AGO Opinion 97063
State Holidays Created as a Result of Presidential Proclamation; Additional Compensation for State Employees Who Work on Paid State Holidays
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
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
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 . . .
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
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
Subsection (5) of Neb. Rev. Stat. § 84-1001 (1994) states, as
[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,
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.
Dale A. Comer
Assistant Attorney General