B-52981, OCTOBER 31, 1945, 25 COMP. GEN. 366

B-52981, OCTOBER 31, 1945, 25 COMP. GEN. 366

COMPENSATION - DECEASED EMPLOYEES WHERE THE DEATH OF AN EMPLOYEE OCCURRED ON THE FIRST WORKDAY OF HIS ADMINISTRATIVE WORKWEEK, ESTABLISHED PURSUANT TO SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, FOLLOWING A NON-WORKDAY, COMPENSATION IS PAYABLE FOR THE DATE OF DEATH--- REGARDLESS OF THE TIME DURING THE DAY THAT DEATH OCCURS--- PROVIDED THE EMPLOYEE WAS IN A PAY STATUS AT THE CLOSE OF BUSINESS ON THE LAST DAY OF THE PRECEDING ADMINISTRATIVELY ESTABLISHED WORKWEEK. 9 COMP. GEN. 111, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, OCTOBER 31, 1945:

I HAVE YOUR LETTER OF OCTOBER 3, 1945, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISIONS 9 COMP. GEN. 111, 16 ID. 384 AND 24 ID. 659 WHEREIN IT WAS HELD THAT DECEASED EMPLOYEES OF THE UNITED STATES ARE ENTITLED TO COMPENSATION UP TO AND INCLUDING THE DATE OF DEATH.

WHILE THE APPLICATION OF THE ABOVE RULING IN PREVIOUS CASES INVOLVING PER ANNUM EMPLOYEES WAS CLEAR, THE PASSAGE OF PUBLIC LAWS 525, 78TH CONGRESS AND 106, 79TH CONGRESS REQUIRES CLARIFICATION IN CONNECTION WITH THE FOLLOWING TYPES OF CASES NOW PENDING IN THE DEPARTMENT.

PRIOR TO THE PASSAGE OF PUBLIC LAW 525, 78TH CONGRESS, ANY ANNUAL LEAVE BALANCE DUE A DECEASED CIVILIAN EMPLOYEE WAS FORFEITED. HOWEVER, IF AN EMPLOYEE WAS IN A PAY STATUS THE DAY PRECEDING THE DATE OF DEATH, COMPENSATION WAS COMPUTED TO INCLUDE THE DATE OF DEATH, DISREGARDING FRACTIONS OF A DAY. SEE CPR 120.13-3 (C). FURTHER, SUCH COMPENSATION WAS MADE WHETHER OR NOT DECEDENT HAD SUFFICIENT LEAVE TO COVER THE DATE OF DEATH. HOWEVER, WITH THE ENACTMENT OF PUBLIC LAW 525, 78TH CONGRESS, THE ANNUAL LEAVE BALANCE IS PAID AS LUMP SUM LEAVE. ACCORDINGLY, THE QUESTION ARISES AS TO WHETHER LEAVE SHOULD BE CHARGED FOR ANY PORTION OF THE DATE OF DEATH AND THEREBY POSSIBLY REDUCE THE AMOUNT DUE DECEDENT FOR LUMP SUM LEAVE. CLAIMS ARE BEING RECEIVED WHERE SOME INSTALLATIONS CHARGE LEAVE FOR THE DATE OF DEATH AND OTHERS WHERE IT IS NOT.

PRIOR TO THE ENACTMENT OF PUBLIC LAW 106, 79TH CONGRESS, PER ANNUM EMPLOYEES WERE COMPENSATED FOR EVERY DAY OF THE WEEK, INCLUDING REGULAR NON-WORK DAYS AND IT WAS ALWAYS POSSIBLE TO ASCERTAIN WHETHER A DECEDENT HAD BEEN IN A PAY STATUS THE DAY IMMEDIATELY PRECEDING THE DATE OF DEATH. HOWEVER, PER ANNUM EMPLOYEES UNDER THE PRESENT PAY ACT, AND HOURLY EMPLOYEES PAID UNDER THE PROVISIONS OF THE ACT OF 28 MARCH 1934, ARE NOT CONSIDERED IN A PAY STATUS EVERY DAY IN THE WEEK, BUT RATHER ONLY DURING THE REGULARLY SCHEDULED FORTY HOUR TOUR OF DUTY, UNLESS WORK IS PERFORMED DURING THE SUCCEEDING 6TH AND 7TH DAYS OF THE WEEK. ACCORDINGLY, IF AN EMPLOYEE DIES ON A REGULAR WORK DAY IMMEDIATELY FOLLOWING A REGULAR NON- WORK DAY ON WHICH WORK IS NOT PERFORMED, SHOULD THE DECEDENT BE COMPENSATED FOR THE DATE OF DEATH, IF SUCH EMPLOYEE WAS IN A PAY STATUS ON THE LAST PRECEDING DAY FALLING WITHIN THE REGULARLY SCHEDULED FORTY HOUR TOUR OF DUTY?

WHILE IT IS APPRECIATED THAT THE SETTLEMENT OF SUCH CLAIMS IS UNDER THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE, YOUR DECISION IS DESIRED IN ORDER THAT A CONSISTENT POLICY MAY BE FOLLOWED IN SUBMITTING CLAIMS TO THAT OFFICE AND IN ORDER TO AVOID ANY RETURN OF THE CLAIMS TO THE DEPARTMENT FOR REVISION.

IN THE DECISION OF MARCH 7, 1945, 24 COMP. GEN. 659, TO WHICH YOU REFER, THERE WAS CONSIDERED INTER ALIA, A QUESTION SIMILAR TO THAT PRESENTED IN THE THIRD PARAGRAPH OF YOUR LETTER RELATIVE TO THE EFFECT OF THE PROVISIONS OF THE LUMP-SUM ANNUAL LEAVE PAYMENT ACT OF DECEMBER 21, 1944, 58 STAT. 845, UPON THE SETTLED RULE THAT PAYMENT OF COMPENSATION MAY BE MADE IN THE CASE OF A DECEASED EMPLOYEE OF THE UNITED STATES UP TO AND INCLUDING THE DATE OF DEATH AND, IN THAT RESPECT, IT IS STATED:

IN DECISION OF SEPTEMBER 9, 1929, 9 COMP. GEN. 111, IT WAS HELD (QUOTING FROM THE SYLLABUS):

"PAYMENT MAY BE MADE TO THE ONE LEGALLY ENTITLED THERETO OF THE COMPENSATION DUE A DECEASED EMPLOYEE OF THE UNITED STATES UP TO AND INCLUDING THE DATE OF DEATH, BUT PAYMENT MAY NOT BE MADE TO INCLUDE ANY DATE LATER THAN THAT ON WHICH THE EMPLOYEE WAS LAST KNOWN TO BE ALIVE.'

THAT RULE HAS BEEN APPLIED BY THIS OFFICE IN THE SETTLEMENT OF CLAIMS AND ACCOUNTS REGARDLESS OF THE TIME DURING THE DAY THAT DEATH OCCURS. CHANGE IN THAT RULE IS REQUIRED BY REASON OF THE LUMP-SUM LAW. HENCE, IN THE CASE PRESENTED, THE LUMP-SUM PAYMENT FOR ANNUAL LEAVE SHOULD BE COMPUTED BEGINNING WITH JANUARY 19, 1945, THE DAY FOLLOWING DATE OF DEATH.

IN LINE WITH SAID DECISION YOUR FIRST QUESTION (THIRD PARAGRAPH OF LETTER) IS ANSWERED IN THE NEGATIVE.

THE RULE ENUNCIATED IN 9 COMP. GEN. 111, SUPRA, CONTAINS NO EXPRESS REQUIREMENT THAT, IN ORDER FOR A PARTICULAR CASE TO COME WITHIN ITS PURVIEW, THE DECEASED EMPLOYEE MUST HAVE BEEN IN A PAY STATUS IMMEDIATELY PRECEDING THE DATE OF HIS DEATH. HOWEVER, SUCH WOULD APPEAR TO BE THE PROPER APPLICATION OF THAT RULE. THAT IS TO SAY, WHERE AN EMPLOYEE WAS IN A PAY STATUS IMMEDIATELY PRIOR TO HIS DEATH, IT IS REASONABLE TO ASSUME THAT HAD DEATH NOT INTERVENED HE WOULD HAVE CONTINUED IN A PAY STATUS AND, ACCORDINGLY, PAYMENT OF COMPENSATION FOR THE DAY OF DEATH IS AUTHORIZED. BUT WHERE AN EMPLOYEE WAS IN A NON-PAY STATUS IMMEDIATELY PRECEDING HIS DEATH--- THAT IS, BECAUSE OF ABSENCE FROM WORK NOT COVERED BY LEAVE NO COMPENSATION WAS PAYABLE ON HIS ACCOUNT FOR A DAY ON WHICH HE OTHERWISE WOULD HAVE BEEN ENTITLED THERETO--- THERE ARISES NO SUBSTANTIAL BASIS UPON WHICH IT MAY BE ASSUMED THAT HE WOULD HAVE BEEN IN A PAY STATUS ON THE DATE OF DEATH AND, THEREFORE, PAYMENT OF COMPENSATION FOR THAT DAY IS UNAUTHORIZED.

SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, 303, PROVIDES AS OLLOWS:

IT SHALL BE THE DUTY OF THE HEADS OF THE SEVERAL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS AND AGENCIES IN THE EXECUTIVE BRANCH, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, AND THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, TO ESTABLISH AS OF THE EFFECTIVE DATE OF THIS ACT, FOR ALL FULL-TIME OFFICERS AND EMPLOYEES IN THEIR RESPECTIVE ORGANIZATIONS, IN THE DEPARTMENTAL AND THE FIELD SERVICES, A BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS, AND TO REQUIRE THAT THE HOURS OF WORK IN SUCH WORKWEEK BE PERFORMED WITHIN A PERIOD OF NOT MORE THAN SIX OF ANY SEVEN CONSECUTIVE DAYS.

THE EFFECT OF THE ABOVE-QUOTED STATUTORY PROVISION IS TO CONSTITUTE THE DAYS OUTSIDE THE ADMINISTRATIVELY ESTABLISHED WORKWEEK--- AND ON WHICH NO WORK IS PERFORMED--- AS NON-PAY DAYS AS WELL AS NON-WORK DAYS FOR EMPLOYEES COVERED BY THE SAID ACT. WHILE AN EMPLOYEE IS NOT ENTITLED TO COMPENSATION FOR SUCH DAYS, CLEARLY HE IS NOT IN A "NON-PAY STATUS," WITHIN THE USUAL CONNOTATION OF THOSE WORDS. THAT IS TO SAY, COMPENSATION IS NOT DENIED HIM FOR THOSE DAYS BECAUSE OF ABSENCE FROM WORK NOT COVERED BY LEAVE BUT, ON THE CONTRARY, THE PERFORMANCE OF DUTY NOT BEING REQUIRED ON THOSE DAYS HE IS NOT ENTITLED TO COMPENSATION THEREFOR BY VIRTUE OF THE PROVISIONS OF THE SAID FEDERAL EMPLOYEES PAY ACT OF 1945. IN THAT RESPECT, THE STATUS OF PER ANNUM EMPLOYEES COVERED BY THAT ACT IS SIMILAR TO THAT OCCUPIED BY PER HOUR EMPLOYEES UNDER THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, 48 STAT. 522, FOR THE DAYS OUTSIDE THE ADMINISTRATIVELY ESTABLISHED WORKWEEK. IN EACH CASE SUCH DAYS ARE, BY OPERATION OF LAW, NON-PAY DAYS AS WELL AS NON-WORK DAYS.

CONSEQUENTLY, SINCE THE ABOVE-MENTIONED EMPLOYEE PROPERLY MAY NOT BE CONSIDERED IN A NON-PAY STATUS AS THAT TERM HAD BEEN USED GENERALLY TO DEFINE AN EMPLOYEE'S STATUS FOR PAY PURPOSES, I PERCEIVE NO OBJECTION TO APPLYING THE RULE STATED IN 9 COMP. GEN. 111 TO INSTANCES WHERE THE DEATH OF SUCH AN EMPLOYEE OCCURS ON THE FIRST DAY OF THE ADMINISTRATIVE WORKWEEK --- REGARDLESS OF THE TIME DURING THE DAY THAT DEATH OCCURS--- FOLLOWING A NON-WORK DAY, PROVIDED, OF COURSE, THAT THE EMPLOYEE WAS IN A PAY STATUS AT THE CLOSE OF BUSINESS ON THE LAST DAY OF THE PRECEDING ADMINISTRATIVELY ESTABLISHED WORKWEEK. ACCORDINGLY, YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.