B-60473, SEPTEMBER 25, 1946, 26 COMP. GEN. 212

B-60473: Sep 25, 1946

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REGULARLY WORKING ON ROTATING DAY AND NIGHT SHIFTS SHOULD BE PAID AT THE DAY RATE FOR THE PORTION OF AN AUTHORIZED PERIOD OF LEAVE WITH PAY DURING WHICH HE WOULD HAVE BEEN ASSIGNED TO THE DAY SHIFT. FOR THE PORTION DURING WHICH HE WOULD HAVE BEEN ASSIGNED TO THE NIGHT SHIFT. 24 COMP. 1946: I HAVE YOUR LETTER OF SEPTEMBER 4. AS FOLLOWS: WITH RESPECT TO EMPLOYEES WHO ARE SUBJECT TO THE ACT OF MARCH 28. A QUESTION ARISES CONCERNING THE RATE OF PAY FOR LEAVE FOR THOSE WHO ARE ON ROTATING DAY AND NIGHT SHIFTS. IT IS RULED THAT AN EMPLOYEE ON A REGULAR TOUR OF DUTY AT NIGHT IS ENTITLED TO RECEIVE DURING THE ABSENCE THE REGULAR RATE OF COMPENSATION (INCLUDING A NIGHT DIFFERENTIAL) IS NOT ENTITLED TO THE NIGHT DIFFERENTIAL WHILE ON LEAVE.

B-60473, SEPTEMBER 25, 1946, 26 COMP. GEN. 212

LEAVES OF ABSENCE - RATE AT WHICH PAYABLE - FORTY-HOUR WEEK EMPLOYEES WORKING ON ROTATING DAY AND NIGHT SHIFTS AN EMPLOYEE SUBJECT TO THE FORTY-HOUR WEEK STATUTE OF MARCH 28, 1934, AND REGULARLY WORKING ON ROTATING DAY AND NIGHT SHIFTS SHOULD BE PAID AT THE DAY RATE FOR THE PORTION OF AN AUTHORIZED PERIOD OF LEAVE WITH PAY DURING WHICH HE WOULD HAVE BEEN ASSIGNED TO THE DAY SHIFT, AND AT THE NIGHT RATE, INCLUDING DIFFERENTIAL, FOR THE PORTION DURING WHICH HE WOULD HAVE BEEN ASSIGNED TO THE NIGHT SHIFT. 24 COMP. GEN. 39, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 25, 1946:

I HAVE YOUR LETTER OF SEPTEMBER 4, 1946, AS FOLLOWS:

WITH RESPECT TO EMPLOYEES WHO ARE SUBJECT TO THE ACT OF MARCH 28, 1934, COMMONLY REFERRED TO AS WAGE BOARD EMPLOYEES, A QUESTION ARISES CONCERNING THE RATE OF PAY FOR LEAVE FOR THOSE WHO ARE ON ROTATING DAY AND NIGHT SHIFTS. IN 24 COMP. GEN. 39, IT IS RULED THAT AN EMPLOYEE ON A REGULAR TOUR OF DUTY AT NIGHT IS ENTITLED TO RECEIVE DURING THE ABSENCE THE REGULAR RATE OF COMPENSATION (INCLUDING A NIGHT DIFFERENTIAL) IS NOT ENTITLED TO THE NIGHT DIFFERENTIAL WHILE ON LEAVE.

THE ABOVE CITED DECISION IS NOT CLEAR WHETHER AN EMPLOYEE ENTERING ON LEAVE FOR AN EXTENDED PERIOD WHILE ON A NIGHT SHIFT WOULD BE PAID HIS BASE RATE FOR DAY WORK PLUS NIGHT DIFFERENTIAL FOR THE ENTIRE PERIOD THAT HE WAS ON LEAVE. ROTATING SHIFTS GENERALLY ARE DIVIDED EQUALLY, IN THE LONG RUN, BETWEEN DAY AND NIGHT DUTY. IF AN EMPLOYEE ON A ROTATING SHIFT ENTERED ON LEAVE WHILE HE WAS ON NIGHT DUTY OR IF HE RESIGNED WHILE ON NIGHT DUTY AND WAS PAID FOR HIS ACCUMULATED LEAVE, WOULD HIS RATE OF PAY FOR THE ENTIRE PERIOD REPRESENTED BY THE LEAVE BE AT THE NIGHT RATE OR ONLY ON SUCH PART OF THE LEAVE AS WOULD BE REPRESENTED BY SERVICE HAD HE REMAINED ON THE JOB? THE SECOND CLAUSE OF THE FIFTH PARAGRAPH OF THE SYLLABUS OF 24 COMP. GEN. 39 WOULD NOT GIVE THE EMPLOYEE THE BENEFIT OF NIGHT DIFFERENTIAL PAY HAD HIS NORMAL DUTY REQUIRED HIM TO WORK NIGHT SHIFTS IF HE WERE NOT ON LEAVE. ON THE OTHER HAND, IS THE DECISION TO BE CONSTRUED TO MEAN THAT AN EMPLOYEE ON A ROTATING SHIFT ENTERING ON LEAVE WHILE ON A NIGHT SHIFT SHOULD BE PAID NIGHT DIFFERENTIAL FOR PERIODS HE NORMALLY WOULD HAVE DRAWN DAY PAY HAD HE WORKED?

IN 17 COMP. GEN. 906 IT IS HELD THAT AN EMPLOYEE IS ENTITLED TO EXACTLY THE SAME AMOUNT OF COMPENSATION FOR A PERIOD OF AUTHORIZED ANNUAL OR SICK LEAVE OF ABSENCE WITH PAY THAT WOULD HAVE BEEN PAYABLE FOR THE SAME PERIOD HAD HE REMAINED IN A DUTY STATUS AND ACTUALLY WORKED THE NUMBER OF HOURS PER DAY AND NUMBER OF DAYS THAT HE REGULARLY WOULD HAVE BEEN REQUIRED TO WORK. FROM THIS DECISION IT WOULD APPEAR THAT AN EMPLOYEE ASSIGNED TO ROTATING SHIFTS AND ENTERING ON LEAVE WHILE ON THE DAY SHIFT SHOULD BE PAID WHILE ON AUTHORIZED LEAVE THE NIGHT DIFFERENTIAL FOR THAT PORTION OF THE LEAVE DURING WHICH HE WOULD HAVE NORMALLY WORKED AT NIGHT ACCORDING TO HIS PREARRANGED SCHEDULE HAD HE BEEN ON DUTY; ALSO, THAT SUCH EMPLOYEE ENTERING ON AUTHORIZED LEAVE WHILE ON THE NIGHT SHIFT SHOULD BE PAID WHILE ON LEAVE THE NIGHT DIFFERENTIAL FOR ONLY THAT PORTION OF THE LEAVE DURING WHICH HE WOULD HAVE NORMALLY WORKED AT NIGHT HAD HE REMAINED IN A DUTY STATUS.

CLARIFICATION OF THE DECISION REFERRED TO ABOVE WILL BE APPRECIATED. THE DECISION IN 24 COMP. GEN. 39, IT WAS STATED AT PAGE 44.

UNLIKE THE ANSWERS TO QUESTIONS 1 AND 2, THE ANSWER TO QUESTION 3, OF COURSE, IS DEPENDENT NOT ENTIRELY ON THE ACT OF MARCH 28, 1934, BUT, ALSO, ON THE PROVISIONS OF LAW AND REGULATION APPLICABLE TO THE GRANTING OF ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY. IN THE ABSENCE OF A STATUTE OTHERWISE PROVIDING, IT HAS BEEN HELD CONSISTENTLY THAT THE RATE OF COMPENSATION PAYABLE DURING LEAVE IS THE SAME RATE PAID WHILE THE EMPLOYEE IS WORKING AT THE TIME OF TAKING THE LEAVE, REGARDLESS OF THE RATE RECEIVED WHEN THE LEAVE WAS EARNED. 15 COMP. GEN. 879; 17 ID. 348, 646; 19 ID. 1015; 23 ID. 904. CF. 12 COMP. GEN. 602. WHILE NONE OF THESE DECISIONS CONSIDERED THE QUESTION HERE PRESENTED, NEVERTHELESS, AS THE NIGHT DIFFERENTIAL PROPERLY IS TO BE REGARDED AS A PART OF THE BASE PAY OF THE EMPLOYEE WHOSE REGULAR TOUR OF DUTY IS AT NIGHT, I AM UNABLE TO CONCLUDE OTHERWISE THAN THAT SUCH EMPLOYEES ARE ENTITLED UNDER THE 1934 STATUTE TO THE SAME WEEKLY COMPENSATION WHILE ON AUTHORIZED LEAVE OF ABSENCE WITH PAY FROM A REGULAR TOUR OF DUTY AT NIGHT THAT THEY WOULD HAVE RECEIVED HAD THEY REMAINED ON DUTY. THAT IS TO SAY, THE REGULAR RATE OF COMPENSATION FOR NIGHT DUTY RECEIVED BY THE EMPLOYEE WHEN HE GOES ON LEAVE CONTINUES DURING THE PERIOD OF THE LEAVE, WHETHER FOR A SHORT OR LONG PERIOD. WHERE EMPLOYEES ROTATE ON DAY AND NIGHT SHIFTS, AND LEAVE IS GRANTED WHILE AN EMPLOYEE IS NOT ON THE NIGHT SHIFT AND IS NOT RECEIVING THE NIGHT DIFFERENTIAL WHEN HE GOES ON LEAVE, IT FOLLOWS, OF COURSE, THAT HE IS NOT ENTITLED TO THE NIGHT DIFFERENTIAL WHILE ON LEAVE. QUESTION 3 IS ANSWERED ACCORDINGLY. COMPARE THE ACT OF JULY 1, 1944, 58 STAT. 648, PUBLIC 394, APPLICABLE TO A CLASS OF EMPLOYEES NOT UNDER THE 1934 STATUTE.

IF A WAGE BOARD EMPLOYEE WORKING REGULARLY ON ROTATING DAY AND NIGHT SHIFTS IS GRANTED LEAVE OF ABSENCE, HIS RIGHT TO COMPENSATION FOR SUCH LEAVE PERIOD WOULD BE THE SAME AS HE WOULD HAVE EARNED HAD HE WORKED THE REGULAR SHIFTS TO WHICH ASSIGNED. THAT IS, HE SHOULD BE PAID THE DAY RATE FOR THE PORTION OF THE LEAVE DURING WHICH HE WOULD HAVE BEEN ASSIGNED TO THE DAY SHIFT AND THE NIGHT DIFFERENTIAL FOR THE PORTION OF THE LEAVE DURING WHICH HE WOULD HAVE BEEN ASSIGNED TO THE NIGHT SHIFT.