B-54543, DECEMBER 29, 1945, 25 COMP. GEN. 473

B-54543, DECEMBER 29, 1945, 25 COMP. GEN. 473

FEDERAL EMPLOYEES PAY ACT OF 1945 - NIGHT DIFFERENTIAL INCLUSION IN HOLIDAY PAY INASMUCH AS THE REGULAR COMPENSATION FOR NIGHT DUTY AUTHORIZED BY SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IS COMPOSED OF BASIC COMPENSATION PLUS 10 PERCENT AND THE PREMIUM PAY PROVIDED FOR BY SECTION 302 OF THE ACT FOR WORK ON A HOLIDAY IS IN LIEU OF REGULAR COMPENSATION FOR THAT DAY, EMPLOYEES WORKING A REGULARLY SCHEDULED TOUR OF DUTY BETWEEN THE HOURS OF MIDNIGHT TO 6 A.M. AND 6 P.M. TO MIDNIGHT ON A HOLIDAY ARE ENTITLED TO HOLIDAY PAY AT THE RATE OF ONE AND ONE HALF TIMES THEIR REGULAR BASE COMPENSATION, EXCLUDING ANY NIGHT DIFFERENTIAL, FOR THE PORTION OF THE NIGHT DUTY FALLING ON THE HOLIDAY.

COMPTROLLER GENERAL WARREN TO THE FEDERAL WORKS ADMINISTRATOR, DECEMBER 29, 1945:

I HAVE YOUR LETTER OF DECEMBER 11, 1945, AS FOLLOWS:

A NUMBER OF CUSTODIAL EMPLOYEES OF THE PUBLIC BUILDINGS ADMINISTRATION, WHOSE REGULAR SCHEDULED TOUR OF DUTY FALLS BETWEEN 6:00 P.M. AND 6:00 A.M., MONDAYS THROUGH FRIDAYS, INCLUSIVE, WILL BE REQUIRED TO WORK BETWEEN THE AFOREMENTIONED HOURS ON CHRISTMAS AND NEW YEAR'S DAYS.

ALTHOUGH THERE IS NO QUESTION AS TO THESE EMPLOYEES BEING ENTITLED TO HOLIDAY COMPENSATION AT THE RATE OF ONE AND ONE-HALF TIMES THE REGULAR BASIC RATE, IN ACCORDANCE WITH SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, PUBLIC LAW 106, 79TH CONGRESS, THE QUESTION FOR DETERMINATION IS WHETHER, IN ADDITION TO THE TIME AND ONE- HALF COMPENSATION, SUCH EMPLOYEES ARE ENTITLED TO A NIGHT PAY DIFFERENTIAL AT THE RATE OF 10 PERCENT IN EXCESS OF THE BASIC RATE OF COMPENSATION, IN ACCORDANCE WITH SECTION 301 OF THE SAME LAW, FOR WORKING, AS HEREINBEFORE DESCRIBED, ON A HOLIDAY COMING WITHIN THE REGULARLY SCHEDULED WORK WEEK.

ALTHOUGH YOUR DECISION OF JULY 18, 1945, B-50927, (25 COMP. GEN. 62) ADVISES THAT DIFFERENTIAL IS NOT PAYABLE DURING THE PERIOD OVER WHICH OVERTIME COMPENSATION IS PAID, IN ACCORDANCE WITH SECTION 201 OF THE AFORESAID ACT, YOUR DECISION IS REQUESTED REGARDING THE COMING HOLIDAYS INASMUCH AS THE PAYMENT OF NIGHT DIFFERENTIAL IS INVOLVED, IN ACCORDANCE WITH SECTION 301 OF THE LEGISLATION IN QUESTION, IN ADDITION TO COMPENSATION FOR HOLIDAY WORK. IN THE EVENT YOUR REPLY IS IN THE AFFIRMATIVE YOUR DECISION IS FURTHER REQUESTED AS TO WHETHER THE DIFFERENTIAL SHOULD BE COMPUTED ON THE BASIS OF 10 PERCENT OF THE BASE PAY OF THE EMPLOYEES OR ON 10 PERCENT OF THE TIME AND ONE-HALF HOLIDAY PAY.

SECTIONS 301 AND 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298, PROVIDE:

SEC. 301. ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY, ANY PART OF WHICH FALLS BETWEEN THE HOURS OF 6 O-CLOCK POST MERIDIAN AND 6 O-CLOCK ANTEMERIDIAN, SHALL, FOR DUTY BETWEEN SUCH HOURS, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, BE PAID COMPENSATION AT A RATE 10 PERCENTUM IN EXCESS OF HIS BASIC RATE OF COMPENSATION FOR DUTY BETWEEN OTHER HOURS: PROVIDED, THAT SUCH DIFFERENTIAL FOR NIGHT DUTY SHALL NOT BE INCLUDED IN COMPUTING ANY OVERTIME COMPENSATION TO WHICH THE OFFICER OR EMPLOYEE MAY BE ENTITLED: AND PROVIDED, FURTHER, THAT THIS SECTION SHALL NOT OPERATE TO MODIFY THE PROVISIONS OF THE ACT OF JULY 1, 1944 ( PUBLIC LAW NUMBERED 394, SEVENTY- EIGHTH CONGRESS), OR ANY OTHER LAW AUTHORIZING ADDITIONAL COMPENSATION FOR NIGHT 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 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.

IT WILL BE NOTED THAT THE NIGHT PAY DIFFERENTIAL IS "IN EXCESS, OF THE EMPLOYEE'S "B RATE OF COMPENSATION," THAT HOLIDAY PAY ALSO IS COMPUTED ON THE "BASIC RATE OF COMPENSATION," AND THAT HOLIDAY PAY IS NOT IN LIEU OF BASIC PAY BUT EXPRESSLY IS "IN LIEU OF THEIR REGULAR PAY FOR THAT .' THE REGULAR PAY FOR NIGHT DUTY IS COMPOSED OF THE BASIC PAY PLUS 10 PERCENT AND, AS HOLIDAY PAY IS IN LIEU OF REGULAR PAY, IT NECESSARILY FOLLOWS THAT EMPLOYEES WORKING ON A REGULARLY SCHEDULED TOUR OF DUTY BETWEEN THE HOURS OF MIDNIGHT TO 6 A.M. AND 6 P.M. TO MIDNIGHT ON A HOLIDAY WILL BE ENTITLED TO HOLIDAY PAY ONLY AT THE RATE OF ONE AND ONE-HALF TIMES THEIR REGULAR BASIC PAY, EXCLUDING ANY NIGHT DIFFERENTIAL, FOR THE PORTION OF THE NIGHT DUTY FALLING ON THE HOLIDAY. SEE DECISION OF OCTOBER 10, 1945, B-52478, 25 COMP. GEN. 338, PARTICULARLY QUESTION AND ANSWER 6.