B-31983, FEBRUARY 5, 1943, 22 COMP. GEN. 762

B-31983, FEBRUARY 5, 1943, 22 COMP. GEN. 762

COMPENSATION - HOLIDAYS - OVERTIME COMPENSATION ACT OF DECEMBER 22, 1942 FEDERAL EMPLOYEES ARE ENTITLED UNDER THE ACT OF DECEMBER 22, 1942, AND EXECUTIVE ORDER NO. 9289 ISSUED THEREUNDER, ONLY TO THE SAME PRO RATA GROSS COMPENSATION, INCLUDING BASIC AND OVERTIME, FOR A HOLIDAY OCCURRING WITHIN THE "ESTABLISHED OFFICIAL HOURS OF DUTY AND A REGULAR WORKWEEK" (QUOTING FROM SECTION 1 OF SAID EXECUTIVE ORDER) AS IS PAYABLE FOR OTHER DAYS, REGARDLESS OF WHETHER WORK BE REQUIRED ON SAID HOLIDAYS.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, INTERSTATE COMMERCE COMMISSION, FEBRUARY 5, 1943:

I HAVE YOUR LETTER OF JANUARY 23, 1943, AS FOLLOWS:

THE INTERSTATE COMMERCE COMMISSION WOULD APPRECIATE A FORMAL RULING FROM YOUR OFFICE WITH RESPECT TO THE PROPER INTERPRETATION TO BE PLACED ON SENATE JOINT RESOLUTION NO. 170, 77TH CONGRESS, 2ND SESSION, AND OF EXECUTIVE ORDER NO. 9289, DECEMBER 26, 1942, ON THE QUESTION OF OVERTIME PAYMENT ON DAYS DECLARED PUBLIC HOLIDAYS BY LAW OR EXECUTIVE ORDER.

IF A DAY DECLARED A PUBLIC HOLIDAY BY LAW OR EXECUTIVE ORDER FALLS WITHIN A REGULAR TOUR OF DUTY AND OUR EMPLOYEES ARE DIRECTED TO WORK ON THAT DAY, ARE WE REQUIRED BY THE PROVISIONS OF S.J. 170 AND EXECUTIVE ORDER ISSUED PURSUANT THERETO, TO PAY TIME AND A HALF FOR REQUIRING WORK ON A HOLIDAY IN ADDITION TO THE AMOUNT THAT WOULD BE PAID IF NO WORK WAS REQUIRED ON THAT DAY? IF YOUR ANSWER IS IN THE NEGATIVE, WE WOULD APPRECIATE YOUR RULING AS TO THE PROPER BASIS ON WHICH OVERTIME SHOULD BE COMPUTED.

IN YOUR RULING OF JANUARY 7, 1943, NO. B-31473, ADDRESSED TO THE CHAIRMAN OF THE WAR PRODUCTION BOARD, YOU MADE REPLY TO FOUR QUESTIONS PROPOUNDED BY THAT BOARD. WHILE THE SPECIFIC QUESTION HERE PROPOUNDED WAS NOT SUBMITTED FOR FORMAL DECISION, IT SEEMS TO US THAT THE LANGUAGE USED BY YOU ON PAGE 3 OF THAT COMMUNICATION IS OF PARTICULAR SIGNIFICANCE IN CONNECTION WITH THE QUESTION PROPOUNDED. YOU STATE--

"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.'

THERE IS NO STATUTE MAKING SPECIFIC PROVISION WITH RESPECT TO THE PAYMENT OF COMPENSATION OF PER ANNUM EMPLOYEES FOR HOLIDAYS. IT HAS ALWAYS BEEN ACCEPTED THAT AS PER ANNUM EMPLOYEES ARE PAID FOR EVERY DAY IN THE YEAR, THEY ARE ENTITLED TO THEIR REGULAR COMPENSATION FOR A HOLIDAY OCCURRING WITHIN THEIR REGULAR TOUR OF DUTY OR WORKWEEK, REGARDLESS OF WHETHER THEY BE REQUIRED TO WORK ON THE HOLIDAY. 21 COMP. GEN. 901. AS TO EMPLOYEES PAID COMPENSATION ON ANY OTHER THAN A PER ANNUM BASIS SEE PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, 52 STAT. 1246; ALSO, 18 COMP. GEN. 186, 191, 206, 378.

WHILE AN ADMINISTRATIVE OFFICE IS NOT REQUIRED OR COMPELLED TO INCLUDE HOLIDAYS WITHIN THE OFFICIAL HOURS OF DUTY OR REGULAR WORKWEEK OF FEDERAL EMPLOYEES, IT IS CLEAR THAT UNDER THE ACT OF MARCH 3, 1893, AS AMENDED BY THE ACT OF MARCH 15, 1898, 30 STAT. 316, QUOTED IN YOUR LETTER, AN ADMINISTRATIVE OFFICE MAY DO SO. SEE THE OPINION OF THE ATTORNEY GENERAL DATED AUGUST 15, 1903, 25 OP. ATTY. GEN. 40, IN WHICH IT WAS HELD (QUOTING FROM THE SYLLABUS):

HEADS OF DEPARTMENTS MUST REQUIRE AT LEAST SEVEN HOURS' LABOR OF ALL THEIR CLERKS AND OTHER EMPLOYEES EVERY DAY IN THE YEAR EXCEPT SUNDAYS AND DAYS DECLARED TO BE HOLIDAYS BY SECTION 1389 OF THE CODE OF THE DISTRICT OF COLUMBIA, AND DURING AUTHORIZED LEAVE; AND, IF THE PUBLIC SERVICE REQUIRES IT, THE HOURS OF LABOR MAY BE EXTENDED BY SPECIAL ORDER AND MAY INCLUDE HOLIDAYS AS WELL AS ORDINARY DAYS.

THERE IS NOTHING IN JOINT RESOLUTION NO. 170, APPROVED DECEMBER 22, 1942, 56 STAT. 1068, PUBLIC LAW 821, OR IN THE PRESIDENT'S REGULATIONS THEREUNDER, EXECUTIVE ORDER 9289, DATED DECEMBER 26, 1942, TO REQUIRE ANY MODIFICATION IN THE ABOVE-STATED RULE THAT AN ADMINISTRATIVE OFFICE MAY, WITHIN ITS DISCRETION, INCLUDE A HOLIDAY WITHIN THE OFFICIAL HOURS OF DUTY OR REGULAR WORKWEEK OF EMPLOYEES AND TO INCLUDE SUCH TIME IN THE COMPUTATION OF INCREASED COMPENSATION UNDER THE SAID JOINT RESOLUTION ON THE "OVERTIME" FORMULA. THE STATEMENT IN THE DECISION OF JANUARY 7, 1943, B-31473, 22 COMP. GEN. 619, TO WHICH YOU REFER, THAT THE WORDS "BUT IN CASE OF AN EXTENSION IT SHALL BE WITHOUT ADDITIONAL COMPENSATION" APPEARING IN THE 1893 ACT, AS AMENDED, HAD BEEN SUPERSEDED AND RENDERED INOPERATIVE BY THE JOINT RESOLUTION OF DECEMBER 22, 1942, WAS MADE ONLY WITH REFERENCE TO THE OPERATION OF THE "OVERTIME" FORMULA AUTHORIZED BY THE SAID JOINT RESOLUTION, THE EFFECT OF WHICH STATEMENT WAS TO AUTHORIZE PAYMENT OF THE PRO RATA INCREASE IN COMPENSATION FOR A HOLIDAY THE SAME AS FOR OTHER DAYS. SAID STATEMENT DID NOT, AND WAS NOT INTENDED TO, AUTHORIZE THE PAYMENT OF AN ADDITIONAL AMOUNT OF OVERTIME COMPENSATION FOR WORK ON A HOLIDAY.

ALSO, ATTENTION IS INVITED TO THE GENERAL RULE STATED BY THIS OFFICE IN DECISION OF MARCH 11, 1942, 21 COMP. GEN. 853, 855, AS FOLLOWS:

IN APPLYING THE STATUTES AUTHORIZING PAYMENT OF OVERTIME COMPENSATION FOR WORK REQUIRED IN EXCESS OF A REGULAR TOUR OF DUTY, EITHER ON A WEEKLY BASIS OR DAILY BASIS, THIS OFFICE HAS HELD CONSISTENTLY THAT TIME OFF FROM DUTY IN A PAY STATUS AUTHORIZED BY LAW, SUCH AS FOR ANNUAL LEAVE OF ABSENCE, FOR HOLIDAYS, OR AS COMPENSATORY TIME OFF WITH PAY, MUST BE REGARDED AS A PART OF THE REGULAR TOUR OF DUTY AND OVERTIME COMPENSATION IS PAYABLE FOR WORK ACTUALLY PERFORMED IN ADDITION TO THE REGULAR TOUR OF DUTY, INCLUDING THE TIME OFF THEREIN FOR WHICH REGULAR COMPENSATION IS PAID. 13 COMP. GEN. 295; ID. 370; ID. 444; 14 ID. 761; 16 ID. 757; 18 ID. 191; ID. 575; 20 ID. 555; DECISION OF JANUARY 30, 1942, B-23172, 21 ID. 724. * * *

YOU ARE ADVISED, THEREFORE, THAT EMPLOYEES ARE ENTITLED TO THE SAME PRO RATA GROSS COMPENSATION, INCLUDING BASIC AND OVERTIME, FOR A HOLIDAY OCCURRING WITHIN THE "ESTABLISHED OFFICIAL HOURS OF DUTY AND A REGULAR WORKWEEK" (QUOTING FROM SECTION 1 OF THE PRESIDENT'S REGULATIONS) AS FOR OTHER DAYS, REGARDLESS OF WHETHER WORK BE REQUIRED ON SAID HOLIDAYS.