B-131055, APRIL 24, 1957, 36 COMP. GEN. 733

B-131055: Apr 24, 1957

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COMPENSATION - NIGHT DIFFERENTIAL - HOLIDAYS IN PERIODS OF PAY LEAVE THE NIGHT DIFFERENTIAL WHICH IS PAYABLE TO EMPLOYEES FOR REGULARLY SCHEDULED NIGHT WORK. REQUESTS OUR DECISION WHETHER NIGHT DIFFERENTIAL IS PAYABLE UNDER SECTION 301 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. - IN DEFINING "NIGHT WORK" FOR WHICH A NIGHT DIFFERENTIAL IS PAYABLE AS ANY REGULARLY SCHEDULED WORK BETWEEN THE HOURS OF 6 P.M. NIGHT DIFFERENTIAL WAS PAYABLE ONLY FOR HOURS ACTUALLY WORKED. A REFERENCE TO THE LEGISLATIVE HISTORY OF THE SUBJECT PROVISIONS DISCLOSES THAT THE UNDERLYING PURPOSE OF THE PROVISIONS FOR CONTINUANCE OF NIGHT DIFFERENTIAL DURING HOLIDAY HOURS AND SHORT PERIODS OF LEAVE IS TO ELIMINATE THE ADMINISTRATIVE COSTS OCCASIONED BY NUMEROUS MINOR PAYROLL CHANGES.

B-131055, APRIL 24, 1957, 36 COMP. GEN. 733

COMPENSATION - NIGHT DIFFERENTIAL - HOLIDAYS IN PERIODS OF PAY LEAVE THE NIGHT DIFFERENTIAL WHICH IS PAYABLE TO EMPLOYEES FOR REGULARLY SCHEDULED NIGHT WORK, PURSUANT TO 5 U.S.C. 921, SHOULD BE INCLUDED IN THE COMPENSATION FOR HOLIDAYS WITH PAY OCCURRING WITHIN PERIODS OF PAID LEAVE.

TO THE SECRETARY OF THE ARMY, APRIL 24, 1957:

YOUR LETTER OF MARCH 11, 1957, REQUESTS OUR DECISION WHETHER NIGHT DIFFERENTIAL IS PAYABLE UNDER SECTION 301 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 922, AS AMENDED BY SECTION 206 OF THE ACT OF SEPTEMBER 1, 1954 ( PUBLIC LAW 763), 68 STAT. 1110, 5 U.S.C. 921, FOR ABSENCE ON A HOLIDAY WHICH FALLS WITHIN A PERIOD OF PAID LEAVE. YOU SAY THAT THE PRACTICE HAS BEEN TO PAY NIGHT DIFFERENTIAL FOR REGULARLY SCHEDULED NIGHT HOURS WHICH OCCUR DURING ANY PERIOD OF PAID ABSENCE FOR A HOLIDAY, BUT THAT THE PRACTICE HAS BEEN QUESTIONED BY OUR AUDITORS.

THE CITED SECTION 301 (A), AS AMENDED--- IN DEFINING "NIGHT WORK" FOR WHICH A NIGHT DIFFERENTIAL IS PAYABLE AS ANY REGULARLY SCHEDULED WORK BETWEEN THE HOURS OF 6 P.M. AND 6 A.M.--- SPECIFICALLY INCLUDES "PERIODS OF ABSENCE WITH PAY DURING SUCH HOURS DUE TO HOLIDAYS, AND ANY SUCH HOURS WITHIN PERIODS OF LEAVE WITH PAY IF SUCH PERIODS TOTAL LESS THAN EIGHT HOURS DURING ANY PAY PERIOD.' SECTION 205 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 681, 5 U.S.C. 2064, EXCLUDES HOLIDAYS FROM THE DAYS WHICH MAY BE CHARGED AS LEAVE.

PRIOR TO PUBLIC LAW 763, NIGHT DIFFERENTIAL WAS PAYABLE ONLY FOR HOURS ACTUALLY WORKED. A REFERENCE TO THE LEGISLATIVE HISTORY OF THE SUBJECT PROVISIONS DISCLOSES THAT THE UNDERLYING PURPOSE OF THE PROVISIONS FOR CONTINUANCE OF NIGHT DIFFERENTIAL DURING HOLIDAY HOURS AND SHORT PERIODS OF LEAVE IS TO ELIMINATE THE ADMINISTRATIVE COSTS OCCASIONED BY NUMEROUS MINOR PAYROLL CHANGES. REPORT OF THE CIVIL SERVICE COMMISSION PRINTED IN THE SENATE REPORT ( NO. 1190) ON S. 2665, 83D CONGRESS, AT PAGE 15. WHETHER THE DECISION ON THE QUESTION PRESENTED BE IN THE AFFIRMATIVE OR THE NEGATIVE, SUCH BASIC PURPOSE WILL NOT IN THE USUAL CASE BE AFFECTED ONE WAY OR THE OTHER SINCE THE ADMINISTRATIVE COSTS OF CHANGING THE PAYROLL WILL BE INCURRED IN ANY EVENT BECAUSE OF LEAVE WITH PAY OF 8 HOURS OR MORE.

THERE IS SUBSTANTIAL BASIS, OF COURSE, FOR THE CONTENTION THAT WHEN AN EMPLOYEE IS ABSENT ON LEAVE WITH PAY WHICH INCLUDES A HOLIDAY, HE IS NOT ABSENT "DUE TO HOLIDAYS" BUT RATHER, BECAUSE OF THE LEAVE. HOWEVER, IN VIEW OF THE STATUTORY PROHIBITION AGAINST CHARGING ABSENCE ON A HOLIDAY TO ANNUAL OR SICK LEAVE, IT SEEMS REASONABLE BROADLY TO VIEW THE ABSENCE ON A HOLIDAY AS "DUE TO" THE HOLIDAY EVEN THOUGH IT OCCURS WITHIN A PERIOD OF PAID LEAVE. WE DO NOT BELIEVE THAT THE WORDS "DUE TO" WERE USED IN A RESTRICTIVE SENSE. ACCORDINGLY, WE CONCLUDE THAT THE STATUTORY PROVISION IN QUESTION CONFERS A RIGHT TO HAVE THE NIGHT DIFFERENTIAL INCLUDED IN THE COMPENSATION FOR A HOLIDAY WITH PAY OCCURRING WITHIN A PERIOD OF PAID LEAVE THE SAME AS IF THE EMPLOYEE HAD WORKED HIS REGULARLY ASSIGNED TOUR OF DUTY INCLUDING NIGHT HOURS.