B-44488, SEPTEMBER 23, 1944, 24 COMP. GEN. 254

B-44488: Sep 23, 1944

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WHO ARE EXCUSED FROM WORKING (BECAUSE OF ILLNESS OR OTHERWISE) ON A SATURDAY ON WHICH THEY WOULD OTHERWISE BE REQUIRED TO WORK UNDER PRESENT WAR-EMERGENCY SCHEDULES. ALTHOUGH IT IS NOT WITHIN THEIR REGULAR 40-HOUR WEEKLY TOUR OF DUTY ( MONDAY THROUGH FRIDAY). WHOSE WEEKLY TOUR OF DUTY IS MONDAY THROUGH FRIDAY. SATURDAYS ARE "NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE" WHICH ARE EXCLUDED AS DAYS OF ANNUAL OR SICK LEAVE BY THE ACT OF MARCH 2. WORK ON SATURDAYS IS REGULARLY REQUIRED. 1944: I HAVE YOUR LETTER OF SEPTEMBER 11. WERE EXCLUDED FROM THE CLASSIFICATION ACT OF 1923 AS AMENDED. WERE PLACED UNDER AN HOURLY- RATE PAY SCALE ESTABLISHED BY A WAGE BOARD. WORK PERFORMED ON SATURDAY AND SUNDAY IS COMPENSATED AT OVERTIME RATES.

B-44488, SEPTEMBER 23, 1944, 24 COMP. GEN. 254

HOLIDAYS - LEAVES OF ABSENCE - FORTY-HOUR WEEK EMPLOYEES AN EMPLOYEE SUBJECT TO THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, MAY BE ADMINISTRATIVELY EXCUSED FROM WORKING ON A HOLIDAY WHICH HAS BEEN DECLARED BY GENERAL ADMINISTRATIVE ORDER TO BE A WORK DAY AND WHICH FALLS WITHIN HIS WEEKLY TOUR OF DUTY ( MONDAY THROUGH FRIDAY), AND THE HOLIDAY MAY BE COUNTED AS 8 HOURS TOWARDS HIS 40-HOUR BASIC WORKWEEK. SICK LEAVE, AS SUCH, MAY NOT BE GRANTED OR CHARGED AN EMPLOYEE SUBJECT TO THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, FOR ABSENCE ON A HOLIDAY WITHIN HIS REGULAR TOUR OF DUTY ( MONDAY THROUGH FRIDAY) WHICH HAS BEEN ADMINISTRATIVELY DECLARED TO BE A WORK DAY. EMPLOYEES SUBJECT TO THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, WHO ARE EXCUSED FROM WORKING (BECAUSE OF ILLNESS OR OTHERWISE) ON A SATURDAY ON WHICH THEY WOULD OTHERWISE BE REQUIRED TO WORK UNDER PRESENT WAR-EMERGENCY SCHEDULES, ALTHOUGH IT IS NOT WITHIN THEIR REGULAR 40-HOUR WEEKLY TOUR OF DUTY ( MONDAY THROUGH FRIDAY), MAY NOT BE GRANTED OR CHARGED SICK LEAVE OR OTHERWISE PAID COMPENSATION FOR THAT DAY, WHETHER OR NOT SATURDAY BE A LEGAL HOLIDAY. IN THE CASE OF EMPLOYEES SUBJECT TO THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, WHOSE WEEKLY TOUR OF DUTY IS MONDAY THROUGH FRIDAY, SATURDAYS ARE "NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE" WHICH ARE EXCLUDED AS DAYS OF ANNUAL OR SICK LEAVE BY THE ACT OF MARCH 2, 1940, AND SECTION 4.5 OF THE ANNUAL AND SICK LEAVE REGULATIONS, EVEN THOUGH, UNDER PRESENT WAR- EMERGENCY SCHEDULES, WORK ON SATURDAYS IS REGULARLY REQUIRED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 23, 1944:

I HAVE YOUR LETTER OF SEPTEMBER 11, 1944, AS FOLLOWS:

EFFECTIVE JULY 17, 1944, EMPLOYEES OF THE GEOLOGICAL SURVEY OCCUPYING POSITIONS INVOLVING THE REPRODUCTION OF MAPS AND SIMILAR MATERIAL THROUGH LITHOGRAPHIC PROCESSES IN WASHINGTON, D.C., WERE EXCLUDED FROM THE CLASSIFICATION ACT OF 1923 AS AMENDED, AND WERE PLACED UNDER AN HOURLY- RATE PAY SCALE ESTABLISHED BY A WAGE BOARD.

THESE EMPLOYEES' BASIC 40-HOUR WEEKLY TOUR OF DUTY BEGINS ON MONDAY AND ENDS ON FRIDAY OF EACH CALENDAR WEEK, AND WORK PERFORMED ON SATURDAY AND SUNDAY IS COMPENSATED AT OVERTIME RATES.

IN ANTICIPATION OF POSSIBLE ABSENCES OF THESE EMPLOYEES ON THOSE DAYS WHICH UNDER STATUTE STILL REMAIN LEGAL HOLIDAYS BUT WHICH ARE BEING CONSIDERED AS WORK DAYS FOR FEDERAL EMPLOYEES FOR THE DURATION OF THE WAR ( NEW YEAR'S DAY, WASHINGTON'S BIRTHDAY, DECORATION DAY, INDEPENDENCE DAY, LABOR DAY, ARMISTICE DAY, THANKSGIVING DAY), THE FOLLOWING QUESTIONS HAVE ARISEN;

1. MAY THE SAME RULES THAT ARE APPLICABLE TO AN EMPLOYEE ON AN ANNUAL SALARY BE APPLIED TO AN EMPLOYEE PAID AT THE HOURLY RATE--- THAT IS, WHEN ONE OF THESE "HOLIDAYS" FALLS WITHIN THE WEEKLY TOUR OF DUTY ( MONDAY THROUGH FRIDAY) MAY HE BE EXCUSED FROM WORKING (UNDER THE PROVISIONS OF PART IV, SEC. 4.5 OF THE LEAVE REGULATIONS ( REVISED JAN. 1, 1944) (, AND HAVE THAT DAY COUNT AS 8 HOURS TOWARD HIS 40-HOUR BASIC WORK-WEEK?

2. IF ONE OF THE "HOLIDAYS" FALLS ON SATURDAY, AND IF THE EMPLOYEE ALREADY HAS WORKED 40 HOURS MONDAY THROUGH FRIDAY, MAY HE BE EXCUSED FROM WORKING ON THE "HOLIDAY" AND STILL RECEIVE PAY FOR THAT DAY? IF SO, SHOULD HE BE PAID AT THE BASIC OR THE OVERTIME RATE?

3. IF AN EMPLOYEE ON THE HOURLY RATE SUBMITS A CERTIFICATE OF SICK LEAVE TO COVER ABSENCE ON ONE OF THESE "HOLIDAYS" THAT FALLS WITHIN HIS TOUR OF DUTY ( MONDAY THROUGH FRIDAY), SHOULD HE RECEIVE PAY FOR THAT DAY?) THE "HOLIDAY" FALLS ON SATURDAY, SHOULD HE RECEIVE PAY IF ABSENT ON SICK LEAVE; IF SO, AT THE BASIC OR THE OVERTIME RATE?

YOUR EARLY CONSIDERATION OF THESE QUESTIONS WILL BE GREATLY APPRECIATED.

THE ACT OF MARCH 2, 1940, 54 STAT. 38, PROVIDES:

THAT THE DAYS OF ANNUAL LEAVE WITH PAY PROVIDED FOR IN THE ACT OF MARCH 14, 1936 (49 STAT. 1161), AND THE DAYS OF SICK LEAVE WITH PAY PROVIDED FOR IN THE ACT OF MARCH 14, 1936 (49 STAT. 1162), SHALL MEAN DAYS UPON WHICH EMPLOYEES WOULD OTHERWISE WORK AND RECEIVE PAY, AND SHALL BE EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER.

SECTION 4.5 OF THE LEAVE REGULATIONS ( EXECUTIVE ORDER 9414) PROVIDES:

LEAVE SHALL BE CHARGED ONLY FOR ABSENCE UPON DAYS WHICH AN EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY AND SHALL BE EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NON-WORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER: PROVIDED, THAT WHEN A HOLIDAY IS DECLARED BY GENERAL ADMINISTRATIVE ORDER TO BE A WORK DAY, AN EMPLOYEE WHO ABSENTS HIMSELF FROM WORK WITHOUT PERMISSION ON THAT DAY SHALL BE SUBJECT TO DEDUCTION OF ONE DAY'S PAY.

THAT LEAVE REGULATION IS BASED UPON THE TERMS OF THE ABOVE-QUOTED STATUTE AND THE RULES STATED IN DECISION OF THIS OFFICE DATED APRIL 2, 1942, 21 COMP. GEN. 901, TO THE PUBLIC PRINTER, WHICH RULES WERE HELD TO BE APPLICABLE TO BOTH PER ANNUM EMPLOYEES AND TO EMPLOYEES IN THE TRADES AND OCCUPATIONS WHOSE COMPENSATION IS REQUIRED TO BE COMPUTED AND PAID IN ACCORDANCE WITH THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, 48 STAT. 522-- - THE PAY STATUTE HERE INVOLVED--- PROVIDING:

SEC. 23. THE WEEKLY COMPENSATION, MINUS ANY GENERAL PERCENTAGE REDUCTION WHICH MAY BE PRESCRIBED BY ACT OF CONGRESS, FOR THE SEVERAL TRADES AND OCCUPATIONS, 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 THE 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 RULES STATED IN SAID DECISION OF APRIL 2, 1942, HERE PERTINENT, ARE AS FOLLOWS (QUOTING FROM THE SYLLABUS):

ANNUAL OR SICK LEAVE MAY NOT BE CHARGED AGAINST AN EMPLOYEE FOR ABSENCE ON A HOLIDAY ON WHICH HE WOULD OTHERWISE BE REQUIRED TO WORK UNDER A GENERAL ADMINISTRATIVE ORDER, BUT IT IS WITHIN ADMINISTRATIVE DISCRETION TO EXCUSE AN INDIVIDUAL EMPLOYEE FROM WORKING EITHER WITH OR WITHOUT PAY-- - REGARDLESS OF THE BASIS OF COMPENSATION OR WHETHER THE EMPLOYEE IS SUBJECT TO THE HOLIDAY PAY STATUTE OF JUNE 29, 1938--- ON SUCH A HOLIDAY, OR, IF AN EMPLOYEE SHOULD ARBITRARILY ABSENT HIMSELF FROM WORK ON THAT DAY, TO DEDUCT ONE DAY'S PAY AS A DISCIPLINARY MEASURE FOR FAILURE TO WORK.

EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, INCLUDING PER DIEM, PER HOUR, AND PIECEWORK EMPLOYEES SUBJECT TO THE HOLIDAY PAY STATUTE OF JUNE 29, 1938, WHO WERE IN AN ANNUAL OR SICK LEAVE STATUS FOR A PERIOD INCLUDING MONDAY, FEBRUARY 23, 1942--- A HOLIDAY IN THE DISTRICT OF COLUMBIA--- AND WHO DID NOT RECEIVE NOTICE OF THE ADMINISTRATIVE ORDER THAT SUCH HOLIDAY WOULD BE A WORK DAY SHOULD BE PAID FOR THAT DAY, WITHOUT CHARGE TO LEAVE OF ANY KIND.

EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, INCLUDING PER DIEM, PER HOUR, AND PIECEWORK EMPLOYEES SUBJECT TO THE HOLIDAY PAY STATUTE OF JUNE 29, 1938, WHO WERE OFFICIALLY NOTIFIED TO WORK ON MONDAY, FEBRUARY 23, 1942--- A HOLIDAY IN THE DISTRICT OF COLUMBIA--- BUT WHO WERE ABSENT ON THAT DAY FOR SOME PERSONAL REASON SHOULD NOT BE CARRIED IN A LEAVE WITHOUT PAY STATUS FOR THAT DAY, BUT WHETHER IN A PARTICULAR CASE THERE SHOULD BE DEDUCTED ONE DAY'S PAY FOR FAILURE TO WORK IS FOR ADMINISTRATIVE DETERMINATION.

EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, INCLUDING PER DIEM, PER HOUR, AND PIECEWORK EMPLOYEES SUBJECT TO THE HOLIDAY PAY STATUTE OF JUNE 29, 1938, WHO WERE OFFICIALLY NOTIFIED TO WORK ON MONDAY, FEBRUARY 23, 1942--- A HOLIDAY IN THE DISTRICT OF COLUMBIA--- BUT WHO WERE ILL ON SUCH HOLIDAY AND REPORTED SUCH FACT AS SOON AS POSSIBLE SHOULD BE EXCUSED FROM WORKING AND PAID THEIR REGULAR COMPENSATION FOR THAT DAY, WITHOUT CHARGE TO LEAVE OF ANY KIND, IF IT BE ADMINISTRATIVELY DETERMINED THAT THEY WERE ACTUALLY NOT ABLE TO WORK ON THAT DAY.

IN THE LIGHT OF THE ABOVE-STATED RULES QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE. SEE, ALSO 18 COMP. GEN. 191, 575; 22 ID. 1057; 23 ID. 677.

WHILE SATURDAY--- THE SIXTH AND OVERTIME DAY OF THE WEEK--- IS A DAY OF WORK OF THE EMPLOYEES INVOLVED PURSUANT TO AN ADMINISTRATIVE ORDER TO WORK 48 HOURS PER WEEK DUE TO THE WAR EMERGENCY, FOR WHICH OVERTIME COMPENSATION IS PAYABLE (BEYOND THE REGULAR 40-HOUR WEEKLY TOUR OF DUTY), UNDER THE TERMS OF THE ACT OF MARCH 28, 1934, SUPRA, SATURDAY IS NOT A PART OF THE REGULAR TOUR OF DUTY OF THE EMPLOYEES AND ACCORDINGLY COMPENSATION MAY NOT BE PAID FOR THAT OVERTIME DAY, WHETHER OR NOT IT BE A HOLIDAY, UNLESS THE EMPLOYEE ACTUALLY PERFORMS "LABOR" (18 COMP. GEN. 186, 191, 206), OR THE EMPLOYEE IS IN A TRAVEL STATUS (DECISION OF AUGUST 3, 1944, B-43439, 24 COMP. GEN. 65) ON THAT DAY. ACCORDINGLY, QUESTION 2 IS ANSWERED IN THE NEGATIVE.

REFERRING TO THE FIRST SUBQUESTION UNDER QUESTION 3, WHILE SICK LEAVE, AS SUCH, MAY NOT BE GRANTED OR CHARGED FOR A HOLIDAY ON THE BASIS OF A MEDICAL CERTIFICATE, IT IS WITHIN ADMINISTRATIVE DISCRETION TO EXCUSE THE EMPLOYEE BECAUSE OF ILLNESS WITHOUT LOSS OF COMPENSATION ON A HOLIDAY FALLING WITHIN A REGULAR TOUR OF DUTY OF THE EMPLOYEE. SEE THE RULES ABOVE QUOTED FROM THE SYLLABUS OF THE DECISION OF APRIL 2, 1942. ALSO, SEE ANSWER TO QUESTION 1, SUPRA.

REFERRING TO THE SECOND SUBQUESTION OF QUESTION 3, LEAVE OF ABSENCE MAY NOT BE GRANTED OR CHARGED FOR SATURDAYS, THE OVERTIME DAYS, FOR THE REASON THAT THEY ARE "NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE" FOR THE CLASS OF EMPLOYEES HERE INVOLVED WITHIN THE MEANING OF THE LEAVE LAW AND REGULATIONS ABOVE QUOTED. CF. 22 COMP. GEN. 1057; 23 ID. 677, QUESTION AND ANSWER 8. WHILE, OF COURSE, THE EMPLOYEES MAY BE EXCUSED FROM WORKING ON SATURDAYS DUE TO ILLNESS, THEY MAY NOT BE PAID ANY COMPENSATION IF THEY BE ABSENT FROM DUTY WHETHER OR NOT IT BE A HOLIDAY.