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Opinion 97063

DATE: December 12, 1997

SUBJECT: State Holidays Created as a Result of Presidential Proclamation; Additional Compensation for State Employees Who Work on Paid State Holidays

REQUESTED BY: Robert D. Luth, Acting Director

Nebraska Department of Administrative Services

WRITTEN BY: Don Stenberg, Attorney General

Dale A. Comer, Assistant Attorney General




On November 25, 1997, President Clinton issued an Executive

Order which pertained to "Closing of Government Departments and

Agencies on Friday, December 26, 1997." That Executive Order

provides:




By the authority vested in me as President of the United

States of America, it is hereby ordered as follows:




Section 1. All executive departments and agencies shall

be closed and their employees excused from duty on

Friday, December 26, 1997, the day following Christmas

Day, except as provided in Section 2 below.




Section 2. The heads of executive departments and

agencies may determine that certain offices and

installations of their organizations, or parts thereof,

must remain open and that certain employees must report

for duty on December 26, 1997, for reasons of national

security or defense or for other public reasons.




Section 3. Friday, December 26, 1997, shall be considered

as falling within the scope of Executive Order 11582 and

of 5 U.S.C. 5546 and 6103(b) and other similar statutes

as they relate to the pay and leave of employees of the

United States.




President Clinton's Order of November 25 apparently continues a

custom of creating a holiday for federal employees on the Friday

following Christmas in those years when Christmas falls on Thursday

which has been observed since the administration of President

Truman. You have posed two questions to us regarding the impact of

President Clinton's order on state employees.




1. Creation of a Paid State Holiday.




Your first question goes to the effect of the President's

order with respect to a paid holiday for state employees. You ask,

"[d]oes the President's Executive Order [of November 25, 1997]

creating a federal holiday also create a paid state holiday?" We

believe that it does.




Three Nebraska statutes are of particular pertinence to your

inquiry. First of all, Neb. Rev. Stat. § 84-1001 (1994) provides,

as is relevant:




(1) All state officers and heads of departments and

their deputies, assistants, and employees, except

permanent part-time employees, temporary employees, and

members of any board or commission not required to render

full-time service, shall render not less than forty hours

of labor each week except any week in which a paid

holiday may occur.




(2) Regular work by such employees shall not be

performed on paid holidays, Saturdays, or Sundays except

in case of an emergency or when otherwise ordered or

deemed essential by the Governor.




(3) For purposes of this section, paid holidays

shall include all of the days enumerated in section 25-

2221 and all days declared by law or proclamation of the

President or Governor to be holidays.




(Emphasis added). Neb. Rev. Stat. § 81-113 also states:




Each department [of State government] shall be open for

the transaction of business at least from 8 a.m. until 5

p.m., of each day except Saturdays, Sundays, and days

declared by statutory enactment or proclamation of the

President or Governor to be holidays.




(Emphasis added). Finally, Neb. Rev. Stat. § 81-117(2) (1996)

states, in pertinent part:




Regular employees working on the hourly basis shall be

paid wages equivalent to their regular wages for the

usual number of work hours for days declared by statutory

act or proclamation of the President of the United States

or the Governor to be holidays . . .




(Emphasis added).




It seems to us that the three statutes cited above are clear

and unequivocal. "Paid holidays" for state employees under state

law include those holidays specifically enumerated in state statute

(e.g., Independence day, Christmas day, Thanksgiving day, Arbor

day, etc.), and those holidays proclaimed as such by the President

of the United States or the Governor. The President's Executive

Order of November 25, 1997, makes Friday, December 26, 1997, a

holiday under federal law. Consequently, we believe that Friday,

December 26, 1997, is also a paid holiday for state employees under

state law. We would emphasize that a paid state holiday occurs

here only because of the President's action this year in the

situation where Christmas falls on a Thursday. This action by the

President does not create a holiday for state employees on the day

following Christmas in every year; nor does it create an automatic

holiday for state employees in future years when Christmas falls on

a Thursday.




2. Payment of Additional Compensation to State Employees.




Your second question involves compensation for state

employees should they be required to work on Friday, December 26,

1997. You ask, "[i]n the event state employees are required to

work on December 26th, would the state be required to pay

additional compensation to state employees, (i.e. time and one-half

compensation)?"




Subsection (5) of Neb. Rev. Stat. § 84-1001 (1994) states, as

is pertinent:




[State] Employees who are required to work on any holiday

shall be granted either a workday of compensatory time

off or be paid for the time worked in accordance with

existing state and federal statutes, except that

temporary employees shall not be eligible for paid

holidays and if required to work on a holiday shall be

paid for the time worked at their normal hourly rate.

. . . The Director of Personnel shall adopt and

promulgate such rules and regulations as are necessary to

administer this section.




(Emphasis added). Obviously, § 84-1001(5) requires that State

employees as defined in the context of that statute who are

required to work on a holiday must at least receive compensatory

time off from work. In addition, under that statute, it must also

be determined if there are "existing state and federal statutes"

which require that those state employees be paid additional

compensation for holiday work as an alternative to or replacement

for compensatory time off from work.




The federal Fair Labor Standards Act, 29 U.S.C. §§ 201 through

219, deals generally with wage and hour matters and the payment of

overtime. That Act does not require that employees be paid

overtime compensation for hours worked on Saturdays, Sundays, or

holidays, if no more that the maximum forty hours prescribed in the

Act are worked during the workweek in question. 29 C.F.R. §

778.102 (1997). Moreover, our research has disclosed no other

state or federal statutes which specifically require that all state

employees must be paid at an overtime rate of pay if they are

required to work on a holiday. However, the collective bargaining

agreement or labor contract between the State and the various

collective bargaining units for state employees states that:




In addition to normal holiday pay, hours worked by an

overtime eligible employee on the employee's designated

holiday shall be compensated as overtime hours.




NAPE/AFSCME and State of Nebraska Labor Contract at 28. In

addition, Section 003.02 of Chapter 9 in the Nebraska Classified

System Personnel Rules (the "Personnel Rules") states, in part,

that:




Full-time or part-time employees eligible for time and

one-half overtime, other than temporary, who work on a

holiday (observed or actual) shall receive time and one-

half compensation either in the form of pay or time off

within the next twelve month period, for hours actually

worked on the holiday, in addition to their holiday leave

pay for hours scheduled to work that day.




Presumably, both the State Labor Contract and the Personnel Rules

were entered into and created based upon adequate statutory

authority. As a result, we believe that both of those documents

require the payment of overtime as specified therein to those

employees who are within their purview and who might be required to

work on a paid state holiday.




Sincerely yours,




DON STENBERG

Attorney General





Dale A. Comer

Assistant Attorney General