B-145178, MAR. 28, 1961

B-145178: Mar 28, 1961

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WERE REQUIRED TO PERFORM DUTY ON MONDAY. WITHIN THE WEEK EACH OF THE EMPLOYEES WAS GRANTED A DAY OFF IN LIEU OF THE HOLIDAY WORKED. THE EMPLOYEES WERE SUBSEQUENTLY ADVISED THAT COMPENSATORY TIME COULD NOT BE GRANTED IN LIEU OF A HOLIDAY WORKED AND THAT A CHARGE TO ANNUAL LEAVE MUST BE MADE FOR THE DAY OFF IN LIEU OF THE HOLIDAY. THAT ACTION WAS TAKEN IN VIEW OF THE HOLDING BY OUR OFFICE IN 26 COMP. THAT DECISION HELD THAT THERE WAS NO AUTHORITY TO GRANT COMPENSATORY TIME OFF FROM DUTY IN LIEU OF HOLIDAY PAY PRESCRIBED BY SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. ALL OF THE EMPLOYEES INVOLVED DURING THE PERIOD IN QUESTION WERE ELIGIBLE FOR AND WERE RECEIVING 15 PERCENT ANNUAL PREMIUM COMPENSATION PURSUANT TO SECTION 401A (2) OF THE ACT OF JUNE 30.

B-145178, MAR. 28, 1961

TO COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, UNITED STATES DEPARTMENT OF JUSTICE:

THIS REFERS TO LETTER OF JANUARY 3, 1961, YOUR REFERENCE CO 851.3C, WITH ENCLOSURES, FROM THE ASSOCIATE COMMISSIONER, MANAGEMENT OF THE IMMIGRATION AND NATURALIZATION SERVICE, CONCERNING HOLIDAY PAY FOR CERTAIN EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE WORKING ON A NATIONAL HOLIDAY.

THE INFORMATION FURNISHED SHOWS THAT NINE EMPLOYEES WORKING AS INVESTIGATORS IN YOUR REGIONAL OFFICE AT SAN PEDRO, CALIFORNIA, WERE REQUIRED TO PERFORM DUTY ON MONDAY, SEPTEMBER 5, 1960, A NATIONAL HOLIDAY. WITHIN THE WEEK EACH OF THE EMPLOYEES WAS GRANTED A DAY OFF IN LIEU OF THE HOLIDAY WORKED. THE EMPLOYEES WERE SUBSEQUENTLY ADVISED THAT COMPENSATORY TIME COULD NOT BE GRANTED IN LIEU OF A HOLIDAY WORKED AND THAT A CHARGE TO ANNUAL LEAVE MUST BE MADE FOR THE DAY OFF IN LIEU OF THE HOLIDAY. THAT ACTION WAS TAKEN IN VIEW OF THE HOLDING BY OUR OFFICE IN 26 COMP. GEN. 431. THAT DECISION HELD THAT THERE WAS NO AUTHORITY TO GRANT COMPENSATORY TIME OFF FROM DUTY IN LIEU OF HOLIDAY PAY PRESCRIBED BY SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 922.

ALL OF THE EMPLOYEES INVOLVED DURING THE PERIOD IN QUESTION WERE ELIGIBLE FOR AND WERE RECEIVING 15 PERCENT ANNUAL PREMIUM COMPENSATION PURSUANT TO SECTION 401A (2) OF THE ACT OF JUNE 30, 1945, AS ADDED BY SECTION 208 (A) OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1111. THE ASSOCIATE COMMISSIONER SAYS THAT IN THOSE CASES WHEN INVESTIGATORS HAVE WORKED HOLIDAYS ON PREVIOUS OCCASIONS AND HAD BEEN GRANTED TIME OFF IN LIEU THEREOF, NECESSARY LEAVE ADJUSTMENTS ON THE CURRENT TIME AND ATTENDANCE REPORT HAVE BEEN MADE.

SECTION 401A (2) PROVIDES THAT THE HEAD OF ANY DEPARTMENT OR AGENCY MAY WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION PROVIDE THAT ANY EMPLOYEE IN A POSITION IN WHICH THE HOURS OF DUTY CANNOT BE CONTROLLED ADMINISTRATIVELY AND WHICH REQUIRES SUBSTANTIAL AMOUNTS OF IRREGULAR, UNSCHEDULED, OVERTIME DUTY AND DUTY AT NIGHT AND ON HOLIDAYS WITH THE EMPLOYEE GENERALLY BEING RESPONSIBLE FOR RECOGNIZING, WITHOUT SUPERVISION, CIRCUMSTANCES WHICH REQUIRE HIM TO REMAIN ON DUTY, SHALL RECEIVE PREMIUM COMPENSATION FOR SUCH DUTY ON AN ANNUAL BASIS. THIS SECTION WAS DESIGNED SPECIFICALLY TO PERMIT THIS FORM OF ADDITIONAL COMPENSATION FOR THOSE INVESTIGATORS OF CRIMINAL ACTIVITIES WHOSE POSITIONS MEET ALL THE CONDITIONS SPECIFIED THEREIN AND TO EMPLOYEES IN OTHER TYPES OF POSITIONS WITH RESPECT TO WHICH THE SPECIFIED CONDITIONS EXIST IN LIKE DEGREE.

HOWEVER, THE ANNUAL PREMIUM COMPENSATION AUTHORIZED BY SECTION 401A (2) OF THE 1945 ACT, AS AMENDED, IS IN LIEU OF ALL OTHER PREMIUM COMPENSATION- -- INCLUDING HOLIDAY PAY--- PRESCRIBED BY ANY OTHER PROVISION OF THIS ACT, EXCEPT REGULARLY SCHEDULED OVERTIME. A FACTOR USED IN ARRIVING AT THE ANNUAL PREMIUM PAY IS THE ANTICIPATED HOLIDAY DUTY THAT WILL BE NECESSARY.

THE CIVIL SERVICE COMMISSION WHICH IS THE AGENCY PRIMARILY RESPONSIBLE FOR ADMINISTERING THE PREMIUM PAY PROVISIONS OF SECTION 401A (2) OF THE ACT HAS ISSUED REGULATIONS CONFERRING BROAD AUTHORITY UPON THE HEADS OF THE INDIVIDUAL AGENCIES TO DETERMINE THE CONDITIONS UNDER WHICH PREMIUM COMPENSATION WILL BE PAID. HOWEVER, ONCE THE AGENCY HEAD, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, HAS DETERMINED THAT HIS EMPLOYEES ARE ENTITLED TO PREMIUM PAY ON AN ANNUAL BASIS THERE IS NO AUTHORITY FOR THE AGENCY HEAD TO GRANT ADDITIONAL COMPENSATION FOR WORK PERFORMED ON HOLIDAYS SO LONG AS THE EMPLOYEES ARE RECEIVING ANNUAL PREMIUM COMPENSATION.