B-64094, MARCH 20, 1947, 26 COMP. GEN. 690

B-64094, MARCH 20, 1947, 26 COMP. GEN. 690

HOLIDAYS - COMPENSATION - REGULAR AND IRREGULAR PART TIME EMPLOYEES; INTERMITTENT "WHEN ACTUALLY EMPLOYED" EMPLOYEES THE PROVISION IN SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, LIMITING PAYMENT OF PREMIUM PAY FOR HOLIDAY WORK TO HOURS WHICH FALL WITHIN AN EMPLOYEE'S "BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS" DOES NOT AUTHORIZE SUCH PAYMENTS TO FULL TIME EMPLOYEES, ONLY, BUT MERELY PRECLUDES PAYMENT FOR TIME WORKED ON A HOLIDAY OVER WHICH OVERTIME COMPENSATION NORMALLY WOULD BE PAID, AND, THEREFORE, REGULAR PART TIME EMPLOYEES ARE ENTITLED UNDER SAID SECTION TO PREMIUM PAY FOR WORK PERFORMED DURING THEIR PRESCRIBED HOURS OF WORK ON ANY HOLIDAY OCCURRING WITHIN THEIR REGULAR TOUR OF DUTY. UNDER SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AUTHORIZING PAYMENT OF PREMIUM PAY FOR TIME WORKED ON A HOLIDAY DURING HOURS WHICH FALL WITHIN AN EMPLOYEE'S BASIC ADMINISTRATIVE WORKWEEK, IRREGULAR PART TIME EMPLOYEES AND INTERMITTENT "WHEN ACTUALLY EMPLOYED" EMPLOYEES WOULD BE ENTITLED TO SUCH PREMIUM PAY ONLY UPON ESTABLISHING THAT THEY OTHERWISE WOULD HAVE RECEIVED STRAIGHT TIME PAY FOR NOT WORKING ON A HOLIDAY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, MARCH 20, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 25, 1947, AS FOLLOWS:

HOUSE REPORT NO. 1834, SUBMITTED TO ACCOMPANY H.R. 5939 (79TH CONGRESS, 2D SESSION), ONE OF THE BILLS PROPOSING TO INCREASE THE RATES OF PAY OF FEDERAL EMPLOYEES IN 1946, CONTAINS THE FOLLOWING STATEMENT WITH RESPECT TO THE GOVERNMENT'S POLICY OF PAYING FOR HOLIDAY WORK:

"IN THE LIGHT OF THE CHANGE IN POLICY WITH RESPECT TO HOLIDAY WORK IN THE FEDERAL SERVICE AND THE REMOVAL OF RESTRICTIONS ON HOLIDAY PREMIUM PAY IN INDUSTRY, THE COMMITTEE REGARDS THE PROVISIONS OF EXISTING LAW AS SOMEWHAT INEQUITABLE. THE INEQUITY CONSISTS IN PAYING EXTRA COMPENSATION FOR ONE- HALF DAY, WHEN THE EMPLOYEE ACTUALLY WORKS AN EXTRA DAY. THE BILL REMOVES THIS INEQUITY BY ALLOWING A FULL DAY'S EXTRA PAY FOR HOLIDAY WORK WHEN THE HOLIDAY FALLS WITHIN THE EMPLOYEE'S BASIC 40-HOUR WORKWEEK. DOUBLE TIME, HOWEVER, IS LIMITED TO 8 HOURS OF SUCH HOLIDAY WORK. HOURS OF WORK IN EXCESS OF EIGHT ON A HOLIDAY WILL, IN THE ABSENCE OF LEAVE WITHOUT PAY, CAUSE THE WORKWEEK TO BE IN EXCESS OF 40 HOURS TO THAT EXTENT. FOR THIS EXCESS AS WELL AS FOR WORK ON A HOLIDAY OCCURRING OUTSIDE OF THE BASIC 40- HOUR WORKWEEK, OVERTIME COMPENSATION WILL BE PAID UNDER EXISTING LAW.'

IN THE BILL INCREASING BASIC RATES OF PAY WHICH WAS SUBSEQUENTLY PASSED, THIS POLICY OF DOUBLE TIME FOR WORKED HOLIDAYS IS STATED AS FOLLOWS ( SECTION 11 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946):

"THAT PART OF THE FIRST SENTENCE OF SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 WHICH PRECEDES THE PROVISO IS AMENDED TO READ AS FOLLOWS: "ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO DUTY ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER DURING HOURS WHICH FALL WITHIN HIS BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS SHALL BE COMPENSATED FOR NOT TO EXCEED EIGHT HOURS OF SUCH DUTY, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, IN LIEU OF HIS REGULAR RATE OF BASIC COMPENSATION FOR SUCH DUTY, AT THE RATE OF TWICE SUCH REGULAR RATE OF BASIC COMPENSATION, IN ADDITION TO ANY EXTRA COMPENSATION FOR NIGHT DUTY PROVIDED BY SECTION 301 OF THIS ACT: " "

PRIOR TO ENACTMENT OF THE 1946 STATUTE, THIS DEPARTMENT PAID ITS EMPLOYEES WHO WERE ENTITLED TO SUCH BENEFITS UNDER SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AT THE RATE OF TIME AND ONE-HALF THEIR REGULAR RATE OF PAY FOR HOLIDAY WORK (25 COMP. GEN. 86; ID. 305). UNDER THE 1945 PAY ACT, AN EMPLOYEE WAS HELD TO BE LEGALLY ENTITLED TO PREMIUM PAY AT THE HOLIDAY RATE FOR THE ACTUAL NUMBER OF HOURS WORKED ON A HOLIDAY (25 COMP. GEN. 254, 259). WHILE NOTHING WAS SAID IN THE ACT ABOUT COMPENSATION FOR A HOLIDAY NOT OCCURRING WITHIN AN EMPLOYEE'S 40-HOUR BASIC WORKWEEK, IT WAS HELD (25 COMP. GEN. 338, 340) THAT "THE STATUTE SEEMS TO CONTEMPLATE THE PAYMENT OF PREMIUM PAY FOR WORK ON A HOLIDAY OCCURRING AT ANY TIME DURING THE ADMINISTRATIVE WORKWEEK, RATHER THAN DURING THE 40-HOUR BASIC WORKWEEK ONLY.' HENCE, THERE WAS NO OBJECTION TO PAYING AN EMPLOYEE AT THE HOLIDAY RATE FOR A HOLIDAY OCCURRING ON AN OVERTIME DAY WITHIN HIS REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK.

IT APPEARS THAT THE LANGUAGE IN SECTION 11 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 WITH RESPECT TO THE BASIC ADMINISTRATIVE WORKWEEK WAS INSERTED PRIMARILY TO CLARIFY THE RELATIONSHIP BETWEEN HOLIDAY PAY AND OVERTIME PAY. UNDER THE 1945 STATUTE, WHICH REQUIRES THE HEADS OF THE SEVERAL DEPARTMENTS TO ESTABLISH A BASIC WORKWEEK OF 40 HOURS FOR ALL FULL-TIME EMPLOYEES, OVERTIME COMPENSATION IS PAID FOR ALL HOURS WORKED IN EXCESS OF 40 HOURS PER WEEK. SECTION 11 OF THE 1946 STATUTE RESTRICTS HOLIDAY PAY TO DAYS WORKED WITHIN THE EMPLOYEE'S BASIC 40 HOUR WORKWEEK, AND TO NOT IN EXCESS OF EIGHT HOURS ON ANY SUCH DAY. HOURS IN EXCESS OF EIGHT, PROVIDED THEY ARE ALSO IN EXCESS OF FORTY PER WEEK, MUST BE PAID FOR AS OVERTIME. THUS THE SECTION SERVES TO DISTINGUISH HOLIDAY PAY FROM OVERTIME PAY.

THE NEW LANGUAGE IN THE 1946 ACT HAS RAISED CERTAIN QUESTIONS, HOWEVER. IT WILL BE NOTED THAT THE LANGUAGE USED IN SECTION 11 STATES SPECIFICALLY: "ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO DUTY ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER DURING HOURS WHICH FALL WITHIN HIS BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS SHALL BE COMPENSATED, * * *" (ITALICS SUPPLIED.) BECAUSE OF THIS WORDING WE ARE NOT CERTAIN WHETHER THOSE EMPLOYEES WHO REGULARLY WORK LESS THAN 40 HOURS A WEEK ARE ENTITLED TO PREMIUM HOLIDAY PAY FOR WORK ON A HOLIDAY OCCURRING WITHIN THE 40-HOUR BASIC WORKWEEK ESTABLISHED FOR THE DEPARTMENT. TO ILLUSTRATE: WE HAVE SOME PART-TIME EMPLOYEES WHO WORK REGULARLY 24 HOURS A WEEK, EIGHT HOURS A DAY, MONDAY, WEDNESDAY, AND THURSDAY. IF ONE OF THESE EMPLOYEES SHOULD WORK ON THANKSGIVING DAY, THE FOURTH THURSDAY IN NOVEMBER, WE BELIEVE THAT HE SHOULD BE PAID DOUBLE TIME FOR NOT IN EXCESS OF EIGHT HOURS OF DUTY, THE SAME AS A FULL-TIME EMPLOYEE, FOR THAT DAY. THIS VIEW IS SUPPORTED BY THE FACT THAT IF HE DID NOT WORK ON THE HOLIDAY HE WOULD BE ENTITLED TO A FULL DAY'S PAY FOR IT REGARDLESS (25 COMP. GEN. 452 AT PAGE 459). IT WILL ALSO BE NOTED THAT WAE EMPLOYEES WHO WORK ON A HOLIDAY WERE HELD TO BE ENTITLED TO EXTRA HOLIDAY COMPENSATION UNDER SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (COMP. GEN. B-52499 OF SEPTEMBER 27, 1945). IT WOULD SEEM INEQUITABLE TO EXCLUDE THESE EMPLOYEES FROM THE BENEFIT OF PREMIUM PAY FOR HOLIDAY WORK MERELY BECAUSE THEY WORK LESS THAN FULL TIME AND, THEREFORE, HAVE NO ESTABLISHED BASIC 40-HOUR WORKWEEK, THE MORE SO SINCE OTHER EMPLOYEES WHO HAVE NO COMMON TOUR OF DUTY BUT WORK AT LEAST 40 HOURS A WEEK MAY BE REGARDED AS HAVING A BASIC ADMINISTRATIVE WORKWEEK OF 40 HOURS, CONSISTING OF THE FIRST 40 HOURS OF WORK PERFORMED IN ANY WEEK (25 COMP. GEN. 14). THE ONLY IMPORTANT DIFFERENCE BETWEEN THESE TWO GROUPS OF EMPLOYEES IS THAT THOSE IN ONE OF THE GROUPS WORK LONGER THAN THOSE IN THE OTHER.

IN VIEW OF THE CIRCUMSTANCES, YOUR DECISION WILL BE DEEPLY APPRECIATED AS TO WHETHER AN EMPLOYEE IS PREVENTED FROM RECEIVING PREMIUM PAY FOR A WORKED HOLIDAY OCCURRING WITHIN THE DEPARTMENT'S 40 HOUR BASIC WORKWEEK MERELY BECAUSE HE DOES NOT REGULARLY WORK FULL TIME AND MAY NOT, THEREFORE, HAVE ESTABLISHED FOR HIM A BASIC WORKWEEK OF 40 HOURS. IT WILL BE HELPFUL IF YOU WILL INDICATE IN YOUR REPLY WHETHER IT WILL MAKE ANY DIFFERENCE IF THE EMPLOYEES IN QUESTION, WORKING LESS THAN FULL TIME, ARE (1) PART-TIME EMPLOYEES, SOME WITH FIXED SCHEDULES AND OTHERS WITH VARIABLE TOURS OF DUTY, OR (2) INTERMITTENT WAE EMPLOYEES.

THE COMPLETE STATEMENT CONTAINED IN HOUSE REPORT NO. 1834, APRIL 1, 1946, WITH RESPECT TO THE PROVISION FOR HOLIDAY PAY IN H.R. 5939--- THE ESSENTIAL PROVISIONS OF WHICH WERE INCORPORATED IN S. 1415, SUBSEQUENTLY ENACTED INTO LAW AS THE FEDERAL EMPLOYEES PAY ACT OF 1946- - READS AS FOLLOWS:

5. PAY FOR HOLIDAY WORK.--- MOST FEDERAL EMPLOYEES DO NOT WORK ON HOLIDAYS. WHEN THEY ARE OFFICIALLY EXCUSED FROM WORKING, THEY ARE, IF THEIR EMPLOYMENT IS REGULAR AND CONTINUOUS, ENTITLED TO RECEIVE THEIR REGULAR PAY FOR THE PAY PERIOD AS IF NO HOLIDAY HAD INTERVENED. IN OTHER WORDS, THEY ARE PAID FOR UNWORKED HOLIDAYS, AND AT THEIR REGULAR STRAIGHT- TIME RATES.

ALL FEDERAL EMPLOYEES, HOWEVER, CANNOT BE EXCUSED FROM WORK ON HOLIDAYS. THIS IS THE CASE, FOR EXAMPLE, IN ACTIVITIES THAT OPERATE AROUND THE CLOCK, SUCH AS POWER PLANTS, POLICE, GUARD, AND FIREFIGHTING FORCES, AND HOSPITALS, PRISONS, AND OTHER INSTITUTIONS. IN SUCH ORGANIZATIONS, ACCORDINGLY, SOME EMPLOYEES ARE REQUIRED TO WORK ON HOLIDAYS.

AN EMPLOYEE SUBJECT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945 WHO IS ASSIGNED TO DUTY ON A HOLIDAY NOW RECEIVES, UNDER SECTION 302 OF THAT LAW, TIME AND ONE-HALF FOR THE DAY IN LIEU OF HIS REGULAR, OR STRAIGHT TIME, RATE; THAT IS, THE EXTRA COMPENSATION IS ONE-HALF DAY'S PAY FOR A FULL DAY'S WORK. THUS, ALTHOUGH HE WORKS A FULL DAY MORE THAN OTHER EMPLOYEES WHO ARE EXCUSED FROM HOLIDAY WORK, HE RECEIVES ONLY ONE-HALF DAY'S MORE PAY THAN THEY DO.

AT THE TIME THE FEDERAL EMPLOYEES PAY ACT OF 1945 WAS BEING CONSIDERED AND ENACTED, ALL HOLIDAYS, EXCEPT CHRISTMAS, WERE REGULAR WORKDAYS FOR FEDERAL EMPLOYEES. ALSO, THERE WAS THEN IN EXISTENCE A NATIONAL POLICY ESTABLISHED IN EXECUTIVE ORDER NO. 9240 OF SEPTEMBER 9, 1942, WITH RESPECT TO PAY FOR WORKED HOLIDAYS FOR EMPLOYEES OF WAR CONTRACTORS IN PRIVATE INDUSTRY. PARAGRAPH 16 OF DEPARTMENT OF LABOR INTERPRETATIVE BULLETIN NO. 1 OF EXECUTIVE ORDER NO. 9240, DATED FEBRUARY 17, 1943, STATED THAT IF THE WAGES OF AN EMPLOYEE INCLUDED COMPENSATION FOR A HOLIDAY ALTHOUGH NOT WORKED (WHICH IS THE CASE FOR GOVERNMENT EMPLOYEES), THE ADDITIONAL AMOUNT WHICH MIGHT BE PAID UNDER THA ORDER FOR WORK ACTUALLY PERFORMED ON THE HOLIDAY COULD NOT EXCEED AN AMOUNT BRINGING THE TOTAL COMPENSATION FOR THE DAY TO TIME AND ONE HALF. THIS POLICY WAS FOLLOWED IN SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945.

EXECUTIVE ORDER NO. 9240, THE USUAL PRACTICE IN INDUSTRY, ESTABLISHED BY COLLECTIVE BARGAINING, WAS TO PAY AT LEAST DOUBLE TIME FOR HOLIDAYS WORKED, WHEN THE AGREEMENT ALSO CALLED FOR STRAIGHT-TIME PAY FOR HOLIDAYS NOT WORKED ( U.S. DEPARTMENT OF LABOR, VACATION AND HOLIDAY PROVISIONS IN UNION AGREEMENTS, BULLETIN NO. 743, JANUARY 1943, P. 7.)

A BILL, S. 1679, IN ACCORDANCE WITH THIS INDUSTRIAL POLICY, COVERING EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, WAS PASSED BY THE SENATE ON MARCH 5, 1946.

IN THE LIGHT OF THE CHANGE IN POLICY WITH RESPECT TO HOLIDAY WORK IN THE FEDERAL SERVICE AND THE REMOVAL OF RESTRICTIONS ON HOLIDAY PREMIUM PAY IN INDUSTRY, THE COMMITTEE REGARDS THE PROVISIONS OF EXISTING LAW AS SOMEWHAT INEQUITABLE. THE INEQUITY CONSISTS IN PAYING EXTRA COMPENSATION FOR ONE- HALF DAY, WHEN THE EMPLOYEE ACTUALLY WORKS AN EXTRA DAY. THE BILL REMOVES THIS INEQUITY BY ALLOWING A FULL DAY'S EXTRA PAY FOR HOLIDAY WORK WHEN THE HOLIDAY FALLS WITHIN THE EMPLOYEE'S BASIC 40-HOUR WORKWEEK. DOUBLE TIME, HOWEVER, IS LIMITED TO 8 HOURS OF SUCH HOLIDAY WORK. HOURS OF WORK IN EXCESS OF EIGHT ON A HOLIDAY WILL, IN THE ABSENCE OF LEAVE WITHOUT PAY, CAUSE THE WORKWEEK TO BE IN EXCESS OF 40 HOURS TO THAT EXTENT. FOR THIS EXCESS, AS WELL AS FOR WORK ON A HOLIDAY OCCURRING OUTSIDE OF THE BASIC 40 -HOUR WORKWEEK, OVERTIME COMPENSATION WILL BE PAID UNDER EXISTING LAW.

IT IS EXPECTED BY THE COMMITTEE THAT THE GENERAL POLICY OF DOUBLE TIME FOR WORKED HOLIDAYS WILL BE FOLLOWED BY DEPARTMENTS AND AGENCIES WITH RESPECT TO WAGE-SCHEDULE EMPLOYEES. UNDER EXISTING LAW ( JOINT RESOLUTION NO. 127, JUNE 29, 1938), THESE EMPLOYEES, IF THEIR EMPLOYMENT IS REGULAR AND CONTINUOUS, ARE AS A GENERAL RULE, ENTITLED TO STRAIGHT-TIME PAY FOR UNWORKED HOLIDAYS. THE COMPTROLLER GENERAL RECENTLY RULED (B-43383, FEBRUARY 7, 1946) THAT FOR SUCH EMPLOYEES THE DEPARTMENTS AND AGENCIES HAVE THE AUTHORITY TO ESTABLISH, BY THEIR OWN REGULATIONS, PREMIUM RATES FOR HOLIDAY WORK. UNDER THIS DECISION, THE DEPARTMENTS AND AGENCIES SHOULD MAKE THE RATE FOR HOLIDAY PREMIUM PAY UNIFORM AS BETWEEN THEIR SALARIED EMPLOYEES UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND THEIR WAGE SCHEDULE EMPLOYEES WHOSE BASIC PAY IS ESTABLISHED UNDER THE ACT OF MARCH 28, 1934.

IT WILL BE SEEN FROM THE ABOVE-QUOTED STATEMENT THAT THE LEGISLATIVE INTENT AND PURPOSE OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 (SECTION 11, 60 STAT. 218, AMENDING SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298) WAS TO PAY TO EMPLOYEES DOUBLE TIME FOR HOLIDAYS WORKED (1) IF SAID EMPLOYEES OTHERWISE WOULD BE ENTITLED TO RECEIVE STRAIGHT-TIME PAY FOR NOT WORKING ON SUCH HOLIDAYS, AND (2) IF THE TIME WORKED ON THE HOLIDAY DOES NOT COVER A PERIOD OVER WHICH OVERTIME COMPENSATION NORMALLY WOULD BE PAID. OF COURSE, OVERTIME COMPENSATION ACCRUES TO AN EMPLOYEE ONLY FOR WORK "IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK.' SEE SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296. THUS, IT WOULD APPEAR THAT CONGRESS LIMITED PAYMENT OF DOUBLE TIME IN THE FEDERAL EMPLOYEES PAY ACT OF 1946 TO HOURS OF WORK ON HOLIDAYS WHICH FALL WITHIN AN EMPLOYEE'S "BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS" NOT FOR THE PURPOSE OF AUTHORIZING SUCH PAYMENTS TO FULL-TIME EMPLOYEES ONLY, BUT SOLELY FOR THE PURPOSE OF NOT ALLOWING SUCH PAYMENTS TO BE MADE FOR TIME WORKED ON A HOLIDAY OVER WHICH OVERTIME COMPENSATION NORMALLY WOULD BE PAID FOR WORK OUTSIDE THE "BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS.'

ACCORDINGLY, SINCE IT SEEMS THAT THERE WAS NO INTENTION ON THE PART OF THE CONGRESS TO EXCLUDE REGULAR PART-TIME EMPLOYEES FROM RECEIVING HOLIDAY PAY UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1946, YOU ARE ADVISED THAT SAID EMPLOYEES PROPERLY MAY BE REGARDED AS ENTITLED TO SUCH PAY FOR WORK PERFORMED DURING THEIR PRESCRIBED HOURS OF WORK ON ANY HOLIDAY OCCURRING WITHIN THEIR REGULAR TOUR OF DUTY. HOWEVER, IRREGULAR PART-TIME EMPLOYEES AND INTERMITTENT "WHEN ACTUALLY EMPLOYED" EMPLOYEES WOULD BE ENTITLED TO SUCH PAY FOR HOLIDAY WORK ONLY UPON ESTABLISHING THAT THEY OTHERWISE WOULD HAVE RECEIVED STRAIGHT-TIME PAY FOR NOT WORKING ON SUCH DAY. IN THAT CONNECTION, SEE 25 COMP. GEN. 452; ID. 825; AND B-62033 OF DECEMBER 10, 1946.