B-51218, AUGUST 7, 1945, 25 COMP. GEN. 151

B-51218, AUGUST 7, 1945, 25 COMP. GEN. 151

FEDERAL EMPLOYEES PAY ACT OF 1945 IN THE RECORDING OF CHARGES FOR ANNUAL OR SICK LEAVE TAKEN BY HEADS OF DEPARTMENTS, ETC., OF THE GOVERNMENT, WHO ARE EXEMPT FROM THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND THE REGULATIONS THEREUNDER, ONE DAY'S LEAVE SHOULD BE CHARGED FOR ABSENCE ALL DAY ON SATURDAY--- A DAY FOR WHICH 1/360 OF THEIR ANNUAL SALARY IS PAID IN ACCORDANCE WITH SECTION 6 OF THE ACT OF JUNE 30, 1906--- ALTHOUGH THAT DAY IS THE "OVERTIME" DAY WITHIN THE ADMINISTRATIVE WORKWEEK OF THE AGENCY INVOLVED AND NO LEAVE IS CHARGEABLE FOR ABSENCES THEREON OF EMPLOYEES SUBJECT TO SAID PAY ACT. EMPLOYEES PERMITTED TO TAKE COMPENSATORY TIME OFF FROM DUTY IN LIEU OF OVERTIME COMPENSATION FOR IRREGULAR OR OCCASIONAL DUTY IN EXCESS OF 48 HOURS IN ANY REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK, UNDER AUTHORITY OF SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, MAY BE GRANTED SUCH COMPENSATORY TIME OFF DURING THE OVERTIME HOURS ( SATURDAY MORNING) OF THE ADMINISTRATIVE WORKWEEK. THE COMPENSATORY TIME OFF IN LIEU OF OVERTIME COMPENSATION WHICH MAY BE GRANTED AN EMPLOYEE FOR IRREGULAR OR OCCASIONAL WORK IN EXCESS OF 48 HOURS PER WEEK, PURSUANT TO SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, SHOULD BE GRANTED AT THE RATE OF AN HOUR FOR EACH HOUR OF OVERTIME WORKED, RATHER THAN ON THE BASIS OF ONE AND ONE-HALF HOURS FOR AN HOUR OF OVERTIME. ALTHOUGH AN EMPLOYEE MAY BE ADMINISTRATIVELY EXCUSED DURING THE PERIOD OF HIS BASIC 40-HOUR WORKWEEK WITHOUT A CHARGE TO LEAVE IN CERTAIN CIRCUMSTANCES (BLOOD DONATIONS, DRAFT SUMMONS, EXCESSIVE HEAT, ETC. (, OVERTIME COMPENSATION FOR THE OVERTIME PERIOD OF AN ADMINISTRATIVE WORKWEEK MAY NOT BE PAID UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 TO AN EMPLOYEE ADMINISTRATIVELY EXCUSED DURING THAT PERIOD, PAYMENT OF OVERTIME COMPENSATION BEING CONDITIONED UPON ACTUAL PERFORMANCE OF DUTY. AN OFFICER OR EMPLOYEE NOT WITHIN THE EXCEPTIONS TO THE $10,000 PER ANNUM AGGREGATE COMPENSATION LIMITATION OF SECTION 603 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 MAY NOT BE PAID COMPENSATION FOR ANY BIWEEKLY PAY PERIOD UNDER ANY OF THE PROVISIONS OF THE ACT WHICH WOULD CAUSE THE RATE FOR SUCH PERIOD TO EXCEED $384.61 ( 1/26 OF $10,000). A COMPENSATION DIFFERENTIAL PAID TO AN OFFICER OR EMPLOYEE ON DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES SHOULD BE TAKEN INTO ACCOUNT IN APPLYING THE $10,000 PER ANNUM AGGREGATE COMPENSATION LIMITATION OF SECTION 603 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. IN VIEW OF THE PROVISIONS OF THE CURRENT LEAVE REGULATIONS AUTHORIZING THE CREDITING AND CHARGING OF ANNUAL AND SICK LEAVE IN UNITS OF HOURS, EMPLOYEES REQUIRED TO WORK DAILY TOURS OF DUTY OF VARYING LENGTHS FROM DAY TO DAY MAY BE CHARGED LEAVE ON AN HOURLY BASIS, RATHER THAN ON THE BASIS OF ONE DAY'S LEAVE FOR ONE DAY'S ABSENCE REGARDLESS OF THE LENGTH OF THE WORKDAY INVOLVED. THE RULE TO THE CONTRARY STATED IN 16 COMP. GEN. 600, 20 ID. 170, AND 21 ID. 621 NEED NO LONGER BE APPLIED. CONSULTANTS EMPLOYED ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS IN POSITIONS SUBJECT TO THE CLASSIFICATION ACT AT BASIC RATES DERIVED FROM PER ANNUM RATES ARE ENTITLED TO INCREASES IN SUCH BASIC COMPENSATION RATES UNDER SECTION 405 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. WHERE IT IS NECESSARY FOR EMPLOYEES AT CERTAIN FIELD OFFICES OF AN AGENCY TO WORK TOURS OF DUTY DIFFERING FROM THE SCHEDULE FOR EMPLOYEES OF THE AGENCY GENERALLY, THE REQUIREMENTS OF SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 THAT HEADS OF DEPARTMENTS, ETC., ESTABLISH A BASIC 40-HOUR WORKWEEK WILL BE REGARDED AS HAVING BEEN MET IF BY ADMINISTRATIVE ORDER THERE BE PRESCRIBED THE GENERAL WORKWEEK PATTERN FOR FIELD OFFICERS TO FOLLOW IN PRESCRIBING DAILY TOURS OF DUTY AS THE NEEDS OF THE SERVICE MAY REQUIRE WITHIN SUCH PRESCRIBED PATTERN. THE NIGHT PAY DIFFERENTIAL AUTHORIZED BY SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR EMPLOYEES ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY ANY PART OF WHICH FALLS BETWEEN 6 P.M. AND 6 A.M. IS PAYABLE EVEN THOUGH THE REGULARLY SCHEDULED TOUR OF DUTY EXTEND BEYOND 6 P.M. ON ONLY ONE OF THE EMPLOYEE'S BASIC WORKWEEK, AND NOTWITHSTANDING THE COST OF ADMINISTERING THE LAW. FOR THE PURPOSE OF THE AUDIT OF NIGHT DIFFERENTIAL PAYMENTS AUTHORIZED BY SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, IT WILL BE SUFFICIENT IF A POSITIVE STATEMENT APPEARS ON THE PAY ROLL SHOWING THE NUMBER OF HOURS OF EMPLOYMENT, WITHIN THE BASIC WORKWEEK, BETWEEN 6 P.M. AND 6 A.M. DURING THE PAY PERIOD INVOLVED, PREFACED BY THE SYMBOL N.W. (NIGHT WORK.) THE PROVISIONS OF SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, UNDER WHICH WAR SERVICE, ETC., APPOINTEES MAY COUNT MILITARY SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS UPON RESTORATION, REEMPLOYMENT, OR REINSTATEMENT IN POSITIONS SUBJECT THERETO, RELATE EXCLUSIVELY TO WITHIN- GRADE SALARY ADVANCEMENTS, AND HAVE NO EFFECT UPON EXISTING RULES REGARDING OTHER REEMPLOYMENT BENEFITS, SUCH AS RESTORATION OF SICK LEAVE.

COMPTROLLER GENERAL WARREN TO THE PRICE ADMINISTRATOR, OFFICE OF PRICE ADMINISTRATION, AUGUST 7, 1945:

I HAVE YOUR LETTER OF JULY 17, 1945, SUBMITTING FOR DECISION A NUMBER OF QUESTIONS ARISING UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, PUBLIC LAW 106, AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION ISSUED PURSUANT THERETO.

THE QUESTIONS WILL BE STATED AND ANSWERED IN THE ORDER PRESENTED.

1. IN ACCORDANCE WITH SECTION 402 (A) OF THE CIVIL SERVICE REGULATIONS, LEAVE OF ABSENCE WITH PAY SHALL NOT BE CHARGED FOR ANY ABSENCE WHICH DOES NOT OCCUR DURING THE FORTY HOURS PRESCRIBED AS THE BASIC WORKWEEK. THE ADMINISTRATOR, AS HEAD OF THE AGENCY, IS HOWEVER, SPECIFICALLY EXEMPTED FROM THE PROVISIONS OF BOTH THE ACT AND THE REGULATIONS. SHOULD ANNUAL OR SICK LEAVE BE CHARGED TO THE ADMINISTRATOR WHEN HE IS ABSENT ON SATURDAY MORNING, WHICH IS THE OVERTIME PORTION OF THE ADMINISTRATIVE WORKWEEK?

SECTION 402 (A), PART IV, CHAP. I OF THE CIVIL SERVICE REGULATIONS, DEPARTMENTAL CIRCULAR NO. 529, DATED JUNE 30, 1945, PROVIDES, SO FAR AS HERE MATERIAL, THAT "LEAVE OF ABSENCE WITH PAY SHALL NOT BE CHARGED FOR ANY ABSENCE WHICH DOES NOT OCCUR DURING THE FORTY HOURS PRESCRIBED AS THE BASIC WORKWEEK.'

OF COURSE, THAT REGULATION RELATES ONLY TO OFFICERS AND EMPLOYEES NOT EXEMPTED FROM THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. SECTION 102 (A) OF THE STATUTE, 59 STAT. 296, PROVIDES: "THIS ACT SHALL NOT APPLY TO * * * (3) HEADS OF DEPARTMENTS OR OF INDEPENDENT ESTABLISHMENTS OR AGENCIES OF THE FEDERAL GOVERNMENT," WHICH EXEMPTION WOULD INCLUDE THE PRICE ADMINISTRATOR, THE HEAD OF THE OFFICE OF PRICE ADMINISTRATION. THEREFORE, THE HOURS OF WORK AND THE PAYMENT OF SALARY OF THE PRICE ADMINISTRATOR ARE NOT CONTROLLED BY THE PROVISIONS OF THE NEW PAY STATUTE OR THE REGULATION PRESCRIBED UNDER AUTHORITY THEREOF. SEE SECTION 604 (C) OF THE STATUTE, 59 STAT. 303, WHICH HAS THE EFFECT OF CONTINUING IN OPERATION, SO FAR AS THE PAYMENT OF SALARY TO HEADS OF DEPARTMENTS, ETC., IS CONCERNED, THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 30, 1906, 34 STAT. 763.

WHILE THE HEAD OF AN AGENCY APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, IS AN "OFFICER" AS DISTINGUISHED FROM AN "EMPLOYEE" AND IS ENTITLED TO THE COMPENSATION ATTACHED TO THE OFFICE AS AN INCIDENT TO THE TITLE TO THE OFFICE, RATHER THAN AS AN INCIDENT TO THE ACTUAL RENDERING OF SERVICE (24 COMP. GEN. 45, AND COURT DECISIONS THEREIN CITED,) IN THE RECORDING OF CHARGES FOR LEAVE OF ABSENCE TAKEN BY SUCH AN OFFICER PURSUANT TO THE LEAVE LAWS AND REGULATIONS, ONE DAY'S LEAVE SHOULD BE CHARGED FOR ABSENCE ALL DAY ON SATURDAY--- A DAY FOR WHICH HE IS PAID 1/360 OF HIS ANNUAL SALARY--- WHERE, AS IN THE OFFICE OF THE PRICE ADMINISTRATION, IT IS A WORKDAY FOR THE AGENCY INVOLVED. THEREFORE, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

2. YOU RULED (24 C.G. 456) THAT MERE TRAVEL, NOT INVOLVING THE PERFORMANCE OF ANY ACTUAL DUTY, DURING HOURS OUTSIDE THE REGULAR WORKWEEK DID NOT ENTITLE THE EMPLOYEE TO OVERTIME COMPENSATION UNDER THE WAR OVERTIME PAY ACT OF 1943. ON THE OTHER HAND, EMPLOYEES SUBJECT TO THE FORTY-HOUR WEEK STATUTE OF MARCH 28, 1934, WERE HELD (24 C.G. 65) TO BE ENTITLED TO COMPENSATION FOR TRAVEL TIME ON DAYS OUTSIDE THE REGULAR TOUR OF DUTY.

A. IS AN EMPLOYEE SUBJECT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945 ENTITLED TO COMPENSATION FOR TRAVEL PERFORMED ON SATURDAY AFTERNOON AND SUNDAY, BOTH OF WHICH ARE OUTSIDE OF THE ADMINISTRATIVE WORKWEEK?

B. WOULD AN EMPLOYEE BE ENTITLED TO COMPENSATION FOR TRAVEL BEGINNING AFTER HIS REGULAR TOUR OF DUTY ON A DAY CONSTITUTING A PART OF THE BASIC WORKWEEK?

C. WOULD AN EMPLOYEE BE ENTITLED TO COMPENSATION FOR A SUNDAY SPENT IN A TRAVEL STATUS IF NO TRAVEL OR OFFICIAL DUTY WAS PERFORMED?

D. IF THE ANSWERS TO THE ABOVE QUESTIONS ARE IN THE AFFIRMATIVE, WHAT IS THE MAXIMUM NUMBER OF HOURS FOR WHICH PAYMENT CAN BE MADE ON THOSE DAYS?

E. SHOULD PAYMENT FOR TRAVEL TIME, IF PERMITTED IN THE ANSWER TO QUESTION (A), (B) OR (C) BE MADE AT THE REGULAR RATE OR AT OVERTIME RATES?

F. IN THE EVENT THAT OVERTIME COMPENSATION IS PAYABLE UNDER ANY OF THE ABOVE CONDITIONS, WILL ISSUANCE OF A TRAVEL ORDER CONSTITUTE AUTHORITY FOR THE PAYMENT, OR MUST THERE BE, IN ADDITION, THE AUTHORIZATION OR APPROVAL CONTEMPLATED BY SECTION 401 (A) OF THE REGULATIONS?

IN DECISION OF JULY 28, 1945, B-51099, 25 COMP. GEN. 121, TO THE SECRETARY OF AGRICULTURE, THERE WAS ANSWERED IN THE AFFIRMATIVE A QUESTION (NUMBERED 8) READING, IN MATERIAL PART, AS FOLLOWS:

* * * IN OTHER WORDS, IF EMPLOYEES COVERED BY THE PAY ACT OF 1945 ARE IN TRAVEL STATUS DURING SATURDAY AND SUNDAY, THEY WOULD BE ENTITLED TO FOUR HOURS OVERTIME PAY ON SATURDAY ONLY. NO OVERTIME PAY OR STRAIGHT TIME PAY SHOULD BE GRANTED FOR ANY OTHER HOURS DURING SATURDAY OR SUNDAY BY MERE REASON THAT THE EMPLOYEE IS IN TRAVEL STATUS, UNLESS WORK IS ACTUALLY ORDERED OR PERFORMED. AN EMPLOYEE, HOWEVER, SINCE HE IS IN A TRAVEL STATUS DURING SUCH DAYS WOULD BE ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE. ARE THESE ASSUMPTIONS CORRECT?

ALSO, THAT DECISION DISTINGUISHES BETWEEN EMPLOYEES WHOSE COMPENSATION IS COMPUTED AND PAID PURSUANT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND EMPLOYEES IN THE TRADES AND OCCUPATIONS WHOSE COMPENSATION IS COMPUTED AND PAID PURSUANT TO THE ACT OF MARCH 28, 1934, 48 STAT. 522, CONSIDERATION HAVING BEEN GIVEN IN THAT CONNECTION TO THE DECISIONS CITED IN THAT QUESTION.

THEREFORE, QUESTIONS A, B, AND C ARE ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTIONS D, E, AND F.

3. THE ACT AUTHORIZES THE HEAD OF THE AGENCY TO PRESCRIBE REGULATIONS PERMITTING THE EMPLOYEES TO ELECT COMPENSATORY TIME OFF FROM DUTY IN LIEU OF COMPENSATION FOR IRREGULAR OR OCCASIONAL DUTY IN EXCESS OF 48 HOURS.

A. MAY THE EMPLOYEE ELECT TO TAKE COMPENSATORY TIME OFF FROM DUTY DURING THE OVERTIME HOURS ( SATURDAY MORNING) OF THE ADMINISTRATIVE WORKWEEK?

B. SHOULD COMPENSATORY TIME OFF BE GRANTED AT THE RATE OF ONE HOUR FOR EACH HOUR OF OVERTIME WORKED, OR MAY IT BE GRANTED ON THE BASIS OF 1 1/2 HOURS FOR EACH HOUR OF OVERTIME WORKED?

A. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE, SUBJECT TO THE CONDITIONS INDICATED IN THE ANSWER TO QUESTION 4, DECISION ON JULY 28, 1945, B-51099, SUPRA, TO THE SECRETARY OF AGRICULTURE.

B. IN DECISION OF DECEMBER 21, 1943, 23 COMP. GEN. 451, THE FOLLOWING RULE WAS STATED UNDER THE WAR OVERTIME PAY ACT OF 1943 (QUOTING FROM THE SYLLABUS):)

WHILE NEITHER THE WAR OVERTIME PAY ACT OF 1945 NOR THE REGULATION THEREUNDER, SPECIFIES THE AMOUNT OF COMPENSATORY TIME OFF FROM DUTY THAT MUST BE GRANTED ADMINISTRATIVELY FOR WORK OR A DUTY STATUS IN EXCESS OF 48 HOURS PER WEEK, PER ANNUM EMPLOYEES WHO ACTUALLY WORK EXCESS OVERTIME--- THAT IS, ACTUALLY ARE ENGAGED IN THEIR REGULAR DUTIES FOR TIME IN EXCESS OF 48 HOURS PER WEEK--- MAY BE GRANTED COMPENSATORY TIME OFF FROM DUTY HOUR FOR HOUR FOR THE EXCESS OVERTIME WORKED.

IN THE ABSENCE OF ANY PROVISION IN THE FEDERAL EMPLOYEES PAY ACT OF 1945, TO THE CONTRARY, THE RULE ABOVE STATED, SO FAR AS CONCERNS THE HOUR FOR HOUR BASIS FOR GRANTING COMPENSATORY TIME OFF FROM DUTY, WILL CONTROL, ALSO, IN GRANTING COMPENSATORY TIME OFF FROM DUTY UNDER THE TERMS AND CONDITIONS SPECIFIED IN THE NEW PAY STATUTE. THEREFORE, THE FIRST ALTERNATE UNDER THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE, AND THE SECOND, IN THE NEGATIVE.

4. IT HAS BEEN THE PRACTICE TO ADMINISTRATIVELY EXCUSE EMPLOYEES FROM DUTY FOR A SPECIFIED PERIOD OF TIME WITHOUT CHARGE AGAINST ANNUAL LEAVE IN CERTAIN CIRCUMSTANCES, SUCH AS, WHILE MAKING A BLOOD DONATION TO THE RED CROSS, WHILE ANSWERING A SUMMONS FROM THE DRAFT BOARD, OR BECAUSE OF EXCESSIVE HEAT. MAY EMPLOYEES BE ADMINISTRATIVELY EXCUSED DURING THE OVERTIME HOURS OF THE ADMINISTRATIVE WORKWEEK WITHOUT LOSS OF OVERTIME PAY?

SECTION 201 OF THE NEW PAY STATUTE, 59 STAT. 296, AUTHORIZES A PAYMENT OF OVERTIME COMPENSATION ,FOR ALL HOURS OF EMPLOYMENT, OFFICIALLY ORDERED OR APPROVED, IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK.' THIS CLEARLY CONTEMPLATES THE ACTUAL PERFORMANCE OF REQUIRED DUTY DURING THE PRESCRIBED OVERTIME PERIOD. HENCE, THE JUSTIFICATION FOR EXCUSING AN EMPLOYEE DURING THE PERIOD OF HIS BASIC WORKWEEK WITHOUT MAKING A CHARGE AGAINST HIS AUTHORIZED LEAVE CAN HAVE NO APPLICATION TO AUTHORIZE THE PAYMENT OF OVERTIME COMPENSATION FOR ANY PERIOD DURING WHICH NO REQUIRED SERVICES ARE PERFORMED. THEREFORE, THIS QUESTION IS ANSWERED IN THE NEGATIVE.

5. SECTION 603 (B) OF THE ACT LIMITS TO THE RATE OF $10,000 PER ANNUM WITH RESPECT TO ANY PAY PERIOD THE AMOUNT OF BASIC COMPENSATION PLUS ADDITIONAL COMPENSATION WHICH MAY BE PAID TO ANY EMPLOYEE. ARE WE CORRECT IN ASSUMING THAT THE TOTAL WAGES FOR ANY BI-WEEKLY PERIOD, INCLUDING THE REGULAR COMPENSATION FOR AN ADMINISTRATIVE WORKWEEK, COMPENSATION FOR IRREGULAR OR OCCASIONAL OVERTIME AND THE NIGHT PAY DIFFERENTIAL, SHALL NOT EXCEED 1/26 OF $10,000 OR $384.61? DOES THAT PROVISION ALSO LIMIT THE TOTAL RATE OF COMPENSATION, INCLUDING THE SALARY DIFFERENTIAL FOR DUTY OUTSIDE THE CONTINENTAL UNITED STATES, TO $10,000?

THE STATEMENT IN THE FIRST SENTENCE OF THIS QUESTION IS NOT ENTIRELY CORRECT. THERE ARE TWO EXCEPTIONS TO THE LIMITATION SPECIFICALLY PRESCRIBED BY SECTION 603 (B) OF THE NEW PAY STATUTE, 59 STAT. 303. HOWEVER, WITH THE UNDERSTANDING THAT YOUR QUESTION DOES NOT RELATE TO ANY OFFICER OR EMPLOYEE FALLING WITHIN THE PURVIEW OF EITHER OF THE EXCEPTIONS STATED IN SECTION 603 (B) OF THE STATUTE, BOTH OF THE SUBQUESTIONS IN THIS QUESTION ARE ANSWERED IN THE AFFIRMATIVE. THAT IS TO SAY, IF ON JUNE 30, 1945, THE AGGREGATE SALARY OF ANY OFFICER OR EMPLOYEE STATIONED EITHER WITHIN OR WITHOUT THE CONTINENTAL LIMITS OF THE UNITED STATES WAS $10,000 PER ANNUM OR LESS, NO AMOUNT MAY BE PAID FOR ANY BIWEEKLY PAY PERIOD UNDER ANY OF THE PROVISIONS OF THE NEW PAY STATUTE WHICH WOULD CAUSE THE RATE FOR SUCH PERIOD TO EXCEED $384.61.

6. IT IS ADMINISTRATIVELY NECESSARY TO REQUIRE CERTAIN EMPLOYEES TO WORK A SCHEDULE SIMILAR TO THE FOLLOWING: 8 HOURS EACH ON MONDAY, WEDNESDAY, THURSDAY, FRIDAY, AND SATURDAY, AND 4 HOURS ON TUESDAY. SINCE THE ADMINISTRATIVE WORKWEEK IS FROM MONDAY THROUGH SATURDAY, THE LAST 4 HOURS ON SATURDAY ARE THE OVERTIME HOURS. IN VIEW OF THE FACT THAT THE PRESENT ANNUAL AND SICK LEAVE REGULATIONS REQUIRE MAINTENANCE OF LEAVE RECORDS ON AN HOURLY BASIS, SHOULD A CHARGE OF 4 HOURS BE MADE AGAINST THE LEAVE OF AN EMPLOYEE WHO IS ABSENT ON TUESDAY OR DURING THE FIRST FOUR HOURS ON SATURDAY, OR DOES THE RULE DEFINED IN 16 C.G. 600 AND SUBSEQUENT DECISIONS STILL GOVERN?

THE DECISION OF DECEMBER 17, 1936, 16 COMP. GEN. 600, TO WHICH YOU REFER, STATED THE FOLLOWING RULE (QUOTING FROM THE SYLLABUS):

WHERE THE WEEKLY TOUR OF DUTY OF EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE SUBJECT TO THE FORTY-HOUR WEEK LAW IS CHANGED, FOR ADMINISTRATIVE REASONS, FROM 5 DAYS OF 8 HOURS EACH, MONDAY TO FRIDAY, INCLUSIVE, TO 5 DAYS OF 7 HOURS EACH, MONDAY TO FRIDAY, INCLUSIVE, AND 5 HOURS ON SATURDAY, ANNUAL AND SICK LEAVE, BOTH CURRENT AND ADVANCED, SHOULD BE CHARGED ON A BASIS OF THE LENGTH OF THE WORK DAY IN FORCE WHEN THE LEAVE IS TAKEN, A FULL WORK DAY'S ABSENCE, REGARDLESS OF THE NUMBER OF WORK HOURS CONSTITUTING THE DAY, TO BE COMPUTED AS ONE DAY'S LEAVE, A PARTIAL DAY AS A FRACTION OF A DAY, THE DENOMINATOR OF WHICH IS THE TOTAL NUMBER OF WORK HOURS CONSTITUTING THE DAY, AND THE NUMERATOR THE NUMBER OF WORK HOURS' ABSENCE THEREON. SEE ALSO 20 COMP. GEN. 170; 21 ID. 621 (AT PAGE 625.)

THOSE DECISIONS WERE RENDERED AT A TIME WHEN THERE WAS NO REGULATION HAVING THE FORCE AND EFFECT OF LAW AUTHORIZING THE CREDITING AND THE CHARGING OF LEAVE OTHER THAN UPON A DAILY BASIS. PURSUANT TO THE CURRENT LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1945, AS WELL AS THE PRIOR LEAVE REGULATIONS IN FORCE DURING THE CALENDAR YEAR 1944 ( EXECUTIVE ORDER 9414 DATED JANUARY 13, 1944,) ANNUAL AND SICK LEAVE IS AUTHORIZED TO BE CREDITED AND CHARGE UNITS OF HOURS. WHILE THE ANNUAL AND SICK LEAVE LAWS PROVIDE FOR THE GRANTING OF ANNUAL AND SICK LEAVE IN UNITS OF DAYS, ONLY, THE STATUTE DOES NOT PRECLUDE DIVISION OF THE DAILY CREDIT INTO LESS PERIODS AND IT MUST BE RECOGNIZED THAT AS TO EMPLOYEES WHO WORK IRREGULAR HOURS ON DIFFERENT DAYS THE CHARGE OF LEAVE UPON A DAILY BASIS IS IMPRACTICAL AND WOULD RESULT IN CONSIDERABLE DISPARITY BETWEEN THE LEAVE BENEFITS OF EMPLOYEES WHO WORK REGULAR DAILY TOURS OF DUTY AND EMPLOYEES WHO ARE REQUIRED BY REASON OF THE EXIGENCIES OF THE SERVICE TO WORK DAILY TOURS OF DUTY OF VARYING LENGTHS FROM DAY TO DAY. IN VIEW THEREOF, AND AS MOST EMPLOYEES NOW ARE PAID BASIC COMPENSATION UPON A WEEKLY BASIS OF 40 HOURS, IT IS CONCLUDED THAT THE RULE STATED IN THE CITED DECISIONS NEED NO LONGER BE APPLIED. THEREFORE, THE FIRST ALTERNATE SUBQUESTION IS ANSWERED IN THE AFFIRMATIVE, AND THE SECOND, IN THE NEGATIVE. 7. DOES THE ACT INCREASE THE BASE PAY OF AN EMPLOYEE COMPENSATED ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS WHOSE DAILY RATE IS DERIVED FROM A CLASSIFICATION ACT ANNUAL RATE? SPECIALLY, SHOULD A CONSULTANT WHO WAS PAID $22.22 PER DIEM (1/360 OF $8,000.) NOW BE PAID $33.65 PER DIEM (8/2080 OF $8750.

THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE IF, AS IS UNDERSTOOD, SUCH CONSULTANT OCCUPIES A POSITION SUBJECT TO THE CLASSIFICATION ACT. SEE DECISION OF JULY 23, 1945, B-50979, 25 COMP. GEN. 86, TO THE SECRETARY OF THE NAVY.

8. THE REGULATIONS PROVIDE THAT THE NIGHT PAY DIFFERENTIAL SHALL BE PAID TO EMPLOYEES FOR NIGHT WORK PERFORMED DURING THE REGULAR ADMINISTRATIVE WORKWEEK PRESCRIBED BY THE GENERAL PUBLIC REGULATIONS ISSUED BY THE HEAD OF THE AGENCY. IN ACCORDANCE WITH THAT REGULATION, THE ADMINISTRATOR HAS ESTABLISHED AN ADMINISTRATIVE WORKWEEK CONSISTING OF FIVE EIGHT-HOUR DAYS MONDAY THROUGH FRIDAY, CONSTITUTING THE BASIC WORKWEEK, AND 4 HOURS ON SATURDAY, DESIGNATED AS THE OVERTIME DAY, FOR OPA EMPLOYEES GENERALLY. NUMEROUS CASES, HOWEVER, OFFICIAL NECESSITY REQUIRES THAT EMPLOYEES WORK A DIFFERENT REGULAR SCHEDULE OF HOURS. TO BE OF MAXIMUM PUBLIC SERVICE, SOME LOCAL WAR PRICE AND RATIONING BOARDS, PARTICULARLY IN RURAL AREAS, ARE OPEN ON SATURDAY AFTERNOON, NECESSITATING A SCHEDULE SIMILAR TO THAT DESCRIBED IN QUESTION 6. IN INDUSTRIAL AREAS, ON THE OTHER HAND, SOME BOARDS ARE OPEN TO THE PUBLIC ON ONE EVENING EACH WEEK. ON SUCH DAYS THE EMPLOYEES WOULD WORK THE USUAL 8 HOURS, BUT THEY WOULD REPORT FOR DUTY LATER IN THE MORNING. IN SOME INSTANCES, ONLY A PART OF THE EMPLOYEES OF A LOCAL BOARD WOULD BE REQUIRED TO WORK EVENING HOURS.

(A) DO THE REGULATIONS REQUIRE THAT THE ADMINISTRATOR BY GENERAL PUBLIC REGULATION PERSONALLY SET THE HOURS OF DUTY FOR EACH OF OUR 5600 LOCAL BOARDS OR FOR EACH EMPLOYEE WHEN THE TOURS OF DUTY DIFFER FROM THE SCHEDULE ESTABLISHED FOR OPA EMPLOYEES GENERALLY?

(B) THE EMPLOYEES WHO ARE REQUIRED TO WORK ONE EVENING EACH WEEK WOULD BE ON DUTY AFTER 6 P.M. FOR 2 OR 3 HOURS PER WEEK. THE NIGHT PAY DIFFERENTIAL WOULD AMOUNT TO A FEW CENTS PER WEEK, ONLY A FRACTION OF THE BOOKKEEPING COSTS INVOLVED. DOES THE LAW CONTEMPLATE PAYMENT OF THE DIFFERENTIAL IN SUCH CASES, OR MAY IT BE CONSTRUED TO BE APPLICABLE ONLY WHEN A PART OF EACH DAILY TOUR OF DUTY INCLUDES WORK AFTER 6 P.M.?

(C) WHAT NOTATIONS ARE REQUIRED ON THE PAYROLL TO IDENTIFY NIGHT DIFFERENTIAL COMPENSATION?

(A).IT WILL BE REGARDED AS A SUFFICIENT COMPLIANCE WITH THE PROVISIONS OF SECTION 604 (A) OF THE NEW PAY STATUTE, 59 STAT. 303, IF BY ADMINISTRATIVE ORDER THERE BE PRESCRIBED THE GENERAL PATTERN FOR THE 40-HOUR BASIC WORKWEEK FOR THE GUIDANCE OF FIELD OFFICERS TO FOLLOW IN PRESCRIBING DAILY TOURS OF DUTY AS THE NEEDS OF THE SERVICE MAY REQUIRE WITHIN THE PRESCRIBED PATTERN FOR THE BASIC WORKWEEK. AS AN EXAMPLE, THE FOLLOWING IS QUOTED FROM GENERAL ACCOUNTING OFFICE ADMINISTRATIVE ORDER NO. 51 OF JULY 4, 1945, ISSUED PURSUANT TO SECTION 604 (A) OF THE NEW PAY STATUTE:

2. FOR THOSE EMPLOYEES ON DUTY OUTSIDE OF WASHINGTON, D.C., WHO, BECAUSE OF DIFFERENT WORK HOURS AT CONTRACTORS' PLANTS, OR OTHER SIMILAR CONDITIONS, ARE PREVENTED FROM OBSERVING A REGULAR 8 HOUR DAY, AN ADMINISTRATIVE WORKWEEK OF 44 HOURS COMMENCING ON MONDAY AND ENDING NOT LATER THAN SATURDAY IS HEREBY PRESCRIBED, THE FIRST 40 HOURS OF WHICH WILL BE THE BASIC ADMINISTRATIVE WORKWEEK. ANNUAL OR SICK LEAVE WITH PAY MAY NOT BE GRANTED OR CHARGED FOR ANY ABSENCE DURING THE LAST 4 HOURS OF THE ADMINISTRATIVE WORKWEEK. THE DAILY TOUR OF DUTY SHALL BE FIXED, WHENEVER PRACTICABLE, BY THE CHIEF OF DIVISION OR OFFICE, WHO SHALL FURNISH THE EXECUTIVE OFFICER AND THE DIRECTOR OF PERSONNEL WITH COPIES OF INSTRUCTIONS PERTAINING THERETO. IN ALL OTHER INSTANCES THE DAILY TOUR OF DUTY SHALL BE FIXED BY THE EMPLOYEE LOCALLY IN CHARGE AND SHALL BE SHOWN ON OR ATTACHED TO THE TIME AND ATTENDANCE REPORT.

(B). SECTION 301 OF THE NEW PAY STATUTE, 59 STAT. 298, REQUIRES THE PAYMENT OF THE NIGHT DIFFERENTIAL FOR "A REGULARLY SCHEDULED TOUR OF DUTY, ANY PART OF WHICH FALLS BETWEEN THE HOURS 6 O-CLOCK POST MERIDIAN AND 6 O- CLOCK ANTEMERIDIAN.' ( ITALICS SUPPLIED.) HENCE, IF THE EMPLOYEES REFERRED TO IN THE LAST SENTENCE OF THE MAIN BODY OF QUESTION 8 BEGIN A REGULARLY SCHEDULED TOUR OF DUTY ON ANY DAY WITHIN THE BASIC WORKWEEK OF 40 HOURS LATER THAN ON OTHER DAYS SO THAT IT EXTENDS BEYOND 6 P.M., THE NIGHT DIFFERENTIAL MUST BE PAID FOR SO MUCH THEREOF AS EXTENDS BEYOND 6 P.M., NOTWITHSTANDING THE COST OF ADMINISTERING THE LAW. THAT IS TO SAY, THE FACT THAT ONLY ON ONE DAY OF THE BASIC WORKWEEK THE REGULARLY SCHEDULED TOUR OF DUTY EXTENDS BEYOND 6 P.M. MAY NOT BE REGARDED AS DEFEATING AN EMPLOYEE'S RIGHT TO THE NIGHT DIFFERENTIAL FOR THE DUTY PERFORMED AFTER 6 P.M. ON THAT DAY. THEREFORE, THE FIRST ALTERNATE QUESTION IS ANSWERED IN THE AFFIRMATIVE, AND THE SECOND, IN THE NEGATIVE.

(C) IT WILL BE SUFFICIENT FOR AUDIT PURPOSES IF A POSITIVE STATEMENT APPEARS ON THE PAY ROLL SHOWING THE NUMBER OF HOURS OF EMPLOYMENT BETWEEN 6 P.M. AND 6 A.M., WITHIN THE BASIC WORKWEEK PREFACED BY THE SYMBOL N.W. (NIGHT WORK,) FOR INSTANCE, N.W. 24 WOULD INDICATE THAT THE NIGHT DIFFERENTIAL WAS PAYABLE FOR 24 HOURS WORKED BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. DURING THE PAY PERIOD INVOLVED.

9. SECTION 402 OF THE ACT AUTHORIZES THE COUNTING OF PERIODS OF MILITARY SERVICE PERFORMED BY WAR SERVICE APPOINTEES TOWARD PERIODIC WITHIN-GRADE SALARY ADVANCEMENTS UPON RESTORATION IN ACCORDANCE WITH CIVIL SERVICE REGULATIONS OR OTHER AUTHORITY. IT HAS BEEN OUR UNDERSTANDING THAT ONLY BY VIRTUE OF THE REEMPLOYMENT RIGHTS GRANTED BY THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 MAY EMPLOYEES BE RECREDITED UPON RETURN TO DUTY WITH THE SICK LEAVE TO THEIR CREDIT AT THE TIME THEY ENTERED MILITARY SERVICE. WAR SERVICE APPOINTEES, BEING TEMPORARY EMPLOYEES (24 C.G. 491,) HAVE NOT BEEN CONSIDERED ELIGIBLE FOR RESTORATION OF SICK LEAVE. ARE THE ABOVE ASSUMPTIONS CORRECT, AND, IF SO, DOES SECTION 402 OF THE ACT HAVE ANY EFFECT UPON OTHER REEMPLOYMENT BENEFITS, INCLUDING THE RESTORATION OF SICK LEAVE?

SUBSECTION (B) OF SECTION 7 OF THE CLASSIFICATION ACT, AS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, TO INCLUDE THE NEW SUBSECTION (4), RELATES EXCLUSIVELY TO WITHIN-GRADE SALARY ADVANCEMENTS AND HAS NO EFFECT WHATEVER UPON EXISTING RULES REGARDING OTHER REEMPLOYMENT BENEFITS, SUCH AS RESTORATION OF SICK LEAVE TO RETURNING VETERANS.