B-131193, APRIL 24, 1957, 36 COMP. GEN. 734

B-131193: Apr 24, 1957

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PRECLUDES PAYMENT OF NIGHT DIFFERENTIAL FOR ANY PERIOD LESS THAN 8 HOURS WHEN THE AGGREGATE LEAVE DURING A PAY PERIOD IS 8 OR MORE HOURS. (1) WHETHER NIGHT DIFFERENTIAL IS PAYABLE FOR ABSENCE ON A HOLIDAY WHICH FALLS WITHIN A PERIOD OF PAID LEAVE. THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE. - IN DEFINING "NIGHT WORK" FOR WHICH 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. THE LEGISLATIVE HISTORY OF THE PROVISIONS IN QUESTION DISCLOSES THAT THE UNDERLYING PURPOSE OF THE LIBERALIZATION IS TO ELIMINATE THE ADMINISTRATIVE COST OCCASIONED BY NUMEROUS MINOR PAYROLL CHANGES. A PAYROLL CHANGE WITH ITS ACCOMPANYING ADMINISTRATIVE COST IS NECESSITATED IN ANY EVENT BY REASON OF THE FACT THAT THE LEAVE TOTALS 8 HOURS OR MORE.

B-131193, APRIL 24, 1957, 36 COMP. GEN. 734

COMPENSATION - NIGHT WORK - LEAVE PERIODS WITH PAY - LEAVE OF 8 HOURS OR MORE - NIGHT DIFFERENTIAL THE AUTHORITY IN 5 U.S.C. 921 FOR CONTINUANCE OF NIGHT DIFFERENTIAL DURING PERIODS OF LEAVE WITH PAY, ONLY WHEN THE LEAVE TOTALS LESS THAN 8 HOURS, PRECLUDES PAYMENT OF NIGHT DIFFERENTIAL FOR ANY PERIOD LESS THAN 8 HOURS WHEN THE AGGREGATE LEAVE DURING A PAY PERIOD IS 8 OR MORE HOURS.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, APRIL 24, 1957:

ON MARCH 20, 1957, COMMISSIONER F. J. LAWTON REQUESTED OUR DECISION ON TWO QUESTIONS REGARDING THE PAYMENT OF NIGHT DIFFERENTIAL UNDER SECTION 301 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 206 OF THE ACT OF SEPTEMBER 1, 1954 ( PUBLIC LAW 763), 68 STAT. 1110, 5 U.S.C. 921, NAMELY, (1) WHETHER NIGHT DIFFERENTIAL IS PAYABLE FOR ABSENCE ON A HOLIDAY WHICH FALLS WITHIN A PERIOD OF PAID LEAVE, AND (2) WHETHER NIGHT DIFFERENTIAL MAY BE PAID FOR 7 HOURS OF A PERIOD OR PERIODS OF LEAVE TOTALING 8 HOURS OR MORE DURING A PAY PERIOD.

THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE. DECISION OF TODAY, B- 131055, 36 COMP. GEN. 733, TO THE SECRETARY OF THE ARMY.

THE CITED SECTION 301 (A), AS AMENDED--- IN DEFINING "NIGHT WORK" FOR WHICH 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.'

PRIOR TO PUBLIC LAW 763, NIGHT DIFFERENTIAL WAS PAYABLE ONLY FOR HOURS ACTUALLY WORKED. PUBLIC LAW 763 CONTINUED THAT POLICY WITH THE EXCEPTION OF ABSENCES DUE TO HOLIDAYS AND OF SHORT PERIODS OF LEAVE WITH PAY DURING A PAY PERIOD. AS STATED IN OUR DECISION TO THE SECRETARY OF THE ARMY REFERRED TO ABOVE, THE LEGISLATIVE HISTORY OF THE PROVISIONS IN QUESTION DISCLOSES THAT THE UNDERLYING PURPOSE OF THE LIBERALIZATION IS TO ELIMINATE THE ADMINISTRATIVE COST OCCASIONED BY NUMEROUS MINOR PAYROLL CHANGES.

THE STATUTE APPEARS TO US TO BE QUITE EXPLICIT IN AUTHORIZING CONTINUANCE OF NIGHT DIFFERENTIAL DURING LEAVE WITH PAY ONLY WHEN THE LEAVE TOTALS LESS THAN 8 HOURS FOR THE PAY PERIOD; AND WE SEE NO BASIS IN THE LANGUAGE OF THE STATUTE ITSELF OR IN ITS UNDERLYING PURPOSE FOR SEGREGATING A PERIOD OF LESS THAN 8 HOURS FROM AN AGGREGATE OF 8 HOURS OR MORE FOR THE PURPOSE OF INCLUDING NIGHT DIFFERENTIAL IN THE COMPENSATION FOR THE PERIOD OF LEAVE THUS SEGREGATED. A PAYROLL CHANGE WITH ITS ACCOMPANYING ADMINISTRATIVE COST IS NECESSITATED IN ANY EVENT BY REASON OF THE FACT THAT THE LEAVE TOTALS 8 HOURS OR MORE.