B-93770, APRIL 26, 1950, 29 COMP. GEN. 427

B-93770: Apr 26, 1950

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OF THE FACT THAT EMPLOYEES SERVING AS JURORS ARE UNDER THE JURISDICTION OF THE COURT AND NOT IN A LEAVE STATUS WITHIN THE PURVIEW OF SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. EVEN THOUGH SAID SECTION 301 PROVIDING FOR NIGHT DIFFERENTIAL FOR CLASSIFIED EMPLOYEES SPECIFICALLY EXCLUDES "PERIODS WHEN HE IS IN A LEAVE STATUS.'. 950: REFERENCE IS MADE TO YOUR LETTER OF MARCH 14. REQUESTING DECISION WHETHER NIGHT DIFFERENTIAL IS PAYABLE TO MRS. IT IS STATED THAT SHE IS EMPLOYED AS A LABORER. WHICH PROVIDES FOR NIGHT DIFFERENTIAL TO BE PAID CLASSIFIED EMPLOYEES SPECIFICALLY EXCLUDES "PERIODS WHEN HE IS IN A LEAVE STATUS.'. WHILE THE PERMISSIBLE ABSENCE OF AN EMPLOYEE WHILE SERVING AS A JUROR IS REFERRED TO IN THE LEAVE INSTRUCTIONS ISSUED BY THE CIVIL SERVICE COMMISSION AS "COURT LEAVE" IT IS NOT TO BE CONSIDERED AS LEAVE WITHIN THE PURVIEW OF SAID SECTION 301 AS THE EMPLOYEE IS UNDER THE JURISDICTION OF THE COURT DURING SUCH PERIODS OF JURY DUTY.

B-93770, APRIL 26, 1950, 29 COMP. GEN. 427

LEAVES OF ABSENCE - JURY SERVICE - INCLUSION OF NIGHT DIFFERENTIAL IN COMPENSATION PAYABLE IN VIEW OF SECTION 1 OF THE ACT OF JUNE 29, 1940, MAKING IT MANDATORY THAT THE COMPENSATION OF AN EMPLOYEE NOT BE DIMINISHED BY REASON OF JURY SERVICE, AND OF THE FACT THAT EMPLOYEES SERVING AS JURORS ARE UNDER THE JURISDICTION OF THE COURT AND NOT IN A LEAVE STATUS WITHIN THE PURVIEW OF SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AN EMPLOYEE OTHERWISE ENTITLED TO NIGHT PAY DIFFERENTIAL MAY CONTINUE TO RECEIVE SUCH PAY FOR PERIODS EXCUSED FROM DUTY WHILE SERVING AS A JUROR IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, EVEN THOUGH SAID SECTION 301 PROVIDING FOR NIGHT DIFFERENTIAL FOR CLASSIFIED EMPLOYEES SPECIFICALLY EXCLUDES "PERIODS WHEN HE IS IN A LEAVE STATUS.'

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, APRIL 26, 950:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 14, 1950, REQUESTING DECISION WHETHER NIGHT DIFFERENTIAL IS PAYABLE TO MRS. LAURANER D. IVEY, AN EMPLOYEE OF YOUR ADMINISTRATION, WHO SERVED AS A JUROR IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AND DID NOT PERFORM HER OFFICIAL DUTIES WHILE SO SERVING. IT IS STATED THAT SHE IS EMPLOYED AS A LABORER, CPC-2, AND THAT HER REGULAR ASSIGNMENT INVOLVES WORK BETWEEN THE HOURS OF 6 P.M. AND 6 A.M., FOR WHICH SHE NORMALLY RECEIVES A NIGHT PAY DIFFERENTIAL IN ACCORDANCE WITH THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 S.C., SECTION 921; AND THAT SHE HAS BEEN PAID HER BASIC COMPENSATION BUT NOT THE NIGHT DIFFERENTIAL FOR THE INVOLVED PERIOD. FURTHER, IT INFORMALLY HAS BEEN ASCERTAINED THAT THE EMPLOYEE HERE INVOLVED WORKS A FULL TOUR OF DUTY EXTENDING FROM 5 P.M. TO 1:30 A.M.IN THAT CONNECTION, SEE 20 COMP. GEN. 181; 26 ID. 413.

SECTION 1 OF THE ACT OF JUNE 29, 1940, 54 STAT. 689, 5 U.S.C. 30N, PROVIDES:

THE COMPENSATION OF ANY EMPLOYEE OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO MAY BE CALLED UPON FOR JURY SERVICE IN ANY STATE COURT OR COURT OF THE UNITED STATES SHALL NOT BE DIMINISHED DURING THE TERM OF SUCH JURY SERVICE BY REASON OF SUCH ABSENCE, EXCEPT AS PROVIDED IN SECTION 30P OF THIS TITLE, NOR SHALL SUCH PERIOD OF SERVICE BE DEDUCTED FROM THE TIME ALLOWED FOR ANY LEAVE OF ABSENCE AUTHORIZED BY LAW.

SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298, WHICH PROVIDES FOR NIGHT DIFFERENTIAL TO BE PAID CLASSIFIED EMPLOYEES SPECIFICALLY EXCLUDES "PERIODS WHEN HE IS IN A LEAVE STATUS.' WHILE THE PERMISSIBLE ABSENCE OF AN EMPLOYEE WHILE SERVING AS A JUROR IS REFERRED TO IN THE LEAVE INSTRUCTIONS ISSUED BY THE CIVIL SERVICE COMMISSION AS "COURT LEAVE" IT IS NOT TO BE CONSIDERED AS LEAVE WITHIN THE PURVIEW OF SAID SECTION 301 AS THE EMPLOYEE IS UNDER THE JURISDICTION OF THE COURT DURING SUCH PERIODS OF JURY DUTY. CONSEQUENTLY, AS SECTION 1 OF THE ACT OF JUNE 29, 1940, SUPRA, MAKES IT MANDATORY THAT THE COMPENSATION OF ANY EMPLOYEE SHALL NOT BE DIMINISHED BY REASON OF JURY SERVICE, IT FOLLOWS THAT THE EMPLOYEE IN QUESTION IS ENTITLED TO NIGHT DIFFERENTIAL FOR THE PERIODS OTHERWISE PROPERLY EXCUSED FROM THE PERFORMANCE OF DUTY WHILE SERVING AS A JUROR. SEE 23 COMP. GEN. 904.