B-31473, JANUARY 7, 1943, 22 COMP. GEN. 619

B-31473, JANUARY 7, 1943, 22 COMP. GEN. 619

HOURS OF WORK AND LEAVES OF ABSENCE AS AFFECTED BY THE OVERTIME COMPENSATION ACT OF DECEMBER 22, 1942, AND EXECUTIVE ORDER NO. 9289 THE OVERTIME COMPENSATION ACT OF DECEMBER 22, 1942, AND EXECUTIVE ORDER NO. 9289 ISSUED PURSUANT THERETO, DO NOT AFFECT THE PRIOR HOLDING OF THIS OFFICE THAT ESTABLISHMENT OF A 5-DAY WEEK FOR EMPLOYEES IN THE DEPARTMENTAL SERVICE, LOCATED EITHER IN THE DISTRICT OF COLUMBIA OR ELSEWHERE, WHO, BECAUSE OF RELIGIOUS BELIEFS, CANNOT WORK ON SATURDAYS IS PRECLUDED BY SECTION 5 OF THE ACT OF MARCH 3, 1893, AS AMENDED, REQUIRING OF ALL DEPARTMENTAL EMPLOYEES "NOT LESS THAN 7 HOURS OF LABOR EACH DAY, EXCEPT SUNDAYS AND DAYS DECLARED PUBLIC HOLIDAYS BY LAW OR EXECUTIVE ORDER," BUT THAT A 5-DAY WEEK MAY BE ESTABLISHED FOR SUCH EMPLOYEES IN THE FIELD SERVICE. AS TO DEPARTMENTAL EMPLOYEES FOR WHOM THERE HAS BEEN ESTABLISHED, UNDER AUTHORITY OF THE OVERTIME COMPENSATION ACT OF DECEMBER 22, 1942, AND EXECUTIVE ORDER NO. 9289 ISSUED PURSUANT THERETO, A REGULAR WORKWEEK OF 6 DAYS, 8 HOURS EACH, MONDAY THROUGH SATURDAY, SATURDAYS INCLUDED WITHIN EXTENDED PERIODS OF ANNUAL OR SICK LEAVE MUST BE CHARGED AGAINST THE EMPLOYEES' ANNUAL OR SICK LEAVE CREDIT, BUT, AS TO FIELD SERVICE EMPLOYEES FOR WHOM SATURDAYS HAVE BEEN ADMINISTRATIVELY ESTABLISHED AS NONWORK DAYS, SUCH SATURDAYS WITHIN PERIODS OF LEAVE ARE NOT REQUIRED TO BE CHARGED AGAINST LEAVE CREDITS. ALL EMPLOYEES ENTITLED TO ANNUAL LEAVE, OTHER THAN "TEMPORARY" OR "INDEFINITE" EMPLOYEES, MAY BE GRANTED 2 1/6 DAYS' ANNUAL LEAVE AT THE BEGINNING OF EACH MONTH'S SERVICE, AND, THEREFORE, DEPARTMENTAL EMPLOYEES, OTHER THAN "TEMPORARY" OR "INDEFINITE," FOR WHOM THERE HAS BEEN ESTABLISHED, UNDER AUTHORITY OF THE OVERTIME COMPENSATION ACT OF DECEMBER 22, 1942, AND EXECUTIVE ORDER NO. 9289 ISSUED PURSUANT THERETO, A REGULAR WORKWEEK OF 6 DAYS, 8 HOURS EACH, MONDAY THROUGH SATURDAY, MAY BE GRANTED ANNUAL LEAVE, TO THE EXTENT OF 2 1/6 DAYS, DURING THEIR FIRST MONTH OF SERVICE TO COVER ABSENCES ON SATURDAYS FOR RELIGIOUS REASONS. "TEMPORARY" OR "INDEFINITE" DEPARTMENTAL EMPLOYEES FOR WHOM THERE HAS BEEN ESTABLISHED, UNDER AUTHORITY OF THE OVERTIME COMPENSATION ACT OF DECEMBER 22, 1942, AND EXECUTIVE ORDER NO. 9289 ISSUED PURSUANT THERETO, A REGULAR WORKWEEK OF 6 DAYS, 8 HOURS EACH, MONDAY THROUGH SATURDAY, MAY NOT BE GRANTED ANNUAL LEAVE DURING THEIR FIRST MONTH OF SERVICE TO COVER ABSENCES ON SATURDAYS FOR RELIGIOUS REASONS. THE GRANTING OF LEAVE WITHOUT PAY EACH SATURDAY TO "TEMPORARY" OR "INDEFINITE" EMPLOYEES DURING THEIR FIRST MONTH OF SERVICE CONSTITUTES A BREAK IN SERVICE WHICH PRECLUDES THE EARNING OF ANNUAL LEAVE FOR THAT MONTH, BUT, AS TO PERMANENT EMPLOYEES WHO ARE GRANTED SUCH LEAVE WITHOUT PAY, THE EARNING OF ANNUAL LEAVE FOR THAT MONTH IS NOT AFFECTED.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, WAR PRODUCTION BOARD, JANUARY 7, 1943:

I HAVE A LETTER OF DECEMBER 31, 1942, SIGNED BY YOUR DIRECTOR OF PERSONNEL, AS FOLLOWS:

YOUR DECISION IS REQUESTED ON CERTAIN QUESTIONS PERTAINING TO ESTABLISHING HOURS OF DUTY FOR PERSONS WHO BECAUSE OF RELIGIOUS BELIEFS CANNOT WORK ON SATURDAYS.

PURSUANT TO THE PROVISIONS OF SENATE JOINT RESOLUTION 170, 77TH CONGRESS, 2ND SESSION, AND OF EXECUTIVE ORDER 9289, DECEMBER 26, 1942, THE WAR PRODUCTION BOARD HAS ADOPTED A REGULAR 48 HOUR WORK WEEK, EIGHT HOURS FOR EACH OF SIX DAYS. HOWEVER, A NUMBER OF ITS EMPLOYEES CANNOT WORK ON SATURDAYS BECAUSE OF RELIGIOUS BELIEFS, AND 8 HOUR TOURS OF DUTY ON SUNDAYS ORDINARILY CANNOT BE ARRANGED FOR THEM. WITH RESPECT TO SUCH EMPLOYEES APPOINTED WITH AN INDEFINITE (PERMANENT) STATUS, THE FOLLOWING QUESTIONS ARISE:

1. IS IT PERMISSIBLE UNDER EXISTING LAWS AND EXECUTIVE ORDERS TO ESTABLISH A REGULAR FIVE DAY 40 HOUR WEEK FOR SUCH EMPLOYEES, OMITTING SATURDAYS AND SUNDAYS FROM THE WORK WEEK?

2. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, SHOULD SATURDAYS INCLUDED IN EXTENDED PERIODS OF ABSENCE ON ACCOUNT OF SICK LEAVE OR ANNUAL LEAVE BE COUNTED IN CALCULATING THE NUMBER OF DAYS ABSENCE TO BE CHARGED AGAINST SICK AND ANNUAL LEAVE CREDITS?

3. IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE, CAN SUCH AN EMPLOYEE BE GRANTED ANNUAL LEAVE ON A SATURDAY ABSENCE EVEN THOUGH HE HAS NOT COMPLETED ONE MONTH OF SERVICE DATING FROM THE DATE OF ORIGINAL APPOINTMENT?

4. IF THE ANSWER TO QUESTION 3 IS IN THE NEGATIVE DOES A GRANT OF LEAVE WITHOUT PAY FOR EACH SATURDAY ABSENCE DURING THE FIRST MONTH OF SERVICE CONSTITUTE A BREAK IN SERVICE TO PREVENT SUCH AN EMPLOYEE FROM EVER EARNING ANNUAL LEAVE CREDITS?

THE JOINT RESOLUTION OF DECEMBER 22, 1942, 56 STAT. 1068, PUBLIC LAW 821, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT THE JOINT RESOLUTION ENTITLED "JOINT RESOLUTION EXTENDING THE PERIOD FOR WHICH OVERTIME RATES OF COMPENSATION MAY BE PAID UNDER CERTAIN ACTS," APPROVED JULY 3, 1942, IS AMENDED BY STRIKING OUT " NOVEMBER 30, 1942," AND INSERTING " APRIL 30, 1943: " PROVIDED, THAT THE AUTHORIZATION CONTAINED HEREIN TO PAY OVERTIME COMPENSATION TO CERTAIN GROUPS OF EMPLOYEES IS HEREBY EXTENDED, EFFECTIVE DECEMBER 1, 1942, TO ALL CIVILIAN EMPLOYEES IN OR UNDER THE UNITED STATES GOVERNMENT, INCLUDING GOVERNMENT- OWNED OR CONTROLLED ORGANIZATIONS (EXCEPT EMPLOYEES IN THE LEGISLATIVE AND JUDICIAL BRANCHES), AND TO THOSE EMPLOYEES OF THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT WHO OCCUPY POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED: * * *

THE JOINT RESOLUTION OF JULY 3, 1942, PUBLIC LAW 652, AS AMENDED BY JOINT RESOLUTION OF OCTOBER 2, 1942, 56 STAT. 765, PUBLIC LAW 728, PROVIDES:

THAT THE PROVISIONS FOR THE PAYMENT OF OVERTIME RATES OF COMPENSATION CONTAINED IN THE ACT APPROVED JUNE 28, 1940 (54 STAT. 676); THE ACT APPROVED OCTOBER 21, 1940 (54 STAT. 1205); AND THE ACT APPROVED JUNE 3, 1941 (55 STAT. 241), ARE HEREBY EXTENDED FROM JUNE 30, 1942, TO AND INCLUDING NOVEMBER 30, 1942.

SECTION 1 OF EXECUTIVE ORDER NO. 9289, DATED DECEMBER 26, 1942, PROVIDES:

HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES, OR SUCH OFFICERS OR EMPLOYEES AS THEY MAY DESIGNATE, SHALL ESTABLISH OFFICIAL HOURS OF DUTY AND A REGULAR WORKWEEK FOR EACH EMPLOYEE OR GROUP OF EMPLOYEES. EMPLOYEE SHALL BE REQUIRED TO WORK IN EXCESS OF THE OFFICIALLY ESTABLISHED HOURS OF DUTY EXCEPT UPON THE ORDER OF THE HEAD OF THE DEPARTMENT OR AGENCY OR OF SUCH OFFICER OR EMPLOYEE AS HAS BEEN DELEGATED SPECIFIC AUTHORITY TO REQUIRE SUCH ADDITIONAL WORK.

IT WILL BE NOTED THAT THE JOINT RESOLUTION TO DECEMBER 22, 1942, MAKES NO CHANGE IN ANY PREVIOUS LAW WITH RESPECT TO THE NUMBER OF HOURS PER WEEK WHICH EMPLOYEES OF THE GOVERNMENT ARE REQUIRED TO WORK, AND EXECUTIVE ORDER NO. 9289, SUPRA, DOES NOT PURPORT TO AUTHORIZE ADMINISTRATIVE OFFICERS TO FIX "OFFICIAL HOURS OF DUTY AND A REGULAR WORKWEEK FOR EACH EMPLOYEE OR GROUP OF EMPLOYEES" IN CONTRAVENTION OF EXISTING LAW.

SECTION 5 OF THE ACT OF MARCH 3, 1893, AS AMENDED BY SECTION 7 OF THE ACT OF MARCH 15, 1898, 30 STAT. 316, PROVIDES, SO FAR AS HERE MATERIAL, AS FOLLOWS:

HEREAFTER IT SHALL BE THE DUTY OF THE HEADS OF THE SEVERAL EXECUTIVE DEPARTMENTS, IN THE INTEREST OF THE PUBLIC SERVICE, TO REQUIRE OF ALL CLERKS AND OTHER EMPLOYEES, OF WHATEVER GRADE OR CLASS, IN THEIR RESPECTIVE DEPARTMENTS, NOT LESS THAN SEVEN HOURS OF LABOR EACH DAY, EXCEPT SUNDAYS AND DAYS DECLARED PUBLIC HOLIDAYS BY LAW OR EXECUTIVE ORDER: PROVIDED, THAT THE HEADS OF THE DEPARTMENTS MAY, BY SPECIAL ORDER, STATING THE REASON, FURTHER EXTEND THE HOURS OF ANY CLERK OR EMPLOYEE IN THEIR DEPARTMENTS, RESPECTIVELY; BUT IN CASE OF AN EXTENSION IT SHALL BE WITHOUT ADDITIONAL COMPENSATION: * * *

WITH REGARD TO THE ABOVE-QUOTED STATUTE IT WAS STATED IN DECISION OF JUNE 4, 1936, 15 COMP. GEN. 1056, 1057, AS FOLLOWS:

THIS STATUTE, WHICH IS STILL IN EFFECT, REQUIRED WORK ON 6 DAYS PER WEEK, EXCEPT WHEN 1 OF THE 6 DAYS IS A HOLIDAY DECLARED BY LAW OR EXECUTIVE ORDER, AND IS APPLICABLE TO ALL ADMINISTRATIVE EMPLOYEES IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA. WHILE THE SATURDAY HALF -HOLIDAY LAW OF MARCH 3, 1931, 46 STAT. 1482, SHORTENED TO 4 HOURS THE WORK DAY ON SATURDAY, IT DID NOT OTHERWISE AFFECT THE REQUIREMENT OF THE ACT OF MARCH 15, 1898, SUPRA.

SECTION 1 OF THE ACT OF DECEMBER 22, 1942, SUPERSEDES AND RENDERS INOPERATIVE THAT PORTION OF THE 1898 STATUTE, SUPRA, PROVIDING "BUT IN CASE OF AN EXTENSION IT SHALL BE WITHOUT ADDITIONAL COMPENSATION.' SECTION 3 OF THE ACT OF DECEMBER 22, 1942, SUSPENDS THE SATURDAY HALF HOLIDAY LAW OF MARCH 3, 1931, 46 STAT. 1482, WHICH SHORTENED THE WORKDAY ON SATURDAY TO 4 HOURS. OTHERWISE, HOWEVER, THE AMENDED 1893 STATUTE, SUPRA, REMAINS IN FULL FORCE AND EFFECT.

IN DECISION OF AUGUST 28, 1937, 17 COMP. GEN. 192, 193, IT WAS STATED:

SECTION 5 OF THE ACT OF MARCH 3, 1893, 27 STAT. 715 AS AMENDED BY SECTION 7 OF THE ACT OF MARCH 15, 1898, 30 STAT. 316, REQUIRING "NOT LESS THAN 7 HOURS OF LABOR EACH DAY, EXCEPT SUNDAYS AND DAYS DECLARED PUBLIC HOLIDAYS BY LAW OR EXECUTIVE ORDER," WHICH WAS HELD IN DECISION OF JUNE 4, 1936, 15 COMP. GEN. 1056, 1058, CITED BY YOU, TO REQUIRE "WORK ON 6 DAYS PER WEEK, EXCEPT WHEN 1 OF THE 6 DAYS IS A HOLIDAY DECLARED BY LAW OR EXECUTIVE ORDER," IS NOT APPLICABLE TO EMPLOYEES IN THE FIELD SERVICE. OTHER THAN THE 8-HOUR LAW, AS AMENDED BY THE ACT OF MARCH 3, 1913, 37 STAT. 726, PROHIBITING THE EMPLOYMENT OF MECHANICS, LABORERS, AND THOSE IN SIMILAR OCCUPATIONS FOR MORE THAN 8 HOURS ON ANY 1 CALENDAR DAY, EXCEPT IN CASE OF EXTRAORDINARY EMERGENCY, THERE IS NO STATUTE FIXING EITHER A MINIMUM OR MAXIMUM NUMBER OF HOURS WORK REQUIRED OF FIELD EMPLOYEES PER DAY OR PER WEEK. IT IS UNDERSTOOD THE 8-HOUR LAW IS NOT HERE INVOLVED.

ACCORDINGLY, IF ADMINISTRATIVELY DETERMINED TO BE NECESSARY IN THE PRESENT INSTANCE, THIS OFFICE WOULD BE NOT BE REQUIRED TO OBJECT TO THE ESTABLISHMENT OF A 5-DAY WEEK TOUR OF DUTY FOR THE COOPERATIVE EMPLOYEES IN QUESTION. SEE, ALSO, DECISION OF JANUARY 11, 1938, 17 COMP. GEN. 564, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

A 5 DAY WEEK MAY NOT BE ESTABLISHED ADMINISTRATIVELY UNDER EXISTING LAW, FOR SUPERVISORY AND ADMINISTRATIVE EMPLOYEES IN THE DEPARTMENTAL SERVICE, BUT MAY BE SO ESTABLISHED FOR EMPLOYEES IN THE FIELD SERVICE, AND THE DETERMINATION AS TO DEPARTMENTAL OR FIELD SERVICE DEPENDS UPON THE WORK PERFORMED, WHETHER LOCAL, OR OF A GENERAL SUPERVISORY AND ADMINISTRATIVE NATURE, AND NOT UPON THE PLACE OR CITY IN WHICH THE OFFICE INVOLVED IS LOCATED.

A 5-DAY WEEK WITH FULL TIME COMPENSATION MAY BE ESTABLISHED ADMINISTRATIVELY FOR THE NIGHT SHIFT OF ADMINISTRATIVE FIELD EMPLOYEES OF THE SOCIAL SECURITY BOARD LOCATED AT BALTIMORE, MD., BUT NOT FOR THE NIGHT SHIFT OF THE DEPARTMENTAL EMPLOYEES SO LOCATED.

ALSO, THERE IS FOR CONSIDERATION HERE THE DECISION OF MAY 28, 1941, 20 COMP. GEN. 827, 831, WHEREIN IT WAS STATED:

* * * LEAVE STATUTES HAVE BEEN ENACTED AND REGULATIONS PROMULGATED AND REGULAR DAYS AND HOURS OF WORK OR TOURS OF DUTY HAVE BEEN ESTABLISHED BY LAW AND/OR ADMINISTRATIVE REGULATIONS WITHOUT REGARD TO THE RELIGIOUS BELIEFS OF ANY EMPLOYEE OR GROUP OF EMPLOYEES. AS TO EMPLOYEES PAID ON AN ANNUAL BASIS IN THE DEPARTMENTAL SERVICE, SATURDAY IS ESTABLISHED BY LAW AS A REGULAR DAY OF WORK * * *. IN THE FIELD SERVICE IT IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE TO ELIMINATE SATURDAY AS A DAY OF WORK. SEE 17 COMP. GEN. 564, AND THE LAWS AND DECISIONS THEREIN CITED.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE SO FAR AS CONCERNS THE DEPARTMENTAL SERVICE LOCATED EITHER IN THE DISTRICT OF COLUMBIA OR ELSEWHERE, AND IN THE AFFIRMATIVE AS TO THE FIELD SERVICE.

QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE SO FAR AS CONCERNS THE DEPARTMENTAL SERVICE EITHER IN THE DISTRICT OF COLUMBIA OR ELSEWHERE. TO OTHER EMPLOYEES SEE THE ACT OF MARCH 2, 1940, 54 STAT. 38; 20 COMP. GEN. 154, 170; 21 ID. 101, 621. COMPARE 19 COMP. GEN. 955.

IN VIEW OF THE ANSWERS TO QUESTIONS 1 AND 2, QUESTION 3 COULD RELATE ONLY TO THE DEPARTMENTAL SERVICE. SECTIONS 2 AND 5 OF THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384), DATED MARCH 29, 1940, PROVIDE:

SEC. 2. PERMANENT EMPLOYEES WHO HAVE BEEN EMPLOYED CONTINUOUSLY FOR ONE YEAR OR MORE AND WHO DO NOT CONTEMPLATE LEAVING THE SERVICE DURING THE CURRENT CALENDAR YEAR SHALL BE ENTITLED TO CURRENT ANNUAL LEAVE WITH PAY AT ANY TIME DURING SUCH CALENDAR YEAR NOT IN EXCESS OF 26 DAYS. ADDITION TO CURRENT ANNUAL LEAVE SUCH EMPLOYEES MAY BE GRANTED ACCUMULATED LEAVE NOT TO EXCEED 60 DAYS.

SEC. 5. EMPLOYEES, OTHER THAN TEMPORARY, ENTERING THE SERVICE BY ORIGINAL APPOINTMENT OR BY REINSTATEMENT SHALL BE ENTITLED TO ANNUAL LEAVE WITH PAY ACCRUING AT THE RATE OF 2 1/6 DAYS FOR EACH MONTH OF SERVICE RENDERED UNTIL THE COMPLETION OF ONE YEAR'S SERVICE. EMERGENCY AND INDEFINITE EMPLOYEES SHALL BE ENTITLED TO ANNUAL LEAVE WITH PAY ACCRUING AT THE RATE OF 2 1/6 DAYS PER MONTH FOR EACH MONTH OF SERVICE AND MAY IN ADDITION THERETO BE GRANTED ACCUMULATED LEAVE.

DURING THE FIRST YEAR OF SERVICE OF ALL EMPLOYEES ENTITLED TO LEAVE, OTHER THAN "TEMPORARY" AND ,INDEFINITE," THERE IS NO PROHIBITION IN THE REGULATIONS OR DECISIONS AGAINST THE CREDITING OF ANNUAL LEAVE AT THE RATE OF 2 1/6 DAYS AT THE BEGINNING OF EACH MONTH OF SERVICE. ACCORDINGLY, AS TO ALL EMPLOYEES ENTITLED TO LEAVE, OTHER THAN TEMPORARY AND INDEFINITE, QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE TO THE EXTENT OF 2 1/6 DAYS LEAVE CREDITED TO THEM AT THE BEGINNING OF THE FIRST MONTH OF SERVICE, AND IN THE NEGATIVE AS TO TEMPORARY AND INDEFINITE EMPLOYEES. SEE 21 COMP. GEN. 101; 20 ID. 827.

QUESTION 4 IS ANSWERED IN THE NEGATIVE AS TO PERMANENT EMPLOYEES AND IN THE AFFIRMATIVE AS TO TEMPORARY AND INDEFINITE EMPLOYEES AS THOSE TERMS ARE DEFINED IN SECTION 1 OF THE LEAVE REGULATIONS. 20 COMP. GEN. 827.