B-210493, AUGUST 15, 1983, 62 COMP.GEN. 622

B-210493: Aug 15, 1983

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THERE WERE TWO THURSDAY HOLIDAYS FOR WHICH HE CLAIMS PAY ENTITLEMENT ON BASIS THAT ONLY OCCURRENCE OF THE HOLIDAY PREVENTED HIM FROM WORKING. ARE DISTINGUISHED. 1983: THIS DECISION IS ISSUED AT THE REQUEST OF THE FINANCE AND ACCOUNTING OFFICER. ON THE QUESTION OF WHETHER AN EMPLOYEE MAY BE PAID FOR A HOLIDAY WHERE HE WAS IN A LEAVE WITHOUT PAY (LWOP) STATUS ON THE WORKDAY BEFORE AND THE WORKDAY FOLLOWING THE HOLIDAY. THE QUESTION IS ANSWERED YES FOR THE FOLLOWING REASONS. WAS AS REGULARLY SCHEDULED FULL-TIME EMPLOYEE OF THE NATIONAL SECURITY AGENCY. THAT ARRANGEMENT WAS AGENCY APPROVED. WISEMAN DID NOT WORK ON EITHER OF THOSE 2 DAYS NOR WAS HE PAID FOR THEM. EXPRESSES THE VIEW THAT THE INTENT OF THE APPLICABLE PROVISIONS APPEARS TO BE TO DENY PAY FOR A NONWORKED HOLIDAY WHEN IT IS PRESUMED THAT THERE WAS NO INTENTION OF THE INDIVIDUAL TO WORK ON THE HOLIDAY.

B-210493, AUGUST 15, 1983, 62 COMP.GEN. 622

COMPENSATION - HOLIDAYS - LEAVE WITHOUT PAY STATUS - BEFORE AND AFTER HOLIDAY - GRADUAL RETIREMENT PLAN PARTICIPATION A REGULARLY SCHEDULED FULL-TIME EMPLOYEE PARTICIPATED IN ONE OF HIS AGENCY'S GRADUAL RETIREMENT PLANS, WHICH PERMITTED HIM TO WORK 3 DAYS A WEEK AND TAKE LEAVE WITHOUT PAY (LWOP) ON THE OTHER 2 DAYS (WEDNESDAYS AND FRIDAYS). IN NOVEMBER 1982, THERE WERE TWO THURSDAY HOLIDAYS FOR WHICH HE CLAIMS PAY ENTITLEMENT ON BASIS THAT ONLY OCCURRENCE OF THE HOLIDAY PREVENTED HIM FROM WORKING. WHERE AN EMPLOYEE HAS AND MUST MAINTAIN A MINIMUM SCHEDULE, HE MAY BE PAID FOR A WORKDAY DESIGNATED AS A HOLIDAY, EVEN THOUGH BOUNDED BY SCHEDULED LWOP DAYS. 56 COMP.GEN. 393 AND B-206655, MAY 25, 1982, ARE DISTINGUISHED.

MATTER OF: RICHARD A. WISEMAN - GRADUAL RETIREMENT PLAN - PAY FOR NONWORKED HOLIDAYS, AUGUST 15, 1983:

THIS DECISION IS ISSUED AT THE REQUEST OF THE FINANCE AND ACCOUNTING OFFICER, NATIONAL SECURITY AGENCY, ON THE QUESTION OF WHETHER AN EMPLOYEE MAY BE PAID FOR A HOLIDAY WHERE HE WAS IN A LEAVE WITHOUT PAY (LWOP) STATUS ON THE WORKDAY BEFORE AND THE WORKDAY FOLLOWING THE HOLIDAY. THE QUESTION IS ANSWERED YES FOR THE FOLLOWING REASONS.

MR. RICHARD A. WISEMAN, WAS AS REGULARLY SCHEDULED FULL-TIME EMPLOYEE OF THE NATIONAL SECURITY AGENCY. ON AUGUST 28, 1982, HE REQUESTED TO PARTICIPATE IN THE AGENCY'S GRADUAL RETIREMENT PLAN, CHOOSING OPTION 2, WHICH PERMITTED HIM TO REDUCE HIS NUMBER OF DAYS AT WORK, WITH SUCH OTHER DAYS TO BE COVERED BY BEING IN AN LWOP STATUS.

MR. WISEMAN CHOSE TO WORK REGULAR HOURS ON MONDAY, TUESDAY AND THURSDAY, WITH WEDNESDAY AND FRIDAYS COVERED BY LWOP. THAT ARRANGEMENT WAS AGENCY APPROVED. IN NOVEMBER 1982, TWO HOLIDAYS OCCURRED ON THURSDAY, VETERANS DAY (NOVEMBER 11) AND THANKSGIVING (NOVEMBER 25). MR. WISEMAN DID NOT WORK ON EITHER OF THOSE 2 DAYS NOR WAS HE PAID FOR THEM.

THE SUBMISSION, QUOTING A PORTION OF THE AGENCY'S REGULATIONS GOVERNING ENTITLEMENT TO PAY FOR NONWORKED HOLIDAYS, EXPRESSES THE VIEW THAT THE INTENT OF THE APPLICABLE PROVISIONS APPEARS TO BE TO DENY PAY FOR A NONWORKED HOLIDAY WHEN IT IS PRESUMED THAT THERE WAS NO INTENTION OF THE INDIVIDUAL TO WORK ON THE HOLIDAY. IT GOES ON TO POINT OUT THAT EVEN THOUGH MR. WISEMAN'S STATUS ON WEDNESDAYS AND FRIDAYS WAS LWOP, SINCE LWOP ON THESE 2 DAYS WAS A PART OF HIS REGULAR WEEKLY SCHEDULE, THERE IS EVERY REASON TO BELIEVE THAT HE WOULD HAVE REPORTED TO WORK ON HIS REGULARLY SCHEDULED THURSDAY WORKDAY, BUT FOR THE FACT THAT IT WAS A HOLIDAY.

THE GRADUAL RETIREMENT PLANS FOR THE NATIONAL SECURITY AGENCY DEVISED UNDER AUTHORITY OF DEPARTMENT OF DEFENSE INSTRUCTION 1412.3, RETIREMENT PLANNING PROGRAMS, IS CONTAINED IN SECTION 18, OF CHAPTER 379.18, NSA/CSSPMM 30-2. THOSE PROVISIONS GENERALLY AUTHORIZE AN EMPLOYEE TO GRADUALLY ENTER RETIREMENT THROUGH A REDUCTION OF WORK ACTIVITIES FOR A SHORT PERIOD IMMEDIATELY PRECEDING FULL RETIREMENT AND IN CONTEMPLATION OF SUCH RETIREMENT.

PARAGRAPH 18-6 OF THOSE REGULATIONS PROVIDE FIVE OPTIONAL PLANS. PLANS 1 AND 2 PERMIT AN EMPLOYEE TO WORK REDUCED BUT SCHEDULED WORKTIME (NOT LESS THAN 24 HOURS), AND COMBINE THAT REDUCED SCHEDULE WITH EITHER ANNUAL LEAVE OR LWOP, RESPECTIVELY, TO MAKE UP THE REMAINING HOURS TO TOTAL A 40-HOUR WORKWEEK. PLAN 3 PERMITS AN EMPLOYEE TO CHANGE FROM BEING A FULL-TIME EMPLOYEE TO A PART-TIME EMPLOYEE. PLAN 4 PERMITS A FULL-TIME EMPLOYEE TO BECOME AN INTERMITTENT EMPLOYEE AND PERFORM DUTY ON AN UNSCHEDULED AGENCY OPERATIONAL ACTIVITY BASIS. PLAN 5 PERMITS THE EMPLOYEE TO ACTUALLY RETIRE AND BE IMMEDIATELY REEMPLOYED ON A LESS THAN FULL-TIME BASIS.

IN 18 COMP.GEN. 206 (1938), WE RULED THAT IN THE ABSENCE OF OTHER UNUSUAL FACTS OR CIRCUMSTANCES, THE PRESUMPTION THAT A REGULARLY SCHEDULED EMPLOYEE WAS RELIEVED OR PREVENTED FROM WORKING ON A HOLIDAY REQUIRED A SHOWING THAT HE WAS ON DUTY AT THE CLOSE OF THE WORKDAY BEFORE AND AT THE BEGINNING OF THE WORKDAY FOLLOWING THE HOLIDAY. IN 45 COMP.GEN. 291 (1965) WE AUTHORIZED A MODIFICATION OF THAT PRESUMPTION TO PERMIT PAYMENT FOR SUCH NONWORKED HOLIDAYS EVEN THOUGH THE EMPLOYEE WAS IN AN AUTHORIZED LEAVE OF ABSENCE ON ONE OF THOSE WORKDAYS SO LONG AS HE WAS IN A PAY STATUS ON THE OTHER WORKDAY.

BECAUSE THESE TWO DECISIONS AND SEVERAL OTHERS SEEMED TO PERMIT DIFFERING HOLIDAY PAY ADMINISTRATION AMONG VARIOUS AGENCIES, WE WERE REQUESTED TO CLARIFY THE MATTER. IN MATTER OF PAY FOR HOLIDAY NOT WORKED, 56 COMP.GEN. 393 (1977), WE RULED THAT SO LONG AS AN EMPLOYEE IS IN A PAY STATUS ON EITHER THE WORKDAY PRECEDING A HOLIDAY OR ON THE WORKDAY SUCCEEDING A HOLIDAY, HE IS ENTITLED TO STRAIGHT-TIME PAY FOR THE HOLIDAY EVEN THOUGH HE IS IN AN AUTHORIZED LWOP STATUS OR, FOR THAT MATTER, IN AN ABSENT WITHOUT LEAVE STATUS ON THE OTHER WORKDAY.

IN DECISION MATTER OF EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, B-206655, MAY 25, 1982, WE CONSIDERED THE QUESTION OF ENTITLEMENT OF EMPLOYEES TO BE PAID FOR THE HALF-DAY THEY WERE EXCUSED FROM DUTY ON DECEMBER 24, 1981, ON THE RECOMMENDATION OF THE PRESIDENT. CITING TO 56 COMP.GEN.393, SUPRA, WE PERMITTED EMPLOYEES WHO WERE IN A PAY STATUS DURING THE EARLIER PART OF THAT DAY OR AT THE BEGINNING OF THE FIRST WORKDAY FOLLOWING TO BE PAID FOR THAT ABSENCE. HOWEVER, WE RULED THAT EMPLOYEES WHO WERE IN A LWOP STATUS ON DECEMBER 24TH AND ALSO ON THE FIRST WORKDAY FOLLOWING, WOULD NOT BE ENTITLED TO PAY FOR THE EXCUSED PERIOD.

THE RULING IN THAT CASE, OF COURSE, WAS PREDICTED ON THE FACT THAT THE EMPLOYEES WHO WERE IN AN LWOP STATUS, BEFORE AND FOLLOWING THE PRESIDENTIALLY EXCUSED PERIOD, WERE APPARENTLY IN AN INDEFINITE LWOP STATUS, WHICH WOULD HAVE INCLUDED ALL DAYS IN BETWEEN. AS A RESULT, THE PRESUMPTION THAT SUCH AN EMPLOYEE WOULD BE PREVENTED FROM WORKING A DAY DESIGNATED AS A HOLIDAY WITHIN SUCH A PERIOD WOULD NOT ARISE.

WE BELIEVE THE PRESENT CASE IS DISTINGUISHABLE FROM THOSE TWO CASES. MR. WISEMAN, AS A FULL-TIME EMPLOYEE, HAD A REGULAR BUT REDUCED WEEKLY SCHEDULE OF WORK WHICH INCLUDED 2 DAYS OF LWOP, SPECIFICALLY SCHEDULED FOR WEDNESDAYS AND FRIDAYS. IN VIEW OF THE FACT THAT PLAN 2 OF THE GRADUAL RETIREMENT PROGRAM REQUIRED THE SPECIFIC SCHEDULING OF WORKTIME NOT LESS THAN 24 HOURS IN ANY 1 WEEK, THEN EACH OF THE 3 DAYS HE WAS SCHEDULED TO WORK WOULD HAVE TO BE COVERED BY A PAY STATUS IN ORDER FOR HIM TO RETAIN ELIGIBILITY UNDER THE PROGRAM. THUS, IN CASES LIKE MR. WISEMAN'S WHERE DAYS OF WORK ARE SPECIFICALLY SCHEDULED DURING A WORKWEEK AND ONE OF THOSE DAYS IS DESIGNATED AS A HOLIDAY EVEN THOUGH IT IS BOUNDED BY SCHEDULED LWOP DAYS, IT MAY BE PRESUMED THAT BUT FOR THE HOLIDAY OCCURRENCE ON THAT DAY, THE EMPLOYEE WOULD HAVE WORKED.

IT IS OUR VIEW, THEREFORE, THAT MR. WISEMAN MAY BE PAID FOR THE TWO THURSDAY HOLIDAYS WHICH OCCURRED IN NOVEMBER 1982, IF OTHERWISE CORRECT.