B-139936, SEP. 1, 1959
Highlights
WE RULED THAT WHEN AN EMPLOYEE WHO WAS EXCUSED FROM DUTY ON FRIDAY. WHO LATER THAT DAY WAS NOTIFIED TO REPORT FOR DUTY ON SATURDAY. WE RULED THAT AN EMPLOYEE WHO HAD NOTICE BEFORE FRIDAY THAT HE WAS TO WORK ON SATURDAY MUST BE CHARGED LEAVE FOR ABSENCE ON FRIDAY. 1959. * * *" IN THAT REGARD WE ARE INFORMED THAT THE ONLY PREMIUM PAY RECOGNIZED IN THE REGULATIONS ISSUED BY THE DEPARTMENT OF AGRICULTURE WAS "HOLIDAY PAY" AND THAT OVERTIME COMPENSATION FOR WORK PERFORMED ON SATURDAY. WAS NOT CONSIDERED "PREMIUM PAY" SUCH AS WOULD REMOVE THE EMPLOYEE FROM THE PURVIEW OF THE EXECUTIVE ORDER. OUR CONCLUSION THAT OVERTIME COMPENSATION IS PREMIUM PAY RESTS IN PART ONLY ON THE LANGUAGE OF SUBSECTIONS 201 (1) AND (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AS AMENDED BY SECTION 203 OF PUBLIC LAW 763.
B-139936, SEP. 1, 1959
TO THE SECRETARY OF AGRICULTURE:
ON AUGUST 4, 1959, YOUR ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION UPON CERTAIN QUESTIONS ARISING UNDER EXECUTIVE ORDER NO. 10825 DATED JUNE 12, 1959, CONCERNING THE EXCUSING OF EMPLOYEES FROM DUTY ON FRIDAY, JULY 3, 1959.
HE REFERS TO OUR DECISION OF JUNE 24, 1959, B-139936, IN WHICH AMONG OTHER THINGS, WE RULED THAT WHEN AN EMPLOYEE WHO WAS EXCUSED FROM DUTY ON FRIDAY, JULY 3, 1959, AND WHO LATER THAT DAY WAS NOTIFIED TO REPORT FOR DUTY ON SATURDAY, JULY 4 (A NON-WORK DAY FOR HIM) NEED NOT BE CHARGED FOR LEAVE ON FRIDAY. CONVERSELY, WE RULED THAT AN EMPLOYEE WHO HAD NOTICE BEFORE FRIDAY THAT HE WAS TO WORK ON SATURDAY MUST BE CHARGED LEAVE FOR ABSENCE ON FRIDAY. IN NEITHER INSTANCE WOULD THE EMPLOYEE BE ENTITLED TO A DAY OF COMPENSATORY LEAVE DURING THE CALENDAR YEAR 1960.
IN REACHING THAT CONCLUSION WE RELIED UPON SECTION 2 (B) (I) OF THE EXECUTIVE ORDER WHICH IN EFFECT PROVIDES THAT THE ORDER SHALL NOT APPLY TO ANY EMPLOYEE WHO RECEIVES "HOLIDAY OR PREMIUM PAY OR COMPENSATORY TIME IN LIEU THEREOF, FOR WORK PERFORMED ON SATURDAY JULY 4, 1959. * * *" IN THAT REGARD WE ARE INFORMED THAT THE ONLY PREMIUM PAY RECOGNIZED IN THE REGULATIONS ISSUED BY THE DEPARTMENT OF AGRICULTURE WAS "HOLIDAY PAY" AND THAT OVERTIME COMPENSATION FOR WORK PERFORMED ON SATURDAY, JULY 4, WAS NOT CONSIDERED "PREMIUM PAY" SUCH AS WOULD REMOVE THE EMPLOYEE FROM THE PURVIEW OF THE EXECUTIVE ORDER.
OUR CONCLUSION THAT OVERTIME COMPENSATION IS PREMIUM PAY RESTS IN PART ONLY ON THE LANGUAGE OF SUBSECTIONS 201 (1) AND (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AS AMENDED BY SECTION 203 OF PUBLIC LAW 763, APPROVED SEPTEMBER 1, 1954, 5 U.S.C. 911. THOSE SUBSECTIONS PROVIDE THAT OVERTIME COMPENSATION REFERRED TO THEREIN "SHALL BE CONSIDERED PREMIUM COMPENSATION.' AS IS URGED IN THE ASSISTANT SECRETARY'S LETTER WE RECOGNIZE THAT THERE ARE OTHER STATUTES WHICH MAY REFER TO COMPENSATION FOR EXTRA HOURS OF EXTRA LABOR AS OVERTIME COMPENSATION. NEVERTHELESS, SINCE SECTION 2 (B) (I) OF THE EXECUTIVE ORDER SPECIFICALLY REFERS TO HOLIDAY PAY AS WELL AS TO PREMIUM PAY, OUR VIEW IS THAT THE ALTERNATIVE TERM "PREMIUM PAY" MUST REFER TO SOME CLASS OF PREMIUM PAY OTHER THAN HOLIDAY PAY, SUCH AS OVERTIME, IF THE LANGUAGE IN QUESTION IS TO BE GIVEN ITS FULL MEANING.
IN RECENT YEARS THE TERM "PREMIUM COMPENSATION" HAS BEEN USED AND IS UNDERSTOOD TO INCLUDE VARIOUS CLASSES OF COMPENSATION THAT IS PAYABLE IN ADDITION TO BASIC COMPENSATION. SEE PAGE 24 OF HOUSE REPORT NO. 2665, DATED AUGUST 16, 1954. SEE, ALSO, SECTION 25.251 OF THE FEDERAL EMPLOYEES PAY REGULATIONS, FEDERAL PERSONNEL MANUALZI-326; AND 5 C.F.R. 6.101 (S/- FPM-21-240. THERE IS NO INDICATION IN THE EXECUTIVE ORDER THAT THE TERM "PREMIUM PAY" WAS USED IN A MORE RESTRICTIVE SENSE THAN THE GENERALLY ACCEPTED MEANING OF "PREMIUM COMPENSATION.' THEREFORE, WHILE RECOGNIZING THAT THE EXECUTIVE ORDER IS MORE EXTENSIVE IN ITS COVERAGE THAN THE COMPENSATION PROVISIONS OF THE 1945 PAY ACT, WE CONCLUDED IN OUR DECISION OF JUNE 24, 1959, THAT OVERTIME COMPENSATION IS EMBRACED WITHIN THE TERM "PREMIUM PAY.' UPON RECONSIDERATION WE ARE CONVINCED THAT UNDER THE LANGUAGE OF THE ORDER SUCH CONCLUSION IS CORRECT AND HEREBY IS AFFIRMED. SEE DECISION OF AUGUST 13, 1959, B-140316, 39 COMP. GEN. - . ..END :