B-149239, MAR. 19, 1965:

B-149239, MAR. 19, 1965:

TO THE HONORABLE SECRETARY OF AGRICULTURE:

ON MARCH 10, 1965, YOUR ASSISTANT SECRETARY FOR ADMINISTRATION ASKED OUR DECISION CONCERNING PROPOSED REGULATIONS AFFECTING THE LEAVE AND OVERTIME COMPENSATION OF THOSE EMPLOYEES WHOSE BASIC WORKWEEK CONSISTS OF THE FIRST 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK.

THE PROPOSED REGULATIONS ARE AS FOLLOWS:

"/D) FULL-TIME EMPLOYEES WITH INDEFINITE WEEKLY TOURS. UNDER SOME CIRCUMSTANCES, AS IN CERTAIN TYPES OF REGULATORY WORK WHERE WORKING HOURS ARE DETERMINED BY IRREGULAR AND OFTEN UNPREDICTABLE NEEDS FOR SERVICE, IT IS NOT PRACTICABLE TO ESTABLISH A DEFINITE PREARRANGED WEEKLY TOUR OF DUTY. IN SUCH CASES THE RESPONSIBLE ADMINISTRATIVE OFFICIAL SHALL DESIGNATE AN ADMINISTRATIVE WORKWEEK OF SEVEN CONSECUTIVE CALENDAR DAYS FOR EMPLOYEES INVOLVED AND FIX AS THE BASIC WORKWEEK THE FIRST FORTY-HOURS IN A PAY STATUS, INCLUDING AS APPROPRIATE, HOURS WORKED, CREDITABLE HOLIDAY ABSENCE, COMPENSATORY TIME AND/OR LEAVE. THIS FORTY-HOURS MUST OCCUR DURING SIX AND PREFERABLY FIVE CONSECUTIVE DAYS OF THE ADMINISTRATIVE WORKWEEK. DUE CREDIT SHALL BE GIVEN FOR STAND-BY SERVICE RENDERED UNDER SUCH CIRCUMSTANCES. (SEE 1-3C/2) OF THIS CHAPTER REGARDING STAND-BY SERVICE.)"

THE CONTEMPLATED REGULATIONS FURTHER PROVIDE:

"A. FULL-TIME EMPLOYEES WITH INDEFINITE WEEKLY TOURS. FOR SUCH EMPLOYEES, THE BASIC WORKWEEK CONSISTS OF THE FIRST FORTY-HOURS IN A PAY STATUS. ALL AUTHORIZED LEAVE SHALL BE COUNTED TOWARD COMPLETION OF AN EMPLOYEE'S FORTY-HOUR BASIC WORKWEEK. NOT MORE THAN 8 HOURS LEAVE MAY BE CHARGED FOR ANY ONE CALENDAR DAY NOR MAY ANY PAID LEAVE BE GRANTED AFTER THE FIRST FORTY-HOURS IN PAY STATUS IN ANY WORKWEEK.'

THE ASSISTANT SECRETARY'S LETTER ILLUSTRATING THE OPERATION OF THE PROPOSED REGULATIONS, READS AS FOLLOWS:

"THE ANNUAL AND SICK LEAVE BENEFITS OF THESE EMPLOYEES HAVE HAD TO BE CONSIDERED ALONG WITH THEIR ENTITLEMENT TO PREMIUM RATES OF PAY. OUR PERSONNEL REGULATIONS HAVE CONTAINED THE FOLLOWING PROVISIONS RELATIVE TO THESE BENEFITS:

" "IF, DURING THE BASIC WORKWEEK, THE EMPLOYEE WORKS LESS THAN 40 HOURS BECAUSE OF ABSENCE PROPERLY CHARGEABLE TO ANNUAL LEAVE, THE DIFFERENCE BETWEEN THE HOURS ACTUALLY WORKED AND THE 40-HOUR BASIC WORKWEEK WILL BE CHARGED TO ANNUAL LEAVE FOR ANY ONE DAY DURING THE BASIC WORKWEEK. BOTH SICK AND ANNUAL LEAVE ARE DURING THE WORKWEEK, THE CHARGE SHOULD BE MADE FIRST TO SICK LEAVE AND THE BALANCE TO ANNUAL LEAVE. FOR EXAMPLE, IF AN EMPLOYEE IS GRANTED ANNUAL LEAVE ON MONDAY, AND THEN HE WORKS A TOTAL OF 36 HOURS DURING TUESDAY, WEDNESDAY, AND THURSDAY, AND IS PREVENTED FROM WORKING ON FRIDAY AND SATURDAY BECAUSE OF ILLNESS, THE LEAVE CHARGE WOULD BE 4 HOURS SICK LEAVE ON FRIDAY AND NO CHARGE TO ANNUAL LEAVE. THE CHARGE OF 4 HOURS TO SICK LEAVE COMPLETES THE EMPLOYEE'S 40 HOURS FOR THE BASIC WORKWEEK.'

"WE PROPOSE TO AMEND THE REGULATIONS QUOTED ABOVE WITH RESPECT TO BOTH HOURS OF DUTY AND LEAVE. THIS WILL HAVE THE EFFECT, IN THE EXAMPLE CITED ABOVE, OF GRANTING 8 HOURS ANNUAL LEAVE ON MONDAY. THE REMAINING 36 HOURS OF WORK ON TUESDAY, WEDNESDAY, AND THURSDAY WOULD BE COMPENSATED FOR 32 HOURS AT REGULAR RATES AND 4 HOURS AT OVERTIME RATES. THERE WOULD BE NO SICK LEAVE CHARGE FOR FRIDAY.'

IN 25 COMP. GEN. 102, WE RULED, QUOTING FROM THE SYLLABUS:

"A LEAVE WITH PAY STATUS, EITHER ANNUAL OR SICK, IS SYNONYMOUS WITH A DUTY STATUS TO BE INCLUDED WITHIN THE BASIC 40-HOUR WORKWEEK ESTABLISHED PURSUANT TO SECTION 604 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND, THEREFORE, AN EMPLOYEE OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL OCCUPYING A POSITION SUBJECT TO THE CLASSIFICATION ACT MAY BE GRANTED OTHERWISE PROPER COMPENSATORY TIME OFF FROM DUTY ON A SATURDAY DURING A WORKWEEK OF MORE THAN 40 HOURS IN WHICH HE HAD BEEN GRANTED ANNUAL OR SICK LEAVE WITH PAY DURING HIS BASIC 40-HOUR WORKWEEK, AND BE PAID THEREFOR AT OVERTIME RATES.'

ALSO, SEE 31 COMP. GEN. 173.

IN VIEW OF THE ESTABLISHED LAW IT WOULD APPEAR UNDER THE PROPOSED REGULATIONS THAT THE EMPLOYEE IN THE EXAMPLE GIVEN WOULD BE ENTITLED TO EIGHT HOURS ANNUAL LEAVE ON MONDAY AND TO FOUR HOURS OVERTIME COMPENSATION FOR THE ADMINISTRATIVE WORKWEEK.