B-150253, JUNE 10, 1963, 42 COMP. GEN. 677

B-150253, JUNE 10, 1963, 42 COMP. GEN. 677

LEAVES OF ABSENCE - ANNUAL - RATE OF COMPENSATION PAYABLE - DETAILS TO DIFFERENT SHIFTS. LEAVES OF ABSENCE - ANNUAL - RATE OF COMPENSATION PAYABLE - DETAILS TO DIFFERENT SHIFTS. LEAVES OF ABSENCE - ANNUAL - RATE OF COMPENSATION PAYABLE - DETAILS TO DIFFERENT SHIFTS. LEAVES OF ABSENCE - ANNUAL - RATE OF COMPENSATION PAYABLE - DETAILS TO DIFFERENT SHIFTS. LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - RATE AT WHICH PAYABLE DETAILS TO DIFFERENT SHIFTS. LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - RATE AT WHICH PAYABLE - DETAILS TO DIFFERENT SHIFTS A GOVERNMENT PRINTING OFFICE EMPLOYEE WHO IS DETAILED FROM A REGULAR NIGHT SHIFT TO A DAY SHIFT FOR A 90-DAY PERIOD FOR REASONS OF HEALTH OR PERSONAL HARDSHIP AND WHO IS GRANTED LEAVE DURING THE DETAIL IS CONSIDERED TO HAVE BEEN EXCUSED FROM THE DAY SHIFT AND THE RATE OF COMPENSATION TO BE PAID FOR THE LEAVE IS THE RATE FOR THE DAY SHIFT AND, SIMILARLY, AN EMPLOYEE WHO IS DETAILED FOR MORE THAN 30 DAYS TO A TRAINING OR CLERICAL POSITION WITH A VIEW TO QUALIFYING FOR PERMANENT TRANSFER TO THE POSITION AND WHO IS GRANTED LEAVE DURING THE DETAIL SHOULD BE PAID AT THE RATE APPLICABLE TO THE SHIFT, DAY OR NIGHT, FROM WHICH EXCUSED. IN THE DETEMINATION OF THE RATE OF COMPENSATION PAYABLE FOR LEAVE TO GOVERNMENT PRINTING OFFICE EMPLOYEES WHO ARE ON DETAILS OF SHORT DURATION FROM A NIGHT SHIFT TO A DAY SHIFT, OR VICE VERSA, TO FILL EMERGENCY WORK NEEDS, THE RULE THAT THE RATE PAYABLE IS THE RATE OF THE SHIFT FROM WHICH THE EMPLOYEE IS EXCUSED IS NOT REALISTIC AND NEED NOT BE APPLIED GENERALLY WITHOUT REGARD TO THE PARTICULAR FACTS OF THE DETAIL, FOR EXAMPLE, WHEN THE EMPLOYEE IS GRANTED LEAVE AT THE BEGINNING OF CONTEMPLATED DETAIL BEFORE ACTUALLY REPORTING FOR DUTY THE EMPLOYEE IS NOT DETAILED DURING THE LEAVE PERIOD AND PAYMENT FOR THE LEAVE SHOULD BE MADE AT THE RATE APPLICABLE TO THE REGULAR SHIFT. GOVERNMENT PRINTING OFFICE EMPLOYEES WHO ARE ON DETAILS OF SHORT DURATION FROM A NIGHT SHIFT TO A DAY SHIFT, OR VICE VERSA, AND WHO ARE GRANTED LEAVE BEGINNING PRIOR TO THE EXPIRATION OF THE PERIOD OF DETAIL AND EXTENDING TO THE END OF THE DETAIL, ARE REGARDED AS HAVING THE DETAIL TERMINATED BY THE LEAVE AND REVERTING TO THE REGULAR SHIFT RATE FOR THE PERIOD OF LEAVE. GOVERNMENT PRINTING OFFICE EMPLOYEES WHO WHILE ON DETAILS OF SHORT DURATION TO A WORK SHIFT FOR WHICH A DIFFERENT RATE OF COMPENSATION IS PAYABLE ARE GRANTED LEAVE ARE REGARDED AS BEING EXCUSED FROM DUTY ON THE DETAIL SHIFT AND ENTITLED TO COMPENSATION FOR THE LEAVE AT THE RATE APPLICABLE TO SUCH SHIFT. IN COMPUTING THE LUMP-SUM LEAVE PAYMENT DUE A GOVERNMENT PRINTING OFFICE EMPLOYEE WHO IS SEPARATED FROM THE SERVICE DURING A DETAIL TO OTHER THAN HIS REGULAR SHIFT, IF THE DETAIL IS FOR A PREDETERMINED PERIOD, THE LUMP- SUM PAYMENT FOR LEAVE SHOULD BE PAID AT THE RATE APPLICABLE TO THE SHIFT TO WHICH DETAILED DURING THE REMAINDER OF THE DETAIL PERIOD AND FOR THE PORTION OF THE LEAVE PERIOD EXTENDING BEYOND THE DETAIL THE EMPLOYEE SHOULD BE PAID AT THE RATE APPLICABLE TO THE REGULAR SHIFT. GOVERNMENT PRINTING OFFICE EMPLOYEES WHO ARE ON A DAY-TO-DAY DETAIL FROM THEIR REGULAR NIGHT OR DAY SHIFT WHEN THEY ARE SEPARATED FROM THE SERVICE ARE NOT TO BE REGARDED AS ON SUCH A FIXED DETAIL THAT THE DETAIL SHIFT RATE OF COMPENSATION HAS TO BE CONSIDERED IN THE COMPUTATION OF THE LUMP- SUM LEAVE PAYMENT DUE THE EMPLOYEE.

TO THE PUBLIC PRINTER, UNITED STATES GOVERNMENT PRINTING OFFICE, JUNE 10, 1963:

ON APRIL 22, 1963, YOU REQUESTED OUR DECISION CONCERNING THE PROPER RATES OF PAY FOR ANNUAL AND SICK LEAVE GRANTED EMPLOYEES WHO ARE DETAILED FROM A NIGHT SHIFT TO A DAY SHIFT OR VICE VERSA. WE RAISED THE QUESTION IN OUR DECISION OF FEBRUARY 20, 1963, B-150253, 42 COMP. GEN. 429, TO YOU, BUT POSTPONED A RULING THEREON PENDING A MORE DETAILED PRESENTATION.

YOU SAY THAT DUE TO MANY EMERGENCY FACTORS, SUCH AS DEMANDS OF CONGRESS FOR PRINTING REQUIRING A TRAINED CREW TO BE AVAILABLE AT ALL TIMES AND THE NECESSITY OF TRAINING EMPLOYEES FOR OPERATIONAL PURPOSES IN ALL SHIFTS, IT HAS BEEN YOUR PRACTICE TO TEMPORARILY DETAIL REGULAR DAY SHIFT EMPLOYEES TO NIGHT SHIFT AND VICE VERSA IN ACCORDANCE WITH WORK REQUIREMENTS. ALSO, YOUR STAFF HAS FURNISHED US COPIES OF CERTAIN ADMINISTRATIVE INSTRUCTIONS INDICATING OTHER REASONS FOR DETAILING EMPLOYEES FROM THEIR REGULAR SHIFTS, SUCH AS FOR REASONS OF HEALTH OR PERSONAL HARDSHIP.

WE HELD IN 24 COMP. GEN. 39, AT PAGE 44, THAT NIGHT DIFFERENTIAL PAYABLE AS PART OF BASIC COMPENSATION TO WAGE-BOARD EMPLOYEES SUBJECT TO SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED, 5 U.S.C. 673C, WAS FOR INCLUSION IN COMPENSATION PAYABLE FOR AUTHORIZED LEAVE OF ABSENCE FROM A REGULAR TOUR OF DUTY AT NIGHT; BUT THAT AN EMPLOYEE ROTATING ON DAY AND NIGHT SHIFTS WHO IS GRANTED LEAVE WHILE NOT ON THE NIGHT SHIFT AND NOT RECEIVING THE NIGHT DIFFERENTIAL IS NOT ENTITLED TO THE NIGHT DIFFERENTIAL WHILE ON LEAVE. AMPLIFYING THAT DECISION, IT WAS HELD IN 26 COMP. GEN. 212 THAT AN EMPLOYEE REGULARLY WORKING ON ROTATING DAY AND NIGHT SHIFTS SHOULD BE PAID AT THE DAY RATE FOR THE PORTION OF AN AUTHORIZED PERIOD OF LEAVE DURING WHICH HE WOULD HAVE BEEN ASSIGNED TO THE DAY SHIFT AND AT THE NIGHT RATE FOR THE PORTION DURING WHICH HE WOULD HAVE BEEN ASSIGNED TO THE NIGHT SHIFT.

SECTION 47 OF THE ACT OF JANUARY 12, 1895, 28 STAT. 607, 44 U.S.C. 42,PROVIDES THAT THE PUBLIC PRINTER SHALL CAUSE WORK TO BE DONE ON THE PUBLIC PRINTING AT NIGHT AS WELL AS THROUGH THE DAY, WHEN THE EXIGENCIES OF THE PUBLIC SERVICE REQUIRE IT. SECTION 1 OF THE ACT OF JUNE 7, 1924 (KIESS ACT), 43 STAT. 658, 44 U.S.C. 40, CONTAINS AUTHORITY FOR A PAY DIFFERENTIAL FOR NIGHT WORK, WHICH DIFFERENTIAL IS PART OF BASE PAY (23 COMP. GEN. 962).

YOUR REGULATIONS (ORDER DATED JULY 19, 1945), ESTABLISHED A PAY DIFFERENTIAL OF 15 PERCENT FOR EMPLOYEES WHOSE TOUR OF DUTY EXCEEDS FOUR HOURS BETWEEN 6 P.M. AND 6 A.M., WITH OVERTIME AND COMPENSABLE LEAVE COMPUTED ON THE NIGHT RATE. ALSO, THE REGULATIONS PROVIDE THAT EMPLOYEES DETAILED OR TRANSFERRED FROM THE NIGHT TO THE DAY SHIFT SHALL BE COMPENSATED AT THE BASIC DAY ATE; AND THAT EMPLOYEES DETAILED OR TRANSFERRED TO THE NIGHT SHIFT SHALL BE COMPENSATED AT THE NIGHT RATE. OUR ATTENTION HAS NOT BEEN DIRECTED TO ANY REGULATION OF YOURS SPECIFYING THE RATE OF COMPENSATION TO BE PAID FOR LEAVE GRANTED DURING PERIODS OF DETAIL. HOWEVER, YOU EXPRESS THE VIEW THAT WHEN A REGULAR DAY SHIFT EMPLOYEE TEMPORARILY DETAILED TO THE NIGHT SHIFT GOES ON LEAVE, EITHER ANNUAL OR SICK, HE IS, IN EFFECT, NOT DETAILED, AND, THEREFORE, PAYMENT FOR THE LEAVE IS TO BE MADE ON THE BASIS OF HIS REGULAR (DAY) SHIFT RATE. WE ASSUME THAT YOU TAKE A SIMILAR VIEW IN THE CASE OF AN EMPLOYEE DETAILED FROM A NIGHT SHIFT TO A DAY SHIFT; THAT IS, THAT THE NIGHT RATE SHOULD BE PAID FOR LEAVE GRANTED DURING THE DETAIL.

THE GENERAL PURPOSE OF THE LEAVE STATUTES IS TO GRANT A RIGHT TO BE ABSENT FROM DUTY WITHOUT LOSS OF PAY DURING AUTHORIZED PERIODS OF ABSENCE; AND IT HAS BEEN HELD THAT AN EMPLOYEE GRANTED LEAVE WHILE TEMPORARILY ASSIGNED TO A HIGHER PAYING POSITION WAS ENTITLED DURING THE AUTHORIZED LEAVE TO BE PAID AT THE HIGHER RATE OF COMPENSATION APPLICABLE TO SUCH POSITION, THAT BEING THE POSITION FROM WHICH HE WAS EXCUSED FROM DUTY, BUT THAT AS TO AN EMPLOYEE WHO WAS ACTUALLY REASSIGNED OR RETURNED TO HIS PRIOR EMPLOYMENT BEFORE THE BEGINNING OF THE LEAVE GRANTED EVEN THOUGH NO DUTY WAS PERFORMED UNDER SUCH REASSIGNMENT OR RETURN, THE RATE PAYABLE DURING THE LEAVE WAS THE RATE APPLICABLE TO THE POSITION TO WHICH HE WAS RETURNED PRIOR TO THE EFFECTIVE DATE OF THE GRANTED LEAVE. 19 COMP. GEN. 1015. THE REASONING OF THAT DECISION REQUIRES A HOLDING, ALSO, THAT WHEN AN EMPLOYEE IS SUBJECT TO ASSIGNMENT OR DETAIL TO DIFFERENT TOURS OF DUTY CARRYING DIFFERENT RATES OF COMPENSATION, THE RATE PAYABLE FOR AN EXCUSED ABSENCE WITH PAY IS THE RATE APPLICABLE TO THE TOUR OF DUTY (OR SHIFT) FROM WHICH THE EMPLOYEE IS EXCUSED. SUCH RULE WAS APPLIED IN OUR HOLDINGS IN 24 COMP. GEN. 39, AT PAGE 44, AND 26 ID. 212, CITED ABOVE, CONCERNING THE INCLUSION OF NIGHT DIFFERENTIAL IN COMPENSATION FOR PERIODS OF LEAVE WITH PAY.

OUR VIEW IS THAT, FOR PURPOSE OF APPLYING THE PRINCIPLES DISCUSSED ABOVE, THE MATTER OF WHAT TOUR OF DUTY THE EMPLOYEE IS EXCUSED FROM IS A QUESTION OF FACT TO BE DETERMINED FROM THE CIRCUMSTANCES OF THE PARTICULAR CASE. FOR EXAMPLE, IN THE CASE OF AN EMPLOYEE DETAILED FROM A REGULAR NIGHT SHIFT TO A DAY SHIFT FOR A 90-DAY PERIOD FOR REASONS OF HEALTH OR PERSONAL HARDSHIP, AS AUTHORIZED BY PARAGRAPH 3 OF GOVERNMENT PRINTING OFFICE PERSONNEL BULLETIN NO. 56, DATED NOVEMBER 28, 1947, IT IS CLEAR TO US THAT THE GRANTING OF LEAVE DURING THE PERIOD OF DETAIL WOULD CONSTITUTE, IN FACT, AN EXCUSING FROM DUTY ON THE DAY SHIFT AND THAT THE RATE OF COMPENSATION TO BE PAID FOR THE LEAVE WOULD BE THE RATE APPLICABLE TO THAT SHIFT. SIMILARLY, IN THOSE CASES INVOLVING THE DETAIL OF EMPLOYEES TO TRAINING AND CLERICAL POSITIONS--- WITH A VIEW TO QUALIFYING THEM FOR PERMANENT TRANSFER--- FOR PERIODS IN EXCESS OF 30 DAYS, WITH THE APPROVAL OF THE DIRECTOR OF PERSONNEL, AS CONTEMPLATED BY PARAGRAPH 2 OF PERSONNEL BULLETIN NO. 34, DATED JUNE 10,1944, THE RATE PAYABLE FOR AUTHORIZED LEAVE GRANTED DURING THE DETAIL SHOULD BE THE RATE APPLICABLE TO THE SHIFT, DAY OR NIGHT, FROM WHICH THE EMPLOYEE IS EXCUSED. THE FALLACY OF APPLYING A THEORY OF AUTOMATIC REVERSION TO THE REGULAR SHIFT WHEN THE DETAILED EMPLOYEE IS GRANTED LEAVE IS PARTICULARLY DEMONSTRATED IN THOSE CASES IN WHICH A FRACTIONAL DAY'S LEAVE IS GRANTED DURING A DETAIL. IN ONE CASE IN CONNECTION WITH WHICH YOUR COMPTROLLER FURNISHED US A TIME AND ATTENDANCE CARD COVERING THE PERIOD JANUARY 6 THROUGH MAY 16, 1963, THE EMPLOYEE WAS ON DETAIL FROM HIS REGULAR NIGHT SHIFT TO A DAY SHIFT COMMENCING ON MARCH 4 AND CONTINUING THROUGH THE PERIOD COVERED BY THE CARD. DURING THAT TIME HE WAS GRANTED 2 PERIODS OF ANNUAL LEAVE OF 1 HOUR EACH AND 2 PERIODS OF 4 HOURS EACH. IT SEEMS TO US TO BE ENTIRELY UNREALISTIC TO SAY THAT THE EMPLOYEE WAS IN FACT EXCUSED FROM HIS REGULAR NIGHT SHIFT (AND, THEREFORE, ENTITLED TO BE PAID FOR THE LEAVE AT THE NIGHT RATE APPLICABLE TO HIS REGULAR SHIFT) DURING THE FRACTIONAL DAYS OF LEAVE WHEN HE ACTUALLY WORKED ON THE DAY SHIFT DURING THE REMAINDER OF THE WORK HOURS ON THE DAYS INVOLVED.

AS DISTINGUISHED FROM THE FOREGOING EXAMPLES WHICH INVOLVE LEAVE WITHIN THE PERIODS OF DETAIL OF MORE OR LESS SUBSTANTIAL DURATION, OTHER CASES INVOLVE A CONTEMPLATED DETAIL OF COMPARATIVELY SHORT DURATION, SUCH AS THOSE FOR ONE WEEK AS SET FORTH IN YOUR LETTER, APPARENTLY TO FULFILL AN EMERGENCY ACTUAL-WORK NEED. WHEN, IN THE LATTER TYPE CASE, THE EMPLOYEE REQUESTS AND IS GRANTED LEAVE AT THE BEGINNING OF THE CONTEMPLATED DETAIL PERIOD BEFORE ACTUALLY REPORTING FOR DUTY ON THE DETAIL, WE BELIEVE THE CONCLUSION IS WARRANTED, THAT, IN FACT, THE EMPLOYEE IS NOT DETAILED DURING THE LEAVE PERIOD AND THAT PAYMENT FOR THE LEAVE SHOULD BE MADE AT THE RATE APPLICABLE TO HIS REGULAR SHIFT. SIMILARLY, WHEN AN EMPLOYEE SERVING ON SUCH A DETAIL REQUESTS AND IS GRANTED LEAVE BEGINNING PRIOR TO EXPIRATION OF THE CONTEMPLATED PERIOD OF DETAIL AND EXTENDING TO THE END THEREOF, THE CONCLUSION IS WARRANTED THAT THE DETAIL IS, IN FACT, TERMINATED BY THE TAKING OF LEAVE AND HE REVERTS TO HIS REGULAR SHIFT RATE FOR THE PERIOD OF LEAVE. IF LEAVE IS GRANTED WITHIN THE PERIOD OF A DETAIL, THAT IS, AFTER THE EMPLOYEE ACTUALLY HAS BEEN WORKING ON THE DETAIL AND HE REPORTS BACK FOR WORK ON THE DETAIL IMMEDIATELY AFTER THE PERIOD OF LEAVE, IT WOULD SEEM REASONABLE TO CONCLUDE THAT, IN FACT, HE WAS EXCUSED FROM DUTY ON THE DETAIL SHIFT, AND THAT COMPENSATION FOR THE LEAVE SHOULD BE COMPUTED AT THE RATE APPLICABLE TO SUCH SHIFT.

YOU ALSO ASK ABOUT THE RATE TO BE PAID FOR UNUSED ANNUAL LEAVE WHEN A DAY SHIFT EMPLOYEE TEMPORARILY DETAILED TO NIGHT SHIFT IS SEPARATED FROM SERVICE.

THE GENERAL RULE IS THAT THE LUMP-SUM PAYMENT FOR LEAVE IS TO BE COMPUTED ON THE BASIS OF THE EMPLOYEE'S RIGHTS AT THE TIME OF SEPARATION UNDER ALL APPLICABLE LAWS AND REGULATIONS EXISTING AT THE TIME WHICH WOULD HAVE AFFECTED HIS COMPENSATION HAD HE REMAINED IN THE SERVICE FOR THE PERIOD COVERED BY THE LEAVE. 26 COMP. GEN. 102, 105; 38 ID. 161, 163. THE LAST- CITED DECISION INVOLVED EMPLOYEES TEMPORARILY ASSIGNED DURING CERTAIN SEASONS OF THE YEAR TO DUTIES INCLUDING STANDBY TIME IN CONNECTION WITH WHICH PREMIUM PERCENTAGE COMPENSATION WAS PAYABLE UNDER SECTION 401 (1) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS ADDED BY THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1111, 5 U.S.C. 926. WE HELD THAT THE LUMP-SUM PAYMENT FOR LEAVE ON ACCOUNT OF AN EMPLOYEE'S SEPARATION PRIOR TO EXPIRATION OF A PREDETERMINED SEASONAL PERIOD, OR ANY EXTENSION THEREOF WHICH HAD BEEN EFFECTED BECAUSE OF CHANGED CONDITIONS PRIOR TO THE DATE OF SEPARATION, SHOULD INCLUDE THE PREMIUM COMPENSATION TO THE EXTENT, AND ONLY TO THE EXTENT, THAT THE INDIVIDUAL WOULD HAVE RECEIVED IT HAD HE REMAINED IN SERVICE; BUT THAT THE AMOUNT OF THE LUMP-SUM PAYMENT WOULD NOT BE AFFECTED BY AN EXTENSION OR DIMINUTION OF THE INITIAL PERIOD DETERMINED TO BE NECESSARY AFTER THE DATE OF SEPARATION, EVEN THOUGH THE CHANGE BE EFFECTED PRIOR TO EXPIRATION OF THE PERIOD COVERED BY THE LUMP-SUM PAYMENT.

IN THE PRESENT MATTER, IF THE EMPLOYEE IS SERVING ON A DETAIL OF PREDETERMINED DURATION WHEN HE IS SEPARATED--- NO ACTION HAVING BEEN TAKEN TO TERMINATE THE DETAIL PRIOR THERETO--- THE LUMP-SUM PAYMENT FOR LEAVE SHOULD REFLECT THE RATE OF COMPENSATION APPLICABLE TO THE SHIFT TO WHICH DETAILED FOR THE REMAINDER OF SUCH DETAIL PERIOD FALLING WITHIN THE PERIOD COVERED BY THE PAYMENT, AND THE PORTION OF THE PAYMENT FOR THE REMAINING TIME, IF ANY, SHOULD BE COMPUTED AT THE RATE APPLICABLE TO THE REGULAR SHIFT. IF THE EMPLOYEE IS SERVING ON A DETAIL OF INDEFINITE DURATION WHEN SEPARATED--- NO ACTION HAVING BEEN TAKEN TO TERMINATE THE DETAIL PRIOR THERETO--- THE PROBABLE DURATION OF THE DETAIL IN RELATION TO THE PERIOD TO BE COVERED BY THE LUMP-SUM PAYMENT SHOULD BE DETERMINED UPON THE BASIS OF THE BEST INFORMATION AT HAND AND THE PAYMENT COMPUTED ACCORDINGLY. TO THOSE CASES IN WHICH THE EMPLOYEE MAY HAVE BEEN SERVING ON DETAIL ON A DAY-TO-DAY, AS NEEDED BASIS WHEN SEPARATED, WE BELIEVE THAT THE PROBABILITY OF A CONTINUATION OF THE DETAIL DURING ANY PART OF THE PERIOD TO BE COVERED BY THE PAYMENT FOR LEAVE IS TO BE REGARDED AS NOT OF SUCH A FIXED AND CERTAIN NATURE AS TO REQUIRE THAT THE MATTER OF DETAIL BE TAKEN INTO ACCOUNT IN COMPUTING THE PAYMENT.