B-216019, SEP 21, 1984, OFFICE OF GENERAL COUNSEL

B-216019, SEP 21, 1984, OFFICE OF GENERAL COUNSEL

LEAVES OF ABSENCE - COMPENSATORY TIME - PROPRIETY OF SUBSTITUTING FOR OVERTIME DIGEST: IN RESPONSE TO A REQUEST FROM THE COMPTROLLER, NAVY DEPARTMENT, WE INFORMALLY ADVISE NAVY THAT A GENERAL SCHEDULE EMPLOYEE MAY NOT TAKE COMPENSATORY TIME OFF FOR HOLIDAY WORK WHEN THE EMPLOYEE IS ENTITLED TO HOLIDAY PREMIUM PAY UNDER 5 U.S.C. 5546(B). IF THE WORK AN EMPLOYEE PERFORMS ON A HOLIDAY IS IRREGULAR OR OCCASIONAL OVERTIME AND IS NOT COMPENSABLE AT HOLIDAY PAY RATES, THE EMPLOYEE MAY TAKE COMPENSATORY TIME OFF FOR SUCH IRREGULAR OR OCCASIONAL OVERTIME. THERE IS NO AUTHORITY TO GRANT WAGE GRADE EMPLOYEES COMPENSATORY TIME OFF IN LIEU OF OVERTIME PAY. WAGE GRADE EMPLOYEES MUST BE PAID FOR ALL OVERTIME WORKED AT THE PRESCRIBED RATES.

W. F. HABERMANN OFFICE OF THE COMPTROLLER DEPARTMENT OF THE NAVY WASHINGTON, D.C. 20350

DEAR MR. HABERMANN:

THIS REFERS TO YOUR LETTER OF JULY 30, 1984, 7420/31, NCF-4, WITH WHICH YOU FORWARDED A QUERY FROM THE COMMANDING OFFICER, NAVY PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, AS TO WHETHER AN EMPLOYEE MAY CHOOSE TO EARN COMPENSATORY TIME FOR WORK PERFORMED ON A HOLIDAY. THE COMPTROLLER GENERAL WILL NOT ISSUE A DECISION ON THE REQUEST AT THIS TIME BECAUSE THE SUBMISSION IS NOT SUFFICIENTLY DETAILED, BUT THE FOLLOWING INFORMATION SHOULD BE OF ASSISTANCE TO YOU.

THE ONLY PROVISION FOR ALLOWING A GENERAL SCHEDULE EMPLOYEE COMPENSATORY TIME OFF IS 5 U.S.C. SEC. 5543 (1982). THAT PROVISION ALLOWS AN AGENCY TO GRANT AN EMPLOYEE COMPENSATORY TIME OFF INSTEAD OF PAYMENT FOR AN EQUAL AMOUNT OF TIME SPENT IN IRREGULAR OR OCCASIONAL OVERTIME WORK. SECTION 5543 DOES NOT PROVIDE FOR COMPENSATORY TIME OFF WHEN AN EMPLOYEE WORKS ON A HOLIDAY AND IS ENTITLED TO HOLIDAY PREMIUM PAY FOR SUCH WORK UNDER 5 U.S.C. SEC. 5546(B) (1982). SEE GENERALLY 53 COMP.GEN. 264 (1973).

THE HOLIDAY PAY STATUTE, 5 U.S.C. SEC. 5546(B) READS AS FOLLOWS:

"AN EMPLOYEE WHO PERFORMS WORK ON A HOLIDAY *** IS ENTITLED TO PAY AT THE RATE OF HIS BASIC PAY, PLUS PREMIUM PAY AT A RATE EQUAL TO THE RATE OF HIS BASIC PAY, FOR THAT HOLIDAY WORK WHICH IS NOT--

"(1) IN EXCESS OF 8 HOURS; OR

"(2) OVERTIME WORK AS DEFINED BY SECTION 5542(A) OF THIS TITLE."

IF AN EMPLOYEE'S WORK ON A HOLIDAY ENTITLES HIM TO HOLIDAY PREMIUM PAY UNDER SECTION 5546(B), THEN BY THE TERMS OF THAT VERY SECTION THAT TIME IS NOT OVERTIME WORK AND HE MAY NOT TAKE COMPENSATORY TIME OFF FOR THE WORK AS 5 U.S.C. SEC. 5543 DOES NOT APPLY TO THAT HOLIDAY WORK. THIS IS SO EVEN THOUGH THE EMPLOYEE WOULD LIKE TO TAKE COMPENSATORY TIME INSTEAD OF HOLIDAY PREMIUM PAY AND EVEN THOUGH IT MIGHT SAVE THE GOVERNMENT MONEY. AN EMPLOYEE MAY NOT WAIVE HIS RIGHT TO COMPENSATION WHICH IS FIXED BY STATUTE. 57 COMP.GEN. 423 (1978); 54 COMP.GEN. 393 (1974). K ON THE HOLIDAY IS NOT COMPENSABLE UNDER 5 U.S.C. SEC. 5546(B) AT HOLIDAY PREMIUM RATES, BUT RATHER IS OVERTIME WORK PERFORMED ON A HOLIDAY, THE EMPLOYEE MAY TAKE COMPENSATORY TIME OFF FOR THAT WORK IF IT IS IRREGULAR OR OCCASIONAL. IN THIS CONNECTION WE NOTE THAT HOLIDAY PREMIUM PAY IS LIMITED TO WORK ON A HOLIDAY WITHIN AN EMPLOYEE'S REGULAR TOUR OF DUTY AND OVERTIME COMPENSATION MAY BE PAID FOR ANY OTHER WORK DONE ON THE HOLIDAY. 50 COMP.GEN. 519, 524 (1971).

ALL OF THE ABOVE APPLIES TO GENERAL SCHEDULE EMPLOYEES. THE RULE FOR WAGE GRADE EMPLOYEES IS FOUND IN FEDERAL PERSONNEL MANUAL SUPPLEMENT 532- 1, SUBCHAPTER S8-4B(10) (INST. 22, DECEMBER 30, 1982), WHICH STATES THAT THERE IS NO AUTHORITY TO GIVE A WAGE GRADE EMPLOYEE COMPENSATORY TIME OFF IN LIEU OF OVERTIME PAY; A WAGE GRADE EMPLOYEE MUST BE PAID FOR ALL OVERTIME WORKED AT THE PRESCRIBED RATE.

WE TRUST THE ABOVE SERVES TO ANSWER YOUR INQUIRY.