B-139294, MAY 29, 1959, 38 COMP. GEN. 809

B-139294, MAY 29, 1959, 38 COMP. GEN. 809

CIVILIAN PERSONNEL - COMPENSATION - NIGHT DIFFERENTIAL AND HOLIDAY PAY - IMMIGRATION OFFICERS INSPECTIONAL EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE WHO PERFORM NIGHT WORK ON A HOLIDAY, AND WHO ARE ENTITLED TO PREMIUM HOLIDAY COMPENSATION PURSUANT TO THE ACT OF MARCH 2, 1931, 5 U.S.C. 342, ARE NOT PRECLUDED BY THE PROVISO IN SECTION 601 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 941, WHICH PROHIBITS CONCURRENT PAYMENT OF EXTRA PAY FOR OVERTIME OR FOR SUNDAY OR HOLIDAY WORK UNDER THE 1945 ACT AS WELL AS UNDER THE 1931 ACT AND CERTAIN OTHER SPECIFIC STATUTES, FROM RECEIVING PAYMENT OF NIGHT DIFFERENTIAL AS AUTHORIZED UNDER SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 921 (A), SINCE THE TERM "EXTRA PAY" IN THE 1945 ACT DOES NOT INCLUDE NIGHT DIFFERENTIAL, AND THE PROHIBITION WAS INTENDED ONLY TO PREVENT CONCURRENT PAYMENT OF THE SAME KINDS OF ADDITIONAL PAY UNDER BOTH THE 1945 ACT AND THE SPECIAL STATUTES.

TO THE ATTORNEY GENERAL, MAY 29, 1959:

ON APRIL 8, 1959, YOUR REFERENCE A7, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL REQUESTED OUR ADVICE AS TO WHETHER WE WOULD BE REQUIRED TO OBJECT TO A PROPOSED REGULATION PERMITTING INSPECTIONAL EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE TO BE PAID BOTH NIGHT DIFFERENTIAL AND HOLIDAY PREMIUM COMPENSATION FOR THE SAME PERIODS OF ACTUAL WORK ON HOLIDAYS.

THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, PROVIDES IN SECTION 301, 5 U.S.C. 921 (A), FOR DIFFERENTIAL PAY OF 10 PERCENT TO FEDERAL EMPLOYEES, INCLUDING THOSE INVOLVED HERE, FOR REGULARLY SCHEDULED WORK AT NIGHT, AS FOLLOWS:

(A) ANY REGULARLY SCHEDULED WORK BETWEEN THE HOURS OF SIX O-CLOCK POST- MERIDIAN AND SIX O-CLOCK ANTEMERIDIAN (INCLUDING PERIODS OF ABSENCE WITH PAY DURING SUCH HOURS DUE TO HOLIDAYS AND ANY SUCH HOURS WITHIN PERIODS OF LEAVE WITH PAY IF SUCH PERIODS TOTAL LESS THAN EIGHT HOURS DURING ANY PAY PERIOD) SHALL BE CONSIDERED NIGHT WORK, EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION, AND ANY OFFICER OR EMPLOYEE PERFORMING SUCH WORK TO WHOM THIS SUBCHAPTER APPLIES SHALL BE COMPENSATED FOR SUCH WORK AT HIS RATE OF BASIC COMPENSATION PLUS PREMIUM COMPENSATION AMOUNTING TO 10 PER CENTUM OF SUCH RATE, UNLESS OTHERWISE PROVIDED IN SUBCHAPTER IV OF THIS CHAPTER. THIS SECTION SHALL NOT OPERATE TO MODIFY THE PROVISIONS OF SECTION 180 OF TITLE 31 OR ANY OTHER LAW AUTHORIZING ADDITIONAL COMPENSATION FOR NIGHT WORK.

PREMIUM COMPENSATION FOR HOLIDAY WORK IS PROVIDED FOR FEDERAL EMPLOYEES GENERALLY IN SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT, AS AMENDED, 5 U.S.C. 922 (A) AND (B):

(A) ALL WORK NOT EXCEEDING EIGHT HOURS, WHICH IS NOT OVERTIME WORK AS DEFINED IN SECTION 911 OF THIS TITLE AND WHICH IS PERFORMED ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE, EXECUTIVE ORDER, OR WITH RESPECT TO EMPLOYEES OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, BY ORDER OF THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, SHALL BE COMPENSATED AT THE RATE OF BASIC COMPENSATION OF THE OFFICER OR EMPLOYEE PERFORMING SUCH WORK ON A HOLIDAY PLUS PREMIUM COMPENSATION AT A RATE EQUAL TO THE RATE OF BASIC COMPENSATION OF SUCH OFFICER OR EMPLOYEE.

(B) ANY OFFICER OR EMPLOYEE WHO IS REQUIRED TO PERFORM ANY WORK ON SUCH A HOLIDAY SHALL BE COMPENSATED FOR AT LEAST TWO HOURS OF SUCH WORK, AND ANY SUCH PREMIUM COMPENSATION DUE UNDER THE PROVISIONS OF THIS SECTION SHALL BE IN ADDITION TO ANY PREMIUM COMPENSATION WHICH MAY BE DUE FOR THE SAME WORK UNDER THE PROVISIONS OF SECTION 921 OF THIS TITLE PROVIDING PREMIUM COMPENSATION FOR NIGHT WORK.

AUTHORITY FOR PAYMENT OF COMPENSATION FOR DUTY ON SUNDAYS OR HOLIDAYS, AND FOR NIGHT OVERTIME WORK, TO OFFICERS AND EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE IS CONTAINED IN THE ACT OF MARCH 2, 1931, AS AMENDED, 5 U.S.C. 342C (FORMERLY 8 U.S.C. 109A), AS FOLLOWS:

(C) THE ATTORNEY GENERAL SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF IMMIGRATION OFFICERS AND EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE WHO MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN THE HOURS OF FIVE O-CLOCK POST MERIDIAN AND EIGHT O -CLOCK ANTEMERIDIAN, OR ON SUNDAYS OR HOLIDAYS, TO PERFORM DUTIES IN CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS AND CREWS OF STEAMSHIPS, TRAINS, AIRPLANES, OR OTHER VEHICLES, ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT BY WATER, LAND, OR AIR, SUCH RATES TO BE FIXED ON A BASIS OF ONE-HALF DAY'S ADDITIONAL PAY FOR EACH TWO HOURS OR FRACTION THEREOF OF AT LEAST ONE HOUR THAT THE OVERTIME EXTENDS BEYOND FIVE O-CLOCK POST MERIDIAN (BUT NOT TO EXCEED TWO AND ONE-HALF DAYS' PAY FOR THE FULL PERIOD FROM FIVE O-CLOCK POST MERIDIAN TO EIGHT O-CLOCK ANTEMERIDIAN) AND TWO ADDITIONAL DAYS' PAY FOR SUNDAY AND HOLIDAY DUTY; IN THOSE PORTS WHERE THE CUSTOMARY WORKING HOURS ARE OTHER THAN THOSE HERETOFORE MENTIONED, THE ATTORNEY GENERAL IS VESTED WITH AUTHORITY TO REGULATE THE HOURS OF SUCH EMPLOYEES SO AS TO AGREE WITH THE PREVAILING WORKING HOURS IN SAID PORT, BUT NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED IN ANY MANNER TO AFFECT OR ALTER THE LENGTH OF A WORKING DAY FOR SUCH EMPLOYEES OR THE OVERTIME PAY HEREIN FIXED.

SO FAR AS FEDERAL EMPLOYEES GENERALLY ARE CONCERNED THERE IS NO QUESTION BUT THAT THE NIGHT DIFFERENTIAL IS PAYABLE IN ADDITION TO PREMIUM PAY FOR WORK ON A HOLIDAY FOLLOWING WITHIN THE REGULARLY SCHEDULED WORKWEEK. THE FEDERAL EMPLOYEES PAY ACT, 5 U.S.C. 922, SPECIFICALLY SO PROVIDES. THE STATUTE GOVERNING HOLIDAY PAY FOR IMMIGRATION OFFICERS AND EMPLOYEES DOES NOT CONTAIN ANY SUCH SPECIFIC PROVISION.

AT PAGE 14, REPORT NO. 1834, HOUSE OF REPRESENTATIVES COMMITTEE ON THE CIVIL SERVICE, 79TH CONGRESS, 2D SESSION, CONCERNING CLARIFYING AMENDMENTS TO THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 901,"TO ACCOMPLISH THE ORIGINAL INTENT," THE COMMITTEE STATED:

HOWEVER, THE 10-PERCENT NIGHT PAY DIFFERENTIAL WAS INTENDED TO BE PAYABLE FOR ALL REGULARLY SCHEDULED HOURS WORKED BETWEEN 6 P.M. AND 6 A.M. REGARDLESS OF WHETHER THEY OCCUR DURING AN OVERTIME PERIOD OR ON A HOLIDAY.

OVERTIME PAY IS PREMIUM PAY FOR WORKING A CERTAIN LENGTH OF TIME DURING A WEEK, I.E., OVER 40 HOURS. PAY FOR HOLIDAY WORK IS PREMIUM PAY BECAUSE OF THE NATURE OF THE DAY. A NIGHT DIFFERENTIAL IS EXTRA PAY FOR WORKING REGULARLY BETWEEN ABNORMAL CLOCK HOURS. THESE ITEMS OF EXTRA PAY THUS COMPENSATE FOR DIFFERENT TYPES OF WORKING CONDITIONS, AND WITH FAIRNESS AND LOGIC MAY BE PAID COINCIDENTALLY.

CONSIDERING THE COMMITTEE'S STATEMENT IN THE LEGISLATIVE HISTORY OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 5 U.S.C. 921, ABOVE, AS TO THE ORIGINAL INTENT OF CONGRESS IN THE 1945 ACT IN PROVIDING FOR NIGHT DIFFERENTIAL PAY AND THE FACT THAT FEDERAL EMPLOYEES GENERALLY ARE CLEARLY ENTITLED TO BOTH, WE ARE OF THE VIEW THAT NIGHT DIFFERENTIAL PAY SHOULD NOT BE DENIED IMMIGRATION OFFICERS AND EMPLOYEES RECEIVING HOLIDAY PAY UNDER THEIR SPECIAL STATUTE UNLESS CONGRESS HAS EXPRESSLY PROHIBITED IT.

IF SUCH A PROHIBITION EXISTS, IT MUST BE FOUND IN THE PROVISIONS OF SECTION 601 OF THE FEDERAL EMPLOYEES PAY ACT, 59 STAT. 302, 5 U.S.C. 941, WHICH READS:

SEC. 601. THE PROVISIONS OF THIS ACT SHALL NOT OPERATE TO PREVENT PAYMENT FOR OVERTIME SERVICES OR EXTRA PAY FOR SUNDAY OR HOLIDAY WORK IN ACCORDANCE WITH ANY OF THE FOLLOWING STATUTES: ACT OF FEBRUARY 13, 1911, AS AMENDED ( U.S.C., 1940 EDITION, TITLE 19, SECS. 261 AND 267); ACT OF JULY 24, 1919 ( U.S.C., 1940 EDITION, TITLE 7, SEC. 394); ACT OF JUNE 17, 1930, AS AMENDED ( U.S.C., 1940 EDITION TITLE 19, SECS. 1450, 1451, AND 1452); ACT OF MARCH 2, 1931 ( U.S.C., 1940 EDITION, TITLE 8, SECS. 109A AND 109B) ( NOW 5 U.S.C. 342C AND 342D); ACT OF MAY 27, 1936, AS AMENDED ( U.S.C. 1940 EDITION, TITLE 46, SEC. 382B); ACT OF MARCH 23, 1941 ( U.S.C., 1940 EDITION, SUPP. IV, TITLE 47, SEC, 154 (F) (2) ); ACT OF JUNE 3, 1944 ( PUBLIC LAW NUMBERED 328, SEVENTY EIGHTH CONGRESS): PROVIDED, THAT THE OVERTIME, SUNDAY, OR HOLIDAY SERVICES COVERED BY SUCH PAYMENT SHALL NOT ALSO FORM A BASIS FOR OVERTIME OR EXTRA PAY UNDER THIS ACT. ( ITALICS SUPPLIED.)

THE PHRASE "EXTRA PAY * * * UNDER THIS ACT" IN THE PROVISO ABOVE, TAKEN LITERALLY AND OUT OF CONTEXT, COULD BE CONSTRUED TO INCLUDE THE NIGHT DIFFERENTIAL PAY PROVIDED FOR IN 5 U.S.C. 921 AND THUS TO PROHIBIT PAYMENT OF BOTH NIGHT DIFFERENTIAL AND HOLIDAY PAY TO IMMIGRATION OFFICERS AND EMPLOYEES FOR THE SAME WORK. A CAREFUL REVIEW OF THE STATUTES INVOLVED HERE AND THEIR LEGISLATIVE HISTORIES LEADS US TO THE CONCLUSION, HOWEVER, THAT SECTION 601 WAS NOT INTENDED AS SUCH A PROHIBITION. THE PHRASE "OVERTIME OR EXTRA PAY UNDER * * * THIS ACT" AS USED IN THE ITALICIZED PORTION ABOVE REASONABLY REFERS AND CORRESPONDS ONLY TO THE PHRASE IN THE FIRST SENTENCE "PAYMENT FOR OVERTIME SERVICES OR EXTRA PAY FOR SUNDAY OR HOLIDAY WORK IN ACCORDANCE WITH" THE RESPECTIVE STATUTES. SINCE THOSE STATUTES DO NOT INCLUDE ANY PROVISION FOR THE USUAL NIGHT DIFFERENTIAL PAY, WE CONCLUDE THAT THE REFERENCE TO "EXTRA PAY" UNDER THE FEDERAL EMPLOYEES PAY ACT DOES NOT INCLUDE NIGHT DIFFERENTIAL AND THAT SECTION 601 WAS INTENDED SIMPLY TO PREVENT CONCURRENT PAYMENT OF THE SAME KINDS OF ADDITIONAL PAY UNDER BOTH THE FEDERAL EMPLOYEES PAY ACT AND THE RESPONSIVE SPECIAL STATUTES.

THEREFORE, OUR OFFICE WILL NOT OBJECT TO A REGULATION STATING THAT HOLIDAY PAY SHALL BE IN ADDITION TO ANY NIGHT DIFFERENTIAL WHICH MAY BE DUE AS PROPOSED BY THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL.