B-66366, JUNE 12, 1947, 26 COMP. GEN. 921

B-66366, JUNE 12, 1947, 26 COMP. GEN. 921

CONVERSION FROM STANDARD TO DAYLIGHT SAVING TIME; ANNUAL LEAVE; NIGHT DIFFERENTIAL PAYMENTS EMPLOYEES WHOSE TOURS OF DUTY ON MAY 11, 1947, WERE REDUCED ONE HOUR BY THE CHANGE AT 2 A.M. FROM STANDARD TO DAYLIGHT SAVING TIME IN THE DISTRICT OF COLUMBIA EFFECTED PURSUANT TO AN ORDER ISSUED UNDER THE ACT OF APRIL 30, 1947, MAY BE CHARGED WITH ONE HOUR'S ANNUAL LEAVE, AND AN APPROPRIATE EXPLANATION MAY BE ENTERED IN THE " REMARKS" SPACE PROVIDED IN THE " TIME AND ATTENDANCE REPORT" WITHOUT SHOWING THE EXACT HOUR OF ABSENCE; LIKEWISE, A SIMILAR NOTATION MAY BE ENTERED FOR THE ONE OVERTIME HOUR WORKED ON THE LAST SUNDAY OF SEPTEMBER 1947, WHEN THERE WILL BE A RETURN TO STANDARD TIME. EMPLOYEES WITHIN THE PURVIEW OF THE NIGHT DIFFERENTIAL PROVISIONS OF SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, WHO WORKED FROM 12 MIDNIGHT TO 8 A.M. ON MAY 11, 1947, WHEN TIME FOR THE DISTRICT OF COLUMBIA WAS CHANGED FROM STANDARD TO DAYLIGHT SAVING TIME BY ADVANCING THE CLOCK ONE HOUR AT 2 A.M. PURSUANT TO AN ORDER ISSUED UNDER THE ACT OF APRIL 30, 1947, ARE ENTITLED TO PAYMENT FOR 5 HOURS AT THE NIGHT RATE; LIKEWISE, ON THE LAST SUNDAY OF SEPTEMBER 1947, WHEN THERE WILL BE A RETURN TO STANDARD TIME, SUCH EMPLOYEES WOULD BE ENTITLED TO PAYMENT FOR 7 HOURS AT THE NIGHT RATE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, JUNE 12, 1947:

REFERENCE IS MADE TO YOUR LETTER OF MAY 15, 1947, AS FOLLOWS:

YOUR ADVICE IS REQUESTED AS TO THE PROPER PAYROLL ACTION TO BE TAKEN WITH RESPECT TO EMPLOYEES OF THIS DEPARTMENT WHO WORK A SHIFT DURING WHICH THE CLOCK IS SET AHEAD ONE HOUR IN ORDER TO EFFECT DAYLIGHT SAVING TIME. SEARCH OF PREVIOUS DECISIONS GIVEN BY YOUR OFFICE UNDER SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1935 (48 STAT. 522) AND THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, HAS FAILED TO DISCLOSE ANY DECISION COVERING THIS MATTER.

IN THE WASHINGTON, D.C. AREA, FOR EXAMPLE, CLOCKS WERE SET AHEAD FROM 2 O -CLOCK A.M. TO 3 O-CLOCK A.M. ON SUNDAY MAY 11. AS A RESULT OF THIS ACTION, EMPLOYEES WHO WORKED THE 12 MIDNIGHT TO 8:00 A.M. SHIFT ACTUALLY WORKED ONLY 7 HOURS ELAPSED TIME. SINCE THE MAJORITY OF THESE EMPLOYEES ARE ON A 40-HOUR WEEK, THEY WILL WORK ONLY 39 HOURS DURING THE DEPARTMENT'S ADMINISTRATIVE WORK WEEK COMMENCING AT MIDNIGHT ON SATURDAY MAY 10.

INASMUCH AS THE EMPLOYEES HERE INVOLVED WORKED THE FULL SHIFT FROM 12 MIDNIGHT TO 8:00 A.M. AND WERE PREVENTED FROM COMPLETING THE ASSIGNED FULL 8 HOURS OF DUTY BECAUSE OF REASONS BEYOND THEIR CONTROL, WOULD IT BE PROPER TO PAY THESE EMPLOYEES FOR 8 HOURS OF DUTY, INCLUDING 6 HOURS WITH ADDITIONAL COMPENSATION FOR NIGHT DIFFERENTIAL? IF THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE, WOULD IT BE PROPER TO MAKE SIMILAR PAYMENT FOR 8 HOURS OF DUTY FOR THE SHIFT WORKED THIS FALL WHEN THE CLOCKS ARE TURNED BACK ONE HOUR AND EMPLOYEES ACCORDINGLY WORK 9 HOURS INSTEAD OF 8?

IN CASE THE ABOVE PRINCIPAL QUESTION IS ANSWERED IN THE NEGATIVE, WILL IT BE PROPER FOR THE DEPARTMENT TO GRANT AN HOUR'S ANNUAL LEAVE TO SUCH OF THESE EMPLOYEES AS HAVE ANNUAL LEAVE TO THEIR CREDIT IN ORDER THAT THEY MAY NOT SUFFER THE LOSS OF AN HOUR'S PAY FOR WORK PERFORMED DURING THIS PAY PERIOD? IF SO, YOUR ADVICE AS TO THE EXACT HOUR OF ABSENCE ON LEAVE TO BE SHOWN ON THE STANDARD FORM 1130," TIME AND ATTENDANCE REPORT," AND THE EXACT HOUR OF OVERTIME WORK TO BE SHOWN NEXT FALL WHEN WE REVERT TO STANDARD TIME IS REQUESTED AS THIS DETERMINATION MAY AFFECT THE PAYMENT OF NIGHT DIFFERENTIAL. IT IS ASSUMED THAT ONLY 5 HOURS OF NIGHT DIFFERENTIAL WOULD BE PAYABLE IN THE INSTANT CASE AS NIGHT DIFFERENTIAL IS NOT PAYABLE TO AN EMPLOYEE IN LEAVE STATUS AND SINCE EACH EMPLOYEE WORKED 2 HOURS OF HIS 7-HOUR TOUR OF DUTY AFTER 6:00 ATTENDANCE REPORTS THIS FALL WHEN THE CLOCKS ARE SET BACK WILL BE PERTINENT AS NIGHT DIFFERENTIAL WILL BE PAYABLE FOR SUCH HOUR.

IF BOTH OF THESE QUESTIONS ARE ANSWERED IN THE NEGATIVE, THE DEPARTMENT WILL APPRECIATE YOUR PRESCRIBING THE PROPER PROCEDURE TO BE FOLLOWED.

YOUR EARLY CONSIDERATION OF THIS REQUEST WILL BE GREATLY APPRECIATED.

THE QUESTIONS PRESENTED IN THE FIRST PART OF THE THIRD AND FOURTH PARAGRAPHS OF YOUR LETTER, SUPRA, ARE SIMILAR TO QUESTIONS WHICH WERE PRESENTED BY THE SECRETARY OF THE NAVY FOR DECISION BY THIS OFFICE IN CONNECTION WITH HE ACT OF JANUARY 20, 1942, PUBLIC LAW 403, 56 STAT. 9, SECTION 1 OF WHICH PROVIDED:

THAT BEGINNING AT 2 O-CLOCK ANTEMERIDIAN OF THE TWENTIETH DAY AFTER THE DATE OF ENACTMENT OF THIS ACT, THE STANDARD TIME OF EACH ZONE ESTABLISHED PURSUANT TO THE ACT ENTITLED " AN ACT TO SAVE DAYLIGHT AND TO PROVIDE STANDARD TIME FOR THE UNITED STATES," APPROVED MARCH 19, 1918, AS AMENDED, SHALL BE ADVANCED ONE HOUR. THE SPECIFIC QUESTIONS PROPOUNDED BY HIM WERE.

YOUR DECISION IS REQUESTED AS TO WHETHER EMPLOYEES ON THE WORK SHIFT THAT INCLUDES THE TIME FROM 2:00 A.M. TO 3:00 A.M. ON FEBRUARY 9, 1942, ARE TO BE CONSIDERED AS HAVING WORKED THE HOUR THUS GAINED AND ARE TO BE CREDITED WITH PAY AS THOUGH THEY HAD ACTUALLY WORKED THE HOUR.

IN THE EVENT THE ANSWER IS IN THE NEGATIVE, INFORMATION IS REQUESTED AS TO WHETHER EMPLOYEES ON THE SHIFT ABOVE REFERRED TO SHOULD BE CHARGED WITH AN HOUR'S LEAVE AND DISMISSED AT 8:00 A.M. OR WHETHER IT SHOULD BE REQUIRED THAT THEY COMPLETE EIGHT HOURS ACTUAL WORK BEFORE BECOMING ENTITLED TO OVERTIME COMPENSATION EITHER ON THAT DAY OR AT THE END OF THE 40-HOUR WORK WEEK. IN ANSWER TO THOSE QUESTIONS, IT WAS STATED IN DECISION OF FEBRUARY 3, 1942, B-23436:

SECTION 1 OF THE ACT OF MARCH 19, 1918, 40 STAT. 450, ESTABLISHED FIVE ZONES OF STANDARD TIME IN THE UNITED STATES, AND THE ACTS OF MARCH 4, 1921, 41 STAT. 1446, AND MARCH 3, 1923, 42 STAT. 1434, MADE CERTAIN CHANGES THEREIN NOT HERE MATERIAL. SECTION 2 OF THE ACT OF MARCH 19, 1918, WHICH HAS NOT BEEN AMENDED, CONTAINS THE FOLLOWING:

" IN ALL STATUTES, ORDERS, RULES, AND REGULATIONS RELATING TO THE TIME OF PERFORMANCE OF ANY ACT BY ANY OFFICER OR DEPARTMENT OF THE UNITED STATES, WHETHER IN THE LEGISLATIVE, EXECUTIVE, OR JUDICIAL BRANCHES OF THE GOVERNMENT, OR RELATING TO THE TIME WITHIN WHICH ANY ACT SHALL OR SHALL NOT BE PERFORMED BY AN PERSON SUBJECT TO THE JURISDICTION OF THE UNITED STATES, IT SHALL BE UNDERSTOOD AND INTENDED THAT THE TIME SHALL BE THE UNITED STATES STANDARD TIME OF THE ZONE WITHIN WHICH THE ACT IS TO BE PERFORMED.'

THE ACT OF JANUARY 20, 1942, SUPRA, ADVANCING ONE HOUR THE STANDARD TIME ESTABLISHED IN ALL ZONES BY THE EARLIER LAWS DOES NOT MODIFY OR SUPERSEDE ANY PORTION OF THE 40-HOUR WEEK STATUTES OR OTHER STATUTES REGULATING THE TOURS OF DUTY AND COMPENSATION OF FEDERAL EMPLOYEES. THAT IS, ALL OF THE 40-HOUR WEEK STATUTES WHICH REQUIRE THE ESTABLISHMENT OF A REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK AND PROVIDE FOR THE PAYMENT OF OVERTIME COMPENSATION FOR WORK IN EXCESS OF 40 HOURS, REMAIN IN FULL FORCE AND EFFECT. SEE, WITH RESPECT TO EMPLOYEES OF THE NAVY DEPARTMENT AND THE NAVAL ESTABLISHMENT, THE ACTS OF MARCH 28, 1934, 48 STAT. 522; JUNE 28, 1940, 54 STAT. 678, AND SECTION 1 OF THE ACT OF JUNE 3, 1941, PUBLIC 100, 55 STAT. 241. UNDER THESE STATUTES EMPLOYEES MUST ACTUALLY WORK OR BE OTHERWISE IN A PAY STATUS EIGHT HOURS PER DAY--- IF THAT HAS BEEN ESTABLISHED ADMINISTRATIVELY AS THE LENGTH OF THEIR REGULAR WORK DAY--- AND 40 HOURS PER WEEK, TO BE ENTITLED TO THEIR REGULAR COMPENSATION AND TO OVERTIME COMPENSATION FOR TIME WORKED IN EXCESS THEREOF DURING THE WEEK. THE EMPLOYEES OPERATING ON THE ESTABLISHED SHIFT RUNNING FROM MIDNIGHT TO 8 A.M. MAY NOT BE REGARDED AS HAVING WORKED AN HOUR ON FEBRUARY 9, 1942, BY REASON OF THE STATUTE REQUIRING THE ADVANCING OF TIME IN THE UNITED STATES AT 2 A.M. ON THAT DATE. THE ACT OF JANUARY 20, 1942, DOES NOT OPERATE TO SHORTEN THEIR REGULAR WORK DAY ON FEBRUARY 9, 1942. ACCORDINGLY, THE FIRST QUESTION STATED IN THE THIRD PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.

REFERRING TO THE QUESTION SET FORTH IN THE FOURTH PARAGRAPH OF YOUR LETTER, IT WOULD APPEAR THAT SINCE YOU STATE "THERE IS A REGULARLY ESTABLISHED SHIFT RUNNING FROM MIDNIGHT TO 8:00 A.M., THE EMPLOYEES LEAVING AT 8:00 A.M. TO MAKE WAY FOR THE DAY SHIFT COMING ON AT THAT HOUR," AND SINCE THE ADVANCING OF TIME BY ONE HOUR ON FEBRUARY 9, 1942, REQUIRED BY THE ACT OF JANUARY 20, 1942, SUPRA, WILL OCCUR WITHIN THAT ESTABLISHED SHIFT--- THE ESTABLISHED SHIFTS FOR THE OTHER PARTS OF THIER DAY BEING UNDISTURBED BY THE ADVANCING OF SAID ONE HOUR'S TIME--- THE EMPLOYEES ON THE SHIFT IN QUESTION MAY BE CHARGED WITH ONE HOUR'S LEAVE AND DISMISSED AT 8 A.M., THUS LEAVING THE OTHER ESTABLISHED SHIFTS UNDISTURBED. IN THAT CONNECTION, SEE DECISION OF MAY 25, 1940, 19 COMP. GEN. 955, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

"UNDER SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, IT IS WITHIN THE AUTHORITY OF A DEPARTMENT HEAD TO REQUIRE ANY OR ALL EMPLOYEES OF A PARTICULAR UNIT OR OF THE DEPARTMENT, TO TAKE ANNUAL LEAVE AT ANY TIME AND FOR ANY PERIOD WITHIN THE LIMITATIONS OF THE STATUTE AS THE NEEDS OF THE SERVICE MAY REQUIRE.'

OF COURSE, UNDER THE RULES STATED IN THE DECISION CITED IN YOUR LETTER--- 20 COMP. GEN. 555--- THE HOUR'S LEAVE OF ABSENCE WILL BE REGARDED AS SYNONYMOUS WITH A DUTY STATUS AND A PART OF THE 40-HOUR WEEKLY TOUR OF DUTY FOR THE PURPOSE OF PAYING BOTH REGULAR AND OVERTIME COMPENSATION.

THE PRINCIPLES OF THAT DECISION EQUALLY WOULD APPEAR TO BE FOR APPLICATION WHENEVER THERE IS A CHANGE FROM STANDARD TIME TO DAYLIGHT SAVING TIME WHICH RESULTS IN THE REDUCTION OF THE NUMBER OF HOURS THAT AN EMPLOYEE IS REQUIRED TO REMAIN ON DUTY ON THE DAY THAT THE CHANGE FROM STANDARD TIME TO DAYLIGHT SAVING TIME IS EFFECTED. WHERE ONE HOUR'S LEAVE IS CHARGED ON THAT DAY ON ACCOUNT OF THE REDUCTION OF THE NUMBER OF HOURS THE EMPLOYEE IS REQUIRED TO REMAIN ON DUTY, THE EXACT HOUR OF ABSENCE ON LEAVE NEED NOT BE SHOWN ON THE STANDARD FORM NO. 1130 " TIME AND ATTENDANCE REPORT" BUT AN APPROPRIATE BRIEF NOTATION ATTRIBUTING THE LEAVE CHARGE TO THE CHANGE FROM STANDARD TIME TO DAYLIGHT SAVING TIME MAY BE ENTERED IN THE SPACE PROVIDED FOR " REMARKS.' A SIMILAR APPROPRIATE NOTATION MAY BE ENTERED WHEN THE CHANGE FROM DAYLIGHT SAVING TIME TO STANDARD TIME IS MADE.

PAYMENT OF NIGHT DIFFERENTIAL WOULD BE PROPER FOR ALL HOURS WORKED DURING THE HOURS WHEN NIGHT DIFFERENTIAL OTHERWISE WOULD BE PAYABLE ACCORDING TO THE KIND OF TIME IN EFFECT (STANDARD OR DAYLIGHT SAVING) WHEN SERVICES ACTUALLY ARE PERFORMED. IN DETERMINING THE HOURS WHEN NIGHT DIFFERENTIAL WOULD BE PAYABLE IN THE DISTRICT OF COLUMBIA FOR SERVICES PERFORMED ON MAY 11, 1947, THERE ARE FOR CONSIDERATION THE PROVISIONS OF PUBLIC LAW 45, 80TH CONGRESS, FIRST SESSION, APPROVED APRIL 30, 1947, 61 STAT. 57, 58, WHICH PROVIDES:

THAT, FOR THE PURPOSE OF DETERMINING WHETHER OR NOT DAYLIGHT SAVING TIME SHOULD BE ESTABLISHED IN THE DISTRICT OF COLUMBIA DURING THE YEAR 1947, THE COMMISSIONERS OF THE DISTRICT SHALL CONDUCT OPEN HEARINGS AT WHICH THE RESIDENTS OF THE DISTRICT AND THOSE IN NEIGHBORING COUNTIES WHO MAY BE AFFECTED MAY EXPRESS THEIR VIEWS ON THE ESTABLISHMENT OF SUCH TIME.

SEC. 2. IF, AS A RESULT OF THE HEARINGS HELD PURSUANT TO THE FIRST SECTION OF THIS ACT, THE COMMISSIONERS SHOULD DECIDE THAT DAYLIGHT SAVING TIME SHOULD BE ESTABLISHED IN THE DISTRICT DURING THE YEAR 1947, THE COMMISSIONERS ARE AUTHORIZED TO ADVANCE THE STANDARD TIME FOR THE DISTRICT ONE HOUR FOR ANY PERIOD OF THE YEAR 1947 NOT EARLIER THAN THE LAST SUNDAY OF APRIL OF SUCH YEAR AND NOT LATER THAN THE LAST SUNDAY OF SEPTEMBER OF SUCH YEAR. ANY SUCH TIME ESTABLISHED BY THE COMMISSIONERS PURSUANT TO THIS ACT SHALL, DURING THE PERIOD FOR WHICH IT IS APPLICABLE, BE CONSIDERED THE STANDARD TIME FOR THE DISTRICT OF COLUMBIA.

THE COMMISSIONERS SHALL FORTHWITH PROCEED IN THE EXERCISE OF THE AUTHORITY HEREIN CONTAINED AND SHALL, AS SOON AS PRACTICABLE, PUBLISH THEIR FINDINGS AND ORDERS THEREUNDER.

AS A RESULT OF THE AUTHORITY CONTAINED IN THAT ACT, THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA ON MAY 7, 1947, ISSUED AN ORDER WHICH PROVIDES, IN PART, AS FOLLOWS:

THAT AT 2 O-CLOCK ANTEMERIDIAN ON SUNDAY, THE 11TH DAY OF MAY 1947, THE STANDARD TIME FOR THE DISTRICT OF COLUMBIA SHALL BE ADVANCED ONE HOUR AND AT 2 O-CLOCK ANTEMERIDIAN ON THE LAST SUNDAY OF SEPTEMBER 1947, SUCH TIME SHALL BE RETURNED TO THE STANDARD TIME NOW APPLICABLE TO THE DISTRICT OF COLUMBIA.

IN THE EXAMPLE GIVEN IN YOUR LETTER, SUPRA, IT IS PRESUMED THAT THE EMPLOYEES WHOSE TOURS OF DUTY ARE FROM 12 MIDNIGHT TO 8 A.M. ARE SUBJECT TO SECTION 301 OF THE FEDERAL EMPLOYEES' PAY ACT OF 1945, 59 STAT. 298, AS AMENDED, 60 STAT. 218, WHICH PROVIDES FOR THE PAYMENT OF A DIFFERENTIAL TO AN OFFICER OR EMPLOYEE FOR ANY PART OF HIS REGULARLY SCHEDULED TOUR OF DUTY WHICH FALLS BETWEEN 6 O-CLOCK POST MERIDIAN AND 6 O-CLOCK ANTEMERIDIAN. FOR SUCH EMPLOYEES WHO PERFORMED SERVICES IN THE DISTRICT OF COLUMBIA FROM 12 O-CLOCK MIDNIGHT TO 2 O-CLOCK ANTEMERIDIAN ON MAY 11, 1947, WHEN THE STANDARD TIME FOR THE DISTRICT OF COLUMBIA WAS ADVANCED ONE HOUR, TWO HOURS AT THE NIGHT DIFFERENTIAL RATE ARE PAYABLE PLUS AN ADDITIONAL THREE HOURS AT THAT RATE FOR SERVICES PERFORMED PRIOR TO 6 O- CLOCK ANTEMERIDIAN AND SUBSEQUENT TO THE ADVANCEMENT OF STANDARD TIME BY ONE HOUR. LIKEWISE, ON THE LAST SUNDAY OF SEPTEMBER 1947, WHEN THE STANDARD TIME FOR THE DISTRICT OF COLUMBIA SHALL BE RETURNED AT 2 O-CLOCK ANTEMERIDIAN TO THE STANDARD TIME APPLICABLE TO THE DISTRICT OF COLUMBIA, PRIOR TO MAY 11, 1947, SUCH AN EMPLOYEE WOULD BE ENTITLED TO PAYMENT AT THE NIGHT DIFFERENTIAL RATE FOR THE TWO HOURS FROM 12 MIDNIGHT TO 2 O- CLOCK ANTEMERIDIAN PLUS PAYMENT AT THE SAME RATE FOR THE SERVICES PERFORMED DURING THE FIVE HOURS IMMEDIATELY PRECEDING 6 O-CLOCK ANTEMERIDIAN AFTER THE TIME CHANGE OR A TOTAL OF SEVEN HOURS PAYMENT AT THE NIGHT DIFFERENTIAL ON THAT DATE. THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.