B-43437, AUGUST 5, 1944, 24 COMP. GEN. 70

B-43437, AUGUST 5, 1944, 24 COMP. GEN. 70

COMPENSATION OF EMPLOYEES WITH IRREGULAR OR UNUSUAL TOURS OF DUTY - DEDUCTIONS FOR LEAVE WITHOUT PAY; TERMINAL ANNUAL LEAVE IN THE CASE OF A FULL TIME EMPLOYEE WHOSE ADMINISTRATIVELY FIXED WORKWEEK IS IRREGULAR WITH VARYING LENGTHS OF WORKDAYS DURING THE WEEK, THE ACT OF JUNE 30, 1906, ESTABLISHING 1/360 OF THE ANNUAL SALARY OF AN EMPLOYEE AS THE PAY FOR ONE DAY DOES NOT REQUIRE THAT 1/360 OF SUCH SALARY BE DEDUCTED FOR EACH DAY'S ABSENCE ON LEAVE WITHOUT PAY, BUT RATHER, A METHOD MAY BE ADOPTED WHEREBY AN HOUR'S WORK IS EVALUATED AS 1/8 OF 1/360 OF THE ANNUAL SALARY, WHERE A 48-HOUR WEEKLY TOUR OF DUTY IS ESTABLISHED, AND DEDUCTIONS FOR A FRACTIONAL DAY'S OR WEEK'S LEAVE WITHOUT PAY MADE ON THAT BASIS. COMP. GEN. 683, DISTINGUISHED. THE COMPENSATION PAYABLE FOR TERMINAL ANNUAL LEAVE OF A PER ANNUM EMPLOYEE ASSIGNED TO A SHIFT OF 24 HOURS OF CONTINUOUS DUTY ON ALTERNATE DAYS FROM 8 A.M. ONE DAY UNTIL 8 A.M. THE FOLLOWING DAYS WITH A 24-HOUR REST PERIOD IN BETWEEN--- THUS WORKING A PART OF EACH CALENDAR DAY--- MAY BE COMPUTED ON THE BASIS OF CONSIDERING THE EMPLOYEE ENTITLED TO 2 DAYS' COMPENSATION FOR EACH 24-HOUR TOUR OF DUTY AND TO 1/24 OF 2/360 OF HIS ANNUAL SALARY FOR EACH HOUR OF LEAVE FOR WHICH HE IS TO BE PAID. 22 COMP. GEN. 119, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, AUGUST 5, 1944:

I HAVE YOUR LETTER OF JULY 20, 1944, AS FOLLOWS:

IT IS THE PURPOSE OF THIS LETTER TO OBTAIN YOUR RULING AS TO THE PROPER METHOD OF COMPUTING COMPENSATION OF CERTAIN PER ANNUM EMPLOYEES OF THE DEPARTMENT WHO ARE SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND WHO HAVE UNCOMMON TOURS OF DUTY. AN UNCOMMON TOUR OF DUTY IN THE DEPARTMENT IS ANY TOUR OTHER THAN ONE COMPOSED OF SIX 8 HOUR DAYS.

IT IS THE POLICY OF THE DEPARTMENT THAT ALL DEPARTMENTAL AND FIELD OFFICES WITHIN THE UNITED STATES BE OPEN FOR BUSINESS ON A 7-DAY ADMINISTRATIVE WORK-WEEK BASIS. THE ADMINISTRATIVE WORK-WEEK IS SET BY COMMANDING OFFICERS OR HIGHER AUTHORITY AND, IF PRACTICABLE, SHOULD BEGIN ON THE SAME CALENDAR DAY FOR ALL EMPLOYEES AT AN INSTALLATION, PREFERABLY SO THAT THE REGULAR NONWORK DAY IS SUNDAY. WHERE CONDITIONS PERMIT, IT SHOULD BE FROM SATURDAY MIDNIGHT TO THE FOLLOWING SATURDAY MIDNIGHT, MUST BE FIXED IN ADVANCE, AND SHOULD NOT BE CHANGED TO EFFECT OR AVOID PAYMENT OF OVERTIME COMPENSATION.

ALL EMPLOYEES OF THE DEPARTMENT ARE REQUIRED TO WORK 8 HOURS PER DAY, SIX DAYS PER WEEK, EXCEPT THOSE CLASSES OF EMPLOYEES IN THE FIELD SERVICE WHO CANNOT BE EFFECTIVELY EMPLOYED UNDER SUCH A TOUR OF DUTY. A REGULAR WEEKLY TOUR OF DUTY IN EXCESS OF OR LESS THAN 48 HOURS PER WEEK (BUT NOT LESS THAN 40), OR OTHER THAN 8 HOURS PER DAY SIX DAYS PER WEEK, MAY BE ESTABLISHED BY THE COMMANDING OFFICER OF A FIELD ESTABLISHMENT WHEN NECESSITATED BY LOCAL CONDITIONS, SUBJECT TO THE APPROVAL OF THE COMMANDING GENERAL OF THE APPROPRIATE FORCE, OR HIS DESIGNATED REPRESENTATIVE FOR ALL CLASSES OF EMPLOYEES EXCEPT "ON CALL" EMPLOYEES (FOR EXAMPLE, FIRE-FIGHTERS WORKING ON THE TWO PLATOON SYSTEM), EMPLOYEES WHOSE COMPENSATION IS BASED ON OTHER THAN A TIME PERIOD BASIS, OR THOSE WHOSE HOURS OF WORK ARE INTERMITTENT, IRREGULAR, OR PART-TIME.

THE ACT OF JUNE 30, 1906, 34 STAT. 763, PROVIDES THAT THE DAILY RATE OF PAY SHALL BE 1/360 OF THE PER ANNUM RATE. IN 22 COMP. GEN. 683 IT WAS HELD THAT A PER ANNUM EMPLOYEE WHO IS ABSENT FROM DUTY WITHOUT PAY DURING AN ADMINISTRATIVE WORK-WEEK IS ENTITLED TO 1/360 OF THE GROSS COMPENSATION, INCLUDING BOTH BASIC AND OVERTIME COMPENSATION, FOR EACH DAY IN A PAY STATUS DURING THE PAYROLL PERIOD, AND THAT THERE SHOULD BE WITHHELD ONLY 1/360 OF THE GROSS COMPENSATION, INCLUDING BOTH BASIC AND OVERTIME COMPENSATION, FOR EACH DAY ON WHICH THE EMPLOYEE IS IN A NON-PAY STATUS (LEAVE WITHOUT PAY).

IN 22 COMP. GEN. 889 IT WAS HELD THAT,"NOW THAT THE HOURS OF PART TIME EMPLOYEES ARE FIXED ON A WEEKLY BASIS, RATHER THAN A DAILY BASIS, REPRESENTING A PROPORTIONATE PART OF THE WEEKLY HOURS OF DUTY FOR FULL- TIME EMPLOYEES IN FORCE ON DECEMBER 22, 1942, RESULTING INDIFFERING LENGTH OF WORK DAYS DURING THE WEEK, AS IN THE SITUATIONS PRESENTED--- 2 1/2 HOURS ON 4 DAYS, 4 HOURS ON 1 DAY, AND 8 HOURS ON 1 DAY OF THE WEEK--- THE OLD RULE FOR COMPUTING COMPENSATION WHEN LEAVE OF ABSENCE WITHOUT PAY IS TAKEN WOULD NOT BE WORKABLE.' (ITALICS SUPPLIED). THE OLD RULE REFERRED TO S,"WHERE THE SALARY RATE OF A PART-TIME EMPLOYEE HAS BEEN PROPERLY FIXED ON AN ANNUAL BASIS, DEDUCTION FOR EACH DAY'S ABSENCE FROM DUTY, OR WHEN NOT AVAILABLE FOR DUTY UPON CALL, FOR WHATEVER REASON, SHOULD BE COMPUTED AS 1/360 OF THE ANNUAL PART-TIME RATE," (11 COMP. GEN. 261).

IN 22 COMP. GEN. 889 IT WAS RECOGNIZED THAT THE HOURS OF PART-TIME EMPLOYEES ARE FIXED ON A WEEKLY BASIS, RATHER THAN ON A DAILY BASIS, AND IN VIEW OF THAT FACT A NEW METHOD OF COMPUTING ABSENCE IN A NON PAY STATUS WAS AUTHORIZED. THE WORK HOURS OF FULL TIME PER ANNUM EMPLOYEES OF THE DEPARTMENT ARE ALSO FIXED ON A WEEKLY BASIS RATHER THAN ON A DAILY BASIS, AND THE QUESTION IS THEREFORE PRESENTED WHETHER ANY OTHER METHOD OF PAY COMPUTATION FOR ABSENCE IN A NON-PAY STATUS COULD BE AUTHORIZED.

SOME FULL TIME PER ANNUM EMPLOYEES OF THE DEPARTMENT, SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND PAID OVERTIME COMPENSATION UNDER SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943 ( PUBLIC LAW 49, 78TH CONGRESS) ARE REQUIRED TO WORK A REGULAR WEEKLY TOUR OF DUTY OF 48 HOURS BUT THE HOURS OF WORK VARY ON DIFFERENT DAYS DURING THE WEEK. TYPICAL EXAMPLES ARE THE FOLLOWING:

TABLE

SUN. MON. TUES. WED. THURS. FRI. SAT. TOTAL A-- -------------- --- 9 9

9 99 3 48 B----------------- --- 8 1/2 8 1/2 8 1/2 8 1/2 8 1/2 5 1/2 48

ONE METHOD OF COMPUTATION WOULD BE TO ADHERE STRICTLY TO THE RULE THAT THE PAY FOR ONE DAY IS 1/360 OF THE ANNUAL SALARY REGARDLESS OF THE NUMBER OF HOURS WORKED. ABSENCE IN A NON-PAY STATUS FOR ONE HOUR ON MONDAY IN EXAMPLE "A" ABOVE WOULD RESULT IN LOSS OF 1/9 OF 1/360 OF THE ANNUAL COMPENSATION, INCLUDING OVERTIME COMPENSATION. ABSENCE IN A NON-PAY STATUS FOR ONE HOUR ON SATURDAY WOULD RESULT IN THE LOSS OF 1/3 OF 1/360 OF THE ANNUAL COMPENSATION, INCLUDING OVERTIME COMPENSATION.

A MORE EQUITABLE METHOD OF COMPUTATION, BOTH TO THE GOVERNMENT AND THE EMPLOYEE, WOULD BE TO EVALUATE AN HOUR'S WORK AS 1/8 OF 1/360 OF THE ANNUAL SALARY REGARDLESS OF THE NUMBER OF HOURS REQUIRED TO BE WORKED IN ANY ONE DAY PROVIDED A 48 HOUR WEEKLY TOUR OF DUTY WAS ESTABLISHED. THE CASE OF $1440 PER ANNUM EMPLOYEES WORKING HOURS MONDAY THROUGH FRIDAY AND 3 HOURS ON SATURDAY, ABSENCE IN A NON-PAY STATUS FOR 1 HOUR, REGARDLESS OF THE DAY IN THE WEEK, WOULD RESULT IN LOSS OF 1/8 OF 1/360 OF $1440 PLUS NORMAL OVERTIME COMPENSATION; NON PAY STATUS ON A MONDAY WOULD RESULT IN LOSS OF 9/8 OR 1/360 OF $1440 PLUS NORMAL OVERTIME COMPENSATION. BY THIS METHOD AN EMPLOYEE HAVING AN UNCOMMON TOUR OF DUTY, SUCH AS 9 HOURS MONDAY THROUGH FRIDAY AND 3 HOURS ON SATURDAY, WOULD HAVE DEDUCTIONS MADE FROM HIS PAY FOR ABSENCE IN A NON-PAY STATUS ON EXACTLY THE SAME BASIS AS AN EMPLOYEE WHO WORKED THE REGULAR SIX 8-HOUR DAYS IN THE WORK WEEK.

ANOTHER CLASS OF EMPLOYEES HAVING AN UNCOMMON TOUR OF DUTY ARE "ON CALL" FIRE-FIGHTERS WORKING ON THE TWO PLATOON SYSTEM, WHOSE WORK REQUIRES THEM TO REMAIN AT, OR WITHIN THE CONFINES OF, THEIR POSTS OF DUTY MORE THAN 40 HOURS PER WEEK, BUT DOES NOT REQUIRE THAT ALL THEIR TIME BE DEVOTED TO ACTUAL WORK. THEIR TOUR OF DUTY REQUIRES THEM TO REPORT FOR WORK AT 8:00 A.M. AND REMAIN ON DUTY FOR 24 HOURS UNTIL 8:00 A.M. THE NEXT DAY, FOLLOWING WHICH THEY ARE GIVEN A 24-HOUR REST PERIOD BEFORE REPORTING FOR DUTY AGAIN. SUCH EMPLOYEES ARE PAID ADDITIONAL COMPENSATION UNDER SECTION 3 OF THE WAR OVERTIME PAY ACT OF 1943 ( PUBLIC LAW 49, 78TH CONGRESS).

THE FACTS OF THE PARTICULAR CASE WITH RESPECT TO WHICH YOUR RULING IS DESIRED IN ORDER THAT PROPER PAYMENT CAN BE MADE ARE AS FOLLOWS:

AN EMPLOYEE, JR. FIREFIGHTER, CPC-5, $1680 PER ANNUM, WITH A TOUR OF DUTY FROM 8:00 A.M. TO :00 A.M. ON THE NEXT DAY, WITH THE FOLLOWING 24 HOURS OFF, HAS BEEN SEPARATED AND IS ENTITLED TO 19 HOURS OF TERMINAL LEAVE PAY BEGINNING AT 8:00 A.M. ON 1 JUNE 1944.

THE SAME PROBLEM OF PAYING COMPENSATION FOR PART OF A TOUR OF DUTY ALSO ARISES WHEN A FIREFIGHTER IS IN A NON-PAY STATUS FOR SEVERAL HOURS.

THE QUESTION IS PRESENTED WHETHER EACH DAY'S PAY SHOULD BE CONSIDERED SEPARATELY OR TWO DAY'S PAY CONSIDERED AS A UNIT, IN VIEW OF YOUR DECISION IN 22 C.G. 119 WHICH SEEMED TO ESTABLISH THAT TWO DAYS ARE TO BE CONSIDERED AS A UNIT IN THE CASE OF AN EMPLOYEE ON DUTY 24 HOURS AND OFF DUTY FOR THE FOLLOWING 24 HOURS.

ONE METHOD OF COMPUTING THIS EMPLOYEE'S COMPENSATION FOR THE 19 HOURS WOULD BE TO PAY HIM $5.50 ( 1/360 OF $1,680 PLUS $300 ADDITIONAL COMPENSATION) FOR THE 16 HOURS ON JUNE ST, AND $2.06 FOR THE 3 HOURS ON JUNE 2ND. THUS, THE GROSS HOURS EXTENDING OVER THE TWO CALENDAR DAYS, WOULD BE $7.56.

USING THIS METHOD, IT IS POINTED OUT, AS AN EXAMPLE, THAT IF AN EMPLOYEE HAVING A 24-HOUR TOUR OF DUTY FROM 8:00 A.M. ONE DAY UNTIL 8:00 A.M. THE NEXT DAY, DID NOT REPORT FOR WORK UNTIL 9:00 A.M. ON JUNE ST AND WAS CONSIDERED IN A NON-PAY STATUS FOR THE ONE HOUR, HE WOULD LOSE 1/16 OF 1/360 OF HIS ANNUAL COMPENSATION PLUS ADDITIONAL COMPENSATION. IF THE SAME EMPLOYEE WORKED UNTIL 7:00 A.M. ON JUNE 2ND AND WAS CONSIDERED IN A NON-PAY STATUS FOR THE ONE HOUR FROM 7:00 TO 8:00 A.M., HE WOULD LOSE 1/16 OF A DAY'S PAY FOR THE ONE HOUR IN A NON PAY STATUS ON JUNE ST AND 1/8 OF A DAY'S PAY, OR TWICE AS MUCH, FOR THE ONE HOUR IN A NON-PAY STATUS ON JUNE 2ND, EVEN THOUGH BOTH ABSENCES OCCURRED IN THE SAME TOUR OF DUTY. UNDER THIS METHOD AN EMPLOYEE IN A NON-PAY STATUS FOR ONE HOUR WHO HAS A TOUR OF DUTY FROM MIDNIGHT TO MIDNIGHT WOULD LOSE ONLY 1/24 OF ONE DAY'S COMPENSATION.

IT IS BELIEVED THAT THE ONLY EQUITABLE METHOD, BOTH TO THE GOVERNMENT AS WELL AS TO THE EMPLOYEE, TO BE USED IN THE CASE PRESENTED WOULD BE ONE OF THE FOLLOWING: (1) THE EMPLOYEE IS ENTITLED TO RECEIVE 19/24 OF TWO DAY'S BASE PAY PLUS ADDITIONAL COMPENSATION FOR THE 19 HOURS, OR $8.70 ( 19/24 OF 2/360 OF $1,780 PLUS $300). (2) HENCE THE EMPLOYEE IS PAID FOR BOTH DAYS WORKED AND DAYS OFF DUTY, FOR PURPOSES OF COMPUTING PAY IT CAN BE CONSIDERED THAT HE IS IN A PAY STATUS 12 HOURS EACH DAY (24 HOURS DIVIDED BY 2). ON THIS BASIS HE WOULD BE IN A PAY STATUS FOR 12 HOURS ON JUNE ST AND 7 HOURS ON JUNE 2ND, AND HE WOULD BE ENTITLED TO $5.50 ( 1/360 OF $1,680 PLUS $300) FOR JUNE ST, AND $3.20 ( 7/12 OF 1/360 OF $1,680 PLUS $300) FOR JUNE 2ND, OR A TOTAL OF $8.70. (3) THE EMPLOYEE IS REQUIRED TO WORK A TOTAL OF 360 HOURS IN A CALENDAR MONTH FOR WHICH HE RECEIVES $140. BASIC COMPENSATION AND $25. ADDITIONAL COMPENSATION, OR ?45833 AN HOUR. NINETEEN HOURS AT ?45833 EQUALS $8.70.

THE MATTER OF REQUIRING A DEDUCTION FROM TOTAL COMPENSATION BECAUSE OF LEAVE OF ABSENCE WITHOUT PAY SPECIFICALLY IS NOT CONTROLLED BY STATUTE, EXCEPT FOR UNAUTHORIZED ABSENCE ON THIRTY-FIRST DAY OF A MONTH. WHILE IT IS TRUE, AS YOU STATE, THAT UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 30, 1906, 34 STAT. 763, COMPENSATION FOR ONE DAY OF AN EMPLOYEE PAID ON AN ANNUAL BASIS IS 1/360 OF THE ANNUAL RATE, THAT STATUTE IS NOT TO BE APPLIED AS TO PRECLUDE AN EQUITABLE AND JUST RULE FOR MAKING DEDUCTIONS FROM TOTAL COMPENSATION FOR A FRACTIONAL DAY'S OR WEEK'S ABSENCE WITHOUT PAY OF FULL TIME EMPLOYEES WHOSE ADMINISTRATIVELY FIXED WORKWEEK IS IRREGULAR WITH VARYING LENGTHS OF WORKDAYS DURING THE WEEK. THE DECISION OF JANUARY 21, 1943, 22 COMP. GEN. 683, TO WHICH YOU REFER, APPLIED THE OVERTIME LAW OF DECEMBER 22, 1942, TO EMPLOYEES WITH A REGULAR 48-HOUR ADMINISTRATIVE WORKWEEK OF SIX 8-HOUR DAYS AND DOES NOT CONTROL THE SITUATION HERE PRESENTED. THEREFORE, IN THE LIGHT OF WHAT IS STATED ABOVE, THIS OFFICE IS NOT REQUIRED TO OBJECT TO THE ADOPTION OF A METHOD OF COMPUTATION SUCH AS THAT SUGGESTED IN THE NINTH PARAGRAPH OF YOUR LETTER FOR EMPLOYEES OF THE CLASS REFERRED TO THEREIN.

WITH RESPECT TO THE OTHER CLASS OF EMPLOYEES ABOUT WHICH YOU INQUIRE, NAMELY, FIRE FIGHTERS, YOU INVITE ATTENTION TO THE DECISION OF AUGUST 5, 1942, 22 COMP. GEN. 119, WHICH HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE WORD "DAYS" AS USED IN THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, MEANS CALENDAR DAYS AND NOT WORK DAYS, AND, THEREFORE, EMPLOYEES ASSIGNED TO SHIFTS OF 24 HOURS OF CONTINUOUS DUTY ON ALTERNATE DAYS, FROM 8 P.M. ONE DAY UNTIL 8 P.M. THE FOLLOWING DAY, WITH A 24-HOUR REST PERIOD IN BETWEEN--- THUS WORKING A PART OF EACH CALENDAR DAY--- SHOULD BE CHARGED 2 DAYS' ANNUAL OR SICK LEAVE FOR AN ABSENCE ON ANNUAL OR SICK LEAVE FOR ONE SUCH DUTY PERIOD AND AN ABSENCE FOR 1 WEEK SHOULD BE CHARGED AS 7 DAYS' LEAVE WHERE SUNDAYS ARE INCLUDED WITHIN THE REGULAR TOUR OF DUTY.

THAT DECISION DID NOT CONSIDER THE QUESTION INVOLVED IN THE COMPUTATION OF COMPENSATION DUE DURING TERMINAL ANNUAL LEAVE OF AN EMPLOYEE WITH THE TOUR OF DUTY OF 24 HOURS SUCH AS IN THE CASE OF THE FIRE FIGHTER PRESENTED IN YOUR LETTER. IN SUCH A CASE AS HERE PRESENTED, THERE REASONABLY WOULD APPEAR FOR ADOPTION RULE (1) SUGGESTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, THE APPLICATION OF WHICH RULE WOULD RESULT IN A PAYMENT OF $8.70 FOR 19 HOURS TERMINAL ANNUAL LEAVE, THEREBY CHARGING TERMINAL ANNUAL LEAVE ON SUBSTANTIALLY THE SAME BASIS AS THE LEAVE WHICH WAS INVOLVED IN THE ABOVE-QUOTED DECISION.