AGO 1977 No. 3 - Jan 11 1977
HOLIDAYS ‑- LABOR ‑- STATE AND MUNICIPAL EMPLOYEES ‑- PAID HOLIDAYS UNDER CHAPTER 24, LAWS OF 1975-1976, 2ND EX. SESS
In view of § 1, chapter 24, Laws of 1975-1976, 2nd Ex. Sess., all employees of the state and its political subdivisions are now entitled to such paid holidays, whether concurrent with legal holidays or otherwise, as are lawfully provided for by their employment contracts or their employer's equivalent compensation policies and, in addition, they are entitled to one "floating" paid holiday each year, irrespective of whether or not it is provided for in their particular employment contracts; in the case of school teachers covered by RCW 28A.02.061, as amended by § 2 of chapter 24, supra, those employees are also statutorily entitled to be paid for any school holidays, as enumerated therein, which correspond with what would otherwise be a normal school day.
- - - - - - - - - - - - -
January 11, 1977
Honorable Charles D. Kilbury
State Representative, 16th District
Pasco, Washington 99302
Cite as: AGO 1977 No. 3
By letter previously acknowledged you have requested our opinion in response to several questions regarding the paid holidays to which state and municipal employees are now entitled under RCW 1.16.050 and RCW 28A.02.061, as recently amended by chapter 24, Laws of 1975-76, 2nd Ex. Sess. The basic and determinative issue raised by all of those questions, however, is one which may be simply stated as follows:
In view of the enactment of chapter 24, Laws of 1975-76, 2nd Ex. Sess., for what holidays are employees of the state and its political subdivisions now entitled to be compensated even if they do not actually work on those days?
We answer this question in the manner set forth in our analysis.
[[Orig. Op. Page 2]]
RCW 1.16.050 is a long-existing statute which originated as § 1, chapter 51, Laws of 1927, and deals with the subject of legal holidays. By its enactment of § 1, chapter 24,supra, however, the legislature amended this statute in the following respects:
"The following are legal holidays: Sunday; the first day of January, commonly called New Year's Day; the twelfth day of February, being the anniversary of the birth of Abraham Lincoln; the third Monday of February, being celebrated as the anniversary of the birth of George Washington; the ((
thirtieth day)) last Monday of May, commonly known as Memorial Day; the fourth day of July, being the anniversary of the Declaration of Independence; the first Monday in September, to be known as Labor Day; (( the second Monday of October, to be known as Columbus day,)) the eleventh day of November, to be known as Veterans' Day; the fourth Thursday in November, to be known as Thanksgiving Day; the day immediately following Thanksgiving Day; and the twenty-fifth day of December, commonly called Christmas Day (( ; the day on which any general election is held throughout the state, and any day designated by public proclamation of the chief executive of the state as a legal holiday)).
"Employees of the state and its political subdivisions shall be entitled to one paid holiday per calendar year in addition to those specified in this section. Each employee of the state or its political subdivisions may select the day on which the employee desires to take the additional holiday provided for herein after consultation with the employer pursuant to guidelines to be promulgated by rule of the appropriate personnel authority, or in the case of local government by ordinance or resolution of the legislative authority.
"Nothing in this section shall be construed to have the effect of adding or deleting the number of paid holidays provided for in an existing agreement between employees and employers of political subdivisions of the state.
"If any of the above specified state legal holidays are also federal legal holidays but observed on different dates, only the state legal holidays shall be recognized as a paid legal holiday for employees of the state and its political subdivisions except that for port districts and the law enforcement [[Orig. Op. Page 3]] and public transit employees of municipal corporations, either the federal or the state legal holiday, but in no case both, may be recognized as a paid legal holiday for employees.
"Whenever any legal holiday, other than Sunday, falls upon a Sunday, the following Monday shall be a legal holiday."
In addition, by § 2 of the same act the legislature amended another statute, RCW 28A.02.061, dealing with school holidays, to read as follows:
"The following are school holidays, and school shall not be taught on these days: Saturday; Sunday; the first day of January, commonly called New Year's Day; the third Monday in February, being the anniversary of the birth of George Washington; the last Monday in May, commonly known as Memorial Day; the fourth day of July, being the anniversary of the Declaration of Independence; the first Monday in September, to be known as Labor Day; the ((
fourth Monday in October)) eleventh day of November, to be known as Veterans' Day, the fourth Thursday in November, commonly known as Thanksgiving Day; the twenty-fifth day of December, commonly called Christmas Day: PROVIDED, That no reduction from the teacher's time or salary shall be made by reason of the fact that a school day happens to be one of the days referred to in this section as a day on which school shall not be taught."
We have set forth this amendatory legislation in bill form for ease of reference. Having done so we believe that a basic point which is critical to a resolution of your present questions may readily be perceived. The point thus to be seen is that unlike RCW 28A.02.061, there was absolutely nothing in RCW 1.16.050, prior to its amendment, which purported to may any of the holidays listed therein "paid" days off, as a matter of law, for anyone. Instead the statute merely designated a number of "legal" holidays (including, notably, all Sundays) and then left it for the most part to each employer (public or private), in the formulation of its own employment contracts or related compensation policies, to determine which (if any) of those days (or perhaps others as well) would constitute paid holidays for the employees of that employer. The one exception to this premise was that if a given state legal holiday (e.g., Memorial Day) was also a federal legal holiday but observed on a different date, only the state holiday could thus be recognized as a paid holiday [[Orig. Op. Page 4]] for all state and municipal employees except those of port districts or (in the further words of the law) ". . . the law enforcement and public transit employees of municipal corporations . . ." In the case of the latter either, but not both, holidays could thus be recognized.
In practice, on the other hand, it is of course true that most, if not all, of the state legal holidays listed in the statute prior to its amendment were in fact recognized by employers, both private and public, as paid holidays for their employees ‑ meaning either that the employees received a day off with pay on each such day or were otherwise compensated by means of overtime pay or compensatory time off on some other day. And, as we will note in a moment, that existing practice was undoubtedly on the minds of our legislators when they enacted the provisions of chapter 24, supra. But nevertheless, the mere fact that a given day was a "legal" holiday under the law did not, by and of itself, mean that any particular categories of employees were statutorily entitled to have the day so recognized by their employers as a matter of right.
Before turning to chapter 24, itself, and the legal significance to be attached to the first section of that act of the legislature,1/ we believe it appropriate further to note that the foregoing analysis of RCW 1.16.050 represents a viewpoint which is shared by other attorneys in the public sector as well. Thus, for example, in an opinion written on October 11, 1976, for the Washington Public Utility Districts' Association, Mr. Paul Coughlin,2/ legal counsel for the association, had this to say with regard to the same statute:
"A basic fact to be kept in mind in this instance is that we deal here not with some specific, housekeeping statute with respect to days upon which public employees are not required to work and with whether or not they are to be paid even though they do not work on that day, but rather with a statute of much more general significance, one concerned [[Orig. Op. Page 5]] primarily and essentially with declaring what are Washington State legal holidays. As the term itself implies, the emphasis is on the word 'legal'; and most of the consequences flowing from the establishment of legal holidays are quite unrelated to the employment of public employees and the possible payment to them of compensation related to those days. Holidays are set aside for worship, for reverence to the memory of a great leader and benefactor of humanity, for rejoicing over some great national or historical event, for putting aside ordinary work, days when the courts shall not be in session3/ and when many and various acts associated with legal and business matters are prohibited or affected. In this connection, it is interesting to notice immediately that Sunday is a legal holiday under Chapter 24, as it always has been under statutes in this state."
How, then, was all of this affected by the legislature's 1976 amendments to the statute? According to Mr. Coughlin's opinion the answer to that question is that, aside from its elimination of Columbus Day and election day as legal holidays, its corresponding addition of the day after Thanksgiving Day and its change in the date of Memorial Day, the only legal effect of those amendments, as contained in § 1, chapter 24,supra, was to grant to all state and municipal employees the one single statutory paid holiday which is referred to in the new, second, paragraph of the statute ‑ here repeated for ease of reference as follows:
"Employees of the state and its political subdivisions shall be entitled to one paid holiday per calendar year in addition to those specified in this section. Each employee of the state or its political subdivisions may select the day on which the employee desires to take the additional holiday provided for herein after consultation with the employer pursuant to guidelines to be promulgated by rule of the appropriate [[Orig. Op. Page 6]] personnel authority, or in the case of local government by ordinance or resolution of the legislative authority."
Likewise, although we recognize that the statute is somewhat confusingly drafted in that, in so providing, it speaks of this one paid holiday as being ". . . in addition to those specified in this section . . ." we are in agreement with the conclusion which Mr. Coughlin has thus reached. As stated in 73 Am.Jur. 2d, Statutes, § 210 (p. 405),
"The courts may not by implication read into a statute that which is not intended to be there, or make an implication which the language of the statute does not warrant. Thus a condition or restriction should not be implied as to a right granted by a statute which places no such condition or restriction thereon. Courts should exercise great wariness in the construction of statutes where their meaning is sought to be derived, not from specific language, but out of the innuendoes of disjointed portions of the statute."
In this case, any interpretation of chapter 24, supra, other than that which the Coughlin opinion expresses would manifestly produce a major departure from previous statutory law ‑ based only upon an implication to be derived from the words "in addition to those specified in this section." Therefore, bearing in mind, again, that none of the other holidays specified in the statute were paid holidays before ‑ except on the basis of contractual provisions or compensation policies established by individual employers ‑ we are likewise of the opinion, instead, that the legislature's use of the phrase "in addition to those specified" actually represents nothing more than an acknowledgment of the above described preexisting practices of most employers ‑ particularly those in the public sector. Thus what the legislature in reality was saying, as we now see it, is merely that state and municipal employees will henceforth be entitled to one paid holiday each year of their own choosing, in addition to whatever other fixed holidays, paid or otherwise, they may have by virtue of their contracts of employment, whether formal or informal.
Possessed of the presumptive knowledge of existing practice which we have attributed to it there was ample reason for the legislature to have referred to the new, statutory, "floating" paid holiday for public employees as being "in [[Orig. Op. Page 7]] addition" to the other legal holidays now provided for by the same law. But this, in our judgment, does not mean that the legislature intended, also, thereby to label all of those other legal holidays4/ as "paid" holidays as a matter of statutory, rather than merely contractual right ‑ contrary to their legal status before the amendment was enacted.
Conversely, it is most certainly quite clear that the statute, as amended,does now declare the one "floating" holiday provided for in its new, second paragraph to be a statutory paid holiday insofar as the employees of the state and its political subdivisions are concerned. Therefore, based upon what we have said thus far in this opinion our overall response to your question (as we have above paraphrased it) is that, in view of § 1 of chapter 24,supra, employees of the state and its political subdivisions are now entitled to the following paid holidays:
(a) As before, to whatever paid days off, whether concurrent with legal holidays or otherwise, are lawfully provided for by their employment contracts or their employer's equivalent compensation policies; and
(b) In addition, to one "floating" paid holiday each year, irrespective of whether or not it is provided for in their particular employment contract.5/
[[Orig. Op. Page 8]]
The latter, however, is the only holiday listed in RCW 1.16.050, as amended, to which state or municipal employees, generally, are entitled to have on a paid basis regardless of their employment contracts or equivalent compensation policies. Thus, in each of the hypothetical cases referred to in your letter the ultimate answer to the employees involved (if other than public school teachers) is that they are all now statutorily entitled to one paid day off of their choice each year and then, in addition, they are entitled to those "paid" holidays which are provided for by the particular contract or equivalent compensation policies by which they are covered.
If, on the other hand, the employees in question are school teachers employed as such in the public schools of our state the answer must be somewhat modified because those personnel will, in addition, also be covered by RCW 28A.02.061,supra, as amended by § 2 of chapter 24. Therefore, because of the proviso to that statute they will be entitled to be paid for any school holidays as enumerated therein which correspond with what would otherwise be a normal school day.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
ROBERT F. HAUTH
Assistant Attorney General
*** FOOTNOTES ***
1/We will deal separately, at the conclusion of this opinion, with the holiday rights of school teachers under § 2 of the act and RCW 28A.02.061, supra, as amended thereby.
2/Of the Seattle Law firm of Houghton, Cluck, Coughlin and Riley.
3/See, RCW 2.04.030 and RCW 2.08.030.
4/Including, again notably, not only the ten "once a year" holidays listed in the statute but, in addition, every Sunday in a year.
5/Inasmuch as this additional holiday is one to which employees are statutorily entitled, as a matter of public policy declared by the legislature, any attempt by an employer to take it away by contract executed after the effective date (February 20, 1976) of the law would, in our judgment, be void as contrary to public policy. See, e.g., the following cases involving purported waivers of the compensation of public employees: Rhodes v. Tacoma, 97 Wash. 341, 166 Pac. 647 (1917); Bell v. Mabton, 165 Wash. 396, 5 P.2d 514 (1931); State ex rel. Knez v. Seattle, 176 Wash. 283, 28 P.2d 1020 (1934);State ex rel. Pike v. Bellingham, 183 Wash. 439, 48 P.2d 602 (1935);Rudnick v. Pierce County, 185 Wash. 289, 54 P.2d 409 (1936);State ex rel. Ross v. King County, 191 Wash. 340, 71 P.2d 370 (1937);State ex rel. Bradford v. King County, 197 Wash. 393, 85 P.2d 670 (1938);Chatfield v. Seattle, 198 Wash. 179, 88 P.2d 582 (1939); andMalcolm v. Yakima Etc. School Dist., 23 Wn.2d 80, 159 P.2d 394 (1945).