Skip to main content

B-159779, AUGUST 22, 1966, 46 COMP. GEN. 158

B-159779 Aug 22, 1966
Jump To:
Skip to Highlights

Highlights

THE SUNDAY PREMIUM PAY BENEFITS PROVIDED UNDER SECTION 405/F) OF PUBLIC LAW 89-504 (5 U.S.C. 673C) FOR EMPLOYEES WHOSE REGULAR WORK SCHEDULE INCLUDES AN 8-HOUR PERIOD OF SERVICE ANY PART OF WHICH IS WITHIN THE PERIOD COMMENCING AT MIDNIGHT SATURDAY AND ENDING AT MIDNIGHT SUNDAY. AS THERE IS NO REQUIREMENT FOR THE PERFORMANCE OF A MINIMUM PERIOD OF SUNDAY WORK AS A CONDITION OF ENTITLEMENT TO THE PREMIUM COMPENSATION. THE EMPLOYEES ARE ENTITLED UNDER THE ACT TO PAYMENT OF SUNDAY PREMIUM COMPENSATION LIMITED TO 8 HOURS OF WORK ACTUALLY PERFORMED DURING EACH REGULARLY SCHEDULED 8-HOUR PERIOD OF SERVICE. WAGE BOARD EMPLOYEES WHO WHEN THEY WORK A REGULARLY SCHEDULED 40 HOUR WEEK THAT INCLUDES SUNDAY ARE ENTITLED TO THE SUNDAY PREMIUM COMPENSATION AUTHORIZED BY SECTION 405/F) OF PUBLIC LAW 89-504 (5 U.S.C. 673C).

View Decision

B-159779, AUGUST 22, 1966, 46 COMP. GEN. 158

COMPENSATION - WAGE BOARD EMPLOYEES - PREMIUM PAY - SUNDAY WORK REGULARLY SCHEDULED. THE SUNDAY PREMIUM PAY BENEFITS PROVIDED UNDER SECTION 405/F) OF PUBLIC LAW 89-504 (5 U.S.C. 673C) FOR EMPLOYEES WHOSE REGULAR WORK SCHEDULE INCLUDES AN 8-HOUR PERIOD OF SERVICE ANY PART OF WHICH IS WITHIN THE PERIOD COMMENCING AT MIDNIGHT SATURDAY AND ENDING AT MIDNIGHT SUNDAY, PAYABLE AT THE RATE OF 25 PER CENTUM OF AN EMPLOYEE'S HOURLY RATE OF BASIC COMPENSATION FOR EACH HOUR OF WORK PERFORMED DURING THE 8-HOUR PERIOD OF SERVICE, APPLY TO WAGE-HOUR EMPLOYEES WHOSE REGULARLY SCHEDULED WORKWEEK INCLUDES AN 8-HOUR NONOVERTIME TOUR OF DUTY ON SUNDAY BETWEEN THE HOURS OF 7 A.M. AND 3 P.M. OR 3 P.M. AND 11 P.M. COMPENSATION - WAGE BOARD EMPLOYEES - PREMIUM PAY - TWO SUNDAYS IN WORKWEEK. WHERE WAGE BOARD EMPLOYEES WHOSE REGULARLY WEEKLY WORK SCHEDULE INCLUDES TWO SUNDAYS---AN 8-HOUR TOUR OF NONOVERTIME DUTY BEGINNING AT 11 P.M. OR 11:30 P.M. ON THE FIRST SUNDAY, THE LAST 8-HOUR TOUR OF NONOVERTIME DUTY IN THE WORKWEEK COMMENCING AT THE SAME HOURS ON THE NEXT SATURDAY--- SECTION 405/F) OF PUBLIC LAW 89-504 (5 U.S.C. 673C) APPLIES TO BOTH REGULARLY SCHEDULED 8-HOUR PERIODS OF WORK, ONE OCCURRING AT THE BEGINNING AND THE OTHER AT THE END OF AN EMPLOYEE'S REGULAR 40-HOUR WORKWEEK, AND AS THERE IS NO REQUIREMENT FOR THE PERFORMANCE OF A MINIMUM PERIOD OF SUNDAY WORK AS A CONDITION OF ENTITLEMENT TO THE PREMIUM COMPENSATION, THE EMPLOYEES ARE ENTITLED UNDER THE ACT TO PAYMENT OF SUNDAY PREMIUM COMPENSATION LIMITED TO 8 HOURS OF WORK ACTUALLY PERFORMED DURING EACH REGULARLY SCHEDULED 8-HOUR PERIOD OF SERVICE, ANY PART OF WHICH FALLS WITHIN THE PERIOD SATURDAY MIDNIGHT TO SUNDAY MIDNIGHT. COMPENSATION - WAGE BOARD EMPLOYEES - PREMIUM PAY - LEAVES OF ABSENCE. WAGE BOARD EMPLOYEES WHO WHEN THEY WORK A REGULARLY SCHEDULED 40 HOUR WEEK THAT INCLUDES SUNDAY ARE ENTITLED TO THE SUNDAY PREMIUM COMPENSATION AUTHORIZED BY SECTION 405/F) OF PUBLIC LAW 89-504 (5 U.S.C. 673C), MAY NOT BE PAID PREMIUM COMPENSATION FOR A PERIOD OF ABSENCE DURING THE REGULARLY SCHEDULED 8-HOUR SUNDAY WORK PERIOD. ALTHOUGH LEAVE WITH PAY IS SYNONYMOUS WITH DUTY FOR THE PURPOSES OF BASIC PAY, ADDITIONAL PAY IS ONLY AUTHORIZED FOR SERVICES ON A CERTAIN DAY AND ENTITLEMENT TO THE ADDITIONAL PAY DEPENDS UPON THE ACTUAL PERFORMANCE OF WORK ON THAT DAY, UNLESS OTHERWISE EXPRESSLY PROVIDED BY STATUTE.

TO THE PUBLIC PRINTER, UNITED STATES GOVERNMENT PRINTING OFFICE, AUGUST 22, 1966:

YOUR LETTER OF JULY 27, 1966, PRESENTS FOR OUR DECISION CERTAIN QUESTIONS CONCERNING SUNDAY PREMIUM PAY BENEFITS APPLICABLE TO WAGE BOARD EMPLOYEES UNDER THE PROVISO ADDED TO SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1935, AS AMENDED, 5 U.S.C. 673C, BY SECTION 405/F) OF PUBLIC LAW 89-504, APPROVED JULY 18, 1966, 80 STAT. 298.

THE SAID PROVISO READS AS FOLLOWS:

PROVIDED FURTHER, THAT EMPLOYEES SUBJECT TO THIS SECTION WHOSE REGULAR WORK SCHEDULE INCLUDES AN EIGHT-HOUR PERIOD OF SERVICE ANY PART OF WHICH IS WITHIN THE PERIOD COMMENCING AT MIDNIGHT SATURDAY AND ENDING AT MIDNIGHT SUNDAY SHALL BE PAID EXTRA COMPENSATION AT THE RATE OF 25 PER CENTUM OF HIS HOURLY RATE OF BASIC COMPENSATION FOR EACH HOUR OF WORK PERFORMED DURING THAT EIGHT-HOUR PERIOD OF SERVICE.

YOUR LETTER IS, IN PART, AS FOLLOWS:

SUNDAY IS THE FIRST DAY OF THE 5-DAY REGULARLY SCHEDULED WORK WEEK OF EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WHO WORK BETWEEN THE HOURS OF 7:00 A.M. AND 3:00 P.M. AND 3:00 P.M. AND 11:00 P.M. UNDER THE ACT, WE UNDERSTAND THAT THESE EMPLOYEES WILL BE ENTITLED TO PREMIUM PAY FOR ONE DAY. HOWEVER, WE HAVE A GROUP OF GUARDS WHOSE REGULARLY SCHEDULED 5-DAY WORK WEEK BEGINS AT 11:00 P.M. SUNDAY AND ENDS AT 7:00 A.M. OF THE FOLLOWING SUNDAY AND A FORCE OF MAINTENANCE EMPLOYEES WHOSE REGULARLY SCHEDULED 5-DAY WORK WEEK BEGINS AT 11:30 P.M. SUNDAY AND ENDS AT 8:00 A.M. THE FOLLOWING SUNDAY. THUS WORK IS PERFORMED BY THESE GROUPS BETWEEN MIDNIGHT SATURDAY AND MIDNIGHT SUNDAY ON BOTH THE FIRST AND LAST DAYS OF THE REGULARLY SCHEDULED 5-DAY WORK WEEK.

WHILE SECTION 405/F) IS APPLICABLE TO EMPLOYEES WHOSE REGULAR WORK WEEK INCLUDES "AN" 8-HOUR PERIOD OF SERVICE AND PROVIDES EXTRA COMPENSATION FOR EACH HOUR OF WORK PERFORMED DURING "THAT" 8-HOUR PERIOD, IT IS NOT CLEAR THAT THE AMOUNT OF EXTRA COMPENSATION PAYABLE IS LIMITED TO 8 HOURS. NEITHER IS IT CLEAR THAT A MINIMUM OF 1 HOUR MUST BE WORKED BEFORE THE PROVISION BECOMES APPLICABLE. CONSEQUENTLY, IT APPEARS THAT EMPLOYEES ON BOTH THE 11:00 P.M. TO 7:00 A.M. AND 1:30 P.M. TO 8:00 A.M. SHIFTS MAY BE ENTITLED TO PREMIUM PAY FOR THE FIRST AND LAST DAYS OF THEIR WORK WEEK. IS THIS INTERPRETATION CORRECT, AND IF NOT, WHAT IS THE PROPER BASIS FOR COMPUTING THE AMOUNTS PAYABLE?

IN ADMINISTERING OTHER PREMIUM PAY PROVISIONS, WE HAVE APPLIED YOUR DECISIONS TO REQUIRE THAT EMPLOYEES MUST ACTUALLY PERFORM WORK IN ORDER TO BE ENTITLED. WILL THE NEW ACT REQUIRE MODIFICATION OF THESE RULINGS SO AS TO ALLOW PREMIUM PAY TO EMPLOYEES WHO ARE ABSENT ON LEAVE WITH PAY BETWEEN MIDNIGHT SATURDAY AND MIDNIGHT SUNDAY? FOR EXAMPLE, IF AN EMPLOYEE WORKS 1 HOUR IN THE COVERED PERIOD AND THEN IS GRANTED LEAVE FOR THE REMAINING 7 HOURS, IS PREMIUM PAY ALLOWABLE FOR THE ENTIRE 8 HOURS?

S. REPT. NO. 1187, 89TH CONG; 2D SESS. 4 ON H.R. 14122 WHICH BECAME PUBLIC LAW 89-504 CONTAINS THE FOLLOWING PERTINENT STATEMENT IN EXPLANATION OF THE PROVISIONS OF SECTION 405.

SECTION 405 APPLIES TO CLASSIFIED AND WAGE BOARD EMPLOYEES A SIGNIFICANT LIBERALIZATION GRANTED POSTAL EMPLOYEES IN 1965. THIS SECTION REQUIRES A PREMIUM OF 25 PERCENT OF BASE PAY FOR ANY EMPLOYEE WHOSE REGULARLY SCHEDULED 5-DAY WORKWEEK INCLUDES SUNDAY. THE PREMIUM WILL BE PAID FOR THE ENTIRE 8-HOUR PERIOD OF SERVICE REGARDLESS OF THE NUMBERS OF HOURS WHICH ACTUALLY OCCUR ON SUNDAY. THIS IS IDENTICAL TO THE PROVISIONS FOR REGULAR POSTAL EMPLOYEES ENACTED LAST YEAR.

THE HEARINGS BEFORE THE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, U.S.S; 89TH CONG; 2D SESS; ON H.R. 14122, HELD ON APRIL 20, 21, 22, 25, 26 AND 27, 1966, BEGINNING ON PAGE 4, SPEAKS IN PERTINENT PART AS FOLLOWS CONCERNING THE NEW SUNDAY PAY PROVISIONS:

THE HOUSE BILL, H.R. 14122, ADDS NEW * * * SUNDAY PAY BENEFITS FOR MOST FEDERAL EMPLOYEES. EQUITY ALLOWS NO ALTERNATIVE BUT TO CONCUR IN THE PROPOSALS TO EXTEND TO ADDITIONAL GROUPS * * * PREMIUM PAY AT 25 PERCENT OF BASE RATES FOR NONOVERTIME WORK ON SUNDAY.

* * * CONGRESS LAST YEAR PRESCRIBED PREMIUM PAY FOR NONOVERTIME SUNDAY WORK OF POSTAL MPLOYEES; IT IS EQUITABLE TO EXTEND THE SAME POLICY TO OTHER SALARIED EMPLOYEES AND TO THOSE PAID UNDER WAGE-BOARD SCHEDULES.

THE CLEAR WORDING OF THE QUOTED PROVISO AS WELL AS THE QUOTED EXPLANATION FROM THE SENATE REPORT REQUIRES THE CONCLUSION THAT THOSE WAGE BOARD EMPLOYEES WHOSE REGULARLY SCHEDULED WORKWEEK INCLUDES SUNDAY AND WHO WORK THEIR REGULAR 8-HOUR TOUR ON THAT DAY---NONOVERTIME -- BETWEEN THE HOURS OF 7 A.M. AND 3 P.M. OR 3 P.M. AND 11 P.M. WOULD BE ENTITUED UNDER THE PROVISIONS OF SUCH PROVISO TO THE 8 HOURS OF SUNDAY PREMIUM PAY AUTHORIZED THEREIN.

THE NEXT QUESTIONS CONCERN THOSE EMPLOYEES WHOSE REGULARLY SCHEDULED WORKWEEKS COMMENCE WITH AN 8-HOUR TOUR OF DUTY---NONOVERTIME--- BEGINNING AT 11 P.M. AND 11:30 P.M; RESPECTIVELY, ON THE FIRST SUNDAY OF THEIR WORKWEEKS AND WHOSE LAST 8-HOUR TOUR OF DUTY---NONOVERTIME--- IN THEIR WORKWEEK COMMENCES AT THE SAME HOURS (11 P.M. OR 11:30 P.M; RESPECTIVELY) ON THE NEXT SUCCEEDING SATURDAY---7 AND 7 1/2 HOURS, RESPECTIVELY, OF EACH SUCH LAST TOUR FALLING ON THE SUNDAY ENDING THEIR WORKWEEKS. FOR PURPOSES OF THE QUESTIONS CONTAINED IN THE SECOND PARAGRAPH QUOTED ABOVE FROM YOUR LETTER, WE ASSUME THAT EACH OF THE ABOVE 8-HOUR TOURS REPRESENT 8 HOURS OF ACTUAL WORK. LEAVES OF ABSENCE WILL BE DISPOSED OF IN THE ANSWER TO YOUR LAST QUESTION. YOU SAY THAT IT IS NOT CLEAR THAT THE AMOUNT OF EXTRA COMPENSATION PAYABLE UNDER SECTION 405/F) IS LIMITED TO 8 HOURS OR THAT A MINIMUM OF 1 HOUR MUST BE WORKED BEFORE THAT SECTION BECOMES APPLICABLE.

WE FIND NOTHING IN THE LANGUAGE OF THE QUOTED PROVISO OR IN ITS LEGISLATIVE HISTORY SPECIFICALLY DEALING WITH THE ENTITLEMENT OF AN EMPLOYEE TO PREMIUM PAY FOR TWO SUNDAYS WHEN A PART OF EACH SUNDAY IS INCLUDED IN A SINGLE REGULAR WEEKLY WORK SCHEDULE. HOWEVER, THE PROVISO DOES SPECIFICALLY PROVIDE THAT WHEN ANY PART OF AN EMPLOYEE'S REGULAR 8- HOUR DAILY TOUR OF DUTY FALLS ON A SUNDAY, HE IS ENTITLED TO SUNDAY PREMIUM PAY FOR EACH HOUR OF WORK PERFORMED DURING SUCH 8-HOUR PERIOD. MOREOVER, S. REPT. NO. 1187, QUOTED ABOVE, CLEARLY EXPLAINS THAT "THE PREMIUM WILL BE PAID FOR THE ENTIRE 8-HOUR PERIOD OF SERVICE REGARDLESS OF THE NUMBERS OF HOURS WHICH ACTUALLY OCCUR ON SUNDAY;,

IN VIEW THEREOF WE ARE OF THE OPINION THAT THE MOST REASONABLE CONSTRUCTION OF THE QUOTED PROVISO IS THAT IS APPLIES TO BOTH REGULARLY SCHEDULED 8-HOUR PERIODS OF WORK, ONE OCCURRING AT THE BEGINNING AND THE OTHER AT THE END OF THE EMPLOYEE'S REGULAR 40-HOUR WEEK.

INDEPENDENTLY OF THE QUOTED PROVISO 5 U.S.C. 673C PROVIDES THAT ANY WORK IN EXCESS OF 8 HOURS PER DAY IS OVERTIME WORK. THE EFFECT OF THE QUOTED PROVISO IS TO AUTHORIZE SUNDAY PREMIUM PAY FOR WORK PERFORMED DURING THE REGULAR 8-HOUR PERIOD OF SERVICE. THEREFORE, WE FURTHER CONCLUDE THAT THE SUNDAY PREMIUM COMPENSATION PROVIDED BY THE QUOTED PROVISO IS LIMITED TO 8 HOURS OF WORK ACTUALLY PERFORMED DURING EACH REGULARLY SCHEDULED 8-HOUR PERIOD OF SERVICE ANY PART OF WHICH FALLS WITHIN THE PERIOD SATURDAY MIDNIGHT TO SUNDAY MIDNIGHT. THERE IS NO REQUIREMENT IN THE QUOTED PROVISO FOR PERFORMANCE OF A MINIMUM PERIOD OF SUNDAY WORK AS A CONDITION OF ENTITLEMENT TO THE PREMIUM PAY BENEFITS PROVIDED FOR THEREIN.

WITH RESPECT TO YOUR LAST QUESTION CONCERNING EMPLOYEES WHO ARE ABSENT ON LEAVE, YOUR ATTENTION IN INVITED TO OUR DECISION OF NOVEMBER 17, 1965, 45 COMP. GEN. 257, COVERING QUESTION AND ANSWER NO. 11 WHICH READS:

EMPLOYEE K IS A REGULAR ANNUAL RATE DISTRIBUTION CLERK IN PFS-4. HIS REGULAR WORK SCHEDULE INCLUDES AN EIGHT HOUR PERIOD OF SERVICE ON SUNDAY, FROM 8:00 A.M. TO 4:30 P.M. AT 1:30 P.M. HE TAKES ANNUAL LEAVE. EMPLOYEE K ENTITLED TO BE PAID THE EXTRA 25 PERCENT OF HIS HOURLY RATE OF BASIC COMPENSATION FOR THE HOURS BETWEEN 1:30 P.M. AND 4:30 P.M.? IF YOUR ANSWER IS IN THE AFFIRMATIVE, WOULD YOUR ANSWER BE THE SAME IF HE WERE ABSENT ON AUTHORIZED LEAVE WITHOUT PAY?

THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE. WHILE GENERALLY LEAVE WITH PAY IS SYNONYMOUS WITH DUTY INSOFAR AS ENTITLEMENT TO BASIC PAY IS CONCERNED, WHERE, AS HERE, ADDITIONAL PAY IS AUTHORIZED FOR SERVICES RENDERED ON A CERTAIN DAY, ENTITLEMENT TO SUCH ADDITIONAL PAY WOULD BE DEPENDENT UPON THE ACTUAL PERFORMANCE OF WORK ON SUCH DAY, UNLESS OTHERWISE EXPRESSLY PROVIDED BY STATUTE.

THE FOREGOING CONCERNS THE PROVISIONS OF 39 U.S.C. 3573/E), THE EFFECT OF WHICH IS IDENTICAL WITH THE QUOTED PROVISO. IN LINE WITH THAT DECISION THE PREMIUM PAY AUTHORIZED BY THE QUOTED PROVISO IS NOT PAYABLE DURING PERIODS OF LEAVES OF ABSENCE.

GAO Contacts

Office of Public Affairs