B-127474, JUNE 25, 1956, 35 COMP. GEN. 710

B-127474, JUNE 25, 1956, 35 COMP. GEN. 710

LEAVES OF ABSENCE - HOLIDAYS - EMPLOYEES RECEIVING PREMIUM COMPENSATION EMPLOYEES WHO RECEIVE PREMIUM COMPENSATION UNDER SECTION 401 (1) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 BECAUSE THEIR DUTY, INCLUDING STANDBY DUTY, NECESSITATES HOLIDAY WORK ARE TO BE CHARGED LEAVE FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED AND WHICH FALL WITHIN THE EMPLOYEES' REGULARLY SCHEDULED TOUR OF DUTY; HOWEVER, EMPLOYEES WHO RECEIVE PREMIUM COMPENSATION UNDER SECTION 401 (2) OF THE ACT FOR IRREGULAR, UNSCHEDULED HOLIDAY WORK MAY BE ABSENT FROM DUTY ON HOLIDAYS WITHOUT A CHARGE TO LEAVE.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, JUNE 25, 1956:

YOUR LETTER OF MAY 18, 1956, IN ANSWER TO OUR LETTER OF APRIL 25, 1956, RESTATES THE COMMISSION'S POSITION THAT EMPLOYEES PAID PREMIUM COMPENSATION UNDER SECTION 401 (1) OF THE FEDERAL EMPLOYEES PAY ACT, AS AMENDED, 68 STAT. 1111, 5 U.S.C. 926, SHOULD BE CHARGED LEAVE FOR ABSENCES ON HOLIDAYS WHICH FALL WITHIN THEIR REGULARLY SCHEDULED TOUR OF DUTY PROVIDED THAT THEIR PREMIUM COMPENSATION IS BASED IN PART ON THE NECESSITY OF HOLIDAY WORK. YOU DO NOT INCLUDE IN THE ABOVE POSITION EMPLOYEES RECEIVING PREMIUM COMPENSATION UNDER SECTION 401 (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED.

THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 208 (A) OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1105, 5 U.S.C. 926, PROVIDES IN SECTION 401 (1) THAT PREMIUM COMPENSATION MAY BE AUTHORIZED TO EMPLOYEES HAVING LONGER THAN ORDINARY TOURS OF DUTY, A SUBSTANTIAL PART OF WHICH IS PERFORMED IN A STANDBY STATUS. ALL HOURS OF DUTY, INCLUDING THE TIME IN A STANDBY STATUS, ARE INCLUDED IN THEIR REGULARLY SCHEDULED HOURS OF DUTY. THE AMOUNT OF PREMIUM COMPENSATION TO BE PAID UNDER SECTION 401 (1) IS BASED ON CERTAIN DESIGNATED FACTORS INCLUDING "THE EXTENT TO WHICH THE DUTIES * * * ARE MADE MORE ONEROUS BY * * * HOLIDAY WORK.' CLEARLY, THE CONGRESS CONTEMPLATED THAT EMPLOYEES RECEIVING PREMIUM COMPENSATION BECAUSE OF CONSIDERATIONS INCLUDING THE NECESSITY FOR HOLIDAY WORK WOULD, IN FACT, BE REQUIRED TO WORK ON HOLIDAYS. TO HOLD THAT SUCH EMPLOYEES MAY BE EXCUSED FROM WORK WITHOUT CHARGE TO LEAVE ON A HOLIDAY FALLING WITHIN THEIR REGULARLY SCHEDULED TOURS OF DUTY WOULD DIRECTLY CONTRADICT THE BASIS FOR AUTHORIZING THE PREMIUM. IT FOLLOWS, THEREFORE, THAT SECTION 205 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 681, 5 U.S.C. 2064, WHICH PROVIDES THAT DAYS OF LEAVE SHALL BE EXCLUSIVE OF HOLIDAYS, WAS NOT INTENDED BY THE CONGRESS TO APPLY TO EMPLOYEES AUTHORIZED PREMIUM PAY UNDER SECTION 401 (1) IN PART BECAUSE OF HOLIDAY WORK REQUIRED BY THE DUTIES OF THEIR POSITIONS.

ACCORDINGLY, WE AGREE WITH YOUR VIEW THAT ADMINISTRATIVE REGULATIONS PRESCRIBED UNDER THE AUTHORITY GIVEN IN SECTION 30.801 OF THE ANNUAL AND SICK LEAVE REGULATIONS, L-1-30, OF THE FEDERAL PERSONNEL MANUAL, MAY PROPERLY REQUIRE THAT EMPLOYEES RECEIVING PREMIUM COMPENSATION UNDER SECTION 401 (1), IN PART BECAUSE THEIR POSITIONS REQUIRE HOLIDAY WORK, SHOULD BE CHARGED LEAVE FOR HOLIDAYS NOT WORKED WHEN SUCH HOLIDAYS FALL WITHIN THEIR REGULARLY SCHEDULED TOURS OF DUTY.

SECTION 401 (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AS AMENDED BY THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1111, AUTHORIZES PREMIUM COMPENSATION ON AN ANNUAL BASIS FOR EMPLOYEES WHOSE POSITIONS REQUIRE "SUBSTANTIAL AMOUNTS OF IRREGULAR, UNSCHEDULED, OVERTIME DUTY AND DUTY AT NIGHT AND ON HOLIDAYS WITH THE OFFICER OR EMPLOYEE GENERALLY BEING RESPONSIBLE FOR RECOGNIZING, WITHOUT SUPERVISION, CIRCUMSTANCES WHICH REQUIRE HIM TO REMAIN ON DUTY.' THE IMPLICATION OF THE QUOTED LANGUAGE IS THAT THE PREMIUM COMPENSATION IS BASED ON HOLIDAY WORK REQUIRED BY THE CIRCUMSTANCES, EXCLUDING HOLIDAYS WHERE THE CIRCUMSTANCES DO NOT SO REQUIRE. ALSO, THE EMPLOYEES ARE ENTITLED TO THE USUAL OVERTIME PAY FOR REGULARLY SCHEDULED OVERTIME WORK WHICH IS OFFICIALLY AUTHORIZED OR APPROVED. EMPLOYEES UNDER SECTION 401 (2), THEREFORE, MAY PROPERLY BE ABSENT FROM DUTY ON HOLIDAYS WITHOUT CHARGE TO LEAVE WHERE THE CIRCUMSTANCES DO NOT REQUIRE THAT THEY BE ON DUTY.

ACCORDINGLY, THE DISTINCTION IN THE TREATMENT OF ABSENCES ON HOLIDAYS OF PERSONNEL RECEIVING PREMIUM PAY UNDER SECTIONS 401 (1) AND 401 (2), RESPECTIVELY, APPEARS TO BE VALID.

IN YOUR LETTER OF MAY 18 YOU ALSO INQUIRE WHETHER THE CHARGE AGAINST LEAVE FOR ABSENCES ON HOLIDAYS WITHIN THE REGULARLY SCHEDULED TOUR OF DUTY OF EMPLOYEES RECEIVING PREMIUM COMPENSATION UNDER SECTION 401 (1) IS REQUIRED BY THE PROVISIONS OF THE STATUTE, OR WHETHER THE COMMISSION BY REGULATION MAY PROVIDE THAT LEAVE WOULD NOT BE CHARGED TO THOSE EMPLOYEES PERMITTED BY PROPER AUTHORITY TO BE ABSENT ON THE HOLIDAY. FROM THE DISCUSSION ABOVE, IT IS CLEAR THAT PART OF THE CONSIDERATION FOR AUTHORIZING PREMIUM COMPENSATION IN SECTION 401 (1) MAY BE THE REQUIRED PERFORMANCE OF DUTY DURING HOLIDAYS. ACCORDINGLY, A CHARGE AGAINST LEAVE FOR ABSENCE ON SUCH HOLIDAY IS REQUIRED BY THE PROVISIONS OF SECTION 401 (1) WHERE WORK ON SUCH HOLIDAY WAS CONSIDERED IN ARRIVING AT THE PREMIUM.