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B-141222, NOVEMBER 23, 1959, 39 COMP. GEN. 393

B-141222 Nov 23, 1959
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WERE GRANTED A COMPENSATORY DAY OFF PRIOR TO SEPTEMBER 22. ARE ENTITLED TO HOLIDAY COMPENSATION FOR SUCH WORK WITH A CHARGE TO ANNUAL LEAVE FOR THE COMPENSATORY DAY. PROVIDED THAT CURRENT ANNUAL LEAVE IS AVAILABLE TO BE CHARGED. IS REQUIRED BY THE ACT TO BE CHARGED TO ANNUAL LEAVE OR LEAVE WITHOUT PAY. 1959: WE HAVE CONSIDERED YOUR LETTER OF NOVEMBER 10. WAS GIVEN COMPENSATORY TIME OFF AS PROVIDED BY EXECUTIVE ORDER NO. 10825 OF JUNE 12. THE SPECIFIC QUESTIONS PRESENTED ARE AS FOLLOW: (A) AN EMPLOYEE WORKED ON JULY 3 AND WAS GIVEN HIS COMPENSATORY DAY OFF AS PROVIDED BY EXECUTIVE ORDER 10825. IS REQUIRED? IS REQUIRED. IF THE COMPENSATORY DAY WAS GIVEN ON OR AFTER SEPTEMBER 22. WHEN THE AGENCY BELIEVED IT WAS AUTHORIZED TO DO SO?

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B-141222, NOVEMBER 23, 1959, 39 COMP. GEN. 393

CIVILIAN PERSONNEL - JULY 3, 1959 - COMPENSATORY DAYS SUBSTITUTED FOR HOLIDAY PAY - ACT OF SEPTEMBER 22, 1959 EMPLOYEES WHO WORKED ON JULY 3, 1959, AND WHO, PURSUANT TO EXECUTIVE ORDER NO. 10825, WERE GRANTED A COMPENSATORY DAY OFF PRIOR TO SEPTEMBER 22, 1959, THE DATE OF ENACTMENT OF PUBLIC LAW 86-362 WHICH SUPERSEDED EXECUTIVE ORDER NO. 10825 AND PRESCRIBED HOLIDAY COMPENSATION FOR WORK ON THE DAYS DESIGNATED AS HOLIDAYS IN LIEU OF SATURDAY HOLIDAYS, ARE ENTITLED TO HOLIDAY COMPENSATION FOR SUCH WORK WITH A CHARGE TO ANNUAL LEAVE FOR THE COMPENSATORY DAY, PROVIDED THAT CURRENT ANNUAL LEAVE IS AVAILABLE TO BE CHARGED, AND PROVIDED FURTHER THAT NO LOSS IN COMPENSATION OR OTHER BENEFIT RESULTS; HOWEVER, UNDER SUCH CIRCUMSTANCES, THE GRANTING OF COMPENSATORY TIME PRIOR TO SEPTEMBER 22, 1959, NEED NOT BE CHANGED. ANY COMPENSATORY DAY GRANTED FOR WORK ON JULY 3, 1959, AFTER SEPTEMBER 22, 1959, THE DATE OF ENACTMENT OF PUBLIC LAW 86-362, WHICH PRESCRIBES HOLIDAY COMPENSATION FOR WORK ON THE DAYS DESIGNATED AS HOLIDAYS IN LIEU OF SATURDAY HOLIDAYS, IS REQUIRED BY THE ACT TO BE CHARGED TO ANNUAL LEAVE OR LEAVE WITHOUT PAY, AND PREMIUM HOLIDAY COMPENSATION MUST BE PAID FOR WORK ON JULY 3, 1959.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, NOVEMBER 23, 1959:

WE HAVE CONSIDERED YOUR LETTER OF NOVEMBER 10, 1959, WHICH CONCERNS THE APPLICATION OF THE RETROACTIVE PROVISION OF PUBLIC LAW 86-362, SECTION 3, 73 STAT. 644, 5 U.S.C. 87C NOTE, TO THOSE SITUATIONS WHEN AN EMPLOYEE WORKED JULY 3, 1959, AND WAS GIVEN COMPENSATORY TIME OFF AS PROVIDED BY EXECUTIVE ORDER NO. 10825 OF JUNE 12, 1959, PARTICULARLY, WHEN THE PAYMENT OF PREMIUM HOLIDAY COMPENSATION AND THE SUBSTITUTION OF ANNUAL LEAVE OR LEAVE WITHOUT PAY FOR THE COMPENSATORY TIME GRANTED MAY RESULT IN A LOSS OF COMPENSATION OR OTHER BENEFIT TO EMPLOYEES. THE SPECIFIC QUESTIONS PRESENTED ARE AS FOLLOW:

(A) AN EMPLOYEE WORKED ON JULY 3 AND WAS GIVEN HIS COMPENSATORY DAY OFF AS PROVIDED BY EXECUTIVE ORDER 10825, AND PRIOR TO THE ENACTMENT OF PUBLIC LAW 86-362. WHAT ADJUSTMENT, IF ANY, IS REQUIRED?

(B) WHAT ADJUSTMENT, IF ANY, IS REQUIRED, IF THE COMPENSATORY DAY WAS GIVEN ON OR AFTER SEPTEMBER 22, THE DATE OF ENACTMENT, WHEN THE AGENCY BELIEVED IT WAS AUTHORIZED TO DO SO?

EXECUTIVE ORDER NO. 10825, SO FAR AS HERE PERTINENT, PROVIDED, IN EFFECT, THAT ANY EMPLOYEE REQUIRED TO WORK ON JULY 3, 1959, SHALL BE EXCUSED FROM DUTY, WITHOUT CHARGE TO LEAVE OR LOSS OF PAY, ON ONE OTHER WORKDAY IN THE FISCAL YEAR 1960. THE EXECUTIVE ORDER SPECIFICALLY PRESCRIBED THAT JULY 3 WAS NOT TO BE CONSIDERED A HOLIDAY WITHIN THE MEANING OF EXECUTIVE ORDER NO. 10358 OF JUNE 9, 1952, OR ANY STATUTES SO FAR AS THEY RELATE TO THE COMPENSATION AND LEAVE OF EMPLOYEES OF THE UNITED STATES.

ON SEPTEMBER 22, 1959, PUBLIC LAW 86-362 WAS APPROVED. IT PROVIDED, IN PERTINENT PART, THAT IF ANY OF THE PRESCRIBED HOLIDAYS SHALL OCCUR ON A SATURDAY, THE DAY IMMEDIATELY PRECEDING SUCH SATURDAY SHALL BE HELD AND CONSIDERED TO BE A LEGAL PUBLIC HOLIDAY IN LIEU OF SUCH DAY WHICH SO OCCURS ON SATURDAY. THE PROVISIONS THEREOF WERE MADE RETROACTIVE TO JULY 1, 1959. UNDER THE STATUTE HOLIDAY PAY IS AUTHORIZED FOR SERVICES ON JULY 3. SINCE EXECUTIVE ORDER NO. 10825 AUTHORIZED ONLY COMPENSATORY TIME OFF FOR SERVICES PERFORMED ON JULY 3, AND SINCE THE STATUTE AUTHORIZED ONLY HOLIDAY COMPENSATION RETROACTIVELY TO JULY 1, 1959, CONFUSION HAS RESULTED. FOR EXAMPLE, IF IT BE HELD THAT THE STATUTE NOW REQUIRES PAYMENT OF PREMIUM HOLIDAY COMPENSATION IN ALL CASES FOR WORK PERFORMED ON JULY 3, 1959, THERE WILL RESULT SITUATIONS IN WHICH EMPLOYEES WHO RECEIVED PROMOTIONS OR INCREASES IN COMPENSATION AFTER JULY 3, 1959, AND WHO HAVE BEEN GRANTED A COMPENSATORY DAY OFF AFTER THE PROMOTION OR INCREASE BUT PRIOR TO SEPTEMBER 22, 1959, IN ACCORDANCE WITH EXECUTIVE ORDER NO. 10825, WILL BE INDEBTED TO THE UNITED STATES BY REASON OF THEIR HAVING NO ANNUAL LEAVE TO SUBSTITUTE FOR SUCH COMPENSATORY DAY OFF FOR WHICH THEY RECEIVED PAY AT A RATE HIGHER THAN THE RATE OF PREMIUM HOLIDAY PAY FOR JULY 3.

IN ORDER TO GIVE EFFECT TO THE RETROACTIVE FEATURE OF THE STATUTE SO FAR AS POSSIBLE WITHOUT DISTURBING RIGHTS ALREADY EXERCISED UNDER EXECUTIVE ORDER NO. 10825, OUR VIEW IS THAT THOSE EMPLOYEES WHO WORKED JULY 3, 1959, AND WERE GRANTED COMPENSATORY TIME OFF PRIOR TO SEPTEMBER 22, 1959, THE ENACTMENT DATE OF THE STATUTE, SHOULD BE PAID HOLIDAY COMPENSATION FOR SUCH WORK WITH A CHARGE TO ANNUAL LEAVE FOR THE COMPENSATORY DAY, PROVIDED THERE IS CURRENT ANNUAL LEAVE TO WHICH SUCH DAY MAY BE CHARGED AND PROVIDED FURTHER THAT NO LOSS IN COMPENSATION OR OTHER BENEFIT RESULTS FROM SUCH ACTION. WHEN THERE IS NO CURRENT ANNUAL LEAVE AVAILABLE OR WHEN A LOSS IN COMPENSATION OR OTHER BENEFIT IS INVOLVED, THE GRANTING OF COMPENSATORY TIME OFF PRIOR TO SEPTEMBER 22, 1959, IN ACCORDANCE WITH EXECUTIVE ORDER NO. 10825, IN LIEU OF HOLIDAY COMPENSATION UNDER THE STATUTE, NEED NOT BE DISTURBED. QUESTION (A) IS ANSWERED ACCORDINGLY.

AS TO QUESTION (B), WHEN THE COMPENSATORY DAY OFF HAS BEEN GRANTED AFTER SEPTEMBER 22, 1959, THE ENACTMENT DATE OF THE STATUTE, WE FEEL THERE IS NO BASIS FOR PERMITTING AN EXCEPTION TO THE STATUTE, WHICH IN EFFECT REQUIRES PAYMENT OF HOLIDAY COMPENSATION FOR WORK PERFORMED ON JULY 3, AND WHICH MAKES NO PROVISION FOR GRANTING COMPENSATORY TIME OFF IN LIEU THEREOF. CERTAINLY, ON AND AFTER SEPTEMBER 22, 1959 (NO COMPENSATORY TIME OFF HAVING PREVIOUSLY BEEN GRANTED), HOLIDAY COMPENSATION WAS AUTHORIZED AND COULD HAVE BEEN PAID WITHOUT DISTURBING ANY RIGHTS EXERCISED UNDER EXECUTIVE ORDER NO. 10825. THEREFORE, UNDER THOSE CIRCUMSTANCES, WE ARE REQUIRED TO ANSWER QUESTION (B) BY SAYING THAT IF A COMPENSATORY DAY HAS BEEN GRANTED ON OR AFTER SEPTEMBER 22, 1959, FOR WORK PERFORMED ON JULY 3, 1959, SUCH ABSENCE SHOULD BE CHARGED TO ANNUAL LEAVE OR LEAVE WITHOUT PAY AND PREMIUM HOLIDAY COMPENSATION PAID FOR THE WORK PERFORMED ON SUCH DAY.

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