B-52478, OCTOBER 10, 1945, 25 COMP. GEN. 338

B-52478, OCTOBER 10, 1945, 25 COMP. GEN. 338

COMPENSATION; LUMP-SUM LEAVE PAYMENTS - AUGUST 15 AND 16, 1945; HOLIDAYS THERE IS NO AUTHORITY UNDER SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, PROVIDING FOR THE GRANT OF COMPENSATORY TIME OFF FROM DUTY FOR "IRREGULAR OR OCCASIONAL DUTY IN EXCESS OF FORTY-EIGHT HOURS IN ANY REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK," TO GRANT COMPENSATORY TIME OFF FROM DUTY TO AN EMPLOYEE WHO, IN ADDITION TO HIS REGULAR 40-HOUR BASIC WORKWEEK, WORKED 4 HOURS ON HIS REGULAR "OVERTIME" DAY, WEDNESDAY, AUGUST 15, 1945, WHEN MOST EMPLOYEES WERE EXCUSED FROM DUTY PURSUANT TO THE PRESIDENT'S REQUEST, FOR WHICH DUTY HE RECEIVED 4 HOURS' OVERTIME COMPENSATION PURSUANT TO SECTION 201 OF THE ACT. WHERE THE PERIOD OF ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE FOR WHICH AN EMPLOYEE IS TO RECEIVE A LUMP-SUM PAYMENT UNDER THE ACT OF DECEMBER 21, 1944, INCLUDES AUGUST 15 AND 16, 1945, DAYS ON WHICH MOST EMPLOYEES WERE ADMINISTRATIVELY EXCUSED FROM DUTY WITHOUT A CHARGE TO ANNUAL LEAVE PURSUANT TO THE PRESIDENT'S REQUEST, SUCH DAYS ARE TO BE CONSIDERED AS DAYS OF LEAVE IN COMPUTING THE LUMP SUM PAYABLE. THE PROVISIONS OF SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 CONTEMPLATE THE PAYMENT OF PREMIUM PAY AT THE RATE OF TIME AND ONE HALF FOR WORK ON A HOLIDAY OCCURRING AT ANY TIME DURING THE ADMINISTRATIVE WORKWEEK, RATHER THAN DURING THE BASIC WORKWEEK, ONLY, AND, THEREFORE, AN EMPLOYEE WHO WORKED ON A HOLIDAY ( LABOR DAY) WHICH FELL ON HIS "OVERTIME" DAY IS ENTITLED TO PREMIUM PAY AT THE RATE OF TIME AND ONE-HALF, WITHOUT REGARD TO THE LIMITATIONS OR CEILINGS PRESCRIBED BY THE OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF THE ACT. THE FACT THAT AN EMPLOYEE WORKED ON A HOLIDAY FALLING ON THE "OVERTIME" DAY OF HIS ADMINISTRATIVE WORKWEEK DOES NOT ENTITLE HIM TO BOTH OVERTIME COMPENSATION UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND PREMIUM PAY FOR WORK ON A HOLIDAY PURSUANT TO SECTION 302 OF THE ACT, WHICH HOLIDAY PAY IS AUTHORIZED TO BE PAID EMPLOYEES ONLY "IN LIEU OF THEIR REGULAR PAY FOR THAT DAY," THE OVERTIME COMPENSATION REPRESENTING "REGULAR PAY" FOR THE "OVERTIME" DAY ON WHICH THE HOLIDAY OCCURRED.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, OFFICE OF WAR INFORMATION, OCTOBER 10, 1945:

I HAVE YOUR PREDECESSOR'S LETTER OF SEPTEMBER 10, 1945, AS FOLLOWS:

QUESTIONS HAVE ARISEN IN THIS OFFICE CONCERNING THE COMPENSATION TO WHICH CERTAIN EMPLOYEES ARE ENTITLED FOR AUGUST 15 AND 16, DAYS ON WHICH THE PRESIDENT STATED THAT FEDERAL EMPLOYEES SHOULD BE EXCUSED FROM WORK, AND FOR SEPTEMBER 3, A PUBLIC HOLIDAY.

ALTHOUGH THE ADMINISTRATIVE WORK-WEEK WHICH HAS BEEN ESTABLISHED FOR THE MAJORITY OF EMPLOYEES THROUGH SEPTEMBER 8 CONSISTS OF A BASIC WORK WEEK OF 40 HOURS, MONDAY THROUGH FRIDAY, AND 4 HOURS OVERTIME SCHEDULED ON SATURDAY, THE TIMING OF OUR OPERATIONS REQUIRES SOME VARIATIONS. DAYS OTHER THAN SATURDAY HAVE BEEN DESIGNATED AS OVERTIME DAYS IN THE ADMINISTRATIVE WORKWEEKS ESTABLISHED FOR CERTAIN EMPLOYEES.

OUR QUESTIONS, ALL INVOLVING FULL-TIME PER ANNUM EMPLOYEES OCCUPYING POSITIONS SUBJECT TO THE CLASSIFICATION ACT, ARE AS FOLLOWS:

1. EMPLOYEE "A"'S DESIGNATED OVERTIME DAY IS WEDNESDAY. HE WORKED THE 40 HOURS OF HIS BASIC WORK-WEEK BUT DID NOT WORK AUGUST 15. IS HE ENTITLED TO COMPENSATION FOR THAT DAY? IF SO, ON WHAT BASIS SHOULD IT BE COMPUTED?

2. EMPLOYEE "B"'S DESIGNATED OVERTIME DAY IS WEDNESDAY. HE WORKED THE 40 HOURS OF HIS BASIC WORK-WEEK AND 4 HOURS REGULARLY SCHEDULED OVERTIME ON AUGUST 15. IS HE ENTITLED TO EXTRA COMPENSATION OR TIME OFF IN ADDITION TO REGULAR OVERTIME PAY FOR 4 HOURS?

3. EMPLOYEE "C" , CAF-12, $5,180 PER ANNUM, HAD A BASIC WORK-WEEK OF 40 HOURS, EXTENDING FROM MONDAY THROUGH FRIDAY, WITH SATURDAY DESIGNATED THE OVERTIME DAY. HE HAS RESIGNED FROM THE SERVICE, HIS LAST DAY OF ACTIVE DUTY BEING AUGUST 11, 1945. ON THAT DATE HE HAD 160 HOURS OF ANNUAL LEAVE TO HIS CREDIT. IN DETERMINING THE PERIOD OVER WHICH THIS LEAVE WOULD EXTEND IN COMPUTING THE LUMP-SUM PAYMENT, SHOULD AUGUST 15 AND 16 BE CONSIDERED LEAVE DAYS? FOR EXAMPLE: IF LEAVE MUST BE CHARGED ON THESE TWO DAYS, THE LEAVE PERIOD WOULD EXPIRE ON SEPTEMBER 10 AND THE GROSS AMOUNT OF THE LUMP-SUM PAYMENT WOULD BE $418.38. IF AUGUST 15 AND 16 SHOULD NOT BE CHARGED TO ANNUAL LEAVE, THE LEAVE PERIOD WOULD EXPIRE ON SEPTEMBER 12 AND THE GROSS AMOUNT OF THE LUMP-SUM PAYMENT WOULD BE $458.22.

4. EMPLOYEE "D"'S DESIGNATED OVERTIME DAY IS MONDAY (4 HOURS). IF HE WAS IN A PAY STATUS THE 40 HOURS OF HIS BASIC WORK-WEEK BUT DID NOT WORK SEPTEMBER 3, LABOR DAY, IS HE ENTITLED TO COMPENSATION FOR THAT DAY? SO, ON WHAT BASIS SHOULD IT BE COMPUTED?

5. EMPLOYEE "E"'S DESIGNATED OVERTIME DAY IS MONDAY. IF HE WAS IN A PAY STATUS FOR ONLY 32 HOURS OF HIS BASIC WORK-WEEK AND WORKED 4 HOURS ON LABOR DAY, TO WHAT COMPENSATION IS HE ENTITLED FOR THAT DAY?

6. EMPLOYEE "F"'S DESIGNATED OVERTIME DAY IS MONDAY. IF HE WAS IN A PAY STATUS THE 40 HOURS OF HIS BASIC WORK-WEEK AND WORKED 4 HOURS ON THE LABOR DAY HOLIDAY, HOW SHOULD HIS COMPENSATION BE COMPUTED FOR THAT DAY?

THE ANSWER TO QUESTION 6 WOULD APPEAR TO DEPEND UPON AN INTERPRETATION OF SECTION 302 OF PUBLIC LAW 106. SOME DOUBT EXISTS AS TO WHETHER AN EMPLOYEE WHO WORKS ON HIS DESIGNATED OVERTIME DAY, WHICH IS ALSO A DESIGNATED HOLIDAY, IS ENTITLED TO RECEIVE BOTH HIS OVERTIME COMPENSATION FOR THE WEEK AND EXTRA HOLIDAY PAY PROVIDED BY SECTION 302.

YOUR REPLY TO THE QUESTIONS PRESENTED WILL BE APPRECIATED.

YOUR QUESTIONS, IN THE ORDER PRESENTED, ARE ANSWERED AS FOLLOWS:

1. SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 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.' HENCE, EMPLOYEE "A," WHO EARNED HIS BASIC COMPENSATION FOR HIS BASIC WORKWEEK OF 40 HOURS IS NOT ENTITLED TO ANY COMPENSATION FOR AUGUST 15, 1945, ON WHICH DAY HE DID NOT WORK.

2. BOTH ALTERNATE SUBQUESTIONS ARE ANSWERED IN THE NEGATIVE. THE ANSWER TO QUESTION 1 NEGATIVES PAYMENT OF OVERTIME COMPENSATION TO EMPLOYEE "B" BEYOND THE 4 HOURS WHICH HE ACTUALLY WORKED ON AUGUST 15, 1945. THE ONLY AUTHORITY FOR GRANTING COMPENSATORY TIME OFF FROM DUTY TO EMPLOYEES OF THE CLASS HERE INVOLVED IS CONTAINED IN SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 297, WHICH AUTHORITY IS LIMITED TO "IRREGULAR OR OCCASIONAL DUTY IN EXCESS OF FORTY-EIGHT HOURS IN ANY REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK.'

3. THIS QUESTION IS SUBSTANTIALLY IDENTICAL WITH THAT CONSIDERED AND ANSWERED IN DECISION OF OCTOBER 2, 1945, B-52416, TO MR. GEORGE J. MINTZER, AUTHORIZED CERTIFYING OFFICER, WAR MANPOWER COMMISSION. PURSUANT TO THE RULE STATED IN THAT DECISION, LEAVE SHOULD BE CHARGED FOR AUGUST 15 AND 16, 1945, IN COMPUTING THE LUMP-SUM PAYMENT WHICH BECAME DUE PRIOR TO AUGUST 15, 1945.

4. THIS QUESTION IS ANSWERED IN THE NEGATIVE. SEE ANSWER TO QUESTION 6 IN DECISION OF SEPTEMBER 4, 1945, B-51947, 25 COMP. GEN. 254.

5. SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298, 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 STATUTE IS NOT ENTIRELY CLEAR IN RESPECT OF THE MATTER COVERED BY THIS QUESTION, BUT THE STATUTE SEEMS TO CONTEMPLATE THE PAYMENT OF PREMIUM PAY FOR WORK ON A HOLIDAY OCCURRING AT ANY TIME DURING THE ADMINISTRATIVE WORKWEEK, RATHER THAN DURING THE 40-HOUR BASIC WORKWEEK, ONLY. REASONABLY MAY BE CONCLUDED, THEREFORE, THAT EMPLOYEE "E" WOULD BE ENTITLED TO STRAIGHT TIME PAY FOR 32 HOURS AND TIME AND ONE HALF, PREMIUM PAY, FOR 4 HOURS WORKED ON LABOR DAY, THE OVERTIME DAY, OR A TOTAL OF 38 HOURS' COMPENSATION FOR THE WEEK.

6. THE ANSWER TO QUESTION 5 INDICATES THE ANSWER TO THIS QUESTION. UNDER THE RULE THERE STATED, EMPLOYEE "F" WOULD BE ENTITLED TO 40 HOURS' STRAIGHT TIME PAY AND TIME AND ONE-HALF FOR THE 4 HOURS WORKED ON LABOR DAY, WITHOUT THE LIMITATIONS OR CEILINGS PRESCRIBED BY SECTION 201 OF THE STATUTE. IN OTHER WORDS, THIS EMPLOYEE WOULD BE ENTITLED TO 46 HOURS' COMPENSATION FOR THE WEEK.

REFERRING TO THE CONCLUDING PARAGRAPH OF YOUR LETTER, AN EMPLOYEE IS NOT ENTITLED TO BOTH OVERTIME COMPENSATION UNDER SECTION 201 OF THE STATUTE AND HOLIDAY PAY UNDER SECTION 302 OF THE STATUTE FOR WORK PERFORMED ON A HOLIDAY OCCURRING OUTSIDE OF THE 40-HOUR BASIC WORKWEEK, FOR THE REASON THAT PREMIUM PAY FOR WORK ON A HOLIDAY IS AUTHORIZED TO BE PAID ONLY "IN LIEU OF THEIR REGULAR PAY FOR THAT DAY" AND OVERTIME COMPENSATION WOULD REPRESENT "REGULAR PAY" FOR THE OVERTIME DAY ON WHICH A HOLIDAY OCCURRED.