A-55192, NOVEMBER 2, 1934, 14 COMP. GEN. 351

A-55192, NOVEMBER 2, 1934, 14 COMP. GEN. 351

COMPENSATION - 40-HOUR WEEK - LEAVE OF ABSENCE AS THE GRANTING OF ANNUAL LEAVE WITH PAY IS DISCRETIONARY, IT IS WITHIN ADMINISTRATIVE AUTHORITY TO ADOPT AN ADMINISTRATIVE PRACTICE OR REGULATION FOR ADJUSTING ANNUAL LEAVE CREDIT AND HOURS OF WORK IN ANY WEEK FOR EMPLOYEES SUBJECT TO THE 40-HOUR WEEK STATUTORY PROVISION IN ORDER TO ELIMINATE THE PAYMENT OF OVERTIME COMPENSATION. WHEN COMPENSATION IN SUCH CASES IS COMPUTED AT THE END OF THE WEEK, ANY PERIOD THE EMPLOYEE IS REGARDED AS HAVING BEEN ON ANNUAL LEAVE AND CHARGED AND PAID FOR AS SUCH IS REQUIRED TO BE CONSIDERED EXACTLY THE SAME AS THOUGH THE EMPLOYEE WERE WORKING, THAT IS, AS A PART OF THE 40 HOURS, AND OVERTIME COMPENSATION IS PAYABLE FOR ANY PERIOD WORKED IN EXCESS OF THE 40 HOURS OF COMBINED PERIOD OF AUTHORIZED ANNUAL LEAVE AND WORK DURING THE WEEK.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, NOVEMBER 2, 1934:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF OCTOBER 12, 1934, AS FOLLOWS:

COMMENCING WITH THE SECOND WEEK OF APRIL 1934 IT HAS BEEN THE PRACTICE OF THE BUREAU OF ENGRAVING AND PRINTING NOT TO GRANT ANY ANNUAL LEAVE TO THE EMPLOYEES AFFECTED BY THE 40-HOUR WEEK ACT OF MARCH 28, 1934, WHICH WOULD RESULT IN OVERTIME WITH TIME AND ONE-HALF PAY. THIS WAS DONE BECAUSE IT HAS BEEN REPEATEDLY NECESSARY, ON SHORT NOTICE, TO WORK ON SATURDAYS AND SUNDAYS AND ON NIGHT SHIFTS TO MEET EMERGENCY ORDERS.

THE SUPERVISING HEADS WERE INSTRUCTED TO PERMIT EMPLOYEES TO BE ABSENT ON ANY DESIRED DAY OR DAYS PROVIDED THEY COULD BE SPARED, WITH THE UNDERSTANDING THAT IF THEIR SERVICES WERE NEEDED LATER IN THE WEEK, THEY WOULD BE REQUIRED TO WORK, AND ONLY SO MUCH OF THE ABSENCE WOULD BE PAID FOR ON ACCOUNT OF ANNUAL LEAVE AS WOULD BRING THE TOTAL PAY TO 40 HOURS FOR THE WEEK. UNDER THIS PRACTICE THE WORKING TIME HAS BEEN RESTRICTED TO 40 HOURS DURING THE SEVEN DAYS OF THE WEEK WITH ONLY A FEW UNAVOIDABLE EXCEPTIONS, AND IN SUCH CASES TIME AND ONE-HALF WAS PAID FOR THE TIME WORKED IN EXCESS OF 40 HOURS.

THE EMPLOYEES FEEL THAT THIS ARRANGEMENT IS NOT IN CONFORMITY WITH THE DECISIONS OF YOUR OFFICE CONCERNING OVERTIME, AND REQUEST TO BE PAID AT TIME AND ONE-HALF FOR TIME WORKED ON SATURDAYS AND SUNDAYS, WHEN THEY WERE ABSENT MORE THAN A HALF DAY EARLIER IN THE WEEK.

THE FOLLOWING ARE EXAMPLES OF ACTUAL CASES AND YOUR DECISION IN EACH CASE IS RESPECTFULLY REQUESTED:

(A) AN EMPLOYEE WAS EXCUSED ALL DAY ON MONDAY AND FOUR HOURS ON THURSDAY; HE WORKED EIGHT HOURS EACH ON TUESDAY, WEDNESDAY, FRIDAY, SATURDAY, AND SUNDAY AND FOUR HOURS ON THURSDAY. HE WAS PAID FIVE DAYS REGULAR TIME AND FOUR HOURS OVERTIME. HOW MANY DAYS' PAY SHOULD HE HAVE RECEIVED?

(B) AN EMPLOYEE WORKED EIGHT HOURS EACH DAY FROM MONDAY TO THURSDAY, WAS EXCUSED FRIDAY, AND WORKED FOUR HOURS ON SATURDAY. HE DID NOT WORK ON SUNDAY. HE WAS PAID FOR FIVE DAYS, FOUR AND ONE-HALF FOR WORK AND ONE- HALF FOR ANNUAL LEAVE. HOW MANY DAYS' PAY SHOULD HE HAVE RECEIVED?

(C) AN EMPLOYEE WAS GRANTED LEAVE FROM MONDAY TO FRIDAY, INCLUSIVE. INSTEAD OF BEING EXCUSED AS INSTRUCTED, HIS ANNUAL LEAVE WAS REVOKED AND HE WAS REQUESTED TO WORK EIGHT HOURS ON THURSDAY, FRIDAY, SATURDAY, AND SUNDAY. HE WAS PAID FOR FIVE DAYS, FOUR FOR WORK AND ONE ON ACCOUNT OF ANNUAL LEAVE. HOW MANY DAYS' PAY SHOULD HE HAVE RECEIVED?

IT MAY BE STATED THAT THE BUREAU IS ON A 44-HOUR WEEK BASIS, AND THE WORKING TIME OF THE 40-HOUR EMPLOYEES IS SPREAD OVER THE 44 HOURS. ONE- ELEVENTH OF THEM ARE SENT OUT ON EACH OF THE ELEVEN 4-HOUR PERIODS OF THE 44 HOURS, ONE-ELEVENTH BEING OUT MONDAY FORENOON, ONE-ELEVENTH MONDAY AFTERNOON, AND SO ON TO SATURDAY NOON.

IN DECISION OF APRIL 23, 1934, 13 COMP. GEN. 296, 297, THERE IS STATED THE FOLLOWING QUESTION AND ANSWER:

3. AN EMPLOYEE WORKS 8 HOURS EACH DAY MONDAY TO THURSDAY, INCLUSIVE, IS ON LEAVE WITH PAY 8 HOURS ON FRIDAY, AND BY AN EMERGENCY IS REQUIRED TO WORK 8 HOURS ON SATURDAY, ALL IN THE SAME WEEK. IS HE TO BE PAID AT THE RATE OF TIME AND ONE-HALF FOR THE SATURDAY WORK, ALTHOUGH HE HAS ACTUALLY WORKED ONLY 40 HOURS BUT WAS IN A PAY STATUS 48 HOURS; IN OTHER WORDS, IS LEAVE GRANTED WITH PAY SYNONYMOUS WITH WORK, AND THEREFORE A PART OF THE 40 HOURS REQUIRED TO BE WORKED IN ONE WEEK BEFORE OVERTIME MAY BE PAID?

REFERRING TO QUESTION 3, ANNUAL LEAVE GRANTED WITH PAY IS SYNONYMOUS WITH WORK AND A PART OF THE 40 HOURS PER WEEK. IN THE EXAMPLE STATED THE EMPLOYEE WOULD BE ENTITLED TO COMPENSATION AS FOR OVERTIME AT THE RATE OF TIME AND ONE-HALF FOR THE WORK ON SATURDAY.

SEE, ALSO, 13 COMP. GEN. 371.

HOWEVER, AS THE GRANTING OF ANNUAL LEAVE WITH PAY IS DISCRETIONARY, IT IS WITHIN ADMINISTRATIVE AUTHORITY TO ADOPT AN ADMINISTRATIVE PRACTICE OR REGULATION, AS STATED IN THE SECOND PARAGRAPH OF YOUR LETTER, FOR ADJUSTING THE ANNUAL LEAVE CREDIT AND THE HOURS OF WORK IN ANY WEEK FOR EMPLOYEES SUBJECT TO THE 40-HOUR WEEK STATUTORY PROVISIONS IN ORDER TO ELIMINATE THE PAYMENT OF OVERTIME COMPENSATION. OF COURSE, THE SAME DAY OR FRACTION OF A DAY MAY NOT BE CHARGED AGAINST AN EMPLOYEE AS ANNUAL LEAVE AND AT THE SAME TIME COUNTED AS A NONWORK PERIOD, NOT PART OF THE 40 HOURS. ON THE CONTRARY, WHEN COMPENSATION IN SUCH CASES IS COMPUTED AT THE END OF THE WEEK ANY PERIOD DURING THE WEEK THE EMPLOYEE IS REGARDED AS HAVING BEEN ON ANNUAL LEAVE AND CHARGED AND PAID FOR AS SUCH IS REQUIRED TO BE CONSIDERED EXACTLY THE SAME AS THOUGH THE EMPLOYEE WERE WORKING, THAT IS, AS A PART OF THE 40 HOURS, AND OVERTIME COMPENSATION IS PAYABLE FOR ANY PERIOD WORKED IN EXCESS OF THE 40 HOURS OF COMBINED PERIOD OF AUTHORIZED ANNUAL LEAVE AND WORK DURING THE WEEK.

IN CASE (A) IF THE ABSENCE ON MONDAY WAS NOT CHARGED AS ANNUAL LEAVE BUT REGARDED AS A NONWORK DAY, THE PAYMENT MADE WAS CORRECT, BUT IF ABSENCE ON MONDAY WAS CHARGED AS ANNUAL LEAVE THE EMPLOYEE SHOULD HAVE BEEN PAID COMPENSATION FOR 5 DAYS REGULAR TIME AND 1 DAY, 4 HOURS OVERTIME.

IN CASE (B) IF ONLY ONE-HALF DAY'S ANNUAL LEAVE WAS CHARGED FOR THE ABSENCE ON FRIDAY, THE OTHER HALF BEING REGARDED AS A NONWORK PERIOD, THE PAYMENT MADE WAS CORRECT, BUT IF THE ENTIRE DAY'S ABSENCE ON FRIDAY WAS CHARGED AS ANNUAL LEAVE THE EMPLOYEE SHOULD HAVE BEEN PAID COMPENSATION FOR 5 DAYS REGULAR TIME AND ONE-HALF DAY OVERTIME.

IN CASE (C) IF ANNUAL LEAVE WAS CHARGED FOR ABSENCE ONLY ON 1 OF THE 3 DAYS, MONDAY, TUESDAY, OR WEDNESDAY, THE OTHER 2 DAYS BEING REGARDED AS NONWORK DAYS, THE PAYMENT MADE WAS CORRECT, BUT IF ANNUAL LEAVE WAS CHARGED FOR ABSENCE ON 2 OF THE 3 DAYS, THE OTHER DAY BEING REGARDED AS A NONWORK DAY, THE EMPLOYEE SHOULD HAVE BEEN PAID COMPENSATION FOR 5 DAYS REGULAR TIME AND 1 DAY OVERTIME, OR IF ANNUAL LEAVE WAS CHARGED FOR ABSENCE ON ALL 3 OF THE DAYS, MONDAY, TUESDAY, AND WEDNESDAY, THE EMPLOYEE SHOULD HAVE BEEN PAID COMPENSATION FOR 5 DAYS REGULAR TIME AND 2 DAYS OVERTIME.