A-90894, MAY 6, 1938, 17 COMP. GEN. 920

A-90894, MAY 6, 1938, 17 COMP. GEN. 920

COMPENSATORY TIME FOR OVERTIME ON SATURDAYS - LEAVE OF ABSENCE WITH PAY VERSUS SHORTENING OF WORK WEEK - DELAY IN GRANTING OF COMPENSATORY TIME WHILE EMPLOYEES IN THE FIELD SERVICE NOT EXPRESSLY EXCEPTED FROM THE BENEFITS OF THE SATURDAY HALF-HOLIDAY LAW, 46 STAT. 1482, MAY NOT BE REQUIRED TO WORK 7 OR 8 HOURS A DAY ON SATURDAY--- THE REGULAR WORKING HOURS OF OTHER DAYS--- WITHOUT THE GRANTING OF COMPENSATORY TIME, THE PURPOSE OF THE SAID LAW IS TO SHORTEN THE HOURS OF THE WORK WEEK AND NOT THE GRANTING OF ADDITIONAL LEAVE OF ABSENCE WITH PAY, AND WHERE AN ADMINISTRATIVE OFFICE FAILS OR REFUSES TO PROPERLY ADMINISTER THE LAW, AND HAS ERRED AS TO ITS REQUIREMENTS, THERE IS NO AUTHORITY TO MAKE IT UP TO EMPLOYEES BY PAYMENT OF ADDITIONAL COMPENSATION OR GRANTING DURING A LATER PERIOD ADDITIONAL LEAVE OF ABSENCE WITH PAY, WHETHER IT BE AT THE RATE OF A DAY AT A TIME, 3 OR 4 HOURS ON CONSECUTIVE DAYS OR ON 1 DAY EACH WEEK, OR ON A DAY WHEN NO WORK IS PERFORMED BY THEM AND THEY HAVE BEEN GRANTED ANNUAL LEAVE FOR THE REMAINDER OF THE DAY. THE GRANTING OF COMPENSATORY TIME OFF FOR WORK ON SATURDAY IN EXCESS OF 4 HOURS MAY BE DEFERRED, WHERE THE EXIGENCIES OF THE SERVICE SO REQUIRE, FROM ONE SEASON OF THE YEAR TO ANOTHER, AND SUCH TIME MAY BE GRANTED AT THE RATE OF 4 HOURS A DAY FOR AN 8-HOUR-DAY EMPLOYEE OR 3 HOURS A DAY FOR A 7-HOUR-DAY EMPLOYEE ON CONSECUTIVE DAYS OR ON 1 DAY EACH WEEK, BUT NOT IN ONE PERIOD EQUIVALENT TO THE ENTIRE AMOUNT OF OVERTIME WORKED OR AT THE RATE OF AN ENTIRE DAY AT A TIME OR ON A DAY WHEN NO WORK IS PERFORMED BY THE EMPLOYEE AND HE HAS BEEN GRANTED ANNUAL LEAVE FOR THE REMAINDER OF THE DAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE GOVERNOR, FARM CREDIT ADMINISTRATION, MAY 6, 1938:

YOUR LETTER OF APRIL 19, 1938, IS AS FOLLOWS:

WE ARE SUBMITTING TO YOU FOR CONSIDERATION THE MATTER OF THE RIGHT TO COMPENSATORY TIME FOR OVERTIME, WHICH WAS PRESENTED ON NOVEMBER 29, 1937, TO THE FARM CREDIT ADMINISTRATION BY AN EMPLOYEE OF THE EMERGENCY CROP AND FEED LOAN OFFICE AT MEMPHIS, TENNESSEE, NAMELY, MR. LUTHER L. HERRING, WHO HAS SINCE DIED, THE DATE OF HIS DEATH BEING JANUARY 11, 1938.

MR. HERRING ENTERED ON DUTY IN THE POSITION OF WATCHMAN IN THE EMERGENCY CROP AND FEED LOAN OFFICE AT MEMPHIS, TENNESSEE, ON MARCH 16, 1934. FROM MARCH 16, 1934, UNTIL AUGUST 1, 1934, HIS EMPLOYMENT WAS ON A "WHEN ACTUALLY EMPLOYED" BASIS AT THE RATE OF $4.00 PER DIEM. THEREAFTER HIS EMPLOYMENT WAS ON AN INDEFINITE BASIS AT THE RATE OF $1,080 PER ANNUM, EO- 2. MR. HERRING'S LAST WORKING DAY WAS NOVEMBER 1, 1937, HE HAVING BEEN VERBALLY NOTIFIED PREVIOUSLY THAT HIS APPOINTMENT WOULD BE TERMINATED, BECAUSE OF REDUCTION IN FORCE, AT THE END OF THE ANNUAL LEAVE PERIOD TO WHICH HE WAS ENTITLED, OR ABOUT DECEMBER 25, 1937. IN VIEW OF THE LEAVE QUESTION RAISED BY MR. HERRING, THE TERMINATION OF HIS APPOINTMENT WAS NOT EFFECTED BUT HE WAS CARRIED IN A STATUS UNDETERMINED FROM DECEMBER 25, 1937, TO THE DAY OF HIS DEATH ON JANUARY 11, 1938.

THERE ARE ENCLOSED (A) A COPY OF MR. HERRING'S LETTER OF NOVEMBER 29, 1937, TO THE FARM CREDIT ADMINISTRATION IN WHICH HE MADE CLAIM FOR COMPENSATORY TIME FOR OVERTIME AND (B) A LETTER DATED DECEMBER 10, 1937, FROM THE REGIONAL MANAGER OF THE EMERGENCY CROP AND FEED LOAN OFFICE AT MEMPHIS, TENNESSEE, ANSWERING AN INQUIRY FROM THE WASHINGTON PERSONNEL OFFICE WITH REGARD TO MR. HERRING'S HOURS OF WORK.

PLEASE ANSWER THE FOLLOWING QUESTIONS, NOT ONLY THAT WE MAY DETERMINE MR. HERRING'S RIGHT TO HAVE HIS ANNUAL LEAVE EXTENDED BY THE ADDITION OF COMPENSATORY TIME FOR SATURDAY OVERTIME, BUT ALSO THAT WE MAY BE INFORMED AS TO THE METHOD OF DEALING WITH SIMILAR SITUATIONS WHERE OTHER EMPLOYEES OF OUR FIELD OFFICE HAVE, WITHOUT OUR KNOWLEDGE, BEEN REQUIRED TO WORK THE YEAR ROUND FOR SEVEN OR EIGHT HOURS ON SATURDAYS WITHOUT HAVING BEEN GIVEN COMPENSATORY TIME OFF FOR THE SATURDAY OVERTIME:

(1) IN VIEW OF THE DECISION OF THE ACTING COMPTROLLER GENERAL IN 17 C. G. 192, THAT "OTHER THAN THE 8-HOUR LAW, AS AMENDED BY THE ACT OF MARCH 3, 1913, 37 STAT. 726, PROHIBITING THE EMPLOYMENT OF MECHANICS, LABORERS, AND THOSE IN SIMILAR OCCUPATIONS FOR MORE THAN EIGHT HOURS ON ANY ONE CALENDAR DAY, EXCEPT IN CASE OF EXTRAORDINARY EMERGENCY, THERE IS NO STATUTE FIXING EITHER A MINIMUM OR MAXIMUM NUMBER OF HOURS WORK REQUIRED OF FIELD EMPLOYEES PER DAY OR PER WEEK," MAY CERTAIN EMPLOYEES IN THE FIELD SERVICE REGULARLY BE REQUIRED TO WORK SEVEN OR EIGHT HOURS A DAY ON SATURDAYS WITHOUT THE GRANTING OF COMPENSATORY TIME FOR OVERTIME?

IF QUESTION (1) IS ANSWERED IN THE NEGATIVE, AN ANSWER TO THE FOLLOWING QUESTION IS REQUESTED:

(2) IF THERE WAS INADVERTENTLY OVERLOOKED BY ADMINISTRATIVE OFFICIALS, NOT ONLY IN THE CASE OF MR. HERRING BUT ALSO IN THE CASE OF AT LEAST ONE OTHER WATCHMAN IN THE MEMPHIS EMERGENCY CROP AND FEED LOAN OFFICE, WHO IS STILL EMPLOYED BUT WHOSE HOURS OF DUTY HAVE NOW BEEN CHANGED SO AS NOT TO REQUIRE SATURDAY OVERTIME WITHOUT COMPENSATORY TIME OFF, THE PROVISION OF LAW (46 STAT. 1482, MARCH 3, 1931) WHICH DIRECTS:

"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.'

AND IF THROUGH ADMINISTRATIVE ERROR EMPLOYEES WERE REQUIRED TO WORK REGULARLY FROM SEVEN TO EIGHT HOURS A DAY ON SATURDAYS OVER A PERIOD OF MORE THAN TWO YEARS AND COMPENSATORY TIME OFF WAS NOT GRANTED FOR THE EXCESS TIME OVER FOUR HOURS, MAY THE EMPLOYEES NOW BE GRANTED, IN ONE PERIOD, TIME OFF EQUIVALENT TO THE ENTIRE AMOUNT OF SATURDAY OVERTIME WORKED?

(3) IF QUESTION (2) IS ANSWERED IN THE NEGATIVE, THEN, IN THE CASE OF AN EMPLOYEE STILL IN SERVICE BUT WHOSE HOURS OF WORK NO LONGER REQUIRE SATURDAY OVERTIME, MAY THE SATURDAY OVERTIME WHICH WAS PREVIOUSLY REQUIRED REGULARLY, WEEK AFTER WEEK, OVER A PERIOD OF MORE THAN TWO YEARS, WITHOUT ANY GRANTING OF COMPENSATORY TIME OFF, NOW BE COMPENSATED FOR BY EQUIVALENT TIME OFF:

(A) AT THE RATE OF ONE WHOLE DAY AT THE TIME?

(B) ON CONSECUTIVE DAYS, AT THE RATE OF FOUR HOURS EACH DAY TO AN EIGHT- HOUR DAY EMPLOYEE, OR AT THE RATE OF THREE HOURS EACH DAY TO A SEVEN-HOUR DAY EMPLOYEE?

(C) IN THE AMOUNT OF FOUR HOURS ON NOT TO EXCEED ONE DAY EACH WEEK TO AN EIGHT-HOUR DAY EMPLOYEE, OR IN THE AMOUNT OF THREE HOURS ON NOT TO EXCEED ONE DAY EACH WEEK TO A SEVEN-HOUR DAY EMPLOYEE?

(D) ON A DAY WHEN NO WORK IS PERFORMED BY THE EMPLOYEE BUT WHEN HE HAS BEEN GRANTED ANNUAL LEAVE FOR THE REMAINDER OF THE DAY?

THERE ARE OTHER PHASES OF THIS QUESTION OF COMPENSATORY TIME OFF FOR SATURDAY OVERTIME WHICH WE SHOULD LIKE TO PRESENT FOR YOUR CONSIDERATION.

FOR THE PURPOSE OF ADMINISTERING THE ACT APPROVED JANUARY 29, 1937, AND JOINT RESOLUTION OF FEBRUARY 4, 1938 (PUBLIC RESOLUTION NO. 78, 75TH CONGRESS), TO PROVIDE LOANS TO FARMERS FOR CROP PRODUCTION, HARVESTING, AND FEED FOR LIVESTOCK DURING THE YEAR 1938, AND FOR OTHER PURPOSES, AND PREVIOUS ACTS PASSED FOR SIMILAR PURPOSES, THE FARM CREDIT ADMINISTRATION HAS ESTABLISHED REGIONAL EMERGENCY CROP AND FEED LOAN OFFICES IN ELEVEN KEY CITIES IN DIFFERENT PARTS OF THE COUNTRY, EACH OF WHICH SERVES AS HEADQUARTERS FOR A SPECIFIC GEOGRAPHICAL AREA.

DURING THE SPRING LOAN SEASON, THE OFFICES HANDLE THEIR PEAK VOLUME OF WORK AND FOR A PERIOD OF FROM SIX WEEKS TO TWO MONTHS THE ENTIRE PERSONNEL IS WORKING AGAINST TIME IN AN EFFORT TO PASS ON THE APPLICATIONS RECEIVED AND TO MAKE THE LOAN FUNDS AVAILABLE TO THE FARMER BORROWERS IN SUFFICIENT TIME FOR THEIR USE IN CONNECTION WITH THE PLANTING OF CROPS. THE VOLUME OF WORK IS ALSO ABNORMALLY HEAVY IN THE FALL WHEN THE CROPS ARE HARVESTED AND PAYMENTS ON LOANS ARE BEING COLLECTED. AT THESE TWO PERIODS MUCH SATURDAY OVERTIME IS REQUIRED OF THE CLERICAL FORCE, AND THE EXIGENCIES OF THE SITUATION DO NOT PERMIT THAT COMPENSATORY TIME OFF BE GRANTED ON A DAY DURING THE WEEK IMMEDIATELY FOLLOWING THE SATURDAY ON WHICH MORE THAN FOUR HOURS' WORK IS REQUIRED.

WITH THESE CIRCUMSTANCES IN MIND YOUR ANSWERS TO THE FOLLOWING QUESTIONS ARE REQUESTED:

(4) MAY THE GRANTING OF COMPENSATORY TIME FOR SATURDAY OVERTIME BE DEFERRED UNTIL AFTER THE SPRING LOAN AND FALL COLLECTION SEASONS, RESPECTIVELY, WITH THE RESULT THAT SATURDAY OVERTIME WORKED DURING MARCH AND APRIL OR SEPTEMBER AND OCTOBER, FOR EXAMPLE, MAY BE COMPENSATED FOR BY EQUIVALENT TIME OFF DURING JUNE AND JULY OR DECEMBER AND JANUARY?

(5) MAY SUCH OVERTIME BE GRANTED---

(A) IN ONE PERIOD EQUIVALENT TO THE ENTIRE AMOUNT OF OVERTIME WORKED?

(B) AT THE RATE OF ONE WHOLE DAY AT THE TIME?

(C) ON CONSECUTIVE DAYS, AT THE RATE OF FOUR HOURS EACH DAY TO AN EIGHT- HOUR DAY EMPLOYEE, OR AT THE RATE OF THREE HOURS EACH DAY TO A SEVEN-HOUR DAY EMPLOYEE?

(D) IN THE AMOUNT OF FOUR HOURS ON NOT TO EXCEED ONE DAY EACH WEEK TO AN EIGHT-HOUR DAY EMPLOYEE, OR IN THE AMOUNT OF THREE HOURS ON NOT TO EXCEED ONE DAY IN EACH WEEK TO A SEVEN-HOUR DAY EMPLOYEE?

(E) ON A DAY WHEN NO WORK IS PERFORMED BY THE EMPLOYEE BUT WHEN HE HAS BEEN GRANTED ANNUAL LEAVE FOR THE REMAINDER OF THE DAY?

IN LETTER DATED DECEMBER 13, 1937, AFTER CONSIDERING 10 COMP. GEN. 399 AND 10 ID. 474, MR. LUTHER L. HERRING, THE EMPLOYEE TO WHOM YOU REFER, WAS ADVISED BY THIS OFFICE AS FOLLOWS:

IN OTHER WORDS, THE DECISIONS OF THIS OFFICE ARE TO THE EFFECT THAT ALL EMPLOYEES OF THE GOVERNMENT NOT EXPRESSLY EXCEPTED IN THE STATUTE ITSELF, REGARDLESS OF THE FACT THAT THEIR OCCUPATION REQUIRES THEM TO BE AVAILABLE FOR DUTY AT ALL TIMES, ARE ENTITLED TO THE BENEFIT OF A SHORT WORKDAY ON SATURDAY, OR ON ANOTHER WORKDAY OF THE WEEK IF REQUIRED TO WORK IN EXCESS OF FOUR HOURS ON SATURDAY.

HOWEVER, THE PURPOSE OF THE STATUTE WAS THE SHORTENING OF THE WORKDAY ON SATURDAY, OR ON SOME OTHER DAY OF THE WEEK FOR EMPLOYEES WHO ARE REQUIRED TO WORK MORE THAN FOUR HOURS ON SATURDAY, THAT IS, THE STATUTE REGULATES WORKING HOURS ONLY, AND DOES NOT AUTHORIZE PAYMENT OF ADDITIONAL OR OVERTIME COMPENSATION OR THE GRANTING OF LEAVE OF ABSENCE WITH PAY.

ADMINISTRATION OF THE LAW IS ENTIRELY A RESPONSIBILITY OF THE OFFICE IN WHICH THE SERVICES ARE PERFORMED AND THE FAILURE OR REFUSAL OF AN ADMINISTRATIVE OFFICE TO SHORTEN THE WORKDAY ON SATURDAY, OR ON SOME OTHER WORKDAY OF THE WEEK FOR EMPLOYEES WHO ARE REQUIRED TO WORK MORE THAN FOUR HOURS ON SATURDAY, MAY NOT FORM THE BASIS OF A CLAIM FOR ADDITIONAL OR OVERTIME COMPENSATION OR FOR LEAVE OF ABSENCE WITH PAY NOT OTHERWISE AUTHORIZED BY LAW.

IN DECISION OF APRIL 30, 1931, 10 COMP. GEN. 497, 498, IT WAS HELD AS FOLLOWS:

THE METHOD SUGGESTED FOR GRANTING COMPENSATORY TIME OF EXTENDING THE PERIOD OF EMPLOYMENT OF FIRE GUARDS BY THE AMOUNT OF THE EXTRA TIME WORK IS REQUIRED ON SATURDAY IN EXCESS OF FOUR HOURS WOULD BE UNAUTHORIZED. DECISION OF MARCH 7, 1931, A-35655, 10 COMP. GEN. 400, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

"WHERE THE COMBINED OVERTIME WORK REQUIRED TO BE PERFORMED ON MORE THAN ONE SATURDAY IN EXCESS OF FOUR HOURS, IS LESS THAN A REGULAR WORK DAY, THE ACT OF MARCH 3, 1931, 46 STAT. 1482, WOULD NOT PRECLUDE GRANTING ALL OF SUCH COMPENSATORY TIME BY THE SHORTENING OF SOME ONE REGULAR WORK DAY, BUT ORDINARILY THAT SHOULD NOT BE DONE, THE LAW CONTEMPLATING A SHORTENING OF ONE OTHER WORK DAY FOR EACH SATURDAY FOR WHICH AN EMPLOYEE MAY BE REQUIRED TO WORK MORE THAN FOUR HOURS, AND IN SO FAR AS THE EXIGENCIES OF THE SERVICE WILL PERMIT, SUCH COMPENSATORY SHORTENING SHOULD BE ON A DAY DURING THE WEEK IMMEDIATELY FOLLOWING THE SATURDAY ON WHICH MORE THAN FOUR HOURS' WORK WAS REQUIRED.'

IN OTHER WORDS, COMPENSATORY TIME MAY BE GRANTED ONLY BY THE SHORTENING OF ANOTHER WORKDAY. THEREFORE, COMPENSATORY TIME FOR TWO OR MORE SATURDAYS ON WHICH EXTRA WORK IS REQUIRED, AGGREGATING IN TIME ONE FULL DAY OF EIGHT HOURS, MAY NOT BE GRANTED ON ONE DAY BY EXCUSING THE EMPLOYEES FOR THE ENTIRE DAY.

SEE, ALSO, DECISION OF OCTOBER 26, 1931, 11 COMP. GEN. 159, IN WHICH IT WAS HELD (QUOTING FROM THE SYLLABUS):

COMPENSATORY TIME FOR WORK REQUIRED ON MORE THAN ONE SATURDAY IN EXCESS OF FOUR HOURS IN UNITS OF TIME OF ONE ENTIRE DAY OR MORE CEASES TO BE A HALF OR PART HOLIDAY GRANTED BY THE ACT OF MARCH 3, 1931, 46 STAT. 1482, BUT BECOMES AN ENTIRE HOLIDAY OR ADDITIONAL LEAVE OF ABSENCE NOT AUTHORIZED UNDER THE LAW. THE STATUTE MAY PROPERLY BE APPLIED ONLY BY GRANTING COMPENSATORY TIME OFF FROM DUTY IN UNITS OF LESS THAN ONE REGULAR WORKING DAY.

THE PROPOSITIONS STATED IN YOUR QUESTIONS APPEAR TO INVOLVE THE GRANTING OF ADDITIONAL LEAVE OF ABSENCE WITH PAY IN LIEU OF WORK REQUIRED ON SATURDAY IN EXCESS OF 4 HOURS. THE ONLY PURPOSE OF THE SATURDAY HALF- HOLIDAY LAW IS TO SHORTEN THE HOURS OF THE WORKWEEK. THE STATUTE IS DIRECTED TO THE ADMINISTRATIVE OFFICES AND IS MANDATORY. ITS PROVISIONS ARE FOR APPLICATION CURRENTLY AND ADMINISTRATIVE ACTION SHOULD BE ADJUSTED ACCORDINGLY. HOWEVER, IF AN ADMINISTRATIVE OFFICE FAILS OR REFUSES TO PROPERLY ADMINISTER THE LAW, CLEARLY THERE IS NO AUTHORITY TO MAKE IT UP TO EMPLOYEES DURING A LATER PERIOD BY GRANTING ADDITIONAL LEAVE OF ABSENCE WITH PAY EITHER IN SHORT OR LONG PERIODS.

ACCORDINGLY, ALL OF THE QUESTIONS PRESENTED WITH THE EXCEPTION OF 5 (C) AND (D) ARE ANSWERED IN THE NEGATIVE, IT BEING ASSUMED THAT QUESTION 5 RELATES TO THE PROPOSITION STATED IN QUESTION 4. QUESTIONS 5 (C) AND (D) ARE ANSWERED IN THE AFFIRMATIVE.