September 4, 1997
OPM Ref: # S9700957
[Requestor of advisory opinion]
Attn: [xxx]
Dear Mr. [xxx]:
This replies to your request for an opinion regarding the payment of holiday premium pay to non-commissioned Foreign Service Officers arising out of the practice at some U.S. Embassies to exchange workdays for statutory holidays. For the reasons stated below, this practice is contrary to law.
You state that at numerous overseas missions, the regularly scheduled workweek is Sunday through Thursday. When a Federal holiday falls on a Monday, the practice at some of these missions is to give employees the preceding Sunday off in lieu of the Monday holiday. Thus, employees who observe the holiday on Sunday get a three-day weekend, but are expected to work on Monday, the actual holiday, without holiday or premium pay.
Although commissioned Foreign Service Officers (FSO) and members of the Senior Foreign Service are excluded from the premium pay provisions of chapter 55 of title 5, United States Code, non-commissioned FSOs are not excluded from those provisions, and, therefore, are entitled to the premium pay authorized in that chapter, including holiday pay. The applicable statute provides that employees who work "on a holiday designated by Federal Statute" are entitled, in addition to their basic pay, to "premium pay at a rate equal to the rate of (their) basic pay" for holiday work not in excess of 8 hours. 5 U.S.C. 5546(b). The holidays designated by statute are designated at 5 U.S.C. 6103(a).
Although many employees may agree to the practice you describe, the general rule is that, if compensation is fixed by law, an employee may not agree to waive all or part of such compensation. To waive all or part of the compensation fixed by statute would violate the prohibition against voluntary service in 31 U.S.C. 1342 (1982). See B-206396.2, Nov. 15, 1988 and cases cited therein. Therefore, an agency may not require employees to work on a designated holiday without paying them the premium pay to which they are entitled.
As for the pending claims in your agency from covered employees who worked on a Monday holiday in exchange for administrative leave on the preceding Sunday, the employees are entitled to the premium pay for the hours worked on the holiday and should not be charged annual leave for the Sunday they did not work.
Very truly yours,
Paul Britner
Senior Attorney