B-12215, SEPTEMBER 21, 1940, 20 COMP. GEN. 170

B-12215: Sep 21, 1940

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1936 - FORTY-HOUR WEEK EMPLOYEES PER DIEM EMPLOYEES SUBJECT TO THE FORTY-HOUR WEEK LAW WHOSE WORK WEEK HAS BEEN ADMINISTRATIVELY FIXED TO CONSIST OF 4 DAYS OF 8 HOURS EACH AND 2 DAYS OF 4 HOURS EACH ARE CHARGEABLE WITH A FULL DAY'S ANNUAL OR SICK LEAVE FOR ABSENCE ON ONE OF THE 4-HOUR DAYS IN ACCORDANCE WITH THE RULE IN 16 COMP. 1940: I HAVE YOUR LETTER OF SEPTEMBER 6. WHICH WAS MADE EFFECTIVE IN THE DISTRICT OF COLUMBIA SHORTLY AFTER YOUR DECISION OF JANUARY 18. IS AS FOLLOWS: "THERE ARE APPROXIMATELY 1. ALL OF WHOM ARE SUBJECT TO THE FORTY-HOUR WEEK. IT IS NECESSARY THAT CERTAIN FORCES OPERATE ON SATURDAYS AND SUNDAYS. THIS IS PARTICULARLY ESSENTIAL FOR THE FULL FORCES ENGAGED ON STREET CLEANING.

B-12215, SEPTEMBER 21, 1940, 20 COMP. GEN. 170

LEAVES OF ABSENCE - ANNUAL AND SICK - ACT, MARCH 14, 1936 - FORTY-HOUR WEEK EMPLOYEES PER DIEM EMPLOYEES SUBJECT TO THE FORTY-HOUR WEEK LAW WHOSE WORK WEEK HAS BEEN ADMINISTRATIVELY FIXED TO CONSIST OF 4 DAYS OF 8 HOURS EACH AND 2 DAYS OF 4 HOURS EACH ARE CHARGEABLE WITH A FULL DAY'S ANNUAL OR SICK LEAVE FOR ABSENCE ON ONE OF THE 4-HOUR DAYS IN ACCORDANCE WITH THE RULE IN 16 COMP. GEN. 600, THERE BEING NOTHING IN THE ACT OF MARCH 2, 1940, 54 STAT 38, OR IN THE LEAVE REGULATIONS AS AMENDED BY EXECUTIVE ORDERS NOS. 8384 AND 8385 TO AUTHORIZED ANY CHANGE IN SAID RULE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, SEPTEMBER 21, 1940:

I HAVE YOUR LETTER OF SEPTEMBER 6, 1940, AS FOLLOWS:

THE COMMISSIONERS DESIRE TO SUBMIT FOR YOUR CONSIDERATION TWO QUESTIONS INVOLVING THE GRANTING OF LEAVE TO PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA SUBJECT TO THE 40-HOUR WEEK UNDER THE ACT OF MARCH 28, 1934, WHICH WAS MADE EFFECTIVE IN THE DISTRICT OF COLUMBIA SHORTLY AFTER YOUR DECISION OF JANUARY 18, 1937 (16 COMP. GEN. 660). THE REQUEST OF THE SUPERVISOR, CITY REFUSE, THAT THIS MATTER BE SUBMITTED TO YOU, IS AS FOLLOWS:

"THERE ARE APPROXIMATELY 1,000 PER DIEM EMPLOYEES IN THE CITY REFUSE DIVISION, ALL OF WHOM ARE SUBJECT TO THE FORTY-HOUR WEEK. BECAUSE OF THE NATURE OF THE SERVICES RENDERED, IT IS NECESSARY THAT CERTAIN FORCES OPERATE ON SATURDAYS AND SUNDAYS. THIS IS PARTICULARLY ESSENTIAL FOR THE FULL FORCES ENGAGED ON STREET CLEANING, GARBAGE COLLECTION, AND DEAD ANIMAL COLLECTION, COMPRISING ABOUT ONE-HALF OF THE ENTIRE FORCE. THE WORK-WEEK FOR THE MAJORITY OF THESE EMPLOYEES HAS BEEN REGULARLY SET UP AND CONSISTS OF FOUR 8-HOUR DAYS AND TWO 4 HOUR DAYS ALTHOUGH, IN SOME INSTANCES, THERE ARE MEN WORKING UNDER REGULARLY SCHEDULED WEEKS WHICH INCLUDE 5-, 6-, AND 7-HOUR DAYS. THE ADMINISTRATIVE PRACTICE OF THIS DIVISION HAS BEEN TO CHARGE LEAVE ON THESE DAYS IN THE RATIO OF THE NUMBER OF HOURS TAKEN TO THE NUMBER OF HOURS REGULARLY SET FOR THAT PARTICULAR DAY OF THE WEEK. A COMPLETE ABSENCE ON SUCH A DAY HAS RESULTED IN THE CHARGING OF A FULL DAY'S LEAVE. THIS ACTION IS BASED UPON THE DECISION OF THE COMPTROLLER GENERAL DATED DECEMBER 17, 1936, (16 COMP. GEN. 660), WHEREIN IT IS STATED THAT * * * A FULL DAY'S ABSENCE REGARDLESS OF THE NUMBER OF WORK HOURS CONSTITUTING THE DAY FIXED BY LAW OR REGULATION, MUST BE COMPUTED AS ONE DAY'S ANNUAL OR SICK LEAVE, AND A PARTIAL DAY'S ABSENCE MUST BE COMPUTED AS A FRACTION OF A DAY, USING THE TOTAL NUMBER OF WORK HOURS CONSTITUTING THE DAY AS DENOMINATOR AND THE NUMBER OF WORK HOURS' ABSENCE THEREON AS NUMERATOR. WHILE THE PUBLIC PRINTER HAS AUTHORITY TO FIX THE LENGTH OF EACH WORK DAY OF THE WEEK FOR EMPLOYEES SUBJECT TO THE FORTY-HOUR WEEK LAW OF MARCH 28, 1934 (48 STAT. 522), THERE IS NO AUTHORITY IN THE LEAVE STATUTES TO CONVERT THE STATUTORY ALLOWANCE OF "DAYS" LEAVE TO A BASIS OF FORTY HOURS PER WEEK. THE SATURDAY HALF- HOLIDAY LAW MAY BE REGARDED AS NOT APPLICABLE TO EMPLOYEES SUBJECT TO THE FORTY-HOUR WEEK LAW, SUPRA * * *.'

"THE INTERPRETATION BY THIS DIVISION OF THE COMPTROLLER'S LANGUAGE THAT,"* * * THERE IS NO AUTHORITY IN THE LEAVE STATUTES TO CONVERT THE STATUTORY ALLOWANCE OF "DAYS" LEAVE TO A BASIS OF FORTY HOURS PER WEEK * * *" IS THAT THERE IS NO AUTHORITY FOR CHARGING LESS THAN A FULL DAY'S ANNUAL OR SICK LEAVE FOR A DAY WHICH HAS BEEN REGULARLY SET UP AS A DAY OF LESS THAN 8 HOURS. THE NECESSITY OF CHARGING STATUTORY EMPLOYEES 5 1/2 DAYS LEAVE FOR A FULL WEEK'S ABSENCE AS CONTRASTED TO 5 DAYS FOR PER DIEM MEN ON A 5-DAY BASIS WOULD SEEM TO STRENGTHEN OUR CONCLUSIONS THAT A WORK WEEK FOR PER DIEM EMPLOYEES OF 6 DAYS MUST, UNDER PRESENT REGULATIONS CALL FOR A LOSS OF 6 DAYS' LEAVE FOR A FULL WEEK'S ABSENCE.

"IT IS NOT SEEN HOW THE RECENT AMENDMENT TO THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, APPROVED MARCH 2, 1940 ( PUBLIC NO. 419), IN ANY WAY MODIFIES THE EXISTING LAW, REGULATIONS OR DECISIONS WITH RESPECT TO THE METHOD OF CHARGING LEAVE ON WORK DAYS WHICH HAVE BEEN REGULARLY SET UP FOR PER DIEM EMPLOYEES AT LESS THAN 8 HOURS IN ORDER TO SPREAD THEIR AVAILABLE 40-HOUR WORKING TIME OVER A 6-DAY PERIOD. UNDOUBTEDLY, PER DIEM EMPLOYEES SUBJECT TO THE PROVISIONS OF THE FORTY-HOUR WEEK ARE NOT SUBJECT TO THE SATURDAY HALF-HOLIDAY LAW ( COMPTROLLER GENERAL'S DECISION OF DECEMBER 17, 1936). SECTION 11 OF THE NEW LEAVE REGULATIONS OF MARCH 29, 1940, OVIDE,"EMPLOYEES SHALL BE CHARGED WITH ANNUAL LEAVE ONLY FOR ABSENCES ON DAYS UPON WHICH THEY WOULD OTHERWISE WORK AND RECEIVE PAY. CHARGE SHALL BE MADE AGAINST ANNUAL LEAVE FOR ABSENCE ON SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER: * * *.' AUTHORITY IS NOT EVIDENT IN THIS REGULATION FOR NOT CHARGING A FULL DAY'S LEAVE FOR A DAY UPON WHICH 4 HOURS CONSTITUTES A FULL DAY'S WORK REGULARLY AND WHICH IS NOT TO BE CONSIDERED ANALOGOUS TO THE SATURDAY 4- HOUR DAY OF THE EMPLOYEES SUBJECT TO THE SATURDAY HALF-HOLIDAY LAW AND EMPLOYEES AMENABLE TO EXECUTIVE ORDER GRANTING HOLIDAYS AS, FOR EXAMPLE, AT CHRISTMAS TIME. THE QUESTION NATURALLY DOES ARISE AS TO WHETHER THE PRACTICE OF CONSIDERING LEAVE ON A "DAILY" BASIS IS IN CONFORMANCE WITH EXISTING REGULATIONS PROMULGATED SINCE THE ACT OF MARCH 2, 1940, AND WHETHER SUCH "DAILY" BASIS IS CORRECTLY INTERPRETED TO MEAN "THE DAY UNDER CONSIDERATION WITHOUT RESPECT TO ANY OTHER DAY OF THE WEEK.'

"IT IS RESPECTFULLY REQUESTED THAT THE MATTER OF SICK AND ANNUAL LEAVE FOR PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA, SUBJECT TO THE FORTY- HOUR WEEK, BE PLACED BEFORE THE COMPTROLLER GENERAL TO DETERMINE THE FOLLOWING:

"1. IS IT CORRECT THAT FOR PER DIEM EMPLOYEES SUBJECT TO THE FORTY HOUR WEEK, WHOSE WORK WEEK CONSISTS OF 6 DAYS, A FULL WEEK'S ABSENCE MUST, UNDER PRESENT REGULATIONS BE CHARGED AS 6 DAYS' LEAVE?

"2. IS THERE ANY AUTHORITY FOR CHARGING A PER DIEM EMPLOYEE ONE HALF DAY'S LEAVE FOR A 4-HOUR DAY SET-UP AS AN INTEGRAL PART OF A FORTY-HOUR WEEK OF 6 DAYS IN WHICH FOUR DAYS ARE ESTABLISHED AS 8-HOUR DAYS AND TWO DAYS ESTABLISHED AS 4-HOUR DAYS?

THE RULE APPLICABLE IN ANSWERING THE QUESTIONS PRESENTED IS FULLY STATED IN THE DECISION OF DECEMBER 17, 1936, 16 COMP. GEN. 600 (NOT 660), QUOTED IN YOUR LETTER. THERE IS NOTHING IN THE ACT OF MARCH 2, 1940, 54 STAT. 38 OR IN THE ANNUAL- AND SICK-LEAVE REGULATIONS AS AMENDED BY EXECUTIVE ORDERS NOS. 8384 AND 8385, DATED MARCH 29, 1940, TO JUSTIFY OR AUTHORIZE ANY CHANGE IN THE RULE. THAT IS, THE ANNUAL- AND SICK-LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, CLEARLY AUTHORIZE THE GRANTING OF ANNUAL AND SICK LEAVE OF ABSENCE ON THE BASIS OF THE DAY ONLY, NOT ON THE BASIS OF THE HOUR OR THE WEEK. THE ACT OF MARCH 9, 1940, SIMPLY DEFINES THE WORD "DAY" AS USED IN THE PRIOR LEAVE ACTS.

QUESTION ONE IS ANSWERED IN THE AFFIRMATIVE AND QUESTION TWO IN THE NEGATIVE.