCENT ADDITIONAL TO THE SCHEDULE RATE OF PAY SHALL BE ALLOWED.'

"STRIKE OUT THE SECOND AND THIRD SENTENCES IN PARAGRAPH 5 OF THE "INSTRUCTIONS," ON PAGE 56, AND SUBSTITUTE THE FOLLOWING IN LIEU THEREOF:

" "EMPLOYEES "ASSIGNED TO DUTY" FOR WHICH ADDITIONAL PAY IS PROVIDED HEREIN SHALL RECEIVE THE ADDITIONAL PAY FOR THE DURATION OF THE ASSIGNMENT, INCLUDING PERIODS OF LEAVE OF ABSENCE WITH PAY AND DAYS DECLARED HOLIDAYS BY FEDERAL STATUTE OR EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER. EMPLOYEES RECEIVING ADDITIONAL PAY "WHILE ACTUALLY ENGAGED" UPON WORK FOR WHICH ADDITIONAL PAY IS PROVIDED HEREIN ARE NOT ENTITLED TO SUCH ADDITIONAL PAY DURING PERIODS OF LEAVE OF ABSENCE WITH PAY AND ON THE DAYS ABOVE REFERRED TO.'

"STRIKE OUT SUBPARAGRAPH 3 OF PARAGRAPH 2 OF THE "INSTRUCTIONS," ON PAGE 55, AND SUBSTITUTE THE FOLLOWING IN LIEU THEREOF:

" "WHENEVER A PER DIEM EMPLOYEE IS RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF ANY 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, SUCH DAY SHALL BE REGARDED AS A PART OF HIS 40-HOUR WORK WEEK. THE AUTHORITY OF THE DEPARTMENT MUST BE OBTAINED IN ADVANCE FOR EMPLOYMENT IN EXCESS OF 40 HOURS IN A WEEK IN WHICH A HOLIDAY OR CLOSED DAY OCCURS WITHIN THE WORK WEEK OF A PER DIEM EMPLOYEE, EXCEPT THAT A PER DIEM POWER-PLANT EMPLOYEE, OR ANY OTHER PER DIEM EMPLOYEE WHOSE 40-HOUR TOUR OF DUTY REQUIRES THAT HE WORK ON A HOLIDAY, MAY BE EMPLOYED IN EXCESS OF THE 40 HOURS WITHOUT THE AUTHORITY OF THE DEPARTMENT.'

"INSERT AFTER SUBPARAGRAPH 7 OF PARAGRAPH 3 OF THE "INSTRUCTIONS" ON PAGE 56 THE FOLLOWING AS SUBPARAGRAPH 8:

" "A PER DIEM POWER-PLANT EMPLOYEE OR ANY OTHER PER DIEM EMPLOYEE WHOSE 40-HOUR TOUR OF DUTY REQUIRES THAT HE WORK ON A HOLIDAY IS NOT ENTITLED TO GRATUITY PAY FOR A HOLIDAY OR CLOSED DAY WITHIN HIS REGULAR TOUR OF DUTY, UNLESS HE IS RELIEVED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAY. IF SUCH AN EMPLOYEE IS RELIEVED FROM WORKING FOR ALL OR ANY PART OF SUCH A HOLIDAY OR CLOSED DAY SOLELY BECAUSE OF THE OCCURRENCE THEREOF, HE IS ENTITLED TO ONE DAY'S PAY.'"

SINCE THE PROMULGATION OF THE ABOVE-QUOTED DECISIONS OF THE ACTING COMPTROLLER GENERAL AND AMENDMENTS TO THE CURRENT SCHEDULE OF WAGES, THE NAVY DEPARTMENT HAS RECEIVED SEVERAL REQUESTS FROM LABOR ORGANIZATIONS THAT THE NAVY DEPARTMENT REQUEST THE ACTING COMPTROLLER GENERAL TO EXEMPT PER DIEM POWER-PLANT EMPLOYEES AND OTHER EMPLOYEES ENGAGED IN 24-HOUR SERVICE FROM SUCH DECISIONS.

ACCORDINGLY, YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTION:

ARE PER DIEM POWER-PLANT EMPLOYEES AND OTHER PER DIEM EMPLOYEES ENGAGED IN 24-HOUR SERVICE, WHO WORK IN SHIFTS ON FIVE WORK DAYS OF EIGHT HOURS EACH OUT OF SEVEN CONSECUTIVE DAYS, AND WHOSE 40-HOUR TOURS OF DUTY REQUIRE THAT THEY WORK ON HOLIDAYS AND CLOSED DAYS OCCURRING THEREIN, ENTITLED TO GRATUITY PAY FOR SUCH HOLIDAYS AND CLOSED DAYS WITHIN THEIR REGULAR TOURS OF DUTY IN ADDITION TO PAY FOR THE TIME ACTUALLY WORKED ON THE HOLIDAYS AND CLOSED DAYS?

PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, 52 STAT. 1246, 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.

SECTION 2 OF THE ACT SPECIFICALLY REPEALS THE PRIOR STATUTES AUTHORIZING GRATUITY PAY FOR HOLIDAYS AND IT WAS SO STATED IN 18 COMP. GEN. 10; ID. 191, CITED IN THE FIRST PARAGRAPH OF YOUR LETTER. THIS NEW HOLIDAY STATUTE IS APPLICABLE TO "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR OR ON A PIECE-WORK BASIS.' PER-DIEM EMPLOYEES ENGAGED IN 24-HOUR SERVICE WHO WORK IN SHIFTS ON 5 DAYS OF 8 HOURS EACH OUT OF 7 CONSECUTIVE DAYS ARE REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WITHIN THE MEANING OF THE STATUTE AND MAY NOT BE EXEMPTED FROM THE RULE REQUIRED BY THE STATUTE THAT EMPLOYEES REQUIRED TO WORK ON A HOLIDAY OR CLOSED DAY WITHIN THEIR REGULAR TOUR OF DUTY ARE ENTITLED ONLY TO THEIR REGULAR PAY FOR THE TIME ACTUALLY WORKED AND MAY NOT BE PAID IN ADDITION THERETO 1 DAY'S GRATUITY PAY FOR THE HOLIDAY.