B-38663, DECEMBER 8, 1943, 23 COMP. GEN. 415

B-38663, DECEMBER 8, 1943, 23 COMP. GEN. 415

HOLIDAY COMPENSATION - PER DIEM, ETC., EMPLOYEES OF WAR DEPARTMENT PER DIEM AND PER HOUR EMPLOYEES OF THE WAR DEPARTMENT WITHIN THE PURVIEW OF THE HOLIDAY STATUTE OF JUNE 29, 1938, AND THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, WHO NORMALLY WORK ONLY 40 HOURS PER WEEK ( MONDAY THRU FRIDAY), BUT WHO, IN VIEW OF THE PRESENT WARTIME CONDITIONS, ARE ADMINISTRATIVELY REQUIRED TO WORK A REGULAR WORKWEEK OF SIX DAYS, 48 HOURS, MAY BE PAID REGULAR STRAIGHT-TIME COMPENSATION FOR CHRISTMAS DAY, 1943, EVEN THOUGH THAT DAY FALLS ON A SATURDAY--- A NONWORK DAY UNDER THE NORMAL OPERATION OF THE SAID 1934 STATUTE FOR WHICH HOLIDAY COMPENSATION ORDINARILY WOULD NOT BE PAYABLE PROVIDED THEY ARE IN A DUTY OR PAY STATUS ON FRIDAY, DECEMBER 24, 1943, AND ON MONDAY, DECEMBER 27, 1943. 18 COMP. GEN. 191; ID. 206, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, DECEMBER 8, 1943:

I HAVE YOUR LETTER OF DECEMBER 1, 1943, AS FOLLOWS:

SECTION 23 OF THE ACT OF MARCH 28, 1934 (48 STAT. 509), ESTABLISHES A MAXIMUM REGULAR WORK WEEK OF 40 HOURS FOR THE SEVERAL TRADES AND OCCUPATIONS WHOSE COMPENSATION IS SET BY WAGE BOARDS OR OTHER WAGE FIXING AUTHORITY. THE ACT FURTHER PROVIDES THAT OVERTIME RATES OF NOT LESS THAN TIME AND ONE HALF SHALL BE PAID FOR HOURS WORKED IN EXCESS OF 40 PER WEEK.

PURSUANT TO THIS PROVISION OF LAW AND IN ACCORDANCE WITH THE PRINCIPLE SET FORTH IN YOUR DECISION OF APRIL 30, 1942 (21 COMP. GEN. 965), THIS DEPARTMENT HAS ESTABLISHED FOR DAILY AND HOURLY EMPLOYEES PAID IN ACCORDANCE WITH THE ACT OF MARCH 28, 1934, A REGULAR WEEKLY TOUR OF DUTY OF FIVE 8-HOUR DAYS FOR WHICH REGULAR HOURLY OR DAILY RATES OF COMPENSATION ARE PAID. IN MOST INSTANCES THIS BASIC 40 HOUR WEEKLY TOUR OF DUTY BEGINS ON MONDAY AND ENDS ON FRIDAY OF EACH CALENDAR WEEK AND WORK PERFORMED ON SATURDAY IS COMPENSATED AT OVERTIME RATES.

THE GENERAL POLICY OF THE FEDERAL GOVERNMENT AS SET FORTH IN A LETTER FROM THE PRESIDENT ON DECEMBER 22, 1942, IS TO REQUIRE, WHEREVER PRACTICABLE, A UNIFORM WORK WEEK OF SIX 8 HOUR DAYS OR A TOTAL OF 48 HOURS PER WEEK. BY REGULATION, THEREFORE, DAILY AND HOURLY EMPLOYEES OF THIS DEPARTMENT ARE ACTUALLY REQUIRED TO WORK A TOTAL OF 48 HOURS, THE SIXTH DAY OF WORK BEING CONSIDERED AN "OVERTIME DAY" FOR REASONS OF ADMINISTRATIVE EXPEDIENCY. AS A PRACTICAL MATTER, HOWEVER, THESE EMPLOYEES ARE REQUIRED TO WORK THE SAME NUMBER OF HOURS AS PER ANNUM OR MONTHLY EMPLOYEES BUT THEIR OVERTIME WORK IS PERFORMED ON A SPECIFIED DAY RATHER THAN PRORATED AS IS THE CASE WITH PER ANNUM AND MONTHLY EMPLOYEES PAID UNDER THE WAR OVERTIME PAY ACT OF 1943. TECHNICALLY, THE SIXTH DAY OF SERVICE DOES NOT FALL WITHIN THE REGULAR TOUR OF DUTY OF DAILY AND HOURLY EMPLOYEES, BUT, AS A MATTER OF ACTUAL FACT, THEY ARE ORDERED TO WORK ON THAT DAY AND ABSENCE FROM DUTY ON THE SIXTH DAY IS PENALIZED BY LOSS OF OVERTIME PAY.

QUESTION HAS NOW BEEN RAISED AS TO WHETHER THOSE EMPLOYEES WHOSE TOUR OF DUTY AND METHOD OF COMPENSATION IS DESCRIBED ABOVE MAY BE PAID FOR A HOLIDAY WHICH FALLS ON THEIR "OVERTIME DAY" AND ON WHICH THEY WOULD HAVE WORKED AND RECEIVED PAY HAD IT NOT BEEN FOR THE OCCURRENCE OF THE HOLIDAY. PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938 (52 STAT. 1246), PROVIDES AS FOLLOWS:

"HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECEWORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY, WASHINGTON'S BIRTHDAY, MEMORIAL DAY, FOURTH OF JULY, LABOR DAY, THANKSGIVING DAY, CHRISTMAS DAY, OR ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER, THEY SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.'

PREVIOUS DECISIONS OF YOUR OFFICE HAVE INDICATED THAT PAYMENT MAY NOT BE MADE TO DAILY AND HOURLY EMPLOYEES FOR A HOLIDAY WHICH FELL ON A NON-WORK DAY (18 COMP. GEN. 191, ID. 206). HOWEVER, IT IS BELIEVED PROPER TO REQUEST YOUR FURTHER CONSIDERATION OF THIS MATTER IN VIEW OF PRESENT CIRCUMSTANCES WHICH DID NOT EXIST AT THE TIME OF YOUR EARLIER DECISION.

ON MAY 12, 1943, THE ADMINISTRATIVE ASSISTANT TO THE PRESIDENT ADVISED THE HEADS OF DEPARTMENTS AND AGENCIES THAT ALL HOLIDAYS EXCEPT CHRISTMAS WERE TO BE CONSIDERED WORK DAYS FOR FEDERAL EMPLOYEES FOR THE DURATION OF THE WAR. WITH FEW EXCEPTIONS, THIS PRACTICE HAD BEEN IN EFFECT THROUGHOUT THIS DEPARTMENT FOR SOME TIME PRIOR TO ISSUANCE OF THE GENERAL FEDERAL POLICY. THE PROVISIONS OF THE HOLIDAY PAY LAW HAVE NOT BEEN UTILIZED BY THE WAR DEPARTMENT DURING THE PAST TWO YEARS EXCEPT ON DECEMBER 25, 1942.

CHRISTMAS DAY OF THIS YEAR FALLS ON SATURDAY. THE DEPARTMENT DOES NOT FEEL THAT ITS DAILY AND HOURLY EMPLOYEES SHOULD BE PENALIZED THROUGH LOSS OF PAY FOR THAT DAY MERELY BECAUSE OF THE FACT THAT IT IS A HOLIDAY AND THAT MOST INSTALLATIONS WILL NOT REQUIRE WORK ON THAT DAY. IT IS POINTED OUT THAT, ALTHOUGH CHRISTMAS DAY WILL, IN MOST INSTANCES, FALL ON THE "OVERTIME DAY" WHICH IS TECHNICALLY OUTSIDE THE REGULAR TOUR OF DUTY OF DAILY AND HOURLY EMPLOYEES, ACTUALLY THESE EMPLOYEES ARE REQUIRED TO WORK 48 HOURS PER WEEK, AND WOULD WORK AND RECEIVE PAY AT OVERTIME RATES ON DECEMBER 25, 1943, IF IT WERE NOT FOR THE OCCURRENCE OF THE HOLIDAY ON THAT DAY. THE DEPARTMENT WILL APPRECIATE YOUR ADVICE AS TO WHETHER, UNDER PRESENT CONDITIONS AS OUTLINED ABOVE, ITS DAILY AND HOURLY EMPLOYEES MAY RECEIVE PAY FOR CHRISTMAS DAY FALLING ON SATURDAY AND, IF COMPENSATION MAY BE PAID, WHETHER STRAIGHT TIME OR OVERTIME RATES SHOULD PREVAIL.

YOUR EARLY CONSIDERATION OF THIS PROBLEM WILL BE APPRECIATED IN ORDER THAT APPROPRIATE INSTRUCTIONS MAY BE ISSUED TO THE FIELD SERVICE PRIOR TO THE HOLIDAY IN QUESTION.

IN THE DECISION OF AUGUST 23, 1938, 18 COMP. GEN. 191, 193, TO WHICH YOU REFER, THE QUESTION:

4. UNDER THE ACT OF MARCH 28, 1934, THE EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WORK EIGHT HOURS A DAY--- MONDAY THROUGH FRIDAY (40 HOURS). IF A LEGAL HOLIDAY FALLS ON SATURDAY, ARE THESE EMPLOYEES ENTITLED TO PAY FOR 48 HOURS FOR THAT WEEK? (SEE COMP. GEN. 15-700). OTHER WORDS, ARE THEY ENTITLED TO PAY FOR A LEGAL HOLIDAY FALLING ON A NON -WORK DAY? WAS ANSWERED AS FOLLOWS:

QUESTION NO. 4 IS ANSWERED IN THE NEGATIVE. THE CITED DECISION HAS BEEN RENDERED INOPERATIVE BY PUBLIC RESOLUTION OF JUNE 29, 1938.

IN THE DECISION OF AUGUST 29, 1938, 18 COMP. GEN. 206, 209, 210, ALSO REFERRED TO IN YOUR LETTER, THE FOLLOWING QUESTION AND ANSWER WERE STATED:

QUESTION 5. MAY GRATUITY HOLIDAY PAY BE ALLOWED UNDER THE FOLLOWING CIRCUMSTANCES? IN ORDER TO FACILITATE PROGRESS OF RUSH WORK, THE USUAL SCHEDULE OF WORKING DAYS CONSTITUTING A 40-HOUR WEEK IS ADMINISTRATIVELY CHANGED SO AS TO PERMIT 40 HOURS ACTUAL SERVICE REGARDLESS OF HOLIDAY TIME, AS FOR EXAMPLE: DURING A WEEK WHEN A HOLIDAY FALLS ON FRIDAY, A NORMAL WORK DAY, SATURDAY IS PLACED ON THE SCHEDULE AS A REGULAR WORK DAY, AND FRIDAY, THE HOLIDAY, IS SCHEDULED AS A NONWORK DAY.

QUESTION 5 IS ANSWERED IN THE NEGATIVE. WHILE AN ADMINISTRATIVE OFFICE SHOULD NOT ARBITRARILY ADJUST DAYS OF WORK FOR THE PURPOSE OF DEFEATING THE EMPLOYEE'S RIGHT TO PAY FOR A HOLIDAY, IT IS WITHIN ADMINISTRATIVE DISCRETION TO FIX THE 40-HOUR WEEKLY TOUR OF DUTY ON ANY OF THE 7 DAYS OF ANY WEEK (13 COMP. GEN. 291; ID. 307), AND IF IN THE EXERCISE OF THAT ADMINISTRATIVE DISCRETION, IN AN EMERGENCY, THE DAYS OF WORK IN ANY WEEK ARE ADJUSTED SO THAT A HOLIDAY FALLS ON A NONWORK DAY, THE 40-HOUR WEEKLY TOUR OF DUTY TO BE ON THE OTHER DAYS OF THAT WEEK, THE EMPLOYEE WOULD BE ENTITLED TO ONLY HIS REGULAR PAY FOR THE FIVE DAYS WORKED WITH NO PAY FOR THE HOLIDAY WHICH FELL ON HIS NON WORK DAY.

THE RULE IN THOSE DECISIONS WAS STATED WITH REFERENCE TO THE NORMAL OPERATION OF THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, 48 STAT. 522, AND THE HOLIDAY STATUTE APPROVED JUNE 29, 1938, 52 STAT. 1246, QUOTED IN YOUR LETTER, INVOLVING ADMINISTRATIVELY FIXED TOURS OF DUTY GENERALLY CONSISTING OF CERTAIN FIVE DAYS OF THE WEEK. AS STATED IN YOUR LETTER, UNDER PRESENT WAR-TIME CONDITIONS, GENERAL ADMINISTRATIVE ORDERS HAVE BEEN ISSUED REQUIRING A REGULAR WORKWEEK OF SIX DAYS (48 HOURS) OF MOST FEDERAL EMPLOYEES INCLUDING THOSE WHOSE COMPENSATION IS COMPUTED AND PAID IN ACCORDANCE WITH THE 1934 OVERTIME LAW. IN VIEW THEREOF, AS WELL AS OF THE PRESIDENT'S REQUEST THAT ALL HOLIDAYS EXCEPT CHRISTMAS BE CONSIDERED AS WORKDAYS FOR FEDERAL EMPLOYEES, I AM IN AGREEMENT WITH THE VIEW EXPRESSED IN YOUR LETTER THAT NOTHING STATED IN THE DECISIONS, SUPRA, SHOULD OPERATE TO DENY COMPENSATION FOR CHRISTMAS DAY, 1943, TO EMPLOYEES COMING WITHIN THE PURVIEW OF THE 1934 LAW AND THE HOLIDAY LAW OF 1938, AND WHO "ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS * * * CHRISTMAS DAY," 1943. WHILE SATURDAYS NORMALLY WOULD NOT COME WITHIN THE REGULAR TOUR OF DUTY OF 40 HOURS FIXED FOR THE PURPOSE OF THE 1934 LAW, NEVERTHELESS SUCH DAYS ARE, UNDER EXISTING WAR CONDITIONS, A PART OF THE ADMINISTRATIVE WORKWEEK.

THE 1938 HOLIDAY LAW WAS INTENDED, SO FAR AS POSSIBLE, TO EQUALIZE HOLIDAY PAY FOR PER DIEM, PER HOUR, AND PIECE WORKERS WITH HOLIDAY PAY ENJOYED BY OTHER CLASSES OF FEDERAL EMPLOYEES. THAT PURPOSE WOULD BE DEFEATED IF IT WERE TO BE CONCLUDED THAT ANYTHING SAID IN THE CITED DECISIONS RELATING TO THE 1934 STATUTE MUST OPERATE TO DENY THIS CLASS OF FEDERAL WORKERS HOLIDAY PAY NEXT CHRISTMAS. OF COURSE, AS THE HOLIDAY LAW EXPRESSLY AUTHORIZES ONLY "THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED" THE OVERTIME RATE MAY NOT BE PAID TO THIS CLASS OF EMPLOYEES WHO DO NOT WORK ON CHRISTMAS DAY.

YOU ARE ADVISED, THEREFORE, THAT THE EMPLOYEES TO WHOM YOUR SUBMISSION REFERS MAY BE PAID THEIR REGULAR STRAIGHT-TIME PAY FOR CHRISTMAS DAY, 1943, EVEN THOUGH THAT DAY IS SATURDAY--- ON WHICH THEY ARE "PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY ( CHRISTMAS)" ON THAT DAY, PROVIDED THEY ARE IN A DUTY OR PAY STATUS ON FRIDAY, DECEMBER 24, 1943, AND ON MONDAY, DECEMBER 27, 1943.