B-163021, JANUARY 8, 1968, 47 COMP. GEN. 358

B-163021, JANUARY 8, 1968, 47 COMP. GEN. 358

COMPENSATION - HOLIDAYS - DUTY STATUS - TEN-HOUR WORKDAY WAGE BOARD EMPLOYEES ASSIGNED TO WEEKLY TOURS OF FOUR 10-HOUR DAYS-- 8 HOURS REGULAR TIME AND 2 HOURS OVERTIME--- WHO ARE RELIEVED OR PREVENTED FROM WORKING BECAUSE OF THE OCCURRENCE OF A HOLIDAY WITHIN THE PURVIEW OF 5 U.S.C. 6104, ARE ENTITLED ONLY TO BASIC COMPENSATION FOR ANY 10-HOUR DAY ON WHICH A HOLIDAY OCCURS, SECTION 6104 PRESCRIBING THE SAME PAY FOR HOLIDAY ON WHICH NO WORK IS PERFORMED "AS FOR A DAY IN WHICH AN ORDINARY DAY'S WORK IS PERFORMED.' THEREFORE, THE EMPLOYEES ARE ONLY ENTITLED TO COMPENSATION AT STRAIGHT TIME FOR THE ENTIRE 10 HOUR DAY ON WHICH THEY DID NOT WORK BECAUSE OF THE HOLIDAY, ABSENT AUTHORITY FOR PAYING OVERTIME COMPENSATION UNDER THE WORK HOURS ACT OF 1962, 5 U.S.C. 5544, FOR ANY PART OF THE EMPLOYEES SCHEDULED HOURS OF DUTY ON HOLIDAYS ON WHICH NO WORK IS PERFORMED.

TO THE SECRETARY OF THE INTERIOR, JANUARY 8, 1968:

THE DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION BY LETTER OF NOVEMBER 30, 1967, REQUESTED OUR DECISION WHETHER WAGE BOARD EMPLOYEES OF THE DEPARTMENT WHO WORK WEEKLY TOURS OF FOUR 10-HOUR DAYS ARE ENTITLED TO 2 HOURS OVERTIME COMPENSATION UNDER THE WORK HOURS ACT OF 1962, 5 U.S.C. 5544, ON WORKDAYS WHEN THEY ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY WITHIN THE PURVIEW OF THE JOINT RESOLUTION OF JUNE 29, 1938, AS AMENDED, NOW CODIFIED IN 5 U.S.C. 6104.

5 U.S.C. 6104, SO FAR AS HERE PERTINENT, READS AS FOLLOWS:

WHEN A REGULAR EMPLOYEE * * * IS RELIEVED OR PREVENTED FROM WORKING ON A DAY

(3) SOLELY BECAUSE OF THE OCCURRENCE OF A LEGAL PUBLIC HOLIDAY HE IS ENTITLED TO THE SAME PAY FOR THAT DAY AS FOR A DAY ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.

THE DEPUTY ASSISTANT SECRETARY'S LETTER SUGGESTS THAT THE ABOVE DESCRIBED EMPLOYEES WHO WORK WEEKLY TOURS OF FOUR 10-HOUR DAYS MIGHT, UNDER THE QUOTED LANGUAGE OF 5 U.S.C. 6104, BE ENTITLED TO BASIC COMPENSATION FOR 8 HOURS AND OVERTIME COMPENSATION FOR 2 HOURS AS FOR "AN ORDINARY DAY'S WORK" WHEN THEY ARE RELIEVED OR PREVENTED FROM WORKING ON ANY OF THEIR 10- HOUR DAYS SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY.

A SIMILAR QUESTION WAS CONSIDERED IN 23 COMP. GEN. 415. THAT CASE CONCERNED WAGE BOARD EMPLOYEES WHOSE ADMINISTRATIVE WORKWEEKS AT THE TIME CONSISTED OF SIX 8-HOUR DAYS, SATURDAY, THE SIXTH DAY, BEING THEIR OVERTIME DAY FOR PURPOSE OF THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, 48 STAT. 522, 5 U.S.C. 5544 (A). THE EMPLOYEES WERE RELIEVED OR PREVENTED FROM WORKING ON SATURDAY, CHRISTMAS DAY, 1943, BECAUSE OF THE HOLIDAY. PAGE 417 OF THAT DECISION WE RULED:

THE 1938 HOLIDAY LAW WAS INTENDED, SO FAR AS POSSIBLE, TO EQUALIZE HOLIDAY PAY FOR PER DIEM, PER HOUR, AND PIECE WORKERS WITH HOLIDAY PAY ENJOYED BY OTHER CLASSES OF FEDERAL EMPLOYEES. THAT PURPOSE WOULD BE DEFEATED IF IT WERE TO BE CONCLUDED THAT ANYTHING SAID IN THE CITED DECISIONS RELATING TO THE 1934 STATUTE MUST OPERATE TO DENY THIS CLASS OF FEDERAL WORKERS HOLIDAY PAY NEXT CHRISTMAS. OF COURSE, AS THE HOLIDAY LAW EXPRESSLY AUTHORIZES ONLY "THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED" THE OVERTIME RATE MAY NOT BE PAID TO THIS CLASS OF EMPLOYEES WHO DO NOT WORK ON CHRISTMAS DAY.

IN 42 COMP. GEN. 195, THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION ASKED (QUESTION 2):

AN EMPLOYEE HAS A REGULARLY SCHEDULED WORKWEEK OF ONE 8-HOUR DAY, TWO 10- HOUR DAYS, AND ONE 12-HOUR DAY. IF A HOLIDAY OCCURS ON HIS SCHEDULED 12- HOUR DAY, IS HE PAID AT STRAIGHT TIME FOR THE ENTIRE 12 HOURS, OR IS HE ENTITLED TO THE OVERTIME RATE FOR THE LAST 4 HOURS? OUR ANSWER TO QUESTION 2 WAS AS FOLLOWS:

WHERE NO WORK IS PERFORMED THE EMPLOYEE IS ONLY ENTITLED TO COMPENSATION AT STRAIGHT TIME FOR THE ENTIRE PERIOD. SEE OUR ANSWER TO QUESTION 1 (B). QUESTION 2 IS ANSWERED ACCORDINGLY. IN OUR ANSWER TO QUESTION 1 (B) CITED IN OUR ANSWER TO QUESTION 2, WE SAID:

THE LANGUAGE OF THE FOREGOING PROVISION (REFERRING TO 5 U.S.C. 5544), SPECIFICALLY REQUIRES THAT OVERTIME WORK "IN EXCESS OF EIGHT HOURS PER DAY SHALL BE COMPENSATED FOR AT NOT LESS THAN TIME AND ONE HALF THE BASIC RATE OF COMPENSATION.' * * *

APPLYING THE RATIONALE OF THOSE DECISIONS TO THE QUESTION PRESENTED BY THE DEPUTY ASSISTANT SECRETARY'S LETTER, WE MUST CONCLUDE THAT THERE IS NO LAWFUL AUTHORITY FOR PAYING THE EMPLOYEES CONCERNED OVERTIME COMPENSATION FOR ANY PART OF THEIR SCHEDULED HOURS OF DUTY ON HOLIDAYS ON WHICH THEY PERFORM NO WORK.