B-19981, SEPTEMBER 16, 1941, 21 COMP. GEN. 217

B-19981: Sep 16, 1941

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WHERE THE REGULAR 8-HOUR TOUR OF DUTY OF SUCH EMPLOYEES WAS SO CHANGED ON A HOLIDAY FROM 8 A.M.-4 P.M. THE LATTER 8 HOURS CONSTITUTED PART OF THE REGULAR 40- HOUR WEEKLY TOUR OF DUTY AND THE EMPLOYEES ARE NOT ENTITLED TO PAY AT OVERTIME RATES FOR THE 8 HOURS ACTUALLY WORKED. IF A 40-HOUR-WEEK EMPLOYEE DOES NOT WORK OR IS NOT OTHERWISE IN A PAY STATUS DURING LEAVE OR ON A HOLIDAY FOR ALL OF THE 40 HOURS OF HIS REGULAR TOUR OF DUTY. OUTSIDE OF HIS REGULAR TOUR OF DUTY TO MAKE UP FOR THE TIME LOST IS NOT PAYABLE AT THE OVERTIME RATE BUT ONLY AT THE REGULAR RATE. TIME WORKED BY A 40-HOUR-WEEK EMPLOYEE ON ANY DAY DURING OTHER THAN THE REGULAR HOURS OF HIS WEEKLY TOUR OF DUTY IS COMPENSABLE AT THE OVERTIME RATE UNLESS THE WORK WAS PERFORMED TO MAKE UP TIME PREVIOUSLY LOST DURING THE REGULAR HOURS OF HIS WEEKLY TOUR OF DUTY.

B-19981, SEPTEMBER 16, 1941, 21 COMP. GEN. 217

FORTY-HOUR-WEEK EMPLOYEES - HOLIDAY AND OVERTIME COMPENSATION THE REGULAR HOURS OF WORK, AS WELL AS REGULAR DAYS OF WORK, OF 40 HOUR- WEEK EMPLOYEES MAY BE ADMINISTRATIVELY CHANGED, NOT ARBITRARILY BUT IN AN EMERGENCY, ON A HOLIDAY OR ON ANY OTHER DAY OCCURRING WITHIN THE REGULAR TOUR OF DUTY, AND, THEREFORE, WHERE THE REGULAR 8-HOUR TOUR OF DUTY OF SUCH EMPLOYEES WAS SO CHANGED ON A HOLIDAY FROM 8 A.M.-4 P.M. TO 12 MIDNIGHT-8 A.M., THE LATTER 8 HOURS CONSTITUTED PART OF THE REGULAR 40- HOUR WEEKLY TOUR OF DUTY AND THE EMPLOYEES ARE NOT ENTITLED TO PAY AT OVERTIME RATES FOR THE 8 HOURS ACTUALLY WORKED, OR TO GRATUITY PAY FOR THE HOLIDAY, IN ADDITION TO THEIR REGULAR WAGES. IF A 40-HOUR-WEEK EMPLOYEE DOES NOT WORK OR IS NOT OTHERWISE IN A PAY STATUS DURING LEAVE OR ON A HOLIDAY FOR ALL OF THE 40 HOURS OF HIS REGULAR TOUR OF DUTY, COMPENSATION FOR ANY WORK PERFORMED, ON A HOLIDAY OR ANY OTHER DAY, OUTSIDE OF HIS REGULAR TOUR OF DUTY TO MAKE UP FOR THE TIME LOST IS NOT PAYABLE AT THE OVERTIME RATE BUT ONLY AT THE REGULAR RATE. TIME WORKED BY A 40-HOUR-WEEK EMPLOYEE ON ANY DAY DURING OTHER THAN THE REGULAR HOURS OF HIS WEEKLY TOUR OF DUTY IS COMPENSABLE AT THE OVERTIME RATE UNLESS THE WORK WAS PERFORMED TO MAKE UP TIME PREVIOUSLY LOST DURING THE REGULAR HOURS OF HIS WEEKLY TOUR OF DUTY. THE 40-HOUR-WEEK STATUTE OF MARCH 28, 1934, FIXES ONLY A MINIMUM OVERTIME RATE OF COMPENSATION AT TIME AND ONE-HALF AND DOES NOT PRECLUDE THE FIXING OF A HIGHER RATE FOR OVERTIME ON SUNDAYS OR HOLIDAYS SO THAT THE PANAMA CANAL REGULATIONS MAY PROVIDE FOR OVERTIME COMPENSATION FOR SUNDAYS AND HOLIDAYS AT A RATE OF TWO AND ONE-FOURTH TIMES THE REGULAR RATE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE GOVERNOR OF THE PANAMA CANAL, SEPTEMBER 16, 1941:

I HAVE YOUR LETTER OF AUGUST 12, 1941, AS FOLLOWS:

YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS CONCERNING THE EFFECT OF SECTION 23, ACT OF MARCH 28, 1934, AND PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, UPON THE PAY OF HOURLY EMPLOYEES OF THE PANAMA CANAL ON THE ISTHMUS OF PANAMA.

A SPECIFIC CASE UPON WHICH YOUR DECISION IS REQUESTED CONCERNS THE COMPLAINT OF CERTAIN EMPLOYEES OF THE MECHANICAL DIVISION OF THE PANAMA CANAL AS TO COMPENSATION ALLOWED FOR WORK PERFORMED DURING THE PERIOD MONDAY TO SATURDAY, INCLUSIVE, MAY 26 TO MAY 31, 1941.

THE EMPLOYEES IN QUESTION WHO ARE COMPENSATED AT CERTAIN RATES OF PAY PER HOUR ARE WITHIN THE TERMS OF SECTION 23, ACT OF MARCH 28, 1934, AND THEIR REGULAR TOUR OF DUTY WAS ADMINISTRATIVELY ESTABLISHED DURING THE PERIOD AS FIVE 8-HOUR DAYS, 8:00 A.M. TO 4:00 P.M., MONDAY TO FRIDAY, INCLUSIVE. THE EMPLOYEES WERE REQUIRED TO PERFORM SERVICE DURING THE WEEK AS FOLLOWS:

CHART

COMPENSATION

HOURS ALLOWED

WORKED (HOURS) MONDAY, MAY 26, 1941, 8 A.M. TO 4 P.M. ---------- 8 8 TUESDAY, MAY 27, 1941, 8 A.M. TO 4 P.M. ----- --- 8

8 WEDNESDAY, MAY 28, 1941, 8 A.M. TO 4 P.M. ------- 8 8 THURSDAY, MAY 29, 1941, 8 A.M. TO 4 P.M. -------- 8 8 THURSDAY, MAY 29, 1941, 8 P.M. TO 12 MIDNIGHT ---- 4

4 FRIDAY (HOLIDAY), MAY 30, 1941, 12 MIDNIGHT

TO 8 A.M. --------------------------------------- 8 12 FRIDAY (HOLIDAY), MAY 30, 1941, 10 P.M. TO

12 MIDNIGHT -------------------------------------- 2 4 1/2 SATURDAY, MAY 31, 1941, 12 MIDNIGHT TO 8 A.M. ---- 8 10 SATURDAY, MAY 31, 1941, 10 P.M. TO 12 MIDNIGHT --- 2

3 OR A TOTAL OF 56 HOURS' ACTUAL WORK, FOR WHICH THEY WERE PAID 65 1/2 HOURS.

THESE EMPLOYEES CLAIM THAT THEY SHOULD BE PAID FOR 77 1/2 HOURS, AS PER THE FOLLOWING EXCERPTS FROM A WRITTEN COMPLAINT BY THE INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE NO. 811, ADDRESSED TO THE SUPERINTENDENT, MECHANICAL DIVISION:

" THURS., MAY 29, EMPLOYEE (A) WORKED FROM 8 A.M. TO 4 P.M. OR A REGULAR 8-HOUR TOUR OF DUTY. SAME EMPLOYEE CALLED BACK AT 8 P.M. AND WORKED TO 12 MIDNIGHT OR 4 HOURS IN EXCESS OF THE 8 HOURS IN ONE DAY PAYABLE AT TIME AND ONE-HALF. THIS WAS NOT ALLOWED. THE EMPLOYEE BEING ALLOWED ONLY STRAIGHT TIME.

"ON THURSDAY, MAY 29, EMPLOYEE (A) WORKED FROM 12 MIDNIGHT TO 8 A.M. FRIDAY, MAY 30, CONSTITUTING 8 HOURS ON GRATUITY HOLIDAY, EMPLOYEE ALLOWED ONLY 12-HOURS PAY FOR THE 8 HOURS WORKED ON SAID HOLIDAY. IF THIS MAN HAD NOT WORKED HE WOULD HAVE BEEN ENTITLED TO 8 HOURS PAY AND HAVING WORKED HE IS ENTITLED TO THE GRATUITY PAY OF 8 HOURS PLUS TIME AND ONE-HALF FOR THE 8 HOURS WORKED OR 12 HOURS FOR THE ACTUAL WORK PERFORMED ON A GRATUITY HOLIDAY OR A TOTAL OF 20 HOURS SHOULD HAVE BEEN ACCREDITED TO THIS EMPLOYEE.

"THIS SAME EMPLOYEE WORKED FROM FRIDAY, MAY 30, 12 MIDNIGHT TO SAT., MAY 31, AT 8 A.M., A TOTAL OF 8 HOURS AND WAS ALLOWED 4 HOURS STRAIGHT TIME AND 4 HOURS OVERTIME AT THE RATE OF TIME AND ONE-HALF OR A TOTAL OF 10 HOURS ALLOWED FOR THIS 8 HOURS WORKED IN EXCESS OF THE 40-HOUR WEEK, A DISCREPANCY OF 2 HOURS IN THIS INSTANCE.

"THERE ARE SEVERAL EMPLOYEES OF THE MECHANICAL DIVISION AFFECTED BY THIS APPARENT MISINTERPRETATION OF THE 40-HOUR LAW GOVERNING SUCH CASES AND WE TRUST THAT YOU WILL GIVE THIS MATTER YOUR INDIVIDUAL ATTENTION, AND THROUGH THE COOPERATION OF YOUR OFFICE AND THE MACHINIST UNION COMMITTEE WE CAN BRING ABOUT THE PROPER ADJUSTMENT OF THESE RECENT CASES AND ESTABLISH A BETTER UNDERSTANDING BETWEEN THE EMPLOYEES AND THE DIVISION AS TO THE LAWS AND REGULATIONS GOVERNING SUCH MATTERS.'

FROM THE FOREGOING IT WILL BE NOTED THAT THEIR CONTENTION IS THAT, DUE TO THEIR HAVING BEEN RELIEVED OR PREVENTED FROM WORKING DURING THEIR ORDINARY WORK HOURS--- 8:00 A.M. TO 4:00 P.M.--- ON FRIDAY, MAY 30, 1941, THE FACT THAT THEY DID WORK ON THE HOLIDAY DURING HOURS OUTSIDE OF THEIR REGULAR SHIFT SHOULD NOT DEPRIVE THEM OF RECEIVING THE SAME PAY FOR THE HOLIDAY AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED, OR, IN OTHER WORDS, AN ADDITIONAL EIGHT HOURS' GRATUITY TIME FOR THE HOLIDAY, FRIDAY, MAY 30, 1941.

THEIR CLAIM THAT THEY ARE ENTITLED TO COMPENSATION FOR A TOTAL OF 77 1/2 HOURS IS BASED ON THEIR CALCULATION AS FOLLOWS:

CHART

HOURS MONDAY, MAY 26, 8 A.M. TO 4 P.M., 8 HOURS STRAIGHT TIME ----- 8 TUESDAY, MAY 27, 8 A.M. TO 4 P.M., 8 HOURS STRAIGHT TIME ---- 8 WEDNESDAY, MAY 28, 8 A.M. TO 4 P.M., 8 HOURS STRAIGHT TIME -- 8 THURSDAY, MAY 29, 8 A.M. TO 4 P.M., 8 HOURS STRAIGHT TIME --- 8 THURSDAY, MAY 29, 8 P.M. TO MIDNIGHT, 4 HOURS OVERTIME AT TIME

AND ONE-HALF ------------------------------------------------- 6 FRIDAY (HOLIDAY), MAY 30, 12 MIDNIGHT TO 8 A.M., 8 HOURS

OVERTIME AT TIME AND ONE-HALF -------------------------------- 12

PLUS 8 HOUR GRATUITY -------------------------------------- 8 FRIDAY (HOLIDAY), MAY 30, 10 P.M. TO 12 MIDNIGHT, 2 HOURS

OVERTIME AT 2 1/4 TIMES -------------------------------------- 4 1/2 SATURDAY, MAY 31, 12 MIDNIGHT TO 8 A.M., 8 HOURS OVERTIME AT

TIME AND ONE-HALF -------------------------------------------- 11 SATURDAY, MAY 31, 10 P.M. TO 12 MIDNIGHT, 2 HOURS OVERTIME AT

TIME AND ONE-HALF -------------------------------------------- 3

77 1/2

THEY CLAIM THAT WORK PERFORMED ON A HOLIDAY WHOLLY OUTSIDE THE USUAL HOURS OF DUTY DOES NOT DEPRIVE THE EMPLOYEE OF EIGHT HOURS' GRATUITY TIME TO WHICH HE WOULD OTHERWISE HAVE BEEN ENTITLED. THE OVERTIME OF 2 1/4 TIMES REGULAR TIME FOR THE 2 HOURS WORKED FROM 10:00 P.M. TO 12:00 MIDNIGHT ON FRIDAY, MAY 30, IS BASED ON THE PANAMA CANAL RULE PROVIDING FOR PAYMENT AT A RATE 50 PERCENT ADDITIONAL TO THE SUNDAY OR HOLIDAY RATE FOR WORK PERFORMED BY REASON OF AN EXTRAORDINARY EMERGENCY, IN EXCESS OF EIGHT HOURS ON SUNDAYS OR LEGAL HOLIDAYS.

AS A MATTER OF FURTHER CLARIFICATION OF THE CORRECT METHOD OF COMPENSATING HOURLY EMPLOYEES OF THE PANAMA CANAL, IT IS REQUESTED THAT A RULING BE GIVEN ON THE FOLLOWING QUESTIONS:

(1) AN HOURLY EMPLOYEE WITHIN THE TERMS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, WHOSE REGULAR TOUR OF WORK DAYS IS ADMINISTRATIVELY ESTABLISHED AS FIVE 8-HOUR DAYS, MONDAY TO FRIDAY, DOES NOT WORK A TOTAL OF 40 HOURS DURING THOSE DAYS; FOR INSTANCE, WORKING 9 HOURS ON MONDAY, 7 HOURS ON TUESDAY, 7 HOURS ON WEDNESDAY, 8 HOURS ON THURSDAY, AND 8 HOURS ON FRIDAY, A TOTAL OF 39 HOURS. ON SATURDAY, A NONWORK DAY, HE IS, ON ACCOUNT OF AN EXTRAORDINARY EMERGENCY, CALLED BACK TO WORK AND PERFORMS 8 HOURS' SERVICE. NO HOLIDAYS ARE INVOLVED. IS THE FULL 8 HOURS' SERVICE ON SATURDAY FOR COMPUTATION AT THE OVERTIME RATE OF PAY, OR IS THE CORRECT COMPUTATION FOR SATURDAY 1 HOUR AT REGULAR PAY AND 7 HOURS AT THE OVERTIME RATE? IT SHOULD BE UNDERSTOOD THAT LEAVE IS NOT GRANTED PANAMA CANAL EMPLOYEES IN UNITS OF LESS THAN ONE HALF DAY OR 4 HOURS, AND THE EMPLOYEE WORKING 7 HOURS ON TUESDAY AND WEDNESDAY LOSES PAY FOR THE OTHER HOUR (TO MAKE UP THE 8 HOURS FOR THOSE DAYS) WHETHER ABSENT WITH OR WITHOUT PERMISSION.

(2) AN HOURLY EMPLOYEE, UNDER SAME CONDITIONS AS IN QUESTION (1), WORKS THE SAME HOURS MONDAY TO FRIDAY, AND DUE TO AN EXTRAORDINARY EMERGENCY IS CALLED BACK TO DUTY FOR SATURDAY, A NONWORK DAY, WHICH IS ALSO A HOLIDAY. HE HAS WORKED A TOTAL OF 39 HOURS INCLUDING FRIDAY AND WORKS 8 HOURS ON SATURDAY. ARE THE FULL 8 HOURS WORKED ON SATURDAY (A NONWORK DAY AND HOLIDAY) FOR COMPUTATION AT THE OVERTIME RATE OF PAY OR ARE 1 HOUR AT REGULAR PAY 7 HOURS AT THE OVERTIME RATE FOR COMPUTATION?

(3) AN HOURLY EMPLOYEE WITHIN THE TERMS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, HAS A REGULAR TOUR OF WORK DAYS ADMINISTRATIVELY ESTABLISHED AS FIVE 8-HOUR DAYS, MONDAY TO FRIDAY. HE WORKS 8 HOURS EACH ON MONDAY, TUESDAY, WEDNESDAY, AND THURSDAY. FRIDAY IS A HOLIDAY ON WHICH HE IS NOT ORDINARILY REQUIRED TO WORK AND ON WHICH HE WOULD HAVE RECEIVED 8 HOURS' GRATUITY TIME UNDER CERTAIN CONDITIONS. HOWEVER, DUE TO AN EXTRAORDINARY EMERGENCY, HE IS REQUIRED TO WORK 8 HOURS ON FRIDAY. HE DOES NOT WORK SATURDAY. IS COMPENSATION FOR THE 8 HOURS ACTUALLY WORKED ON FRIDAY TO BE AT THE REGULAR RATE OF PAY OR AT OVERTIME RATE? (A RULING THAT COMPENSATION IS AT REGULAR RATE OF PAY RATHER THAN OVERTIME RATE WOULD MEAN THAT ANOTHER EMPLOYEE ENGAGED IN THE SAME CLASS OF WORK, THOUGH NOT REQUIRED TO WORK ON FRIDAY, WOULD, BY THE ALLOWANCE OF GRATUITY FOR THE HOLIDAY, RECEIVE THE SAME COMPENSATION AS ONE WHO WAS REQUIRED TO WORK 8 HOURS DUE TO AN EXTRAORDINARY EMERGENCY. THIS APPEARS INEQUITABLE.)

(4) AN HOURLY EMPLOYEE WITHIN THE TERMS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, WITH A REGULAR TOUR OF WORK DAYS ADMINISTRATIVELY ESTABLISHED AS FIVE 8-HOUR DAYS, MONDAY TO FRIDAY, WORKS ONLY 7 HOURS ON EACH OF THOSE DAYS. (THE OTHER HOUR ON EACH OF THE DAYS TO MAKE UP THE FULL 8-HOUR DAY USUALLY WORKED, DUE TO PANAMA CANAL REGULATIONS CANNOT BE COVERED AS A CHARGE AGAINST LEAVE, AND IS WITHOUT PAY.) HE HAS WORKED A TOTAL OF 28 HOURS, MONDAY TO THURSDAY. DUE TO AN EXTRAORDINARY EMERGENCY THE EMPLOYEE IS CALLED OUT TO WORK ON FRIDAY, A HOLIDAY, ON WHICH HE IS ORDINARILY NOT REQUIRED TO PERFORM AND WHICH WOULD BE A GRATUITY PAY UNDER CERTAIN CONDITIONS. HE WORKS 13 STRAIGHT HOURS. (A) IS OVERTIME RATE OF PAY APPLICABLE FOR THE FULL 13 HOURS OR FOR 1 HOUR ONLY? (B) IF FOR 13 HOURS, ARE THE FIRST 8 HOURS PAYABLE AT THE RATE OF 1 1/2 TIMES THE REGULAR PAY, AND THE OTHER 5 HOURS AT 50 PERCENT ADDITIONAL TO THE 1 1/2 RATE, OR 2 1/4 TIMES THE REGULAR PAY; OR ARE THE FULL 13 HOURS PAYABLE AT ONLY TIME AND ONE HALF?

YOUR DECISION IN THE MATTER AT AN EARLY DATE WILL BE GREATLY APPRECIATED.

THE 40-HOUR-WEEK STATUTE OF MARCH 28, 1934, 48 STAT. 522, PROVIDES AS FOLLOWS:

SEC. 23. THE WEEKLY COMPENSATION, MINUS ANY GENERAL PERCENTAGE REDUCTION WHICH MAY BE PRESCRIBED BY ACT OF CONGRESS, FOR THE SEVERAL TRADES AND OCCUPATION, WHICH IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES, SHALL BE REESTABLISHED AND MAINTAINED AT RATES NOT LOWER THAN NECESSARY TO RESTORE THE FULL WEEKLY EARNINGS OF SUCH EMPLOYEES IN ACCORDANCE WITH THE FULL-TIME WEEKLY EARNINGS UNDER THE RESPECTIVE WAGE SCHEDULES IN EFFECT ON JUNE 1, 1932: PROVIDED, THAT THE REGULAR HOURS OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE HALF.

THE HOLIDAY STATUTE OF JUNE 29, 1938, 52 STAT. 1246, PROVIDES AS FOLLOWS:

THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE WORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY, WASHINGTON'S BIRTHDAY, MEMORIAL DAY, FOURTH OF JULY, LABOR DAY, THANKSGIVING DAY, CHRISTMAS DAY, OR ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER, THEY SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.

SEC. 2. THE JOINT RESOLUTION OF JANUARY 6, 1885 ( U.S.C., TITLE 5, SEC. 86), AND ALL OTHER LAWS INCONSISTENT OR IN CONFLICT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED TO THE EXTENT OF SUCH INCONSISTENCY OR CONFLICT.

AS TO THE APPLICABILITY OF THE QUOTED STATUTES TO EMPLOYEES OF THE PANAMA CANAL, SEE 14 COMP. GEN. 156; ID. 376; ID. 594; 18 COMP. GEN. 16; ID. 206.

THE LAST-CITED DECISION, DATED AUGUST 29, 1938, INVOLVED QUESTIONS SUBMITTED BY YOU UNDER THE HOLIDAY STATUTE, QUESTIONS 5 AND 6 BEING AS FOLLOWS:

QUESTION 5. MAY GRATUITY HOLIDAY PAY BE ALLOWED UNDER THE FOLLOWING CIRCUMSTANCES? IN ORDER TO FACILITATE PROGRESS OF RUSH WORK, THE USUAL SCHEDULE OF WORKING DAYS CONSTITUTING A 40-HOUR WEEK IS ADMINISTRATIVELY CHANGED SO AS TO PERMIT 40 HOURS ACTUAL SERVICE, REGARDLESS OF HOLIDAY TIME, AS FOR EXAMPLE: DURING A WEEK WHEN A HOLIDAY FALLS ON FRIDAY, A NORMAL WORK DAY, SATURDAY IS PLACED ON THE SCHEDULE AS A REGULAR WORK DAY, AND FRIDAY, THE HOLIDAY, IS SCHEDULED AS A NONWORK DAY.

QUESTION 6. IN CASE OF AN AFFIRMATIVE REPLY TO THE PRECEDING QUESTION ( NO. 5) WOULD AN EMPLOYEE WHO WORKED IN THAT WEEK 40 HOURS AND WAS ALLOWED 8 HOURS HOLIDAY TIME BE ALLOWED OVERTIME COMPENSATION FOR THE 8 HOURS IN EXCESS OF 40?

IN ANSWER THE DECISION STATED: QUESTION 5 IS ANSWERED IN THE NEGATIVE. WHILE AN ADMINISTRATIVE OFFICE SHOULD NOT ARBITRARILY ADJUST DAYS OF WORK FOR THE PURPOSE OF DEFEATING THE EMPLOYEE'S RIGHT TO PAY FOR A HOLIDAY, IT IS WITHIN ADMINISTRATIVE DISCRETION TO FIX THE 40-HOUR WEEKLY TOUR OF DUTY ON ANY OF THE 7 DAYS OF ANY WEEK (13 COMP. GEN. 291; ID. 307), AND IF IN THE EXERCISE OF THAT ADMINISTRATIVE DISCRETION, IN AN EMERGENCY, THE DAYS OF WORK IN ANY WEEK ARE ADJUSTED SO THAT A HOLIDAY FALLS ON A NONWORK DAY, THE 40 HOUR WEEKLY TOUR OF DUTY TO BE ON THE OTHER DAYS OF THAT WEEK, THE EMPLOYEE WOULD BE ENTITLED TO ONLY HIS REGULAR PAY FOR THE FIVE DAYS WORKED WITH NO PAY FOR THE HOLIDAY WHICH FELL ON HIS NONWORK DAY.

THE ANSWER TO QUESTION 5 MAKES IT UNNECESSARY TO ANSWER QUESTION 6.

THESE QUESTIONS AND ANSWERS RELATED TO ADMINISTRATIVE ACTION ACTUALLY CHANGING THE DAYS IN THE REGULAR TOUR OF DUTY OF THE EMPLOYEES, THAT IS, ANOTHER DAY WAS ADMINISTRATIVELY SUBSTITUTED FOR A HOLIDAY OCCURRING WITHIN THE REGULAR TOUR OF DUTY OF THE EMPLOYEES, DUE TO AN EMERGENCY, WHICH RESULTED IN SUBSTITUTING THE OTHER DAY FOR THE HOLIDAY AS A PART OF THE EMPLOYEES' REGULAR TOUR OF DUTY. THE SAME RULE WOULD APPLY TO AUTHORIZE AN ADMINISTRATIVE OFFICE IN AN EMERGENCY TO CHANGE THE HOURS ON A HOLIDAY OR ON ANY OTHER DAY OCCURRING WITHIN THE REGULAR TOUR OF DUTY OF THE EMPLOYEES. HOWEVER, AS STATED IN ANSWER TO QUESTION 5, SUPRA, SUCH ACTION SHOULD NOT BE ARBITRARY FOR THE PURPOSE OF DEFEATING THE EMPLOYEES' RIGHT TO HOLIDAY PAY WITHOUT WORKING.

YOUR LETTER DOES NOT STATE THE REASON THESE EMPLOYEES WERE REQUIRED TO WORK FROM 12 MIDNIGHT TO 8 A.M. AND AGAIN FROM 10 P.M. TO 12 MIDNIGHT ON FRIDAY, MAY 30, 1941, OR WHY THEY WERE NOT REQUIRED TO WORK DURING THE REGULAR TOUR OF DUTY ON THAT DAY, FROM 8 A.M. TO 4 P.M. HOWEVER, FROM THE TENOR OF YOUR LETTER, PARTICULARLY THE WORDING OF QUESTIONS 3 AND 4, WHICH APPEAR TO BE BASED ON ADMINISTRATIVE ACTION CHANGING THE REGULAR HOURS OF DUTY ON A HOLIDAY DUE TO AN EXTRAORDINARY EMERGENCY, IT WILL BE ASSUMED FOR THE PURPOSE OF THIS DECISION THAT THE REGULAR 8 HOURS OF DUTY ON FRIDAY, MAY 30, 1941, A NATIONAL HOLIDAY, WERE CHANGED, NOT ARBITRARILY, BUT DUE TO AN EMERGENCY, FROM 8 A.M.-4 P.M. TO 12 MIDNIGHT-8 A.M.

ACCORDINGLY, IF THE ABOVE ASSUMPTIONS ARE CORRECT, THE 8 HOURS FROM 12 MIDNIGHT TO 8 A.M. ON FRIDAY, MAY 30, 1941, CONSTITUTED A PART OF THE REGULAR 40-HOUR WEEKLY TOUR OF DUTY FOR THE WEEK BEGINNING SUNDAY, MAY 25, AND ENDING SATURDAY, MAY 31, 1941, IN LIEU OF THE HOURS FROM 8 A.M. TO 4 P.M. ON THAT DAY. THAT IS TO SAY, THE REGULAR WEEKLY TOUR OF DUTY FOR THAT WEEK WAS 8 A.M. TO 4 P.M. ON MONDAY THROUGH THURSDAY, INCLUSIVE, 32 HOURS, AND 8 HOURS FROM MIDNIGHT TO 8 A.M. ON FRIDAY, THE HOLIDAY, A TOTAL OF 40 HOURS.

THE APPLICABLE RULES ARE THOSE STATED IN DECISION OF DECEMBER 30, 1938, 18 COMP. GEN. 575 (QUOTING FROM THE SYLLABUS):

THE RECENT HOLIDAY STATUTE OF JUNE 29, 1938, 52 STAT. 1246, REQUIRES NO CHANGE IN THE RULE ESTABLISHED BY DECISION OF APRIL 12, 1935, 14 COMP. GEN. 761, UNDER THE 40-HOUR-WEEK STATUTE OF MARCH 28, 1934, 48 STAT. 522, THAT A HOLIDAY FALLING WITHIN THE REGULAR TOUR OF DUTY IS TO BE REGARDED AS A PART OF THE 40-HOUR WEEK, AND IN COMPUTING THE 40 HOURS FOR WHICH THE EMPLOYEE IS TO BE PAID HIS REGULAR RATE OF COMPENSATION FOR THE 40-HOUR WEEK UNDER THE STATUTE, 8 HOURS SHOULD BE CREDITED TO THE EMPLOYEE FOR ANY HOLIDAY ON WHICH HE IS RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAY.

IN COMPUTING REGULAR AND OVERTIME COMPENSATION FOR ANY WEEK UNDER THE 40- HOUR-WEEK STATUTE OF MARCH 28, 1934, 48 STAT. 522, THE FIRST 40 HOURS OF THE WEEK IN A PAY STATUS, MADE UP PARTLY OF OVERTIME, SHOULD NOT BE REGARDED AS THE WORK WEEK OF THE EMPLOYEE FOR WHOM A REGULAR TOUR OF DUTY HAS BEEN ADMINISTRATIVELY FIXED AND THE OVERTIME RATE PAID FOR ANY TIME ACTUALLY WORKED THEREAFTER IN THE WEEK, BUT THE ENTIRE TOUR OF DUTY--- INCLUDING ACTUAL WORK, LEAVE OF ABSENCE WITH PAY OR IDLENESS BECAUSE OF A HOLIDAY OCCURRING ON ONE OF THE REGULAR WORK DAYS OF THE EMPLOYEE--- SHOULD BE REGARDED AS THE WORK WEEK, AND FOR ANY TIME ACTUALLY WORKED DURING THE WEEK IN ADDITION TO THE 40 HOURS THUS COMPUTED THE OVERTIME RATE SHOULD BE PAID REGARDLESS OF THE DAY OF THE WEEK ON WHICH THE OVERTIME IS PERFORMED. * * *

ON THIS BASIS THE EMPLOYEES WERE ENTITLED ONLY TO THEIR REGULAR WAGES FOR THE 8 HOURS FROM 12 MIDNIGHT TO 8 A.M. ON THE HOLIDAY DURING WHICH THEY WORKED (18 COMP. GEN. 191, ID. 575), AND TO 2 1/4 TIMES THEIR REGULAR WAGES FOR THE 2 HOURS OVERTIME WORKED ON THE HOLIDAY FROM 10 P.M. TO MIDNIGHT (IT BEING UNDERSTOOD THAT SAID RATE FOR OVERTIME ON HOLIDAYS IS AUTHORIZED BY THE REGULATIONS OF THE PANAMA CANAL); BUT THE EMPLOYEES WERE NOT ENTITLED TO GRATUITY PAY OR ANY OTHER WAGES FOR ANY OTHER PERIOD OF THE HOLIDAY DURING WHICH THEY DID NOT WORK.

IN LINE WITH THE FOREGOING, COMPUTATION OF THE WEEK'S WAGES IN THE CASE SUBMITTED WOULD BE AS FOLLOWS:

CHART

COMPENSATION

HOURS ALLOWABLE

WORKED (HOURS) MONDAY, MAY 26, 1941, 8 A.M. TO 4 P.M. -------- 8 8 TUESDAY, MAY 27, 1941, 8 A.M. TO 4 P.M. ------- 8 8 WEDNESDAY, MAY 28, 1941, 8 A.M. TO 4 P.M. ----- 8 8 THURSDAY, MAY 29, 1941, 8 A.M. TO 4 P.M. ------ 8 8 THURSDAY, MAY 29, 1941, 8 P.M. TO 12 MIDNIGHT -- 4 6 FRIDAY (HOLIDAY), MAY 30, 1941, 12 MIDNIGHT TO

8 A.M. ---------------------------------------- 8 8 FRIDAY (HOLIDAY), MAY 30, 1941, 10 P.M. TO 12

MIDNIGHT --------------------------------------- 2 4 1/2 SATURDAY, MAY 31, 1941, 12 MIDNIGHT TO 8 A.M. -- 8 12 SATURDAY, MAY 31, 1941, 10 P.M. TO 12 MIDNIGHT-- 2 OR A TOTAL OF 56 HOURS' ACTUAL WORK FOR WHICH PAYMENT WAS AUTHORIZED AS FOR 65 1/2 HOURS.

ASSUMING, AS HAS BEEN DONE FOR THE PURPOSE OF THIS DECISION, THAT THE REGULAR HOURS OF WORK ON THE HOLIDAY WERE ADMINISTRATIVELY CHANGED DUE TO AN EMERGENCY, THE EMPLOYEES HAVE BEEN CORRECTLY PAID A TOTAL OF 65 1/2 HOURS' COMPENSATION FOR THE WEEK IN QUESTION, ALTHOUGH SOME OF THE INDIVIDUAL ITEMS IN YOUR COMPUTATION ARE INCORRECT.

REFERRING TO YOUR QUESTIONS NUMBERED (1) TO (4), IF AN EMPLOYEE DOES NOT WORK OR IS NOT OTHERWISE IN A PAY STATUS DURING AUTHORIZED LEAVE OR ON A HOLIDAY DURING ALL OF THE 40 HOURS OF HIS REGULAR TOUR OF DUTY, COMPENSATION FOR ANY WORK PERFORMED OUTSIDE OF HIS REGULAR TOUR OF DUTY TO MAKE UP FOR THE TIME LOST DURING HIS REGULAR TOUR OF DUTY IS PAYABLE ONLY AT HIS REGULAR RATE.

IN QUESTION (1) THE EMPLOYEE WOULD BE ENTITLED TO COMPENSATION FOR 1 HOUR AT HIS REGULAR RATE AND TO COMPENSATION FOR 7 HOURS AT THE OVERTIME RATE OF TIME AND ONE-HALF FOR OVERTIME WORK ON SATURDAY WHICH WAS NOT A HOLIDAY.

THE SAME WOULD BE TRUE IN RESPECT OF THE EMPLOYEE IN QUESTION (2) EXCEPT IT IS UNDERSTOOD THAT UNDER THE REGULATIONS OF THE PANAMA CANAL OVERTIME COMPENSATION FOR THE 7 HOURS' OVERTIME WORKED ON THE HOLIDAY WOULD BE AT THE RATE OF 2 1/4 TIMES THE REGULAR RATE. THE 40-HOUR-WEEK STATUTE FIXES ONLY A MINIMUM OVERTIME RATE AT TIME AND ONE-HALF AND DOES NOT PRECLUDE THE FIXING OF A HIGHER RATE FOR OVERTIME ON SUNDAYS AND HOLIDAYS. THE FACT THAT THE 1 HOUR LOST DURING THE EMPLOYEE'S REGULAR TOUR OF DUTY WAS MADE UP ON A HOLIDAY WOULD NOT ENTITLE HIM TO MORE THAN HIS REGULAR RATE OF COMPENSATION FOR THAT HOUR.

REFERRING TO QUESTION (3), IT IS ASSUMED THAT THE 8 HOURS WERE WORKED ON THE HOLIDAY DURING THE REGULAR TOUR OF DUTY OF THE EMPLOYEE WHETHER SUCH HOURS WERE THOSE REGULARLY WORKED OR HOURS TO WHICH THE REGULAR TOUR OF DUTY HAD BEEN CHANGED ADMINISTRATIVELY DUE TO AN EMERGENCY. IF SO, THE EMPLOYEE INVOLVED IN QUESTION (3) WOULD BE ENTITLED TO ONLY HIS REGULAR RATE OF COMPENSATION FOR FRIDAY, THE HOLIDAY. IT HAS BEEN HELD THAT AN EMPLOYEE IS ENTITLED TO ONLY HIS REGULAR RATE OF COMPENSATION FOR A HOLIDAY OCCURRING WITHIN HIS REGULAR TOUR OF DUTY WHETHER OR NOT HE IS REQUIRED TO WORK ON THE HOLIDAY. 18 COMP. GEN. 191; ID. 575. CONTRARY TO THE VIEWS EXPRESSED IN YOUR LETTER, IT IS THE VIEW OF THIS OFFICE THAT THIS RULE IS NOT INEQUITABLE, THE PURPOSE OF THE HOLIDAY STATUTE HAVING BEEN TO EQUALIZE THE RIGHTS TO HOLIDAY PAY OF PER DIEM, PER HOUR, AND PIECEWORK EMPLOYEES WITH THE RIGHTS TO HOLIDAY PAY OF EMPLOYEES PAID ON AN ANNUAL BASIS WHO HAVE NEVER BEEN ENTITLED TO OVERTIME OR GRATUITY PAY FOR WORK ON A HOLIDAY OCCURRING WITHIN THEIR REGULAR TOUR OF DUTY.

QUESTION 141 IS NOT ENTIRELY CLEAR. IN THE FIRST PART OF THE QUESTION IT IS STATED THAT THE EMPLOYEE WORKED 7 HOURS ON 5 DAYS, MONDAY TO FRIDAY LAST-MENTIONED DAY BEING A HOLIDAY, A TOTAL OF 35 HOURS.

IN THE LAST PART OF THE QUESTION IT IS STATED THAT THE EMPLOYEE WORKED 13 STRAIGHT HOURS ON FRIDAY, THE HOLIDAY. WHETHER THIS TIME INCLUDED THE REGULAR TOUR OF DUTY ON THE HOLIDAY IS NOT STATED. HOWEVER, IT WILL BE ASSUMED FOR THE PURPOSE OF ANSWERING THIS QUESTION THAT THE 7 HOURS MENTIONED IN THE FIRST PART OF THE QUESTION WERE WORKED ONLY FROM MONDAY THROUGH THURSDAY, INCLUSIVE, WHICH IS OTHERWISE INDICATED AS THE MEANING. IT WILL BE ASSUMED, ALSO, THAT THE 13 HOURS WORKED ON THE HOLIDAY INCLUDED 8 HOURS DURING THE REGULAR TOUR OF DUTY OF EMPLOYEE. ON THIS BASIS THE EMPLOYEE INVOLVED IN QUESTION (4) WOULD BE ENTITLED TO HIS REGULAR RATE OF COMPENSATION FOR 12 HOURS WORKED ON FRIDAY, THE HOLIDAY, INCLUDING THE 4 HOURS LOST ON MONDAY THROUGH THURSDAY, AND 8 HOURS REGULAR TOUR OF DUTY ON THE HOLIDAY, AND TO 1 HOUR'S OVERTIME COMPENSATION AT THE RATE OF 2 1/4 TIMES HIS REGULAR RATE OF COMPENSATION.