A-90894, APRIL 18, 1940, 19 COMP. GEN. 877

A-90894, APRIL 18, 1940, 19 COMP. GEN. 877

COMPENSATORY TIME FOR OVERTIME ON SATURDAYS WHERE AN EMPLOYEE IS GRANTED COMPENSATORY TIME FOR WORK ON A SATURDAY IN EXCESS OF FOUR HOURS, PURSUANT TO THE SATURDAY HALF-HOLIDAY LAW OF MARCH 3, 1931, 46 STAT. 1482, HE MAY BE GRANTED ANNUAL LEAVE (OR LEAVE WITHOUT PAY WHEN HE HAS NO ANNUAL LEAVE TO HIS CREDIT) FOR THE PART OF THE DAY NOT COVERED BY THE COMPENSATORY TIME WHEN COMPENSATORY TIME FOR ONLY ONE SATURDAY IS INVOLVED. 17 COMP. GEN. 921, AMPLIFIED. AN ACCUMULATION, BY SEASONAL EMPLOYEES, OF COMPENSATORY TIME FOR OVERTIME WORK ON SATURDAYS, MAY BE CARRIED OVER TO THE IMMEDIATELY SUCCEEDING SEASON BUT NOT THEREAFTER. 17 COMP. GEN. 920, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, APRIL 18, 1940:

I HAVE YOUR LETTER OF MARCH 26, 1940, AS FOLLOWS:

REFERENCE IS MADE TO DECISION OF MAY 6, 1938 (17 COMP. GEN. 920).

WITH RESPECT TO QUESTION 5 (E) RELATIVE TO THE DEFERRED GRANTING OF COMPENSATORY TIME FOR SATURDAY OVERTIME, IT IS STATED THAT COMPENSATORY TIME MAY NOT BE GRANTED ON A DAY WHEN NO WORK IS PERFORMED BY THE EMPLOYEE, THE REMAINDER OF THE DAY BEING CHARGED TO ANNUAL LEAVE. WHILE QUESTION 5 (E) IN THAT DECISION RELATED TO COMPENSATORY TIME EARNINGS ACCUMULATED OVER A CONSIDERABLE PERIOD THE REPLY HAS CAUSED SOME DOUBT AS TO THE PRACTICE OF ALLOWING ANNUAL LEAVE FOR THE REMAINDER OF A DAY ON WHICH AN EMPLOYEE IS GRANTED COMPENSATORY TIME CURRENTLY EARNED, OR IN SMALL TOTAL AMOUNTS, THERE BEING NO ACCUMULATION OF SEVERAL SATURDAYS' EARNINGS.

IT SEEMS LOGICAL THAT AN EMPLOYEE WHO IS REQUIRED TO SUBSTITUTE MONDAY, FOR EXAMPLE, FOR THE SATURDAY SHORT DAY SHOULD BE ALLOWED THE SAME PRIVILEGE ON MONDAY AS HE WOULD HAVE BEEN ALLOWED ON SATURDAY; CONSEQUENTLY, SINCE HE COULD HAVE BEEN AWAY ALL DAY SATURDAY BY TAKING FOUR HOURS ANNUAL LEAVE HE SHOULD BE PERMITTED TO REMAIN AWAY FROM DUTY ALL DAY MONDAY (ON WHICH THREE HOURS COMPENSATORY TIME IS GRANTED) BY TAKING FOUR HOURS ANNUAL LEAVE. THE ACT OF MARCH 3, 1931 (5 U.S.C. 26 (A) (, FIXING FOUR HOURS AS A DAY'S WORK ON SATURDAY, STATES THAT WHERE THE SERVICES OF THE EMPLOYEE CANNOT BE SPARED ON SATURDAY HE SHALL BE ENTITLED TO "AN EQUAL SHORTENING OF THE WORKDAY ON SOME OTHER DAY" WHICH WOULD INDICATE THAT THE "OTHER DAY" IS INTENDED TO HAVE THE SAME STATUS AS THE SATURDAY NORMALLY WOULD HAVE HAD. IT WOULD BE DECIDEDLY UNFAIR TO PERMIT EMPLOYEES TO REMAIN AWAY ON THE SHORT SATURDAY BY GRANTING ANNUAL LEAVE FOR FOUR HOURS AND DENY THAT PRIVILEGE ON MONDAY TO ONE WHO HAD BEEN REQUIRED TO REMAIN ON DUTY SEVEN HOURS OR MORE ON SATURDAY. HOWEVER, SINCE THE RULING PREVIOUSLY REFERRED TO HAS CAUSED SOME DOUBT IN THIS RESPECT, DECISION IS DESIRED WHETHER, WHEN OVERTIME FOR ONLY ONE SATURDAY IS INVOLVED, THE EMPLOYEE MAY REMAIN AWAY FROM DUTY DURING THE WHOLE SUBSTITUTE DAY, TAKING ANNUAL LEAVE FOR THE PORTION NOT COVERED BY COMPENSATORY TIME. IN PRESENTING THIS QUESTION IT IS NOT INTENDED TO ARGUE THAT COMPENSATORY TIME EARNINGS SHOULD BE ALLOWED TO ACCUMULATE IN SUCH WAY AS TO SUPPLEMENT ANNUAL LEAVE, BUT ONLY THAT THE ANNUAL LEAVE PRIVILEGE WHICH THE EMPLOYEE COULD HAVE EXERCISED ON SATURDAY SHOULD NOT BE DENIED HIM ON THE DAY ON WHICH COMPENSATORY TIME IS GRANTED.

WHILE IT IS RECOGNIZED THAT COMPENSATORY TIME EARNINGS SHOULD NOT BE ALLOWED TO ACCUMULATE UNNECESSARILY AND BE SO GRANTED AS TO SUPPLEMENT ANNUAL LEAVE, IT WOULD SEEM UNDULY RESTRICTIVE WHEN AN EMPLOYEE HAS EARNED COMPENSATORY TIME LESS THAN A FULL DAY (AS FOR TWO SATURDAYS) TO PREVENT HIS BEING ABSENT AN ENTIRE DAY, COVERED BY COMPENSATORY TIME AND ANNUAL LEAVE, ESPECIALLY SINCE A TECHNICAL REQUIREMENT THAT SOME WORK BE PERFORMED ON THE SUBSTITUTED SHORTENED DAY COULD BE MET BY ALLOWING AN EMPLOYEE TO TAKE, FOR EXAMPLE, SIX HOURS COMPENSATORY TIME AND THREE- FOURTHS HOUR ANNUAL LEAVE, WORKING FIFTEEN MINUTES. IN SOME INSTANCES IT IS DESIRABLE FROM THE STANDPOINT OF THE GOVERNMENT THAT THE EMPLOYEE REMAIN AWAY A WHOLE DAY RATHER THAN REPORT FOR DUTY FOR A PORTION OF THE DAY, AS WHERE IT IS NECESSARY THAT ANOTHER EMPLOYEE BE ASSIGNED TO THE SAME JOB FOR THE REMAINDER OF THE DAY OR WHERE RESUMPTION OF A PARTIALLY EXECUTED TASK REQUIRES SOME REVIEW OF THE WORK PREVIOUSLY DONE, THUS LOSING TIME. IT IS THEREFORE DESIRED THAT THE ANSWER TO QUESTION 5 (E) IN DECISION 17 COMP. GEN. 920 BE RECONSIDERED WITH RESPECT TO SATURDAY OVERTIME ACCUMULATION OF LESS THAN A FULL DAY (SUCH AS SIX HOURS EARNED IN THREE-HOUR PERIODS ON TWO CONSECUTIVE SATURDAYS). IN SUCH CASE IT SEEMS LOGICAL TO PERMIT THE EMPLOYEE TO REMAIN AWAY FROM WORK ONE FULL DAY CHARGING SIX HOURS TO COMPENSATORY TIME AND ONE HOUR TO ANNUAL LEAVE (OR LEAVE WITHOUT PAY, IF THERE IS NO ANNUAL LEAVE TO HIS CREDIT).

WHILE THE DECISIONS FREQUENTLY HAVE REFERRED TO LEAVE WITH PAY IN CONNECTION WITH ABSENCE ON ACCOUNT OF COMPENSATORY TIME IT HAS NOT BEEN MADE CLEAR WHETHER LEAVE WITHOUT PAY IS IN THE SAME STATUS AS LEAVE WITH PAY. UNDER CIRCUMSTANCES WHERE AN ACCUMULATION FOR MORE THAN ONE SATURDAY CANNOT BE UTILIZED ON THE SAME DAY AS ANNUAL LEAVE, DECISION IS REQUESTED WHETHER THE SAME RULE APPLIES TO LEAVE WITHOUT PAY IN THE CASE OF AN EMPLOYEE HAVING NO UNUSED ANNUAL LEAVE.

IN 10 COMP. GEN. 497 IT WAS HELD THAT THE EMPLOYMENT PERIOD OF A FOREST GUARD COULD NOT BE EXTENDED FOR THE PURPOSE OF GRANTING COMPENSATORY TIME THAT COULD NOT BE ALLOWED DURING THE FIRE SEASON. SUCH GUARDS IN MANY CASES ARE FURLOUGHED OVER THE WINTER AND WHERE IT IS NOT POSSIBLE DURING THE CURRENT SEASON TO ALLOW COMPENSATORY TIME FOR SATURDAYS DECISION 17 COMP. GEN. 920 PERMITS THE CREDIT TO BE CARRIED FORWARD TO THE FOLLOWING YEAR AND GRANTED AFTER RESTORATION TO DUTY IN THE SPRING. CONDITIONS MAY BE SUCH THAT THERE IS NO OPPORTUNITY TO ALLOW THE ABSENCE IN THE ENSUING YEAR, ALLOWANCE AT THE CLOSE OF THE EMPLOYMENT NOT BEING PERMISSIBLE AS IN THE CASE OF MANDATORY ANNUAL LEAVE. DECISION IS THEREFORE DESIRED WHETHER CREDIT COULD BE CARRIED TO A SECOND SEASON OR WHETHER A LIMIT IS TO BE RECOGNIZED BEYOND WHICH UNUSED COMPENSATORY TIME CREDIT MAY NOT BE AVAILABLE FOR GRANTING.

THE SO-CALLED SATURDAY HALF-HOLIDAY LAW, APPROVED MARCH 3, 1931, 46 STAT. 1482, PROVIDES:

THAT ON AND AFTER THE EFFECTIVE DATE OF THIS ACT FOUR HOURS, EXCLUSIVE OF TIME FOR LUNCHEON, SHALL CONSTITUTE A DAY'S WORK ON SATURDAYS THROUGHOUT THE YEAR, WITH PAY OR EARNINGS FOR THE DAY THE SAME AS ON OTHER DAYS WHEN FULL TIME IS WORKED, FOR ALL CIVIL EMPLOYEES OF THE FEDERAL GOVERNMENT AND THE DISTRICT OF COLUMBIA, EXCLUSIVE OF EMPLOYEES OF THE POSTAL SERVICE, EMPLOYEES OF THE PANAMA CANAL ON THE ISTHMUS, AND EMPLOYEES OF THE INTERIOR DEPARTMENT IN THE FIELD, WHETHER ON THE HOURLY, PER DIEM, PER ANNUM, PIECEWORK, OR OTHER BASIS: PROVIDED, THAT IN ALL CASES WHERE FOR SPECIAL PUBLIC REASONS, TO BE DETERMINED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT HAVING SUPERVISION OR CONTROL OF SUCH EMPLOYEES, THE SERVICES OF SUCH EMPLOYEES CANNOT BE SPARED, SUCH EMPLOYEES SHALL BE ENTITLED TO AN EQUAL SHORTENING OF THE WORKDAY ON SOME OTHER DAY: PROVIDED FURTHER, THAT THE PROVISIONS OF THIS ACT SHALL NOT DEPRIVE EMPLOYEES OF ANY LEAVE OR HOLIDAYS WITH PAY TO WHICH THEY MAY NOW BE ENTITLED UNDER EXISTING LAWS.

IN THE DECISION OF MAY 6, 1938, 17 COMP. GEN. 920, TO WHICH YOU REFER, THERE WERE CONSIDERED IN ANSWERING THE QUESTIONS THERE PRESENTED, SEVERAL PRIOR DECISIONS OF THIS OFFICE STATING RULES FOR APPLYING THE STATUTE, ALL OF WHICH HAVE BEEN FORMULATED TO CARRY OUT THE PURPOSE AND INTENT OF THE STATUTE STATED IN DECISION OF MARCH 7, 1931, 10 COMP. GEN. 400, 401, TO BE AS FOLLOWS:

THE PRIMARY PURPOSE OF THE ACT OF MARCH 3, 1931, 46 STAT. 1482, IS DISCLOSED IN THE TITLE," AN ACT PROVIDING FOR SATURDAY HALF-HOLIDAYS FOR CERTAIN GOVERNMENT EMPLOYEES.' THE STATUTE GRANTS PART OF A HOLIDAY AND NOT ADDITIONAL LEAVE OF ABSENCE. AS TO EMPLOYEES WHOSE REGULAR WORKDAY IS 8 HOURS THE STATUTE GRANTS A HALF HOLIDAY, AND AS TO EMPLOYEES WHOSE REGULAR WORKDAY IS 7 HOURS THE STATUTE GRANTS A PART HOLIDAY OF 3 HOURS. ONLY IN CASE OF AN EMERGENCY OR GENUINE EXIGENCIES OF THE SERVICE SHOULD EMPLOYEES BE REQUIRED OR PERMITTED TO WORK ON SUCH HOLIDAYS, THAT IS, TO WORK MORE THAN FOUR HOURS ON ANY SATURDAY. WHERE FOR SUCH SPECIAL PUBLIC REASON EMPLOYEES ARE REQUIRED TO WORK MORE THAN FOUR HOURS ON ANY SATURDAY THE PROVISION IN THE ACT FOR COMPENSATORY TIME QUOTED IN YOUR LETTER, IS MANDATORY AND REQUIRES "AN EQUAL SHORTENING OF THE WORKDAY ON SOME OTHER DAY," THAT IS, THAT THE EMPLOYEE'S REGULAR WORKING TIME ON SOME OTHER DAY BE REDUCED, WITHOUT LOSS OF PAY OR LEAVE TIME, BY A PERIOD EXACTLY EQUAL TO THE TIME SUCH EMPLOYEE WAS REQUIRED TO WORK IN EXCESS OF FOUR HOURS ON THE SATURDAY. WHILE THE COMPENSATORY TIME FOR EACH SATURDAY ON WHICH WORK IS PERFORMED IN EXCESS OF FOUR HOURS IS CUMULATIVE IN THE SENSE THAT THE EMPLOYEE'S RIGHT THERETO IS NOT LOST WHEN FOR PUBLIC REASONS IT CANNOT BE GRANTED BEFORE THE EMPLOYEE IS REQUIRED TO WORK MORE THAN FOUR HOURS ON A SUBSEQUENT SATURDAY, THERE APPEARS NOTHING IN THE STATUTE--- WHICH WAS ENACTED PRIMARILY FOR THE BENEFIT OF EMPLOYEES--- TO GRANT AN ADMINISTRATIVE OFFICE SUCH BROAD DISCRETIONARY POWERS WITH RESPECT TO THE GRANTING OF COMPENSATORY TIME AS TO DISSIPATE THE HALF HOLIDAY BY DIVIDING THE PERIOD EQUAL TO THE OVERTIME WORK PERFORMED ON ANY SATURDAY AND REQUIRING THE EMPLOYEE TO TAKE OFF A PORTION THEREOF IN ONE OR TWO HOUR PERIODS ON TWO OR MORE SUBSEQUENT DAYS, NOR TO REQUIRE THAT THE SATURDAY OVERTIME BE ACCUMULATED UNTIL IT AMOUNTS TO SEVERAL DAYS AND THEN ALL BE GRANTED AT ONE TIME, WHICH WOULD BE TANTAMOUNT TO INCREASING ANNUAL LEAVE INSTEAD OF SHORTENING WORK DAYS. SUCH A PROCEDURE WOULD DEFEAT THE PURPOSE OF THE LAW.

IN THE DECISION OF MAY 6, 1938, THE RULE STATED IN ANSWERING NEGATIVELY QUESTION 5 (E/--- THAT COMPENSATORY TIME FOR OVERTIME WORK ON SATURDAY IN EXCESS OF 4 HOURS MAY NOT BE GRANTED ON ANOTHER DAY "WHEN NO WORK IS PERFORMED BY THE EMPLOYEE BUT WHEN HE HAS BEEN GRANTED ANNUAL LEAVE FOR THE REMAINDER OF THE DAY" (QUOTING FROM QUESTION 5 (E) (--- RELATED ONLY, AS STATED IN YOUR LETTER, TO COMPENSATORY TIME EARNINGS ACCUMULATED OVER A CONSIDERABLE PERIOD OF TIME. TO CARRY OVER SUCH COMPENSATORY TIME AND GRANT IT ON A DAY THE REMAINDER OF WHICH THE EMPLOYEE IS ABSENT ON ANNUAL LEAVE, WOULD CONSTITUTE, IN EFFECT, THE GRANTING OF ADDITIONAL LEAVE AND IS IN CONTRAVENTION OF THE PURPOSE OF THE STATUTE. WHEN THERE IS INVOLVED AN ACCUMULATION OF COMPENSATORY TIME, THE SAME REASONS NEGATIVE THE GRANTING THEREOF ON ANOTHER DAY THE REMAINDER OF WHICH AN EMPLOYEE IS ABSENT FROM DUTY ON LEAVE WITHOUT PAY.

HOWEVER, WHEN THERE IS NOT INVOLVED ANY ACCUMULATION OF COMPENSATORY TIME, BUT THERE IS INVOLVED, AS STATED IN YOUR LETTER,"OVERTIME FOR ONLY ONE SATURDAY," THIS OFFICE CONCURS IN THE VIEW STATED IN YOUR LETTER THAT AN EMPLOYEE SHOULD BE PERMITTED TO TAKE ANNUAL LEAVE (OR LEAVE WITHOUT PAY WHEN HE HAS NO ANNUAL LEAVE TO HIS CREDIT) FOR THE PORTION OF THE SUBSTITUTE DAY NOT COVERED BY COMPENSATORY TIME. SEE PARTICULARLY THE PROVISO TO THE STATUTE.

REFERRING TO THE CONCLUDING PARAGRAPH OF YOUR LETTER, THE ACCUMULATION OF COMPENSATORY TIME FOR OVERTIME WORK ON MORE THAN ONE SATURDAY AFTERNOON SHOULD NOT BE CARRIED OVER AND CREDITED TO EMPLOYEES FOR MORE THAN ONE SEASON. TO CARRY FORWARD SUCH CREDIT INDEFINITELY WOULD BE IN CONTRAVENTION OF THE PURPOSE AND INTENT OF THE STATUTE. SEE QUESTIONS AND ANSWERS 3 (A), (B), (C), (D) IN DECISION OF MAY 6, 1938, SUPRA. ..END :