B-49524, MAY 23, 1945, 24 COMP. GEN. 843

B-49524, MAY 23, 1945, 24 COMP. GEN. 843

COMPENSATION - 40-HOUR WEEK EMPLOYEES RELIEVED FROM WORKING ON SATURDAY BECAUSE OF CLOSING OF OFFICES BY EXECUTIVE ORDER PER HOUR EMPLOYEES WITHIN THE PURVIEW OF THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, AND THE HOLIDAY PAY STATUTE OF JUNE 29, 1938, WHO WERE RELIEVED OR PREVENTED FROM WORKING SATURDAY AFTERNOON, APRIL 14, 1945-- THE SIXTH AND OVERTIME DAY OF THEIR REGULAR WARTIME 48-HOUR WORKWEEK-- BECAUSE OF THE CLOSING OF THE EXECUTIVE DEPARTMENTS AND AGENCIES BY ORDER OF THE PRESIDENT, ARE ENTITLED, UNDER SAID HOLIDAY PAY STATUTE, TO BE PAID REGULAR STRAIGHT TIME PAY FOR SUCH SATURDAY AFTERNOON, PROVIDED THEY WERE PRESENT DURING THE DUTY HOURS IMMEDIATELY PRECEDING AND FOLLOWING THE PERIOD INVOLVED. 24 COMP. GEN. 254, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO JULIAN D. SEARS, DEPARTMENT OF THE INTERIOR, MAY 23, 1945:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 30, 1945, AS FOLLOWS:

THE FEDERAL REGISTER FOR SATURDAY, APRIL 14, 1945, CONTAINED THE FOLLOWING:

ORDER

(CLOSING OF EXECUTIVE DEPARTMENTS AND AGENCIES)

APRIL 13, 1945. BY ORDER

OF THE PRESIDENT, ALL EXECUTIVE DEPARTMENTS AND

AGENCIES WILL BE CLOSED ON SATURDAY AFTERNOON, APRIL 14. THIS

ORDER SHALL BE PUBLISHED IN THE FEDERAL REGISTER.

EDWARD R. STETTINIUS, JR.

IN COMPLIANCE WITH THAT ORDER AND WITH AN ORDER PROMULGATED BY THE SECRETARY OF THE INTERIOR, THE GEOLOGICAL SURVEY OFFICES WERE CLOSED AT NOON ON SATURDAY, APRIL 14. BY THAT CLOSING EMPLOYEES OF THE SURVEY'S MAP -REPRODUCTION PLANT WHO ARE PAID UNDER AN HOURLY-RATE PAY SCALE ESTABLISHED BY A WAGE BOARD WERE PREVENTED FROM WORKING THEIR USUAL SATURDAY AFTERNOON FOUR-HOUR PERIOD FROM 12:15 TO 4:15 P.M.

AT FIRST IT SEEMED TO ME CERTAIN THAT THIS GROUP OF WAGE-HOUR EMPLOYEES COULD RECEIVE NO PAY FOR THE FOUR AFTERNOON HOURS ON APRIL 14, IN VIEW OF YOUR DECISION 24 COMP. GEN. 254 AND YOUR FURTHER DECISION OF FEBRUARY 3, 1945, B-47163 (BOTH IN REFERENCE TO THIS SAME GROUP OF EMPLOYEES), AND PARTICULARLY IN VIEW OF YOUR STATEMENT "WHILE SATURDAY--- THE SIXTH AND OVERTIME DAY OF THE WEEK--- IS A DAY OF WORK OF THE EMPLOYEES INVOLVED PURSUANT TO AN ADMINISTRATIVE ORDER TO WORK 48 HOURS PER WEEK DUE TO THE WAR EMERGENCY, FOR WHICH OVERTIME COMPENSATION IS PAYABLE (BEYOND THE REGULAR 40-HOUR WEEKLY TOUR OF DUTY) * * * SATURDAY IS NOT A PART OF THE REGULAR TOUR OF DUTY OF THE EMPLOYEES AND ACCORDINGLY COMPENSATION MAY NOT BE PAID FOR THAT OVERTIME DAY, WHETHER OR NOT IT BE A HOLIDAY, UNLESS THE EMPLOYEE ACTUALLY PERFORMS "LABOR" * * *.'

HOWEVER, MY ATTENTION HAS NOW BEEN CALLED TO PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938 (52 STAT. 1246), AND ALSO TO YOUR DECISION 23 COMP. GEN. 415 WHICH AUTHORIZED THE PAYMENT OF REGULAR STRAIGHT-TIME PAY TO CERTAIN WAGE-HOUR EMPLOYEES "FOR CHRISTMAS DAY 1943 EVEN THOUGH THAT DAY IS SATURDAY * * *.' I FIND MYSELF PUZZLED TO RECONCILE THE PRINCIPLE REPRESENTED AND THE AUTHORIZATION GIVEN IN THAT DECISION WITH THE STATEMENTS MADE IN THE LATER DECISIONS 24 COMP. GEN. 254 AND B 47163 UNLESS THERE IS INTENTION TO DIFFERENTIATE BETWEEN (A) DAYS (EVEN SATURDAYS) OR PARTS THEREOF ON WHICH EMPLOYEES ARE ACTUALLY "PREVENTED FROM WORKING" SOLELY BECAUSE THE DEPARTMENTS ARE FORMALLY AND OFFICIALLY CLOSED IN OBSERVANCE OF A HOLIDAY OR IN ACCORDANCE WITH EXECUTIVE ORDER, IN WHICH CASE WAGE-HOUR EMPLOYEES MAY BE PAID REGULAR STRAIGHT-TIME FOR THE TIME THEY WOULD OTHERWISE HAVE WORKED; AND (B) SATURDAYS OR PARTS THEREOF (WHETHER NORMAL, OR LEGAL HOLIDAYS ORDERED TO BE CONSIDERED AS WORK DAYS, OR INVOLVING PERIODS DURING WHICH EMPLOYEES ARE ADMINISTRATIVELY "EXCUSED") ON WHICH THE DEPARTMENTS REMAIN OPEN AND EMPLOYEES ARE THEREBY AFFORDED OPPORTUNITY TO WORK, IN WHICH CASE THE WAGE -HOUR EMPLOYEES MAY NOT RECEIVE COMPENSATION AT ANY RATE FOR ANY TIME ON SUCH DAYS DURING WHICH THEY DO NOT ACTUALLY PERFORM LABOR.

IF SUCH A DIFFERENTIATION IS INTENDED, THEN THE CONDITIONS RECITED FOR THE AFTERNOON OF APRIL 14 APPEAR TO FALL WITHIN CATEGORY (A) DESCRIBED ABOVE. ON THAT SURMISE, AND IN ORDER TO ASSURE EQUITABLE TREATMENT FOR THE EMPLOYEES, THERE HAS BEEN PREPARED AND PLACED BEFORE ME FOR SIGNATURE, AS AUTHORIZED CERTIFYING OFFICER, THE ENCLOSED PAY ROLL IN THE AMOUNT OF $461.30 (COMPUTED AT STRAIGHT-TIME RATES), REPRESENTING WAGES FOR FOUR HOURS (12:15 TO 4:15 P.M.) ON SATURDAY, APRIL 14, 1945, DURING WHICH TIME THE EMPLOYEES LISTED THEREON (WHO HAD ACTUALLY WORKED FOR 4 HOURS IN THE FORENOON OF THAT DAY, AT THE TIME-AND-A-HALF RATE AND WERE IN A PAY STATUS ON THE FOLLOWING MONDAY, THE NEXT WORKING DAY) WERE PREVENTED FROM WORKING BY REASON OF THE CLOSING OF THE DEPARTMENT OF THE INTERIOR IN ACCORDANCE WITH THE ORDER APPEARING IN THE FEDERAL REGISTER FOR APRIL 14. (NO EMPLOYEES ARE INCLUDED IN THIS LIST, WHO WERE ABSENT THE ENTIRE DAY, BECAUSE OF THE PRINCIPLE INDICATED IN 23 COMP. GEN. 415 THAT, IN ORDER TO BENEFIT FROM THE HOLIDAY PROVISION, SUCH AN EMPLOYEE MUST HAVE ACTUALLY WORKED IN THE IMMEDIATELY PRECEDING AND SUCCEEDING NORMAL WORK PERIODS.) I SHALL APPRECIATE A DECISION FROM YOU AS TO WHETHER I AM AUTHORIZED TO CERTIFY THIS VOUCHER FOR PAYMENT.

THE DISTINCTION BETWEEN THE RULINGS REFERRED TO IN THE THIRD AND FOURTH PARAGRAPHS OF YOUR LETTER ARISES FROM THE DIFFERENCE IN THE UNDERLYING FACTS--- IN THE ONE CASE THE HOLIDAY PAY ACT APPROVED JUNE 29, 1938, 52 STAT. 1246, WAS APPLICABLE, AND IN THE OTHER IT WAS NOT.

THE EARLIER DECISION, 23 COMP. GEN. 415, INVOLVED CHRISTMAS DAY IN 1943, WHICH FELL ON A SATURDAY. CONTRARY TO THE WARTIME PRACTICE WITH RESPECT TO ALL OTHER NORMAL HOLIDAYS, ON CHRISTMAS DAY THE EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS GENERALLY WERE, IN FACT, RELIEVED FROM WORKING BECAUSE OF THE OCCURRENCE OF THAT HOLIDAY; AND, UNDER THE EXPRESS LANGUAGE OF THE HOLIDAY PAY ACT, THOSE EMPLOYEES SUBJECT TO THE ACT WHO ARE PAID BY THE DAY, THE HOUR, OR ON A PIECEWORK BASIS WERE HELD TO BE ENTITLED TO THE SAME PAY FOR CHRISTMAS DAY IN 1943 "AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED"--- IN OTHER WORDS, FOR A DAY AT STRAIGHT TIME, SINCE THAT DAY FELL WITHIN THE THEN ASSIGNED WORKWEEK.

THE CONDITIONS DETERMINING THE DAYS ON WHICH THE STATUE APPLIES ARE TWO, NAMELY (1) THAT THE EMPLOYEES BE "RELIEVED OR PREVENTED FROM WORKING" AND (2) THE SOLE CAUSE THEREOF IS THE OCCURRENCE (A) OF A HOLIDAY SUCH AS THE NORMALLY ESTABLISHED HOLIDAYS LISTED, (B) OF ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER, OR (C) OF ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER.

THE 1944 DECISION, 24 COMP. GEN. 254, INVOLVED THE SITUATION WHICH HAS BECOME THE PRACTICE DURING THE WAR PERIOD WHEN THE EMPLOYEES GENERALLY ARE NOT RELIEVED OR PREVENTED FROM WORKING ON HOLIDAYS (ASIDE FROM CHRISTMAS DAY) BUT, ON THE CONTRARY, GENERALLY ARE DIRECTED AND REQUIRED TO WORK. THE DECISION WAS ADDRESSED PRIMARILY TO THE PROBLEM SUBMITTED WITH RESPECT TO THE APPLICATION OF THE NEW ANNUAL AND SICK LEAVE REGULATIONS AND DID NOT INVOLVE THE HOLIDAY PAY ACT. SO FAR AS THE PORTION QUOTED IN THE THIRD PARAGRAPH OF YOUR LETTER UNDERTAKES TO STATE A GENERAL RULE, IT SHOULD, OF COURSE, BE QUALIFIED WITH A FURTHER PROVISO TO PERMIT PAYMENT IN ANY CASES STILL ARISING WHICH MEET THE CONDITIONS OF THE HOLIDAY PAY ACT.

LIKEWISE, THE DECISION OF FEBRUARY 3, 1945, B-47163, DID NOT INVOLVE THE HOLIDAY PAY ACT FOR THE REASON THE EMPLOYEES WERE EXCUSED FOR A PORTION OF THE AFTERNOON OF SATURDAY, DECEMBER 23, 1944, MERELY BY ADMINISTRATIVE ORDER AND NOT UNDER ANY OF THE CONDITIONS OF THE HOLIDAY PAY ACT, AS ABOVE OUTLINED AND ENUMERATED UNDER (2) (A), (B), AND (C).

TURNING TO THE MATTER NOW SUBMITTED, AS INDICATED IN YOUR OPENING PARAGRAPH, THE EMPLOYEES WERE RELIEVED OR PREVENTED FROM WORKING ON SATURDAY AFTERNOON, APRIL 14, 1945, AND THE REASON THEREOF WAS THE CLOSING OF DEPARTMENTS BY AN ORDER OF THE EXECUTIVE. THESE BEING THE REQUISITES SPECIFIED BY THE HOLIDAY PAY ACT, THE EMPLOYEES ELIGIBLE (THAT IS THOSE (A) OF THE CATEGORIES LISTED IN THE ACT, (B) WHO WERE ABSENT SOLELY BECAUSE OF THE CONDITIONS JUST STATED, AS EVIDENCED BY THEIR PRESENCE DURING THE DUTY HOURS IMMEDIATELY PRECEDING AND FOLLOWING THE PERIOD IN QUESTION) ARE ENTITLED TO THE STRAIGHT TIME PAY CALLED FOR BY THE STATUTE, AS HELD IN 23 COMP. GEN. 415. UPON THE UNDERSTANDING THAT THE VOUCHER FORWARDED WITH YOUR LETTER WAS PREPARED ACCORDING TO THAT RULE, IT LAWFULLY MAY BE CERTIFIED FOR PAYMENT.