B-70371, AUG 5, 1975

B-70371, AUG 5, 1975

EMPLOYEE WHO PERFORMS DUTY FOR FULL WORKDAY AND THEN SITS ON GRAND JURY DUTY IN THE EVENING MAY BE GRANTED COURT LEAVE FOR THE DAY FOLLOWING SUCH DUTY TO EXTENT NECESSARY TO ALLEVIATE HARDSHIP. SEE 54 COMP. GEN. 147. EMPLOYEE IS ENTITLED TO RETENTION OF PRO RATA PORTION OF GRAND JURY FEE TO EXTENT THAT HOURS ACTUALLY SERVED EXCEED HOURS OF COURT LEAVE GRANTED. SEE 53 COMP. GEN. 407.

JURY DUTY - GRAND JURY SITTING OUTSIDE OF EMPLOYEE'S NORMAL WORK HOURS:

THIS IS IN RESPONSE TO A REQUEST FROM A DISBURSING OFFICER FOR AN ADVANCE DECISION REGARDING THE PROPRIETY OF GRANTING COURT LEAVE TO AN EMPLOYEE FOR THE DAY FOLLOWING HER PERFORMANCE OF GRAND JURY DUTY PERFORMED AT NIGHT OUTSIDE OF HER NORMAL WORKING HOURS AND AFTER SHE HAD COMPLETED A FULL 8-HOUR WORKING DAY.

THE RECORD SHOWS THAT THE EMPLOYEE WAS ASSIGNED FOR 1 YEAR TO A SPECIAL GRAND JURY WHICH MET ONCE EACH WEEK IN THE EVENING, BEGINNING ABOUT 7 P.M., AFTER THE EMPLOYEE HAD COMPLETED HER NORMAL 8-HOUR WORKDAY. GRAND JURY SESSIONS GENERALLY LASTED UNTIL LATE THURSDAY EVENING AND ON OCCASION EXTENDED INTO THE EARLY MORNING HOURS OF THE FOLLOWING DAY. THE QUESTION RAISED FOR OUR CONSIDERATION IS WHETHER AN EMPLOYEE WHO PERFORMS A FULL WORKDAY AND THEN SITS ON A GRAND JURY IN THE EVENING UNDER THESE CIRCUMSTANCES MAY APPROPRIATELY BE GRANTED COURT LEAVE FOR THE FOLLOWING WORKDAY DURING WHICH NO JURY DUTY IS PERFORMED.

SECTION 6322(A) OF TITLE 5, U.S.C. (1970), PROVIDES IN PERTINENT PART:

"(A) AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE (EXCEPT AN INDIVIDUAL WHOSE PAY IS DISBURSED BY THE SECRETARY OF THE SENATE OR THE CLERK OF THE HOUSE OF REPRESENTATIVES) OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS ENTITLED TO LEAVE, WITHOUT LOSS OF, OR REDUCTION IN, PAY, LEAVE TO WHICH HE OTHERWISE IS ENTITLED, CREDIT FOR TIME OR SERVICE, OR PERFORMANCE OF EFFICIENCY RATING, DURING A PERIOD OF ABSENCE WITH RESPECT TO WHICH HE IS SUMMONED, IN CONNECTION WITH A JUDICIAL PROCEEDING, BY A COURT OR AUTHORITY RESPONSIBLE FOR THE CONDUCT OF THAT PROCEEDING, TO SERVE -

"(1) AS A JUROR; OR

IN THE DISTRICT OF COLUMBIA, A STATE, TERRITORY, OR POSSESSION OF THE UNITED STATES INCLUDING THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, OR THE TRUST TERRITORY OF THE PACIFIC ISLANDS. ***"

THE ABOVE STATUTE, DERIVED FROM THE ACT OF JUNE 29, 1940, CHAPTER 446, 54 STAT. 689, STATES THE LONG-STANDING POLICY OF THE CONGRESS THAT GOVERNMENT EMPLOYEES SHOULD BE PERMITTED TO PERFORM JURY SERVICE WITHOUT LOSS OF COMPENSATION OR LEAVE. IT HAS BEEN HELD THAT AN EMPLOYEE IS ENTITLED TO COMPENSATION FOR REGULARLY-SCHEDULED WORKING HOURS ALTHOUGH HE IS NOT SCHEDULED FOR ACTUAL JURY SERVICE WHEN IT WOULD IMPOSE A HARDSHIP UPON HIM TO RETURN TO HIS REGULAR WORK. 26 COMP. GEN. 413 (1946). ALSO, IT HAS BEEN HELD THAT EMPLOYEES MAY BE EXCUSED FROM THEIR REGULARLY-SCHEDULED NIGHT DUTIES WHEN THE EMPLOYEES SERVE ON JURY DURING THE DAY WITHOUT CHARGE TO ANNUAL LEAVE AND WITH COMPENSATION AT THE NIGHT DIFFERENTIAL RATE. 29 COMP. GEN. 427 (1950). IN 54 COMP. GEN. 147 (1974) WE HELD THAT EMPLOYEES REGULARLY ASSIGNED TO A WORKWEEK WHICH INCLUDED WEEKENDS BUT WHO PERFORMED JURY DUTY DURING THE 5 NORMAL WEEKDAYS COULD BE PERMITTED TO BE ABSENT ON WEEKEND DAYS WITHOUT CHARGE TO ANNUAL LEAVE OR LOSS OF PREMIUM PAY, WITH THE ADDED STIPULATION THAT IF THE EMPLOYEE WERE EXCUSED FROM JURY DUTY ON A WEEKDAY, HE SHOULD WORK A WEEKEND DAY IN PLACE OF THE EXCUSED SERVICE IF NO HARDSHIP WERE INVOLVED.

IN VIEW OF THE LAST DECISION CITED ABOVE REGARDING GRANTING OF COURT LEAVE FOR DAYS ON WHICH NO JURY DUTY IS PERFORMED AND THE HARDSHIP CRITERIA RELATING TO RETURN TO DUTY ON DAYS EXCUSED FROM JURY SERVICE ESTABLISHED IN 26 COMP. GEN. 413, SUPRA, IT IS OUR OPINION THAT COURT LEAVE MAY BE GRANTED FOR THE DAY FOLLOWING AN EVENING GRAND JURY SESSION TO THE EXTENT NECESSARY TO ALLEVIATE ANY HARDSHIP ON THE EMPLOYEE. THE DETERMINATION OF THE NUMBER OF HOURS OF COURT LEAVE TO BE GRANTED IS, OF COURSE, A MATTER FOR ADMINISTRATIVE DETERMINATION. IN THIS REGARD, IT SHOULD ALSO BE NOTED THAT UNDER 53 COMP. GEN. 407 (1973) THE EMPLOYEE WOULD BE ENTITLED TO RETAIN A PRO RATA PORTION OF THE GRAND JURY FEE FOR THE NUMBER OF HOURS OF GRAND JURY DUTY PERFORMED IN EXCESS OF THE NUMBER OF HOURS OF COURT LEAVE GRANTED.

THE RECORD INDICATES THAT ON ONE OCCASION THE EMPLOYEE WAS CHARGED SICK LEAVE ON THE FRIDAY FOLLOWING JURY DUTY ON THURSDAY EVENING. SINCE, IN ACCORDANCE WITH THIS DECISION, THE EMPLOYEE SHOULD BE GRANTED COURT LEAVE ON THAT DAY, THE SICK LEAVE CHARGE SHOULD BE CHANGED TO COURT LEAVE TO THE EXTENT COURT LEAVE WOULD OTHERWISE HAVE BEEN GRANTED AND THE JURY FEE REMITTED TO YOUR AGENCY. SEE 27 COMP. GEN. 83 (1947).