[Protest of Labor Rejection of Bid for Program Management Services]

B-65, DECEMBER 30, 1938, 18 COMP. GEN. 575

COMPENSATION - FORTY-HOUR-WEEK EMPLOYEES - HOLIDAYS, OVERTIME, ETC. THE RECENT HOLIDAY STATUTE OF JUNE 29, 1938, 52 STAT. 1246, REQUIRES NO CHANGE IN THE RULE ESTABLISHED BY DECISION OF APRIL 12, 1935, 14 COMP. GEN. 761, UNDER THE 40-HOUR-WEEK STATUTE OF MARCH 28, 1934, 48 STAT. 522, THAT A HOLIDAY FALLING WITHIN THE REGULAR TOUR OF DUTY IS TO BE REGARDED AS A PART OF THE 40-HOUR WEEK, AND IN COMPUTING THE 40 HOURS FOR WHICH THE EMPLOYEE IS TO BE PAID HIS REGULAR RATE OF COMPENSATION FOR THE 40-HOUR WEEK UNDER THE STATUTE, 8 HOURS SHOULD BE CREDITED TO THE EMPLOYEE FOR ANY HOLIDAY ON WHICH HE IS RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAY. IN COMPUTING REGULAR AND OVERTIME COMPENSATION FOR ANY WEEK UNDER THE 40- HOUR-WEEK STATUTE OF MARCH 28, 1934, 48 STAT. 522, THE FIRST 40 HOURS OF THE WEEK IN A PAY STATUS, MADE UP PARTLY OF OVERTIME, SHOULD NOT BE REGARDED AS THE WORK WEEK OF THE EMPLOYEE FOR WHOM A REGULAR TOUR OF DUTY HAS BEEN ADMINISTRATIVELY FIXED AND THE OVERTIME RATE PAID FOR ANY TIME ACTUALLY WORKED THEREAFTER IN THE WEEK, BUT THE ENTIRE TOUR OF DUTY--- INCLUDING ACTUAL WORK, LEAVE OF ABSENCE WITH PAY OR IDLENESS BECAUSE OF A HOLIDAY OCCURRING ON ONE OF THE REGULAR WORK DAYS OF THE EMPLOYEE--- SHOULD BE REGARDED AS THE WORK WEEK, AND FOR ANY TIME ACTUALLY WORKED DURING THE WEEK IN ADDITION TO THE 40 HOURS THUS COMPUTED THE OVERTIME RATE SHOULD BE PAID REGARDLESS OF THE DAY OF THE WEEK ON WHICH THE OVERTIME IS PERFORMED. NUMEROUS EXAMPLES OF HOLIDAYS OCCURRING AT THE BEGINNING, ENDING, OR DURING A 40-HOUR WEEK SET FORTH AND REGULAR PAY AND OVERTIME RIGHTS DISCUSSED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PUBLIC PRINTER, DECEMBER 30, 1938:

YOUR LETTER OF DECEMBER 8, 1938, IS AS FOLLOWS:

YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS CONCERNING EMPLOYEES OF THIS OFFICE WHO ARE WORKING UNDER SECTION 23 OF THE ACT OF MARCH 28, 1934, FORTY HOURS PER WEEK OF FIVE EIGHT-HOUR DAYS (MONDAY THROUGH FRIDAY) AND ARE PAID ON THE HOURLY BASIS. THESE QUESTIONS HAVE ARISEN IN CONNECTION WITH PUBLIC RESOLUTION NO. 127 APPROVED JUNE 29, 1938, WHICH PROVIDES AS FOLLOWS:

"THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECEWORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY, WASHINGTON'S BIRTHDAY, MEMORIAL DAY, FOURTH OF JULY, LABOR DAY, THANKSGIVING DAY, CHRISTMAS DAY, OR ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER, THEY SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.

"SECTION 2. THE JOINT RESOLUTION OF JANUARY 6, 1885 (U.S.C., TITLE 5, SECTION 86), AND ALL OTHER LAWS INCONSISTENT OR IN CONFLICT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED TO THE EXTENT OF SUCH INCONSISTENCY OR CONFLICT.'

1. FOR THE WEEK ENDING NOVEMBER 12, 1938, AN EMPLOYEE WORKED AS FOLLOWS: NOVEMBER 7, 12 OURS; NOVEMBER 8, 8 HOURS; NOVEMBER 9, 12 HOURS; NOVEMBER 10, 8 HOURS; NOVEMBER 11, LEGAL HOLIDAY; HE WAS PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAY.

FOR THE SAME WEEK AN EMPLOYEE WORKS NOVEMBER 7, 8 HOURS; NOVEMBER 8, 9 HOURS; NOVEMBER 9, 8 HOURS; NOVEMBER 10, 8 HOURS; NOVEMBER 11, LEGAL HOLIDAY; HE WAS PREVENTED FROM WORKING SOLELY BECAUSE OF THE LEGAL HOLIDAY.

2. FOR THE WEEK ENDING NOVEMBER 26, AN EMPLOYEE WORKS NOVEMBER 21, 10 HOURS; NOVEMBER 22, 10 HOURS; NOVEMBER 23, 10 HOURS; NOVEMBER 24, A LEGAL HOLIDAY, THE EMPLOYEE WAS PREVENTED FROM WORKING SOLELY BECAUSE OF THE HOLIDAY; NOVEMBER 25, 10 HOURS; NOVEMBER 26, NON-WORK DAY.

FOR THE SAME WEEK AN EMPLOYEE WORKED NOVEMBER 21, 12 HOURS; NOVEMBER 22, 12 HOURS; NOVEMBER 23, 12 HOURS; NOVEMBER 24, LEGAL HOLIDAY, HE WAS PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF THE LEGAL HOLIDAY; NOVEMBER 25, 10 HOURS; NOVEMBER 26, NON-WORK DAY.

3. FOR THE WEEK ENDING DECEMBER 31, 1938, AN EMPLOYEE MAY WORK AS FOLLOWS: DECEMBER 26, LEGAL HOLIDAY, HE IS PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A LEGAL HOLIDAY; DECEMBER 27, 8 HOURS; DECEMBER 28, 12 HOURS; DECEMBER 29, 8 HOURS; DECEMBER 30, 12 HOURS; DECEMBER 31, A NON-WORK DAY.

FOR THE SAME WEEK AN EMPLOYEE WORKED AS FOLLOWS: DECEMBER 26, LEGAL HOLIDAY, HE WAS PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAY; DECEMBER 27, 9 HOURS; DECEMBER 28, 8 HOURS; DECEMBER 29, 8 HOURS; DECEMBER 30, 8 HOURS; DECEMBER 31, A NON-WORK DAY.

THE ACT OF JUNE 29, 1938, SPECIFICALLY STATES THAT AN EMPLOYEE WHO IS RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED. IN THE CASES CITED ABOVE IT WILL BE NOTED THAT THESE EMPLOYEES WERE PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY. IN ACCORDANCE WITH THE FACTS STATED, INFORMATION IS DESIRED AS TO PROPER RATE OF COMPENSATION PAYABLE TO THE EMPLOYEE IN EACH CASE, ESPECIALLY WITH REFERENCE IN COMPENSATION FOR THE HOLIDAYS WHEN CONSIDERED AS ANOTHER EIGHT-HOUR DAY OF THE WEEK, AND THE TOTAL TIME IS THEREBY IN EXCESS OF FORTY HOURS.

IN SUCH CASES, WHEN CONSIDERED IN CONNECTION WITH SECTION 23 OF THE ACT OF MARCH 28, 1934, SHOULD THE EMPLOYEE BE PAID THE OVERTIME OR STRAIGHT TIME RATE? IT WILL BE NOTED THAT THE NUMBER OF HOURS ACTUALLY WORKED IN BOTH PARTS OF QUESTIONS 1 AND 3, RESPECTIVELY, ARE IDENTICAL, AND, THEREFORE, IT WOULD APPEAR THAT CONNECTING CONSIDERATION SHOULD BE GIVEN TO THESE QUESTIONS.

YOUR PROMPT DECISION IN THE MATTER WILL BE APPRECIATED, IN ORDER THAT TIMELY ADMINISTRATIVE ACTION MAY BE TAKEN.

IT IS UNDERSTOOD THAT IN ALL OF THE CASES PRESENTED THE REGULAR TOUR OF DUTY OF THE EMPLOYEES IS FROM MONDAY TO FRIDAY, INCLUSIVE, AND THAT SATURDAY AND SUNDAY ARE NONWORK DAYS.

THE PROVISO TO SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING A 40-HOUR WEEK, IS AS FOLLOWS:

* * * PROVIDED, THAT THE REGULAR HOURS OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE-HALF.

IN DECISION OF APRIL 6, 1934, 13 COMP. GEN. 265, 270, IT WAS HELD AS FOLLOWS:

* * * WHILE HERETOFORE OVERTIME COMPENSATION AT THE GOVERNMENT PRINTING OFFICE HAS BEEN PAID ON A DAILY BASIS, OVERTIME IS AUTHORIZED BY SECTION 23 OF THE ACT OF MARCH 28, 1934, ONLY ON A WEEKLY BASIS--- THAT IS, FOR WORK, IN EXCESS OF 40 HOURS PER WEEK--- AND NO LONGER ON A DAILY BASIS. THEREFORE, IF, IN CASES OF AN EXTRAORDINARY EMERGENCY, EMPLOYEES ARE REQUIRED TO WORK MORE THAN 8 HOURS ON ANY ONE CALENDAR DAY, BUT ARE NOT REQUIRED TO WORK IN EXCESS OF 40 HOURS DURING THE WEEK, PAYMENT OF OVERTIME COMPENSATION IS NOT AUTHORIZED. * * *

THE FOLLOWING RULE IS QUOTED FROM DECISION OF APRIL 12, 1935, 14 COMP. GEN. 761, 762:

LEGAL HOLIDAYS FALLING ON ONE OF THE FIVE DAYS CONSTITUTING THE REGULAR TOUR OF DUTY OF EMPLOYEES SUBJECT TO THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING THE 40 HOUR WEEK, ARE TO BE REGARDED AS A PART OF THE 40-HOUR WEEK, WHETHER OR NOT WORK IS ACTUALLY PERFORMED ON THE HOLIDAY. 13 COMP. GEN. 295; ID. 370; ID. 444. * * *

IN THE LATTER CASE THE EMPLOYEES WHOSE TOUR OF DUTY WAS FROM MONDAY TO FRIDAY, INCLUSIVE, WERE REQUIRED TO WORK ON SATURDAY OF A WEEK IN WHICH A HOLIDAY OCCURRED ON FRIDAY AND THE DECISION CONCLUDED THAT OVERTIME COMPENSATION WAS PAYABLE FOR THE WORK PERFORMED ON SATURDAY, THE 40 HOURS HAVING BEEN COMPLETED WITH A CREDIT OF 8 HOURS FOR THE HOLIDAY ON FRIDAY, ALTHOUGH NO WORK WAS PERFORMED.

THE NEW HOLIDAY STATUTE OF JUNE 29, 1938, QUOTED IN YOUR LETTER, DOES NOT REQUIRE ANY CHANGE IN THE QUOTED RULE ESTABLISHED UNDER THE 40-HOUR-WEEK STATUTE. HENCE, A HOLIDAY FALLING WITHIN THE REGULAR TOUR OF DUTY OF AN EMPLOYEE--- THE TOUR OF DUTY IN THE CASES PRESENTED BEING MONDAY TO FRIDAY, INCLUSIVE--- IS TO BE REGARDED AS A PART OF THE 40-HOUR WEEK. SEE 18 COMP. GEN. 191, 193. IN COMPUTING THE 40 HOURS FOR WHICH THE EMPLOYEE IS PAID HIS REGULAR RATE OF COMPENSATION FOR THE 40-HOUR WEEK UNDER THE STATUTE, 8 HOURS IS REQUIRED TO BE CREDITED TO THE EMPLOYEE FOR ANY HOLIDAY ON WHICH HE IS RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAY.

IT IS UNDERSTOOD TO HAVE BEEN THE ADMINISTRATIVE PRACTICE OF THE GOVERNMENT PRINTING OFFICE TO REGARD THE FIRST 40 HOURS OF A WEEK DURING WHICH AN EMPLOYEE IS IN A PAY STATUS--- WHETHER ON DUTY, ON LEAVE OF ABSENCE WITH PAY, OR IDLE BECAUSE OF A HOLIDAY OCCURRING ON ONE OF THE REGULAR WORK DAYS OF THE EMPLOYEE--- AS THE 40-HOUR WEEK OF THE EMPLOYEE FOR WHICH 40 HOURS' COMPENSATION AT HIS REGULAR RATE IS TO BE PAID, AND TO PAY THE OVERTIME RATE FOR ANY TIME ACTUALLY WORKED THEREAFTER IN THE WEEK. THERE IS NOTHING IN THE 40-HOUR WEEK STATUTE OR ANY DECISION OF THIS OFFICE WHICH REQUIRES OR AUTHORIZES SUCH A PRACTICE. UNDER SUCH RULE, THE AMOUNT OF OVERTIME COMPENSATION PAYABLE FOR THE SAME NUMBER OF HOURS ACTUALLY WORKED PER WEEK WOULD DEPEND UPON THE PARTICULAR DAY OF THE WEEK ON WHICH THE HOLIDAY OCCURRED, AS IN QUESTIONS 1 AND 3 HERE PRESENTED, TO WHICH YOU DIRECT ATTENTION IN YOUR CONCLUDING PARAGRAPH.

AS STATED IN THE DECISION OF APRIL 6, 1934, SUPRA, WHILE OVERTIME COMPENSATION MAY NOT BE COMPUTED ON A DAILY BASIS, THE PROPER PROCEDURE UNDER THE 40-HOUR WEEK STATUTE FOR COMPUTING REGULAR AND OVERTIME COMPENSATION FOR ANY WEEK IS NOT TO REGARD THE FIRST 40 HOURS OF THE WEEK IN A PAY STATUS AS THE WORK WEEK OF THE EMPLOYEE FOR WHOM A REGULAR TOUR OF DUTY HAS BEEN ADMINISTRATIVELY FIXED--- IN THIS CASE FROM MONDAY TO FRIDAY, INCLUSIVE--- BUT TO REGARD THE ENTIRE TOUR OF DUTY OF THE EMPLOYEE AS THE WORK WEEK. ON THAT BASIS THE EMPLOYEE SHOULD BE PAID HIS REGULAR RATE OF COMPENSATION FOR THE 5 DAYS COMPRISING HIS REGULAR WORK WEEK IF IN A PAY STATUS--- ACTUALLY WORKING, ON LEAVE OF ABSENCE WITH PAY, OR IDLE BECAUSE OF A HOLIDAY OCCURRING ON ANY OF HIS REGULAR WORK DAYS--- FOR AN AGGREGATE OF 40 HOURS DURING SUCH WEEK. FOR ANY TIME ACTUALLY WORKED DURING THE WEEK IN ADDITION TO THE 40 HOURS THUS COMPUTED, THE EMPLOYEE IS ENTITLED UNDER THE LAW TO COMPENSATION AT THE OVERTIME RATE OF TIME AND ONE HALF REGARDLESS OF THE DAY OF THE WEEK ON WHICH THE OVERTIME WORK IS PERFORMED. UNDER THAT PROCEDURE OVERTIME COMPENSATION WOULD NOT BE FOR PAYING FOR TIME NOT ACTUALLY WORKED--- REGULAR TIME, ONLY, BEING AUTHORIZED FOR LEAVE WITH PAY OR HOLIDAYS.

ACCORDINGLY, IN EACH OF THE CASES PRESENTED THE EMPLOYEE IS ENTITLED TO COMPENSATION FOR 40 HOURS AT HIS REGULAR RATE INCLUDING 8 HOURS CREDIT FOR THE LEGAL HOLIDAY REGARDLESS OF THE DAY IN THE REGULAR TOUR OF DUTY OF THE EMPLOYEE ON WHICH IT OCCURRED--- FRIDAY IN QUESTION 1, THURSDAY IN QUESTION 2, AND MONDAY IN QUESTION 3--- AND TO COMPENSATION AT THE OVERTIME RATE FOR THE NUMBER OF HOURS ACTUALLY WORKED IN ADDITION THERETO, AS FOLLOWS:

THE FIRST EMPLOYEE IN QUESTION 1, 40 HOURS REGULAR COMPENSATION, 8 HOURS OVERTIME; THE SECOND EMPLOYEE IN QUESTION 1, 40 HOURS REGULAR COMPENSATION AND 1 HOUR OVERTIME; THE FIRST EMPLOYEE IN QUESTION 2, 40 HOURS REGULAR COMPENSATION, 8 HOURS OVERTIME; THE SECOND EMPLOYEE IN QUESTION 2, 40 HOURS REGULAR COMPENSATION, 14 HOURS OVERTIME; THE FIRST EMPLOYEE IN QUESTION 3, 40 HOURS REGULAR COMPENSATION, 8 HOURS OVERTIME; AND THE SECOND EMPLOYEE IN QUESTION 3, 40 HOURS REGULAR COMPENSATION AND 1 HOUR OVERTIME.

REFERRING TO THE CONCLUDING SENTENCE OF THE PENULTIMATE PARAGRAPH OF YOUR SUBMISSION, YOU WILL NOTE THAT UNDER THE RULE HEREIN STATED THE EMPLOYEES IN QUESTIONS 1 AND 3 WORKING THE SAME NUMBER OF HOURS IN THE 2 WEEKS IN WHICH A HOLIDAY OCCURS ON A DIFFERENT DAY ARE ENTITLED TO THE SAME AMOUNT OF REGULAR AND OVERTIME COMPENSATION.