B-51947, SEPTEMBER 4, 1945, 25 COMP. GEN. 254

B-51947: Sep 4, 1945

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HOLIDAYS THE EXTRA HOLIDAY COMPENSATION AUTHORIZED BY SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR WORK "ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OF EXECUTIVE ORDER" MAY NOT BE PAID TO EMPLOYEES WHO WERE REQUIRED TO WORK ON AUGUST 15 AND 16. COMPENSATORY TIME OFF MAY NOT BE GRANTED TO EMPLOYEES WHO WERE REQUIRED TO WORK ON AUGUST 15 AND 16. WHEN MOST EMPLOYEES WERE EXCUSED FROM DUTY. WERE REQUIRED TO WORK ON AUGUST 15 AND 16. DAYS ON WHICH MOST EMPLOYEES WERE EXCUSED FROM DUTY PURSUANT TO THE REQUEST OF THE PRESIDENT. ARE ENTITLED TO ONLY THEIR BASIC RATES OF COMPENSATION FOR SUCH WORK. IN THE CASE OF EMPLOYEES WHO WERE ON EXTENDED ANNUAL LEAVE WHICH INCLUDED AUGUST 15 AND 16.

B-51947, SEPTEMBER 4, 1945, 25 COMP. GEN. 254

COMPENSATION; LEAVES OF ABSENCE - AUGUST 15 AND 16, 1945; HOLIDAYS THE EXTRA HOLIDAY COMPENSATION AUTHORIZED BY SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR WORK "ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OF EXECUTIVE ORDER" MAY NOT BE PAID TO EMPLOYEES WHO WERE REQUIRED TO WORK ON AUGUST 15 AND 16, 1945--- DAYS ON WHICH THE PRESIDENT MERELY REQUESTED HEADS OF DEPARTMENTS, ETC., TO EXCUSE EMPLOYEES FROM WORKING WITHOUT A CHARGE AGAINST ANNUAL LEAVE, REQUIRING ONLY SKELETON FORCES TO BE MAINTAINED. IN THE ABSENCE OF STATUTORY AUTHORITY TO GRANT COMPENSATORY TIME OFF FROM DUTY, OTHER THAN THAT CONTAINED IN SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 WITH RESPECT TO IRREGULAR OR OCCASIONAL DUTY IN EXCESS OF 48 HOURS IN ANY REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK, COMPENSATORY TIME OFF MAY NOT BE GRANTED TO EMPLOYEES WHO WERE REQUIRED TO WORK ON AUGUST 15 AND 16, WHEN MOST EMPLOYEES WERE EXCUSED FROM DUTY, WHICH DAYS CONSTITUTED A PART OF THEIR BASIC 40-HOUR WORKWEEK RATHER THAN OVERTIME IN EXCESS OF 48 HOURS IN THE WEEK. THE EXCUSING OF EMPLOYEES FROM DUTY BY ADMINISTRATIVE ORDER ON WEDNESDAY AND THURSDAY, AUGUST 15 AND 16, 1945--- DAYS CONSTITUTING PART OF THEIR BASIC WORKWEEK OF 40 HOURS--- IN ACCORDANCE WITH THE PRESIDENT'S REQUEST, DID NOT EFFECT A LOSS OF PAY STATUS ON ACCOUNT OF SUCH ABSENCE, AND, THEREFORE, OVERTIME COMPENSATION PROVIDED BY SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 MAY BE PAID FOR TIME WORKED ON THE FOLLOWING SATURDAY--- THE "OVERTIME" DAY OF THE ADMINISTRATIVE WORKWEEK. EMPLOYEES SUBJECT TO THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, WHO, DURING THEIR REGULAR 40-HOUR WEEKLY TOUR OF DUTY, WERE REQUIRED TO WORK ON AUGUST 15 AND 16, 1945, DAYS ON WHICH MOST EMPLOYEES WERE EXCUSED FROM DUTY PURSUANT TO THE REQUEST OF THE PRESIDENT, ARE ENTITLED TO ONLY THEIR BASIC RATES OF COMPENSATION FOR SUCH WORK, IN THE ABSENCE OF A STATUTE AUTHORIZING PREMIUM OR EXTRA PAY FOR WORK ON A NONWORK DAY OCCURRING DURING THE REGULAR TOUR OF DUTY OF SUCH EMPLOYEES. THE EXCUSING OF EMPLOYEES SUBJECT TO THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, FROM WORK ON WEDNESDAY AND THURSDAY, AUGUST 15 AND 16, 1945--- DAYS OCCURRING DURING THEIR REGULAR 40-HOUR WEEKLY TOUR OF DUTY -- PURSUANT TO THE PRESIDENT'S REQUEST, HAD NO EFFECT UPON THE RIGHT OF SUCH EMPLOYEES TO OVERTIME COMPENSATION FOR WORK ON THE FOLLOWING SATURDAY. IN THE CASE OF EMPLOYEES WHO WERE ON EXTENDED ANNUAL LEAVE WHICH INCLUDED AUGUST 15 AND 16, 1945, SUCH DAYS MAY BE REGARDED AS "NONWORK DAYS ESTABLISHED * * * BY * * * ADMINISTRATIVE ORDER" WITHIN THE MEANING OF THE ACT OF MARCH 2, 1940, AND, THEREFORE, NOT CHARGEABLE AGAINST LEAVE IF BY ADMINISTRATIVE ACTION, FORMAL OR INFORMAL, IN RESPONSE TO THE PRESIDENT'S REQUEST THAT EMPLOYEES BE EXCUSED WITHOUT CHARGE AGAINST ANNUAL LEAVE, THE PARTICULAR DEPARTMENT OR AGENCY ACTUALLY WAS CLOSED, OR ALL EMPLOYEES THEREOF WERE EXCUSED ON THOSE DAYS; HOWEVER, IN THE ABSENCE OF SUCH ACTION, LEAVE MUST BE CHARGED. EMPLOYEES WHOSE "OVERTIME" DAY FELL EITHER ON WEDNESDAY OR THURSDAY, AUGUST 15 OR 16, 1945, DAYS ON WHICH THEY WERE ADMINISTRATIVELY EXCUSED FROM DUTY PURSUANT TO THE PRESIDENT'S REQUEST, MAY NOT BE PAID OVERTIME COMPENSATION UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, PAYMENT OF OVERTIME COMPENSATION BEING CONDITIONED UPON ACTUAL PERFORMANCE OF DUTY. UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, NO COMPENSATION--- EITHER AT STRAIGHT-TIME OR OVERTIME RATES--- MAY BE PAID TO EMPLOYEES FOR A LEGAL HOLIDAY ( LABOR DAY IN THIS INSTANCE) FALLING ON THE "OVERTIME" DAY OF THEIR ADMINISTRATIVE WORKWEEK, IF THEY PERFORM NO WORK ON THAT DAY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, SEPTEMBER 4, 1945:

I HAVE YOUR LETTER OF AUGUST 27, 1945, AS FOLLOWS:

A NUMBER OF QUESTIONS HAVE BEEN RAISED CONCERNING PAYMENTS TO CERTAIN EMPLOYEES OF THE DEPARTMENT OF COMMERCE FOR THE DAYS AUGUST 15 AND 16, 1945, ON WHICH THE MAJORITY OF THE EMPLOYEES OF THE DEPARTMENT BOTH IN WASHINGTON AND THE FIELD WERE EXCUSED FROM DUTY IN ACCORDANCE WITH THE PRESS RELEASE OF THE PRESIDENT OF THE UNITED STATES ON AUGUST 14, 1945, WHICH STATED IN PART AS FOLLOWS:

" * * * I HEREBY REQUEST ALL OF THE HEADS OF THE DEPARTMENTS, AGENCIES, AND BUREAUS THROUGHOUT THE GOVERNMENT TO EXCUSE THE EMPLOYEES THEREOF FOR TOMORROW AND THURSDAY. THIS ACTIVITY (ACTION) IS TO BE WITHOUT CHARGE AGAINST THE ANNUAL LEAVE OF THE EMPLOYEES. ONLY SKELETON FORCES NEED BE MAINTAINED.'

THE QUESTIONS ON WHICH DECISIONS ARE REQUESTED FOLLOW:

1. IF AN EMPLOYEE WAS REQUIRED TO WORK ON THE WEDNESDAY OR THURSDAY INVOLVED, OR ON BOTH DAYS, AND THESE DAYS CONSTITUTED DAYS IN HIS BASIC ADMINISTRATIVE WORKWEEK AS ESTABLISHED PURSUANT TO SECTION 604 OF PUBLIC LAW 106, 79TH CONGRESS, IS HE ENTITLED TO THE EXTRA HOLIDAY COMPENSATION PROVIDED IN SECTION 302 OF SAID ACT OR IS HE TO BE PAID AT THE BASIC RATE OF COMPENSATION JUST AS IF HE HAD NOT BEEN ASSIGNED TO DUTY ON THESE DAYS? IF THE FIRST ALTERNATIVE QUESTION IS ANSWERED IN THE NEGATIVE, WOULD IT BE IN ORDER ADMINISTRATIVELY TO EXCUSE SUCH EMPLOYEES FROM DUTY WITH PAY FOR A PERIOD OF TIME EQUAL TO THE TIME ON DUTY IN ORDER TO COMPENSATE THEM FOR HAVING WORKED ON THESE DAYS?

2. ARE EMPLOYEES WHO WERE EXCUSED FROM DUTY IN ACCORDANCE WITH THE PRESIDENT'S REQUEST, AND WHOSE OVERTIME DAY WAS SATURDAY, AUGUST 18, 1945, ENTITLED TO COMPENSATION AT THE OVERTIME RATE FOR HOURS OF EMPLOYMENT ON THAT DAY?

3. WOULD EMPLOYEES WHOSE BASIC COMPENSATION IS FIXED ON AN HOURLY BASIS AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY BE ENTITLED (A) TO EXTRA HOLIDAY COMPENSATION UNDER THE SAME CONDITIONS AS SET FORTH IN QUESTION NO. 1, AND (B) TO OVERTIME COMPENSATION UNDER THE SAME CONDITIONS AS SET FORTH IN QUESTION NO. 2?

4. IS THE STATEMENT IN THE PRESS RELEASE THAT "THIS ACTIVITY (ACTION) IS TO BE WITHOUT CHARGE AGAINST THE ANNUAL LEAVE OF THE EMPLOYEES" TO BE INTERPRETED TO MEAN THAT AN EMPLOYEE WHO WAS ON ANNUAL LEAVE FOR A PERIOD OF DAYS WHICH INCLUDED THE WEDNESDAY AND THURSDAY INVOLVED IS NOT TO BE CHARGED WITH ANNUAL LEAVE FOR THESE DAYS, OR THAT HE MAY REQUEST CANCELLATION OF LEAVE ALREADY CHARGED FOR THESE DAYS?

5. BY ADMINISTRATIVE REGULATION, THE DEPARTMENT HAS ESTABLISHED FOR CERTAIN OF ITS EMPLOYEES ENGAGED IN ACTIVITIES REQUIRING CONTINUOUS OPERATIONS, ADMINISTRATIVE WORKWEEKS IN WHICH THE OVERTIME DAY FELL EITHER ON WEDNESDAY OR THURSDAY DURING THE CALENDAR WEEK OF AUGUST 12 18, 1945. ARE SUCH EMPLOYEES ENTITLED TO THE OVERTIME RATE OF COMPENSATION FOR THE HOURS WHICH THEY WOULD HAVE WORKED ON SUCH DAY HAD THEY NOT BEEN EXCUSED FROM DUTY IN ACCORDANCE WITH THE PRESIDENT'S REQUEST?

6. IN CONNECTION WITH QUESTION 5, IT IS REQUESTED THAT YOU ALSO RENDER A DECISION AS TO WHETHER EMPLOYEES WHOSE OVERTIME DAY WILL FALL ON THE FIRST MONDAY IN SEPTEMBER, WHICH HAS BEEN DECLARED A NON-WORK DAY BY A MEMORANDUM DATED AUGUST 23, 1945, FROM THE PRESIDENT TO THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES, WILL BE ENTITLED TO EITHER THE BASIC OR OVERTIME RATE OF COMPENSATION FOR THE HOURS OF DUTY WHICH THEY NORMALLY WOULD HAVE PERFORMED ON THAT DAY.

QUESTION 1

SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, 59 STAT. 298, PUBLIC LAW 106, PROVIDES:

COMPENSATION FOR HOLIDAY WORK

SEC. 302. OFFICERS AND EMPLOYEES TO WHOM THIS TITLE APPLIES WHO ARE ASSIGNED TO DUTY ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER SHALL BE COMPENSATED FOR SUCH DUTY, EXCLUDING PERIODS WHEN THEY ARE IN LEAVE STATUS, IN LIEU OF THEIR REGULAR PAY FOR THAT DAY, AT THE RATE OF ONE AND ONE-HALF TIMES THE REGULAR BASIC RATE OF COMPENSATION: PROVIDED, THAT EXTRA HOLIDAY COMPENSATION PAID UNDER THIS SECTION SHALL NOT SERVE TO REDUCE THE AMOUNT OF OVERTIME COMPENSATION TO WHICH THE EMPLOYEE MAY BE ENTITLED UNDER THIS OR ANY OTHER ACT DURING THE ADMINISTRATIVE WORKWEEK IN WHICH THE HOLIDAY OCCURS, BUT SUCH EXTRA HOLIDAY COMPENSATION SHALL NOT BE CONSIDERED TO BE A PART OF THE BASIC COMPENSATION FOR THE PURPOSE OF COMPUTING SUCH OVERTIME COMPENSATION. THIS SECTION SHALL TAKE EFFECT UPON THE CESSATION OF HOSTILITIES IN THE PRESENT WAR AS PROCLAIMED BY THE PRESIDENT, OR AT SUCH EARLIER TIME AS THE CONGRESS BY CONCURRENT RESOLUTION MAY PRESCRIBE. PRIOR TO SO BECOMING EFFECTIVE, IT SHALL BE EFFECTIVE WITH RESPECT TO ANY DESIGNATED HOLIDAY ONLY IF THE PRESIDENT HAS DECLARED THAT SUCH DAY SHALL NOT BE GENERALLY A WORKDAY IN THE FEDERAL SERVICE.

THE LAST SENTENCE OF THE ABOVE-QUOTED SECTION RELATES ONLY TO "A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER" (QUOTING FROM THE FIRST PART OF THE SECTION). SO FAR AS GOVERNMENT EMPLOYEES ARE CONCERNED, AUGUST 15 AND 16, 1945, WERE NOT HOLIDAYS DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER. THE PRESIDENT MERELY REQUESTED THE HEADS OF DEPARTMENTS, AGENCIES, AND BUREAUS TO EXCUSE CERTAIN FEDERAL EMPLOYEES FROM WORKING ON AUGUST 15 AND 16, REQUIRING ONLY A SKELETON FORCE TO BE MAINTAINED. THE PRESIDENT DID NOT CLOSE, OR DIRECT THE CLOSING OF, ANY FEDERAL OFFICE ON THOSE DAYS. COMPARE THE ORDER OF APRIL 13, 1945, PROVIDING THAT "ALL EXECUTIVE DEPARTMENTS AND AGENCIES WILL BE CLOSED ON SATURDAY AFTERNOON, APRIL 14" (QUOTED IN DECISION OF MAY 23, 1945, 24 COMP. GEN. 843, 844). THEREFORE, THE FIRST ALTERNATE QUESTION OF THE FIRST PART OF QUESTION 1 IS ANSWERED IN THE NEGATIVE, AND THE SECOND, IN THE AFFIRMATIVE.

REFERRING TO THE SECOND PART OF QUESTION 1, THE ONLY STATUTORY AUTHORITY FOR GRANTING COMPENSATORY TIME OFF FROM DUTY APPLICABLE TO EMPLOYEES OF THE DEPARTMENT OF COMMERCE SUBJECT TO THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IS FOUND IN SECTION 202 (A) OF THAT STATUTE, 59 STAT. 297, PROVIDING AS FOLLOWS:

THE HEADS OF DEPARTMENTS, OR OF INDEPENDENT ESTABLISHMENTS OR AGENCIES, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, AND OF THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, AND THE HEADS OF LEGISLATIVE OR JUDICIAL AGENCIES TO WHICH THIS TITLE APPLIES, MAY BY REGULATION PROVIDE FOR THE GRANTING OF COMPENSATORY TIME OFF FROM DUTY, IN LIEU OF OVERTIME COMPENSATION FOR IRREGULAR OR OCCASIONAL DUTY IN EXCESS OF FORTY-EIGHT HOURS IN ANY REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK, TO THOSE PER ANNUM EMPLOYEES REQUESTING SUCH COMPENSATORY TIME OFF FROM DUTY. ITALICS SUPPLIED.)

THEREFORE, AS IT IS INDICATED THAT QUESTION 1 RELATES TO EMPLOYEES FOR WHOM AUGUST 15 AND 16 CONSTITUTED A PART OF THEIR BASIC WORKWEEK OF 40 HOURS RATHER THAN OVERTIME IN EXCESS OF 48 HOURS IN THE WEEK, THERE EXIST NO STATUTORY AUTHORITY FOR GRANTING SUCH EMPLOYEES (WHO WERE REQUIRED WORK ON THOSE DAYS) COMPENSATORY TIME OFF FROM DUTY ON OTHER DAYS. HENCE, THE SECOND PART OF THIS QUESTION IS ANSWERED IN THE NEGATIVE.

QUESTION 2

THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE FOR THE REASON THAT THE EXCUSING OF EMPLOYEES FROM DUTY BY ADMINISTRATIVE ORDER DURING THEIR BASIC WORKWEEK OF 40 HOURS CONTEMPLATES NO LOSS OF PAY STATUS ON ACCOUNT OF SUCH ABSENCE. COMPARE THE ANSWER TO QUESTION 5, INFRA.

QUESTION 3

REFERRING TO PART (A) OF THIS QUESTION, EVEN IF AUGUST 15 AND 16 WERE HOLIDAYS THE QUESTION WOULD BE FOR ANSWERING IN THE NEGATIVE. THAT IS TO SAY, THERE IS NO STATUTE WHICH GRANTS PREMIUM OR EXTRA PAY FOR WORK PERFORMED ON A HOLIDAY OR OTHER NONWORK DAY OCCURRING DURING THE REGULAR TOUR OF DUTY OF 40 HOURS OF EMPLOYEES WHOSE COMPENSATION IS COMPUTED AND PAID IN ACCORDANCE WITH SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522. RULES WITH REGARD THERETO ARE STATED AS FOLLOWS IN DECISION OF AUGUST 23, 1938, 18 COMP. GEN. 191 (QUOTING FROM THE SYLLABUS):

EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WORKING ON A FIVE-DAY 40-HOUR WEEK BASIS, WHO WORK ON LABOR DAY--- SEPTEMBER 5, 1938--- A DAY WITHIN THEIR REGULAR TOUR OF DUTY, WILL BE ENTITLED ONLY TO ONE DAY'S PAY, AND NOT TO PAY FOR THE HOLIDAY AND IN ADDITION FOR THE TIME ACTUALLY WORKED ON THE HOLIDAY AT THEIR REGULAR RATES OF PAY. 13 COMP. GEN. 295, AUTHORIZING ADDITIONAL HOLIDAY PAY UNDER THEN EXISTING STATUTES, RENDERED INOPERATIVE BY PUBLIC RESOLUTION NO. 127, JUNE 29, 1938, 52 STAT. 1246.

EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WORKING ON A FIVE-DAY 40-HOUR WEEK BASIS ( MONDAY THROUGH FRIDAY), WHO WORK ON A LEGAL HOLIDAY FALLING ON A FRIDAY, AND WHO HAVE WORKED 32 HOURS FROM MONDAY TO THURSDAY INCLUSIVE, ARE ENTITLED, UNDER PUBLIC RESOLUTION NO. 127, JUNE 29, 1938, 52 STAT. 1246, TO ONLY ONE DAY'S PAY AT THEIR REGULAR, AND NOT THE OVERTIME RATE, THE HOLIDAY--- WHETHER WORK IS PERFORMED THEREON OR NOT--- MERELY COMPLETING THE 40 HOURS FOR THAT WEEK.

PART (B) OF THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE, FOR THE SAME REASON AS THAT GIVEN IN ANSWERING QUESTION 2, SUPRA, IN THE AFFIRMATIVE.

QUESTION 4

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. ( ITALICS SUPPLIED.)

SINCE, AS STATED IN ANSWER TO QUESTION 1, SUPRA, AUGUST 15 AND 16 WERE NOT HOLIDAYS, THERE IS FOR CONSIDERATION IN ANSWERING THIS QUESTION WHETHER THOSE DAYS NEVERTHELESS MAY BE REGARDED AS HAVING BEEN "NONWORK DAYS ESTABLISHED * * * BY EXECUTIVE OR ADMINISTRATIVE ORDER," WITHIN THE MEANING OF THOSE WORDS AS USED IN THE ABOVE-QUOTED LEAVE STATUTE. THE WORDS OF THE PRESIDENT'S STATEMENT OR PRESS RELEASE QUOTED IN QUESTION 4 EVIDENTLY RELATE ONLY TO HIS REQUEST THAT HEADS OF DEPARTMENTS, ETC., EXCUSE EMPLOYEES ON AUGUST 15 AND 16. THEREFORE, SUCH REQUEST NORMALLY WOULD RELATE ONLY TO EMPLOYEES WHO OTHERWISE WOULD WORK ON WEDNESDAY AND THURSDAY, AUGUST 15 AND 16, 1945. THERE IS NOTHING IN THE STATEMENT OF THE PRESIDENT TO INDICATE THAT HE PURPORTED TO RELIEVE EMPLOYEES ON EXTENDED ANNUAL OR SICK LEAVE FROM A CHARGE OF LEAVE FOR AUGUST 15 AND 16, 1945, WHICH LEAVE ALREADY HAS BEEN REQUESTED AND GRANTED BEFORE HIS REQUEST OF AUGUST 14, 1945, WAS ISSUED. HOWEVER, WHILE THE PRESIDENT DID NOT BY EXECUTIVE ORDER ESTABLISH AUGUST 15 AND 16 AS NONWORK DAYS WITHIN THE MEANING OF THE ABOVE-QUOTED LEAVE STATUTES, IT IS POSSIBLE THAT HEADS OF SOME OF THE DEPARTMENTS OR AGENCIES OF THE GOVERNMENT MAY HAVE DONE SO BY ADMINISTRATIVE ORDER, IN RESPONSE TO THE REQUEST OF THE PRESIDENT. SO, SUCH ADMINISTRATIVE ORDER WOULD BE AS EFFECTIVE TO ESTABLISH NONWORK DAYS WITHIN THE MEANING OF THE ABOVE-QUOTED LEAVE STATUTE AS WOULD AN EXECUTIVE ORDER. CONSEQUENTLY, IF BY ADMINISTRATIVE ACTION, EITHER FORMAL OR INFORMAL, ANY DEPARTMENT OR AGENCY ACTUALLY WAS CLOSED, OR ALL EMPLOYEES THEREOF WERE EXCUSED ON THOSE DAYS, SUCH DAYS PROPERLY ARE TO BE REGARDED, INSOFAR AS THE EMPLOYEES OF SUCH DEPARTMENT OR AGENCY ARE CONCERNED AS NONWORK DAYS ESTABLISHED BY ADMINISTRATIVE ORDER WITHIN THE MEANING OF THE ABOVE-QUOTED LEAVE STATUTE, AND AS TO SUCH EMPLOYEES, THIS QUESTION WOULD BE FOR ANSWERING IN THE AFFIRMATIVE; BUT AS TO THE EMPLOYEES OF ANY DEPARTMENT OR AGENCY WHICH WAS NOT SO CLOSED OR THE EMPLOYEES OF WHICH WERE NOT ALL SO EXCUSED FROM WORKING ON AUGUST 15 AND 16, 1945, THOSE DAYS PROPERLY MAY NOT BE REGARDED AS NONWORK DAYS ESTABLISHED BY ADMINISTRATIVE ORDER WITHIN THE MEANING OF THE ABOVE-QUOTED LEAVE STATUTE AND THIS QUESTION WOULD BE FOR ANSWERING IN THE NEGATIVE.

QUESTION 5

IN DECISION OF AUGUST 7, 1945, B-51218, 25 COMP. GEN. 151, TO THE PRICE ADMINISTRATOR (ANSWER TO QUESTION 4), IT WAS HELD AS FOLLOWS:

SECTION 201 OF THE NEW PAY STATUTE (59 STAT. 296) AUTHORIZES PAYMENT OF OVERTIME COMPENSATION ,FOR ALL HOURS OF EMPLOYMENT, OFFICIALLY ORDERED OR APPROVED, IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK.' THIS CLEARLY CONTEMPLATES THE ACTUAL PERFORMANCE OF REQUIRED DUTY DURING THE PRESCRIBED OVERTIME PERIOD. HENCE, THE JUSTIFICATION FOR EXCUSING AN EMPLOYEE DURING THE PERIOD OF HIS BASIC WORKWEEK WITHOUT MAKING A CHARGE AGAINST HIS AUTHORIZED LEAVE CAN HAVE NO APPLICATION TO AUTHORIZE THE PAYMENT OF OVERTIME COMPENSATION FOR ANY PERIOD DURING WHICH NO REQUIRED SERVICES ARE PERFORMED. THEREFORE, THIS QUESTION IS ANSWERED IN THE NEGATIVE. PURSUANT TO THE RULE THERE STATED, THIS QUESTION IS ANSWERED IN THE NEGATIVE. QUESTION 6

OF COURSE, LABOR DAY IS A HOLIDAY DESIGNATED BY STATUTE. HOWEVER, IT HAS BEEN HELD THAT EMPLOYEES WHOSE COMPENSATION IS COMPUTED AND PAID PURSUANT TO SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ARE NOT ENTITLED TO ANY COMPENSATION FOR A HOLIDAY OCCURRING ON THEIR SO CALLED OVERTIME DAY ON WHICH NO WORK IS PERFORMED. SEE DECISION OF AUGUST 23, 1938, 18 COMP. GEN. 191, IN WHICH THE FOLLOWING RULE IS STATED (QUOTING FROM THE SYLLABUS):

EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WORKING ON A FIVE-DAY 40-HOUR WEEK BASIS ( MONDAY THROUGH FRIDAY), ARE NOT ENTITLED, IN VIEW OF THE PROVISIONS OF PUBLIC RESOLUTION NO. 127, JUNE 29, 1938, 52 STAT. 1246, TO PAY FOR A LEGAL HOLIDAY FALLING ON SATURDAY, A NON-WORK DAY. 15 COMP. GEN. 700, AUTHORIZING SUCH LEGAL HOLIDAY PAY UNDER THEN EXISTING STATUTES, RENDERED INOPERATIVE BY THE PUBLIC RESOLUTION, SUPRA.

THE SAME RULE IS APPLICABLE UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 WHICH CONTAINS NO PROVISION AUTHORIZING PAYMENT OF COMPENSATION AT ANY RATE--- EITHER STRAIGHT TIME OR OVERTIME--- FOR A HOLIDAY NOT OCCURRING WITHIN THE 40-HOUR BASIC WORKWEEK OF AN EMPLOYEE ON WHICH NO WORK IS PERFORMED, AND SECTION 201 OF THE STATUTE WHICH AUTHORIZES PAYMENT OF OVERTIME COMPENSATION ONLY ,FOR ALL HOURS OF EMPLOYMENT, OFFICIALLY ORDERED OR APPROVED, IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK" WOULD PRECLUDE PAYMENT OF OVERTIME COMPENSATION FOR A HOLIDAY OUTSIDE THE 40-HOUR BASIC WORKWEEK ON WHICH NO WORK IS PERFORMED. THEREFORE, THIS QUESTION IS ANSWERED IN THE NEGATIVE.